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that is, there is no feedback from speed.
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that is, there is no feedback from speed.
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that is, the exim user is no longer privileged in this regard.
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that is, the exim user is no longer privileged in this regard.
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la pieza más impresionante del álbum es, en mi opinión, "the everything that is no thing", de aire majestuoso y gran belleza.
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the most impressive piece in the album is, in my opinion, "the everything that is no thing", of a majestic air and a great beauty.
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trial chamber i (“trial chamber” or “chamber”) of the internationalcriminal court (“court” or “icc”), in the case of the prosecutor v. thomaslubanga dyilo (“lubanga case”), issues the following judgment pursuant toarticle 74 of the statute:i. the charges1. on 29 january 2007, pre-trial chamber i issued its decision on theconfirmation of charges. 1 it confirmed that there was sufficientevidence to establish substantial grounds to believe that:thomas lubanga dyilo is responsible, as co-perpetrator, for the charges ofenlisting and conscripting children under the age of fifteen years into thefplc and using them to participate actively in hostilities within the meaningof articles 8(2)(b)(xxvi) and 25(iii)(a) of the statue from early september 2002to 2 june 2003.2additionally, the pre-trial chamber confirmed that there wassufficient evidence to establish substantial grounds to believe that:thomas lubanga dyilo is responsible, as co-perpetrator, for the charges ofenlisting and conscripting children under the age of fifteen years into thefplc and using them to participate actively in hostilities within the meaningof articles 8(2)(e)(vii) of the statute from 2 june to 13 august 2003.32. under the rome statute (“statute”)4 and the rules of procedure andevidence (“rules”), the charges include a description of the relevantfacts and circ*mstances, and the facts are legally characterised.therefore the charges are made up of factual and legal elements.3. pursuant to article 74(2) of the statute, the judgment “shall notexceed the facts and circ*mstances, described in the charges and anyamendments to the charges”. the charges and any amendmentsthereto establish the factual scope of the decision pursuant to article74(2).4. by regulation 55(1) of the regulations of the court (“regulations”),“the chamber may change the legal characterisation of facts to accordwith the crimes under articles 6, 7 or 8, or to accord with the form ofparticipation of the accused under articles 25 and 28”. however, itshall not exceed the facts and circ*mstances described in the chargesand any amendments to the charges.5. regulation 52(b) of the regulations establishes what needs to beincluded in the document containing the charges: “[a] statement of thefacts, including the time and place of the alleged crimes, whichprovides a sufficient legal and factual basis to bring the person orpersons to trial, including relevant facts for the exercise of jurisdictionby the court”.6. the appeals chamber has defined what are “the facts” in thiscontext:in the view of the appeals chamber, the term 'facts' refers to the factualallegations which support each of the legal elements of the crime charged.these factual allegations must be distinguished from the evidence putforward by the prosecutor at the confirmation hearing to support a charge(article 61 (5) of the statute), as well as from background or other informationthat, although contained in the document containing the charges or theconfirmation decision, does not support the legal elements of the crimecharged. the appeals chamber emphasises that in the confirmation process,the facts, as defined above, must be identified with sufficient clarity anddetail, meeting the standard in article 67 (1) (a) of the statute.57. it follows that the accused cannot be convicted on a basis thatexceeds the factual circ*mstances that were identified in theconfirmation decision as supporting each of the legal elements of thecrimes charged.8. the two paragraphs of the decision on the confirmation of chargescited above contain the legal characterisation of the facts, including themode of liability, the temporal framework of the crimes and the factthat the alleged conscription and enlistment was “into” the forcepatriotique pour la liberation du congo (“fplc”). the pre-trialchamber, in this section, did not expressly identify the facts thatsupported each of the legal elements of the crimes charged. however,they were referred to in other sections of the decision and the trialchamber has ensured that the present judgment does not exceed thefacts and circ*mstances established by the pre-trial chamber.ii.brief case history, jurisdiction andparticipation by victimsjurisdiction9. pursuant to article 19 of the statute, the “court shall satisfy itselfthat it has jurisdiction in any case brought before it.”6 the democraticrepublic of the congo (“drc”) became a state party on 11 april 2002and, pursuant to article 14, president kabila referred the situation inthe drc to the prosecutor in march 2004. 7 pre-trial chamber iconcluded that the case falls within the court’s jurisdiction,8 and theappeals chamber confirmed the pre-trial chamber’s decision on theaccused’s challenge to the jurisdiction of the court.9 the personal,temporal, territorial and subject-matter elements that are relevant tothe court’s jurisdiction have not altered since the decision on theconfirmation of the charges, and the issue has not been raised by theparties or any state before the trial chamber.case history10. the first status conference before the trial chamber was held on 4september 2007, and thereafter there were 54 status conferences priorto the commencement of the trial.10 a list of the main decisions of thechamber is set out in annex a. however, it is appropriate to mentionin this section four major procedural events which had a significantimpact on the course of the proceedings:i) on 13 june 2008, the chamber stayed theproceedings inter alia as a consequence of the failureby the office of the prosecutor (“prosecution” or“otp”) to disclose a significant body of potentiallyexculpatory evidence covered by certainconfidentiality agreements that had been enteredinto on the basis of article 54(3)(e) of the statute.11after a considerable delay, the materials that hadbeen withheld were disclosed, and following areview of them by the chamber, the stay ofproceedings was lifted on 18 november 2008.12 theprosecution called its first witness on 28 january2009 after the parties and legal representatives of thevictims had completed their opening statements on26 and 27 january 2009.13ii) the presentation of oral evidence by the prosecutionconcluded on 14 july 2009, 14 and thereafter themajority of the chamber (judge fulford dissenting)issued a decision notifying the parties andparticipants that the legal characterisation of thefacts may be subject to change, pursuant toregulation 55 of the regulations of the court.15 thechamber granted leave to appeal the decision on 3september 200916 and adjourned the presentation ofevidence and any further consideration ofregulation 55 pending the outcome of theinterlocutory appeal.17 the appeals chamber issuedits judgment reversing the 14 july 2009 decision on8 december 2009. 18 the presentation of evidenceresumed on 7 january 2010 with the testimony of thethird expert called by the chamber.19 28 witnessestestified before the chamber between 7 january and8 july 2010, including 3 victims called by their legalrepresentative and 3 prosecution witnesses (seebelow). the presentation of the defence evidencecommenced on 27 january 2010.iii) on 8 july 2010, the trial chamber imposed a secondstay of proceedings because of the prosecution’snon-compliance with an order for the disclosure ofthe name of intermediary 143. 20 the appealschamber concluded that the orders of a chamberare binding and the prosecutor is obliged to complywith them (the prosecutor’s “wilful non-complianceconstituted a clear refusal to implement the ordersof the chamber”), 21 but it reversed the stay ofproceedings on 8 october 2010 (indicating that adifferent sanction, namely a financial penalty,should have been considered).22 the presentation ofevidence resumed on 25 october 2010. sevenwitnesses testified between 25 october and 1december 2010.iv) on 10 december 2010, the defence filed anapplication seeking a permanent stay ofproceedings, arguing, inter alia, that four of theintermediaries used by the prosecution hadprepared false evidence and the prosecutor wasaware that some of the evidence connected to theseindividuals was untruthful, and moreover he failedin his obligation to investigate its reliability.23 priorto receiving the application, the chamber had heard30 witnesses relevant to this issue, including 3intermediaries. the chamber issued a decisiondismissing the defence application on 23 february2011. 24 the presentation of the defence evidenceresumed on 28 march 2011 and five final defencewitnesses testified before the evidence formallyclosed on 20 may 2011.11. as set out above, the presentation of evidence in the case started on28 january 2009 and was formally closed on 20 may 2011.25 the trialchamber heard 67 witnesses, and there were 204 days of hearings.26the prosecution called 36 witnesses, including 3 experts,27 and thedefence called 24 witnesses.28 three victims were called as witnessesfollowing a request from their legal representatives. additionally thechamber called four experts.29 the prosecution submitted 368 items ofevidence, the defence 992, and the legal representatives 13 (1373 intotal). in addition to the written submissions, 30 the oral closingarguments of the parties and participants were heard on 25 and 26august 2011. since 6 june 2007, when the record of the case wastransmitted to the trial chamber,31 the chamber has delivered 275written decisions and orders and 347 oral decisions.3212. article 76(2) provides that “the trial chamber may on its ownmotion and shall, at the request of the prosecutor or the accused, holda further hearing to hear any additional evidence or submissionsrelevant to the sentence”. the defence requested that the chamberholds an additional hearing in the event of a conviction.33 in an oraldecision delivered on 25 november 2008, the chamber decided therewould be a separate sentencing hearing if the accused is convicted.34participation by victims13. the rome statute permits victims to participate in proceedingsbefore the icc. in accordance with article 68(3) of the statute, victimshave participated in the present case, and in particular they haveapplied to introduce evidence, they have questioned witnesses andthey have advanced written and oral submissions (with the leave ofthe chamber), assisted by their legal representatives.14. in the “decision on victims’ participation” (judge blattmannseparately and partially dissenting), the chamber issued generalguidelines concerning the participation by victims during the trial.35this decision was appealed. 36 the appeals chamber partiallyconfirmed and partially reversed the decision.37 the following overallcriteria have been established in the decisions of the trial and theappeals chambers:i) bearing in mind the current situation in the drc and thepotential difficulties in obtaining or producing copies of officialidentity documents, applicants may establish proof of theiridentity by way of a range of official and non-officialdocuments.38ii) using principle 8 of the basic principles 39 as guidance, a victimis someone who experienced personal harm, individually orcollectively with others, directly or indirectly, in a variety ofdifferent ways such as physical or mental injury, emotionalsuffering or economic loss. 40iii) participation by victims at trial will first and foremost take placeby way of the procedure established in rule 89(1) of the rules.iv) only those who suffered harm as a result of the crimes chargedmay be considered victims in the case. applicants need todemonstrate a link between the harm they suffered and thecrimes faced by the accused,41 and they should demonstrate inwritten applications that they are victims of these offences.v) “[p]ursuant to article 68(3) of the statute, victims will first haveto demonstrate that their personal interests are affected by thetrial in order to be permitted to present their views and concernsat stages of the proceedings determined to be appropriate by thecourt and in a manner which is not prejudicial or inconsistentwith the rights of the accused and a fair and impartial trial.” 42participation is to be decided on the basis of the evidence orissues under consideration at any particular stage in theproceedings and victims wishing to participate should set out ina discrete written application the nature and the detail of theproposed intervention. 43vi) in accordance with rule 131(2) of the rules, victims have theright to consult the record of the proceedings, including theindex, subject to any restrictions concerning confidentiality andthe protection of national security information. in principle,victims have the right to access and receive notification of allpublic filings and those confidential filings which concern them(as identified by the parties), insofar as this does not breach anyprotective measures that are in place. 44vii)victims may request the chamber to use its broad powers to callall the material it considers relevant for the determination of thetruth, in order that the evidence identified by victimsconcerning the guilt or innocence of the accused is introduced(to the extent appropriate). victims may tender evidence,examine witnesses and challenge the admissibility or relevanceof evidence during the trial so long as: (i) they submit a discreteapplication; (ii) notice is given to the parties; (iii) the personalinterests of one or more victims are affected by the evidence; (iv)there is compliance with their “disclosure obligations and [any]protection orders”;45 (v) the chamber determines this course isappropriate and (vi) there is consistency with the rights of theaccused and a fair trial. 46viii) victims have the right to participate in public hearings and tofile written submissions, and they may be permitted toparticipate in closed or ex parte hearings or to file confidential orex parte submissions, depending on the circ*mstances. 47ix) victims’ views and concerns may be presented by a commonlegal representative in order to provide for the fairness andexpeditiousness of the trial.48x) victims may apply to the chamber for leave to call evidencerelating to reparations during the trial under regulation 56 ofthe regulations of the court.49xi) anonymous victims may participate in the trial. however, thegreater the extent and significance of the proposed participation,the more likely it will be that the chamber will require thevictim to identify himself or herself. 5015. the total number of individual victims authorised to participate inthe proceedings is 129 (34 female and 95 male victims).51 once thechamber received the parties’ observations on their applications andreviewed the reports prepared by the victims participation andreparations section under regulation 86(5) of the regulations of thecourt, 52 it concluded, on a prima facie basis, that each of theseindividuals were victims of the crimes charged against the accused.53in accordance with the statute the trial chamber examined, on a caseby-case basis, the link between the harm allegedly suffered, thevictims’ personal interests and the charges against the accused.16. while all 129 victims claimed they had suffered harm as a result ofthe enlistment or conscription of children under the age of 15, or theiruse to participate actively in the hostilities, many also alleged they hadsuffered harm as a result of other crimes, such as sexual violence andtorture or other forms of ill treatment, which are not the subject ofcharges against the accused.5417. the victims who have been granted permission to participate in thistrial are, in the main, alleged former child soldiers, although some arethe parents or relatives of former child soldiers and one is a school.since some of the victims were still children when they submitted theirapplications, their parents, relatives or others have acted on theirbehalf. the chamber accepted that the individual who acted for achild did not need to be their parent or legal guardian – indeed itpermitted children to participate directly without an adultrepresenting them.5518. many of the victims in the case were granted protective measuresand, in particular, anonymity because of their vulnerable positionliving in areas of ongoing conflict. consequently, of 129 victims, theidentities of only 23 have been disclosed to the parties and participantsin the proceedings. however, the chamber found that:[w]hile the safety and security of victims is a central responsibility of thecourt, their participation in the proceedings cannot be allowed to underminethe fundamental guarantee of a fair trial. the greater the extent and thesignificance of the proposed participation, the more likely it will be that thechamber will require the victim to identify himself or herself. accordingly,when resolving a request for anonymity by a victim who has applied toparticipate, the chamber will scrutinise carefully the precise circ*mstancesand the potential prejudice to the parties and other participants. […]5619. the chamber formulated certain key principles for thoseindividuals with dual status as victims and witnesses.57 whilst thechamber indicated that their security should not be compromised, italso established that individuals with dual status do not accrue rightsabove and beyond those of someone who is solely a victim or awitness.5820. common legal representatives have appeared in court for theparticipating victims, who have been divided into two groupsrepresented by two teams of external counsel. 59 additionally, theoffice of public counsel for victims (“opcv”) was authorised tocontinue representing four dual status victims.60 through their legalrepresentatives the victims made opening statements, 61 examinedwitnesses62 and requested leave to introduce evidence.63 they werepermitted to make written and oral submissions.21. the chamber authorised three victims to give evidence as witnessesduring the trial and evidence was presented on behalf of a school.64these three witnesses, who testified in january 2010, were granted incourtprotective measures that included voice and face distortion andpseudonyms.65 the position of these three witnesses is discussed ingreater detail below.iii. overview of the parties andparticipants submissionsa. prosecution submissions22. the principal factual allegations against the accused commence on15 september 2000 when it is suggested he became president of theunion des patriotes congolais (“upc”). it is said that he held thisposition at all material times thereafter. his ambition is described asgaining power in ituri, but since he was leading a rebel movement thiswas unachievable without a military force. in unequivocal terms, it isthe prosecution’s assertion that the accused agreed with others to gainpower in ituri through the recruitment of “young persons”. it isalleged that the co-perpetrators were establishing an army,notwithstanding their public promise to end years of ethnic fighting.6623. the prosecution asserts that in reality the recruitment began whenmilitary training in uganda became a possibility in 2000. the accusedand his co-perpetrators launched the first wave of young hemafighters who would later become the armed wing of the upc. this ledthe accused and his co-perpetrators to become closely associated withthe upc and the hema militia (which are said to have beenindistinguishable) and it is alleged they used children to gain power inituri.6724. his hema connections enabled thomas lubanga to cultivate anexternal profile as a key political player in iturian politics, and thisincluded the declar
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