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International Criminal Court ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 1/85 SZ A Appeals Hearing (Open Session) ICC-01/04-02/12 1 International Criminal Court 2 Appeals Chamber - Courtroom 1 3 Situation: Democratic Republic of the Congo 4 In the case of The Prosecutor v. Mathieu Ngudjolo Chui - ICC-01/04-02/12 5 Presiding Judge Sanji Mmasenono Monageng, Judge Sang-Hyun Song, 6 Judge Cuno Tarfusser, Judge Erkki Kourula and Judge Ekaterina Trendafilova 7 Appeals Chamber Hearing 8 Tuesday, 21 October 2014 9 (The hearing starts in open session at 9.30 a.m.) 10 THE COURT USHER: All rise. 11 The International Criminal Court is now in session. 12 Please be seated. 13 PRESIDING JUDGE MONAGENG: Good morning. 14 The Appeals Chamber is now in session and I would like to welcome everyone who is 15 here today in the courtroom and the public gallery, as well as everyone joining us via 16 the internet or otherwise. 17 The Appeals Chamber has authorised the taking of photographs for one minute. 18 (Pause in proceedings) 19 PRESIDING JUDGE MONAGENG: Thank you. Half-a-second. Thank you very 20 much. 21 I would now ask the court officer to call the case. 22 THE COURT OFFICER: Thank you, Madam President. 23 The situation in the Democratic Republic of the Congo, in the case of The Prosecutor 24 versus Mathieu Ngudjolo Chui, ICC-01/04-02/12. 25 We are in open session. 21.10.2014 Page 1 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 2/85 SZ A Appeals Hearing (Open Session) ICC-01/04-02/12 1 PRESIDING JUDGE MONAGENG: Thank you very much. 2 I would now invite the parties and participants at this hearing to introduce 3 themselves and we shall begin with the Office of the Prosecutor. 4 A representative of the Prosecutor, would you please introduce yourself and those 5 members of your office present? 6 MR GUARIGLIA: Good morning, Madam President, your Honours. I am 7 Fabricio Guariglia, Director of the Prosecution Division, and appearing with me today 8 are Ms Helen Brady, senior appeals counsel; Mr Eric MacDonald, senior trial lawyer; 9 Mr Reinhold Gallmetzer, appeals counsel; Ms Priya Narayanan, appeals counsel; and 10 our case manager this morning is Carmen Garcia Ramos. 11 PRESIDING JUDGE MONAGENG: Thank you. 12 The Defence of Mr Ngudjolo is invited to present the members of the team? 13 MR KILENDA: (Interpretation) Good morning, Madam President, your Honours. 14 The team for Mathieu Ngudjolo is three in number today. To my left you have 15 Mr Jean-Pierre Fofé Djofia Malewa, who is our co-counsel; just behind me you have 16 the legal assistant, Godefroid Bokolombe; and Mademoiselle Maria Manolescu, who 17 is our case manager; and myself, Jean-Pierre Kilenda Kakengi Basila, lead counsel. 18 PRESIDING JUDGE MONAGENG: Thank you, Mr Kilenda. 19 The representative of the principal group of victims? 20 MR NSITA: (Interpretation) Thank you, Madam President. Your Honours, I am, 21 as Madam President just said, the legal representative of -- the Common Legal 22 Representative for the main group of victims in this case and the rest of my team is 23 out in the field currently in Ituri and I've just returned from there myself. 24 Thank you. 25 PRESIDING JUDGE MONAGENG: Thank you. 21.10.2014 Page 2 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 3/85 SZ A Appeals Hearing (Open Session) ICC-01/04-02/12 1 The legal representative of former child soldier victims? 2 MR GILISSEN: (Interpretation) Good morning, Madam President. Good 3 morning, your Honours. 4 My name is Jean-Louis Gilissen, I am a lawyer with the Liège Bar. I am 5 accompanied by Maître Julie Goffin who is my case manager. And thank you for 6 allowing me to take the floor at the beginning of this hearing. 7 PRESIDING JUDGE MONAGENG: Thank you very much. 8 For the record, I am Sanji Mmasenono Monageng, Presiding Judge in the final appeal 9 proceedings in the case of Prosecutor against Mathieu Ngudjolo Chui. Seated on my 10 immediate right is Judge Song and on his right Judge Kourula. On my immediate 11 left is Judge Tarfusser and next to him is Judge Trendafilova. And seated in front of 12 the Bench and to my right is Bruno Zehnder, legal officer, and to my left is Natasha 13 Naidoo, also legal officer of the Appeals Chamber, and next to her is Volker Nerlich, 14 legal adviser to the Appeals Chamber. 15 We are also joined today by staff, including the court officer, court usher, interpreters, 16 stenographers and security officers who I welcome and thank for their assistance. 17 I will briefly explain how the hearing will be conducted. The hearing of the Appeals 18 Chamber is scheduled to last a day. We will commence with the hearing of 19 submissions from the parties and participants on the issues arising in this appeal. At 20 the end of today's hearing, Mr Ngudjolo will also have the opportunity to address the 21 Appeals Chamber. 22 I will first make a few general remarks on behalf of the Bench. The parties and 23 participants are reminded that they are expected to confine their submissions to the 24 issues raised on appeal and complete their submissions within the time frame set by 25 the Appeals Chamber. 21.10.2014 Page 3 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 4/85 SZ A Appeals Hearing (Open Session) ICC-01/04-02/12 1 Furthermore, the parties and participants are reminded to be cognizant of the fact that 2 the proceedings are being translated and they are required to speak at a reasonable 3 rate to facilitate this. 4 Finally, it is recalled that pursuant to the, and I quote, "Order in relation to the 5 conduct of the hearing before the Appeals Chamber," end of quote, the parties are to 6 maintain confidentiality in relation to protective measures in place with respect to 7 certain witnesses and the documents cited in the appeal that relate to the third ground 8 of appeal, in particular, Trial Chamber II's decisions and the Registry monitoring 9 reports. 10 To this end, the parties and participants are hereby informed that the entirety of the 11 submissions that relate to the third ground of appeal will be heard in private session. 12 In this regard, be informed that the Appeals Chamber is currently reviewing the level 13 of confidentiality of all the documents related to the third ground of the appeal and 14 will issue orders in due course with a view to making these documents public to the 15 extent possible. 16 We will now proceed with hearing the submissions of the Prosecutor. 17 Representative of the Prosecutor, you now have the floor for the next 45 minutes. 18 MR GUARIGLIA: Before I start with my submissions, your Honour, may I have a 19 point of clarification? Our understanding of your Honours' order from 17 October 20 was that any reference to the reports had to be made in closed session in 21 relation -- and that's how we also proceeded to redact our core documents, but our 22 understanding was also that the decisions from the Trial Chamber could be referred 23 to in open session. So we were expecting that at least half of the third ground of 24 appeal could be argued publicly. Now, that seems to be at odds with the instruction 25 that we just got from you and I was wondering whether there's been some confusion 21.10.2014 Page 4 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 5/85 SZ A Appeals Hearing (Open Session) ICC-01/04-02/12 1 as to the different orders, or whether we simply misunderstood your order? 2 PRESIDING JUDGE MONAGENG: The Judges, after what happened last week, we 3 have taken a very informed decision that ground 3 shall be in closed session. So if 4 you are going to be referring to documents that have anything to do with the third 5 ground and that are confidential -- as far as decisions that are confidential, if you are 6 going to refer to them during your submissions in grounds 1 and 2, we have to go 7 into private session, but as for ground 3, we are totally in private session. 8 MR GUARIGLIA: Of course -- 9 PRESIDING JUDGE MONAGENG: Because -- 10 MR GUARIGLIA: Of course we will do whatever the Chamber -- 11 PRESIDING JUDGE MONAGENG: Counsel -- 12 MR GUARIGLIA: -- instructs us to do. 13 PRESIDING JUDGE MONAGENG: -- these decisions are confidential. They are 14 still classified confidential. 15 MR GUARIGLIA: That is correct. 16 PRESIDING JUDGE MONAGENG: Yes. 17 MR GUARIGLIA: However, what will happen effectively is I will have to refer in 18 closed session to paragraphs of our brief that on the basis of your decision from 19 Friday are not redacted so there is going to be mismatch, so to speak, between what is 20 available to the public in written form and to what will be available to the public 21 today in our hearing. 22 PRESIDING JUDGE MONAGENG: I think -- 23 MR GUARIGLIA: But I'm not asking for reconsideration. 24 PRESIDING JUDGE MONAGENG: Yes. I think -- 25 MR GUARIGLIA: We will follow your instructions. 21.10.2014 Page 5 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 6/85 SZ A Appeals Hearing (Open Session) ICC-01/04-02/12 1 PRESIDING JUDGE MONAGENG: I think for as long as we are referring to a 2 document that is classified confidential we can go into private session -- 3 MR GUARIGLIA: I will do that.
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