International Justice Monitor

A project of the Open Society Justice Initiative

Oral Hearing for Ngudjolo Appeal Set for October

The Appeals Chamber of the International Criminal Court has set a date for an oral hearing in the Mathieu Ngudjolo Chui case. Trial Chamber II acquitted Ngudjolo on December 18, 2012 of charges of war crimes and crimes against humanity. The prosecution has appealed, and oral arguments will be held before the Appeals Chamber on October 21, 2014.

The prosecution submitted a request for an oral hearing on August 29, 2014. In its request, the prosecution argued that a mandatory oral appeal hearing was assumed within the ICC’s legal and procedural framework. The prosecution argued that although there is no specific provision about this in the statute or rules, the drafters of the court’s legal framework would have specifically stated if the decision on holding an oral hearing was to be left up to the judges. The prosecution also argued than an oral hearing was necessary to protect the rights of the accused and ensure that the hearings are public and transparent.

The defense for Ngudjolo did not oppose the oral hearing. Although legal representatives for both groups of victims submitted observations on the oral hearing, the Appeals Chamber did not take those submissions into account. The Appeals Chamber found that although the victims were permitted to participate on appeal, that participation was limited to filing observations about issues related to the personal interests of the victims that arose in the prosecution and defense appeals arguments. Therefore, the Appeals Chamber disregarded their observations about the oral hearing since neither group of victims sought leave from the Appeals Chamber nor did the Appeals Chamber independently issue directions for them to make such a submission.

The Appeals Chamber found that, contrary to prosecution arguments, there is no statutory assumption that an oral appeal hearing is mandatory for final appeals. The Appeals Chamber considered that since there is no explicit provision about an oral appeal hearing for final appeals, the drafters meant to leave it up to the judges’ discretion. The prosecution’s arguments on this issue were unsupported, the Appeals Chamber found.

This approach is distinct from appeals at other international courts and tribunals. The International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Extraordinary Chambers in the Courts in Cambodia, and the Special Tribunal for Lebanon have mandatory hearings for final appeals expressly provided for in their rules. Nevertheless, the ICC Appeals Chamber found that it had the discretion to decide on an oral hearing in final appeals on a case-by-case basis. A decision to hold an oral hearing should be based primarily on whether the hearing would assist the Appeals Chamber in clarifying and resolving the issues raised on appeal, the Chamber found. In the Ngudjolo case, the Appeals Chamber found that an oral hearing would indeed be useful and set a hearing for October 21, 2014.

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