International Criminal Court (ICC)—DRC/Lubanga: Challenge to Jurisdiction Update

The Pre‑Trial Chamber I, sitting in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo (DRC)) at the International Criminal Court (ICC) has issued a decision that will permit the defense and the prosecutor to respond to the statements of alleged victims and the DRC regarding the legality of Mr. Lubanga’s arrest and detention in the DRC.^[1] We have discussed these issues previously in the context of the defense challenges to the admissibility and jurisdiction of the Court.

Observations on jurisdictional issues by the referring State and by alleged victims is authorized in Article 19(3) of the Rome Statute.^[2] However, the Chamber did not agree to allow any additional time in which to submit the response.^[3] Therefore, written arguments on this issue are due from both parties on Thursday, September 7, 2006.^[4]

In its decision this week, the Pre‑Trial Chamber held that the defense had not demonstrated the “exceptional circumstances” needed to warrant an extension of the page limit under Regulation 37 of the Regulations of the Court, nor the “good cause” needed for extension of time under Regulation 35(2).^[5]

However, the most compelling reason cited by the Pre‑Trial Chamber for not allowing more time or page space was that “the confirmation hearing in the case of Thomas Lubanga Dyilo is scheduled for 28 September 2006 and that a decision of the Chamber on a challenge to the jurisdiction of the Court must be issued before the beginning of such hearing.”^[6] This is a puzzling statement.

Article 19(6) of the Rome Statute states that the Pre‑Trial Chamber’s competence to decide jurisdictional challenges does end at the confirmation hearing.^[7] However, after charges are confirmed and the case is assigned to a Trial Chamber, that Chamber acquires the competence to hear challenges to the jurisdiction.^[8]

In addition, Rule 122(2) leaves a procedural door open for addressing a challenge concerning jurisdiction that arises at the confirmation hearing.^[9] Finally, Article 19(6) also permits a party to appeal a jurisdictional decision to the Appeals Chamber.^[10]

The confirmation hearing is still scheduled for Thursday, September 28, 2006.

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[1] Decision on the Defence’s Request to File a Reply, ICC-01/04-01/06-359, Aug. 28, 2006.
[2] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 19(3).
[3] Decision supra note 1 at pg. 5.
[4] Decision supra note 1 at pg. 4 (“Decides to give the Defence and the Prosecution ten days from the notification of the present decision to respond…”). See also Regulations of the Court, ICC‑BD/01‑01‑04 [hereinafter Regulations], Reg. 33 (Calculation of Time Limits).
[5] Decision supra note 1 at pg. 4. See also Regulations 35(2) and 37.
[6] Decision supra note 1 at pg. 4.
[7] Rome Statute, Art. 19(6).
[8] Rome Statute, Art. 19(6).
[9] ICC Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rule or Rules], Rule 122(2).
[10] Rome Statute, Art. 19(6).