Monthly Archives: November 2012

“a birth certificate of the reality of the state of Palestine”

Yesterday, the United Nations General Assembly voted to upgrade the status of Palestine to a “nonmember observer State” ostensibly recognizing the existence of a Palestinian State in the Middle East.  As has been pointed out by others, this move could mean that the Palestinian Authority could accept the jurisdiction of the International Criminal Court and thereby cede jurisdiction to that body to investigate alleged crimes taking place on its territory.

The existence of a State is supposed to be a matter of fact (see my earlier post on this subject). In fact, when Palestinian Authority President Mahmoud Abbas called upon the General Assembly to upgrade his organization’s status he called on them to certify an already existing reality. That the situation on the ground should not continue as it has for decades now is not in question. The problem is, at least for me, that I do not see “Palestine” as an already existing State, but rather one that should already exist.

The Montevideo criteria for Statehood, as generally recognized as being the required conditions for being a State, are (1) a permanent population, (2) a defined territory, (3) a government and (4) the ability to enter into international relations with other States. Two of these criteria are without a doubt satisfied, the Palestinian Territories have a permanent population and the Palestinian Authority has entered into international relationships. The problems are with the defined territory and government.

The lack of a defined territory is not so much a barrier to Statehood. There is a core of the Palestinian Territories that would be without a doubt part of any future State and no other State claims them. The border issues (which of course is a big issue) do not change the fact that a core territory exists. In this context recognition should be able to cure any defect in territorial integrity. In fact, this was and is the case with the State of Israel.

The real problem is that any Palestinian State (recognized or not) does not currently have a government with control over the territory. Until yesterday, the Palestinian Territories were still referred to as the Occupied Territories. Israel still maintains significant control in the area, not to mention controlling much of the borders, the payments of monies customs duties and the ability to intervene with force when it chooses to do so. If there is no control, there can be no sovereign State. Sovereignty is after all defined as the ability to exclude other powers, something the Palestinian Authority cannot do as of yet.

If Palestine is a State, it can act in self-defense to a violation of its borders and can call on others to assist in that defense. This means that the status quo ante recognition and at the time of recognition could be considered an act of aggression or war. In other words, actions that were not illegal (or at least not acts of war or aggression) would be transformed by a diplomatic act into serious international crimes. The new State could then refer the issue to the ICC or invite other States to fight Israel in a ground war. In the first case, the referral would have no teeth as the Palestinian forces have no ability to arrest and transfer accused to the Court without Israeli cooperation. In the second, recognition did nothing more than lead to war. Neither of these are results that the international community should welcome.

I do not mean to say by this that the Palestinians should not have a State. My only point is that declaring something that does not yet exist to be a reality is to live in a land of fantasy. And when one lives in a land of fantasy, and acts based on that false reality, sooner or later, the real world will come calling and the result will not be pretty.


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India v. Italy Part Five: The Saga Continues

The Enrica Lexie incident has been widely discussed on this blog and in the international media. So far the case has been heard by courts in the Indian state of Kerala and has been argued before the Supreme Court of India. This last court has had the matter under consdieration since September of this year after a full court argument and briefing. On 21 November 2012 the Supreme Court issued a Suo Motu Petition requesting additional briefing regarding a “Recent Firing Incident, Widely Reported in the Press, Resulting in the Death of Two Persons, Allegedly on Account of Use of Firearms by Some Private Security Personnel”. Nothing in the petition and order issued by the court directly identifies it with the Enria Lexie incident, and in fact, the order was issued in relation to another shooting incident in downtown new Delhi, but its content and reference could address issues raised by the Enrica Lexie case.

The Justices requested additional briefing from Ministry of Home Affairs for the Union of India on four issues: (1) what legal rules exist to govern the use of private security agencies; (2) what rules exist for the issuance of firearms to such companies’ personnel; (3) what rules govern the use of such firearms by said personnel and; (4) “what are the rights and duties of private security agencies under the law, particularly, vis-a-vis the criminal law of the land”.

From the point of view of International Law, the Enrica Lexie incident raised two major questions the jurisdiction of India over the events and the immunity of the Italian soldiers from said jurisdiction. If the responses to this order can be applied to the Lexie case, it would appear that the Court has found a basis to affirm India’s jurisdiction and is in a possition to look and see which national laws would govern the substantive case.

I will report more on the case as it develops.


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Review of International Tribunal Decisions for the week of November 19, 2012

This week saw decisions from the International Court of Justice (ICJ), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). They cover issues of sovereignty over islands, admission of evidence, amicus curiae submissions and the right to a fair trial.

Public International Law


Territorial and Maritime Dispute (Nicaragua v. Colombia)[1]


The ICJ decided by unanimous vote to reject Nicaragua’s claim to sovereignty over several disputed islands in the Caribbean Sea and instead favoured Colombia’s claim. The issue was decided not by what territories the countries possessed at the time of independence, but based on Colombia’s continual action and presentation that it was the sovereign over the disputed islands, especially considering the lack of any such action on the part of Nicaragua.

International Criminal Law


Prosecutor v. Stanišić & Simatović[2]

Decision on Prosecution Motion for Reconsideration of the Decision Denying Admission of D456


The Chamber had denied the admission of a defence exhibit on the grounds that there were problems with the original and the translation.[3] The Prosecution asked for this decision to be reconsidered as those faults had been corrected.[4] The Chamber granted the request.


The Chamber considered that the correction of the previous deficiencies constituted a new fact that could permit reconsideration.[5] The document in question had been examined by several defense witnesses and discussed at length during the proceedings.[6]The Chamber noted that there was no duty to explicitly indicate how an exhibit tendered through a witness is to be used in the party’s case as the witness testimony would give it context.[7] The document in question was also not “new evidence” as it had been discussed at trial.[8] For these reasons, the Chamber found that the accused would not be prejudiced by its admission and reconsidered its prior decision denying admission of the exhibit in question.[9]


Prosecutor v. Katanga & Chui[10]

Décision relative à la mise en œuvre de la norme 55 du Règlement de la Cour et prononçant la disjonction des charges portées contre les accuses

The Trial Chamber decided to sever the charges against the two accused and will issue a decision on the guilty or innocence of Mr. Chui pursuant to article 74 of the Rome Statute on 18 December 2012.

The Chamber that the mode of criminal responsibility charged against Mr. Katanga may be subject to modification also issued a notification. All participants were asked to submit their observations on this possibility by 15 January 2013.

Prosecutor v. Ruto & Sang[11]

Decision granting the application of Kituo Cha Sheria for leave to submit observations


Kituo Cha Sheria (Center for legal empowerment) submitted an application to provide observations on the methods of victim participation in this case.[12] The Chamber granted the request.


“The Chamber notes that Kituo is a non-governmental human rights organization operating in Kenya. “Shortly after the 2007/2008 post election violence (“PEV”), Kituo designed a project aimed at facilitating effective community participation in the Truth Justice and Reconciliation Process in Kenya, as well as victims’ participation in the ICC process. As part of the aforementioned project, Kituo is currently undertaking outreach to 2007/2008 PEV victims with the aim of promoting victim participation in the ICC process.” ^° Kituo is in contact with victims who appear to be within the scope of the Muthaura and Kenyatta case and it is “conducting awareness sessions on victims’ participation in ICC proceedings”. Given its specialised knowledge and experience, the Chamber considers that Kituo is an appropriate organization to submit observations as amicus curiae in relation to the implementation of the system of victims’ representation and participation.”[13]

International Human Rights Law


Harabin v. Slovakia[14]

Chamber Judgment


The case concerned the imposition of a disciplinary sanction on the President of the Slovak Supreme Court for having prevented an audit at that court, and in particular his complaint that several of the judges who decided his case were biased. The Court found a violation of the right to a fair trial.


Under Slovak law, disciplinary proceedings against the president of the Supreme Court could only be decided by a majority of the plenary of the Constitutional Court. Faced with a situation where the parties challenged seven of its thirteen judges for bias, the Constitutional Court had had to balance between two interests, namely the need to respond to the requests for exclusion of those judges and the need to maintain its capacity to determine the case.

The Court [the European Court of Human Rights] considered that in that balancing exercise the Slovak Constitutional Court had failed to take an appropriate stance under Article 6. Firstly, two of the judges challenged by Mr Harabin and two of the judges challenged by the Minister had been excluded in earlier set of proceedings involving Mr Harabin. Given that doubts were therefore likely to arise as to their impartiality, the Constitutional Court should have – but had not – given convincing arguments as to why the challenges could not be accepted in the disciplinary proceedings. Secondly, the Constitutional Court had not taken a stand as to whether any of the other reasons evoked by the parties would have justified the respective judges’ exclusion.

Only after answering the parties’ arguments and establishing whether or not the challenges to the judges were justified could the question have arisen as to whether there was any proclaimed need and justification for not excluding any of the judges. The need to maintain the Constitutional Court’s capacity to determine the case could therefore not justify the participation of the judges in respect of whose alleged lack of impartiality the Constitutional Court had failed to convincingly dissipate doubts.

[1] Judgment of 19 November 2012. All in formation was taken from the court’s press release.

[2] IT-03-69-T, 21 November 2012.

[3] Ibid. at ¶ 1.

[4] Ibid. at ¶ 2.

[5] Ibid. at ¶ 6.

[6] Ibid. at ¶ 7.

[7] Ibid at ¶ 9.

[8] Ibid. at ¶ 10.

[9] Ibid. at ¶ 11.

[10] ICC-01/04-01/07, 21 November 2012. All information in this summary was taken from the English press release.

[11] ICC-01/09-01/11, 15 November 2012.

[12] Ibid. at ¶ 3.

[13] Ibid. at ¶ 8.

[14] Application no. 58688/11, 20 November 2012. All informaiton was taken from the press release.

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Review of International Tribunal Decisions for the week of November 12, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). It has been a big week for the ICTY with appeals judgments in the Gotovina case and a contempt case. The STL has addressed the nature of interlocutory appeals and the ECtHR addressed the effect of amnesties on subsequent prosecutions for international crimes.

International Criminal Law


Prosecutor v. Karadžić[1]

Decision on Motion for Subpoena to Interview Edin Garaplija


The Accused requested an order for a defense interview of Edin Garaplija, a former operative of the ministry of the interior in Bosnia, after he refused the interview on the grounds that he could not remember the events from the war due to trauma.[2] The Accused believes the witness has information that is necessary for his defense.[3] The Chamber denied the motion.


The Chamber reiterated that a subpoena and interview or not necessary where the Accused is already aware of what the witness’ testimony will be.[4] In this case, the Accused is in possession of a video recording of a prior interview given by the witness and so there is no need to order a new interview.[5] In addition, the Chamber noted that a defense interview is not a proper mechanism to try and refresh a witness’ memory.[6]

Prosecutor v. Gotovina & Markač[7]

Judgement (Appeal)

The Appeals Chamber overturned the conviction of Generals Gotovina and Markač for crimes committed during the 1995 Operation Storm in the Krajina region of Croatia. The Chamber found that since the shelling incidents were not in and of themselves criminal, there was no Joint Criminal Enterprise and so the accused were not guilty. A more detailed discussion of this will decision will be posted at a later date.


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[8]

Decision on Appeal Against Pre-Trial Judge’s Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor


Counsel for Mr. Badreddine filed an appeal against the Pre-Trial Judge’s dismissed a challenge to the validity of the indictment.[9] The substance of the appeal dealt with the length of the previous Prosecutor’s term.[10] The Appeals Chamber dismissed the appeal as unfounded and without merit.[11] The chamber also addressed the standard of certification.


The Appeals Chamber held that the case-law of the ad hoc tribunals on certification are not relevant before the STL as the Rule governing interlocutory appeals is different.[12] Certification for appeal at the STL is not discretionary once the two cumulative requirements (the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and an immediate resolution may materially advance the proceedings).[13] The Chamber also instructed the lower chambers to “ascertain the existence of the precise issue” that needs to be resolved on appeal.[14]

International Human Rights Law


Marguš v. Croatia[15]

Chamber Judgment


The case concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular that the criminal offences of which he was convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act.


The Court held in particular: that granting amnesty in respect of crimes against humanity, war crimes and genocide was increasingly considered to be prohibited by international law; and, that the application of the General Amnesty Act to the crimes committed by Mr Marguš constituted “a fundamental defect in the proceedings” for the purpose of Article 4 of Protocol No. 7, which justified a reopening of the proceedings.

[1] IT-95-5/18-T, 15 November 2012

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 2-3.

[4] Ibid. at ¶ 11.

[5] Ibid. at ¶¶ 11-12.

[6] Ibid. at ¶ 11.

[7] IT-06-90-A, 16 November 2012.

[8] STL-11-01/PT/AC/AR126.2, 13 November 2012.

[9] Ibid. at ¶ 1.

[10] Ibid. at ¶ 2.

[11] Ibid. at ¶ 3.

[12] Ibid. at ¶ 12.

[13] Ibid. at ¶¶ 12-13.

[14] Ibid. at ¶ 13.

[15] Application no.4455/10, 13 November 2012. All text comes from the press release.

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Gotovina Appeals Judgment

The Appeals Chamber of the ICTY has announced that the judgment in Prosecutor v. Gotovina & Markac will be issued on 16 November 2012. Both of these Croatian generals were convicted of crimes committed during “Operation Storm” in 1995. It will be possible to watch the rendering of the judgment on the Tribunal’s website.

It can be seen here.

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Review of International Tribunal Decisions for the week of November 5, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR).

International Criminal Law


Prosecutor v. Hadžić[1]

Decision on Prosecution Motion to Substitute Expert Report of Expert Witness (Reynaud Theunens)


The Prosecution filed a motion requesting permission to substitute an expert’s report with a new updated version with streamlined evidence.[2] The Accused objected.[3] The Chamber denied the motion.


The Chamber found that a previous decision by the Pre-Trial Judge had denied a request for an extension of time to tender the new expert report and that it would be inappropriate to modify that decision.[4] The Chamber further ordered that the Prosecution tender all documents to be introduced to the Chamber and the Accused.[5]

Prosecutor v. Karadžić[6]

Decision on Interview of Defence Witnesses by the Prosecution


The Accused was permitted to contact prosecution witnesses through the Victim and Witness Section during the Prosecution case.[7] The Prosecution then sought permission to directly contact defense witnesses without going through the VWS.[8] The Chamber granted this authorization.


The Accused was required to contact prosecution witnesses through the VWS for various reasons, including the hesitancy of the Prosecution to give the Accused the witnesses’ personal contact information and the logistical problems for the Accused.[9] The Chamber noted that the Prosecution does not have the same logistical problems as the defense.[10] Given the Appeals Chamber jurisprudence, any party is allowed to contact witnesses and interview those that agree.[11] The hypothetical discouraging effect of prosecution contact is not enough to prevent the Prosecution from contacting them.[12]


Prosecutor v. Muthaura & Kenyatta[13]

Decision on the defence request to change the place of the proceedings


The Accused asked that the trial be conducted in Kenya for “reasons of judicial economy and to ensure that the judicial process takes place within the territory affected.”[14] The Chamber rejected the request.


The Chamber noted that the Rome Statute allows for trials to be conducted at other locations outside of The Hague.[15] However, the process for requesting a change of venue is to file a request with the Presidency, and not the Chamber, and so the request was rejected.[16]

International Human Rights Law


Redfearn v. the United Kingdom[17]

Chamber Judgment


Applicant worked as a driver, essentially transporting children and adults with physical and/or mental disabilities within the Bradford area, for a private company, Serco Limited, from 5 December 2003 to his dismissal on 30 June 2004. The majority of his passengers were Asian in origin. There had been no complaints about his work or his conduct at work and his supervisor, who was of Asian origin, had nominated him for the award of “first-class employee”.

Applicant was also a member of the British National Party (BNP) a far-right political party which, at the time, restricted membership to white nationals. Following revelations in a local newspaper about Applicant’s political affiliation, a number of trade unions and employees complained to Serco about Applicant’s continued employment. When elected as local councillor for the BNP in June 2004, he was summarily dismissed. The European Court found that this dismissal was a violation of Applicant’s right to the freedom of association.


The Court considered that it was important to bear in mind the consequences of dismissing Applicant. Moreover, the Court was struck by the fact that he had been summarily dismissed following complaints about problems which had never actually occurred, without any apparent consideration being given to the possibility of transferring him to a non-customer facing role. In fact, prior to his political affiliation becoming public knowledge, neither service users nor colleagues had complained about Applicant, who was considered a “first-class employee”.

However, as Applicant was employed by a private company, it fell to the Court to consider whether or not the domestic legislation had offered adequate protection of his rights under Article 11 and not whether his dismissal had been reasonable or proportionate.

The Court found that it was the United Kingdom’s responsibility to take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period under the 1996 Act or through a free- standing claim for unlawful discrimination on grounds of political opinion or affiliation. A legal system which allowed dismissal from employment solely on account of an employee’s membership of a political party carried with it the potential for abuse and was therefore deficient. Accordingly, the Court concluded that there had been a violation of Article 11 in Applicant’s case.

Ekoglasnost v. Bulgaria[18]

Chamber Judgment


The case concerned the inability for Ekoglasnost, a Bulgarian political party, to submit two documents required by an electoral law, enacted shortly before parliamentary elections in June 2005, in order to present its candidates. The Court found a violation of the right to free elections.


The Court found that the one-year period advocated by the Venice Commission for the adoption of substantial amendments to electoral law had not, in this case, been observed. The adoption of new conditions for participation in an election, just before the date of the poll, may have the effect of disqualifying parties that enjoy significant popular support and thus benefit political formations already in power.

Peta Deutschland v. Germany[19]

Chamber Judgment


The case concerned a civil injunction which prevented the animal rights organisation PETA from publishing a poster campaign featuring photos of concentration camp inmates along with pictures of animals kept in mass stocks. The Court found that this was not a violation of the freedom of expressions.


The Court held in particular that a reference to the Holocaust had to be seen in the specific context of the German past. In that light, the Court accepted that the German courts had given relevant and sufficient reasons for granting the civil injunction.

[1] IT-04-75-T, 7 November 2012.

[2] Ibid. at ¶ 2.

[3] Ibid. at ¶ 3.

[4] Ibid. at ¶ 4.

[5] Ibid. at ¶ 5.

[6] IT-95-5/18-T, 8 November 2012.

[7] Ibid. at ¶¶ 1-4.

[8] Ibid. at ¶ 5.

[9] Ibid. at ¶ 11.

[10] Ibid. at ¶ 12.

[11] Ibid. at ¶ 13.

[12] Ibid. at ¶ 14.

[13] ICC-01/09-02/11, 7 November 2012.

[14] Ibid. at ¶ 2.

[15] Ibid. at ¶ 3.

[16] Ibid. at ¶¶ 4-5.

[17] Application No. 47335/06, 6 November 2012. All text taken from the press release which originally set the date as 6 December 2012.

[18] Application No. 30386/05, 6 November 2012. All text taken from the press release.


Application No. 43481/09, 8 November 2012. All text is taken from the press release.

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Review of International Tribunal Decisions for the week of October 29, 2012

This week’s review has decisions from International Criminal Tribunal for the Former, the Special Tribunal for Lebanon (STL) and the International Criminal Court (ICC). The decisions range from issues dealing with provisional release, trial in absentia and the fitness to stand trial.

International Criminal Law


Prosecutor v. Hadžić[1]

Decision on Hadžić’s Urgent Request for Provisional Release


The Accused requested provisional release for a few days in order to attend his mother’s funeral.[2] The Prosecution objected on grounds that he did not meet the grounds for provisional release.[3] The Chamber denied the motion.


The Chamber denied release on the grounds that the Accused evaded arrest for years and that he had significant motives to try and abscond given the seriousness of the charges against him.[4]


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[5]

Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision


The Accused face a trial in absentia and their counsel, with no contact from the Accused, requested that the in absentia decision be reconsidered on the grounds that such a trial prejudiced their clients’ rights. The Appeals Chamber rejected the appeal.


The Appeals Chamber rejected the appeal essentially because the Accused could challenge any eventual conviction, could make themselves known and participate in the trial and that they had received sufficient notification of the trial to participate if they so chose.


Prosecutor v. Katanga & Chui[6]

Order in relation to the request by duty counsel of DRC-D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350 to be transferred to hearings before the Court of Appeals of The Hague

The Chamber requested that two witnesses before the Court be transferred to the Court of Appeals in The Hague in order to attend the appeals in their domestic asylum case.

Prosecutor v. Gbagbo[7]

Decision on Two Defence Requests in Relation to the Hearing Scheduled for 30 October 2012


On 30 October 2012, the Court was to hold a hearing on the continued detention of the Accused.[8] The Accused requested that the hearing be in closed session, that the OPCV be excluded from parts of the hearing and that he be allowed to assent himself.[9] He also requested a postponement of the hearing.[10]


The Single Judge denied the request for postponement due to the fact that the Accused would not suffer any prejudice form holding the hearing as scheduled.[11] The Single Judge, on the other hand, ordered that while the mainstay of the proceedings should be in open session, those parts dealing with sensitive material shall be held in closed session outside the presence of the public and the participating victims.[12] The Judge also authorized the Accused’s absence.[13]

Prosecutor v. Gbagbo[14]

Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court


The Accused filed a motion to delay the start of the confirmation of charges hearing on the grounds that he was not fit to stand trial.[15] In the end the Single Judge found the Accused fit to stand trial.


The Single Judge noted that there is no specific provision in the applicable law of the Court that addresses fitness to stand trial, but rather must be consider a part of the fundamental right to a fair trial.[16] Such standards are applicable through Article 21(3) which requires that the Rome Statute be interpreted “consistent[ly] with internationally recognised (sic) human rights” as they “underpin every aspect of the Statute”.[17] In this respect, the Single Judge found that the jurisprudence of the European Court of Human Rights to be particularly on point.[18] That Court noted that in order “effective participation” requires that the accused be able to understand the proceedings and be able to explain to his representation “his version of the events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence (sic).”[19] The ICTY also adopted a similar position.[20] The Single Judge therefore adopted a similar comprehensive factual analysis to evaluate the accused’s ability to participate in the proceedings.[21]

The Single Judge evaluated three medical reports one of which said the Accused was fit to stand trial.[22] However, considering testimony, the Single Judge was convinced that the Accused was fit to stand trial with modifications to procedure to assist him in light of his current medical problems.[23]

[1] IT-04-75-T, 31 October 2012.

[2] Ibid at ¶ 2.

[3] Ibid. at ¶ 3.

[4] Ibid. at ¶ 9.

[5] STL-11-01/PT/AC/AR126.1, 1 November 2012. Details taken from the headnote to the decision.

[6] ICC-01/04-01/07, 17 October 2012.

[7] ICC-02/11-01/11, 26 October 2012.

[8] Ibid. at ¶ 6.

[9] Ibid. at ¶ 8.

[10] Ibid. at ¶ 9.

[11] Ibid. at ¶¶ 12-14.

[12] Ibid. at ¶ 16.

[13] Ibid. at ¶ 17.

[14] ICC-02/11-01/11, 2 November 2012.

[15] Ibid. at ¶ 1.

[16] Ibid. at ¶ 43.

[17] Ibid. at ¶ 45.

[18] Ibid. at ¶ 46.

[19] Ibid. at ¶ 47.

[20] Ibid. at ¶ 49.

[21] Ibid. at ¶ 51.

[22] Ibid. at ¶¶ 67-68.

[23] Ibid. at ¶¶ 101-102.

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