Participation of Victims in the International Criminal Court

Pre-Trial Chamber I made the first decision relating to victims’ participation in proceedings before the International Criminal Court (ICC) on the 17th of January 2006 concerning the Situation of the Democratic Republic of Congo. At that moment, the Chamber, while clarifying the difference between the victims of a situation and the victims of a case, held that the status of victims must be in accordance with the definition set out in Rule 85 of the Rules of Procedure and Evidence. In accordance with the Rule a victim has to be a natural person that has suffered harm as a result of a crime that falls under the jurisdiction of the ICC. Subsequently, while observing issues of identity, personal interest, reparation and protective measures, the Chamber declared the role of victims was to be limited to making statements before and after the confirmation of charges, they would not generally speaking have the capacity to present evidence.[1]

The different views between and within the parties on the role and capacity of the victims during the trial (and the relationship of such capacity to the right to a fair trial) led Trial Chamber I to invite the parties and participants of the case of The Prosecutor v. Thomas Lubanga Dyilo to submit their views on the “role of victims in the proceedings leading up to, and during, the trial”.[2] The Trial Chamber requested the filing of submissions from the defense, the Office of the Prosecutor, the legal representatives of the victims, and the Office of Public Council for Victims, as well as requesting the Registry to report on consultations carried out for these filings. The resulting decision of the Trial Chamber on victims’ participation took into account and was based on the parties’ views relating to the status of victims and witnesses and their relation to an expeditious trial. The Trial Chamber further interpreted these views in light of the relevant provisions of the Statute,[3] the Rules of Procedure and Evidence,[4] the Regulations of the Court,[5] and the Basic Principles and Guidelines on the Right to a Remedy, together with Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, [6] and the Convention on the Rights of the Child.[7]

In order to set the distinction between a natural and a legal person, the Trial Chamber recalled the necessity of bearing in mind the context of the situation in the Congo and thus to consider the difficulties of applicants to acquire or produce official identity documents. Furthermore, to ensure that victims are not unfairly deprived of an opportunity to participate for reasons beyond their control, the Trial Chamber held official identification documents, non-official documents, and other relevant documents and valid relationships to establish the identity of a ‘natural person’. Additionally, the Trial Chamber held that it would consider any information that the Victims Participation and Reparation Section that it considers relevant. On evidence that the applicant suffered harm as a result of a crime committed within the jurisdiction of the ICC, the Trial Chamber once it has established that the applicant is a natural or legal person, is to decide if this is a case of ‘sustained direct harm’. The Rome Statute does not establish a definition of the concept of harm. However, the Basic Principles the Chamber set out defined harm as the victim’s suffering, either individual or collective in a variety of different ways which include physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights.[8]

As such, the Trial Chamber determined that such participation is not restricted to those who are victims of the crimes contained in the charges confirmed by the Pre-Trial Chamber, and that such a restriction is not provided for in the framework of the Rome Statute. On the other hand, the Trial Chamber, recalling its jurisdiction ratione materia and ratione temporis, defined its jurisdiction on any crime committed in the territory of a State Party or by a national of a State Party, and hence it is necessary that the harm was suffered as a result of the crime committed in the territory of a State Party of by national of a State Party. [9]

It follows that a victim of any crime which is within the jurisdiction of the ICC can potentially participate in international proceedings before the ICC. Nevertheless, it would not be in the interest of justice for all such victims that they be permitted to participate, given that evidence and issues would frequently be wholly unrelated. In consequence, and in the light of Article 68 (3) of the Statute, granting participation rights to many victims “would not serve any useful purpose” and the Chamber will decide proprio motu whether there should be joint representation.

The report to the Chamber of the Registry’s Victims Participation and Reparation Section declared that the matter at issue is the substantive evidential link between the victim and the evidence, as well as considering the background of the personal interest and affection of the trial towards the victim. For this purpose, the Chamber has to determine whether to authorize a victim to participate in the proceedings. This involves an initial determination using the standard of proof, and the examination of a discrete written application stating the reasons why the interests of the victim are affected by the case before the Chamber. These documents are thus examined on a case-by-case basis.

The interests of the victim must relate to the evidence of alleged crimes and the issues the Chamber will be considering in its deliberations on the charges. On the other hand, the interest of victims are multiple and dependent, but nevertheless with a shared interest for access to justice, that the Chamber must ensure. Therefore, participation may be decided on the basis of evidence, requested in an appropriate manner and consistent with the rights of the defense to a fair and expeditious trial.

In Lubanga, the Trial Chamber recalled the victims’ right of consultation, subject to the restrictions of confidentiality and protection of national security information, and consequently the presumption for the legal representative to be granted access to all public filings, and opportunely other confidential material upon request and without protective measures.

With regard to evidence, the Lubanga Trial Chamber defined that victims during trials may be requested pursuant the mission of the Court to establish the truth and evidence, and in accordance to the Statute and the Rules of Procedure and Evidence.[10] It is the discretion of the Trial Chamber to rule on the admissibility and relevance of evidence, taking into account the victims and in accordance with the Statute, and to permit victims to participate in closed and ex parte hearings and through written submissions.[11] Despite the defense arguments, the consideration of evidence at different stages was held to be without prejudice to the rights of the accused and the maintenance of the presumption of innocence, and thus in accordance with Regulation 56 of the Regulations.

Furthermore, the Lubanga Chamber rejected the notion that anonymous victims should not be permitted to participate in the proceedings, and recognized in accordance with the Rules the special needs for children and elderly victims, victims with disabilities, and victims of sexual and gender violence participating in the proceedings, when it is a matter of safeguarding their integrity, physical and psychological well-being, dignity and private life, protective and special measures defined in the Statute. [12]

In conclusion, the Lubanga Trial Chamber rejected the characterization of victims and witnesses urged by the defense, and took into account the special needs arising from this dual status and balanced possible impacts on the rights of the defense.

It follows that the victims are allowed to participate through application to the Chamber at any stage provided their relevance and interest to the evidence, and the participants are provided access to the entire public record and index of the case. However, it should be mentioned that Judge Rene Blattman in his Separate and Dissenting Opinion defended an imprecise definition of victim that does not allow effective rights of participation and may threaten the rights of the accused. He contended that it is against the general principles of criminal law, such as the principle of legality, not to link the status of victim and consequent rights of participation to the charges confirmed against the accused. Such a situation may not be in accordance with the procedural assertions and the adjudication that the Statute does not limit the Chamber’s jurisdiction.

All in all, the decision of the Trial Chamber was intended to provide the parties and participants with the general guidelines related to the participation of victims throughout the proceedings in general terms, to be complemented by the Trial Chamber on an applicant-by-applicant basis. Victim participation must enjoy meaningful effect and always ensure that its application does not result in an unfair trial. The evidence given by the victims, acquired through filtration and relevance, and its relation throughout the stages of the trial, it is not only respectful to the parties but also substantial in the acquisition of truth.[13]

[1] In exception of a/001/06 and a/0003/06 which were granted on a sole question to the Prosecutor’s witness.

[2] Order setting out schedule for submissions and hearing regarding the subjects that require early determination. ICC-01/04-01/06-947 and ICC-01/04-01/06-985.

[3] Article 21(1), Article 21(3), Article 68(1) – (3) and Article 69(3).

[4] Rule 85, Rule 86, Rule 87, Rule 88(1), Rule 89(1), Rule 90, Rule 91, Rule 92 and Rule 131(2).

[5] Regulation 79(2) and Regulation 56.

[6] Principle 8 and Principle 9.

[7] Article 3(1) and Article 12(2).

[8] 8th Principle.

[9] Article12 of the Statute

[10] Article 69(3) and Rule 91(3).

[11] Article 68(3) and 69(4).

[12] Article 68(1).

[13] Cassese, Antonio, International Criminal Law, Oxford (2008); Cryer, Robert: International Criminal Law, Cambridge (2007); Decision of the International Criminal Court Trial Chamber I: Prosecutor v. Thomas Lubanga Dyilo, 18 January 2008; Baumgartner, Elisabeth: Aspects of Victim Participation in the Proceedings of the International Criminal Court, International Review of the Red Cross, Vol. 90 (2008); Boyle, David: The Rights of Victims: Participation, Representation, Protection, Reparation, Journal of Criminal Justice 4 (2006) 307 et seq; De Hemptinne, Jerome & Rindi, Francesco: ICC Pre-Trail Chamber Allows Victims to Participate in the Investigation Phase of the Proceedings, Journal of Criminal Justice 4 (2006) 342 et seq; Stahn, Carsten & Olasolo, Hector & Gibson, Kate: Participation of Victims I Pre-Trial Proceedings of the ICC, Journal of Criminal Justice 4 (2006) 219 et seq.


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Filed under International Criminal Law, International Human Rights, Public International Law

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