Victim participation at the International Criminal Court.

• Author: Gillett, Matthew

Abstract

This article discusses the system of victim participation established by the Rome Statute, the accompanying regulatory materials, and the judicial pronouncements of the International Criminal Court. It focuses primarily on the recent decisions of the Trial Chamber and the Appeals Chamber in the Lubanga case, which established broad parameters for victim participation. In examining the contentious issues addressed in those decisions, two themes emerge: first, the importance of shifting victims away from their previous position as 'passive objects' of international criminal law to a more active engagement in the process; and second, the necessity of ensuring a fair and efficient trial. This analysis sets out recommendations designed to reconcile these sometimes countervailing demands. The purpose of the analysis and recommendations is to encourage victim participation, while at the same time ensuring efficient and manageable trials that uphold the fundamental rights of the accused.

Introduction

One of the most progressive facets of the system established under the Rome Statute of the International Criminal Court ('Rome Statute') (1) is the involvement of victims. This involvement takes the form of participation in legal proceedings and compensation through the Trust Fund for Victims. Such provision goes far beyond the provision made for victims in proceedings before the Tribunals for the former Yugoslavia ('ICTY') and Rwanda ('ICTR'). (2) Nevertheless, the drafters of the Rome Statute were justifiably concerned to avoid jeopardising the fair trial rights of the defence or impeding the conduct of efficient proceedings. (3) Consequently, the International Criminal Court ('ICC') judiciary must trace a careful path in order to facilitate victims' participation in trials, while at the same time ensuring fair and efficient proceedings to determine culpability for genocide, war crimes, and crimes against humanity, and, at some point after 1 January 2017, aggression.

Although long-established in civil jurisdictions, the active participatory role of victims in trials before the ICC is unprecedented in international criminal law. Unsurprisingly, it provokes a raft of questions. This article addresses two of the most important issues: first, the definition of victims eligible to participate in trials; and second, the manner and extent to which victims should be allowed to participate in trials. Recent decisions of Trial Chamber 1 and the Appeals Chamber in the Lubanga case have clarified the Court's approach to the quandary facing chambers seeking to deliver on the promise of victim participation signalled in the Rome Statute. (4) This article sets out the relevant regulatory framework governing victim participation at the ICC, the approach taken by the Trial Chamber and the Appeals Chamber in Lubanga, and the resulting legal position facing victims wishing to participate in trials at the ICC. (5) During the discussion, a number of recommendations are suggested for the meaningful realisation of victim participation in ICC proceedings without compromising the Court's primary function of investigating and prosecuting the most serious crimes known to the international community through fair and proper judicial processes.

1. The regulatory framework and prior decisions of the ICC

The Statute that finally emerged from the Rome Conference for the ICC (the Rome Statute), and the Rules of Procedure and Evidence ('ICC Rules'), (6) set forth a number of provisions referring to aspects of victim participation in the Court's processes. (7) However, these instruments do not contain an exhaustive codification of the modalities of victim participation. Consequently, judges have had to fill the lacunae, using the following provisions as a basis.

Central to the regime regulating victims' participation in proceedings before the ICC is article 68(3) of the Rome Statute. The parameters of article 68(3) are somewhat vague, simply stating that if the personal interests of victims are affected, the Court shall allow them to express their views at a stage of the proceedings that it considers appropriate. (8) However, article 68(3) carries with it two important qualifications. First, the manner in which victims are allowed to present their views should not be prejudicial to the rights of the accused, and a fair and impartial trial. Second, the participation of victims, where allowed by the Court, must be carried out in accordance with the ICC Rules'.

The ICC Rules provide further guidance concerning victims' participation. (9) Rule 85(a) states that victims are 'natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court'. Rule 85(b) adds that victims may also include organisations or institutions that have sustained direct harm to their property, and which arc dedicated to, inter alia, religious, educational, cultural, charitable, or historic purposes. Rule 86 requires the Chambers and other organs of the Court to take into account the interests of victims and witnesses in carrying out their functions. (10)

Rules 89 and 91 relate to the manner in which victims may participate in proceedings. Under rule 89, victims wanting to participate in proceedings are directed to apply to the Registry, which then passes on the applications to the relevant chamber. Notably, this rule explicitly mentions the possibility of victims making opening and closing statements. Rule 91(2) provides that legal representatives of victims may participate in proceedings and adds that the Prosecution and Defence shall be allowed to reply to any written or oral observation by a victims' representative. Rule 91(3)(a) specifies that legal representatives of victims may apply to put questions to a witness, the accused, or an expert witness. (11)

Like article 68(3), the ICC Rules provide limited examples of the modalities of victims' participation, but do not exhaustively determine these modalities, indicating that they are representative, rather than exhaustive, of victims' participator)' rights. (12)

Having traversed these provisions, it is clear that the Rome System left the specifics of victims' participation incomplete, allowing these issues to be shaped by ICC judges in the context of actual proceedings. (13) This position resulted partly because many delegates at the negotiations for the Rome Statute feared that too strong a role for victims would make legal proceedings cumbersome and unfeasible, and partly because delegates were divided by their differing civil law and common law backgrounds. (14) Whereas many civil jurisdictions envisage a significant role for victims in legal proceedings, common law systems have traditionally treated victims as 'passive objects' of criminal processes, and made little provision for their participation in legal proceedings qua victims. (15) As a consequence, a number of lacunae are apparent in the regulatory framework. Filling these procedural gaps with meaningful mechanisms has been no easy task, as shown by the various positions reached in the decisions of Trial Chambers and the Appeals Chamber on the issues surrounding victim participation before the ICC.

By way of context, victims have no right of participation in proceedings before the ICTY and 1CTR, independent of testifying as witnesses called by the Prosecution, and, in rare circumstances, the Defence. (16) At the TCC, the desire to uphold the interests of victims and involve them in proceedings was an important motivation for the formation of the Court. (17) The preamble to the Rome Statute states that 'during this century millions of children, women and men have been the victims of unimaginable atrocities that deeply shock the conscience of humanity' and contains provisions explicitly providing for victims' participation in legal proceedings, as described above. (18) In the Lubanga Trial Chamber decision, Judge Blattmann (in a dissenting opinion) stated that victims' participation is a 'right' provided by the Rome Statute, signalled by article 68(3). (19) In the Lubanga Appeals Chamber decision, Judge Song (in a separate opinion) opined that victims' interests fell under two heads--their interests in reparations and their interests in justice. (20) Similarly, the Pre-Trial Chamber overseeing the situation in the Democratic Republic of the Congo has stated:

With regard to article 68(3), the Chamber considers that it imposes an obligation on the Court vis-a-vis victims ... [T]he victims' guaranteed right of access to the Court entails a positive obligation for the Court to enable them to exercise that right concretely and effectively. It follows that the Chamber has a dual obligation: on the one hand, to allow victims to present their views and concerns, and, on the other, to examine them. (21) Early decisions of the ICC provided broad indications of the manner in which victims would be permitted to participate in proceedings. (22) The Chambers had decided that victims could participate in proceedings during the investigation phase (prior to a legal case being commenced against a specific individual or individuals) on the basis that this was consistent with the object and purpose of the regime for victims' participation established by the Rome Statute drafters. Such participation would include having facts verified, having perpetrators prosecuted, and having recourse to 'specific measures'. (23)

Significantly, previous decisions by pre-trial chambers of the ICC had held that, in order to participate in a case against a specific accused, victims would have to demonstrate a sufficient causal link between the harm they had suffered and the crimes for which the Court had issued an arrest warrant against that accused. (24) However, in the Lubanga Trial Chamber decision of January 2008, the Court took a significantly different approach to victim participation, as is discussed below.

2. The Trial...