Humanitarian Law Perspectives 2009

Transcription

1 Please note that material in these research papers ( Material ) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. Humanitarian Law Perspectives 2009 Topic 7: What role and voice for victims in international criminal law? The work of the ICC and its approach to victims Research paper prepared by: Emma Wanchap Carla Cummings Kathy Bates

2 . Table of Contents 1 Introduction 1 2 Development of victim participation Civil law, common law and ad hoc tribunals Emergence of victim participation at the International Criminal Court 2 3 The Nature of victim participation Who is a victim What is the difference between a victim and a witness? Victim participation Forms and timing of participation Participation in proceedings - Article Pre-trial phase participation - Articles 15 and Seeking victims views 8 4 What process must the victim follow to participate? Form of application Accessing application forms Content of the application Legal Representation 11 5 Security and protection of victims 12 6 Where victim participation currently stands Advantages of victims participation Disadvantages of victim participation Current status of victim participation at the ICC 14 7 Conclusion 15 8 Reference List Primary Sources Secondary Materials 16 i

3 1 Introduction The role and voice of victims in international criminal law has changed markedly since the establishment of the International Criminal Court ( ICC ). In response to the common law features and restrictive nature of victim participation in the International Criminal Tribunal for Yugoslavia ( ICTY ) and the International Criminal Tribunal for Rwanda ( ICTR ), human rights groups and representatives from different legal systems negotiated more comprehensive and independent rights for victim participation in the ICC. 1 The Rome Statute of the International Criminal Court ( Rome Statute ) in combination with the Rules of Procedure and Evidence Adopted by the Assembly of State Parties ( Rules ) and the Regulations of the ICC ( Regulations ) provides for a more inclusionary role for victims proceedings. This paper outlines the provisions of both the Rome Statute and the Rules that relate to victim participation, describes the process by which an application may be made by a victim to participate in ICC proceedings and also highlights criticisms that have been levelled at victim participation at the ICC. 2 Development of victim participation 2.1 Civil law, common law and ad hoc tribunals Historically, the civil and common law jurisdictions have provided contrasting entitlements to victims in relation to their participation in criminal proceedings. In civil law systems, victims have been entitled to significant involvement, including the rights to: join criminal proceedings as parties. 2 For example, in France, victims, who may have legal representation, may make comments in relation to the personal impact of the offence; 3 act as prosecutor; 4 and serve as a subsidiary prosecutor, where the victim can submit evidence and make suggestions and comments on material submitted in court. 5 In contrast, victim participation in common law systems has been restricted to: International Federation for Human Rights (FIDH), Chapter 1: The Evolution of Victims Access to Justice in Victims Rights Before the International Criminal Court : A Guide for Victims, their Legal Representatives and NGOs (2007) 36 < at 3 April 2009 ( FIDH, The Evolution of Victims Access to Justice ). Fiona McKay, Victim Participation in Proceedings before the International Criminal Court (2008) 15(3) Human Rights Brief 2 < at 3 April 2009; Craig Bradley (ed), Criminal Procedure: A worldwide study (1999) 45; U.N. Office for Drug Control and Crime Prevention, Chapter 2: Victim Assistance Programmes in Handbook on Justice for Victims (1999) 39 ( Criminal Procedure: A worldwide study, Chapter II ). U.N. Office for Drug Control and Crime Prevention, above n 2. U.N. Office for Drug Control and Crime Prevention, above n 2. U.N. Office for Drug Control and Crime Prevention, above n 2. 1

4 appearing as a witness, where the victim is called to testify but has no further role in proceedings; 6 and submitting a victim impact statement, which is submitted after the accused has been found guilty and prior to sentencing. 7 In the establishment of the ad hoc international criminal tribunals, the ICTY and ICTR, victims were afforded participatory rights more limited than in some common law systems. Specifically, victims were involved if called upon by the Prosecutor to be a witness at trial 8 and could make submissions as amici curiae, 9 that is as a friend of the court who may advise the court on a point of law or on a matter of practice. 2.2 Emergence of victim participation at the International Criminal Court Some key features of the Rome Statute and the Rules that demonstrate the high-level of victim participation in the ICC include that the victims or their legal representatives 10 are able to: present their views and concerns before the ICC; 11 make representations to the Pre-Trial Chamber in relation to whether or not an investigation should be opened; 12 receive certain notifications, including whether a Prosecutor intends to seek permission to conduct an investigation, 13 and decisions to hold a hearing to confirm charges; 14 submit observations to the ICC ;15 participate in hearings, 16 including questioning witnesses, experts and the accused; 17 access non-public documents; 18 and request reparations McKay, above n 2, 2. See eg in Australia: Crimes (Sentencing Procedure) Act 1999 (NSW) ss26-30a; Criminal Law (Sentencing) Act 1988 (SA) s 7A; Sentencing Act 1991 (Vic) ss95a-95e; Sentencing Act 1995 (WA); Sentencing Act 1995 (NT) ss 106A-106B, ss Jérôme de Hemptinne and Francesco Rindi, ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings (2006) 4(2) Journal of International Criminal Justice 342, 346 ( Hemptinne and Rindi ). International Criminal Court for the Former Yugoslavia, Rules of Procedure and Evidence (November 2008) r74; International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence (March 2008) r 74. The Chamber may invite or grant a person or organization to appear before it and make submissions on any issue specified by the Chamber. See also FIDH, above n 1, 26. In accordance with Rule 90, victims who successfully apply to participate are entitled to legal representation. See, eg, Rome Statute art 68(3); Rules r Rome Statute art 15(3). Rules 50(1) and 92(2). Rule 92(3). Rome Statute art 19(3). Rule 91(2). Rule 91(3). Rule 131(2). 2

5 3 The Nature of victim participation 3.1 Who is a victim Under the Rome Statute, a victim is defined in the rules as: a person who has suffered harm as a result of the commission of a crime within the jurisdiction of the ICC; and may include organizations or institutions that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes What is the difference between a victim and a witness? As discussed above, a victim, for the purpose of the Rome Statue, is a person who has suffered harm as a result of the commission of a crime within the jurisdiction of the Court. Unlike a victim, a witness is a person who gives evidence before the Court by testimony upon being called by the Prosecutor in trying to establish the elements of the alleged crimes. A witness may also be called by a victim or Chamber. Other key differences between a victim and a witness include: victim participation is voluntary whereas a witness is called by either the Prosecution or Defence; a witness is serving the interests of the court, whereas a victim communicates their own interests and concerns; a witness may only participate at specific times, such as when they are called to give evidence, while a victim can potentially participate at all stages of the proceedings; and a victim is entitled to call witnesses while a witness is not entitled to call anyone Victim participation If a person is a victim for the purpose of the Rome Statute, a victim may apply to participate. 22 When an application is made the ICC must consider whether: the person has suffered harm; Rule 94. Rule 85. International Criminal Court, Victims before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the Court 13 < at 3 April 2009 ( Victims before the International Criminal Court). In the Pre-Trial Chamber II hearing regarding the Situation in Uganda, consideration was given to Article 15 of the Statute. Under article 15, victims participation takes place prior to a situation or case taking shape. This means a victim is able to put forward evidence that will enable a Prosecutor to bring about proceedings. When a matter gets to the trial stage there is an opportunity for the victim to make a statement before the Court. In order for this to occur a written submission is made to the Registrar who in turn submits the application to the relevant Chamber. The Chamber will decide at this point as to when (or if) a victim may participate and can allow for both opening and closing statements to be made before the Court. 3

6 the harm resulted from the commission of one of the crimes within the jurisdiction of the ICC; and there is a clear causal link between the alleged crime and the harm suffered. 3.4 Forms and timing of participation The Statute provides for victim involvement at all stages of proceedings, even before an investigation has commenced. 23 The general provision for participation is contained in Article 68(3). However, there are other provisions in the Rome Statute that allow for participation, which are also discussed below. 3.5 Participation in proceedings - Article 68 Article 68(3) states: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. The broad drafting, in addition to key terms and phrases such as personal interests, views and concerns and proceedings, which remain undefined, have resulted in significant judicial and academic consideration of this clause. (a) Proceedings The Pre-Trial Chamber considered at which stage in proceedings a victim can participate for the purposes of Article 68(3). 24 The Chamber analysed the term from terminological, contextual and teleological view points to reach its conclusion. First, due to the argument raised by the Prosecutor that a distinction is made between proceeding and investigation, the Chamber undertook a detailed analysis of these and other terms throughout the Rome Statute. 25 Following analysis of the English and French versions of the Rome Statute and the use of the terms proceedings and investigation throughout both versions, the Chamber decided that the terms were used interchangeably and concluded that the term proceedings does not necessarily exclude the investigation of a situation. 26 Secondly, the Chamber examined Article 68(3) in relation to its position in the Rome Statute, and in light of Rule 92(2) and (3), which restrict victim participation to those stages in proceedings relating to the initiation of an investigation and the ICC s decision to hold a hearing to confirm charges. The Prosecutor argued that this article should be restricted to International Criminal Court, Participation of victims in proceedings < at 3 April 2009 ( Participation of victims in proceedings ). Situation in the Democratic Republic of the Congo Case (Decision on the applications for participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) No. ICC-01/ (17 January 2006) ( Situation in Congo Case, 17 January 2006 ). Note - this point was appealed but dismissed by the Appeals Chamber on 13 July Situation in Congo Case 17 January 2006 [29]. Situation in Congo Case 17 January 2006 [38]. 4

7 proceedings relating to a trial. 27 The Chamber held that the surrounding provisions in addition to other paragraphs in Article 68 related to victims in the context of investigations and other stages of proceedings. In relation to Rule 92, the Chamber held that as Rule 92 is a notification provision, victim participation cannot be limited to the stages limited in that rule. 28 Thirdly, the Chamber s teleological examination of the term concluded that victim participation during the investigation stage is: consistent with the object and purpose of the victims participation regime established by the drafters of the Statue, which ensued from a debate that took place in the context of the growing emphasis placed on the role of victims by the international body of human rights law and by international humanitarian law. 29 Furthermore, the Pre-Trial Chamber has also found that in circumstances relating to the security and privacy of victims, it may be: appropriate for victims to be authorised to present their views and concerns for these purposes even prior to and irrespective of their being granted victim status in a given case. 30 (b) Views and concerns Trial Chambers have interpreted this phrase liberally. 31 In one decision, the Trial Chamber stated that victims participating in proceedings may be permitted to tender and examine evidence if in the view of the Chamber it will assist in the determination of the truth. 32 The Prosecution in the Lubanga case did not support such a broad interpretation of this phrase, stating that the Trial Chamber provides for modalities of participation that go further than the expression of views and concerns as defined by Article 68(3) of the Rome Statute. 33 However in the subsequent appeal, the Trial Chamber s interpretation was affirmed by a majority in the Appeals Chamber. 34 In his dissent, Judge Pikis called on the Court to uphold the adversarial nature of the proceedings, 35 and consequently restrict the accuser role to the Prosecutor, rather than adding victims to the procedure Situation in Congo Case 17 January 2006 [39]. Situation in Congo Case [49]. Situation in Congo Case [50]. Situation in Uganda (Decision on victims applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06) Case No. ICC-02/ (10 Aug 2007) [98] ( Situation in Uganda, 10 August 2007 ). Charles Trumbull, The Victims of Participation in International Criminal Proceedings (2008) 29(4) Michigan Journal of International Law 777, 796. Situation in the Democratic Republic of the Congo (Prosecutor v Labanga Dylio) Decision on Victims Participation (18 Jan 2008) Case No. ICC-01/04-01/ [108] ( Prosecutor v Labanga Dylio, 18 Jan 2008 ). Trumbull, above n 31, 796. Situation in the Democratic Republic of the Congo (Prosecutor v Lubanga Dylio), Judgment on the Appeals of the Prosecutor and the Defence Against Trial Chamber I s Decision on Victims Participation of 18 January 2008 Case No. ICC-01/04-01/ (28 January 2008) [32] ( Prosecutor v Labanga Dylio, 28 Jan 2008 ). Trumbull, above n 31, 797. Prosecutor v Labanga Dylio 28 Jan

8 (c) Personal interests The treatment by the Pre-Trial and Trial Chambers of the phrase personal interests has been no different to the broad interpretation of proceedings and views and concerns. For example, the Pre-Trial Chamber held that: this requirement [of personal interests ] is met whenever a victim applies for participation in proceedings following the issuance of a warrant of arrest or of a summons to appear for one or more individuals. 37 However, the Pre-Trial Chamber did limit this to specific proceedings where a Chamber may decide otherwise Pre-trial phase participation - Articles 15 and 19 Victims may induce the Prosecutor to initiate an investigation and Article 15 of the Rome Statute explicitly stipulates that the Prosecutor may open an investigation on the basis of information provided by victims or NGOs. 39 Victims may make representations when the Pre-Trial Chamber is deciding whether to authorise an investigation and must be informed when the Prosecutor or Pre-Trial Chamber decide not to proceed with an investigation. 40 (a) Initiating investigations Article 15 of the Statute outlines the procedure for the Prosecutor to initiate an investigation. The Prosecutor may initiate an investigation proprio motu, that is of their own accord, 41 based on information received. 42 As such, initial information may include complaints from victims or NGOs. 43 Furthermore, the Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental organisations, or other reliable sources that he or she deems appropriate. 44 This procedure, affords victims, either individually or through NGOs, significant participation prior to the commencement of an investigation and is in line with criminal law systems around the world, whereby victims notify prosecutors of crimes which often leads to investigations. 45 If the Prosecutor intends to apply for an investigation, the victims are entitled to be notified of that intention. 46 Victims to be notified include victims known to the Prosecutor or known to the Victims and Witnesses Unit Situation in Uganda, 10 Aug 2007 [9]. Situation in Uganda, 10 Aug 2007 [9]. Reporters Sans Frontiers, Victim Guide to the International Criminal Court (2003) 60 Amnesty International, The International Criminal Court - Fact Sheet 6 - Ensuring Justice for Victims (2000) < at 3 April Lexis Nexus Online Dictionary, < at 3 April Arts 15(1), (2). Reporters Sans Frontiers, above n 40, 58. Rome Statute art 15(2). Trumbull, above n 32, 791. Rules r 50(1) of the Rules. Victims may not be notified if the Prosecutor considers that notification may pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses. Rome Statute art 43. In order to assist Victims, the ICC has established the Victims Participation and Reparation Section ( VPRS ). The VPRS role is to provide assistance to Victims regarding their application to participate in proceedings as well as assisting Victims in obtaining legal representation. The Victims and Witnesses Unit ( VWU ) is another initiative of the ICC and was established under article 43(6) of the Rome Statute. The VWU is responsible for witness protection and providing advice and training to other areas of the ICC in order to ensure the safety and well-being of both Victims and witnesses: International Criminal Court, Victims before the Court, 6

9 Article 15(3) outlines that the Prosecutor must request the authorisation to conduct an investigation from the Pre-Trial Chamber and that those victims who have been notified of the request are permitted to make written representations to the Pre-Trial Chamber. 48 The Pre-Trial Chamber must issue its decision as to whether to authorise an investigation and the victims who made representations will receive notice. 49 Two approaches can be taken in regard to whether victims participation in 15(3) is limited to representations in writing. 50 The narrow approach is that the specification of representation in Article 15(3), in addition to the words victims may make representations in writing to the Pre-Trial Chamber in rule 50(3) limits victim participation to making representations in writing. However, Rule 50(4) provides for the Pre-Trial Chamber to request additional information from victims who have made representations in deciding on the procedure to be followed. Arguably, the Pre-Trial Chamber may request and obtain oral submissions from victims, broadening the interpretation of representations. 51 Notification by the Prosecutor of its decision to victims under the Statute is considered innovative, as this obligation places a greater duty of notification on the Prosecutor than is found in many domestic jurisdictions. 52 Alternatively, the Prosecutor may not intend to apply for an investigation because after reviewing the information received, the Prosecutor does not consider that an investigation would serve the interests of justice. 53 If this occurs, the Prosecutor must notify the Pre-Trial Chamber, which in turn must notify victims who have participated in proceedings to date. 54 Article 53(3)(b) allows the Pre-Trial Chamber to reverse the Prosecutor s decision, if appropriate. The rules do not provide for the victim to request a review of the Prosecutor s decision. 55 However, it is arguable that victims do have the right to challenge such a decision, in accordance with r 85(11) of the Council of Europe s Recommendations. 56 This states that the victim should have the right to ask for a review by a competent authority of a decision not to prosecute. Further the culmination of these rights - the ability to contact the Court before an investigation is even instigated and the victims involvement in accordance with Article 15 - means that victims are likely to play a significant role in the procedure leading to the Pre-Trial Chamber s decision as to whether the Prosecutor should be authorised to exercise his proprio motu powers. 57 (b) Challenges to jurisdiction or admissibility Victims are also entitled to participate in proceedings relating to jurisdiction or admissibility. Article 19(3) provides that victims may submit observations to the Pre-Trial Chamber on these two issues. Furthermore, the Registrar must inform victims who have already communicated with the court in relation to the case of any question or challenge of < at 3 April Rome Statute art 15 (3); Rules r 50. Rules r 50(5). Carsten Stahn, Hector Olasolo and Kate Gibson, Participation of Victims in Pre-Trial Proceedings of the ICC (2006) 4(2) Journal of International Criminal Justice 219, 229. Stahn et al, above n 51. Stahn et al, above n 51. Rome Statute art 53(1). Rules r 92(2). Stahn et al, above n 51. Stahn et al, above n 51. Situation in Uganda, 10 Aug 2007 [90]. 7

10 jurisdiction or admissibility which has arisen pursuant to Art 19(3). 58 Following receipt of this information, victims may make written representations to the relevant Chamber Seeking victims views Rule 93 provides a catch-all provision for participation by victims. 60 Significantly, as the list of other rules contained in rule 93 is not exclusive (includes rules 107, 109, 125, 128, 136, 139 and 191), it is open to the Chamber to determine which issue may require it to seek the views of victims. Furthermore, this rule does not seem to limit participation to victims who have registered, as the final sentence states that [i]n addition, a Chamber may seek the views of other victims, as appropriate. 4 What process must the victim follow to participate? With few exceptions, victims are required to apply to participate. The exceptions, which are detailed above, include if there are issues in relation to the victims security or privacy, and if the Chamber seeks the views of other victims. 4.1 Form of application First, the victim must apply in writing and send the application to the Registrar, 61 and in particular to the VPRS. 62 According to the Chief of the VPRS, [T]he VPRS was established to assist victims and facilitate their access to the ICC, as well as to serve as the entry point for applications to participate in proceedings and to process such applications. 63 Two application forms have been published by the VPRS - one for victims who are natural persons and the other for victims who are organisations. The 17 page application form has been criticised for its length and complexity, 64 and it has been reported that the ICC intend to revise the form. 65 Nevertheless, the Pre-Trial Chamber has held that use of these application forms is not compulsory. 66 Furthermore, rule 102 outlines that if a person is unable, due to a disability or illiteracy, to complete a written application, the person may apply in audio, video or other electronic form. In order to determine at which stage in the proceedings the victim will testify, the victim must first specify in their application the stage or stages in which they would like to participate. The ICC will then determine participation based on the following: whether the person is a victim of a situation or case that is being dealt with by Chambers; Rules r 59(1)(b). Rules r 59(3). A Chamber may seek the views of the victims or their legal representatives participating pursuant to rules 89 to 901 on any issue, inter alia, in relation to issues referred in rules 107, 109, 125, 128, 136, 139 and 191. In addition, a Chamber may seek the views of other victims, as appropriate: Rules r 92. Rules r 89(1) Participation of victims in proceedings. McKay, above n 2, 2. See, eg, REDRESS, Victims and the ICC: Still room for improvement (Paper prepared for the 7th Assembly of States Parties), The Hague, November 2008, 3 ( REDRESS ). REDRESS 3. See Situation in Congo Case 17 January 2006 [102]. 8

11 whether the victim s personal interests are affected at that point in the proceedings; and if it is appropriate for the victim to present his or her views and concerns at that particular point in the proceedings. The application process for a victim is an individual process. As such, if a family wishes to participate in proceedings, each member of that family must make their own application. 4.2 Accessing application forms Regulation 86(1) requires the Registrar to make application forms widely available to victims, groups of victims and non-governmental organisations. However, despite this obligation, there has been widespread criticism of a lack of outreach to advise possible participants of their rights. There is currently a heavy reliance on media such as television and newspapers and yet a significant number of the areas affected by crimes covered by the ICC do not have access to these means of communication. Regulation 103(1), Publicity and notice by general means provides for the notification of victims taking into account languages or dialects spoken, local customs and traditions, literacy rates as well as access to the media. 67 This presents a significant challenge to the ICC as victims are often in inaccessible or insecure locations that cannot access media regularly and will generally have little or no experience with the criminal justice system. 68 Victims are not entitled to legal assistance when completing their application form, however they may request assistance from the VPRS Content of the application Regardless of whether a VPRS application form is used, the victim must supply information including: their identity and contact details; 70 a description of the harm suffered by the victim resulting from a crime committed in the ICC s jurisdiction; 71 a description of the incident, including date, location and identity of the accused where possible; 72 any relevant supporting documentation; 73 and a description as to how the victims personal interests are affected. 74 The Pre-Trial Chamber has set out a four limbed approach for the assessment of applications: International Federation for Human Rights (FIDH), Chapter IV: Participation in Victims Rights Before the International Criminal Court : A Guide for Victims, their Legal Representatives and NGOs (2007) 39 ( FIDH, Victims Rights before the ICC ). McKay, above n 2, 4. See also FIDH, Victims Rights before the ICC, above n 68, 9. See section 3.3 and rule 85. See section 3.3 and rule 85. See also FIDH; Participation; Victims Rights before the ICC, above n 68, 8. See also FIDH; Participation; Victims Rights before the ICC, above n 68, 8. See also FIDH; Participation; Victims Rights before the ICC, above n 68, 8. 9

12 whether the identity of the applicant as a natural person appears duly established; whether the events described by each applicant constitute a crime within the jurisdiction of the Court; whether the applicant claims to have suffered harm; and most crucially, whether such harm appears to have arisen as a result of the event constituting a crime within the jurisdiction of the Court. 75 As to the standard of proof required, the Pre-Trial Chamber has held that the Chamber has a broad discretion in assessing the soundness of a given statement or other piece of evidence. 76 (a) Identification Initially, the Pre-Trial Chamber considered that an applicant s identity would only be confirmed by a document which was issued by a recognised public authority, stating the name and date of birth of the holder and showing a photograph of the holder. 77 However, as a result of this approach, very few applications satisfied this criteria and a report prepared by the VPRS identified other problems with the identification process, particularly in Uganda. 78 Consequently, the Pre-Trial Chamber held that the requirements for identification must be lowered and adapted to the factual circumstances in the region. 79 For example, documents that the Pre-Trial Chamber considered satisfactory for proving identity in relation to the situation in the Democratic Republic of Congo include: passport; voter card; certificate of registration issued by Electoral Commission; driving permit; short or long birth certificate; certificate of amnesty; identification letter issued by a Local Council; and camp registration card and card issued by humanitarian relief agencies, such as the United Nations High Commissioner for Refugees and the World Food Programme. 80 In the situation where someone is applying on behalf of a victim (for example where the applicant is a minor or is disabled), Regulation 86(2) requires evidence of the identities of Situation in Uganda, 10 Aug 2007 [12]. Situation in Uganda, 10 Aug 2007 [13]. Situation in Uganda, 10 Aug 2007 [16]. See Situation in Uganda (Decision on victims applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06) Case No. ICC- 02/ (14 March 2008) ( Situation in Uganda, 14 March 2008 ). Situation in Uganda, 14 March 2008 [6]. Situation in Uganda, 14 March 2008 [6]. 10

13 both the victim and the person applying. Furthermore, the application should include documentation establishing the link between the victim and the person applying. 81 (b) Jurisdiction of the ICC The Pre-Trial Chamber has considered that in order to satisfy the jurisdictional requirement, three limbs must be fulfilled: ratione temporis, that the crimes occurred after the ratification of the Rome Statute by the country in question; 82 ratione loci, that the crimes occurred in a location over which the court has jurisdiction; 83 and ratione material, that the facts constitute crimes within the jurisdiction of the court. 84 (c) Harm Evidencing physical injuries, economic loss and emotional harm, for example due to the loss of a family member, have constituted harm for the purposes of a victim s application. 85 Recently, it was held by the Appeals Chamber that in order to satisfy the requirement for emotional harm suffered due to the loss of a family member, the applicant must provide proof of the identity of the family member and of his or her relationship with the applicant. 86 The evidence required will be determined on a case-by-case basis taking into account all the circumstances. 87 (d) Causation The Pre-Trial Chamber has applied a reasonability test in determining whether the harm suffered was caused by the crimes evidenced Legal Representation Rule 90 provides that victims are free to choose their own legal representation. However, if there are a number of victims, the Chamber may request that the victims choose a common legal representative. If the victims are unable to choose a common representative, the Registrar may be requested by the Chamber to select a legal representative Situation in Uganda, 14 March 2008 [7]. Documents include birth certificate; birth notification card; baptism card; letter issued by a Rehabilitation Centre; letter from a local Council; affidavit sworn before a Magistrate or Commissioner of Oaths. Rome Statute art 10. Rome Statute art 12. Rome Statute art 5 which outlines the crimes that are within the jurisdiction of the court: genocide (art 6); crimes against humanity (art 7); war crimes (art 8); and the crime of aggression. See, eg, Situation in Uganda, 14 March 2008 [19]. Situation in Uganda, Case No. ICC-02/04-179, Judgment on the appeals of the Defence against the decisions entitled Decision on victims applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06 (23 February 2009) [36] ( Situation in Uganda, 23 February 2009 ). Situation in Uganda, 23 February 2009 [38]. See, eg, Situation in Uganda, 14 March 2008 [18]-[19]. 11

14 Victims who are minors or who pass the financial application process for legal aid are considered indigent. In October 2008, only 25% of participants were considered indigent Security and protection of victims In accordance with Rule 89(1), the Registrar is required to publish a copy of a victim s application to participate to the Defence. Consequently, victims are warned that prior to applying to participate as a victim, the victim should be aware of the associated risks that may pose a threat to their security. 90 The warnings include the possibility of a reprisal from persons associated with the accused, or the impact on the victim within his or her community if for example, details of a sexual attack are placed on the public record. 91 In light of these circumstances, the ICC aims to manage victims applications in a way which will avoid risk to victims or others. 92 Furthermore, the VPRS has a duty to protect victims from the moment they approach the ICC. 93 There is also scope for the victims to exercise a certain amount of control over the release of their information when completing the form. Part H of the application form allows victims to nominate from whom the victim s identity and any information provided in the form will be kept. 94 These parties include the Prosecutor, the Defence, the general public and the State or other participant. The form also provides space for the victim to nominate and provide reasons for information to be protected. Furthermore, Article 68(1) places a duty on the ICC to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Rule 87 describes the process by which the Chamber may order measures to protect a victim. This includes but is not limited to holding an in camera hearing to determine the measure, if any, that will be required to ensure that the victim s identity is not released to the public, the press or any information agencies. It has been interpreted that victims entitlement to protection commences once their application form has been received by the Registrar. 95 However, it is reported that despite this decision, victims organisations have no reliable information as to what victims can request and expect from the Court Where victim participation currently stands The rights afforded to victims to participate by the Rome Statute and Rules, and the broad ways in which the Pre-Trial, Trial and Appeals Chambers have interpreted the relevant provisions, create significant opportunities for victims to participate. This has been lauded as REDRESS,above n 65, 4. See, eg, Reporters without Borders, Victim s Guide to the International Criminal Court (2003) < at 3 April Reporters without Borders, Victim s Guide to the International Criminal Court (2003) 21 < at 3 April Reporters without Borders, Victim s Guide to the International Criminal Court (2003) 21 < at 3 April McKay, above n 2, 5. International Criminal Court, Form Participation 1: Application form to participate in proceedings before the ICC for individual victims and persons acting on their behalf Part H 13 < at 3 April Prosecutor v Lubanga Dylio (18 Jan 2008) [137]. REDRESS, above n 65, 7. 12

15 a significant step to recognising and involving victims. However, it has also been proposed that victim participation may not be as advantageous to the victim and trial in general as initially thought Advantages of victims participation Arguably the strongest contention for victim participation relates to rehabilitation and healing. Victims experience psychological trauma caused by serious international crime, and it is proposed that this impacts on the victims identity and sense of self. 98 Allowing victims to participate may act to re-establish the victim s value, power and dignity, and relieving his or her stigmatisation and separation from society. 99 By way of example, during a sentencing hearing, a woman was given permission to ask the perpetrator a question. She asked if the perpetrator knew the whereabouts of her son and described the date on which he had gone to the camp and the clothes that he was wearing. The perpetrator recalled the woman s son and identified the location of the his grave. This previously unknown grave was excavated, and one of the sets of skeletal remains was wearing the clothing as described by the woman. 100 Secondly, the Trial Chamber has highlighted the link between investigations and orders for reparations, indicating victims participation during the investigation stage will impact on their entitlements in the future. 101 Further, from a practical level, victim participation offers another dimension to proceedings as victims have first-hand knowledge of the commission of the relevant crimes, and who can offer a human perspective on the events being described throughout the proceedings. 102 It has been argued that victim participation may also lead to more successful prosecutions Disadvantages of victim participation Despite the support for victim participation, there are also many arguments against this fundamental component to the process of the ICC. First, participation for the purpose of victim rehabilitation and healing may not produce the desired outcome. The combination of a lack of familiarity with the legal system, a long, drawn-out application process and secondary victimisation may instead result in a negative experience for the victim. 104 Furthermore, it is argued that the sheer number of victims involved in these crimes (and subsequently the trials) make it impossible for an individual victim to participate in a meaningful way. 105 The large numbers of victims may also weaken the argument that participation is important for reparations, 106 as any compensation received Trumbull, above n 32, 801. Yael Danieli, Victims: Essential Voices at the Court (2004) 1 Victims Rights Working Group Bulletin 6. Danieli, above n 99, Erik Mose, The ICTR s Completion Strategy - Challenges and Possible Solutions (2008) 6(4) Journal of International Criminal Justice 681, 694 ( Workshop ). 101 Prosecutor v Lubanga Dylio (28 Jan 2008) [72]. 102 Stahn et al, above n 51, Trumbull, above n 32, Danieli, above n 99, 6; Trumbull, above n 32, Trumbull, above n 32, Trumbull, above n 32,

16 will necessarily be divided between thousands of people, which will result in very little compensation per person. 107 There are also many arguments surrounding the procedure of a trial. Generally, it is argued that allowing victim involvement may jeopardize the efficiency and expeditiousness of the proceedings. 108 In addition, it may adversely impact on both the Prosecution and the Defence prior to and during the trial. It is argued that victim participation, particularly when the Prosecutor is deciding whether or not to apply for an investigation, threatens the independence of the Prosecutor. 109 The desire to preserve strategy and consistency is demonstrated by the Prosecution s continual opposition to granting victims participation rights. 110 Defence counsel also frequently opposes the participation of victims during trials. A member of the international criminal defence bar, who was previously counsel for the Prosecutor of the ICTY, advises his clients to agree to written submissions from victims. He claims that oral submissions influence the way that people think about the case. 111 Further, he claims that the effect of victims evidence [goes] beyond actual proof of the crimes themselves. 112 Despite the unpopularity of criticising victim participation in favour of the defence, it is necessary to ensure that all defendants have a fair trial and that proper justice is observed. 6.3 Current status of victim participation at the ICC Currently, the ICC is involved in four situations: the situations in Uganda; Democratic Republic of the Congo; Darfur, Sudan; and the Central African Republic. The first trial for the ICC commenced on 26 January 2009 in relation to the situation in the Democratic Republic of the Congo. 113 As at November 2008, the figures of victim participation were as follows: Issue Number Applications by victims to participate in ICC proceedings Victims out of the 960 applications admitted Applications awaiting decision on participation status 770 Victims out of the 190 to participate in: Democratic republic of Congo Uganda situation - 9 Darfur situation Linda Keller, Seeking Justice at the International Criminal Court ; (2007) 29(2) Thomas Jefferson Law Review 198, 211. Further information on reparations can be found in article 75 and rules Hemptinne and Rindi, above n 8, Hemptinne and Rindi, above n 8, Trumbull, above n 32, Workshop Workshop Prosecutor v Thomas Labanga Dylio (26 Jan 2009). 14

17 Participation in cases Lubanga - 4 Katanga/Chui - 57 Kony et al Table 1 - REDRESS figures on victim participation (November 2008) 114 These numbers reflect a gross inefficiency in the processing of victims applications. There are many reasons which have been identified in this article which may lead to this inefficiency, namely: the difficulty victims experience in completing the application form; problems with victims providing sufficient identification; and the general lack of records to satisfy the jurisdictional requirements. 7 Conclusion The provision for victim participation, established by the Rome Statute and the Rules and Regulations of the ICC, is unprecedented in its scope and application in international criminal law. However, its implementation at the ICC is not without its faults, and the challenge for all involved in its implementation, is to assist in developing the scheme into a useful and reconciliatory tool in the future. 114 See REDRESS, above n 65, 3. 15

18 8 Reference List 8.1 Primary Sources (a) Statutes/Treaties Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Law (Sentencing) Act 1988 (SA) Sentencing Act 1991 (Vic) Sentencing Act 1995 (WA) Sentencing Act 1995 (NT) The Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) International Criminal Court for the Former Yugoslavia, Rules of Procedure and Evidence (November 2008) International Criminal Tribunal for Rwanda; Rules of Procedure and Evidence (March 2008) 8.2 Secondary Materials Amnesty International, The International Criminal Court - Fact Sheet 6 - Ensuring Justice for Victims (2000), < IOR en.html> at 10 March 2009 Craig Bradley (ed), Criminal Procedure: A worldwide study (1999) Yael Danieli, Victims: Essential Voices at the Court, (2004) 1 Victims Rights Working Group Bulletin 6 International Criminal Court; Form Participation 1: Application form to participate in proceedings before the ICC for individual victims and persons acting on their behalf International Criminal Court, Participation of victims in proceedings; < at 10 March 2009 ( Participation of victims in proceedings ) International Criminal Court, Victims before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the Court International Federation for Human Rights (FIDH), Chapter 1: The Evolution of Victims Access to Justice in Victims Rights Before the International Criminal Court : A Guide for Victims, their Legal Representatives and NGOs (2007) International Federation for Human Rights (FIDH), Chapter IV: Participation in Victims Rights Before the International Criminal Court : A Guide for Victims, their Legal Representatives and NGOs (2007) 16

19 Jérôme de Hemptinne and Francesco Rindi, ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings (2006) 4(2) Journal of International Criminal Justice 342 Linda Keller, Seeking Justice at the International Criminal Court ; (2007) 29(2) Thomas Jefferson Law Review 198 Fiona McKay, Victim Participation in Proceedings before the International Criminal Court, (2008) 15(3) Human Rights Brief Erik Mose, The ICTR s Completion Strategy - Challenges and Possible Solutions (2008) 6(4) Journal of International Criminal Justice 681 REDRESS; Victims and the ICC: Still room for improvement (Paper prepared for the 7th Assembly of States Parties, The Hague, November 2008) Reporters Sans Frontiers, Victim Guide to the International Criminal Court (2003) Carsten Stahn, Hector Olasolo and Kate Gibson; Participation of Victims in Pre-Trial Proceedings of the ICC, (2006) 4(2) Journal of International Criminal Justice 219 Charles Trumbull, The Victims of Participation in International Criminal Proceedings (2008) 29(4) Michigan Journal of International Law 777 U.N. Office for Drug Control and Crime Prevention, Chapter 2: Victim Assistance Programmes in Handbook on Justice for Victims (1999) 17