Contribution for Working Group 1
An Overview of Victim Participation and Reparations at the International Criminal Court
Author: Judge Sanji Mmasenono Monageng,
First Vice-President of the International Criminal Court
- Introduction
1.Victims at the International Criminal Court are far more empowered than they were in past international tribunals. Victims can lead evidence, question witnesses, challenge the admissibility of the parties’ evidence and have common legal representatives speak on their behalf during portions of the proceedings where the victims’ personal interests may be affected.[1] By giving victims meaningful participation in proceedings, the trial becomes both more responsive to the needs of victims and more complicated. The contours of victim participation have been discussed at length in the Court’s proceedings to date, including whether victims who suffered indirect harm may participate,[2] what disclosure obligations they may have,[3] what evidence is required to satisfy the Chamber that they are entitled to victim status,[4] etc. Further issues involving victims are sure to arise.
- Victim Participation
2.Victims are allowed to participate in ICC proceedings “where the personal interests of the victims are affected”.[5]The Chamber shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.[6] Victims may participate in the proceedings individually or, more commonly, through a common legal representative.[7]The Appeals Chamber has said that victims may lead evidence pertaining to the guilt and/or innocence of the accused.[8]
3.Rule 89 of the ICC Rules of Procedure and Evidence specifies an application process for victims who wish to participate in ICC proceedings. The Appeals Chamber has held that four cumulative criteria must be fulfilled in order for victims to be granted the right to participate in a case: (i) the individuals seeking participation must be victims in the case; (ii) their personal interests must be affected by the relevant issues; (iii) their participation must be at an appropriate stage of the proceedings; and (iv) the manner of participation should neither cause prejudice to nor be inconsistent with the rights of the accused and a fair and impartial trial.[9]
4.At the close of the prosecution’s case and before the start of the defence case, the legal representatives for victims were authorised to call three victims to testify in Lubanga,[10] two in Katanga and Ngudjolo[11] and two in Bemba.[12] In addition to giving evidence, Trial Chamber III was the first to also allow victims in trial proceedings to appear before the Chamber during trial solely to present their views and concerns, letting three such victims appear by video-link before the start of the defence case in Bemba.[13]
5.One issue which has arisen in ICC proceedings to date is the number of victims who wish to participate in the proceedings. ICC cases have the potential to be of an enormous scale, and it is an ongoing challenge to the Court to respond to the number of victims who wish to participate. For instance in the Bemba proceedings, the Chamber individually reviewed and authorized 5,229 applications for victims to participate.[14] Trial Chamber V responded to the large number of victim applicants in the ICC’s two Kenya cases by deciding that the applications described in Rule 89 would only need to be submitted for review for those who wish to participate individually by appearing directly before the Chamber.[15] All other victims who wish to participate without appearing before the Chamber: (i) are permitted by Trial Chamber V to present their views and concerns through a common legal representative and (ii) do not need to go through an application procedure.[16] The Appeals Chamber has not ruled on the viability of Trial Chamber V’s approach, but their decision reflects the challenges the Court faces in responding to giving victims a meaningful opportunity to participate in cases involving allegations of mass atrocities.
- Reparations
6.One aspect of the role of victims at the Court which is still relatively unexplored is the Court’s ability to award reparations to victims. The Court is the first international court to actually allow for monetary reparations to victims in international criminal proceedings. The Court may order reparations directly from a convicted person or give awards through a special Trust Fund set up by the Rome Statute.[17] On the one hand, reparations are extremely important to giving victims a tangible result from their participation in international criminal proceedings. On the other hand, the number of victims in proceedings before the Court is so large that it is simply impossible to give the individual attention necessary to make proper determinations on reparations for every participant.
7.The first such decision regarding the principles relating to reparations was recently issued in the Lubanga case.[18]Trial Chamber I endorsed a five step implementation plan for reparations[19] and held that all victims are to be treated fairly and equally as regards reparations, irrespective of whether they participated in the trial proceedings.[20] This decision is currently under review by the Appeals Chamber.
- Trust Fund for Victims
8.In the context of the victims’ right to reparations, a significant role is certainly to be predicted for – and already carried out by - the “Trust Fund for Victims”. Established by the Assembly of States Parties pursuant to Article 79 of the Statute “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims”,[21] it can be the recipient of “money and other property collected through fines or forfeiture”[22] transferred by order of the Court. Rule 98 of the Rules of Procedure and Evidence clarifies that the Trust Fund’s mandate is twofold: on the one hand, “the Court may order that an award for reparations against a convicted person may be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate”;[23] on the other hand, the Trust Fund may also become the vehicle through which funds other than those collected by way of fines and forfeiture “may be used for the benefit of victims”.[24]
9.Such other funds consist of voluntary contributions by donors and may be used by the TFV to provide victims and their families “in situations in which the Court is active” with physical rehabilitation, monetary compensation, material support, and/or psychological rehabilitation.[25] This type of assistance does not require that the victims be related to a specific case, accused or crime being brought before the Court for adjudication: it only requires being implemented in the context of a situation pending before the Court and is subject to notification to the relevant Chamber, who may only veto it if it finds that the proposed activities would pre-determine any issue including Article 19 jurisdiction, Articles 17-18 admissibility, violate the Article 66 presumption of innocence, or be prejudicial to or inconsistent with the defendant’s rights or a fair trial.[26]
10.It is noteworthy that several projects of this nature have already and are currently being carried out in the Central African Republic, the Democratic Republic of the Congo and Uganda and consist of projects varying from counseling and vocational training to the provision of medical services and micro-credit solutions and the organisation of educational broadcasts.[27]
- Conclusion
11.The ICC’s victim participation regime is a fundamental component of the Rome Statute. In order for the Court to fulfill its mandate and “guarantee lasting respect and the enforcement of international justice”,[28] it is critical that victims of mass atrocities be given an effective, meaningful opportunity to participate in ICC proceedings and receive reparations.
[1] Article 68(3) of the Rome Statute, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, “Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008”, 11 July 2008, ICC-01/04-01/06-1432, OA 9 OA 10 (“Lubanga OA 9 OA 10 Judgment”).
[2]Lubanga OA 9 OA 10 Judgment, para. 38.
[3]Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Appeals Chamber, “Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled ‘Decision on the Modalities of Victim Participation at Trial’”, 16 July 2010, ICC-01/04-01/07-2288, OA 11.
[4]Prosecutor v. Joseph Kony et al., Appeals Chamber, “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" of Pre-Trial Chamber II”, 23 February 2009, ICC-02/04-179, OA.
[5] Article 68(3) of the Rome Statute.
[6] Article 68(3) of the Rome Statute.
[7] Rules 89-93 of the Rules of Procedure and Evidence.
[8]Lubanga OA 9 OA 10 Judgment, para. 94.
[9]See Prosecutor v. Banda & Jerbo, Appeals Chamber, “Decision on the participation of victims in the appeal”, 6 May 2013, ICC-02/05-03/09-470 (OA 4), para. 11 (in the context of participating in appeal brought under Article 82(1)(d) of the Rome Statute; further citations therein).
[10]Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, “Annex to: Order issuing public redacted version of the ‘Decision on the request by victims a/ 0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial’”, 9 July 2009, ICC-01/04-01/06-2032-Anx.
[11]SeeProsecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Trial Chamber II, “Décision aux fins d’autorisation de comparution des victimes a/0381/09, a/0018/09, a/0191/08 et pan/0363/09 agissant au nom de a/0363/09”, 9 November 2010, ICC-01/04-01/07-2517; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Trial Chamber II, “Decision on the notification of the removal of Victim a/0381/09 from the Legal Representative’s list of witnesses”, 8 August 2011, ICC-01/04-01/07-2674-tENG; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Trial Chamber II, “Décision relative à la Notification du retrait de la victime a/0363/09 de la liste des témoins du représentant legal”, 16 August 2011, ICC-01/04-01/07-2699.
[12]Prosecutor v. Jean-Pierre Bemba Gombo, Trial Chamber III, “Decision on the supplemented applications by the legal representatives of victims to present evidence and the views and concerns of victims”, 23 February 2012, ICC-01/05-01/08-2138, para. 55.
[13]ICC-01/05-01/08-2138, para. 55. See also ICC-01/05-01/08-2138, paras 19-20 (distinction between “giving evidence” and “presenting views and concerns”).
[14]ICC Press Release from Victims Participation and Reparations Section, Central African Republic: VPRS training session for local intermediaries assisting victims, 21 November 2012, ICC-CPI-20121121-PR855.
[15]Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber V, “Decision on victims' representation and participation”, 3 October 2012, ICC-01/09-01/11-460, para. 32; Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Trial Chamber V, “Decision on victims' representation and participation”, 3 October 2012, ICC-01/09-02/11-498, para. 31.
[16]ICC-01/09-01/11-460, para. 25; ICC-01/09-02/11-498, para. 24.
[17] Article 75(2) of the Rome Statute.
[18]Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, “Decision establishing the principles and procedures to be applied to reparations”, 7 August 2012, ICC-01/04-01/06-2904.
[19] The steps outlined by Trial Chamber I are as follows. First, the Trust Fund for Victims, the Registry, the OPCV and a multidisciplinary team of experts should establish which localities ought to be involved in the reparations process in the present case (focusing particularly on the places referred to in the Judgment and especially where the crimes committed). Second, there should be a process of consultation in the localities that are identified. Third, an assessment of harm should be carried out during this consultation phase by the team of experts. Fourth, public debates should be held in each locality in order to explain the reparations principles and procedures, and to address the victims' expectations. The final step is the collection of proposals for collective reparations that are to be developed in each locality, which are then to be presented to the Chamber for its approval. See ICC-01/04-01/06-2904, para. 282.
[20] ICC-01/04-01/06-2904, para. 187.
[21]Article 79(1) of the Rome Statute. See also Resolution ICC-ASP/1/Res.6, ‘Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims’, adopted at the 3rd plenary meeting, on 9 September 2002, by consensus.
[22]Article 79(2) of the Rome Statute.
[23]Rule 98(3) of the Rules of Procedure and Evidence.
[24]Rule 98(5) of the Rules of Procedure and Evidence.
[25] Regulation 48 of the Regulations of the Trust Fund for Victims.
[26] Regulation 50 of the Regulations of the Trust Fund for Victims. See also ICC-01/05-30, ‘Decision on the Submission of the Trust Fund for Victims dated 30 October 2009’.
[27]See, for example, Trust Fund for Victims, ‘Programme Progress Report, Winter, 2012 – “Mobilising Resources and Supporting the Most Vulnerable Victims through Earmarked Funding”’, pp 9-11.
[28]Preamble of the Rome Statute.