Week 6: Victim Participation

Common law (adversarial systems)

Common law (adversarial systems)

Victims may report the offence & have limited role as a

witness (big issue is not to interfere w equality of arms), in some instances may submit victim impact statements

→ Compensation is obtained through a separate civil law claim

Civil law (inquisitorial systems)

Greater scope for participation ‘in their own right’ as full fledged

participants

• no bifurcation of parties, so victims can help assist

Scandaviann: sui generis participants in their own right, extensive involvement

German: victims on the side of prosecution, act as auxiliary prosecutor

French: criminal trial conducted as usual, but there will be civil parties - partie civile with private interests and reparations are included within thecriminal process

Evolution of victim participation: Nuremberg

No form of participation or reparation other than ability to testify as a witness

Live testimony did not have to be included because of the amount of documentation/paper testimony left by the Nazis

-> victims had a very very minor role

• post 1985 Victim's Declaration and Van Boven/Bassiouni Principles, which although they are non-binding instruments, encouraged making systems more victim friendly & prevent secondary victimisation by governing access to justice and fair treatment of victims

Evolution of victim participation: ICTY/R

Ad hoc tribunals did not really allow for victim participation, other than in the role of witnesses

• so only if able to provide legal information/aid the legal process → adversarial system

• once that process was finished, no aftercare system to help protect them

• Criticized by formed pres of ICTY, argued for inclusion of victim reparations, never implemented because it was rejected

• this mandate was highly criticized because victims sidelined when objective of statute was to "bring justice to the victims"

• especially relevant at ICTR -> Rwanda civil law system; so victims were accustomed to taking a more active role (so felt almost abused by adversarial process)

• MICT art. 18: important terminology → trials be conducted with “full respect for the rights of the

  accused and due regard for the protection of victims and witnesses”, because in ICC 64(2)

  • still, even at the ICC, still a trend that victim participation is subject to the right of the accused and a fair trial

Evolution of victim participation: ICC

• Extensive provisions on victim participation – incl. representation & reparations (improved, but still always balanced against the rights of accused)

• Move away form purely retributive justice paradigm – novel system in comparative law terms

• Most progressive but also the most vague due to the degree of discretion afforded to the Chamber (decisions made on case-by-case basis)

• Can initiate proceedings regarding protective measures and reparations - in all other proceedings, they are participants whose involvement is dictated by Art. 68(3) - prioritises the rights of the accused

  • Art. 64(2) “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”

Art. 68 RS

Protection of Victims and Witnesses and their participation in the proceedings

68(3) → all other forms of participation

Criticism ICC victim participation

Criticisms:

• Inefficient and unsustainable – exemplified in the existing backlog

• A potentially harmful experiment in a still fragile system (see Zahar and Sluiter, ‘International Criminal Law: A Critical Introduction’)

• Victim participation risks upsetting the balance between the parties, and may infringe upon the rights of the accused

• Regime is insufficient and does not adequately meet the rights and interests of victims

Since the ICC Victim Participation system

• ECCC – participate as civil parties and may claim moral and collective reparations

• STL – participatory rights with civil claims being raised before national courts

• KSC – participate, have legal representation and may obtain reparations from the convict

• Extraordinary African Chambers in Senegal – may participate and obtain reparations as civil parties

ICC Victim Participation: Protection and Special Assistance legal framework

Art. 68(1)-(2): ‘appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’ in particular those of SGBC / violence against children’

• Must not be prejudicial to or inconsistent with the rights of the accused

• May ‘conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means.

RPE 17: Victims and Witnesses Unit (VWU)

• Outlines the functions of the VWU; including providing adequate protective and safety measures & medical, psychological and other appropriate assistance

RPE 87: ‘Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness’ pursuant to article 68(1)-(2)

• Important because if key witness and they withdraw testimony, case can fall asart

• Includes redactions, pseudonyms, closed sessions, testimony by special means

• Those with dual status may not retain their anonymity vis-à-vis the defence – must assume a more active role when presenting their views and concerns to the Chamber

• Chambers will adopt least intrusive measures possible

  • relocation is always considered as a last resort (concerns on behalf of person/family but also the state)

Factors that might change victim protection/vulnerability

• Likelihood of exposure makes them vulnerable to reprisals

• Security/privacy concerns or a generally volatile security situation

• Age, gender, health and crime of which they are a victim (especially SGBC) may add to their vulnerability

4 STEP PROCESS FOR VICTIM PARTICIPATION ICC

1. victim fulfils rule 85 definition of a victim

2. that they satisfy art 68(3) criteria

3. that they successfully complete their application form under rule 89 (admission or vetting process)

4. appropriate forms of participation are determined in light with the need to uphold a fair trial, timely proceedings, and the rights of the accused.

Step 1: Definition of Victim under the ICC

Rule 85(a)

1. “Victims” → natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court

• natural persons can be organisations that suffered direct harm

• Covers all purposes: protection, participation & reparations

• Draws almost verbatim from wording of 1985 UN Victims Declaration (in which harm includes physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights)

• Bemba: ‘natural persons’ includes the deceased (person is victim is direct, family/next of kin is indirect victim)

2. ‘Harm’ → hurt, injury, and damage – determination of sufficient evidence done on case-by-case basis & based on prima facie standard (not high)

• Lubanga: must be personal (direct or indirect) and have a causal link to the specific charges of the case

• Ntaganda: kinship to direct victims must be shown by those that suffered indirect harm, and any alleged must arise from an incident falling within the parameters of the confirmed charges

Step 2: Qualifying for Participation under Art. 68(3)

Criteria:

1. qualify as victims (as defined by r.85) & causal link to harm & crime is established

2. personal interests are affected (undefined, vary and shift throughout the course of the proceedings)

3. that the procedural stage is appropriate for participation (meaning for the expression of their views and concerns)

4. that the manner of participation is not prejudicial or inconsistent with the rights of the accused and a fair/impartial trial will not be compromised (Chamber must ensure victim’s rights are protected while not enabling a ‘second prosecution’)

• Note: “the court shall permit…” = case-by-case basis (up to chamber, uncertainty)

Step 3: Admission or Vetting Process of Applications

Admission under Art. 68(3) and r.89: incl. collection, translation, redaction and judicial vetting of applications

Evidentiary standard for admission:

• Prima facie – corroboration not required but must provide proof of identity (Chamber quite lenient because post-conflict areas)

• Yekatom & Ngaissona: flexible approach adopted at the initial stages, but when deciding on admission the Chamber adopted a strict assessment of harm – limits of the leeway allowed in a prima facie demonstration are determined on case-by-case basis (qualification basically redacted)

Streamlining efforts (because this biggest area of victim participation that can be streamlined):

• Kenya cases: ‘differentiated approach’ w/ registration in the Registry database – inconsistent with r.89

• Ongwen: Chamber vets all applications, but the Registry adopts a more prominent role in conducting eligibility assessments and recommending next steps

• Ntaganda: r.89 procedure is not absolute & is subject to other Statute provisions which uphold expediency – limited parties submissions regarding applications to those that could not be easily resolved by the Registry & thus divided into 3 victim groups

• Yekatom & Ngaissona: Registry instructed to classify applications into 3 groups (those who did, did not, and may qualify)

Rule 89 procedure

Applications verified by Registry & VPRS → transmitted to Chamber which implements necessary redactions → submitted to parties for observations → eligibility then determined by Chamber

Step 4: Forms of Participation under Art.68(3)

Art. 68(3) & Rules 89-92: “general regime” implemented at the discretion of the Chamber

1. Sui generis ‘participants’ (all stages)

2. Witnesses, with a dual status as victims (applicable at trial)

3. Parties in reparation proceedings (Art. 75 & 82(4))

Specific forms of participation under Art. 68(3)

1. Investigations

   1. Victims cannot trigger an investigation - may only provide information, support the Prosecutor (under Art.15) and be considered by the Chamber in their authorisation decision - see Situation in DRC

2. Representations

   1. During authorisation process – Art.15(3) & Rule 50(1)/(4)

   2. May participate in a review of the OTPs decision not to investigate/prosecute – Rule 92(2)

3. Observations

   1. During jurisdiction/admissibility proceedings – limited role provided by Art.19(3) & Rule 59 – see Katanga and Ngudjolo, Ruto et al, Gbagbo and Al Senussi (particularly relevant for admissibility → gravity)

4. Sharing views

   1. Rule 93 - A Chamber may seek the views of victims or their legal representatives participating pursuant to rules 89 to 91 on any issue

5. Right to be heard on specific issues

   1. Rules 72(2), 119(3) and 143 – in camera hearings to decide whether evidence regarding consent is admissible or relevant / conditional release if the victim could be at risk / hearings on matters related to sentence/ reparations (particularly relevant for provisional release

      1. 91(3)(b): can question witnesses (through legal representative)

6. Evidence Submission

   1. Chambers have allowed victims to tender evidence pertaining to the guilt or innocence of the accused, as well as to challenge the admissibility of evidence

      1. on the basis of Art 69(3), see Lubanga

      2. Chamber’s duty to determine the truth – and the fact that Art. 68(3) does not

         mention any substantive limits as to what may be submitted

7. Questioning witnesses

   1. May participate, through their legal representatives, by asking witnesses questions and by submitting written observations or submissions - Rule 91(3)(b) in accordance with Art.68(3) criteria

   2. Victims may provide context, cultural and local background information – helps in interpretation of evidence & does not infringe upon the rights of the accused

Active Modalities Participation expressly foreseen for LRVs

• Opening and closing statements (confirmations, trial).

• Attendance, written submissions, access to documents (any refusal of access to case record must have factual/legal basis).

• Questioning witnesses, experts or the accused: upon leave and subject to parties’ responses.

• Present “views and concerns” in person.

• Leading evidence re: guilt/innocence + challenge admissibility.

"General regime” victim participation must be assessed w/ regard to the interests of victims an rights of the accused & involves a balancing act against the right to be tried without undue delay, the equality of arms, and an impartial trial

Meaning the Chamber MUST:

• Determine the appropriate stage(s) for victims to present their views/concerns

• Ensure the manner is not prejudicial with the rights of the accused and a fair/impartial trial (Art.66(2) burden of proof)

• Protect the safety, dignity, privacy and wellbeing of victims pursuant to Art. 68(1)

Article 15

Victim Participation 1: Investigations

• Implicitly allows for victims to be taken into consideration by the Prosecutor

Art.15(3) + Rule 50(1)/(4), & Rule 92(2)

Victim Participation 2: Representations

• During authorisation process

• Participate in review not to investigate/prosecute

Art.19(3) & Rule 59

Victim Participation 3: Observations

(Limited) During jurisdiction/admissibility proceedings

Rule 93

Victim Participation 4: Sharing Views

A Chamber may seek the views of victims (or their legal representatives participating pursuant to rules 89 to 91)

Rules 72(2), 119(3) and 143

Victim Participation 5: Right to be heard on specific issues

• in camera hearings to decide whether evidence regarding consent is admissible or relevant /

  conditional release if the victim could be at risk / hearings on matters related to sentence/ reparations

On the basis of Art.69(3), Art. 68(3) no substantive limits

Victim Participation 6: Evidence Submission

• this is not the same as expressing "views and concerns" but allowed under 69(3) in the context of evidence (so not directly under participation of victims, but by extension)

• Affirmed in Lubanga

• Developed in Katanga: Must consider whether the testimony relating to the conduct of the accused (i) affects victim's personal interests, (ii) is relevant to the issues of the case, (iii) is necessary for the determination of the truth, and (iv) whether the testimony would be consistent with the rights of the accused and a fair and impartial trial

  • in the case of either inculpatory/exculpatory evidence: order disclosure sufficiently in advance, so accused has right to prepare defense

• Al Hasan: Similar reasoning to Katanga & noted that the ICC statutory framework does not automatically confer a right to present

  evidence –incumbent on victims acting through LRVs to submit motivated requests

Rule 91(3)(b) in accordance with Art.68(3) criteria

Victim Participation 7: Questioning witnesses

• May participate, through their legal representatives, by asking witnesses questions and by submitting written observations or submissions - Rule 91(3)(b) in accordance with Art.68(3) criteria

• Victims may provide context, cultural and local background information – helps in interpretation of evidence & does not infringe upon the rights of the accused

• Katanga and Ngudjolo: Not an unqualified right – must submit a request for each witness stating (1) the relevance of the question, which had to either (2) clarify/supplement evidence

• Ntaganda: More restrictive view, request had to specifically outline the topics which would be questioned

Consequences of uncertain victim participation at the ICC

• Unrecognized victims – application in vain and disappointment in ICJ

  • certain victims that have qualified, unable to participate, because no causal link to crime because no investigated anymore

• Participating victims – potential frustration of expectations

  • right to legal representation expectation dissapointed (when suddenly 1000 vicims represented by 1 person)

• Defendant - unforeseeable participation (tension with fair trial rights)

  • impact statemenents, effects on sentencing and confirmation of charges

Art. 68(3) + Rule 90

Legal Representation

• Art. 68(3) mentions legal representation as a right of participating victims, and r.90 defines the scope and parameters

• Victims’ freedom to choose their LRV has been limited - CLRs are appointed for sake of efficiency, despite potential conflicting interests

• Only legally represented victims have access to hearings, or have the ability to question witnesses, experts and the accused (Ongwen: 4107 victims represented by 2 CLR)

OPVC

Office of Public Counsel for Victims:

• Supports and provides legal research assistance to LRVs and victims & may appear before the Chamber on specific issues

• May serve as LRVs or CLRs under r.90(3) or as counsel for unrepresented victims - allowed ‘where the interests of justice so require’ (ICC Reg.80)

Criticisms Legal Representation ICC

• No unqualified right to an individual attorney

  • practically impossible for 1 CLR to express all the views of thousands of victims; risk of destabilising proceedings because can shift focus away from the accused; equality of arms but if victims taking more active role on the side of prosecution it creates imbalance

• Geographical distance

  • or efficient/meaningful communication, being geographically close & understanding culture is inherently important..."victims views and needs to protect local traditions...must be taken into account"

• Those “registered” as participants are not judicially vetted to appear before the court (entirely reliant on LRV)

  • only legally respresented victims have access to proceedings & materials

  • registered as participants but do not want to appear,  do not have the same rights

Comparison ICC with the ECCC

• Art. 33(new) on the Law on the Establishment of the ECCC: ‘The trial court shall ensure that trials are fair and expeditious and are conducted in accordance with existing procedures in force, with full respect for the rights of the accused and for the protection of victims and witnesses’

  • Rule 23 of ECCC Internal Rules: victims participate as a partie civile

    • May request investigation action (Rule 55.10); question witnesses (Rule 91.2) and the accused (Rule 90.2); and also appeal the verdict, along with the Prosecutor’s appeal (Rule 105.1)

    • Have access to the whole case file

    • May request collective and moral reparations from the convicted person (Rule 23 quinquies)

  • Have the ability to file complaints – information may be used in investigations / complainants do not participate in hearings and may not request reparations, but may give evidence or testify as witnesses

Application in practice: Amendment of relevant provisions in 2010 to ensure effective proceedings of Case 002 (4000 victims, 2 CLRs)- new Rule 23.3 allowed all civil parties be gathered in a single, consolidated group at trial represented by two lawyers designated by the court.

Victims and ICJ: Rationales for inclusion in criminal proceedings

• Based on our conceptualisation of crime & who it affects: public (no role)/ private (exclusive role) / both (role in

  achieving restorative justice, results in enhanced procedural standing)

• Restorative justice theories put the victim at the centre – ICJs positive effects can only be established if it benefits those

  that have suffered most

1. Justice For → Raison d’être - recognition, accountability through prosecution and punishment

2. In the Name of → Source of legitimacy - uncontroversial interest of ICL

3. For the Benefit → Impact – retribution, restoration, reconciliation, reparations

(of Victims)

Victims and ICJ: Challenges & Criticisms

• Mass victimisation – increased complexity, managerial & financial restraints

• Focus and prioritisation of the rights of the accused and principle of fair trial (inherent clash between victim participation & right to a fair trial)

• Promises, expectations and risks – false hopes

Victims and ICJ: Challenges & Criticisms → Kendall & Nouwen Article

Juridified & Abstract Victimhood

• Juridifcation leads to narrowing of group to victims considered “legally relevant”. Participation limited by: causes; temporal, geographical, and personal parameters; case selection; and procedural conditions

• ‘The Victim’ – untouchable entity which corresponds to no one individual. Source of legitimacy (‘moral currency’) & rhetoric allows the role of actual victims to be overstated

• Victims are inherently political persons who interests & views do not fit easily into the courtroom, resulting in suppression in order to not ‘destabilise’ the process – increases the gap between the people & their representative

Victims and ICJ: Challenges & Criticisms → Coleman Article

Tension between Presumption of Innocence & Victim Participation at ICC

• Label affects the burden and standard of proof – element of prejudgment which implies guilt. Suggestion: do not link the events to criminal activity

• Victimhood connected to a crime can lead to lack of recognition if a conviction isn’t secured

• Tension with rights of the accused stems from the Chamber’s discretion to decide the modalities of participation on a case-by-case basis - rules for victim participation should be better defined