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June 30, 2010

Defence Appeal Landmark Victims’ Participation Decision

By Cecile Jeffries

On 22 January 2010 the International Criminal Court (ICC) issued a landmark decision regarding the extent and manner in which victims should be allowed to participate in the trial proceedings of Mr Katanga and Mr Ngudjolo. Subject to Chambers’ approval in each case, the decision enabled victims to attend both public and closed parts of the hearing and to give their opinions on whether they believed evidence to be relevant and valid. It also included instructions on the manner in which victims’ legal representatives may call or question defendants, witnesses and experts, and on the presentation of evidence which could either incriminate or clear the defendants.

The decision was opposed by Katanga’s Defence which requested leave to appeal. The Defence argued that the Court had misinterpreted the law regarding the circumstances in which victims’ legal representatives may question defendants, witnesses and experts, and the way in which they would be able to present evidence and call victims to testify against the defendants using incriminating evidence. Defence also disputed the Court’s decision that victims were under no obligation to disclose all aspects of evidence to the parties, whether damaging to the defendant or not. Finally, Defence disagreed that victims should be allowed to offer their views on the relevance or validity of evidence without identifying whether they were supporting the Prosecution’s applications to allow evidence or simply challenging the evidence themselves.

In April 2010 the Chamber allowed this leave to appeal, albeit only partly. It considered that the possibility for victims’ legal representatives to present evidence and call victims using incriminating evidence and testimony, without disclosure to the Defence before trial, was one issue which satisfied the requirements for appeal. The second appealable issue concerned whether it is possible for the victims’ legal representatives to testify specifically on the role of the defendants in the crimes charged against them. The third issue for appeal related to whether the legal representatives were obliged to communicate all items of evidence in their possession to the parties, whether incriminating or not.

Victims’ legal representatives then applied and were granted permission to participate in the appeal itself and on 28 May 2010 presented a statement of their opinions on the appeal issues. They believed that the Defence had been mistaken to argue that the Court had misinterpreted the law, particularly as regards victims’ legal representatives’ rights and obligations, which they emphasised were very different from those of the parties. For example, it is the parties’ right to present evidence relating to the guilt or innocence of the defendant and their duty to act objectively, whereas the interests of the victims are necessarily personal and subjective. It follows, therefore, that disclosure obligations will vary.

The victims’ legal representatives also argued that Defence has no absolute right to see all evidence against defendants before the start of the trial and cited many instances in which this does not or cannot happen in reality. Already the Defence has been able to read all the statements of victims currently represented and this, they argued, should be sufficient for their purposes. They therefore requested that the Court dismiss the appeal altogether.

Prosecution fully agreed with these opinions, though the Defence rebuffed them and requested that the Court forge forward with their appeal.

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