October 18, 2011
During the confirmation of charges hearing that took place in the Mbarushimana case between 16 and 21 September 2011 legal representatives for the 130 participating victims highlighted victims’ demand for justice from the international community. Stressing that only the ICC can provide punishment and reparation for their clients, they stated that victims see the trial as the beginning of a process of restoring peace and of understanding what happened and why.
This echoes some of the submissions made recently in the context of the Defence’s jurisdictional challenge. Indeed, on 19 July 2011, Callixte Mbarushimana’s Defence challenged the jurisdiction of the Court, arguing that the proceedings did not fall within the scope of the situation referred by the Government of the DRC to the ICC. While jurisdictional challenges are quite common in ICC’s proceedings, this challenge had brought to light two interesting points regarding victims’ rights.
First, as provided for under Rule 59 of the Rules of Procedure and Evidence (RPE), in the context of proceedings arising from a challenge to the jurisdiction of the Court, not only victims admitted in the case, but also “victims who have communicated with the Court” can make written observations or representations to the Chamber. In this instance, it meant that victims who had submitted an application to participate in the proceedings but were still awaiting a decision on their participatory status were able to present their views to the Court. This is particularly important in the Mbarushimana case, as over 450 victims’ applications for participation which have been received by the court, have not yet been ruled upon by the Chamber.
The second originality lies in the content of the observations submitted by the Office of Public Counsel for Victims (OPCV). Fed from the work of individuals in the field, the document delivers a rare and comprehensive picture of what 145 victims think of the process and why they wish the ICC to proceed with the case. The main victims’ concern relates to considerations around their safety. They stress that “security conditions in the field are not improving in the least and they still face regular attacks from the FDLR”. Displaced persons camps in Kalebe are said to be regularly targeted and victims, especially from the Batembo tribe, to face risks of retaliation, extermination and genocide. Victims also denounce the Congolese inability or unwillingness, despite the help of the international community, to bring perpetrators under control and to prosecute them. The overall conclusion from victims’ observations is that the ICC is “the only jurisdiction able to adequately play an effective and deterrent role”, as well as to render an “impartial and credible justice”.
In that regard, the document raises questions as to the ICC’s capacity to respond adequately to the high expectations of victims. In terms of protection and reparation, one can wonder whether victims’ hopes are not disconnected from what the Court can offer to them. In order not to be deceiving, it will be crucial that victims are informed clearly of what they can expect, especially considering the large amount of victims and the limited resources of the Court.
A decision on the confirmation of charges should be delivered before the 21th of November as required by Regulation 53 of the Regulations of the Court. Until then, victims will have to wait hoping that their call for the ICC's justice will be realised.
 Transcripts Opening Statement by the Legal Representatives of Victims, 16 September 2011, ICC-01/04-01/10-T-6-RED, p38, http://www.icc-cpi.int/iccdocs/doc/doc1240120.pdf
 Decision requesting observations on t he "Defence Challenge to the Jurisdiction of the Court" ICC-01/04-01/10-377 , 16 August 2011, http://www.icc-cpi.int/iccdocs/doc/doc1204089.pdf; Observations de victimes autorisées à participer à la procédure sur l’ « Exception d’incompétence de la Cour soulevée par la Défense » (ICC-01/04-01/10-290-tFRA), 12 September 2011, ICC-01/04-01/10, http://www.icc-cpi.int/iccdocs/doc/doc1230728.pdf
 Observations on behalf of victims on the Defence Challenge to the Jurisdiction of the Court (ICC-01/04-01/10-417), 12 September 2011, ICC-01/04-01/10-417-RED, http://126.96.36.199/iccdocs/doc/doc1230975.pdf; Annexe 1 - Observations on behalf of victims on the Defence Challenge to the Jurisdiction of the Court (ICC-01/04-01/10-417), 13 September 2011, ICC-01/04-01/10-417-Anx1-Red, http://www.icc-cpi.int/iccdocs/doc/doc1230977.pdf
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