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October 18, 2012

Q & A - ICC Decision on Victims' Representation and Participation in the Kenya Cases

By Redress

On 3 October 2012, Trial Chamber V ruled on victims' legal representation and rights to participation in the two Kenyan cases (Prosecutor v Muthaura & Kenyatta; Prosecutor v Ruto & Sang). It set out a new procedure to be followed by victims who want to participate in the trials.[1] The Trial Chamber significantly departed from established practice in an attempt to make the process simpler. The Chamber considered that a different approach was warranted due to the large number of victims and unprecedented security concerns. The most notable change is that victims who do not wish to appear in court in person do not need to submit a detailed application as required under Rule 89 of the Rules of Procedure and Evidence (‘Rules’).

From the outset, the Chamber stressed that the principles set out in the decisions were limited to victims' participation in the proceedings under Article 68(3) of the Rome Statute (‘Statute’) as opposed to reparations proceedings pursuant article 75 of the Statute.

What is different for victims wishing to participate in the Kenya cases?

Only those wishing to appear in person in Court must submit a detailed application:

The Trial Chamber distinguished direct individual participation from participation through a common legal representative (‘CLRV’) or, in other words – individuals who wish to appear in person before Court and those who only wish to be recognised as ‘participants’ in the proceedings (see below).

For those who do not wish to appear in person before Court, an individual application will no longer be necessary. However victims who wish to will be able to register with the Registry.

What is the difference between victims appearing in person, registration and general participation?

The Trial Chamber made a distinction between:

(i) Direct individual participation:

Victims who wish to appear in person before Court to present their views and concerns will need to follow the procedures under Rule 89. They can present their views and concerns in person or via video-link. Expressing views and concerns is different from providing evidence; it does not make the victim a witness.

Victims appearing in person or via video-link will need to disclose their identity to the parties (the Prosecution and the Defence). Whether their identity will also be revealed to the broader public will be decided by the Chamber.

(ii) Participation through a Common Legal Representative:

• Registered victims who do not wish to appear in person, and are happy to express their views and concerns through a legal representative, are able to register with the Registry through a less detailed process by sending their personal data – including information about the harm suffered. Such registration will not be subject to the Chamber’s individual assessment or the parties’ observations.
• Unregistered (or unidentified) victims: the views and concerns of victims who do not register because of their unwillingness or incapacity (for practical or security reasons such as age, physical or mental incapacity, social pressure) shall “nevertheless be voiced, in a general way” through the Common Legal Representative for Victims.

Who qualifies as a victim?

The Trial Chamber applied the definition contained in Rule 85 whereby “victims” are:

• natural persons having suffered harm following the commission of a crime within the International Criminal Court's (ICC) jurisdiction; and
• organisations or institutions having suffered “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”.

The harm suffered needs to be related to the charges against the accused.

What is the purpose of the new, simplified registration?

The Chamber made it clear that the benefits of registration are threefold, it:

• enables victims to formalise their victimhood by providing them with a channel through which they can express themselves and share their experience with the CLRV;
• creates a personnel connection or relationship with the CLRV as the victims will be able to provide their input and receive feedback on the proceedings;
• facilitates communication between the Court and the victims and preparation of the periodic reports (see below).

What will happen to victims who were already recognised as “participants” at the Pre Trial stage?

Victims who were already authorised to participate at the Pre Trial stage will be considered as having registered to participate through a CLRV if they still fall within the scope of the charges as confirmed. The Chamber instructed the Registry to review whether all participants at the Pre Trial stage still qualify.

Legal representation

How will victims be represented? Who will the Common Legal representative represent?

Victims not appearing in Court will be represented through a Common Legal Representation system. The Chamber ruled that in the present case, the victims would be represented through a CLRV to be based in Kenya and who will be assisted by the Court’s in-house Office of Public Counsel for victims (‘OPCV’). The CLRV will represent all the victims in a case – regardless of whether they are registered or not.

• The CLRV will act as the main point of contact for the victims whom he/she represents, to formulate their views and concerns and will appear on their behalf in key hearings only.
• The CLRV will be authorised to make opening and closing statements at trial.The OPCV will act as a link between the counsel and the Chamber in everyday proceedings, by attending hearings on behalf of the CLRV and will act under his/her instructions.

There is no clear division of responsibility between the ICC’s OPCV and the CLRV to be based in Kenya. The Registry and the OPCV have two weeks to submit a proposal to that effect.

The Victims Participation and Reparations Section (VPRS) will provide the Court periodically with a “comprehensive report on the general situation of the victims as a whole”, including statistics on the victims’ population. These reports will be able to assist the CLRV to assess victims’ interests by informing him/her on the victims’ population, their general situation, the harm suffered, etc.

Who will decide on who the CLRV will be and on what criteria?

The Chamber will appoint a CLRV and instructed the Registry to submit a recommendation. It reminded the Registrar that in selecting the candidate, she should take into account specific criteria, which includes:

1. the candidate's knowledge of the case and of the specific situation of the group of victims;
2. the candidate's willingness and ability to maintain an ongoing presence in Kenya throughout the course of the proceedings.

The Chamber also asked the Registry to consider the "General criteria for the selection of CLRs under rule 90(3) of the Rules of Procedure and Evidence." These criteria include:

• An established relationship of trust with the victims or ability to establish such a relationship;
• Demonstration of an ability and willingness to take a victim-centred approach to their work;
• Familiarity with the country where the crimes in connection to which the victims are admitted to participate in the proceedings have been allegedly committed;
• Possession of relevant expertise and experience, demonstrated by previous experience in criminal trials, experience representing large groups of victims and specialised study in relevant academic fields;
• Readiness to commit a significant amount of time to maintain contact with a large number of clients, to follow developments in Court's proceedings, to take any appropriate steps in the proceedings, and to maintain adequate contact with the Court; and
• A minimum level of knowledge in information technology.

Modalities of participation

What is the difference between presenting views and concerns in person and testifying?

Testifying amounts to giving evidence and might have an impact on the determination of the conviction or acquittal. A victim testifying will also become a witness, and her/his testimony will be given under oath with the parties being allowed to question him or her.

Presenting views and concerns does not form part of the evidence but will inform the judges on some issues. Views and concerns have no probative value and do not entail questioning by the parties.

Will all victims who want to appear in person be able to do so?

No. Victims willing to appear in person must be expressly authorised by the Chamber to do so.

The CLRV will submit a request to the Chamber on behalf of the victims who want to appear. The request will 1) explain why these particular victims should be considered as “best placed to reflect the interests of the victims” and 2) contain a summary of the issues the victims will address if authorised to appear.

The Chamber will make a preliminary assessment on the appropriateness of the participation of the victims and can ask the CLRV to make a pre-selection. The Chamber will “pre select” a limited number of victims who may be authorised to appear and invite the parties to make observations on the victims’ applications. The Chamber will then make a final determination on which victims will be authorised to appear.

When will victims be allowed to appear in person?

Provided some conditions are fulfilled, individual victims may be invited by the Chamber to present their views and concerns in person at trial including during the opening and closing hearings.

What was the previous procedure for victims to apply to participate?

Under Rule 89 of the Rules, victims who want to participate in ICC proceedings, have to submit a written application to the Registrar. The Court has developed a standard form to that effect.

Pursuant Regulation 86 of the Regulations of the Court, this application shall include, “to the extent possible”, the following information:

• Identity and address of the victim (or address to which the communications will be sent);
• Evidence on the consent or situation of the victim if the application is made by a person acting with the consent of the victim pursuant rule 89(3);
• A description of the harm suffered provided the latter results from the commission of any crime within the ICC’s jurisdiction and in accordance with rule 85 (see below, “Who qualifies as a victim?);
• A description of the incident;
• Names and addresses of witnesses, if any;
• The causes of the victims’ personal interests being affected;
• Information on the stage of the proceedings in which the victims wishes to participate and the relief sought, if any;
• Information on the legal representation envisaged by the victim if any and on the victims’ financial resources to pay for this representation.

In previous cases, ALL victims who wanted to participate in proceedings had to either fill in the form or provide the said information to the Registrar. Complete applications were then transmitted to the relevant Chamber and the parties (Prosecutor and Defence) who would submit observations to the Chamber. After hearing the parties’ observations, the Chamber would decide whether each individual victim could be considered a “participant” in the proceedings.

[1] Decision on victims' representation and participation, 3 October 2012, ICC-01/09-02/11, http://www.icc-cpi.int/iccdocs/doc/doc1479387.pdf; Decision on victims' representation and participation, 3 October 2012, ICC-01/09-01/11-460, http://www.icc-cpi.int/iccdocs/doc/doc1479374.pdf.

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