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LEGAL UPDATE December 2007

ICC Victims’ Rights Legal Update

16 December 2007

(pdf version)

 

DRC-Situation

  • Single Judge rejects Victim Counsels’ request to access parties’ observations
  • Chamber rejects Defence Office’s request for clarification on its mandate
  • Chamber rejects Defence Office’s request for more information on victim applications

DRC-Lubanga Case

  • Hearing on matters requiring early determination:

      - Debate on victims’ access to documents

      - The role of victims in the proceedings leading up to and during the trial is debated

      - Chamber rejects request for applicants to participate in status hearing

  • Victims’ Counsel requests access to the index of filings and other documents in case
  • Trial date is set for 31st March 2008
  • Victims’ Counsel submits information on criteria for admitting victims in case
  • Trial Chamber rules on the Registrar’s report on victims’ applications
  • Victims’ Counsel requests to be heard on the dual status of victim-witnesses
  • Participating victims to be notified of ex-parte proceedings
  • Protection: Victims’ Counsel and Victims & Witnesses Unit seek to clarify the notion of victims appearing before the Court for protection purposes

 DRC-Katanga Case

  • Germain Katanga is transferred to the ICC

Darfur Situation

  • Defence Office’s requests are rejected: clarification on the level of information to provide with applications for participation
  • 11 victims are granted status in the Darfur Situation

 

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DRC Situation

Single Judge rejects Office of Public Counsel for Victims (OPCV)’s request to access parties’ observations

After having been appointed to represent unrepresented applicants in the Democratic Republic of the Congo (DRC) situation, on 18 October OPCV requested access to the situation file index and the Parties’ observations on victim applications a/0004/06 to a/0009/06; a/0016/06 to a/0063/06, a/0071/06 à a/0080/06 and a/0105/06. The Prosecutor[1] supported disclosure of the observations, however he opposed disclosure of the index. He underlined that he was able to assist OPCV in identifying documents filed by his office that were relevant to OPCV’s mandate.

On 7 December, Single Judge Steiner rejected OPCV’s request. She took the opportunity to clarify the notification process. She noted that OPCV was requesting information not provided even to those granted victim status. She observed that notifying victim representatives of Prosecution and Defence observations had not always been the Chamber’s practice and ruled that such observations shall not be notified to the applicants or their legal representatives. OPCV requested leave to appeal on 17 December 2007. 

Chamber rejects Defence Office request for clarification of its mandate

On 11 September 2007, the Court ruled that the mandate of the Office of Public Counsel for the Defence (OPCD) was not a continuation of the prior mandate of the ad hoc Counsel for Defence. The Chamber stated that therefore only the Court could order the disclosure of confidential information relating to victims.

On 12 September, OPCD requested that the Judge clarify the meaning of this decision.

On 3 October the Pre Trial Chamber ruled that the request for clarification was not admissible.

OPCD’s request for additional information on victim applications is rejected

[Background]On 31 August OPCD requested that the legal representatives of victims or the Victims’ Participation and Reparation Section (VPRS) disclose additional information on victim applications such as potential pre-existing medical conditions; whether they had been subject to investigations; whether they had a link with other persons applying for participation, and to disclose further information on translators and on the individuals who witnessed the applications.

The request was rejected on 7 December on the ground that applications for participation proceedings were not related to the determination of the guilt or innocence of the accused. Moreover, none of the provisions require legal representatives to provide such information unless requested by the Court itself under Regulation 86(7).

 

DRC – LUBANGA CASE

Hearing on matters requiring early determination: debate on victims’ access to documents

[Background] A hearing took place in early September on matters such as the date of the trial, the languages to be used, disclosure and the e-court protocol. Parties and victim representatives were invited to submit observations on these issues.

The Office of the Prosecutor (OTP) submitted its observations on these issues on 11 September 2007, highlighting that the trial should start as early as possible. OTP indicated that victims should, through their legal representatives, have access to materials which were filed by the Parties as evidence and which are publicly available. Access to other documents should only be granted on a case by case basis. 

Counsel for Victims a/0001/06, a/0002/06, and a/0003/06 submitted their observations on 24 September 2007. They asked that, pursuant to rule 131(2), all documents presented by the parties before the Pre-Trial Chamber and the transcripts of the hearings of that Chamber – or the redacted versions thereof - be made available to them. They also asked for access to all documents which will be presented by the parties before the Court during the proceedings and to the transcripts of the proceedings. They also requested that the Chamber grant them access to the complete index of the record of the case (a request also made by the legal representative of victim a/0105/06).

The defense indicated on 24 September 2007 its support for OTP’s submission that victims should only have access to public documents.

The role of victims in the proceedings leading up to and during the trial is debated

[Background] A second hearing took place in October, addressing the role of victims in the proceedings leading to and during trial. Parties and participants were invited to submit observations.

Victims’ legal representatives support a safe and extended participation

The victim representatives highlighted that some of their clients were still minors, and were often considered as traitors by their former commanders. This meant that their families could be in danger as a consequence of them participating. They stressed that victims were often still in the field. 

The legal representatives highlighted that security for victims and their families was a primary concern. They called for a debate on forms of reparation. They asked to participate in all proceedings, highlighting that according to Rule 91-2, participation was the norm and any restriction had to be justified. They requested to make preliminary and concluding remarks during trial and to allow some victims to be heard individually by the Court.

The legal representatives also urged the Court to give a decision as soon as possible on the other applications for participation in the Lubanga case and added that grouping victims for legal representation purposes should only take place in consultation with the different groups of victims involved.

OPCD stresses the difference between trial and reparation proceedings

OPCD submitted its views[2], asserting a distinction between participation in the proceedings and reparations claims. It stated that in the latter, victims could call witnesses and experts to address their concerns, but that such debates could only arise after determination of guilt.

OPCD requested that victims’ status already granted at the Pre trial stage be re-examined by the Trial Chamber as this determination had been made on the basis of the arrest warrant rather than the confirmation of charges decision. It also asked that victim participation be conditional on disclosure of victims’ identity. OPCD stressed the requirement of a “personal interest” needed for participation in each proceeding, and that victims were not parties in the trial.

Victims are not parties to the trial but can contribute positively says OTP 

OTP submitted its observations, stating that victims can contribute positively to hearings. However, he recalled that only the Defence and Prosecution could enjoy the rights granted to parties (such as pre trial disclosure and witness interrogation). He added that victim representatives should not be granted a general right to present observations on all questions related to the trial and should not be allowed to respond or make submissions on issues that were solely inter-parties (such as determination of guilt).

OTP did not wish anonymous victims to be permitted to participate in the trial proceedings in any manner. 

Chamber rejects request for applicants to participate in status hearing 

On 25 October, the Chamber rejected a request made by the legal representative of a number of victim-applicants.[3] The applicants wished to make submissions on the role of victims at the status hearing, seeking to address, inter alia, local circumstances limiting communication and affecting the rights of victims to be informed of decisions, the role of VPRS, security concerns of victims and intermediaries, legal aid and the treatment of pending applications.

The Chamber recalled that only victims who were granted victim status before the Trial Chamber could participate in the hearing; and that Rule 103 on “Amicus and Other Interveners” was not designed to encompass the views of victims waiting for determination on their applications to participate.

Victims’ Counsel requests access to the index of filings and other documents in case

On 18 October, OPCV requested access to documents relating to applicants that it represents.[4] In particular, it highlighted that without access to the case file index, it could not identify relevant documents that had been filed confidentially or under seal. OPCV also requested the parties’ observations on the said applications and the unredacted version of the confirmation of charges decision and its annex. 

OPCD opposed the request. OTP, while rejecting the main part of the request, supported the transmission of the confidential observations from the parties made on the victims’ applications.

Single Judge Steiner in the DRC situation decided on 7 December that observations on the applications made in accordance with rule 89(1) shall not be notified to applicants or their legal representatives. (See above DRC-Situation) OPCV requested leave to appeal.

Trial date is set for 31st March 2008

On 9 November, Trial Chamber 1 set the trial start date for the 31 March 2008. This takes into account time for parties to prepare once the Prosecutor has disclosed all evidence, which the Court ordered for 14 December 2007.

Victims’ Counsel submits information on criteria for admitting victims in case

On 9 November[5], answering the Chamber’s request, OPCV submitted information on questions regarding victims.

It recalled that while not mentioned in the Statute or Rules, PTC 1 had made a distinction without explaining the implications between direct and indirect victims.

OPCV suggested the following elements as criteria for victim status in the Lubanga case:

  • rationae materiae: the harm suffered must be linked to the enlisting or conscripting of children under fifteen or to making them actively participate in hostilities. This includes the use of children under fifteen to guard military objectives, or to protect the physical integrity of military commanders.
  • Rationae personae: the events must be linked to Mr. Lubanga, though the confirmation of charges decision also mentioned other commanders as co-authors.
  • Rationae temporis: events must have occurred between September 2002 and 13 August 2003.
  • Rationae loci: inter alia, training camps of Mandro, Bule, Kilo, Mont Awa, Centrale, Irumyu, Bogor, Sota and Rwampara as well as Lubanga’s residence in Bunia. Recruitment places mentioned were Mongbwalu and Bunia and hostilities mentioned are Libi and Mbau, Largu, Lipri and Bogor, Bunia, Djugu and  Mongwalu. 

OPCV argued that this list was not exhaustive: other evidence during trial might bring further details / other elements.

OPCV opposed OTP’s restricted view of the modalities of victims’ participation: victims should have full access to case file documents unless the Chamber ruled otherwise. OPCV also supported the hearing of evidence on reparation at the trial stage, in accordance with Rule 56 of the Court’s Regulations.

Finally, OPCV opposed OPCD’s request that victim participation be made conditional on revealing their identities and indicated that anonymity was not contrary to fair trial. As for common representation, consultation with current representatives, intermediaries and victims should take place before imposing a common legal representative.

Trial Chamber rules on the Registrar’s report on victims’ applications

On 9 November, Trial Chamber I elaborated on the Registry’s report on victims’ applications.[6] It should contain:

  • summaries of the original applications;
  • a grouping of applications when they could be linked on matters such as time, circumstance or issue;
  • any information relevant to the Chamber’s decision on the application;
  • any other assistance VPRS could give to assist the Chamber in assessing the merits of the application.
  • the report should not contain views on the merits of the applications;
  • VPRS can draw attention, in a neutral way, to particular issues or facts.
  • the report should not be disclosed to the parties or the participants.

Victims’ Counsel granted leave to be heard on the dual status of victim-witnesses

On 27 November, OPCV was granted leave to be heard on the dual status of victims-witnesses. OPCV had asserted that knowledge of the dual status by victims’ lawyers, as well as the manner of contacting victims with dual status needed to be addressed.

Participating victims to be notified of ex-parte proceedings

On 6 December, the Trial Chamber analysed the scope of ex-parte proceedings and stressed that when an ex-parte procedure was taking place, the other party should be notified of the procedure and its legal basis, except in cases where it would be inappropriate.

Protection: Victims’ Counsel and Victims & Witnesses Unit  (VWU) make submissions on the notion of victims appearing before the Court for protection purposes[7]

At the Chamber’s request, OPCV submitted its analysis on distinctions between victims and victims who appear before the Court on 7 December 2007. It highlighted that both notions could be found throughout the founding texts of the ICC on the issue of protection. It argued that a distinction should be made regarding the Victims and Witnesses Unit mandate under article 43(6) of the Statute and the Court’s mandate under article 68(1).

OPCV suggested an interpretation in line with the scope of victims’ participation and the general obligation of protection binding the Court. The Court’s obligation to protect victims under Article 68(1) could not be interpreted as limited to certain categories of individuals. With respect to VWU’s mandate to protect and support victims, OPCV highlighted that reference to “victims who appear before the Court” under Art 43(6) should benefit from the inclusion of victim- applicants.

The Victims and Witnesses Unit responded on 12 December that its services, outlined in Art 43(6), were limited to victims participating in the case. It suggested that it had been a deliberate decision by the drafters to include the phrase "who appear before the Court", to restrict the responsibilities of the Unit.

On the Court’s broader mandate to protect victims, VWU stated it bore responsibility for the protection of all victims including victim applicants, but that this responsibility was shared with the other organs of the Court. It argued that OTP, the Defense and victim representatives should be bound by the same wider obligation.

The Registrar highlighted that protection under Article 68(1) was based on 3 principles:

  • Ensuring that during the proceedings, the Court ensured as few risks as possible in relation to victims;
  • A possible approach for protection could be to develop a system of “representative victim” whereby a group of victim elects one or two victims to appear physically and reveal their name to the parties triggering the protection mechanism of art 43(6) of the VWU.
  • The Court has a responsibility towards victims, and the organ, party or participant who endangers a victim by interacting with him or her should he be responsible for such behavior.

 

DRC – KATANGA CASE

Germain Katanga is transferred to the ICC

On 18 October 2007, the Court made public the arrest warrant against German Katanga which was issued on 2 July 2007.[8] On 17 October 2007, the Congolese authorities had surrendered and transferred Mr. Germain Katanga, a Congolese national and alleged commander of the Patriotic Resistance Force in Ituri (“FRPI”), to the ICC. The Chamber found that there were reasonable grounds to believe that Mr. Katanga, as the highest ranking FRPI commander, had played an essential role in the planning and implementation of an indiscriminate attack against the village of Bogoro, in the territory of Ituri, on or around 24 February 2003.

The warrant of arrest for Mr. Katanga lists 9 counts including:

  • 3 counts of crimes against humanity (murder, inhumane acts, and sexual slavery);
  • 6 counts of war crimes (willful killing, inhuman treatment or cruel treatment, using children under the age of fifteen years to participate actively in hostilities, sexual slavery, intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities, pillaging a town or place even when taken by assault).

 

DARFUR – SITUATION

OPCD’s requests are rejected: clarification on the level of information to provide with applications for participation[9]

On 21 August, the Defence Office requested more information on some victims’ applications: the existence of previous cases filed by the applicants; the conditions on which the applicants were granted asylum; statements they made in their asylum proceedings and the identification and the status of “witnesses” on the applications.

On 24 August[10], OCPD asked the Prosecutor to provide information on the intensity of hostilities in the villages mentioned by the victims’ in their applications; the presence of persons affiliated with armed groups in those villages; victims’ potential links with armed groups or commission of criminal acts.

On 3 December, the two requests were rejected. Single Judge Kuenyehia stated that:

  • participation at the situation stage was appropriate for victims;
  • victim status was not per se prejudicial to the rights of the Defence;
  • applications for participation was neither related to the innocence or guilt of the alleged perpetrator nor to the reparations proceedings.
  • victims only need to meet the criteria set forth by the rules prima facie;
  • exhaustion of domestic remedies was not necessary
  • provision of information extrinsic to the application was not needed to meet the criteria except when additional information was expressly requested by the Court.

11 victims granted status in the Darfur Situation[11]

On 6 December, Single Judge Akua Kuenyahia, granted victim status in the Darfur Situation to applicants a/0011/07, 0012/07, 0013/07, 0015/07, 0023/07, 0024/07, 0026/07, 0029/07, 0036/07, 0037/07 and 0038/07.

She rejected a/0014/06, a/0021/07, a/0028/07, a/0030/07, a/0031/07, a/0032/07, a/0033/07 and a/0035/07.

In the decision Judge Kuenyehia covered the following issues:

  • victims’ procedural right to participate at the situation stage was highlighted;
  • the criteria for participation only needs to be met prima facie for the applicant to be granted status;
  • more information is required on the nature of the harm suffered for applications relating to moral harm (e.g. caused by the death of a family member) and applications on behalf of deceased family members;
  • Only natural, live persons can apply for participation;
  • One could participate as a victim due to the loss of a family member, but not on behalf of a deceased victim;
  • proper proof of family ties or legal guardianship are required for applications on behalf on children, as well as the consent of the victim;
  • credibility of the declarations would not be assessed, but rather overall coherence;
  • Applicants granted victim status shall not have access to documents other than those made public.

On 10 and 12 December, both OPCD and OTP requested leave to appeal the decision on the grounds inter alia that the Court had not given sufficient reasoning to the decision and that it created uncertainty. They also questioned whether the Court could grant a general right to participate and whether it was only obliged to provide copies of the applications to the parties rather than order the provision of further information.

 

The Victims' Rights Working Group (VRWG) is a network of over 200 civil society groups and individual experts created in 1997 under the auspices of the NGO Coalition for an International Criminal Court. Affiliated organisations include NGOs from Uganda, DRC and Sudan as well as international NGOs. The VRWG works to ensure that victims’ rights are effectively protected and respected, and that their needs and concerns are met throughout the judicial process of the ICC. Particular attention is paid to the need to ensure that the Court will render not only retributive, but also restorative justice, that will aim, inter alia, to prevent re-victimization, to break cycles of violence and war, and to provide reparations and rehabilitation for victims. The VRWG advocates for fair and effective structures and procedures at the Court to facilitate victims' full and active participation. For a list of affiliated organisations see our website See http://www.vrwg.org

 


[1] Prosecution's response to the "Request of the OPCV to access documents in the situation record "ICC-01/04-413, 8 November 2007, http://www.icc-cpi.int/iccdocs/doc/doc363141.PDF

[2] Argumentation de la Défense sur des questions devant être tranchées à un stade précoce de la procédure ICC-01/04-01/06-991,  18 November 2007, http://www.icc-cpi.int/NR/exeres/465C63DC-0163-42F8-A4EF-721A3513F74D.htm

[10] Request for the Single Judge to order the Prosecutor to disclose exculpatory materials ICC-02/05-97, 24 August 2007, http://www.icc-cpi.int/NR/exeres/7F54CC72-D4EC-4E0F-A1A1-36ECB8381896.htm