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PARTICIPATION
The Participation of Victims in International Criminal Court Proceedings, REDRESS, 2012
One of the major innovations of the ICC statute is the ability of victims to participate in proceedings, not only as prosecution witnesses but also as independent participants with an interest in the outcome.
Article 68(3) of the Rome Statute allows victims to participate “at stages of the proceedings determined to be appropriate” when their “personal interests […] are affected” in “a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”
The Statute also envisages the possibility for victims to make representations under Article 15(3) when the Prosecutor seeks proprio motu authorisation to open an investigation.
- Who can participate?
- When can victims participate?
- How can victims participate?
- What does participation mean?
ICC Resources
- ICC page relating to participation: http://www.icccpi.int/en_menus/icc/structure
- %20of%20the%20court/victims/participation/Pages/participation%20of%20
- victims%20in%20proceedings.aspx
- ICC : A guide for the Participation of Victims in the proceedings of the court http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/victims/participation/Pages/booklet.aspx
Current issues in relation to victims’ participation at the ICC
- In recent years, the participation of victims has become an area of focus both within and outside the Court and calls for reforms have been expressed.
- Several challenges have come to light including the Court’s struggle to process the relatively high number of applications for participation it has received, victims’ inability to challenge aspects of cases that matter most to them, and suggestions that participation as it is currently undertaken is not so meaningful to victims themselves.
- The Court,[1] including the Registry[2] and the Judges,[3] as well as several working groups within the Assembly of States Parties such as the Study Group on Governance[4] and through the joint facilitation on Victims, Affected communities and the Trust Fund for Victims and on Reparations of the Hague Working Group,[5] have thus begun to consider the ways and means to review and restructure the system of victim participation.
The VRWG is a strong supporter of victim participation and played an instrumental role in ensuring victims’ right to participate in the proceedings was included in the Rome Statute. The VRWG and its members have engaged extensively on this issue with both the Court and States parties over the last few years and produced numerous papers in that regard. In them, the VRWG has stressed the need to ensure that participation is meaningful and that reviews of the system are not only financially driven.
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The ICC Rules of Procedure and Evidence define the victim as:
- An individual having suffered direct or indirect harm as a result of the commission of a crime within the ICC’s jurisdiction; and
- Organisations or institutions having suffered direct harm to property dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes, as a result of the commission of a crime within the ICC’s jurisdiction.
Victims are defined in a broad manner. Individuals include direct victims as well as indirect victims such as the family or dependants of the direct victim and “persons who have suffered harm in intervening to assist victims in distress or to prevent victimization”.
To participate in the proceedings at Pre-Trial or later, victims must show that the harm, injury, loss and damage suffered are related to the charges against the accused. The harm, both direct and indirect, injury, loss and damage include:
- physical harm including making a person unable to bear children;
- moral damage resulting in physical, mental and emotional suffering;
- material damage, including lost earnings and loss of property;
- lost opportunities, including those relating to employment, education, social benefits, social status or legal rights;
- costs such as for legal experts, medical services or social assistance.
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When can a victim participate?
When their personal interests are affected, the ICC may allow victims to present their views and concerns at stages of the proceedings deemed appropriate. However, victims may only do so if it does not affect the rights of the accused and a fair and impartial trial.
The ICC distinguishes between victims of a “Situation” and victims of a “Case”:
- A situation covers all the possible crimes under investigation;
- A case refers to the specific facts relating to a suspect or accused person.
This differentiation is important in relation to victims’ rights to participate in appropriate proceedings. There are limited opportunities for victims of a situation to participate.
Victims recognised as participants in a case can participate throughout the whole proceedings, often via a legal representative.
The Rome Statute does not limit participation to any particular stage of proceedings. The appropriateness of the timing of an intervention by one or more victims or by their legal representative has been determined by Chambers on a case by case basis, taking into consideration the rights of the accused, the need to ensure that the proceedings are effective and expeditious and the interests of the victims concerned.
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How can victim apply to participate?
The application procedure for participation is not the same in all cases as the practice before the Court is still evolving.
However, in all cases, victims have had to fill in an application form which specifies the harm they allegedly suffered and the incidents that resulted in such harm.
Victims also have to provide proof of their identity.
In order for a victim to be able to participate at a given phase of the proceedings, the Chamber will determine whether the victim’s interests are particularly affected and whether participation in the manner requested is appropriate and consistent with the rights of the defence and a fair and expeditious trial.
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In most cases, victims participate through a legal representative who attends hearings, makes written submissions and conveys the views and concerns of the victims throughout the proceedings. In some cases, a small number of victims may be allowed to appear in person before the judges. For example in the Bemba case, a small number of victims travelled to The Hague to testify in the trial. A few victims also addressed the judges via video link to present their views and concerns.
Examples of participation:
In the Kenya situation, in response to the Prosecutor’s public notice of his intention to seek the authorisation to commence an investigation, Pre-Trial Chamber II issued a detailed decision on 10 December 2009, setting out a procedure to obtain the necessary views and concerns from victims in Kenya.[6] Similarly, in Cote D’Ivoire, following the Prosecutor’s request for authorisation to commence an investigation, Pre-Trial Chamber III ordered the VPRS to provide a report on the representations received by victims. As a result of the victims’ representation, the Chamber directed the Prosecutor to extend the scope of his investigations.
Victim participation during the investigation phase is limited to participation in specific proceedings in which their interests are affected. To date, victims’ ability to express views and concerns about key issues affecting their interests such as the scope and nature of the charges to be brought or choice of accused has been minimal.
Participation in the Pre-Trial phase tends to revolve around the confirmation of charges hearing. Victims’ Legal representatives have been able to make opening and closing statements at the confirmation of charges hearings.
Outside of the confirmation of charges hearing, victims have submitted observations on a number of issues during the pre-trial phase. In addition to questions concerning their ability to participate in proceedings, such filings have related to a range of issues, including:
- Challenge to the jurisdiction of the Court;[7]
- Interim release;[8]
- Challenges to admissibility;[9]
- The location of the confirmation of charges hearing.[10]
During trial, victims’ legal representatives are entitled to attend and participate in all proceedings in accordance with the terms of the ruling of the Chamber[11] unless, in the particular circumstances of the case, the Chamber is of the view that an intervention should be confined to written observations or submissions. This has resulted in most cases in victims’ counsel being entitled to:
- Make opening and closing statements;
- Participate in interlocutory appeals;
- Access the full case index;
- Question all types of witnesses;
- Challenge the admissibility of evidence;
- Submit evidence;
- Make observations on the detention of the accused,etc.
Victims have also been allowed to participate in person and testify provided they meet some conditions. In Lubanga, the Chamber eventually authorised three participating victims to give evidence under oath after the conclusion of the Prosecution’s case.[12] In Katanga, the Chamber authorised four non-anonymous victims to testify.[13] In Bemba, and ultimately, two victims were allowed to testify in the trial.[14]
Victims may also present their views and concerns in person, rather than through their legal representative. Chambers have noted that to do so is not the same as giving evidence.[15] As their presentation does not form part of the evidence, victims’ statements are not given under oath, and victims are not questioned by either party.
- Participation relating to reparations
After a conviction, the competent Chamber has the ability to afford reparations to, or in respect of victims, including restitution, compensation and rehabilitation.[16] The Chamber can make the award directly to victims, or where appropriate, through the Trust Fund for Victims.
Before the Chamber can make an order for reparations, it must consider representations from the convicted person, the victims and other interested persons or States.[17] Reparations proceedings can be triggered either by requests filed by victims, or on the Court’s own motion.[18]
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Relevant documents
- Representing Victims before the ICC: Recommendations on the Legal Representation System, 2015
- Meaningful and Effective? Considering Victims’ Interests Through Participation at the International Criminal Court, L. Moffet, Criminal Law Forum, 2015
- Comparing victim participation at the ICC, M. Pena, 2015
- Five myths about victim participation in ICC proceedings, FIDH, Dec 2014
- Realising justice for Victims before the ICC, L.Moffet, International Crimes Database, Sept 2014
- Victim Participation in Transitional Justice Mechanisms: Real Power or Empty Ritual?, Impunity Watch, April 2014
- Enhancing Victims' Rights before the ICC, a view from Situation countries on victims rights at the ICC, FIDH, 2013
- Victims' Participation at the ICC: Purpose, early developments and lessons, AMICC, March 2013
- Victims Lecture, C. Ferstman, Feb 2013
- Victim Participation, Politics, and the construction of victims at teh ICC, reflections on proceedings in Banda and Jerbo, E. Haslam, R. Edmunds, Melbourne Journal of International Law, 2013
- Modes of Participation and Legal Representation, ASF, 2013
- Independent Panel of experts report on victim participation at the International Criminal Court, 2013
- Reparations and Victim Participation: A Look at the Truth Commission Experience, Cristián Correa, Julie Guillerot, Lisa Magarrell in Carla Ferstman, Mariana Goetz and Alan Stephens, Eds., Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity, Brill Academic Publishers (2009)
- The Participation of Victims in International Criminal Court Proceedings, REDRESS, 2012
- Aspects of victim participation in the proceedings of the International Criminal Court, Elisabeth Baumgartner, International Review of the Red Cross, June 2008
- Victim Participation in Proceedings before the International Criminal Court, Fiona McKay, Human Rights Brief, 2008
VRWG documents
- VRWG Recommendations to the ICC Assembly of States Parties December 2014 English
- VRWG Paper “Making victim participation effective and meaningful'' June 2014 English version
- VRWG - Submission on the importance of victim participation 8 July 2013 >> Download PDF
[1] ICC Revised Strategy in Relation to Victims, dated 28 May 2012. Report on the ICC Revised Strategy in Relation to Victims: Past, Present and Future, dated 28 May 2012.
[2] ICC, Report on the Review of the System for Victims to Apply to Participate in Proceedings, 24 Sept. 2012.
[3] Victim participation features amongst the issues considered by the judges in their review: Lessons Learnt: First Report to the Assembly of States Parties, 21 Aug. 2012, Section III.
[4] Report of the Bureau on the Study Group on Governance, ICC-ASP/10/30, 22 November 2011.
[5] Report of the Bureau on Victims and affected communities and the Trust Fund for Victims and Reparations, ICC-ASP/11/32, 23 October 2012; The Report identifies the ’unsustainably of the current system for victims to apply to participate in proceedings as the most pressing major concern and proposed to focus the work of the facilitation on this topic’, para. 24, which refers to the findings of its earlier July report.
[6] Order to the Victims Participation and Reparations Section Concerning Victims' Representations Pursuant to Article 15(3) of the Statute, Kenya Situation (ICC-01/09-4) Pre-Trial Chamber II, 10 Dec. 2009, para. 9.
[7] Observations of Victims a/0001/06, a/0002/06 and a/0003/06 Regarding the Challenge to Jurisdiction Raised by the Defence in the Application of 23 May 2006, Lubanga (ICC-01/04-01/06-349), Pre-Trial Chamber I, 24 Aug. 2006; Observations on behalf of victims on the Defence Challenge to the Jurisdiction of the Court, Mbarushimana (ICC-01/04-01/10-417), Pre-Trial Chamber I, 12 Sept. 2011.
[8] Observations of victims a/001/06, 1/002/06 and a/003/06, in respect of the application for release filed by the Defence, Lubanga (ICC-01/04-01/06-530), Pre-Trial Chamber I, 9 Oct. 2006.
[9] In the Ruto case, victims, through the OPCV, were invited to participate in the proceedings on the admissibility challenge by the Government of the Republic of Kenya. See, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Ruto, Kosgey & Sang (ICC-01/09-01/11-101), Pre-Trial Chamber II, 30 May 2011.
[10] In the Ruto Case, the Chamber decided that victims should submit their observations through the OPCV. See, Decision Requesting Observations on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing, Ruto, Kosgey & Sang (ICC-01/09-01/11-106), Pre-Trial Chamber II, 3 June 2011.
[11] Rule 91(2) of the Rules of Procedure and Evidence.
[12] Decision on the request by victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, Lubanga (ICC-01/04-01/06-2032), Trial Chamber I, 9 July 2009.
[13] Décision aux fins de comparution des victimes a/0381/09, a/0018/09, a/0191/08 et pan/0363/09 agissant au nom de a/0363/09, Katanga & Ngudjolo (ICC-01/04-01/07-2517), Trial Chamber II, 9 Nov. 2010. In the end only two testified.
[14] Decision on the supplemented applications by the legal representatives of victims to present evidence and the views and concerns of victims, Bemba (ICC-01/05-01/08-2138), Trial Chamber III, 22 Feb. 2012.
[15] Decision on the presentation of views and concerns by victims a/0542/08, a/0394/08 and a/0511/08, Bemba (ICC-01/05-01/08-2220), Trial Chamber III, 24 May 2012.
[16] Article 75 of the Rome Statute.
[17] Article 75(3) of the ICC Statute.
[18] See rules 94 and 95 of the Rules of Procedure and Evidence.
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