some are more equal than others: victim participation in the icc - SSRN

SOME ARE MORE EQUAL THAN OTHERS: VICTIM PARTICIPATION IN THE ICC Yvonne McDermott* At the International Criminal Court (hereinafter, “the ICC” or “the Court”), for the first time in the history of international criminal justice, victims are given an opportunity to present their views and concerns, not only as witnesses, but in all stages of proceedings before the Court. When the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were established, participation of victims at an international level was considered unfeasible, given the “tens of thousands”1 of victims affected by crimes falling within the jurisdiction of the Tribunals. The same issues of efficiency and fairness which are pertinent in relation to the ad hoc tribunals are just as relevant, if not more so, in relation to the ICC. If the millions of ICC victims are to be given a voice, this must be done without overburdening the Court in terms of time and financial resources. Ultimately, only a limited number of victims will be able to participate; the selection of those few must be achieved in a manner that is fair to victims and that safeguards against disingenuous applications to participate. Finally, and most importantly, victim participation must not compromise the rights of the accused; it must not interfere with the presumption of innocence or the right to a fair and impartial trial without undue delay,2 and it must not endanger the independence and objectivity of the Office of the Prosecutor. 3 In the Court’s first actions, it appears that victims are treated “more equally” than other participants in the trial procedure: victims’ participatory rights have essentially trumped those of the Prosecutor and the Defense, and hampered the expediency of trials. This paper will also illustrate that, in spite of the best intentions of the ICC, the elevated treatment of victims in fact ends up disadvantaging victims overall. Three different elements give rise to this thesis. First, as will be discussed in Part II, the definition of who can be considered a victim for the purpose of participation—a definition that remains far from clear but nonetheless has taken up much of the Court’s time—has broadened in scope to such an extent that future participation by victims looks to be even more time- and resourceintensive and ultimately unsustainable. Furthermore, the “two-pronged” approach developed by the ICC, whereby various criteria are assessed at an early stage while others are considered at subsequent later stages, goes against the intentions of the drafters of the Rome Statute, who determined that victim participation should only be permitted when it was certain that it would not be prejudicial to the rights of the accused or to the guarantee of a fair and impartial trial. It will be seen that this two-pronged assessment process has * Yvonne McDermott, Ph.D. candidate, Irish Center for Human Rights, National University of Ireland, Galway, is grateful to Professor William Schabas and Dr. Larissa van den Herik for their comments on an earlier draft. 1 Judge Claude Jorda, speaking in Sarajevo on 12 May 2001. ICTY Press Release, The ICTY and the Truth and Reconciliation Commission in Bosnia and Herzegovina, JL/P.I.S./591-e, The Hague, 17 May 2001. 2 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998 [hereinafter, “Rome Statute” or “RS”], at articles 66 and 67. 3 RS, at Article 42. Copyright 2008 by CASIN All Rights Resevered. Electronic www.americanstudents.us

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proven inefficient and is ultimately liable to disappoint those whose interests were of primary importance to the judges who devised the approach. Second, the fact that victims have been allowed to participate in the investigation stage, before an accused has even been identified, is problematic. Part III of this paper demonstrates how allowing victims to participate at this stage jeopardizes the independence of the Prosecutor and infringes on the rights of the accused by causing undue delay, in addition to denying the right of the accused to reply immediately to allegations made against him. Finally, the modalities of participation, which have been developed to include access to the Prosecutor’s documents; the introduction of evidence pertaining to the guilt or innocence of the accused and the raising of points of law stretch far beyond the object and purpose of victim participation rights in the Rome Statute. Part IV of this paper argues that such participation does not fit the statutory limitations of “views and concerns”4 and breaches the fundamental criminal law principle of equality of arms. Article 68(3) of the Rome Statute is the main provision that sets out the framework for participation of victims. This provision is unequivocal as to where the balance should fall between the rights of victims and those of the accused. It states that: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. In other words, according to the Rome Statute, participation of victims should not in any way dilute or reduce the rights of the accused to a fair and impartial trial. One specific right guaranteed to the accused under Article 67(1)(c) of the Rome Statute is the right to be tried without undue delay. Nonetheless, speaking at the inaugural meeting of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome in 1998, former UN Secretary General, Kofi Annan, stated that, “the overriding interest must be that of the victims, and of the international community as a whole. … It must be an instrument of justice, not expediency.”5 However, “expediency” and “justice” are not mutually exclusive concepts—there can be no justice without expediency, efficiency, and respect for the rights of all stakeholders in ICC proceedings, in particular the right of the accused to a fair trial. In placing an overriding emphasis on the interests of the victims, the ICC could threaten not only the rights of defendants6 but also the 4

RS, at Article 68(3). United Nations Press Release, UN Secretary General Declares Overriding Interest of International Criminal Court Conference must be that of Victims and World Community as a Whole, 15 June 1998, available at http://www.un.org/icc/pressrel/lrom6r1.htm. 6 Alison M. Danner and Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Calif. L. Rev. 75, 146 (2005). Danner and Martinez warn that a growing international concern for victims’ human rights “has proven a more potent influence than worries 5

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role of the Prosecutor—and indeed the entire functioning capacity of the Court. I.

WHO MAY PARTICIPATE AS A VICTIM?

After formulating the Rome Statute to include the participation of victims, a definition of the term “victim” in the Rules of Procedure and Evidence had to be negotiated. The present section examines the elements of this definition, as laid out in Rule 85, and argues that the definition of who may participate as a “victim” has been judicially broadened in scope to such an extent that future participation by victims looks to be even more time- and resourceconsuming and ultimately unsustainable. Furthermore, the “two-pronged” approach developed by the ICC goes against the intentions of the drafters of the Rome Statute; it has proven inefficient and is ultimately liable to disappoint those whose interests were of primary importance to the judges who devised the approach. Negotiating the Definition The drafting of the definition for the term “victim” saw delegates eager to emphasize the restorative justice7 aspect of participatory rights. Many delegates were therefore keen to move away the narrow definition of the term “victim” in the ICTY and ICTR Statutes: “a person against whom a crime over which the Tribunal has jurisdiction has allegedly been committed.”8 The Colombian delegation, in particular, was vociferous about the position of the victims in the ad hoc Tribunals, saying, “The victim…was an uninvited guest, a spectator, which exacerbated the conflict.”9 During the drafting of the Rome Statute, delegates’ attention was drawn to the definition contained in the United Nations Declaration of Principles of Justice for Victims of Crime and Abuse of Power: “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, over potential violations of defendants’ rights”; this cannot be acceptable in a strong and independent ICC. 7 According to Zehr, restorative justice “involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance.” Howard Zehr, Changing Lenses: A New Focus for Crime and Justice 181 (Herald Press, 1990). 8 Rule 2A, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, “Rules of Procedure and Evidence,” adopted on 11 Feb. 1994, pursuant to Article 15 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted on 25 May 1993 by Security Council Resolution 827; Rule 2A, International Criminal Tribunal for Rwanda, “Rules of Procedure and Evidence,” adopted on 29 June 1995, pursuant to Article 14 of the Statute of the International Criminal Tribunal for Rwanda, adopted on 8 Nov. 1994 by Security Council Resolution 955. 9 Proposal by Colombia: Comments on the report on the international seminar on victims’ access to the International Criminal Court, PNCICC/1999/WGRPE/DP.37, 10 Aug. 1999.

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emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States. 10 Paragraph 2 of the Victims Declaration broadens the definition by including family members and dependants. Despite the rejection of the narrow ICTY/ICTR definition, some delegations involved in the drafting of the Rules of Procedure and Evidence thought the Victims Declaration definition to be too broad, given the “direct and tangible consequences”11 of falling within the scope of the definition, and the resulting potential “logistic constraints.”12 It seems that the ultimate solution to the diverging opinions was achieved by means of deliberate vagueness: the final Rule 85(a) simply states that a “victim” is a natural person who has “suffered harm as a result of any crime within the jurisdiction of the Court.” Rule 85(b) covers legal entities that have suffered harm when they are engaged in certain important social functions, such as schools or hospitals. Applying the Definition In order for any alleged “victim” to have the opportunity to participate in proceedings before the Court under Article 68(3), it is necessary for him or her to make an application in writing, under Rule 89(1) of the Rules of Procedure and Evidence, to the Registrar of the Court, who will then transmit the application to the relevant Chamber. The Defense and Prosecution are offered a chance to respond to these applications,13 whereupon the Chamber shall make a “non-exhaustive and non-definitive assessment of the criteria laid down in Rule 85(a),”14 based upon the application, and other documents if necessary. 15 The Rome Statute contains no guidelines or criteria for assessing these applications. This section argues that the manner in which applications have been assessed in practice is a drain on the Court’s resources, goes against the intentions of the drafters of the Rome Statute, and is ultimately of little benefit to victims. Rule 85 can apply only to Article 68(3), and thus, the sepa10

United Nations Declaration of Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly Declaration 40/34 of 29 Nov. 1985 [hereinafter: “Victims Declaration”]. 11 Birte Timm, The Legal Position of Victims in the Rules of Procedure and Evidence, in Horst Fischer, Claus Kress, and Sascha Rolf Lüder (eds.), International and National Prosecution of Crimes Under International Law: Current Developments 289, 289 (Spitz, 2001). 12 Silvia A. De Gurmendi, Definitions of Victims and General Principles, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 427, 429 (Transnational Publishers, 2001). 13 Noted in, for example, Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Application for Extension of Time Limit, 2 Oct 2007, ICC-01/04-01/06-523, at ¶10. 14 Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceedings VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6, 17 Jan. 2006, ICC-01/04-101, at ¶100. 15 Id, at ¶¶101-109.

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ration of Rule 85 from the corresponding criteria in Article 68(3) is disingenuous, notwithstanding the problems of efficiency and fairness which arise as a result of looking at Rule 85 first (i.e., the first prong in what is called the “two-prong approach”) and Article 68(3) at a later stage (i.e., the second prong). Article 68(3) as Lex Generalis It is submitted that these criteria laid out in Rule 85 of the Rules of Procedure and Evidence will be assessed only when judging an application to participate under Article 68(3) for the following reason: Even though the Rome Statute contains two other Articles on victim participation, they enshrine specific circumstances narrower than the general “presentation of views and concerns” provision. In other words, they are to be regarded as specific law, or lex specialis, which have specific corresponding rules attached to their application. Article 15(3) allows victims to make “representations” when authorization to proceed with an investigation started by the Prosecutor on his own initiative (propio motu), while Article 19(3) provides for the submission of “observations” on issues of jurisdiction and admissibility. In order to participate at these stages, it appears that an official determination of victim status by the Court is superfluous. Under Article 15(3) and the corresponding Rule 50 of the Rules of Procedure and Evidence, victims known to the Prosecutor or Victims and Witnesses Unit (VWU) will be informed in order to make representations to the Pre-Trial Chamber. Subject to the integrity of the investigation and concerns for individuals’ safety, general notice will be given to groups of victims. Similarly, under Rule 59, which corresponds to Article 19(3), victims “who have already communicated with the Court” will be informed for the purposes of submitting observations on jurisdiction or admissibility. Thus, in order to participate at these two specific stages, a preliminary communication with the Prosecutor, VWU, or the Court will suffice. In contrast, to be eligible for a general right of participation—that is, to submit one’s views and concerns when one’s personal interests are affected and at a stage deemed appropriate by the Court—the formal application procedure under Rule 89 applies. Rule 89(2) says that the relevant Chamber may reject the application if it considers that the applicant “is not a victim or that the criteria set forth in Article 68, paragraph 3, are not otherwise fulfilled.” In other words, the Chamber should examine not only the Rule 85 criteria, but also, in accordance with Article 68(3), whether participation would be prejudicial to the rights of the accused or a fair and impartial trial, whether the victim’s personal interests are affected, and at what stage participation would be most appropriate. The Two-Pronged Approach to Assessing Applications In spite of the fact that Rule 85 ought to apply only to Article 68(3) participation, as described above, this practice to date suggests that a fulfillment of the Rule 85 criteria triggers an automatic and general right to participation, leaving the determination of personal interests and appropriateness of participation (vis-à-vis the rights of the accused) to be determined only when the modalities of participation are considered. For example, on 7 December 2007,

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Judge Sylvia Steiner declared that only the four elements of the Rule 85 definition must be met upon the first examination of the application to participate. 16 The reasoning behind Judge Steiner’s decision was her interpretation of Rule 85 as encompassing an application procedure with limited scope and purpose. If an applicant can fulfill the criteria of Rule 85, he or she gains a “procedural status” without examination of personal interests or the appropriateness of participation. Furthermore, as the Chamber has previously ruled, it is not necessary for the Chamber to “determine in any great detail at this stage the precise nature of the causal link and the identity of the person(s) responsible for the crimes.”17 This article refers to this approach to assessing applications as the “two-pronged approach”: the first “prong” is an assessment of the criteria laid down in Rule 85, apparently triggering an automatic and general right to participation, while the second “prong” involves the Court looking at the manner and appropriateness of participation at each subsequent stage. In an appeal currently pending before the Appeals Chamber,18 both the Prosecution and the Defense have submitted that the issues of both “personal interests” and the propriety of participation are additional criteria which ought to be assessed at the same time as establishing the natural person, harm, and causal link criteria under Rule 85. The outcome of this appeal and the need to resort to a more streamlined, one-stage process is of utmost importance for the following four reasons. First, the two-pronged approach to assessing the applications is disingenuous at best, given the wording of Rule 89 on the matter, which specifically mentions the Article 68(3) criteria, and the fact that Rule 85 can only apply to Article 68(3) participation, as mentioned above. The drafters of Article 68(3) and the Rules of Procedure and Evidence were unequivocal about the fact that the participation of victims was not to prejudice in any way the rights of the accused. By conducting a stage in the victim participation process without reference to this condition, the Court seems to have strayed from the true meaning of the Rome Statute’s provisions. Second, the difficulty in identifying “personal interests” while protecting the rights of the accused arises at this stage as a direct consequence of the Chamber’s overly expansive interpretation of the right to participate, including participation at the investigation stage, before a defendant is even identi16

Situation in the Democratic Republic of the Congo, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to 86(2)(e) of the Regulations of the Court on the Disclosure of Exculpatory Materials by the Prosecutor, 7 Dec. 2007, ICC-01/04-417, at ¶9. 17 ICC-01/04-101, supra note 15, ¶94. 18 Leave to appeal was granted in: Situation in the Democratic Republic of the Congo, Decision on the Prosecution, OPCD and OPCV Requests for Leave to Appeal the Decision on the Applications for Participation of Victims in the Proceedings in the Situation, 6 Feb. 2008, ICC-01/04-444. Judge Georghios Pikis was appointed as the presiding Judge in this appeal in: Situation in the Democratic Republic of the Congo, Decision on the Presiding Judge of the Appeals Chamber in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s decision of 7 December 2007 and in the appeals of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s decision of 24 December 2007, 4 Sept. 2008, ICC-01/04-536.

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fied. As will be outlined below in Part 2, there are several reasons why there should be no such right to participate at this stage. Third, the determination of victims’ “personal interests” at every subsequent stage in the proceedings, as is the case now, is a drain on the Court’s resources.19 Moreover, no definition of “personal interests” has emerged, although we can presume that it must be greater than a general right to see a conviction secured.20 If these personal interests were included in the application (e.g., a victim asking for the opportunity to make an opening or closing statement telling of his personal experience) and adjudged upon at the application stage, the participation scheme might be more expeditious and could potentially facilitate the participation of more victims in a way that is meaningful to them. For example, it would eliminate the debate on which modalities of participation are most appropriate,21 as well as saving the time and resources of both the victims’ representatives and the Court, which may be expended as a result of applications to participate in hearings or appeals which are later deemed to be extraneous to an individual’s personal interests. 22 Finally, the notion of such a procedural status, of a “summary and preliminary nature,”23 whereby victims have the right to participate on paper, but are later systematically denied such participation rights at subsequent stages of the proceedings, would seem to be of little substance. The retention of such an illusory status could prove to be detrimental to both victims and the Court itself. It would be reasonable for victims to presume, having gone through the strenuous application procedure as outlined above and having been successful in their application, that they would have some meaningful participation thereafter. However, the Court can later decide that an individual’s personal interests are not affected in the stages in which they want to participate or that participation would affect the trial being fair and impartial, leaving the “successful” victim applicant disillusioned and disappointed.24 19 War Crimes Research Office Report, Victim Participation before the International Criminal Court 60 (Washington College of Law, International Criminal Court Legal Analysis and Education Project, November 2007); Jerome De Hemptinne and Francesca Rindi, ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings, 4 J. Int’l Crim. Just. 342, 348 (2006). 20 Situation in DRC, Prosecutor v. Thomas Lubanga Dyilo, Prosecutor’s Application for Leave to Appeal Trial Chamber I’s 18 January 2008 Decision on Victims’ Participation, 28 Jan. 2008, ICC-01/04-01/06-1136. 21 See Part 3, infra. 22 By way of example, see the decision of the Appeals Chamber, 13 June 2007, on victims’ unsuccessful attempt to participate in an Appeals request lodged by the Defense on the Confirmation of charges. Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, 13 June 2007, ICC-01/0401/06-925. 23 Gilbert Bitti and Håkan Friman, Participation of Victims in the Proceedings, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 456, 461 (Transnational Publishers, 2001). 24 See further, Susana SáCouto and Katherine Cleary, Victims’ Participation in the Investigations of the International Criminal Court, 17 Trans. L. & Contemp. Probs. 73 (2008).

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A Broadening of the Rule 85 Criteria Not only is the existence of the two-pronged approach described above undesirable, the application of it—that is, the adjudging of applications based on Rule 85 criteria—has been far from straightforward. The assessment of the apparently straightforward Rule 85 criteria has been time and resource consuming in practice. Therefore, in the absence of a straightforward application of the rule, it may hinder the expediency of future trials. A “Natural Person” The first of the Rule 85(a) criteria—whether the applicant is a “natural person”—appears to be the most clear-cut and unproblematic; however, two different approaches developed between Pre-Trial Chambers I and II as to what qualified as an acceptable form of identification. Broadly speaking, PreTrial Chamber II was more stringent, demanding that a recognized public authority issue the identification.25 This can be contrasted with a ruling of single Judge Steiner in Pre-Trial Chamber I,26 where it was outlined that, given the difficulties victims might face in obtaining identification documents in a post-conflict situation, a wide range of documents, including, for example, student cards or church membership cards, would be accepted as valid proof of identification. The more lenient approach of Judge Steiner would appear to be the most appropriate in the light of the circumstances of most situations in which the ICC would operate. For example, identification documents can be lost or destroyed in areas where there has been massive violence, and they can be difficult to recover in conflict or post-conflict situations. Another possibility is that victims in poverty-stricken areas may never have had official forms of identification for financial reasons. 27 Thus, while one proof of 25 See, for example, the ruling of Judge Politi in Situation in Uganda, Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 ICC-02/04-01/05-252, 10 Aug. 2007, ICC-02/04-01/05251-Conf.-Exp. cited in Situation in Uganda, Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06, 14 Mar. 2008, ICC-02/04-125. 26 Situation in the Democratic Republic of the Congo, Décision sur les demandes de participation à la procédure déposés dans le cadre de l’enquête en République démocratique du Congo par a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 a/0080/06 et a/0105/06 à a/0105/06 à a/0110/06, a/0188/06, a/0128/06 à a/0162/06, a/0199/06, a/0203/06, a/0209/06, a/0214/06, a/0220/06 à a/0222/06, a/0224/06, a/0227/06 a/0230/06, a/0234/06 à a/0236/06, a/0240/06, a/0225/06, a/0226/06, a/0231/06 à a/0233/06, a/0237/06 à a/0239/06 à a/0241/06 à a/0250/06, 24 Dec. 2007, ICC-01/04-423. 27 For example, a Ugandan passport currently costs 50,000 Ugandan shillings (according to the government website: http://www.immigration.go.ug/), while the minimum wage is 6,000 Ugandan shillings per month. U.S. Department of State, Country Reports on Human Rights Practices 2007, 11 Mar. 2008, available at http://www.state.gov/g/drl/rls/hrrpt/2007/100510.htm.

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identification should be required, the identification criteria for victims should not be as stringent as necessitating issuance by a recognized public authority. The requirement of a signature or thumbprint on each application should prevent abuses like the same person lodging multiple applications. Moreover, the requirements ought to be streamlined and clarified. So far, the approach in different countries where the ICC operates has been varied. For example, in Uganda, the ICC required that proof of identification be issued by a recognized public authority, while Pre-Trial Chamber I in the DRC held that it will accept many more forms of identification, which do not necessarily have to be issued by a public authority. Even when Judge Politi’s decision of 14 March 2008 took a more lenient approach, in the light of the VPRS report on the availability of accepted forms of identification, and restored some parity between the two Pre-Trial Chambers’ positions, some discrepancies remain.28 Furthermore, the Defense continues to lodge appeals for rejected applications based on this identification issue, claiming that leniency in the forms of identification affects the Defense’s ability to respond to applications effectively.29 Such appeals would appear to serve only to limit the access of victims to the Court, frustrating their applications on intricacies rather than merit. It was recognized from the first stages of drafting the Rome Statute that the number of victims would be large, and of course, the Court must demand some form of identification. It would be more adequate to have a definitive list of acceptable forms of identification, and to focus on issues such as the harm alleged; whether there is a causal link between the harm and crimes that are within the jurisdiction of the Court; and whether the victims’ personal interests would be affected by the proceedings. An Appeals Chamber decision would have been the ideal forum for streamlining approaches and giving a definitive account of what forms of identification suffice. However, despite the fact that applications which are deemed incomplete have to be re-lodged and reconsidered by the Court, Trial Chamber I refused leave to appeal on the grounds that it had not been sufficiently shown how this issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.30 Indirect Victims The beginning of this section mentioned that the drafters of the Rules of Procedure and Evidence neglected to specifically include or exclude indirect victims in the Rule 85 definition, although there had been some consensus on the incredibly inclusive nature of the UN Victims Declaration definition. Nonetheless, on 18 January 2008, Trial Chamber I declared, bearing in mind the definition contained in the Basic Principles and Guidelines on the Right 28

ICC-02/04-125, supra note 26, ¶6. The latest being, Defence’s request for leave to appeal the 3 July 2008 Pre-Trial Chamber I’s decision on the applications for participation, 9 July 2008, ICC-01/04511. 30 Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims’ Participation of 18 January 2008, 26 Feb. 2008, ICC-01/0401/06-1191, at ¶¶20-22. 29

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to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,31 that harm suffered need not be direct.32 In granting leave to appeal on this issue, Trial Chamber I recognized that “permitting victims who suffered indirect harm to participate may significantly affect the number of victims who are involved in the case,” significantly affecting “the fairness and expeditious conduct of the trial.”33 The Appeals Chamber however, was of the opinion that harm need not necessarily be direct, but it must be “personal.”34 The example given was of a child soldier’s parents, who could suffer emotional harm because of their child’s recruitment. 35 The Appeals Chamber agreed with the Prosecutor’s assertion that the original Trial Chamber decision did not allow for indirect victims to participate where they had not suffered personal harm.36 This specifically excludes, for example, the Diasporas of a “Situation” country abroad who feel sad for their fellow citizens who have suffered harm—in this example, harm is both indirect and impersonal. Even though questions of how participation will be feasible, given the number of victims still remain, and are even more relevant now that indirect victims can participate, the Appeals Chamber effectively limited the number of victims who can participate by reaffirming this “personal” criterion. The Appeals Chamber adjudged that there must be a causal link between the charges faced by the accused and the harm suffered by the victim. However, it is important to remember that the causal link restriction applies only to specific cases. With regard to participating in the general situations, the cause of the harm suffered can be any crime falling within the jurisdiction of the Court. Thus, as will be discussed in the next section, the number of victims remains largely untrammeled.

31 Adopted by the United Nations General Assembly, Resolution 60/147, 16 Dec. 2005. The definition in Principle 8 is essentially the same as that contained in the Victim’s Declaration, supra note 11, except that the harm suffered must be as a result of “acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law.” The ICC also examined the Basic Principles in Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006, 14 Dec. 2006, ICC-01/04-01/06-772, at ¶36. 32 Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Decision on Victims’ Participation, 18 Jan. 2008, ICC-01/04-01/06-1119, at ¶35. 33 ICC-01/04-01/06-1191, supra note 32, ¶27. 34 Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Judgement on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432, at ¶39. 35 Id, ¶32. 36 Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Prosecutor’s Response to Defence Document in Support of Appeal, 19 Mar. 2008, ICC-01/04-01/06-1233, at ¶9.

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We can conclude that not only has the ICC been somewhat ambiguous in the assessment of Rule 85 criteria, but that the application of those criteria— i.e., as separate to the conditions of procedural fairness enshrined in Article 68(3) and repeated in Rule 89 from Rule 85 (the two-pronged approach)— places the rights of victims before the rights of the accused. This goes against the intentions of the drafters of the Rome Statute and the Rules of Procedure and Evidences. This paper suggests, first, a one-step, streamlined approach to assessing applications; second, a definitive assessment on the identification needed to be considered a “natural person”; and third, a strict assessment of indirect victims in linking their personal harm suffered to the crimes of the accused. This third element necessitates a narrowing of participation to exclude “Situation victims,” as will be analyzed in the next section. II. AT WHAT STAGE OF THE PROCEEDINGS CAN PARTICIPATION TAKE PLACE? This section of this paper argues, first, that the wording of Article 68(3) does not allow for a right of victims to present “views and concerns” in the investigation stage of a Situation, before an accused is even identified, as the lex specialis provisions outline the limited scope of pre-trial participation, and the investigation ought not to be regarded as part of the “proceedings.” Second, this section demonstrates how the victim’s right to participate in the investigation stage of a situation, before an accused is even identified, jeopardizes the independence of the Prosecutor and infringes the accused’s rights by causing undue delay, in addition to denying the accused’s right to reply. Lex Specialis: Articles 15(3) and 19(3) As previously discussed, the ICC governs victim participation through two lex specialis provisions—Articles 15(3) and 19(3)—and one lex generalis provision—Article 68(3). It will be recalled that Article 15(3) allows victims to make representations to the Trial Chamber when the Prosecutor has sought to proceed with an investigation,37 while Article 19(3) allows victims “who have already communicated with the Court in relation to the case or their legal representatives”38 to submit observations on jurisdiction or admissibility. There is no role for victims in Article 18 proceedings, that is, preliminary rulings regarding admissibility. Holmes notes that this had been suggested in the negotiations to the Rome Statute but omitted in the end, as it was thought to be prejudicial to the expeditiousness of the trial, since victims could already make representations to the Pre-Trial Chamber under Article 15. 39 Given the very specific nature of participation under Article 15(3) and 19(3), little controversy has emerged surrounding the stage of participation to 37

In addition, Article 15(1) provides that victims may submit information to the Prosecutor so that the Prosecutor can initiate investigations propio motu, and shall be informed if the Prosecutor decides not to prosecute (Article 15(6)). 38 Rule 59, Rules of Procedure and Evidence. 39 John Holmes, Jurisdiction and Admissibility, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 321, 343 (Transnational Publishers, 2001).

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which these Articles apply. On the other hand, the vaguer Article 68(3) has raised many questions surrounding the timing of victim participation in relation to the Court proceedings. Article 68(3) says that when the personal interests of victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court, in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Lex Generalis: Article 68(3) Article 68(3) provides that victims can present their views and concerns at a stage of the proceedings deemed appropriate by the Court, in line with the procedural fairness and expediency of proceedings. Most disputed is the question of whether Article 68(3) allows for victim participation at the investigation stage of a Situation; this will be the primary focus of this section. Investigation of a Situation Stage The first decision on victim participation, which occurred on 17 January 2006, sexual violence victims were granted participation in the proceedings of the DRC, before an accused had even been identified. This sequence set off a fury of controversy as to when victim participation should be determined.40 Despite the Prosecutor’s objections, the Court has since upheld this sequencing in subsequent trials, such as Uganda41 and Darfur. 42 At the time of writing, 155 “Situation victims” had participatory standing: 135 in the DRC, 9 in the Uganda, and 11 in the Darfur. 43 The Prosecutor lodged a reply to the first applications for participation in the DRC, arguing that the intentions of the drafters were for Article 68(3) participation in the proceedings and that this could not encompass the investigation. 44 The Prosecutor’s interpretation would appear appropriate, given that Article 68 falls under Part 6 of the Statute, entitled “The Trial.”45 However, Pre-Trial Chamber I did not accept this line of argument, ruling instead that the term “proceedings” did not necessarily exclude the investigation stage.46 The Chamber also took note of cases from the European Court of Human Rights47 and the Inter-American Court of Human Rights48 40

ICC-01/04-101, supra note 15. Most recently, ICC-02/04-125, supra note 26. 42 Situation in Darfur, Decision on the Applications for Participation in the Proceedings of Applicants a/0011/06 to a/0015/06, a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07, 6 Dec 2007, ICC-02/05-111. 43 International Bar Association (IBA) Human Rights Institute Report, Balancing Rights: The International Criminal Court at a Procedural Crossroads, May 2008, Appendix 3. 44 Situation in the Democratic Republic of the Congo, Prosecution’s Reply on the Applications for Participation 01/04-1/dp to 01/04-6/dp, 15 Aug. 2006, ICC-01/04-84. 45 De Hemptinne and Rindi, supra note 20, at 343. 46 ICC-01/04-101, supra note 15, ¶38. 47 Id, ¶51, citing Berger v. France, 3 Dec. 2002, Application No. 48221/99, at ¶38; Perez v. France, 12 Feb. 2004, Application No. 47287/99, at ¶68. 41

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in deciding that participation would not infringe upon the independence of the Prosecutor. This is widely regarded as an erroneous interpretation since, although these cases acknowledge the existence of such a right in domestic legal systems, it cannot be transposed to the international level, owing to the increase in scale, particularly in terms of the sheer number of victims. Despite the obvious logistical difficulties which could arise as a result of the large potential number of applications and the threat to the integrity of the Prosecutor’s investigation, the Court quite summarily ruled that the participation of victims during the investigation of a Situation stage “does not per se jeopardize the appearance of integrity and objectivity of the investigation, nor is it inherently inconsistent with basic considerations of efficiency and security.”49 Undeniably, victims will have personal interests that will be “affected in general”50 in the investigation stage of proceedings; these can range from clarifying facts to seeing the indictment of “their” perpetrator.51 NGOs and victims’ rights groups have pointed to the utility of the victim to the Court at this stage in giving investigative leads and the like.52 However, these interests, and indeed the potential usefulness of “Situation victims,” must be balanced with the fairness, efficiency, and objectivity of proceedings. Although Pre-Trial Chamber I denied the Prosecutor’s request to file an interlocutory appeal on this first decision53 because there was no “concrete evidence”54 that victim participation at this stage would affect the fairness of the proceedings, the subsequent analysis explores the difficulties that can indeed ensue as a result of allowing participation at this stage. Analysis Participation at the Situation stage of the proceedings runs the risk of victims encroaching on the independence of the Prosecutor.55 As previously noted, Trial Chamber I recognized that one of the victims’ “personal interests” at the investigation stage is seeing that the person who caused them harm gets indicted. 56 If victims do indeed influence for whom arrest warrants are issued, it must be questioned how the Prosecutor can be said to be acting objectively.

48

Id, ¶53, citing Blake v. Guatemala, 24 Jan. 1998, Series C, No. 36. Id, ¶57. 50 Id, ¶63. 51 Id, ¶72. 52 Human Rights Watch, Justice in the Balance, Report to the Preparatory Commission of the International Criminal Court 28 (July 1999); Theo van Boven, supra note 9, at 77. 53 Situation in the Democratic Republic of Congo, Decision on the Prosecution’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, 31 Mar. 2006, ICC-01/04-135. 54 Id, ¶¶15-16. 55 William A. Schabas, An Introduction to the International Criminal Court, 3rd ed., 355 (Cambridge University Press, 2007). 56 ICC-01/04-101, supra note 15, ¶72. 49

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Secondly, even though it is not an absolute right, now that victims potentially have the right to introduce evidence57 and access the Prosecutor’s documents, 58 it would not be wildly hypothetical to suggest that such involvement could impair the confidentiality of information related to the investigation and redirect the case from the direction the Prosecutor had intended to present it. 59 The expediency and fairness of proceedings are also affected by participation of victims at an early stage in the proceedings. Judge Claude Jorda has recognized that in allowing participatory rights, the framers of the Rome Statute took the risk of “seriously compromising the expeditious conduct” of proceedings. 60 As previously mentioned, the process of assessing applications that has emerged as a result of participation in the investigation stage is a time-consuming, two-pronged one. Victims first have to indicate a general interest in the proceedings before an accused is even identified. At this point, judges do not yet need “to make a definite determination of the harm suffered by the victims, as this will be determined subsequently, where appropriate, by the Trial Chamber in the context of a case.”61 The sheer number of victims who will have such a general interest stands to place a serious strain on the Court’s time and resources. This will not only divert the interest of the Court from its primary task of bringing offenders to justice, but it will also render any sort of participation untenable. For example, on 14 July 2008, Prosecutor Luis Moreno-Ocampo told Pre-Trial Chamber I that 2.5 million people have been displaced and an estimated 300,000 killed as a result of the situation in Darfur. 62 If all those who have suffered harm were to have a general preliminary right to participate at the investigation stage, the Court would either spend the bulk of its time processing applications or only grant participatory status to select victims. While the latter option best serves expediency concerns, it could in turn lead to discontent amongst victims, and put into question whether justice can be given to victims—if it is to be served via unequal treatment. The Court has ruled that the appointment of an ad hoc Defense counsel will safeguard the rights of future accused persons.63 However, as SáCouto and Cleary note, the rights of this ad hoc counsel have been limited in succeeding rulings.64 For example, in Darfur, Pre-Trial Chamber I has ruled that ad hoc Defense counsel does not have the “procedural standing” to bring a chal-

57

ICC-01/04-01/06-1119, supra note 34, ¶108. Id, ¶111. 59 The issues of access to documents and evidentiary rights are discussed in more detail in Part 3 infra. 60 Claude Jorda and Jerome De Hemptinne, The Status and Role of the Victim, in Antonio Cassese, Paola Gaeta, and John Jones (eds.), The Rome Statute of the International Criminal Court 1387, 1414 (Oxford University Press, 2002). 61 ICC-01/04-101, supra note 15, ¶82. 62 UN Press Release, ICC Prosecutor seeks charges against Sudanese President for Darfur crimes, 14 July 2008, available at http://www.un.org/apps/news/. 63 ICC-01/04-101, supra note 15, ¶70. 64 SáCouto and Cleary, supra note 25, at 103. 58

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lenge to jurisdiction or admissibility at this stage.65 Thus, the danger arises that a near-limitless class of victims who have not had to prove personal interests or harm suffered are free to make observations and to even introduce evidence,66 without the future accused being fully represented. Even if the accused can eventually reply to the allegations made once he or she is identified and Defense counsel has been appointed, the risk remains that even the most eminently qualified judge might be biased against the accused, having heard the emotional accounts of the victims before the trial. 67 Lastly, it is submitted that participation in a Situation is not as beneficial to victims as participation in a specific case. As previously noted, victims can submit observations on jurisdiction or admissibility under Article 19(3) and representations under Article 15(3) without having been granted victim status by the Court.68 These two important procedural roles are probably amongst the most paramount of victims’ concerns before a trial starts. It seems that any additional rights that have been granted to victims of a Situation have been rather limited. When Pre-Trial Chamber I in the DRC Situation admitted the first six Situation victims’ applications over two years ago, the Court was extremely vague as to what form participation could take.69 Since then, these victims’ participation has been limited to two specific occurrences: a challenge by the victims’ representative on the Prosecution’s application for leave to appeal the January 2006 decision, 70 and an application—which was denied—for documents in relation to the Prosecutor’s decision to temporarily suspend its investigation relating to other potential charges against Mr. Lubanga Dyilo.71 In its excellent report on victim participation in the ICC, the War Crimes Research Office of Washington University notes that such limited participation resulting from such a complex and arduous application procedure may in fact have negative effects on the restorative justice element intended by the victim participation scheme.72 Victims may feel as though false hopes have been raised and they may become frustrated if the Prosecutor decides not to pro-

65

Situation in Darfur, Sudan, Décision relative aux conclusions aux fins d’exception d’incompétence et d’irrecevabilité, 22 Nov. 2006, ICC-02/05-34, ¶¶3-4 66 See Part 3 infra. 67 Jorda & De Hemptinne, supra note 63, at 1413; Mugambi Jouet, Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court, 26 St. Louis U. Pub. L. Rev. 249, 295 (2007). 68 Part 1, supra. 69 ICC-01/04-101, supra note 15, ¶75. 70 Situation in the Democratic Republic of the Congo, Observations of the Legal Representative of VPRS 1 to VPRS 6 following the Prosecution’s Application for Leave to Appeal Pre-Trial Chamber I’s Decision on the Applications for Participation in the Proceedings of VPRS 1 to VPRS 6, 27 Jan. 2006, ICC-01/04-105. 71 Situation in DRC, Decision on the requests of the Legal Representative for victims VPRS1 to VPRS 6 regarding “Prosecutor’s information on further investigation,” 26 Sept.2007 ICC-01/04-399. 72 WCRO Report, supra note 20, at 45.

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ceed with the arrest of “their” perpetrator, or if the investigation is ultimately dropped due to lack of evidence or other reasons. 73 More confusion has arisen on the fine line between Situation and case victims. For example, in a 2007 decision on victim participation in the DRC Situation, Judge Steiner declined to adjudge on the applications of twenty-five victims whose applications were also pending in the Lubanga case.74 In the Judge’s view, if their applications were successful for the case, these twentyfive victims would automatically also become “Situation victims.”75 In comparison, of the six victims who can participate in the case of Kony et al, only one has been granted participation status in the Uganda Situation.76 Recent opinions voiced by victims’ advocates seem to suggest that participation in the investigation of a Situation phase is inferior to participation in an actual case. In a recent interview with Sudanese victims’ lawyers, featured in the Victims’ Rights Working Group Bulletin, the lawyers said: “Now [that] there are some decisions which outline the difference between participation in the situation and participation in a case… Victims want to participate in cases.”77 Of course, victims can only participate in cases if there is a causal link between the harm they suffered and the charges faced by the accused. In recognition of this fact, Marianne Goetz, ICC Program Officer with the victims’ rights nongovernmental organization, REDRESS, has said that the participation of victims of the Darfur Situation “will be quite disappointing” because, “[w]hile victims of the situation will be vast, victims in actual cases will be very low.”78 Bearing in mind these comments, and in light of the other problems previously discussed, it seems that for the sake of procedural efficiency and fairness to all sides, participation under Article 68(3) should be limited only to cases and excluded from broader Situations. Of course, this does not include participation on the commencement of an investigation or on matters of juris73

De Hemptinne and Rindi, supra note 20, at 349, note that they would also effectively be left with no protection and no satisfaction if this were the case, which would reflect negatively on the entire ICC process. 74 Situation in the Democratic Republic of the Congo, Décision sur les demandes de participation à la procédure déposés dans le cadre de l’enquête en République démocratique du Congo par a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 a/0080/06 et a/0105/06 à a/0105/06 à a/0110/06, a/0188/06, a/0128/06 à a/0162/06, a/0199/06, a/0203/06, a/0209/06, a/0214/06, a/0220/06 à a/0222/06, a/0224/06, a/0227/06 a/0230/06, a/0234/06 à a/0236/06, a/0240/06, a/0225/06, a/0226/06, a/0231/06 à a/0233/06, a/0237/06 à a/0239/06 à a/0241/06 à a/0250/06, 24 Dec. 2007, ICC-01/04-423 75 Id, ¶142 76 Situation in Uganda, Prosecutor v. Kony et al, Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 10 Aug.2007, ICC-02/04-101, at 61. According to the WCRO report, supra note 31, at 41, it seems that PTC II considered that the harm of the other five did not fall beyond the scope of the case (at ¶82) 77 Sudan Victim Lawyers Recount Their Experiences With the ICC So Far, 9 VRWG Bulletin 7 (Summer/Autumn 2007), available at http://www.vrwg.org/Publications/. 78 Caroline Tosh, Sudan: Few Victims Likely to Participate in International Court Trial, Institute for War & Peace Reporting (London), 27 July 2007, available at http://iwpr.net/?p=acr&s=f&o=337401&apc_state=henh.

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diction or admissibility, but approval of the application is not necessary to participate under these lex specialis provisions. Limiting participation to a specific case would also resolve the problem of the two-pronged assessment test that has emerged. 79 If victims were to only participate in cases, the relevant Chambers would only have to decide once whether harm has been sustained as a result of a crime included in the charges against the accused, and whether the personal interests of the victim applicant are affected. The Chamber could then weigh up the modalities of participation with the rights of the accused and a fair and impartial trial. This all-inclusive decision would be of optimal interest to all parties, and much less time and resource consuming to the proceedings. The previous two sections have dealt largely with the assessment of applications for victim status, be it the criteria that the Court will use in granting victim status, or the participatory stage thereto. The final section looks more closely at the precise form participation may take when victim status has been granted. III. WHAT ARE THE MODALITIES OF PARTICIPATION? Article 68(3) of the Rome Statute is somewhat vague in allowing victims to present their “views and concerns” when their personal interests are affected, leaving largely to the discretion of the Court what form such presentation may take. There are, however, complementary Rules of Procedure and Evidence that give offer some guidance, namely Rules 89 to 93. Without defining the different possible forms of participation, Rule 89 states that the manner of participation, “which may include opening and closing statements,” will be specified by the relevant Chamber when deciding upon the application. This section examines three particularly worrisome modalities of participation that have emerged as a result of the broad discretion given to the Court: presentation of legal points, access to the Prosecutor’s documents, and the victim’s potential right to lead evidence and to challenge the admissibility or relevance of evidence. Such participation goes beyond the statutory limitations of “views and concerns,”80 interferes with prosecutorial independence, makes trials much less efficient, and leaves the victim participation process open to abuse. The presentation of evidence on the guilt or innocence of the accused breaches the fundamental criminal law principle of equality of arms, by making the accused face more than one accuser. The Presentation of Legal Points Under Rule 92(3) of the Rules of Procedure and Evidence, victims have a right to be informed when confirmation of the charges against the accused is to take place, pursuant to Article 61. This indicates that the Court should allow victims to participate at this stage, subject to them fulfilling the criteria in

79 80

Part 2, supra. RS, at Article 68(3).

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Article 68(3). Indeed, on 28 July 2006, Pre-Trial Chamber I granted three victims the right to participate at this stage in the Lubanga case. 81 As with all victim participation, the Chamber can limit participation at the confirmation hearing stage to what it deems appropriate. During the 22 September 2006 confirmation hearing, participation was limited to the making of opening and closing statements. 82 However, victims’ observations were limited to points of law, and not “views and concerns” as such,83 because of their anonymity and the Chamber’s feeling that to address points other than points of law would result in anonymous accusations by victims. 84 The PreTrial Chamber seems to have erred in this regard; the purpose of victims’ participation is to discuss their views and concerns, not to raise legal points. The Court therefore should not consider the content of victims’ opening or closing statements in determining the guilt or innocence of the accused. Rather, victim statements should serve the purpose of allowing victims to have their voice heard. Victim impact statements serve this purpose in several domestic jurisdictions, such as Ireland, Australia, and some American states. As De Beco points out, victims could discuss their feelings in abstracto, if the Pre-Trial Chamber is worried about the raising of anonymous accusations.85 Access to the Prosecutor’s Documents In the Lubanga case, Pre-Trial Chamber I ruled on 18 January 200886 that if victims could show a personal interest in gaining access to confidential filings, the Court would consider making provisions for such access, so long as it would not “breach other protective measures that need to remain in place.”87 The Prosecutor vigorously opposed this element of the decision in his application for leave to appeal.88 In addition to its clear break with recent tradition on the issue, 89 the Prosecutor had many other reasons for supporting 81

Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo and of the investigation in the Democratic of the Congo,, 28 July 2006, ICC01/04-01/06-228. 82 Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, 22 Sept. 2006, ICC-01/0401/06-462. 83 Noted with some dissatisfaction by Gauthier de Beco, The Confirmation of Charges before the International Criminal Court: Evaluation and First Application, 7 Int’l Crim. L. Rev. 469, 489 (2007). 84 ICC-01/04-01/06-462, supra note 84, ¶¶7–8. 85 Supra note 87, at 480. 86 ICC-01/04-01/06-1119, supra note 34. 87 Id, ¶106. 88 ICC-01/04-01/06-1136, supra note 21. 89 See ICC-01/04-01/06-462, supra note 84, at 6: Situation in the Democratic Republic of the Congo, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 13 May 2008, ICC-01/04-01/07-474, and Situation in Uganda, Decision on the Prosecution’s Application for Leave to Appeal the Decision

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his position. First, granting access to the Prosecutor’s documents, when considered in relation to victims’ potential right of leading and challenging of evidence—as will be discussed below—could seriously hinder the Prosecutor’s presentation of his case. Ultimately, victims who have seen certain documents could file evidence that the Prosecutor had decided not to use. This fact is worrisome when one considers the lack of disclosure obligations held by the victims. In terms of challenging evidence, it goes against the provisions of the Rome Statute. 90 Secondly, the Prosecutor pointed to the expediency concerns in providing victims with these documents—a number of which would have to be redacted. He also argued that the concept of “fairness” encompasses the Prosecution as well as the Defense, and this ruling was unfair to the Prosecutor insofar as he would be forced to share documents with a third party against its wishes and in the absence of any statutory obligation to do so. 91 Thirdly, it was submitted that “views and concerns” are not necessarily limited to the evidence presented. In fact, the very nature of autonomous participation is that views and concerns need not necessarily be linked to the evidence in a particular case. Victims can present their views and concerns on anything related to the proceedings, from relaying personal experiences to discontent related to the speed or efficiency of the trial. Even when their views and concerns do relate to evidence presented, the Prosecutor took issue with the interpretation of victims’ participation as necessitating the autonomous tendering of evidence. For example, victims could make a comment after its presentation in Court. It is not necessary for victims to have access to the Prosecutor’s material in order to present these views and concerns or to question witnesses.92 Finally, the Prosecutor raised his concern that individuals could infiltrate the process and gain access to the materials on false pretences. For example, victims in the DRC or Uganda could be bullied by the militia or rebel groups into attaining victim status and then forced to access and relay back sensitive information.93 Trial Chamber I, in its 23 February 2008 decision, declined leave to appeal on this issue. It was felt that, in spite of genuine expediency concerns, the Prosecution had failed to establish how the fairness of the trial would be affected, “given [that] the Trial Chamber is the final arbiter of admissibility.”94 Despite the Court’s decision, the Prosecutor’s concerns should be considered valid. The unprecedented decision 95 granting access to sensitive information is on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, 19 Dec. 2007, ICC-02/04-112, at ¶37. 90 Part 3, infra. 91 ICC-01/04-01/06-1136, supra note 21, ¶18. 92 Note that victims’ questioning of witnesses is limited and regulated by the provisions of Rule 91(3) of the Rules of Procedure and Evidence: the legal representative of the victim(s) must make an application to do so. 93 Id, ¶20. 94 ICC-01/04-01/06-1191, supra note 32, ¶49. 95 See, for example, David Donat-Cattin, Article 68, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 869 (Nomos Verlagsgesellschaft, 1999) (saying

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worrying as it not only stands to affect the expediency and efficiency of the trial, but could also lead to a manipulation of victims’ participation scheme. Furthermore, it adversely affects the independence of the Prosecutor, an issue that will be discussed in detail in below. Leading and Challenging the Admissibility and Relevance of Evidence On 11 July 12007, in a long-awaited decision on the appeals of the Prosecution and the Defense to the 18 January 2007 decision, the Appeals Chamber spectacularly held that the Trial Chamber had not erred in deciding that victims might potentially lead evidence pertaining to the guilt or innocence of the accused, or challenge the admissibility or relevance of evidence. 96 While the Appeals Chamber did point out that the right to introduce or challenge the admissibility of evidence lies primarily with the Prosecution and Defense, it considered that these provisions did not preclude victims from doing so if their personal interests were affected. 97 Analysis There are three specific problems with this latest development that warrant further discussion. First, it effectively grants victims the status of being party to the proceedings, which clearly was not the intention of the Statute. Second, it shifts the burden of proof away from being the sole responsibility of the Prosecutor. Third, it goes far beyond the meaning of “views and concerns” under Article 68(3) of the Rome Statute. Looking at the first of these problems, it is noted that Article 69(3) provides that “the parties shall submit evidence relevant to the case.”98 While there is no definition of “party” in the ICC Statute, it appears that, for the presentation of evidence, the phrase “one of the parties” is interchangeable with the that of the “Prosecutor or the accused.” For example, Article 65(c) (3) states that an assessment of a guilty plea shall be based upon, inter alia, “any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused.” Moreover, many scholars have agreed that a victim participant in the ICC “does not become a true party to the trial.”99 The Appeals Chamber, however, relied upon the second sentence of Article 69(3), which says that the Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth in granting victims a potential right to introduce evidence.100 As the that there are certain things victims are precluded from doing under the Rome Statute framework, including accessing the evidentiary record). 96 ICC-01/04-01/06-1432, supra note 36. 97 Id, ¶94. 98 Emphasis added. 99 Jorda & De Hemptinne, supra note 63, at 1404. See further, Bitti and Friman, supra note 24, at 457; Timm, supra note 12, at 299; Michele Caianiello and Giulio Illuminati, From the International Criminal Tribunal for the Former Yugoslavia to the International Criminal Court, 26 N. Carolina J. Int’l L. & Commercial Regulation 407, 453 (2001). 100 ICC-01/04-01/06-1432, supra note 36, ¶95.

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Rome Statute is an international treaty, the Appeals Chamber ought to have followed Article 31 of the Vienna Convention on the Law of Treaties101—that is, the general rule on treaty interpretation. According to Article 31, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Nothing within the ordinary meaning of Article 69(3) grants victims a right to introduce evidence. In terms of the context, the second sentence of Article 69(3) comes right after the first sentence, which states that the parties shall submit evidence. Thus, we can conclude that the sentence probably means, “The Court shall have the authority to request [from the parties] the submission of all evidence that it considers necessary for the determination of the truth.” Furthermore, the object and purpose of the Article was to clarify the rules on the submission of evidence; however, not once are victims mentioned in Article 69. Therefore, it cannot be deduced that the purpose of the second sentence of Article 69(3) was to allow them victims to present evidence at the request of the Court. Article 66(2) states that “The onus is on the Prosecutor to prove the guilt of the accused.” As the Defense pointed out in its appeal to the 18 January 2008 decision, authorizing victims to present evidence or to express their opinion on the evidence violates the principle of equality of arms, in that it means the accused is forced to face more than one accuser.102 Allowing victims to lead evidence or to comment on the relevance or admissibility of evidence can affect the Prosecution’s case as well. For example, victims could direct the focus of the trial into areas that the Prosecution did not wish to include for the purposes of establishing the guilt of the accused. Bearing in mind that, since the 18 January 2008 decision, victims can access the Prosecutor’s documents if they can show a “personal interest” in gaining access,103 their representatives could opt to introduce documents that the Prosecution had in its possession but decided against using in the trial for its own reasons. In its decision granting leave to appeal, the Trial Chamber did recognize that this element of the decision “may result in the Chamber considering evidence that otherwise would not be available.”104 Some might argue that the introduction of as much evidence as possible would be beneficial to the core purpose of the trial - that is, determining the guilt or innocence of the accused. This likely possibility, however, shows that victims’ rights could have the effect of usurping the professional judgment and discretion of the Prosecutor and, ultimately, risking the successful prosecution of the accused. Another worrying aspect of allowing victims to lead evidence is the fact that they have no disclosure obligations, unlike the Prosecutor, who under 101

Vienna Convention on the Law of Treaties, 1155 UNTS 331 (Vienna, 23 May

1969).

102

ICC-01/04-01/06-1135, supra note 31, ¶48; see also, Separate Opinion of Judge Pikis, in ICC-01/04-01/06-1432, supra note 36, ¶16: “Equality of arms is another element of a fair trial, which in the context of the Statute, putting the burden of proof on the Prosecutor, means that the defendant cannot be required to confront more than one accuser.” 103 Discussed above, “Access to the Prosecutor’s documents.” 104 ICC-01/04-01/06-1191, supra note 32, ¶42

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Rule 77 must allow the Defense to view any material intended to be used as evidence against the accused, subject to restrictions under Rules 81 and 82. Victims hold no such duty of disclosure under the Statute, presumably because their participation in this manner was unforeseen. As the Prosecution notes in paragraph 31 of its appeal, allowing victims who have no such disclosure obligations could have serious consequences, “both for proper trial management…and for the rights of the defense.”105 One such right of the Defense is “to challenge the evidence presented by the Prosecutor” at the confirmation of charges hearing.106 However, no such right exists for the Defense to challenge evidence lead by the victim, and although one would hope that the Court would in practice offer the Defense an opportunity to do so, this is not explicit from the 11 July Appeals Chamber decision. Bearing in mind that Article 68(3) allows for victims’ “views and concerns to be presented” where their personal interests are affected and in a manner which is not prejudicial to the rights of the accused or to a fair and impartial trial, it is hard to see how any of the modalities mentioned above, particularly the evidentiary rights, have developed. As Judge Pikis pointed out in his separate opinion to the Appeals Chamber’s 13 June 2007 decision, the presentation of views and concerns, “…is a highly qualified participation limited to the voicing of their views and concerns. Victims are not made parties to the proceedings nor can they proffer or advance anything other than their 'views and concerns.”107 The Oxford English Dictionary defines a “view” as “a way of regarding something; an attitude or opinion,” while a “concern” is defined as “worry; anxiety; a matter of interest or importance.”108 Thus, it seems that the most appropriate form of participation would allow victims to express their opinions, anxieties, and prerogatives. Indeed, the French and Spanish versions of the Statute use the words “preoccupations”109 and “opinions,”110 respectively. Judge Pikis, in his separate and partly dissenting opinion of 11 July 2008, offered further guidance on what such “views and concerns” might entail: “[T]he views and concerns of victims are] referable to the cause that legitimizes their participation, the cause that distinguishes them from other vic-

105 Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Document in Support of Appeal against Trial Chamber I’s 18 January 2008 Decision on Victims’ Participation, 10 March 2008, ICC-01/0401/06-1219, at ¶31 (noting that the presentation of evidence would cause serious delays, and reiterating the Defense’s rights). 106 RS, at Article 61(6)(c). 107 Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, 13 June 2007, ICC-01/04-01/06-925, Separate Opinion of Judge Georghios M. Pikis. 108 Oxford English Dictionary (Oxford University Press, 2008), available at http://www.askoxford.com/. 109 Statut de Rome de la Cour pénale internationale, A. 68(3). 110 Estatuto de Roma de la Corte Penal Internacional, A. 68(3).

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tims, namely their personal interests to the extent they are affected by the proceedings.”111 Rule 91(3), which provides that neither victims nor their representatives can question witnesses as of right (they must instead apply to the relevant Chamber to do so) further clarifies that issues of evidence pertaining to the guilt or innocence of the accused are excluded from victims’ participation. Moreover, as the Prosecutor pointed out in his appeal,112 an assessment of the drafting history of the Rome Statute shows that the issue of presentation of evidence was considered113 and later rejected.114 In spite of these seemingly unambiguous provisions in the Statute, which do not grant any right to victims to lead or challenge evidence and rest the burden of proof solely on the shoulders of the Prosecutor, the Appeals Chamber was of the opinion that “The fact that the onus lies on the Prosecutor cannot be read to exclude the statutory powers of the court, as it is the court that ‘must be convinced of the guilt of the accused beyond reasonable doubt.”115 In another sweeping statement, the Appeals Chamber felt that, though the Statute and Rules only provide for the presentation of “views and concerns,” “If victims were generally and under all circumstances precluded from tendering evidence relating to the guilt or innocence of the accused and from challenging the admissibility or relevance of evidence, their right to participate in the trial would potentially become ineffectual.”116 With the greatest of respect to the Appeals Chamber, this simply is not the case. As Judge Pikis pointed out in his Separate Opinion, The proof or disproof of the charges is a matter affecting the adversaries. The victims have no say in the matter. Their interest is that justice should be done, coinciding with the interest of the world at large that the criminal process should run its course according to law, according to the norms of a fair trial… It is not the victims’ concern, a matter directly related to the reception of evidence, to either prove or disprove the charges. 117

111

ICC-01/04-01/06-1432, supra note 36, Separate Opinion of Judge Georghios M. Pikis, ¶15. 112 ICC-01/04-01/06-1219, supra note 108, ¶37. 113 See, e.g., Article 43, Protection of [the Accused], Victims and Witnesses and their Participation in the Proceedings, Revised Abbreviated Compilation, A/AC.249/1997/WG.4/CRP.9, 14 Aug 1997, Article 43(8); Report of the InterSessional Meeting from 19 to 30 Jan. 1998 in Zutphen, The Netherlands, A/AC.249/1998/L.13. 4 Feb. 1998, Article 61[43](8); Report Of The Preparatory Committee On The Establishment Of An International Criminal Court, Addendum, A/CON F.183/2/ADD.1., 14 Apr. 1998, at Article 68(8). 114 See Proposal Submitted By Canada, A/CQNF.183/C.1/WGPM/L 58/Rev.l., 6 July 1998; Report Of the Working Group on Procedural Matters, A/CONF. 183/C. 1/WGPM/L.2/ADD.6., 11 July 1998, noting the deletion of the previous paragraph (8) of Article 68, which had allowed victims’ legal representatives to submit evidence. 115 ICC-01/04-01/06-1432, supra note 36, ¶95. 116 Id, ¶97. 117 Supra note 114, ¶19.

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The personal interests of the victims must necessarily be more than the general interest of the entire international community to see the perpetrators of international crimes brought to justice. Instead, a meaningful and less invasive way for victims to present their views and concerns—when their personal interests are affected—would be more beneficial for all sides than to allow victims to have access to a wide range of documents, introduce evidence, and comment on the admissibility or relevance of any given piece of evidence. The Appeals Chamber did attempt to make clear that strict conditions would attach to the introduction of evidence and that it was not introducing “an unfettered right.”118 In conclusion, the creation of any sort of right (“unfettered” or otherwise) regarding the access, presentation, or challenging of evidence runs contrary to the Rome Statute and will have serious implications for the fairness and efficiency of the trial. Instead, it is submitted that groups of victims should participate in the manner of opening and closing statements to be presented by their legal representative in proceedings, making periodic or additional statements during the trial upon application to the Chamber, and having their representatives question witnesses and experts when deemed necessary and appropriate under Rule 91. This would necessarily exclude the evidence-related participation that now subsists, and indeed the numerous issues with such participation. In response to the Appeals Chamber’s concerns that not permitting such rights could render participation ineffectual, the author must point out that one of the views or concerns potentially voiced by victims could be their worry that the evidence against the accused was not conclusive enough. Alternatively, victims could express the view that a particular incident that caused harm to them was not reflected in the evidence against the accused. Following such an observation, the Chamber might request evidence from the Prosecution or Defense under Article 69(3), as it would be perfectly entitled to do. Furthermore, there is absolutely no justification for victims pursuing points of law in their submissions, as the Court should not be using their “views and concerns” in determining the guilt or innocence of the accused, and, as discussed above, the meaning of the words “views” and “concerns” cannot encompass such an interpretation. IV. CONCLUSION At the start of this paper, several issues were raised regarding the feasibility of the victim participation scheme before the ICC. These included questions on how the potentially millions of applicants to the Court could be given a voice without overburdening the court, and, anticipating the necessary restriction, how the few participants were to be selected in a manner that is fair to all potential victims and that safeguards against disingenuous applications. It is acknowledged that no direct answer to these questions has been given. Indeed, ultimately, there is simply no way for all victims to participate in international criminal proceedings, as was recognized in the ad hoc Tribunals; drafters of the Rome Statute were somewhat naïve in hoping that leaving large judicial discretion in Article 68(3) would solve the logistical problem of deciding who can and cannot participate. 118

Supra note 36, ¶96.

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Victim participation has, however, been enshrined in the Statute, and the ICC has to work with what it has, so to speak, and find the balance alluded to in the title of this paper. The purpose of ICC proceedings, as with any criminal procedure, is to establish the guilt or innocence of defendants accused of crimes falling within its jurisdiction. This primary function must always come before any extraneous considerations—as must the mainstay of all criminal procedures: the right of the accused to a fair trial. In other words, if anyone in the procedure is to be treated “more equally” than other participants, it should be the accused and not the victims. Nevertheless, effective and meaningful participation of victims is not a complete impossibility. This paper focused on three main problems in the ICC’s “more equal” treatment of victims to date, but these approaches could be revised to make the participation process more workable. The first section was particularly critical of the “two-pronged” approach to assessing applications, whereby the Rule 85 criteria are adjudged first, and the other elements of Article 68(3) are examined at a later procedural stage. From here on in, the Court should adopt a more efficient and practical one-step assessment, which would avoid raising victims’ false hopes and causing undue delay to proceedings. Closely related to this point is the mainstay of the second section of this paper: that victim participation should only be allowed in specific cases and not in general Situations. The reasons for this thesis are manifold but principally relate to the fact that allowing victims in the early stages of a Situation denies the accused an effective right of reply, jeopardizes the integrity of the Prosecutor, and is procedurally inefficient. Lastly, as discussed in the final section of this paper, in order to respect the intentions of the drafters of the Rome Statute and the fundamental criminal law principle of “equality of arms,” participation must be limited. The three modalities of participation that were discussed remain unacceptable and go beyond the parameters of the “views and concerns” criteria: the presentation of points of law, the access to the Prosecutor’s documents, and, possibly most worrisome, the introduction of evidence pertaining to the guilt or innocence of the accused. It was suggested that victim participation in a case must be limited to opening and closing statements, periodic or additional statements during the trial upon application to the Chamber, and having their victims’ representatives question witnesses and experts when deemed necessary and appropriate under Rule 91. Drawing on Kofi Annan’s statement, quoted at the start of this paper,119 the International Criminal Court must be an instrument of justice and expediency. It must pride itself on being a Court that acts in a fair, impartial, and efficient manner. The ICC must use its formative years wisely and create a sustainable framework of victim participation that balances the interests of all parties and does not prejudice the rights of the accused or the guarantee of a fair and impartial trial. It is hoped that the coming years will see a more nuanced and consistent approach to victim participation emerge—one that restores a state of equilibrium to all parties.

119

Supra note 5.