What are the benefits and difficulties of victim participation at the International Criminal Court (ICC)?
Victim participation can be one of the major contributors to the effectiveness, credibility, and fairness of the ICC; and this is a major imperative in relation to Africa from where the vast majority of ICC cases have come from. The victim participation system at the ICC is governed by Article 68(3) of the Rome Statute, which states: “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…” Given the vagueness of this Article, it has been left to the jurisprudence of the Court to determine just how victims can participate in proceedings. However, the ICC’s decisions on participation have attracted some controversy. In the Lubanga case, for example, the Pre-Trial Chamber found that Article 68(3) applies to both ‘situations’ and ‘cases’, meaning that victims would be allowed to participate during the investigation phase before a case is opened against an accused. Such an interpretation creates significant tension between the rights of the accused and meaningful participation, which might explain why that decision was overturned by the Appeals Chamber.
Currently, the ICC’s jurisprudence allows victims to participate in a trial in the following ways:
- Making opening and closing statements,
- Consulting the record of proceedings,
- Receiving notification of all public filings and confidential filings that affect their personal interests, and
- Examining evidence if the Chamber feels it will help in determining the truth.
The legal representative for victims (LRV) can also attend and participate in proceedings, as well as question witnesses, experts, and the accused. While ‘victims’ were initially defined as persons that have suffered from any crime within the jurisdiction of the Court, the Appeals Chamber has narrowed that decision to include only those persons who have suffered directly or indirectly from the charges against the accused.
What are the benefits and difficulties of victim participation in the Court’s proceedings?
Victim participation offers several potential benefits to legal proceedings, not to mention the victims themselves. Participation can promote individual healing and rehabilitation by providing victims with a sense of agency, empowerment, and closure. In other words, by allowing a victim to participate in the proceedings, abstract justice can take on a more personal dimension, permitting victims to ‘experience’ justice. Greater participation also recognizes the victims’ suffering, and thus can constitute reparation in the form of satisfaction. Moreover, it can lay the foundation for reconciliation in affected communities.
Finally, it has also been found that participation serves a learning purpose. Mostly through exchanges with their legal representatives, victims learn about the rule of law, their rights, and the Court’s mandate. Empowered with such information, victims are more likely to claim their rights in the future.
Participation benefits the actual proceedings in multiple ways as well. First, victim participation can contribute to providing factual and cultural information that can help the ICC establish the truth. In this way, victims provide invaluable assistance to the Chamber. Victim participation also helps gather social support for the ICC in the geographical area of the investigation. When the victims feel involved in the justice process and their participation is meaningful, they develop a sense of ownership vis-à-vis the Court and its quest for truth and justice. All of this contributes to the greater impact of ICC proceedings at the local level.
In the context of local-level impact, the Court also has the power to hold its proceedings, or a portion of its proceedings, locally – termed in situ proceedings. Most recently, Trial Chamber VI recommended that the ICC open its trial against Bosco Ntaganda locally in the Democratic Republic of Congo. In its recommendation, the Trial Chamber said that in situ proceedings bring trials closer to the victims and affected communities, which allow for greater participation. In situ proceedings enable affected communities to follow the trial, understand the importance of justice, and promote accountability and healing. Ultimately, holding some of its proceedings locally could breathe life into the ICC because it has the ability to portray the ICC as an institution that is sympathetic to the plight of victims and ready to move outside its comfort zone in exercising its mandate.
It goes without saying that there are many challenges to effective and meaningful victim participation in the ICC’s proceedings. Many of these challenges are not legal, but rather practical and logistical in nature.
One major challenge is how to inform victims about the proceedings and their possible participation when many victims live in inaccessible and insecure locations. Moreover, victims need not only be informed, but also assisted through the participation application procedure, yet many of them are illiterate and have no official proof of identity. Requiring the Defense, the Prosecution, and the Judges to scrutinize thousands of individual victim application forms can result in slowing down the proceedings, which conflicts with the accused’s right to a speedy trial and increases institutional costs.
Lastly, the Court’s flirtation with in situ proceedings has downsides as well, including increased costs, the possibility of intimidation against victims, and the possible politicization of the cases. Further, it is important to consult with at least a representative sample of the victims themselves to determine their opinions on whether to hold proceedings in situ. In both the Kenyatta and Ruto & Sang cases, for example, the victims consulted were opposed – by a large majority – to the holding of proceedings either in Kenya or in nearby Arusha, Tanzania.
Overcoming these difficulties needs to start with in-depth studies on the impact of victim participation so that processes and practices can be adequately adjusted in order to ensure that victim participation can be meaningful to all involved. Additionally, where society is divided along ethnic lines like it is in Kenya, there is a need to create platforms for victims to share experiences and understand the sufferings of others and the benefits of an international justice mechanism, without forgetting the rights of all victims to reparations. And, we need to encourage substantive, constructive debates on justice for victims of atrocity crimes and their right to reparations in situation countries.
Further possible solutions to overcome the difficulties of victim participation include developing practices to engage high numbers of victims throughout the proceedings, ensuring that victims are at the center of all representation practices through regular consultations, and guaranteeing that victims and those who represent them are consulted in all judicial and institutional initiatives that might affect the interest of victims.
Finally, the ICC, civil society and other interested parties must continue monitoring and learning from victim participation procedures in order to implement truly effective and meaningful participation measures in its proceedings.
This piece is part of HU’s ongoing guest series on Africa and the International Criminal Court. Follow the discussion at https://humanityunited.org/icc_series/.