By Paolina Massidda in The Hague
“I feel that my voice should be heard throughout the world because it is not going to help only me, but the whole clan, the whole Acholi tribe.”
These words, spoken by a victim who was abducted by Lord’s Resistance Army (LRA) rebels in Uganda and forced to become a child soldier, and who participated in the trial against Dominic Ongwen, a senior LRA leader, illustrate the importance of victims’ participation at the International Criminal Court (ICC).
The ICC was created to hold perpetrators of mass crimes accountable to their victims. Speaking at the 1998 Rome Conference, then United Nations Secretary-General Kofi Annan declared that the new court’s “overriding interests must be that of the victims and the international community as a whole”.
Victims have for a long time been missing from the history of international criminal justice. They only had the role of witnesses before the Nuremberg and Tokyo tribunals, and those created decades later by the United Nations Security Council for the crimes committed in the former Yugoslavia and in Rwanda.
How can we explain that the very procedures that were set up to punish the most horrible crimes involving thousands or even millions of victims were also designed to exclude the most affected? Is it a problem of legal culture? Is it fear of what victims have to say or their possible criticism of the process? Is it fear of the influence they might have on the procedures? Or is the explanation to be found in the very nature of the crimes that are often committed by powerful individuals?
The Rome Statute recognises that justice cannot be achieved without the involvement of whose who suffered most because of the crimes it was set up to deal with and places justice for victims at the centre of the ICC’s mandate. Article 53 requires the Prosecutor to take into account “the interests of victims” when deciding whether to initiate an investigation. Likewise, Article 54 directs the Prosecutor to “respect the interests and personal circumstances of victims” during investigation.
Victims are finally given a voice. They are able to participate at every stage of the proceedings when their personal interests are affected and their participation would not be prejudicial to a fair and impartial trial and contrary to the rights of the defendant.
The participation of victims in ICC proceedings is certainly one of the main distinctions of the Rome Statute, which changed their role from that of mere witnesses – constituting the majority of the incriminatory or exculpatory evidence presented in the proceedings – to one of autonomous actors. Now victims do not merely support the standpoint of either the prosecution or the defence; they can now present their own “views and concerns” in an independent manner.
The ICC’s efforts to encourage victims’ participation and emphasise their interests are fundamental to its effectiveness and legitimacy. The court depends on the willingness of victims to provide testimony to effectively prosecute perpetrators and secure convictions. If victims do not feel that the court is sufficiently concerned about their interests and needs, many will choose not to participate.
Victims’ participation also improves the effectiveness of the court’s preventive function. When perpetrators of mass atrocities are forced to face their victims in court and listen to their testimony, it sends a powerful message against impunity. Finally, victims’ participation is essential to the court’s legitimacy because the ICC exists in large part to provide redress to victims.
While victims’ involvement is a turning point in the history of international criminal justice, it is also time for reflection on how effective their participation really is as we celebrate the 20th anniversary of the entry into force of the Rome Statute.
As a lawyer who has represented victims in ICC proceedings for almost 20 years, I have observed several perspectives. Listed below are the six most prominent.
First is the fact that the principle of the participation of victims in international criminal proceedings is no longer in dispute. What is remaining is its effective implementation.
Then there is the criticism concerning the role of victims in the proceedings. Defence teams regularly argue that the participation of victims ought to be limited to prevent them from turning into a “second prosecutor”, which would contravene the right of the defendant to a fair and impartial trial. But this argument is erroneous because the role of victims is clearly distinct from that of the Prosecutor. If their interests converge frequently (in particular concerning truth-seeking as well as the prosecution of the suspects/accused), their views and strategies often differ on many substantive and procedural issues.
There is also the status of victims in the court’s proceedings and the distinction made by judges between “parties” and “participants”– a differentiation which has no legal basis in the Rome Statute and the Rules of Procedure and Evidence. It is not really useful and in many instances only causes confusion. Indeed, it serves little purpose to classify victims as “participants” as opposed to “parties” – the latter category taken here to mean the prosecution and the defence – since the essential legal problem is not the qualification given to victims, but the procedural rights granted to them. It is perfectly possible to envisage parties to the proceedings who do not have the same procedural rights. What is important is the rights the statute and the rules afford to the different parties.
The fourth perspective relates to ambiguity concerning the procedural rights granted to victims, which the chambers of the court decide on a case-by-case basis, sometimes in a very limited way (as was the case in the first years of the ICC). The latest case law of pre-trial chambers on victims’ procedural rights at the stage of confirmation of charges, first adopted in the Ongwen case, gives victims a better stance. Moreover, it aligns itself with the case law of trial chambers, generally more generous in this regard. It is time, however, to harmonise the procedural rights of victims at different stages of the proceedings in an equitable manner for all cases. There is still a need to integrate victims more fully into the proceedings. One way is to accept in a more systematic manner the questions asked by victims’ lawyers (including on the liability of the accused), as long as they do not duplicate the ones posed by the prosecution. It is important to understand that victims have a different perspective and strategy from the Prosecutor’s, and that they represent distinct interests, therefore their contribution is essential in reaching the truth.
The question of how to strengthen victims’ procedural rights, especially in the early stages of the proceedings, is also important. The involvement of victims during preliminary examinations and in the process of opening an investigation is crucial, not only because they can provide valuable information to the Prosecutor but also as it offers them a chance to try to influence the determination of the temporal and geographical scope of an investigation. It would be important for victims to be able to complain about lengthy preliminary examinations. Victims should also be able to voice their opinion about the Prosecutor’s choices, namely those relating to the opening of an investigation, the persons to be prosecuted, and the charges against them. These choices should integrate the interests of victims and the need to pursue cases that are sufficiently representative of the victimisation that took place.
Another important aspect is the possibility of appealing decisions that impact their personal interests. This is only provided for in relation to reparation orders. It is difficult to justify why victims cannot appeal a decision that affects them, for example denying authorisation to open an investigation or a decision by the Prosecutor not to open an investigation, or a decision not to grant them the status to participate in the proceedings.
Indeed, victims often have similar but distinct interests from the prosecution, hence the importance of their participation as autonomous actors with an “independent voice and role”. Not recognising these interests is likely to result in irreparable prejudice to the victims awaiting justice. Not only would they have waited for years for the opening of an investigation into the crimes they have suffered and possibly the prosecution of the alleged perpetrators, but their reasonable expectation to seek and obtain justice would be lost, with no realistic alternative forum for redress available to them.
It would be contrary to the spirit of the Rome Statute not to recognise that in exceptional circumstances, victims have a clear interest in moving justice forward, not only to uphold their right to truth and justice, but also to preserve the court’s authority in the pursuit of its core objective to fight impunity. The recognition of victims’ standing to appeal in specific circumstances would be in line with the evolving practice before the court and other international forums, which points towards increased recognition of victims’ prerogatives in the context of international criminal proceedings.
The sixth point concerns the fact that the rights granted to victims are very much dependant on the perspectives and interpretation proposed by their lawyers in their submissions to the relevant chambers. This makes for a rich developing system, but it is also a factor of fragility. Indeed, the first proceedings before the court demonstrated the complex nature of the legal framework of the cases and led to the conclusion that the effective participation of victims mainly depends on chambers’ interpretation of the relevant provisions of the legal texts. Furthermore, the questions of the aim of the participation of victims in proceedings before the ICC and the modalities which would render such participation effective are, to a certain extent, still not fully addressed.
Victims expect a careful, independent, fair, transparent, effective, and watchful justice system which is at the same time mindful of the rights of all participants in the proceedings; a system which is protective and restorative, and also able to establish the truth about the crimes that have been committed.
Victims have a multitude of reasons for claiming this right. The right to the truth seems to be one of the components of the right to justice. In this regard, the main interest of victims in the establishment of the facts and the identification of the perpetrators is in itself the essence of the right to the truth generally recognised for the benefit of those who have suffered serious violations of human rights. In the process of implementing this right through criminal proceedings, victims have a key interest in their outcome. This ought to bring clarity in relation to what really happened and fill the gaps which might persist between the procedural findings and the truth itself.
Victims wish to contribute to the search and establishment of the truth. This process entails speaking out, sharing about the events that happened to them, recognition of the harm suffered, as well as the crimes which generated the harm.
The right to reparations is also one of the essential components of the right to justice. Indeed, the process of participation has a cathartic and healthy value at the individual level, and is restorative at the family, social, and community level. If the choice of victims to participate in the proceedings is first and foremost an individual step, allowing each of them, mostly through their counsel, to convey part of their experiences and knowledge of the events, sometimes it becomes a collective step, getting together communities, neighbours, and families.
Finally, it is also a quest for victims to advance the facts so that reconciliation can be achieved through the punishment of perpetrators, that justice is done, and the hope that their courage will set an example to prevent the commission of crimes “of concern to the international community”.
Paolina Massidda heads the independent Office of the Public Counsel for Victims (OPCV). The views expressed are the author’s and do not necessarily reflect those of the ICC.