By Thomas Verfuss
A month ago the ICC appeals chamber denied victims the right to appeal the lower ICC judges’ refusal to allow the prosecutor to open an investigation into war crimes in Afghanistan. The majority of the appeals judges still has not given a written motivation for their decision. Dissenting judge Luz del Carmen Ibáñez Carranza of Peru, who wanted to give victims standing to appeal, but was in the minority, has given a long written explanation of her dissenting vote: the appeals chamber should have taken into account the victims’ human rights.
The majority followed the rather technical and formalistic approach of the Office of the Prosecutor, which had argued that at this stage of the proceedings, the victims are not a fully-fledged party with the right to appeal. Judge Ibáñez argues that her colleagues failed to not only look at the letter of the Rome Statute, the founding treaty of the ICC, but also take the freedom to interpret the text in the light of the ideals that inspired the founders of the system:
“[…] we, the Judges of this Court, must be aware that our interpretation and application of the Statute does not violate, but rather applies and interprets, the Statute pursuant to our obligation to be consistent with internationally recognised human rights. […]”
Judge Ibáñez also recalls an old principle of law: ubi jus ibi remedium = where there is a right, there must be a remedy against a violation of that right:
“ […] The Court’s inherent power would allow the Appeals Chamber, under the ubi jus ibi remedium principle, to give victims a remedy to fully enforce their rights to make representations” about the prosecution opening an investigation or not.
The judge from Latin America quotes the African Commission of Human and Peoples Rights as an authority to plead for the victims to have locus standi = standing, the right to appear as a party and make submissions:
“[…] In its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, the African Commission of Human and Peoples Rights (‘ACHPR’) has provided for the victims’ right to ‘locus standi’. The ACHPR coined the principle that ‘States must ensure, through adoption of national legislation, that in regard to human rights violations, which are matters of public concern, any individual, group of individuals or nongovernmental organization is entitled to bring an issue before judicial bodies for determination’. […] For the ACHPR, the right to an effective remedy must include ‘access to justice’, ‘reparation for the harm suffered’ and ‘access to the factual information concerning the violations’.”
The victims of torture “were first victimised by the crimes, re-victimised by the Impugned Decision, and then again by the decision denying their leave to appeal. The majority has decided to endorse, without fully explained reasons, a view that could revictimise the victims”, judge Ibáñez argues.
She hints her colleagues did not show the courage to interpret the Statute creatively to show respect for the rights and the situation of the victims: “The Judges of this Court can grant victims an avenue to appeal when the Statute has not expressly provided for it because of the Court’s inherent power to grant remedies for rights that have been violated. In doing so, the Court would not be creating any right but simply acknowledging the right of victims to make representations under article 15(3) of the Statute and their recognised rights as humans to have access to justice and prompt and effective remedies. Such rights adhere to victims in their condition as humans. They are subjects and not simply objects of protection.”
Judge Ibáñez concludes that the victims’ “standing to bring appeals directly before the Appeals Chamber is the only guarantee that the crimes that victimised them will not remain in impunity.”