During a recent High-Level Rome Statute anniversary event organised by the Netherlands Ministry of Foreign Affairs, REDRESS legal advisor Lorraine Smith van Lin spoke about victim participation at the ICC after 20 years of the Rome Statute
When the International Tribunals for the former Yugoslavia and Rwanda were established to deal with the gross violations of human rights and humanitarian law that had taken place, victims were not invited as independent participants to the international justice table. They were only allowed to participate as invited guests of the Prosecutor. With the advent of the Rome Statute establishing the International Criminal Court (ICC or the Court), victims were finally given a place at the table. The Rome Statute has afforded victims the opportunity, once their personal interests are affected, to participate in proceedings and to share their views and concerns. Victims also have the right under Article 15 of the Statute to make representations to the Pre-Trial Chamber concerning the Prosecutor’s request for authorisation to begin an investigation. Importantly, the ICC provides for victims to obtain reparations for the harms suffered. The reparations provisions and the establishment of an independent Trust Fund for Victims are part of a comprehensive suite of provisions, which reflect the unique role which victims enjoy as rights holders within the Rome Statute system.
Today as we reflect, we are mindful of the fact that although hundreds of thousands of victims have suffered harm at the hands of those entrusted to protect them including security forces and leaders who have utilised power structures to keep them marginalised, to date only a small percentage of that number have engaged with the ICC.
In 2010, when the international community paused to take stock of the Court’s achievements during the ICC’s Review Conference in Kampala, Uganda, the then Registrar noted that 2,648 victims had submitted applications for participation and only 770 had been authorised to participate in proceedings. Today, over 25,000 have applied and more than 15,000 have been accepted. In its Proposed Budget for 2019, the ICC indicates that it expects that more than 7,500 individuals will apply for participation as victims in the various ongoing judicial proceedings. The growth is encouraging as it points to the unwavering belief by victims that the ICC can actually make a difference in their situation.
The benefits of victim participation are numerous. In 2013, a high-level panel organised by REDRESS and Amnesty International reviewed the system of victim participation at the ICC and concluded that allowing victims to participate meaningfully in the ICC’s proceedings can, independently of any reparation outcomes, empower them and contribute to their healing. The Panel also recognised that “participation can strengthen the work of the ICC by establishing a strong connection between the Court and those most directly affected by the crimes it is investigating and prosecuting. Victims can provide important factual and cultural context regarding the crimes and their impact, which can also contribute to establishing the truth, as well as a historical record of events. Effective realisation of victims’ rights may also help ensure lasting support for the ICC, act as a deterrent against future violence and inspire more victims and affected communities to demand justice, truth and reparation at the national level.”
However, as often happens with dinners, it may be difficult to plan and to anticipate the needs and peculiarities of all guests, particularly if more arrive than was initially anticipated. Finding the middle ground between victims’ expectations and the limited resources of the Court has not been easy and the process has had to constantly evolve. In addition, the Court has had to identify modalities of participation that ensure effective and meaningful participation without compromising the rights of the defence and without reducing the participatory rights to mere symbolism. While there has been significant evolution in relation to the scope of victims’ participatory rights within the last decade, there are several areas that will continue to require detailed consideration.
Victims’ right to participate must be meaningful and effective
Participation by victims necessarily raises two important issues: access and modalities. The Court’s distance from victims requires it to develop a system to facilitate their engagement with the Court.
Ensuring effective and meaningful participation is never an easy task but to be successful, it must include a clear and accessible application process; an effective system of legal representation and comprehensive outreach programmes. The system must be able to deal effectively with all victims falling within the mandate of the Court, regardless of the number or location of victims who may be affected by particular proceedings. The Court should also be able to accommodate the cultural factors and particular sensitivities at play in local contexts. Thus, the recognition that victims in Palestine and Georgia have different needs and expectations from victims in certain parts of Africa is critical to effectively managing the system.
In reality, the system of participation is likely to have meaning for victims only if they understand the process, including its limitations; they are treated at all times with humanity and respect for their dignity and human rights; appropriate measures are taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families; they are able to follow the proceedings substantively; they feel properly consulted and represented by their legal representative; and they can see how their views are presented and actively considered by the Court.
Sustained outreach to and engagement with victims and victim communities is crucial
The participatory rights of victims raise important questions about the timing, consistency and sustainability of the ICC’s engagement with victims. Outreach to victims and their communities is key to ensuring that victims can access the ICC and enjoy their rights. Worryingly, despite more locally based field offices in some countries under investigation, the Court has still not yet adopted a consistent approach to reaching out to victims and keeping their communities informed.
Consistent outreach activities require strategic thinking and planning around difficult issues such as: the timing of the Court’s engagement with victims (how early in the process should the Court engage?); the duration of the engagement (for how long should victims be kept informed about specific developments in relation to a case or situation particularly in protracted situations where there is no arrest?); and, how much should be invested in the engagement given that sustained outreach can be costly.
The important decision of the Pre-Trial Chamber in the situation in Palestine recognising the fundamental importance of outreach and public information for victims of a situation, and not just victims involved in a case, is a step in the right direction. The judges have ordered the Registry to establish a system of public information and outreach activities among the affected communities and particularly the victims of the situation in Palestine. The Chamber has directed the Registry to establish a continuous system of interaction between the Court and victims, residing within or outside of Palestine, for as long as the situation in Palestine is assigned to a Pre-Trial Chamber. The question is what will that look like realistically? Is this sustainable and will it be replicated in other situations?
Ensure prompt, appropriate and adequate reparations
Lastly, the Court must ensure prompt, appropriate and adequate reparations. Three cases are currently at the reparations phase: Thomas Lubanga and Germain Katanga from the DemocraticRepublic of Congo and Ahmad al-Faqi al-Mahdi from the situation in Mali. The Court has awarded individual reparations in the Katanga and Al Mahdi cases, symbolic reparations in the Lubanga and Al Mahdi cases and symbolic reparations to victims in all three. However, the process of implementation is still in its very early stages and is moving slowly. While the three cases have significantly consolidated the ICC’s case law on reparations, extensive delays have negatively impacted the reparations process for victims. Significant time has been devoted to interpreting the legal texts that govern reparations and clarifying misunderstandings concerning the scope of respective roles. For a woman dying from HIV/Aids contracted during the war in the Central African Republic (CAR), procedural delays are not simply inconvenient, they are potentially a matter of life and death.
No doubt victims’ expectations must be managed. There are real limitations to the number of victims who can and will benefit from ICC reparations. Reparation under the Rome Statute is based upon the conviction of accused persons for crimes charged by the Prosecutor. Simply put: no conviction, no reparations. Victims may also be excluded from receiving reparations if charges against the accused person are narrow, exclude certain types of conduct, such as sexual and gender-based violence, or focus on individuals from one side of a complex conflict.
Furthermore, the conviction of an accused does not mean that he is able to pay. The reality is that most ICC defendants are found to be indigent, thus the burden falls on the ICC’s Trust Fund for Victims to fill the gap. The Trust Fund was set up by the States Parties that govern the ICC to implement reparations orders and to provide assistance to victims who may not be entitled to reparations but have suffered harm for crimes within the Court’s jurisdiction.
Under their assistance mandate, the Trust Fund for Victims has to date launched programmes in Uganda and the DRC, which have offered some hope for victims. It has also announced, following the acquittal of former Congolese Vice-President Jean-Pierre Bemba, plans to commence its previously delayed assistance programmes in the CAR — welcome news to the over 5000 victims who have otherwise been denied reparations because of the acquittal. Assistance programmes are also set to start in Cote d’Ivoire, Georgia and Kenya. However, the reach of these programmes is limited.
The Trust Fund depends on voluntary donations to carry out its functions and despite significant donations from mostly European states like Sweden, The Netherlands, Finland and others, it only has a fraction of what it needs to do its work. The Trust Fund aspires to raise €40 million in voluntary contributions and private donations by 2021, to implement and complement the payment of reparations orders and to expand the implementation of assistance programmes in as many situations as possible before the Court. The Trust Fund must diversify its funding sources since the current dependence on voluntary donations is unsustainable. The Committee on Budget and Finance — a subsidiary body of the Assembly of States Parties of the ICC that advises on financial matters — has urged the Trust Fund to diversify its funding sources and develop its fundraising capacity. Raising funds from public as well as private sources must become one of the Trust Fund’s priorities.
Ultimately, the success of the ICC reparations system depends on a more holistic look at reparations within the broader context of complementarity. The Trial Chamber in the Katanga case noted that ‘an order for reparations does not […] relieve States Parties of the responsibility to award reparations to victims pursuant to other treaties or domestic legislation.’ Thus, irrespective of the ICC’s approach to reparations, States have a general obligation to provide redress for the harm suffered by victims within their countries and must complement the ICC’s efforts in this regard. Repairing the harm suffered by thousands of victims and communities is a joint effort. Successful national reparations programmes could significantly enhance the success of the ICC reparations system, ensuring that victims that are beyond the ICC’s reach are nevertheless able to benefit.
This is crucial because the Trust Fund will not be able to stay in any country forever. Government agencies and local authorities must engage early and pick up where the Trust Fund leaves off. The Trust Fund is already taking this approach in Uganda, engaging directly with the Health and Local Government ministries with a view to ensuring continuity of the services that it started under the assistance mandate.
The next 20 years
What of the next 20 years? No doubt the coming decades will present numerous challenges for the ICC in dealing with victims while offering significant opportunities. As the Court broadens its reach by conducting investigations in n countries outside of Africa including Georgia and Afghanistan, it will need to ensure that lessons learnt from its experience with African victims are applied in these contexts, while being mindful of the ethnic and cultural differences. There are no cookie cutter victims and the ICC will need to ensure that it responds appropriately to the diversity of needs and contexts.
The ICC is no longer a baby. Thus, the next 20 years should see a movement away from extensive procedural processes and more emphasis on action. Victims have waited long enough for the ICC to work out procedures. It is time for the Court to ensure consistency in its jurisprudence and practice to provide certainty for victims in the way the Court interacts with them. The ICC must lean in and listen to victims, to their wishes and concerns. It is time for the ICC to move beyond procedural debates and concretely realise the rights that victims have been granted under the Rome Statute.
Editor’s note: Lorraine Smith van Lin is a legal adviser at REDRESS with responsibility for the ICC and post-conflict justice. REDRESS is an international human rights organisation that works to seek justice and reparations for survivors of torture and other international crimes. REDRESS is the facilitator of the Victims Rights Working Group (VRWG), a network of over 300 civil society groups and experts that advocated for key victims’ provisions to be incorporated into the Rome Statute. The Group continues to advocate for respect for victims’ rights and to ensure that victims’ needs and concerns are met throughout the ICC’s judicial process.