Transcript Irish Centre for Human Rights

Irish Centre for Human Rights
Summer Course on the International Criminal
Court
2012
Victim Participation
John McManus
Counsel and Team Leader
Crimes Against Humanity and War Crimes Section
DOJ Canada
Theme

WHAT IN GOD’S NAME ARE WE DOING?!?
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Theme

or
Is ICL simply an enforcement arm of
human rights and humanitarian law,
adopting incarceration of violators as a
new remedy available to victims? Or is it
a system of criminal justice that respects
the philosophical preconditions for the
punishment and stigmatization of
individuals? Robinson, Identity Crisis, at 932
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Victim Participation
Introduction
“… to me it also does not seem to be just
to beg the judge, nor to be acquitted by
begging, but rather to teach and to
persuade. For the judge is not seated to
give away the just things as a
gratification, but to judge them. For he
has not sworn to gratify whoever seems
favorable to him, but to give judgment
according to the laws” Apology of Socrates
Plato
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Victim Participation
Introduction
“The Tribunal was to achieve justice
through criminal proceedings. The
purpose of such proceedings was multifold: the primary objective was to convict
– and punish – those individually
responsible for their crimes. The suffering
and loss of the victims of such crimes
would thereby be internationally
recognised and acknowledged.” Prosecutor v.
Momir Nikolic (IT-02-60/1-S) (2 Dec. 2003) par. 59
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

Human Rights Committee for the
International Covenant on Civil and
Political Rights, General Comment No. 32
on Article 14: Right to equality before
courts and tribunals and to a fair trial,
CCPR/C/GC/32. 23 August 2007
at http://daccess-ddsny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G0743771.
pdf?OpenElement
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Victim Participation
Prosecutor’s Duties
Article 54 (Duties and powers of the Prosecutor)
1.
The prosecutor shall:
a)
In order to establish the truth, extend the
investigation to cover all facts and evidence
relevant to an assessment of whether there is
criminal responsibility under this Statute, and,
in doing so, investigate incriminating and
exonerating circumstances equally.
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Victim Participation
The Statute Generally
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Trust Fund for Victims (Article 79 and Rule
98)
Victims and Witnesses Unit (Art 63 (6);
Rules 16 – 19; Court Regs (CReg 41) and
Registry Regs (RRegs 54 – 118)
Office of Public Counsel for Victims (Rule
16(1)(b) & (c), CReg 81 and RReg 114117
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Victim Participation
Victim and Witness Units
Ad hoc Tribunal and SCSL - Victims and Witnesses
Sections are neutral bodies which provide:
 Recommendations for protective measures for
victims and witnesses (ICTY Statute Art. 22)
 Counselling and support services, in particular
for victims of sexual offences;
 Advice for investigators who interview victims
and witnesses
 Information services for witnesses re conduct of
trials and role of witnesses in trials
 Assistance in relocation of witnesses
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Victim Participation
Victims and Witnesses Unit
Article 43 (The Registry)
6 The Registrar shall set up a Victims and
Witnesses Unit within the Registry. This Unit
shall provide, in consultation with the Office of
the Prosecutor, protective measures and security
arrangements, counselling and other appropriate
assistance for witnesses, victims who appear
before the Court, and others who are at risk on
account of testimony given by such witnesses.
The Unit shall include staff with expertise in
trauma, including trauma related to crimes of
sexual violence
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Victim Participation
Victims and Witnesses Unit
78. Whilst there is no doubt as to the continuing instability in parts of the
Democratic Republic of Congo, the risks to the witnesses in question are
not uniform and instead depend on a range of factors that require detailed
and careful assessment, applying appropriate criteria. The Unit has taken
this approach: it has identified [REDACTED]
criteria; it assesses the level of any threat,
the likelihood of harm and the overall risk
to the particular applicant; and it then
considers each application on its individual
merits, on a fact sensitive rather than a
mechanical or formulistic basis. It is clear
from the detailed consideration of the
disputed applications in this decision that the Unit is
approaching and discharging its considerable
duties with skill and care. Lubanga decision on Disclosure Issues, Responsibilities for
Protective Measures and other Procedural Matters, ICC-01/04-01/06-1311-Anx2 08-05-2008
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Victim Participation
Identifying Victims
Rule 85 (Definition of victims)
For the purposes of the Statute and the Rules of Procedure
and Evidence:
(a) ‘Victims’ means natural persons who have suffered
harm as a result of the commission of any crime within
the jurisdiction of the Court;
(b) Victims may include organizations or institutions that
have sustained direct harm to any of their property
which is dedicated to religion, education, art or science
or charitable purposes, and to their historic monuments,
hospitals and other places and objects for humanitarian
purposes.
(see Rules Section III, Rules 85 – 99)
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Victim Participation
Identifying Victims
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-
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Natural person or organization or institution
Suffered harm (determined on a case by case
basis, single instance of harm is sufficient, direct
or indirect for individuals)
From a crime within the jurisdiction of the Court
(think definitions of crimes, after entry into force
of statute etc)
And there was a causal link between the crime
and the harm (essentially, a link between the
victim and the evidence which the court will be
considering)
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Victim Participation
Identifying Victims
Par 92: The Rome Statute framework does not provide a
definition of the concept of harm under Rule 85 … .
However, in accordance with Principle 8 of the Basic
Principles, a victim may suffer, either individually or
collectively, from harm in a variety of different ways
such as physical or mental injury, emotional suffering,
economic loss or substantial impairment of his or her
fundamental rights. This principle provides appropriate
guidelines. Situation in the DRC, P. v. Thomas Lubanga Dyilo,
ICC-01/04-01/06, 18 January 2008,
Par 38: harm has to be personal but not necessarily direct.
Judgment on the appeal, ICC-01/04-01/06-1432 11-07-2008
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Victim Participation
Protection Generally
Article 68 (protection of Victims and Witnesses)
1 The Court shall take appropriate measures to protect
the safety, physical and psychological well-being, dignity
and privacy of victims and witnesses. In so doing, the
Court shall have regard to all relevant factors, including
age, gender as defined in article 7, paragraph 3, and
health, and the nature of the crime, in particular, but not
limited to, where the crime involves sexual or gender
violence or violence against children. The Prosecutor
shall take such measures particularly during the
investigation and prosecution of such crimes. These
measures shall not be prejudicial to or inconsistent
with the rights of the accused and a fair and
impartial trial.
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Victim Participation
Protection Generally
Article 54
1.
The Prosecutor Shall:…
b) Take appropriate measures to ensure the
effective investigation and prosecution of
crimes within the jurisdiction of the Court, and in
doing so, respect the interests and personal
circumstances of victims and witnesses, including age,
gender … and health, and take into account the nature
of the crime, in particular where it involves sexual
violence, gender violence or violence against children;
and,
c) Fully respect the rights of persons arising under this
Statute.
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Victim Participation
Protection pre-trial
Article 68
5 Where the disclosure of evidence or information
pursuant to this Statute may lead to the grave
endangerment of the security of a witness or his
or her family, the Prosecutor may, for the
purposes of any proceedings conducted prior to
the commencement of the trial, withhold such
evidence or information and instead submit a
summary thereof. Such measures shall be
exercised in a manner which is not prejudicial to
or inconsistent with the rights of the accused
and a fair and impartial trial.
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Victim Participation
Protections during Trial
Article 64 (Functions and Powers of the Trial
Chamber)
2 The Trial Chamber shall ensure that a trial
is fair and expeditious and is conducted
with full respect for the rights of the
accused and due regard for the protection
of victims and witnesses.
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Victim Participation
Protection During Hearings
Article 68
 2) provides for in camera hearings to
protect a victim, witness or accused,
particularly in the case of sexual offences
or when a child is providing evidence.
 4) empowers the Victims and Witnesses
unit to advise the Court and Prosecutor on
protective measures
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Victim Participation
Rights of Victims
Article 68
3 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.
Such views and concerns may be presented by the legal
representatives of the victims where the Court
considers it appropriate, in accordance with the Rules
of Procedure and Evidence.
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Victim Participation
Procedure
Article 15(3) Victims may make
representations to the Pre-Trial Chamber
at the point where the Prosecutor submits
a request for authorization of an
investigation
Art 19(3): Victims may submit observations
to the Court on an issue of jurisdiction or
admissibility
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Victim Participation
Rights of Victims
On January 17, 2006, the Pre-Trial
Chamber decided that victims have the
right to participate in the proceedings at
the investigation stage pursuant to the
provisions of article 68(3) of the Rome
Statute Situation in the Democratic Republic of the Congo
Decision on the Applications for Participation in the Proceedings of
VPRS 1, VPRS 2 … (ICC-01/04-101-tEN-Corr 22-03-2006)
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Victim Participation
Rights of Victims
Par 55. Participation pursuant to article 68(3) …
is confined to proceedings before the Court, and
aims to afford victims an opportunity to voice
their views and concerns on matters affecting
their personal interests. This does not equate
them … to parties to the proceedings before a
Chamber, restricting their participation to issues
arising therein touching upon their personal
interests, and then at stages and in a manner
not inconsistent with the rights of the accused
and a fair and impartial trial.
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Victim Participation
Rights of Victims
Par 57. … It is for the Pre-Trial Chamber to
determine how best to rule upon applications for
participation, in compliance with the relevant
provisions of the Court’s texts. The Pre-Trial
Chamber must do so bearing in mind that
participatory rights can only be granted under
article 68(3) … once the requirements of that
provision have been fulfilled. Situation in Darfur,
Judgment on victim participation in the investigation stage of the
proceedings…; ICC-02/05-177 02-02-2009
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Victim Participation
Rights of Victims

3. The right to lead evidence pertaining to the
guilt or innocence of the accused and to
challenge the admissibility or relevance of
evidence lies primarily with the parties, namely,
the Prosecutor and the Defence. However, the
Appeals Chamber does not consider these
provisions to preclude the possibility for victims
to lead evidence pertaining to the guilt or
innocence of the accused and to challenge the
admissibility or relevance of evidence during the
trial proceedings. P v. Lubanga Judgment on the appeals of The
Prosecutor and The Defence against Trial Chamber I's Decision on Victims'
Participation of 18 January 2008, ICC-01/04-01/06-1432 11-07-2008
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Victim Participation
Lubanga
iii) Participation by victims at trial will first and
foremost take place by way of the procedure
established in Rule 89(1) of the Rules.
iv) Only those who suffered harm as a result of the
crimes charged may be considered victims in the
case.
v) “[P]ursuant to Article 68(3) of the Statute,
victims will first have to demonstrate that their
personal interests are affected by the trial …”
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Victim Participation
Lubanga
vi) In accordance with Rule 131(2) of the Rules, victims have the right
to consult the record of the proceedings, including the index … In
principle, victims have the right to access and receive notification of
all public filings and those confidential filings which concern them
(as identified by the parties) …
vii) Victims may request the Chamber to use its broad powers to call all
the material it considers relevant for the determination of the truth,
in order that the evidence identified by victims concerning the guilt
or innocence of the accused is introduced (to the extent
appropriate). Victims may tender evidence, examine witnesses and
challenge the admissibility or relevance of evidence during the trial
so long as: (i) they submit a discrete application; (ii) notice is given
to the parties; (iii) the personal interests of one or more victims are
affected by the evidence; (iv) there is compliance with their
“disclosure obligations and [any] protection orders”; (v) the
Chamber determines this course is appropriate and (vi) there is
consistency with the rights of the accused and a fair trial.
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Victim Participation
Lubanga
viii) Victims have the right to participate in public hearings
and to file written submissions, and they may be
permitted to participate in closed or ex parte hearings or
to file confidential or ex parte submissions, depending on
the circumstances
ix) Victims’ views and concerns may be presented by a
common legal representative
x) Victims may apply to the Chamber for leave to call
evidence relating to reparations during the trial
xi) Anonymous victims may participate in the trial.
P v. Lubanga, Judgment pursuant to Article 74 of the Statute, ICC-01/0401/06-2842 14-03-2012 par 14
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Victim Participation
Reparations
Article 75 (Reparations to victims)
1 The Court shall establish principles relating to
reparations to, or in respect of, victims,
including restitution, compensation and
rehabilitation. On this basis, in its decision the
Court may, either upon request or on its own
motion in exceptional circumstances, determine
the scope and extent of any damage, loss and
injury to, or in respect of, victims and will state
the principles on which it is acting.
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Victim Participation
Reparations
Article 75
2 The Court may make an order directly
against a convicted person specifying
appropriate reparations to, or in respect
of, victims, including restitution,
compensation and rehabilitation. Where
appropriate, the Court may order that the
award for reparations be made through
the Trust Fund provided for in article 79.
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Victim Participation
Reparations
Article 75
3 Before making an order under this article,
the Court may invite and shall take
account of representations from or on
behalf of the convicted person, victims,
other interested persons or interested
States.
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Victim Participation
Reparations
Article 75
4. In exercising its power under this article,
the Court may, after a person is convicted
of a crime within the jurisdiction of the
Court, determine whether, in order to give
effect to an order which it may make
under this article, it is necessary to seek
measures under article 93, paragraph 1.
(protection of victims and witnesses by States)
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Victim Participation
Miscellaneous
Article 79: establishment of a trust fund for
the benefit of victims and their families,
paid into through fines, etc
Article 82(4): right of counsel for victims to
appeal an order for reparations
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Victim Participation
Nice Conclusion

The ICC has made significant advances in protecting and
recognizing the rights and interests of the victims of the
world's worst crimes. The Rome Statute is sensitive to
issues that relate to the role of victims as witnesses and
as individuals who have experienced extremely traumatic
events. In this way, the Rome Statute strengthens the
position of the victim under international law and
provides victims with much-needed opportunities for
empowerment and agency. This represents a crucial step
forward for victims of heinous crimes all over the world,
who have historically been under-represented, if not
forgotten by judicial systems.
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Irish Centre for Human Rights
Summer Course on the International Criminal
Court 2012
Victim Participation
John McManus
Counsel and Team Leader
Crimes Against Humanity and War Crimes Section
DOJ Canada