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

2 Theme WHAT IN GOD’S NAME ARE WE DOING?!? WHAT IN GOD’S NAME ARE WE DOING?!?

3 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 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

4 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

5 Victim Participation Introduction “The Tribunal was to achieve justice through criminal proceedings. The purpose of such proceedings was multi- fold: 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

6 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/ August ny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G pdf?OpenElement at ny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G pdf?OpenElement

7 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.

8 Victim Participation The Statute Generally Trust Fund for Victims (Article 79 and Rule 98) 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) 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 Office of Public Counsel for Victims (Rule 16(1)(b) & (c), CReg 81 and RReg

9 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) Recommendations for protective measures for victims and witnesses (ICTY Statute Art. 22) Counselling and support services, in particular for victims of sexual offences; Counselling and support services, in particular for victims of sexual offences; Advice for investigators who interview victims and witnesses Advice for investigators who interview victims and witnesses Information services for witnesses re conduct of trials and role of witnesses in trials Information services for witnesses re conduct of trials and role of witnesses in trials Assistance in relocation of witnesses Assistance in relocation of witnesses

10 Victim Participation Victims and Witnesses Unit Article 43 (The Registry) 6The 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

11 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 Lubanga decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-01/ Anx duties with skill and care. Lubanga decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-01/ Anx

12 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)

13 Victim Participation Identifying Victims Natural person or organization or institution 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)

14 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, Par 38: harm has to be personal but not necessarily direct. Judgment on the appeal, ICC-01/04-01/

15 Victim Participation Protection Generally Article 68 (protection of Victims and Witnesses) 1The 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.

16 Victim Participation Protection Generally Article 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.

17 Victim Participation Protection pre-trial Article 68 5Where 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.

18 Victim Participation Protections during Trial Article 64 (Functions and Powers of the Trial Chamber) 2The 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.

19 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. 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 4) empowers the Victims and Witnesses unit to advise the Court and Prosecutor on protective measures

20 Victim Participation Rights of Victims Article 68 3Where 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.

21 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

22 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 … () 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/ tEN-Corr )

23 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.

24 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…; 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/

25 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/ 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/

26 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 …”

27 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.

28 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-01/04- 01/ par 14

29 Victim Participation Reparations Article 75 ( Reparations to victims) 1The 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.

30 Victim Participation Reparations Article 75 2The 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.

31 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.

32 Victim Participation Reparations Article 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)

33 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

34 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. 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.

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