1. Incorporating victims’ rights in the criminal process: perspectives from the prosecution of international crimes Gaelle Carayon, REDRESS August 2016

2. The REDRESS Trust Establishment 1992 by Keith Carmichael Mission Justice for Victims of Torture Accountability of Perpetrators Ensuring compliance with intl standards & securing remedies for victims Organisation Programme Areas

3. Overview

4. Earlier practive: Invisible victims Victims of international crimes had traditionally been left out of international criminal trials Victims’ views have often been rendered silent or made invisible when it comes to the prosecution of those responsible for violations. Their calls for justice have at times been disregarded in the name of reconciliation, peace and stability. Some prosecutions have occurred ‘on behalf of’ or ‘for the benefit’ of victims without close attention being paid to their actual views and concerns about the process. Cf: Nuremberg and Tokyo trials, International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR)

5. Progressive recognition of victims as right-bearers UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power(1985) Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (2005) Recognition that victims’ involvement is not only a ‘right’ but also indispensable if postconflict justice processes are to be restorative and capable of building the foundations for a strong transition through empowerment of those who were victimized during conflict

6. Basic Principles & Guidelines Duty to investigate and submit to prosecution crimes under international law Definition of a victims as :persons who individually or collectively suffered harm Victims should benefit from special consideration to avoid retraumatisation

7. Basic Principles & Guidelines (cont.) Access to effective judicial remedy Including developing procedures to allow collective procedures administrative procedures can also play an important role Prompt, effective and adequate reparation Reparation proportional to the gravity of the violation and the harm suffered Information about violations and reparation mechanisms

8. Rome Statute Past experiences arguably influenced drafting of Rome Statute. First international court to recognise victim participation. Role of victims’ rights advocates Importance of process

9. Justice is an experience, as much about process as it is about outcome. the process might provide significant part of the reparation, the outcome may just be symbolic; The process may constitute reparation; But without a process, specific benefits for victims lack the ability to heal harm done at a moral level (victims may continue to feel injustice)

10. Participation Article 68(3) of the Rome Statute 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 The Statute also envisages the possibility for victims to make representations under Article 15(3) when the Prosecutor seeks proprio motu authorisation to open an investigation.

11. Legal Representation In practice at ICC, most of participation done through a LRV. Victims’ right to chose counsel, with certain limitation (common legal representation). Legal aid Office of Public Counsel for Victims

12. Protection All organs of the Court must take appropriate measures to protect the privacy, dignity, physical and psychological well-being and the security of victims and witnesses, especially when the crimes involve sexual or gender violence, while fully respecting the rights of the accused.

13. Information For those participating, expectation that counsel will keep them informed. But also separate outreach program by the Court in situation countries. Use of media, radio to disseminate information; community outreach. Separate unit in charge of facilitating participation/reparation and providing information on process and procedure.

14. Reparation Art 75 Types of reparation Collective/individual Developments so far Trust Fund for Victims

15. Early criticisms and practice Risks of delays in proceedings, fear of numbers Contradition with prosecutorial strategy and discretion. Over time change of position from Prosecutor Balance with the rights of defence Capacity of the Court to process victims’ applications Cost of legal representation

16. Potential and positive practice Assisting the Court in Truth Finding victims have an interest in unveiling the truth of past crimes and are in a position to contribute to the Court’s truth- finding mandate by ‘(i) bring[ing] clarity about what indeed happened; and (ii) clos[ing] possible gaps between the factual findings resulting from the criminal proceedings and the actual truth.’ Prosecutor v. Katanga and Ngudjolo

17. Potential and positive practice (Cted) Unique perspective: One common misinterpretation is that victims’ interests are represented by the prosecution. In practice that is often not the case, as the interests of victims do not always coincide with those of the prosecution

18. Ongoing challenges Is the system actually meaningful to victims? See, e.g., Christine Van den Wyngaert What does meaningful mean? Berkeley Study on victim participation hurdles to exercise rights : access to information, severe trauma, stigmatisation in their communities, may not speak the language... (cf girls in Lubanga).

19. Limits to achieving full impact Application process – Under review. Participation: also under review Limited consultations with victims Influencing the scope of charges: impact on victims rights (Lubanga) and recent developments. Limited implementation of some rights (choice of counsel)

20. ICC framework and relevance to domestic law reform and victims rights ICC: Rome Statute crafted by States from both civil and common law tradition = Mixed/Hybrid approach Statute only sets general frame with a lot left to be decide through jurisprudence ICC only complementary = importance of domestic systems in places to prosecute ICC crimes and consideration around replicating victims rights despite the various legal traditions. (Uganda, Kenya).

21. (continued) Increasing efforts to try international crimes through regional courts and/or domestic proceedings Considerations of how victims rights can be reflected/implemented through these mechanisms: Challenges to access remote courts (cf Germany FDLR case) Concerns about protection how to give meaningful voice to victims? EU DIrective

22. What participation meant to victims No generalisation possible, victims have different views however Some reported relief at being able to tell their stories, being listened to Waited for that opportunity to tell story for the first time. (Habre) Importance of regular interaction/contact (Berkley ICC study)

23. Role of civil society and victims’ groups VRWG What is the group? Leading up to RS adoption Early years of the Court Ongoing Monitoring and advocacy Other initiatives UVF Uganda Other

24. Conclusion No perfect model yet but important to be creative, listen to victims and involve them in the design of responses to the harm they suffered, be they judicial or administrative. Has to start somewhere, easier to advocate for proper implementation of rights once these have been clearly recognised. Need for resources and decision to make it a priority but resources constraints should not be overplayed.