By: Allyson Reynolds L’17
Victims’ participation in proceedings before the International Criminal Court (ICC) is a relatively recent innovation in international criminal law. Though some civil law systems have maintained long-standing mechanisms allowing for victim involvement, victims lacked an autonomous role in international tribunals prior to 1998, only appearing in court to bolster the prosecution’s case at trial.
In July 1998, however, state parties adopted the Rome Statute, which established the ICC and formally recognized the following rights of victims: the right to participate in proceedings, the right to protection and support, the right to legal representation, and the right to obtain reparations. The inclusion of these provisions granted survivors of mass atrocities, for the first time in history, a voice in the administration of justice.
By creating two separate regimes for victims’ participation and reparations within the Court, the drafters of the Rome Statute envisioned victim “participants” as more than recipients of compensation for the harms they have suffered —to have them participate in the judicial process could allow them to experience justice and, in turn, lay the groundwork for reconciliation. This attempted balance between retributive and restorative functions holds the promise of potentially strengthening transitional justice efforts in situation countries, but in order to effectively do so, the ICC must address the numerous legal and practical challenges that threaten to reduce meaningful participation to mere symbolism.
One significant obstacle involves the limitations associated with retaining Court-appointed legal representation through the Office of Public Counsel for the Victims (OPCV). To participate in proceedings, individuals must fill out an application that is reviewed by both judges and Registry staff. Once accepted, the victims are separated into groups based on factors such as geography and crime suffered. They can then either select their own lawyers or allow the Court to appoint to them a common legal representative. The latter scenario occurs most frequently since most victims are financially unable to retain their own counsel.
However, due to the constraint on resources within the OPCV, cases with large quantities of victims receive roughly the same number of legal representatives as cases with much fewer victims. For instance, the 146 persons granted victim status in the Lubanga trial were separated into three groups for legal representation, yet over 4,107 victims participated in the Ongwen proceedings and were separated into only two groups.
Incorporating victims’ views and experiences into the trial makes the proceedings more meaningful to impacted communities. However, when victims with wide-ranging injuries and interests are haphazardly grouped together, the Court runs the risk of stifling their voices and, in turn, diluting the impact of their involvement.
Roadblocks to victims’ participation also exist within the judicial chambers. Victims, through their legal representatives, can participate in a number of ways that extend beyond providing witness testimony: they may present opening and closing statements, question witnesses, and make submissions on legal and factual subjects. As Article 68(3)—the core provision on victims’ rights—states, “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… ” The broad statutory language of Article 68, however, leaves many aspects of victims’ participation to judicial discretion and consequently creates ample room for inconsistent application.
Another shortcoming of the current victims’ participation system is its long and complex application procedure, made more cumbersome by the fact that many applicants are illiterate and lack official proof of identity.
From the processing end, the steady increase in the number of victim applicants has created a significant burden on Court resources, slowing down proceedings and increasing costs on an institution already constrained by limited funding and a growing caseload. The Court would benefit from a more simplified application process that would alleviate this administrative burden while simultaneously improving accessibility for victims of some of the most serious war crimes and crimes against humanity.
Despite the various challenges and ambiguities surrounding victims’ participation in the ICC, the Rome Statute’s recognition of victims as participants—and not just witnesses—suggests a more comprehensive understanding of what justice requires. A meaningful participation framework can potentially help rebuild ravaged communities by achieving justice through both punitive and restorative means. By addressing the procedural and substantive issues impeding effective application, the ICC can strengthen its legitimacy and promote confidence in the international criminal rule of law.
The Global Justice Fellowship (GJF) helps support JD students interested in international public interest internships during summer break. The program is designed to immerse students in the law and legal culture of another part of the world and to work on the most pressing global issues facing the world today.
This piece originally appears in the 2018 Global Affairs Review.
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