B. Victims’ Participation

Unlike the ad hoc tribunals, the ICC establishes the right for victims to participate as independent parties in the international justice process. This is a groundbreaking development in international justice. Determining how best to realize the right of victims to participate in the ICC process is one of the major challenges the new court faces. Recent decisions by PTCs I and II have discussed the scope of victims’ rights to participate in proceedings and have clarified how the court will interpret relevant provisions of the Rome Statute and the Rules of Procedure. These decisions establish a distinction between participation in proceedings relating to a “situation” and participation in proceedings relating to a “case” before the court. Situations are “generally defined in terms of temporal, territorial and in some cases personal parameters, […], [they] entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such”10 A case is defined to include “specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects” and as entailing “proceedings that take place after the issuance of a warrant of arrest or a summons to appear.”11

1. Criteria for victims’ participation in a situation

The first applications for victims’ participation were received by PTC I on June 14, 2005. PTC I issued its “Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6”12 on January 17, 2006.

In making its decision, PTC I considered whether the Rome Statute, the Rules of Procedure and Evidence and the Regulations of the Court provide for victims’ participation during the investigation of a situation. PTC I found that the term “proceedings,” in article 68(3) of the Rome Statute, should be construed to include court proceedings that occur before the issuance of arrest warrants; it therefore found that article 68(3) is also applicable to the investigation stage of a situation.13

PTC I found thatthe “personal interests” of victims, as set forth in article 68(3), are affected at the situation stage, “since the participation of victims at this stage can serve to clarify the facts, to punish the perpetrators of crimes and to request reparations for the harm suffered.”14

PTC I also held that rule 85(a) of the Rules of Procedure and Evidence establishes four criteria that have to be met in order to obtain the status of victim: the victim must be a natural person; he or she must have suffered harm; the crime from which the harm ensued must fall within the jurisdiction of the court; and there must be a causal link between the crime and the harm suffered.15 The court concluded that it was not necessary to determine at this stage the precise nature of the causal link between the crime and the harm suffered nor the identity of the person(s) responsible for the crimes.16

At the time of this writing, and based on publicly available information, PTC I has granted six victims the right to participate in the DRC situation.17

2. Criteria for victims’ participation in a case

After Thomas Lubanga was transferred to the ICC on March 17, 2006, PTC I automatically reviewed the applications of the victims participating in the DRC situation and considered several new applicants for participation in the case against Lubanga.18 In its decisions on these applications, PTC I found that at the “case” stage, in addition to the four criteria established by rule 85, victim applicants must “demonstrate that there is a sufficient causal link between the harm they suffered and the crimes for which there are reasonable grounds to believe that Thomas Lubanga Dyilo is criminally responsible and for whose commission the Chamber issued an arrest warrant.”19

PTC I ruled that the causal link is demonstrated “once the victim, and if applicable, the immediate family or dependants of that victim, provide sufficient evidence to establish that that person has suffered harm directly linked to the crimes set out in the arrest warrant or that that person has suffered harm by intervening to assist the direct victims in the case or to prevent these victims from becoming victims as a result of these crimes being committed.”20

As of this writing, PTC I has granted the right to participate in the Lubanga case to four victims, referred to as a/0001/06, a/0002/06, a/0003/06 and a/0105/06.21

3. Modalities of victims’ participation

PTC I established different modalities of participation for victims participating in a situation and for victims participating in a case.

PTC I held that victims participating in a situation at the investigation stage may present their views and concerns to the chamber, file documents pertaining to the investigation, and request the Pre-Trial Chamber to order specific proceedings.22

Guidance as to how victims may participate in a case was provided by PTC I prior to the confirmation of charges hearing in the Lubanga case. PTC I noted the need to ensure that victims participate in a manner that is not prejudicial to or inconsistent with the rights of the defense.23 The chamber allowed the victims to remain anonymous in light of security concerns, but decided that this would also limit their ability to participate in the proceedings.24 The chamber indicated that it would review the modalities of victims’ participation if they decided to disclose their identities to the defense. Victims were able, through their legal representatives, to present observations at the beginning and end of the hearing, and to seek leave to intervene during public sessions. Victim intervention was restricted to the scope determined by the charges brought against Lubanga. Out of concern for the rights of the defense, in light of the anonymity of victims, the court held that victims would not have access to the entire file on the DRC situation and would not be able to add any point of fact or any evidence to the prosecution’s case file nor to question witnesses.25

4. Victims’ right to legal representation

In its decision with respect to several applications for participation in the Ugandan situation and in the Lord Resistance’s Army26 case at all stages of the proceedings, PTC II found that “applicant victims cannot claim to have an absolute and unconditional right to be provided with the assistance of a legal representative in respect of the phase preceding the Chamber’s decision on the merits of the [victim’s] application [to participate].”27

 



10 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf, para. 65.

11 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf, para. 65.

12 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf.

13 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf, para. 46.

14 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf, para. 63.

15 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf, para. 79.

16 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf, para. 94.

17 Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf.

18 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case the Prosecutor v. Thomas Lubanga Dyilo, June 29, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-172-tEnglish.pdf; see Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of the Congo, July 28, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-228-tEnglish.pdf; see also Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on applications for participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo, October 20, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-601_tEnglish.pdf.

19 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of the Congo, July 28, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-228-tEnglish.pdf, p.9.

20 Prosecutor v. Thomas Lubanga Dyilo, ICC, Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case the Prosecutor v. Thomas Lubanga Dyilo, June 29, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-172-tEnglish.pdf, p.8.

21 See ICC Newsletter, no. 10, November 2006, http://www.icc-cpi.int/library/about/newsletter/files/ICC-NL10-200611_En.pdf, p. 7.

22 Situation 01/04 in Democratic Republic of the Congo, ICC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-101_tEnglish-Corr.pdf, p. 42.

23 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, September 22, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-462_tEnglish.pdf, p. 4; .

24 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, September 22, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-462_tEnglish.pdf, pp. 7-8.

25 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, September 22, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-462_tEnglish.pdf, p. 8.

26 Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, ICC, Case No. ICC-02/04-01/05.

27 Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, Dominic Ongwen, ICC, Case No. ICC-02/04-01/05, Decision on legal representation, appointment of counsel for the defense, protective measures and time-limit for submission of observations of applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, February 1, 2007, http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-134_English.pdf, para. 11.