<<previous  |  index  |  next>>

VII. The Role of Victims in ICC Proceedings

A. Overview

At the International Criminal Court, victims have the opportunity to express their own interests in proceedings beyond giving testimony as witnesses for the parties. Under the Rome Statute, victims who have satisfied the criteria to be considered participants can present their “views and concerns” in proceedings, provided that their participation is consistent with the rights of defendants.⁶⁰⁹ The participation regime is related but distinct from the reparations procedure for victims (discussed in more detail in part VII.E below). This underscores that victims’ participation in proceedings to bring perpetrators to justice is valuable in its own right and not just for the purpose of enabling victims to claim reparations.

The inclusion of victims as participants represents a positive shift from the International Criminal Tribunals for the former Yugoslavia and Rwanda, where the role of a victim is confined to that of witness. By engaging victims in a more proactive role in proceedings, the ICC has the potential to provide a “link” between proceedings in The Hague and members of affected communities on the ground and, thus, to make the court’s proceedings more relevant to them. The formal recognition of victims as participants can cultivate their sense of investment in ICC proceedings, provided that their role is realized in a meaningful way.

That is not to suggest that including victims as participants in proceedings is an easy task. The provision in the Rome Statute allowing for victims’ participation reflects the influence of civil law criminal systems, which generally allow victims to play an active and central role in prosecutions. However, the ICC’s legal structure is a hybrid of common and civil law criminal justice systems, which means that the role of victims and the rights afforded to them in ICC proceedings are more modest. Indeed, unlike in many civil law jurisdictions, victims are not parties in ICC proceedings.⁶¹⁰ Further, the hybrid nature of the court’s legal structure means that there is no precedent for the manner in which participation can and should be realized. There are a number of ambiguities in the text of the ICC’s legal instruments, which means that the Chambers have had to develop many of the fundamental principles—such as who is eligible to participate and the modalities of doing so—from scratch. The court’s resulting jurisprudence is complicated and contentious, particularly among the prosecution and the defense.

In addition to the significant legal challenges, the court faces practical difficulties in implementing victims’ participation. To ensure that the underlying purpose of the victims’ participation regime—giving victims a voice in criminal proceedings—is effectively realized, it must be inclusive in practice. This presents challenges in terms of managing participation since, as anticipated by the drafters of the Rome Statute, the nature of the crimes in the ICC’s jurisdiction means that there may eventually be hundreds, and possibly thousands, of victims in a particular case (although this has not yet happened). Further, in light of the potentially numerous victims, the court must navigate the tension between making their participation meaningful while at the same time safeguarding the defendant’s rights to a fair and expeditious trial.

To facilitate his or her access to the court and its proceedings, a victim can choose to have a legal representative.⁶¹¹ While individual representation is possible, the court can ask victims or particular groups of victims “to choose a common legal representative or representatives” to ensure the effectiveness of proceedings.⁶¹² For victims who have applied to be participants, the court can make such a request when deciding on their applications.⁶¹³ If the victims are unable to make a selection, the court can ask the Registry to do so⁶¹⁴ or can nominate the representative itself when it is required in the “interests of justice” (with assistance from the Registry).⁶¹⁵ Both the court and the Registry have to take measures to avoid conflicts of interest between victims.⁶¹⁶ “A victim or group of victims who lack the necessary means to pay for a common legal representative” may receive financial assistance from the Registry.⁶¹⁷

The ICC’s institutional structure reflects its commitment to facilitating victims’ rights in proceedings. The Registry is in charge of operationalizing this crucial function. There are two main offices aimed at supporting the realization of victims’ rights: the Victims Participation and Reparations Section (VPRS) and the Office of Public Counsel for Victims.⁶¹⁸ The VPRS plays a pivotal role in fulfilling the Registry’s obligation to “bridge” the gap between victims and the court by administering the application process for victims to participate in proceedings. The VPRS also assists victims in organizing their legal representation before the court,⁶¹⁹ which includes referring victims to the list of counsel in order to make a selection.⁶²⁰ In addition, the VPRS is responsible for fulfilling the Registry’s obligations to facilitate the participation of victims, such as notifying victim participants of the court’s decisions that may have an impact on their interests and taking gender-sensitive measures to facilitate the participation of victims of sexual violence at all stages of the proceedings.⁶²¹

The Office of Public Counsel for Victims is an independent office that operates under the Registry for administrative purposes only.⁶²² Its main task is to provide support and assistance to victims and their legal representatives, which includes legal research and advice and appearing before the court in relation to specific issues.⁶²³ This support can extend to unrepresented applicants for victims’ participation.⁶²⁴ In addition, the court can in certain circumstances appoint a member of the OPCV to act as the legal representative for a victim or victims.⁶²⁵ The respective roles of the VPRS and the OPCV in the victim’s participation regime are outlined in more detail below.

This section provides a brief overview of the complex system of victims’ participation currently in operation at the ICC. We have also outlined the opportunities under the Rome Statute for victims to submit observations in an ad hoc manner in proceedings even if they have not been afforded the status of “victim participant.”

In addition, Human Rights Watch has several concerns regarding the meaningful implementation of victims’ rights in practice. For example, in the Democratic Republic of Congo, Uganda, and Chad, an inadequate outreach strategy to date has left many victims unaware of the possibility of participation and, of those who are aware of victims’ participation, many are ill-informed about its operation in practice. Further, the intermediaries (such as representatives of local nongovernmental organizations) used by the court to convey to victims information about the application process need more assistance from the court—both in terms of financial assistance and better training—to effectively operationalize the complex participation regime within affected communities. These concerns and our recommendations to address some of them are outlined in more detail below.

B. The legal regime of victims’ participation

To be a participant in proceedings, an individual must first satisfy the legal requirements to be considered a “victim.” In particular, the individual must show the following: 1) he or she is a natural person or is a representative of an eligible organization; 2) he or she suffered harm; 3) the underlying crime that resulted in this harm must fall within the jurisdiction of the court; and 4) the harm results from the commission of this crime.⁶²⁶

According to the chamber, harm will be considered as “resulting from” the alleged incident when the spatial and temporal circumstances of the harm and the occurrence of the incident seem to overlap, or when they are at least compatible and not clearly inconsistent.⁶²⁷ One instance of harm is sufficient to meet this threshold, and circumstantial evidence and other “indirect proof” may be acceptable.⁶²⁸ The court will not assess the credibility of the harm put forward—meaning whether the applicant is telling the truth—but will rather ensure that the victim’s account of the events corresponds with information in official reports (in the situation) ⁶²⁹ or with the charges alleged (in the case).⁶³⁰ Indeed, the commission of ICC crimes may result in hundreds, and possibly thousands of victims; evaluating the credibility of even a fraction of the applications to participate in proceedings in a definitive manner could render the entire scheme unworkable. Moreover, it is also not clear how the judges would investigate the truth of the underlying facts.

Once an applicant satisfies the requirements to be considered a victim under rule 85, the court must then assess whether his or her personal interests are affected and, if so, whether participation is appropriate.⁶³¹ These criteria are assessed differently at the situation and case phases.

We have provided below a brief summary of the regime of victims’ participation at both the situation and case phases. In this regard, we note that a number of the underlying assumptions to establish the threshold for victims’ participation is being appealed. The outcome of these appeals may have significant implications for the operation of the regime in both the situation and the case, several of which we have flagged below. Depending on how these issues are decided, these appeals may have the impact of limiting participation at the situation phase and of expanding participation at the case phase, contrary to the trend established by the pre-trial chambers to date. At this writing, the Appeals Chamber had not yet rendered any decisions.

1. Situation phase

Article 68(3) of the Rome Statute confers on the court the discretion to determine the stage and manner in which victims are allowed to participate in proceedings in order to submit their “views and concerns” relating to their personal interests.⁶³² The court has used this discretion as a basis for allowing victims to participate in the situation phase of ICC proceedings (“situation victims”). The “situation” phase for the purposes of victims’ participation appears to refer to the period after the prosecutor has opened an investigation and has, therefore, made the initial assessment that the crimes alleged are admissible under the ICC’s jurisdiction (since to be a victim under rule 85, the harm suffered must fall within the jurisdiction of the court).⁶³³ At present, there are 155 situation victims: 135 in the DRC situation, 9 in the Uganda situation, and 11 in the Darfur situation.⁶³⁴

a. Satisfying the harm and personal interests criteria

To be considered a victim at the situation phase, the pre-trial chamber must have “grounds to believe” that the applicant has suffered harm as a result of an ICC crime during the temporal and territorial limits of the situation.⁶³⁵ The court (on its own initiative) will use official reports, such as United Nations reports that document incidents in which ICC crimes may have been committed, to make this evaluation.⁶³⁶ The judges will seek to ascertain that the description of harm in the application corresponds broadly with the timeline of victimization in a specific place and time, as documented in these independent international reports.

There is no definition of “personal interests” in any of the ICC’s legal instruments. As such, the meaning of this term has been sketched out by the court in its jurisprudence. According to the chamber, the personal interests of a victim are generally “triggered” (that is, brought to bear) at the investigation stage since the participation of victims “can serve to clarify the facts, to punish the perpetrators of crimes and to request reparations for the harm suffered.”⁶³⁷ Essentially, for an individual who meets the criteria of victim, it appears that there is a presumption that their personal interests are affected at the situation phase.

In this way, a victim is granted a “procedural status of victim,” meaning that he or she is accepted as a victim participant in a general sense in the situation. The pre-trial chamber does not evaluate his or her personal interests beyond this initial assessment. However, this does not mean that an individual who has been granted the “procedural status of victim” can submit his or her “views and concerns” automatically. It is up to the court to consider whether participation is appropriate and, if so, to outline the precise modalities in a manner that does not infringe on a defendant’s fair trial rights. The court has appointed ad hoc counsel to represent and safeguard the interests of the defense in relation to discrete issues that may arise in the situation phase.⁶³⁸

b. Examples of modalities of participation

In terms of modalities, the pre-trial chamber has outlined several specific examples of proceedings in the situation where victims could potentially participate. While not exhaustive, these examples are meant to facilitate the predictability of proceedings and ultimately the certainty and effectiveness of victims’ participation. ⁶³⁹ The most significant opportunity for situation victims to participate in proceedings relates to the prosecutor’s decision not to initiate an investigation or to prosecute a case under article 53 of the Rome Statute.

The prosecutor’s decision under this article is subject to review by the pre-trial chamber, upon request of either the state party making the referral or the Security Council if the latter referred the situation. Upon review, the chamber can request the prosecutor to reconsider his decision. ⁶⁴⁰ The pre-trial chamber can also review the prosecutor’s decision not to proceed on its own initiative if the latter made the decision based solely on the “interests of justice;” in those instances, the decision of the prosecutor is only effective if confirmed by the pre-trial chamber.⁶⁴¹ The “views and concerns” submitted by victims can provide the chamber with an alternate source of information (in addition to that provided by the prosecutor) in deciding whether to request the prosecutor to reconsider his decision⁶⁴² or in refusing to confirm his decision not to proceed.⁶⁴³

Situation victims also have a role in other proceedings that may be initiated by the pre-trial chamber. For example, when considering the adoption of protective measures for victim participants, the court can solicit their “views and concerns” as to whether such protection is necessary and whether the measures being contemplated are appropriate. In this regard, all victims—including those in the case and situation phases—have a fundamental interest in maintaining their security.⁶⁴⁴

According to Pre-Trial Chamber II, the “views and concerns” of situation victims may also be relevant in the court’s assessment relating to the preservation of evidence. Under article 56(3), the court has the discretion to take measures to preserve evidence at risk of being destroyed or otherwise rendered unavailable.⁶⁴⁵ In addition, article 57(3)(c) of the Rome Statute emphasizes the court’s authority to preserve evidence “where necessary.” ⁶⁴⁶ In deciding whether to authorize the prosecutor to take these steps, it could solicit the “views and concerns” of the situation victims, which could include information about the kinds of crimes that have been committed and about their gravity. To the extent that this information relates to ICC crimes, it may be relevant in any subsequent review of the prosecutor’s decision not to investigate or prosecute under article 53.⁶⁴⁷

The chamber’s assumption that personal interests are affected in general at the situation phase—which confers on victims the “procedural status of victim”—has been appealed by both the Office of Public Counsel for the Defence (acting as ad hoc counsel for the defense in relation to victims’ applications to participate at the situation phase ) and the Office of the Prosecutor in the Darfur and DRC situations. ⁶⁴⁸ Both parties have argued for a stricter application of the interpretation of “personal interests,” where the chamber systematically assesses a victim’s “personal interests” in specific proceedings (as opposed to making one evaluation at the outset) to determine whether their interests are actually affected. If so, only then can the victim be eligible to participate in specific proceedings. The court must then determine whether participation is appropriate and, if so, the precise modalities. At this writing, no decision had been rendered.

2. Participation in a case

a. Pretrial proceedings

i. Satisfying the harm and personal interests criteria

The threshold for evaluating harm in order to be considered a victim under rule 85 is different for individuals who want to participate in a case, meaning proceedings following the issuance of an arrest warrant in which specific allegations of ICC crimes have been lodged against an individual defendant. The pre-trial chamber requires the applicant to show that there are “reasonable grounds to believe” (as opposed to the standard of “grounds to believe” used in the situation phase mentioned above) that the harm suffered is directly linked to the crimes set out in the arrest warrant.⁶⁴⁹ Eligible applicants can include the family members of the victim who suffered direct harm.⁶⁵⁰ In establishing a link to the crimes alleged against an individual defendant, in most cases, an individual who meets the requirements to be considered a victim under rule 85 has illustrated his or her personal interest.⁶⁵¹ At this writing, there are 73 case victims in 3 cases: 4 victims in the Lubanga case, 55 victims in the Katanga and Ngudjolo case, and 14 victims in the case against Kony, Otti, Odhiambo, and Ongwen.⁶⁵²

ii. Examples of modalities of participation: Confirmation of charges hearing

The manner in which victims’ participation is realized in pre-trial proceedings is assessed on a case-by-case basis. In the confirmation of charges hearing in the Lubanga case in November 2006, there were four victims who were recognized as participants. The court allowed all of these victims to participate anonymously, meaning their identities were not disclosed to the public or the defense in the confirmation hearing because of safety concerns. ⁶⁵³ At the same time, because of their anonymity and to preserve the rights of the defendant, the chamber restricted the scope of their participation. The legal representatives were allowed to make opening and closing statements at the hearing in addition to written submissions. ⁶⁵⁴ Other oral interventions required permission from the chamber. ⁶⁵⁵ Further, these anonymous victims could only access the public documents in the proceedings.⁶⁵⁶ The pre-trial chamber in the Katanga and Ngudjolo case adopted similar modalities for the participation of its anonymous victims in the confirmation of charges of that case, which will begin in June 2008.⁶⁵⁷

In the Katanga and Ngudjolo case, the chamber also outlined the modalities of participation for non-anonymous victims, meaning victim participants who want to keep their identity from the public but not the defense. For example, non-anonymous victims have the right to have access, prior to and during the confirmation hearing, to the record of the case kept by the Registry, including to the evidence filed by the prosecution and the defense. ⁶⁵⁸ Other rights include: the right to make submissions on all issues relating to the admissibility and probative value of the evidence on which the prosecution and defense intend to rely at the confirmation hearing, and the right to examine such evidence; the right to examine witnesses (subject to certain limitations); the right to attend all public hearings; and the right to make oral and to submit written motions in relation to all matters other than those in which the victims’ intervention has been excluded by the Statute and the Rules.⁶⁵⁹

b. Trial proceedings

i. Satisfying the definition of victim and illustrating personal interests

In the Thomas Lubanga case, which is the only case at this writing where charges have been confirmed, a majority of judges in the trial chamber have departed from the pre-trial chamber’s initial decisions about participation in the case phase and have adopted a more expansive approach regarding the link between the harm suffered and the crimes alleged. In a decision rendered on January 18, 2008, the majority held that rule 85 “does not have the effect of restricting the participation of victims to the crimes contained in the charges” confirmed by the pre-trial chamber.⁶⁶⁰ As such, “a victim of any crime falling within the jurisdiction of the Court can potentially participate.”⁶⁶¹ This threshold is considerably lower than that articulated by the pre-trial chamber, which, as outlined above, requires a link between the harm specified and the crimes alleged in the arrest warrant.⁶⁶²

However, according to the majority, not all individuals who meet the threshold of victim will be eligible to participate. A victim must also illustrate either that a) there is a “real evidential link” between him or her and the evidence that the court will be considering in the trial, leading to the conclusion that the victim’s personal interests are affected; or b) the victim is affected by an issue arising during the trial because his or her personal interests “are in a real sense engaged by it.”⁶⁶³ In order for the chamber to make this assessment, the victim will be required to show, in a separate discrete written application, the reasons why his or her interests are affected by the evidence or issues arising in the case and the nature and extent of the participation that he or she seeks; these applications will be considered on a case-by-case basis.⁶⁶⁴ They must also be considered in light of the fair trial rights of the accused. Both Lubanga’s defense and the OTP have appealed the majority’s more expansive approach; at this writing, the Appeals Chamber decision had yet to be rendered.⁶⁶⁵

The chamber’s decision to broaden the category of victims who can participate in the case may in part be an effort to mitigate the negative consequences of the limited set of charges in the Thomas Lubanga case (as mentioned in part II.C.2, above, Thomas Lubanga is charged with enlisting and conscripting children under the age of 15 years as soldiers and with using them to actively participate in hostilities in the Ituri conflict in 2002-2003).⁶⁶⁶ In light of the pre-trial chamber’s threshold for participation, the class of victims that can participate in the case is similarly narrow—only child soldiers and their families are eligible. By contrast, the trial chamber’s decision seems to open up the participation regime to a potentially broader class of victims.

However, Human Rights Watch is concerned by the lack of clarity regarding how the court will assess a victim’s personal interests: there is no definition of a “real evidential link” or how to evaluate whether a victim’s personal interests “are in a real sense engaged” by evidence presented at trial. Sources that we interviewed in the DRC and Uganda indicated that victims’ participation was already difficult to organize and explain on the basis of the pre-trial chambers’ categorization of situation and case victims.⁶⁶⁷ The uncertainty inherent in the new threshold will likely add to these difficulties and may ultimately have the unwelcome effect of compromising the implementation of victim’s participation on the ground.⁶⁶⁸ Further, requiring an additional application from victims to illustrate how their personal interests are affected at different stages increases the burden on victims in what is already considered a lengthy and confusing application process. Instead of being more inclusive, the new threshold may, in practice, result in disenfranchising victims.

ii. Examples of modalities of participation

Once the trial chamber has decided that a victim meets the threshold to participate, it will then decide whether participation is appropriate and consistent with the defendant’s fair trial rights. Examples may include the right to consult the record of proceedings, including the index,⁶⁶⁹ and the right to be notified of all public proceedings and filings before the court.⁶⁷⁰ This may, in certain circumstances, include access to confidential filings.⁶⁷¹ In addition, the chamber has held that victims may also be eligible to submit evidence to assist the court in “the determination of the truth” under article 69(3) of the Rome Statute, which may include evidence in relation to the guilt or innocence of the accused.⁶⁷² This latter ground is also under appeal which, as noted above, is still pending at this writing.

Human Rights Watch strongly supports the chamber’s efforts to make participation for victims meaningful. At the same time, we are concerned that vesting victims with the right to submit evidence, combined with the broad participation criteria outlined above, may have a detrimental impact on the defendant’s fair trial rights. There is a danger that in submitting evidence to the court, which could include evidence relating to the accused’s guilt or innocence, victims could, in essence, become “second prosecutors.” This is particularly problematic because under the chamber’s threshold outlined above, victims who are not directly linked to the charges may be permitted to participate in trial proceedings.

For example, a victim could submit evidence showing that one of Lubanga’s alleged child soldiers (“X”) raped him/her. It could be argued that there is an evidential link: the victim’s evidence shows that X was indeed a child soldier. At the same time, the evidence shows other “bad acts” that could be attributed to Lubanga. Of course, he has the right to respond to this prejudicial evidence, but the burden in doing so is onerous since the evidence is outside of the charges alleged. The chamber’s decision essentially creates more opportunities for prejudice to the detriment of the accused.

In this regard, the chamber has emphasized that it “will at all times ensure that this course does not involve any element of prejudgment on the issue of the defendant’s guilt or innocence, and generally that it does not undermine the defendant’s right to a fair trial.”⁶⁷³ However, Human Rights Watch is concerned that despite the chamber’s efforts to the contrary, cumulatively, the potentially prejudicial evidence submitted by victims could ultimately have a detrimental impact on the perceived and actual fairness of the trial.

In addition, there is a risk that the decision may raise expectations in terms of who will be allowed to participate in the proceedings. In practice, however, the need to protect the rights of the accused may ultimately result in rendering this participation ineffective or meaningless. This could add to existing frustrations about participation among potential victims in affected communities.

C. Rights of victims in proceedings outside of the participation regime

The Rome Statute provides other opportunities for victims to submit observations in proceedings outside of the participation regime. Under article 15(3), victims can make representations to the pre-trial chamber in proceedings where the prosecutor has used his proprio motu powers to conclude that there is a reasonable basis to open an investigation in a situation and is seeking permission from the chamber to do so.⁶⁷⁴ The victims’ representations can provide factual and legal elements for the decision to authorize the investigation into the situation, to the extent that these victims claim to have suffered harm resulting from ICC crimes.⁶⁷⁵ The prosecutor is obliged to inform “all victims known to him or her or to the Victims and Witnesses Unit, or their legal representatives.”⁶⁷⁶ Examples of victims who fall under this category include victims encountered by the prosecutor in the course of his investigation, victims who have contacted the Victim and Witness Unit because of security concerns, as well as victim participants.

In addition, the court has an obligation to notify a broader class of victims “who have communicated with the court” in relation to specific proceedings.⁶⁷⁷ In particular, the court must notify victims “who have communicated with the court” in a situation (in relation to the prosecutor’s decision not to initiate an investigation under article 53) or in a particular case (about the prosecutor’s decision not to prosecute a case under article 53 and the decision to hold a hearing to confirm charges against a suspect).⁶⁷⁸ The purpose of informing these victims is to allow them to apply to become participants.⁶⁷⁹

D. Implementing the victims’ participation regime in practice

The section above outlines the legal difficulties associated with developing a meaningful and manageable regime for victims’ participation. The court also faces significant challenges in developing the practical means necessary to implement the regime on the ground. Many victims in affected communities have been displaced en masse because of the underlying conflict and may have lost all their documents and possessions. Some live in remote locations, making it difficult to reach them and for them to access information about the court. They may also face real threats to their security.

Unfortunately, over the past five years, the Registry has faced a lot of internal and external difficulties in developing a system to operationalize victims’ rights. For instance, in part because there were no significant judicial decisions until early 2006 that specified which victims could participate, the VPRS struggled with the delicate task of conducting outreach on participation rights without creating false expectations. In any event, this outreach was limited: as discussed in other parts of this report, the ICC did not have a presence in the field in its first years and the VPRS did not have field-based staff until 2006 in both the DRC and Uganda, which greatly impaired efforts in this regard.⁶⁸⁰ In addition, the form for participation was not finalized until early 2006.

Nonetheless, there has been some progress. As part of the court’s Strategic Plan, the court is currently developing a victims’ strategy aimed at guiding its efforts to promote meaningful participation.⁶⁸¹ Moreover, while to date only a limited number of victims have been recognized as participants, their interventions have made an important impact. Indeed, the opening of the confirmation of charges hearing in the Lubanga case illustrated how much victims can bring to the proceedings by grounding the proceedings in the real experiences of victims of ICC crimes and in the suffering that they must endure in their daily lives because of these crimes. Their participation was a strong reminder for the court of its purpose: to bring justice to victims of the worst crimes.

1. Application procedure for victims’ participation

The Victims Participation and Reparations Section administers the application process for victims’ participation.⁶⁸² Since the VPRS does not make direct contact with victims in this process, staff members train representatives of local NGOs and other community leaders on the participation and reparations regimes to act as intermediaries with victims. These intermediaries are then supposed to disseminate relevant information and the respective application forms to members of affected communities.

The VPRS developed a form, which was approved by the Presidency in March 2006, to facilitate participation. It is not obligatory to use this form to apply to participate, but it is strongly advised to do so since the form canvasses all of the relevant information required for an application to be considered complete. The form for victims’ participation, which is 17 pages in length, requests information about the applicant’s identity (including supporting documentation), a description of the harm suffered and of the incident that caused it, and information on the stage of the proceeding in which the victim wishes to participate, among other details.⁶⁸³ In addition to explaining the form, intermediaries can provide assistance to victims in filling it out.

We note that the application form and its accompanying explanatory booklet are only available in French and English.⁶⁸⁴ The VPRS has been considering for some time the feasibility of translating the forms into local languages. The reason for not having done so until now is related to capacity: processing completed applications in local languages would require the VPRS to either employ more staff who speak local languages or to have more translation capacity, both of which the ICC lacks at present.

Human Rights Watch believes that translating the forms and the explanation booklet into local languages (even while requiring, at least initially, that they be completed in either English or French) is essential to make the application process more accessible to victims and urges the VPRS to do so. Indeed, local NGO representatives that we interviewed in Ituri who were acting as intermediaries for the court on victims’ participation told us that they often needed to translate the questions for the victims that they are assisting anyway, sometimes in an approximate way.⁶⁸⁵ Another source told us that it would increase the confidence of victims in the process if the questions on the form were in a language that they could understand.⁶⁸⁶

The intermediaries collect the completed forms and submit them to the VPRS representative in the nearest field office in the situation country. As noted in the field engagement section above, since field offices are sometimes located far from affected communities, the applications may have to be sent through the mail. This can pose difficulties for victims and local NGOs who do not have the means to pay for postage (and the postal system may in any event be unreliable in situations of ongoing conflict). The VPRS has tried to facilitate the collection of forms by traveling to the regions where affected communities live every few months to collect them.⁶⁸⁷

If there is basic information missing in the form (such as identity information or supporting documentation), the VPRS consults the intermediary who submitted the form to obtain the information from the victim.⁶⁸⁸ The forms are forwarded to VPRS staff members in The Hague who prepare a report on the applications. At this same time, the applications are also forwarded to the prosecution and defense. ⁶⁸⁹ The VPRS report is submitted to the relevant chamber, together with the individual applications.⁶⁹⁰ The relevant chamber makes a determination on the completeness of the applications and whether the applicants are accepted as participants.⁶⁹¹ Applicants who are rejected can submit a fresh application later in the proceedings.⁶⁹²

Some of the applicants may already have a legal representative at the stage of the application being received in The Hague, for example from an NGO.⁶⁹³ For unrepresented applicants, the pre-trial chamber has designated the Office of Public Counsel for Victims to provide support and assistance.⁶⁹⁴ In fulfilling this function, the OPCV travels to the field to meet with intermediaries and victims to provide assistance as needed. The OPCV continues to provide this support until the applicant is granted the “procedural status of victim,” at which time he or she is eligible, if indigent, for financial assistance paid by the court to hire a legal representative.⁶⁹⁵

2. Shortcomings in the implementation of victims’ rights

a. Insufficient outreach by the court: Confusion about victims’ participation

We note the Registry’s practice of not soliciting applications for participation or reparations from potential victims directly. Nonetheless, we wish to underscore that the court still has an obligation to provide objective information about the participation and reparations regimes. Unfortunately, in the early years of the court, this was lacking, and at the time of our visits to the DRC, Uganda, and Chad in 2007, it was evident that more could be done.⁶⁹⁶

In the DRC, we documented a marked lack of information about victims’ participation and reparations at the ICC in villages surrounding Bunia, even on the part of educated individuals.⁶⁹⁷ Many people there had never heard of the possibility of victims’ participation and reparations at the ICC. In Bunia, sources that we interviewed conveyed the rumor that NGOs were being paid to find victims and would fabricate victims if necessary to get funding from the court or international NGOs.⁶⁹⁸ Similarly, in Uganda, there was widespread lack of understanding. Moreover, at least one local government official suggested to Human Rights Watch researchers that the ICC is using victims’ participation to encourage Ugandans’ support for the ICC because participation is one way that reparations may later be obtained.⁶⁹⁹ In Chad, none of the refugees, representatives of international humanitarian organizations, or United Nations High Commissioner for Refugees staff with whom we spoke were aware of the possibility of victims’ participation.⁷⁰⁰

It is clear that more efforts are needed in all of the country situations to provide general information about victims’ participation to the general public and victims in affected communities. In Uganda, for example, we note that the court’s Outreach Unit in conjunction with the VPRS enhanced efforts in 2007 to inform local populations about victims’ participation and reparations. As the court increases its level of engagement among affected communities in all country situations, we urge the VPRS to continue coordination with the court’s Outreach Unit so that information about victims’ participation is included more systematically and strategically in its outreach events.

b. Improving engagement with local intermediaries

i. Substantive support: More training needed

As discussed earlier, the court relies heavily on intermediaries such as representatives of local NGOs to disseminate information about the participation and reparations regimes on its behalf. These intermediaries also help applicants fill out the respective forms, which is important since the length and complexity of the form may, in many instances, make it impossible for victims to otherwise apply. Further, because the application forms are only available in French and English, as noted above, intermediaries provide essential assistance to members of the population who only speak local languages.

At the time of our visits to the DRC and Uganda, VPRS staff had conducted trainings for local intermediaries to explain the participation and reparations regimes in more detail and to provide the respective forms. Nonetheless, we found that there was still confusion about victims’ participation among the intermediaries that we interviewed. In the DRC, for example, some NGO representatives did not have a clear grasp of fundamental nuances in the complicated participation regime, such as the difference between participation at the situation and case phases.⁷⁰¹ Others had questions about whether the application form would be shared with the defense, which can have implications for the security of the victims that they are assisting.⁷⁰² Most representatives that we interviewed said that they still had questions about some aspects of the forms and would welcome further training.⁷⁰³

In Uganda, our discussions with a number of representatives of nongovernmental and community-based organizations revealed that not all of them had even heard of victims’ participation. Even among those that had, there had been a lot of confusion concerning what victims’ participation really involves. To an extent, confusion about victims’ participation is understandable since, as a common law country, Uganda does not have a history of victim involvement in judicial proceedings beyond the role of witness. However, in 2008, the court’s plans reflect very few events to “broaden understanding of the ICC among VPRS intermediaries in [n]orthern Uganda.”⁷⁰⁴ The extent of misinformation and negative opinions about victims’ participation outlined above suggests that the court should consider intensifying efforts in that regard.⁷⁰⁵

The result of this confusion is that a substantial number of the application forms are not filled in properly.⁷⁰⁶ Often, key details, which are essential for judges to make a determination on the eligibility of the application, are omitted. For example, an applicant may state that her house was pillaged or her husband killed without explaining that there was an attack on her village on a specified date by a specific assailant.⁷⁰⁷ As noted above, staff in the VPRS can assist by doing a first screening of the forms and by contacting intermediaries about basic missing information. However, it is beyond the VPRS’s mandate and capacity to offer legal advice about how to fill in the form.⁷⁰⁸

While the OPCV has been appointed to provide assistance to unrepresented applicants, this assistance is only available after the forms have been forwarded to The Hague, by which time a significant time may already have passed since the application was completed. The time that it takes to find the intermediary, to locate the victim, and to seek additional information or to clarify existing details makes this process resource-intensive and lengthy. In this regard, we note that if the OPCV continues to provide substantial support to victim applicants, it will likely require additional resources, including staff in the field and an increased travel budget.

To address some of the difficulties discussed above, Human Rights Watch believes that the court should improve both the content and the frequency of the trainings that it offers to intermediaries. In terms of the content, we urge the VPRS to consider developing a module in its training that provides examples of some of the most frequent mistakes made in filling out the form and that provides guidance as to how to avoid or rectify them. Similarly, the VPRS could develop a short “user-friendly” document that could serve as a “checklist” for intermediaries in helping applicants fill out the substantive parts of their applications, notably on the harm suffered. This checklist would usefully complement the booklet that the ICC has produced on victims’ participation and that offers little detail on that aspect.⁷⁰⁹ In developing this document, we urge the VPRS to work closely with the OPCV and current victims’ legal representatives in light of their experience in helping applicants provide missing information and otherwise to facilitate the processing of their applications. The information provided in the training and in the proposed checklist should be regularly updated and conveyed to intermediaries.

Additional training is necessary for intermediaries on other aspects of victims’ participation. Outlining the “ethics” of facilitating victims’ participation and sharing a list of some of the “dos and don’ts” with intermediaries on the way that they interact with victims is of central importance. For example, one source in the DRC told Human Rights Watch researchers that he thought that it was necessary to “make a little gesture”—meaning providing gifts—to encourage victims to participate.⁷¹⁰ Such actions can feed the perception that the ICC is trying to “buy” victims in affected communities.

We note that the VPRS staff have demonstrated impressive commitment and have made efforts to improve the implementation of victims’ participation on the ground. For instance, in Uganda, we were told that field staff had made themselves available to answer questions about participation and reparations.⁷¹¹ Similarly, Human Rights Watch researchers were told that the VPRS staff in Kinshasa have sought to identify recurrent mistakes by the same intermediary and have called the intermediaries to discuss and address these.⁷¹² These are positive developments and should be continued and replicated in relation to all of the ICC’s country situations to the extent that this is not already the case.

ii. Regular updates needed on the status of applications

One important source of frustration that Human Rights Watch researchers documented is the delay between the filling in of forms and decisions on applications by Chambers. In some instances in the DRC, intermediaries told us that one-and-a-half or two years had elapsed since they first sent in application forms.⁷¹³ We, therefore, urge VPRS staff to regularly inform intermediaries of the status of the applications submitted, even if there are no new developments to report. Keeping intermediaries—and therefore victims—informed can help temper disappointment and frustration that can justifiably emerge in light of the lengthy delays in processing applications for participation.

iii. Establishing guidelines for financial support

Another issue that was raised prominently among the intermediaries that we interviewed in the DRC and Uganda as an obstacle to their providing assistance was the lack of financial support from the court to do this work. We wish to underscore that this process is both resource- and time-intensive. Intermediaries must visit victims in remote areas, sometimes hours away by vehicle. To make copies of identity documents to accompany the form, for instance, means that the intermediary may need to travel to and from where a photocopier is available, usually the largest town in the region. At the time of our visits, the court did not reimburse any of these costs. As one NGO representative in Bunia stated, the general perception is that “they are always looking to us to do the work” (“Ils nous invitent toujours à travailler”—implying that the court is always asking them to work for free).⁷¹⁴ This criticism was echoed among intermediaries that we interviewed in Uganda.⁷¹⁵

As stated earlier, the ICC essentially relies on these intermediaries to implement its victims’ participation and reparations regimes on its behalf on the ground. As a result, these intermediaries are acting as an “extended arm” of the court, and Human Rights Watch believes that they should be entitled to a measure of financial assistance from the court to cover the costs of doing so. We urge the court to establish and to consistently apply transparent guidelines in this regard.

iv. Maintaining the security of intermediaries

The ICC operates in situations of instability or ongoing conflict, often in highly polarized societies where feelings about the justice process are similarly divided. In this context, those perceived to be collaborating with the court, in whatever function, can become the targets of threats.⁷¹⁶

The court should be mindful that its close collaboration with intermediaries can compromise the latter’s safety among those who oppose the ICC. Indeed, risks and threats are not rhetorical and must be taken seriously. Fortunately, there have been no incidents of physical harm to date. However, several local NGO representatives in Ituri acting as intermediaries for the court on victims’ participation told Human Rights Watch researchers that they had been verbally threatened (in person or by phone). This is in part because working with victims is viewed by the Hema community in Ituri as gathering evidence against Lubanga (a Hema). For example, one NGO representative reported having been approached at his house by a militia officer and told that he had better “drop what I was doing, because the white men would leave and they would stay among themselves, Iturians, and settle scores.”⁷¹⁷ Ensuring intermediaries’ safety may, therefore, require the court to proactively seek to identify and catalyze efforts to protect these actors from threats that arise.

E. Reparations and the Trust Fund for Victims

The inclusion of reparations for victims within the ICC’s mandate, and the creation of the Trust Fund for Victims, both represent a major step forward in international justice. Under the Rome Statute, reparations include, but are not limited to, restitution, compensation, and rehabilitation.⁷¹⁸ To this end, the court may order a defendant to pay reparations, or if the defendant is indigent, use the funds raised by the TFV. The TFV, based on its expertise, can advise the court about the best way to implement these reparations. In addition, the TFV can provide assistance to victims prior to the conviction of a defendant. The manner in which reparations and assistance are provided to victims is addressed in more detail below.

1. Court-ordered reparations

Under article 75 of the Rome Statute, the process of obtaining court-ordered reparations is generally initiated by the victims themselves.⁷¹⁹ This can include certain organizations in addition to natural persons.⁷²⁰ Victims apply using the 19-page form developed by the VPRS.⁷²¹ As with the forms for participation, the VPRS does not make direct contact with victims in this process so that staff members train representatives of local NGOs and other community leaders to act as intermediaries with victims and to disseminate relevant information. Consistent with the recommendation made in relation to the participation regime, Human Rights Watch believes that the reparations form should be translated into local languages to make it more accessible to victims. We also wish to underscore that it is essential to provide intermediaries with sufficient training, financial assistance, and security as needed to conduct this vital work on the court’s behalf.

As noted earlier, the reparations regime is separate and distinct from victims’ participation. A victim participating in the proceedings might not necessarily seek reparations, and conversely it is possible to only take part in reparations hearings and not the rest of the proceedings. However, in practice there may be overlap. Indeed, Trial Chamber I has indicated that reparations proceedings for victims in the Lubanga case will be held during the trial, in part to avoid unnecessary hardship or unfairness to the witnesses by forcing them to provide evidence twice.⁷²² In reparations proceedings, the court is required to consider representations from victims or their legal representative (as well as the convicted person, states, and other interested persons) and may enlist the aid of experts in order to determine the appropriate scope and form of reparations.⁷²³

Reparations orders are subject to appeal within 30 days.⁷²⁴ The court is empowered to seek several types of state cooperation in order to ensure that adequate funds exist so that reparations orders can be fulfilled. These include requests to states for the tracing and freezing or seizure of assets and property of defendants.⁷²⁵ In practice, however, it is more likely that the court will make collective awards since there may be hundreds, and possibly thousands of victims in each case.

In order to ensure that reparations will reach the intended beneficiaries, the court has the authority to make use of the TFV to disburse awards in some cases. This may arise where the court must deposit individual awards in the TFV because it is impossible or impracticable to make them directly to victims at the time. It may also be necessary where the court makes an order for a collective award—such as an order to benefit an entire community—and the scope of such an award or the form that it takes makes the TFV better suited to dispense it.⁷²⁶

2. The TFV’s assistance to victims using “other resources”

The TFV also has “other resources,” meaning funds other than those from reparations awards or fines and forfeitures, at its disposal. These “other resources” are funds from voluntary contributions and those donated by states parties, non-states parties, individuals, and foundations (donations from the latter require that the donor organization’s mandate does not conflict with that of the TFV or that the organization is not otherwise questionable).⁷²⁷ The TFV’s “other resources” can be used to complement reparations orders but can also be used to provide interim assistance to victims and their families who have suffered physical, psychological, or material harm.⁷²⁸ Unlike reparations ordered by the court under article 75, assistance from “other resources” is not limited to victims of crimes committed by convicted defendants and can go to victims of any crime within the court’s jurisdiction.⁷²⁹ The TFV, therefore, has greater flexibility to provide assistance to a broader class of victims than is available through reparations alone, assistance that may be timelier since victims do not have to wait for specific defendants to be convicted by the ICC.⁷³⁰

a. Navigating the tension between the TFV’s and the ICC’s respective mandates

The TFV is generally independent of the court in deciding the form and scope of assistance given with its “other resources.” At the same time, its mandate to specifically assist victims of crimes within the ICC’s jurisdiction is part of what sets it apart from other organizations and humanitarian groups dispensing aid. As such, the TFV is still “connected” to the court, and its disbursement of interim assistance may have consequences for defendants in cases before the court. When the TFV identifies a group of victims in need of assistance, it sends a message that crimes were committed against that group and that those crimes were of such a nature that they come within the jurisdiction of the ICC. For example, a TFV project that assists victims of rape in one area of a situation country, or ex-child soldiers in another, may give the impression that the court has already determined that claims against a defendant in relation to these crimes are legitimate.

To avoid undermining the presumption of innocence of specific defendants, the Board of Directors of the TFV is required to notify and seek the approval of the court prior to undertaking new projects or activities.⁷³¹ Within a specified time period, the court must decide whether the project proposed would predetermine any issue to be determined by the court, including the determination of jurisdiction or admissibility, or would otherwise violate the presumption of innocence, or would be prejudicial to or inconsistent with the rights of the accused and with a fair and impartial trial.⁷³² This judicial review reflects an important compromise between the TFV’s mandate to assist victims and the court’s obligation to safeguard the fair trial rights of defendants.

The possibility of conflict also highlights why it is important for the TFV to develop and implement a strong outreach strategy to convey the non-confidential aspects of its work in those situations where it is operating.⁷³³ This should include conducting outreach to explain the relationship between the TFV and the court and their respective mandates. In addition, we urge the TFV to coordinate its outreach strategy with that of the court to eliminate the possibility of sending inconsistent messages to members of affected communities, which could otherwise compromise these communities’ understanding of both bodies.

b. Ensuring careful management of TFV resources

At this writing, the TFV had made two submissions to the court concerning proposed activities and projects using its “other resources”: one in Uganda and one in the Democratic Republic of Congo.⁷³⁴ In both instances, the court approved the projects.

In the DRC decision, however, the court expressed concern that using the proposed amount of TFV resources for the projects outlined may leave little for the TFV to use to fund reparations ordered by the court at a later stage in the proceedings. In this regard, we note that under regulation 56 of the Regulations of the Trust Fund for Victims, the TFV has an obligation to make all reasonable endeavors to manage the fund, taking into consideration the need to provide adequate resources to complement payments for reparations awards and taking particular account of ongoing legal proceedings that may give rise to such awards.

The court noted that in the DRC, no assets or property have yet been seized from defendants in the situation that might go to fund reparations ordered by the court. As such, the court “strongly recommended” that, before resorting to other activities or projects, the TFV “undertake a study evaluating and anticipating the resources which would be needed to execute an eventual reparation order” under article 75 in the cases pending before the court.⁷³⁵

The decision highlights the competing demands on the resources of the TFV; managing these demands will likely be a continued source of tension. The Board of Directors should work to ensure that projects and activities using the TFV’s “other resources” do not compromise its ability to assist in funding court-ordered reparations. In addition, donors, especially states parties, should provide needed resources to the TFV to ensure that it is capable of providing meaningful assistance to the broad categories of victims covered by its mandate.

c. Promoting greater transparency and consultation

Transparency in the operation of the TFV is vital to bolstering the fund’s credibility, particularly among victims and others in situation countries. Of course, there may be security concerns that may, in some circumstances, limit the details that can be provided about specific projects. As a general principle, however, in order to avoid creating perceptions of bias, the TFV should take extra care to publicize its functioning rules, criteria to select projects and specific affected communities, and its decisions regarding selection and implementation of projects.

For instance, the prosecutor’s investigation into crimes committed in a particular region may give rise to expectations among affected communities there about the court’s intervention in addressing the crimes that they have suffered. This may very well include expectations about reparations. In light of these raised expectations, there may be feelings of resentment if the TFV chooses to implement projects outside of the region of the prosecutor’s investigation. Ensuring transparency in selecting, designing, and implementing projects will help to reduce potential misunderstanding of the TFV’s motives and can help diffuse such tensions.

In this regard, the TFV can work with intermediary groups, including domestic and international NGOs, to implement assistance projects or disburse reparations awards.⁷³⁶ However, there is a risk that some of these groups may be viewed as having taken sides in a conflict, or simply as representing the interests of one group above those of another. Transparency in soliciting bids and in selecting partners for assistance in implementation, such as by publishing criteria for projects, will help avoid some of these problems. Human Rights Watch understands that the TFV is considering implementing a system of open bidding as one means of selecting partners; a final decision to undertake such a system, however, rests with its Board of Directors, which has not yet considered this proposal.⁷³⁷ We encourage the TFV to adopt a system of open bidding for partnerships as a means of increasing transparency.

In selecting target communities and projects, consultation with victims and local organizations is essential. Indeed, input from these sources, especially victims, will help the TFV establish a presence that is viewed as fair and that suits the unique role of the TFV as an organ providing assistance on behalf of a judicial body. To this end, the Regulations of the Trust Fund for Victims permit the Board of Directors to consult with victims, their legal representatives, and outside organizations and experts in planning the activities and programs of the TFV.⁷³⁸ The Board of Directors may also consider the opinions of these persons in determining the scope of individual and collective court-ordered reparations, where the recipients are not specified by the court.⁷³⁹ To make the most of these consultations, we urge the TFV to establish clear and transparent guidelines and procedures to be sure that the views of all interested parties can be heard during the selection, design, and implementation of projects and activities.

3. More donations needed

In order for the ICC’s framework for reparations to function as envisioned, states parties have a large role to play. Without adequate voluntary donations, the TFV will not be able to undertake assistance projects for victims while at the same time assisting the court in funding reparations orders. States should not only make regular donations but should encourage individuals and organizations subject to their law to do so by, for example, making such donations tax exempt.⁷⁴⁰ States must also assist in the enforcement of court orders pertaining to reparations and in the disbursement of reparations and assistance. In this regard, we once again urge the TFV to ensure greater transparency in the selection of projects wherever possible so that donors can more easily ascertain how their funds are being used. Doing so can increase donor support for TFV activities over the longer term.