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 courts 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 ICCs 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 courts 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 ICCs legal instruments, which means that the Chambers have had to develop many of the fundamental principlessuch as who is eligible to participate and the modalities of doing sofrom scratch. The courts 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 regimegiving victims a voice in criminal proceedingsis 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 ICCs 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 defendants 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 ICCs 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 Registrys 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 Registrys obligations to facilitate the participation of victims, such as notifying victim participants of the courts 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 victims 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 courtboth in terms of financial assistance and better trainingto 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.
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 forwardmeaning whether the applicant is telling the truthbut will rather ensure that the victims 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.
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 ICCs 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
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 ICCs 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 defendants 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
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 prosecutors decision not to initiate an investigation or to prosecute a case under article 53 of the Rome Statute.
The prosecutors 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 prosecutors 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 victimsincluding those in the case and situation phaseshave 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 courts 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 courts 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 prosecutors decision not to investigate or prosecute under article 53.647
The chambers assumption that personal interests are affected in general at the situation phasewhich confers on victims the procedural status of victimhas 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 victims 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.
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
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
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 chambers 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 victims 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 Lubangas defense and the OTP have appealed the majoritys more expansive approach; at this writing, the Appeals Chamber decision had yet to be rendered.665
The chambers 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 chambers threshold for participation, the class of victims that can participate in the case is similarly narrowonly child soldiers and their families are eligible. By contrast, the trial chambers 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 victims personal interests: there is no definition of a real evidential link or how to evaluate whether a victims 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 victims 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.
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 defendants 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 chambers 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 defendants fair trial rights. There is a danger that in submitting evidence to the court, which could include evidence relating to the accuseds guilt or innocence, victims could, in essence, become second prosecutors. This is particularly problematic because under the chambers 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 Lubangas alleged child soldiers (X) raped him/her. It could be argued that there is an evidential link: the victims 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 chambers 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 defendants guilt or innocence, and generally that it does not undermine the defendants right to a fair trial.673 However, Human Rights Watch is concerned that despite the chambers 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.
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 prosecutors decision not to initiate an investigation under article 53) or in a particular case (about the prosecutors 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
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 courts 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.
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 applicants 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
We note the Registrys 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 courts 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 courts Outreach Unit so that information about victims participation is included more systematically and strategically in its outreach events.
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 courts 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 VPRSs 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 donts 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 gesturemeaning providing giftsto 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 ICCs country situations to the extent that this is not already the case.
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 intermediariesand therefore victimsinformed can help temper disappointment and frustration that can justifiably emerge in light of the lengthy delays in processing applications for participation.
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 travaillerimplying 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.
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 latters 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.
The inclusion of reparations for victims within the ICCs 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.
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 courts 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 awardsuch as an order to benefit an entire communityand the scope of such an award or the form that it takes makes the TFV better suited to dispense it.726
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 organizations mandate does not conflict with that of the TFV or that the organization is not otherwise questionable).727 The TFVs 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 courts 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
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 ICCs 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 TFVs mandate to assist victims and the courts 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.
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 TFVs 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.
Transparency in the operation of the TFV is vital to bolstering the funds 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 prosecutors investigation into crimes committed in a particular region may give rise to expectations among affected communities there about the courts 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 prosecutors investigation. Ensuring transparency in selecting, designing, and implementing projects will help to reduce potential misunderstanding of the TFVs 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.
In order for the ICCs 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.
609 Rome Statute of the International Criminal Court, A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 68(3) (Rome Statute).
610 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the Directions and Decision of the Appeals Chamber of 2 February 2007, Separate Opinion of Judge Georghios M. Pikis, June 13, 2007, para. 15 (Lubanga June 2007 Appeals Chamber Decision on the Joint Application of Victims"); Claude Jorda and Jérôme de Hemptinne, The Status and Role of the Victim, in Antonio Cassese, Paula Gaeta & John R.W.D. Jones eds., The Rome Statute of the International Criminal Court (Oxford: Oxford University Press, 2002), p. 1405. For instance, victims do not have an automatic right of intervention in proceedings, unlike the defense and the prosecution. By contrast, in the Extraordinary Chamber in the Courts of Cambodia (which is based on the civil law approach), victims are parties to proceedings.
611 Rules of Procedure and Evidence, International Criminal Court, ICC-ASP/1/3, http://www.icc-cpi.int/library/about/officialjournal/Rules_of_Proc_and_Evid_070704-EN.pdf (accessed June 11, 2008), rule 90 (Rules of Procedure and Evidence).
612 Ibid., rules 90(2) and 90(4).
613 Regulations of the Court, International Criminal Court, ICC-BD/01-01-04, http://www.icc-cpi.int/library/about/officialjournal/Regulations_of_the_Court_170604-EN.pdf (accessed June 11, 2008), reg. 79(1) (Court Regulations).
614 Rules of Procedure and Evidence, rule 90(3).
615 Court Regulations, reg. 80(1).
616 Rules of Procedure and Evidence, rule 90(4).
617 Ibid., rule 90(5); Regulations of the Registry, International Criminal Court, ICC-BD/03-01-06Rev.1, September 25, 2006, http://www.icc-cpi.int/library/about/officialjournal/ICC-BD_03-01-06-Rev1_English.pdf (accessed June 11, 2008), reg. 113(1) (Regulations of the Registry). It states that for the purpose of participation in the proceedings, the Registry has a duty to inform victims that they may apply for legal assistance paid by the court.
618 In addition, the Victims and Witnesses Unit is tasked with implementing and coordinating measures of protection, support, and assistance for victims, in addition to witnesses and other persons at risk. Under Rules of Procedure and Evidence, rules 17 and 18, the VWUs support, protection, and assistance is provided to all victims who appear before the court (including victim participants) and is available at all stages of proceedings and afterwards, as reasonably appropriate. The full scope of the VWUs assistance is discussed in more detail in Part VI.B.1 of this report.
619 Rules of Procedure and Evidence, rule 16(1)(b).
620 Ibid., rule 90(2).
621 Ibid., rule 16(1)(d).
622 Regulations of the Registry, reg. 115; Court Regulations, reg. 81.
623 Court Regulations, reg. 81(4).
624 Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Requests of the Legal Representative of Applicants on application process for victims participation and legal representation, August 17, 2007, paras. 43-44 (DRC August 2007 Decision on the Request of the Legal Representative of Applicants).
625 Court Regulations, reg. 80(2); Pre-Trial Chamber II has used this provision to appoint OPCV staff as legal representatives in the situation and the case. See Situation in Uganda, ICC, Case No. ICC-02/04, Decision on legal representation of Victims a/0090/06, a/0098/06, a/0101/06, a/0112/06, a/0118/06, a/0119/06, and a/0122/06, February 15, 2008.
626 Rules of Procedure and Evidence, rule 85.
627 Situation in Uganda, ICC, Case No. ICC-02/04, Decision on victims applications for participation a/0010/06, a/0064/06 to a//0070/06, a/0081/06 to a/0104/006 and a/0111/06 to a/0127/06, August 10, 2007, para. 14 (Uganda August 2007 Decision on Victims Participation).
628 Ibid., para. 15; Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 (Public Redacted Version), January 17, 2006, para. 82 (DRC January 2006 Decision on Victims Participation).
629 DRC January 2006 Decision on Victims Participation, para. 101.
630 See, for example, Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07. Decision on the Applications for Participation in the Proceedings of Applicants a/0327/07 to a/0337/07 and a/0001/08, April 2, 2008.
631 Rome Statute, art. 68(3).
632 DRC January 2006 Decision on Victims Participation, para. 65.
633 Once an individual case has been identified for prosecution, a victim must submit additional information to meet the threshold to participate in that case (although the situation phase continues as long as the prosecutors investigation remains open).
634 Silvana Arbia, ICC registrar, Statement to the thirteenth diplomatic briefing of the International Criminal Court, Brussels, June 24, 2008, in Compilation of Statements, unpublished document on file with Human Rights Watch, p. 12 (Statement to the thirteenth diplomatic briefing).
635 DRC January 2006 Decision on Victims Participation, para. 100. In this decision, Pre-Trial Chamber I makes it clear that its assessment of harm at both the situation and case phases is only preliminary and is subject to amendment by the Trial Chamber in the context of a case. Ibid., para. 82.
636 Ibid., para. 101.
637 Ibid., para. 63. In terms of reparations, Judge Pikis of the Appeals Chamber has noted that victims have an interest in bringing to light in proceedings the harm or loss they have suffered, since this information may later be relevant for the court in evaluating reparations claims. Lubanga June 2007 Appeals Chamber Decision on the Joint Application of Victims, separate Opinion of Judge Pikis, para. 16. Victims can seek court-ordered reparations directly from a convicted person under Rome Statute, art. 75(2). Although the reparations and participations processes are distinct (meaning a victim does not have to participate in proceedings to be eligible for reparations), there may be victims seeking reparations who are also participants in proceedings. These victim participants have an interest in following proceedings at the situation phase that may result in identifying alleged perpetrator(s) who, if convicted, could be required to make reparations.
638 For a more detailed discussion of the role of ad hoc counsel for defense, see Part III.
639 Uganda August 2007 Decision on Victims Participation, para. 88.
640 Rome Statute, art. 53(3)(a).
641 Ibid., art. 53(3)(b).
642 Jérôme de Hemptinne and Francesco Rindi, ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings, Journal of International Criminal Justice, vol. 4 (May 2006), p. 347.
643 Rules of Procedure and Evidence, rule 92(2) outlines the notification requirements of victims in relation to the prosecutors decision under article 53 in order to allow their participation in these proceedings. Specifically, the court must notify victims or their legal representatives who have already participated in the proceedings or [ ] those who have communicated with the court in respect of the situation or case in question (emphasis added). Pre-Trial Chamber II noted that this is the only reference in the ICC legal regime to situation victims, which suggests that they have a specific role to play in the situation phase. See Uganda August 2007 Decision on Victims Participation, para. 95. Indeed, a decision by the prosecutor under this provision can have a significant impact on the personal interests of victims: if there are no proceedings in which victims can participate, the opportunity to see justice for the ICC crimes that resulted in the harm they suffered is effectively foreclosed.
644 Uganda August 2007 Decision on Victims Participation, para. 98. Moreover, even those who have not been recognized as victim participants (victim applicants) have a right to submit their views and concerns on security. Rules of Procedure and Evidence, rule 89(1) makes the transmission of victims application to the prosecutor and the defense subject to the adoption of appropriate protective measures as per article 68(1) of the Rome Statute. In practice, this can mean that the prosecutor and defense are only provided with redacted versions of the applications. This addresses the reality that risks may emerge for victim applicants in relation to ICC investigations or proceedings long before a case is actually identified. See Situation in the DRC, ICC, Case No. ICC-01/04, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp (Public Redacted Version), July 21, 2005.
645 Uganda August 2007 Decision on Victims Participation, para. 100. The courts authority is triggered by the request of the prosecutor, but the court can adopt measures on its own initiative if the evidence is considered necessary for the defence and the prosecutor refuses to take action. The application of this provision in practice reveals that such unique investigative opportunities can arise in the situation phase (in addition to the case phase). This provision was applied in the DRC situation prior to the identification of a case. Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Prosecutors Request for Measures under Article 56, April 26, 2005.
646 Uganda August 2007 Decision on Victims Participation, para. 101. This authority could be triggered at the situation phase, when it is still unclear as to whether the evidence to be preserved refers to an incident that will be the subject of a case. For example, pending a ruling by the pre-trial chamber regarding the admissibility of a case, the prosecutor can seek permission from the chamber to perform certain investigative steps to preserve evidence. Otto Trifterrer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verl.-Ges., 1999), p. 749.
647 Uganda August 2007 Decision on Victims Participation, para. 101.
648 Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Prosecution, OPCD and OPCV Requests for Leave to Appeal the Decision on the Applications for Participation of Victims in the Proceedings in the Situation, February 6, 2008; Situation in the DRC, ICC, Case No. ICC-01/04, Decision on Request for leave to appeal the Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 82(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, January 23, 2008; Situation in Darfur, ICC, Case No. ICC-02/05, Decision on Request for leave to appeal the Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, January 23, 2008; Situation in Darfur, ICC, Case No. ICC-02/05, Decision on the Requests for Leave to Appeal the Decision on the Applications for Participation of Victims in the Proceedings in the Situation, February 6, 2008.
649 DRC January 2006 Decision on Victims Participation, para. 98; Prosecutor v. Lubanga, 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 (Public Redacted Version), June 29, 2006, p. 6.
650 The applicant can also establish the link if he or she can show harm resulting from efforts to intervene to assist direct victims in the case or to prevent the crimes alleged against the defendant from being committed against these direct victims. See Prosecutor v. Lubanga, 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 Congo (Redacted Public Document), July 28, 2006, p. 9.
651 According to Pre-Trial Chamber II, there seems to be little doubt, at least in principle (and unless the Chamber decides otherwise in relation to a specific proceeding), that this requirement is met whenever a victim (whether a natural person, an organization or an institution pursuant to rule 85 of the Rules) applies for participation in proceedings following the issuance of a warrant or arrest or of a summons to appear for one or more individuals. See Uganda August 2007 Decision on Victims Participation, para. 9.
652 Arbia, Statement to the thirteenth diplomatic briefing, p. 12.
653 Prosecutor v. Lubanga, ICC, 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 (Lubanga Confirmation Hearing Victims Participation Arrangements Decision); Prosecutor v. Lubanga, 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, October 20, 2006.
654 Rules of Procedure and Evidence, rule 89(1).
655 Ibid., rule 91(3)(a).
656 Lubanga Confirmation Hearing Victims Participation Arrangements Decision.
657 Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, May 13, 2008, para. 184 (Katanga May 2008 Decision on Procedural Rights of Victims).
658 Ibid., para. 127-128. It does not include access to filings or decisions classified as ex parte. Further, only the legal representatives of the victims can access confidential filings, with the caveat that they cannot provide to their clients the names of confidential witnesses. Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Decision on Limitations of Set of Procedural Rights for Non-Anonymous Victims, May 30, 2008, para. 25.
659 For a full discussion of the modalities, see Katanga May 2008 Decision on Procedural Rights of Victims, paras. 124-152.
660 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on victims participation, January 18, 2008 (Lubanga January 18, 2008 Victims Participation Decision), para. 93.
661 Ibid., para. 95.
662 In his dissent, Judge Blattman expressed his disagreement with the new threshold articulated by the majority, preferring the threshold introduced by the pre-trial chamber. Ibid., para. 9 of the dissent.
663 Ibid., para. 95.
664 Ibid., para. 96.
665 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims Participation of 18 January 2008, February 26, 2008.
666 As discussed in Part II.C, above, this underscores why the Office of the Prosecutor should gather sufficient evidence to bring charges that are sufficiently representative of victimization in order to enable meaningful participation.
667 Human Rights Watch interview with local nongovernmental organization representative, and group interview with two local nongovernmental representatives, Bunia, April 30 and May 5, 2007.
668 Indeed, Judge Blattman noted that an imprecise definition of victims (such as the one set forth by the Majority) will not allow for an effective exercise of the participation rights of victims afforded to them by the Statute. Lubanga January 18, 2008 Victims Participation Decision, para. 6 of dissent.
669 Ibid., para. 105, and Rules of Procedure and Evidence, rule 131(2).
670 Rules of Procedure and Evidence, rule 92(5); Lubanga January 18, 2008 Victims Participation Decision, paras. 106-107.
671 Lubanga January 18, 2008 Victims Participation Decision, paras. 106-107.
672 Ibid., paras. 108-109 and 121.
673 Ibid., para. 122.
674 Victims can also communicate with the OTP directly under Rome Statute, art. 15.
675 Uganda August 2007 Decision on Victims Participation, para. 90.
676 Rules of Procedure and Evidence, rule 50(1). This notification obligation is subject to the prosecutors determination that doing so would not pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses.
677 There is no specific definition of this category of victims in the ICCs legal instruments.
678 Rules of Procedure and Evidence, rule 92(2) and (3).
680 Human Rights Watch separate interviews with ICC staff, 17 July, and ICC staff, The Hague, September 19, 2007. Indeed, court staff have acknowledged that the failure to effectively distribute information about victims rights at an early enough stage in Ituri has hampered the participation of victims at Lubangas confirmation of charges hearing. See Part V.C.1, above.
681 For more discussion of the Strategic plan, see Part I.B, above.
682 At this writing, there are VPRS representatives in some, but not all, of the courts field offices.
683 The form essentially mirrors the legal requirements for a complete application outlined in Court Regulations, reg. 86(2).
684 The form is now available on the ICCs website at http://www.icc-cpi.int/library/victims/Form-Participation-1_en.pdf (accessed June 13, 2008).
685 Human Rights Watch separate interviews with local nongovernmental organization representatives, Bunia, April 30 and May 5, 2007.
686 Human Rights Watch interview with local nongovernmental organization representative, Bunia, May 5, 2007.
687 Human Rights Watch interview with ICC staff, July 17, 2007.
689 Under rule 89(1) of the Rules of Procedure and Evidence, this is subject to a decision of the chamber to redact parts of the form due to concerns about victims security.
690 Court Regulations, reg. 86(5). The VPRSs report can provide background information for the chamber, such as information about the kinds of identity documents available for victims in the situation country, to evaluate whether an individual has satisfied the identity requirements of the form. See Situation in Uganda, ICC, Case No. ICC-02/04, Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06 (Public Redacted Version), March 14, 2008.
691 The chamber can request additional information from the VPRS before making a decision. Court Regulations, reg. 86(7).
692 Rules of Procedure and Evidence, rule 89(2).
693 For example, some of the victims in the Lubanga case were represented by Avocats sans Frontières, while others were represented by a Congolese legal representative.
694 Human Rights Watch interview with ICC staff, The Hague, April 17, 2008; DRC August 2007 Decision on the Request of the Legal Representative of Applicants, para. 43.
695 Rules of Procedure and Evidence, rule 90(5). So far, two legal representatives have been paid by the courts legal aid system. Human Rights Watch interview with ICC staff, The Hague, April 17, 2008. As noted earlier, the OPCV has been appointed to act as a legal representative for victim participants in both the situation and the case phases.
696 For a more detailed discussion of the courts outreach strategy, see Part V.
697 Human Rights Watch interviews with local authorities and women at the market, Nyakunde, May 4, and with local authorities and approximately 50 women and men in the local population, Kilo, May 6, 2007.
698 Human Rights Watch group interview with representatives of Hema community, and separate interview with representative of Hema community, Bunia, May 2 and 8, 2007.
699 Human Rights Watch interview with Ugandan government official, Gulu, March 7, 2007.
700 Human Rights Watch interviews with refugees, D'Jabal, Farshana, Bredjing, Treguine, and Gaga camps, July 19-21 and 23-24, UNHCR staff, Abeché, July 18, Farshana, July 20, and Goz Beida, July 23, and camp managers for Farshana, July 21, D'Jabal, July 23, and Treguine, July 20, 2007.
701 Human Rights Watch separate interviews with representatives of local nongovernmental organizations, Bunia, May 5, 2007.
702 Human Rights Watch interview with representative of local nongovernmental organization, Bunia, May 7, 2007.
703 Human Rights Watch interview with representative of local nongovernmental organization, and group interview with two local nongovernmental organization representatives, Bunia, April 30 and May 5, 2007.
704 ICC, Outreach Report 2007, December 11, 2007, http://www.icc-cpi.int/library/OutreachRP2007-ENG.pdf (accessed June 9, 2008), p. 78; ICC, Outreach in Uganda: Monthly Report of Activity, March 2008.
705 Even in countries with a history of victims participation, like the DRC, additional efforts may be needed to clarify the unique way it is realized before the ICC. This could include pointing out that the victims participating before the ICC do not have the same rights as those in civil law jurisdictions. This could help manage expectations about what can be achieved through participation. The timing of these messages is also crucial: the applications for victims participation are lengthy and the delays in processing them considerable, so information about the regime should be dispensed as early and as often as possible to inform the largest number of victims.
706 Human Rights Watch interview with ICC staff, July 17, 2007; Human Rights Watch interview with ICC staff, The Hague, September 19, 2007; Human Rights Watch interview with ICC staff, The Hague, April 17, 2008.
707 Human Rights Watch interview with ICC staff, The Hague, April 17, 2008.
708 These difficulties illustrate why it is important for victim applicants to have access to a legal representative at the earliest opportunity. However, victims who live in remote locations and often in great poverty have, for the most part, no access to an attorney whose services they can afford since only individuals recognized as victim participants (and not applicants) are eligible for financial assistance from the court. Some international NGOs and individual lawyers have facilitated this process and identified or acted as pro bono lawyers in the application phase. They should be commended for their dedication.
709 The participation booklet is available on the ICCs website, http://www.icc-cpi.int/library/victims/VPRS_Booklet_En.pdf (accessed June 13, 2008).
710 Human Rights Watch interview with representative of local nongovernmental organization, Bunia, May 5, 2007.
711 Human Rights Watch interview with representative of local nongovernmental organization, Lira, March 12, 2007.
712 Human Rights Watch interview with ICC staff, July 17, 2007.
713 Human Rights Watch separate interviews with representatives of local nongovernmental organizations, Bunia, May 5 and 7, and group interview with representatives of local nongovernmental organizations, Goma, May 9, 2007.
714 Human Rights Watch interview with local nongovernmental organization representative, Bunia, April 30, 2007.
715 Human Rights Watch separate interviews with two representatives of local nongovernmental organizations, Gulu, March 7 and 8, 2007.
716 See Part VI.C.1, above. The court should also continue to be sensitive about the specificities of its partnership with local NGOs. For example, a number of local NGOs expressed concern at a comment made by a high-level ICC official at an outreach event in Bunia in March 2007. When asked by a Hema (the ethnic group of Thomas Lubanga) hardliner about the procedure to become a victim participant at the ICC, the court official replied, in a room largely filled with Hema sympathizers, that local NGOs in Bunia should be contacted as they could help fill in the forms. Fearing reprisals, many intermediaries in Bunia went into hiding for a short period following this remark. Human Rights Watch separate interviews with representatives of local nongovernmental organizations, Bunia, May 5 and 7, 2007.
717 Human Rights Watch interview with representative of local nongovernmental organization, Bunia, May 7, 2007.
718 Rome Statute, art. 75(2).
719 In exceptional circumstances, the court may also commence reparations proceedings on its own motion under Rome Statute, art. 75.
720 The term victim is generally defined to 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. Rules of Procedure and Evidence, rule 85(b).
721 The form can be accessed at http://www.icc-cpi.int/library/victims/Form-Reparation-1_en.pdf (accessed June 13, 2008).
722 Court Regulations, reg. 56; Lubanga January 18, 2008 Victims Participation Decision, para. 120.
723 Rome Statute, art. 75(3); Rules of Procedure and Evidence, rule 97(2).
724 Rules of Procedure and Evidence, rule 150(1).
725 Rome Statute, arts. 75(4), 93(1).
726 Rules of Procedure and Evidence, rules 98(2), 98(3).
727 Regulations of the Trust Fund for Victims, International Criminal Court, ICCASP/4/Res.3, December 3, 2005,
http://www.icc-cpi.int/library/about/officialjournal/ICC-ASP-4-32-Res.3_English.pdf (accessed June 12, 2008), regs. 21, 47 (Regulations of the Trust Fund for Victims).
728 Ibid., reg. 56; Rules of Procedure and Evidence, rule 98(5).
729 Rome Statute, art. 79; Rules of Procedure and Evidence, rule 98(5); Regulations of the Trust Fund for Victims, regs. 47, 48.
730 This aspect of the TFVs mandate was the result of heated negotiations during the Assembly of States Parties in 2005, which adopted the Regulations of the Trust Fund for Victims. The idea of interim assistance was strongly supported by countries like France and Belgium and was initially born out of criticism of the fact that the ICTR provided medical assistance to defendants but not victims, the latter of whom sometimes died before having seen justice for the crimes they suffered.
731 Regulations of the Trust Fund for Victims, reg. 50.
732 Ibid., reg. 50(a)(ii)
733 See Part V.
734 Situation in Uganda,ICC, Case No. ICC-02/04, Decision on Notification of the Trust Fund for Victims and on its Request for Leave to Respond to OPCDs Observations on the Notification, March 19, 2008; Situation in the DRC,ICC, Case No. ICC-01/04, Decision on the Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund, April 11, 2008 (DRC April 2008 Decision on Trust Fund Regulation 50).
735 DRC April 2008 Decision on Trust Fund Regulation 50, p. 7.
736 Regulations of the Trust Fund for Victims, regs. 67, 71, and 73.
737 Human Rights Watch email correspondence with TFV staff, June 23, 2008.
738 Regulations of the Trust Fund for Victims, reg. 49.
739 Ibid., regs. 61 and 70.
740 See REDRESS, State Cooperation & the Rights of Victims before the International Criminal Court, paper presented by REDRESS at the Fifth Session of the Assembly of States Parties, The Hague, Netherlands, November 23December 1, 2006, http://www.redress.org/publications/StateCooperation&RightsofVictims.pdf (accessed May 5, 2008), p. 8.