Introduction
We write to you concerning the protection of victims participating in criminal proceedings at the International Criminal Court ("ICC"). The Rome Statute and the ICC Rules of Procedure and Evidence ("ICC Rules") provide victims with unprecedented rights. Victims are empowered to present their views and concerns, separate from testifying as witnesses, where their personal interests are affected and where participation is done in a manner that does not conflict with the rights of the accused and a fair and impartial trial.1
We believe that victims' participation in ICC criminal proceedings is an important innovation in international justice. By breaking down traditional barriers between victims and the judicial process, and by enabling victims to have more control over their interaction with the ICC, justice is more likely to be accessible and seen as responsive to those who have suffered the most. Victims' participation may strengthen cases against perpetrators as victims or their legal representatives make statements and question witnesses, experts and accused.
Experience from the International Criminal Tribunals for Rwanda ("ICTR") and the former Yugoslavia ("ICTY") strongly suggests that victims are likely to face serious security, psychological, and physical challenges related to their involvement with the ICC, whether serving as witnesses or as participants. For example, numerous witnesses have refused to testify in the tribunals' proceedings because of fears of reprisals against them or their families.
The Rome Statute and the ICC Rules require protection for victim participants, including ensuring their safety, dignity, privacy, and physical and psychological well-being.2 In order to enable victims to meaningfully participate in criminal proceedings, they must receive adequate protection. To fulfill the Court's obligations, physical and emotional protection must be addressed from the initial interaction between victim participants and the ICC (likely during the investigation stage), through trial and post-trial. We believe that the capacity of the Court to ensure adequate protection will determine the extent to which victims will cooperate with the Court and take an active part in proceedings in the future.
Below we outline concrete recommendations on protection of victim participants in criminal proceedings that we believe would be beneficial. We hope that these recommendations are useful as the organs of the Court develop regulations and policies for their operations, particularly during the judges' plenary session currently taking place. We also hope that they will be useful as ICC States Parties assess budgetary requirements for the Court to satisfy its obligations relating to victim participants.
We recognize that victims' participation and ensuring related protection is likely to present significant challenges to managing ICC proceedings efficiently and effectively, particularly as victim participants may number in the thousands. Our recommendations are intended to enhance the Court's capacity to meet its obligations to protect victim participants without undermining the efficiency and effectiveness of its operations.
We expect that the capacity of the Court to ensure adequate protection for victim participants will increase over time as the ICC continues to function. In this regard, we welcome the recent establishment of a working group on victims' issues at the ICC. We believe that this group should play an important role in ensuring adequate protection by enhancing coordination between different actors at the ICC.
Our recommendations are based on Human Rights Watch's experience working with victims of serious human rights violations and crimes, and information that we have obtained concerning interaction between victims and the ICTY, the ICTR, and the Special Court for Sierra Leone.
We have chosen to concentrate on recommendations specific to victims as participants in ICC criminal proceedings, as we believe this entails some unique protection issues. Although many of the recommendations may apply to victims serving as witnesses or claiming reparations, the memorandum does not discuss these types of involvement in any detail.
The memorandum organizes its discussion into various protection issues related to victims' participation, namely: (A) overview of participation; (B) the Victims Participation and Reparation Unit and field offices; (C) outreach; (D) investigation; (E) application for participation; (F) notifications; (G) working with legal representatives; (H) relations between the ICC and nongovernmental organizations; (I) appearances at court; and (J) post-trial protection.
A. Overview of Participation
Under the Rome Statute and the ICC Rules, victims have the opportunity to participate in criminal proceedings at the Court in a number of ways. Victims or their legal representatives may make submissions to the Court on the authorization of an investigation.3 Victims or their legal representatives may submit observations to the Court regarding challenges to the admissibility or jurisdiction of a case.4 Victims or their legal representatives may, at the discretion of the Chambers, make representations to the Court including opening and closing statements.5
Additionally, victims' legal representatives are entitled to attend and participate in hearings and, at the discretion of the Chambers, may question the accused, a witness, or an expert.6 Victim participants and their legal representatives may consult the trial record7 and, where possible, be present for announcements of decisions on admissibility, jurisdiction, criminal responsibility, sentencing, and reparations.8 A Chamber may also seek the views of victims or their legal representatives on any issue.9
B. The Victims and Witnesses Protection Unit, the Victims Participation and Reparation Unit, and Field Offices
Under the Rome Statute and the ICC Rules, the Victims and Witnesses Unit ("VWU"), set up within the Registry,10 has the primary responsibility for protection of victims.11 We understand that the VWU is now referred to as the Witnesses Protection and Victims Participation Section and that the section is comprised of two units: the Victims Participation and Reparation Unit (the "Participation and Reparation Unit") and the Victims and Witnesses Protection Unit (the "Protection Unit").12
We understand that the Participation and Reparation Unit's work will specifically encompass responsibilities concerning outreach, the processing of applications for participation, legal representatives, and nongovernmental organizations in relation to victim participants, all of which involve significant protection issues. As a result, effective consultation, coordination, and collaboration between the Protection Unit and the Participation and Reparation Unit will be essential for ensuring adequate protection.
Similarly, coordination between the Protection Unit and ICC field offices, which are envisioned once investigations are commenced,13 will be important to ensuring adequate protection. These field offices should be closely monitoring the security situation in the territory where the crimes were committed.
Throughout the memorandum, we highlight specific ways that the Participation and Reparation Unit and field offices should collaborate with the Protection Unit to ensure adequate protection for participants, including on: security assessments of risks to victim participants; training materials for nongovernmental organizations and legal representatives; and outreach.
However, as an overall matter, we recommend that the chief of section for the Participation and Reparation Unit and the Protection Unit develop procedures to ensure appropriate consultation, coordination, and collaboration between the Protection Unit and both the Participation and Reparation Unit and ICC field offices. We further recommend that the Protection Unit and Participation and Reparation Unit together appoint at least one person to implement functions related to protection at ICC field offices. We believe that having a person focused on participant protection in these offices will enhance the Protection Unit's capacity to make security assessments, communicate with participants, and suggest appropriate protection measures.
To the extent ICC field offices are not located in the countryside of a particular area, members of the ICC field office should travel throughout the country where necessary to conduct outreach and ensure protection. We also recommend that field offices be located in busy public places without external identifying characteristics so that persons can enter and exit such offices without being identified as a participant or witness.
C. Outreach
Human Rights Watch experience has shown that the workings of a complex criminal proceeding, particularly at an international justice mechanism, may be confusing to many victims. Although the ICC should try to improve on the records of the ICTY and ICTR in ensuring protection for victims, there are also practical limits to the protection that the ICC can provide.
Human Rights Watch is aware that at the ICTY and ICTR, the failure to provide victims with comprehensible information about the overall process for the investigation and prosecution of a case, and the limits of available protection, has caused victims trauma and humiliation. Inadequate information can create false expectations or encourage victims to take risks without full knowledge of the limits of protection.
Below we make recommendations on preparing and distributing materials to potential and actual victim participants containing essential information on participation and related protection. We believe that making such information available will go a long way toward ensuring victims' safety, dignity, privacy, and physical and psychological well-being.
1. The Participation and Reparation Unit should consult with the Protection Unit to develop materials for victims connected to any situation under investigation
Consistent with the Protection Unit's role in ensuring protection and the Participation and Reparation Unit's role in conducting outreach to potential victim participants, we recommend that the two units make vigorous efforts to ensure the widest possible spectrum of victims have access to information concerning participation and related protection.
We recommend that once an investigation is authorized, the Participation and Reparation Unit should provide information to victims affected by the situation under investigation. We believe that the Participation and Reparation Unit, in consultation with the Protection Unit, should develop materials that will provide potential victim participants with all the facts they will need to make an informed decision about whether to participate. These include:
a. The differences between serving as a witness and acting as a participant;
b. The criteria for participation, including that applications may be rejected;
c. How each stage of participation is likely to unfold, with a possible time line;
d. Risks that may be posed by participation, including that the defense will see the application;
e. Particular protection measures that the ICC can and cannot provide;f. Criteria that must be satisfied to receive protection measures;
g. How information provided to investigators during investigations will be used;
h. ICC policy on confidentiality issues; and
i. Anticipated means of communication between the ICC and victims.
We recommend that these materials stress to victims the importance of considering facts relating to the above issues in deciding whether to participate.
We also recommend that information be prepared on why the ICC is addressing the situation instead of local criminal justice mechanisms. We recommend that the Participation and Reparation Unit distribute all of this information widely, in as many relevant languages and formats as possible in the geographic areas surrounding the situation under investigation.
2. The Participation and Reparation Unit should collaborate with the Protection Unit to develop oral formats for protection information
It is likely that some victims will not be literate or proficient in international languages. Human Rights Watch is aware that outreach materials provided at a Kigali office for the ICTR were not found useful by many Rwandans as they consisted primarily of materials written in French, or visual materials that required equipment to which they had no access.
We recommend that the Participation and Reparation Unit coordinate with the Protection Unit to disseminate information to victims through oral presentations, radio announcements, and town hall style meetings in villages. The Sierra Leone Special Court has used this approach, employing local staff to translate information from the court into an easy to understand format in local languages, and traveling to villages around the country to convey this information.
One important way to conduct outreach will be through local nongovernmental organizations ("NGOs"). Local NGOs are likely to have good access to victims who may be participants and such NGOs could serve as an important resource to convey information about protection to these persons. Accordingly, the Participation and Reparation Unit should utilize the services of NGOs to perform such outreach where possible. However, we recommend that the Participation and Reparation Unit should make efforts to conduct independent outreach to categories of victims who do not appear to have organized NGO assistance at their disposal.14
Another important way to conduct outreach will be through ICC field offices. We recommend that the Participation and Reparation Unit, the Protection Unit, and ICC field offices collaborate to develop and implement initiatives to communicate relevant information directly to victims. These initiatives should be required to extend beyond the capital city of the country concerned. We further recommend that local staff are hired to perform outreach functions where appropriate.
D. Investigation
Due to its role in conducting investigations, the Office of the Prosecutor ("OTP") may be the first organ of the Court to communicate directly with specific victims. We note that at initial stages of the proceedings, it is not likely to be clear if a victim will be involved in any capacity in the proceedings. Nevertheless, the OTP should fulfill its obligations as required under Article 68 of the Rome Statute to ensure protection for victims during investigations.15
Experience has demonstrated that the objectives in investigations, such as obtaining as much information on a situation as possible, may conflict with ensuring protection for victim participants. In particular, we are aware that at some international and mixed tribunals, investigators, in an effort to obtain evidence, have in certain instances led victims to believe they would receive protection measures that they were not in fact provided. This resulted in trauma and distress for the victims. At the ICC, another potential conflict of interest for investigators could be their objective of particular victims agreeing to serve as witnesses and not act as participants.16
1. The OTP should develop guidelines for investigators that uphold protection
To fulfill the OTP's obligations to protect victims, we recommend that the OTP, in consultation with the Protection Unit, develop guidelines for investigators that specifically address the following areas:
Security, by evaluating the security situation in areas where conducting investigations; taking statements in an accessible, nondescript, and safe location; and making investigators discretely carry a badge that clearly identifies them as an investigator of the OTP, including to persons who are illiterate;
Confidentiality, by developing a policy to keep information contained in laptops, written documents, and other communications secure; and sanctioning violations of that policy;
Retraumatization, by ensuring that investigators have experience dealing with victims, victims of sexual violence, and child victims;
Information, by requiring investigators to inform victims about the differences between serving as a witness or acting as a participant; the option to apply to be a participant; protection measures available to participants; criteria for obtaining protection measures; the timeline of the investigation; how information victims provide will be utilized; and what subsequent stages of the process may involve; and
Communication, by identifying a contact person, such as from an ICC field office, the ICC office in The Hague, or a local nongovernmental organization, that victims can contact for additional information.
We recommend that the OTP collaborate with the Protection Unit to develop and provide periodically a training program for investigators in these five areas. We recommend a mandatory training program for all investigators on working with women's and children's rights. A more in-depth course should be provided for investigators dealing directly with victims of sexual violence and children who are victims.
2. The OTP should work closely with the Protection Unit during investigations
Under the Rome Statute, the VWU may advise the prosecutor on appropriate protection measures, security arrangements, counseling, and assistance for victims who appear before the Court.17 However, the ICC Rules do not detail how the OTP and the VWU will work together. As the Protection Unit is the primary unit responsible for protection, we recommend that the OTP and the Protection Unit work closely from the earliest moment in an investigation. Specifically, we recommend that such collaboration should occur at least in the form of weekly meetings between the OTP and the Protection Unit once a situation is under investigation and include the following issues:
a. Evaluating security issues;
b. Assessing necessary protection measures; and
c. Collecting information on victims.
E. Application for Participation
As required under ICC Rule 89(1), victims who would like to participate in criminal proceedings at the ICC must make a written application to the registrar.18 The application to participate will provide an important opportunity for the Protection Unit to ensure adequate victim protection as required for the VWU under the Rome Statute and the ICC Rules, including:
a. Developing long-and short-term plans for protection;
b. Recommending to the organs of the Court protection measures that should be adopted;
c. Assisting victims in obtaining medical, psychological, and other appropriate assistance; and
d. Advising relevant states of protection measures and cooperating with states, where necessary, to provide such protection.19
1. The application should request information to assess necessary protection
We believe that the application should be utilized to obtain information on security risks and to establish appropriate means of future communication with applicants without being overly burdensome to complete. Accordingly, we recommend the Participation and Reparation Unit consult with the Protection Unit to develop concise questions for the application on the following issues:
a. Applicant's perception of risks to safety; and
b. Preferred means of communication by the victim with the Court.
We recommend that the Protection Unit utilize this information to make a preliminary assessment of security risks for potential victim participants. We recommend that the Protection Unit consult with the ICC field office to seek corroboration that the situation on the ground reflects the information contained in victims' applications. We recommend that following consultation, the Protection Unit should share its conclusions with the Chambers and the OTP and implement appropriate protection measures. 20
2. The application should provide victims with sufficient information to ensure protection
Because the submission of an application does not guarantee participant status, applicants not awarded this status may be especially vulnerable targets. Failure to inform victims that the defense will see their application could result in unnecessary trauma or safety risks.
The application process will allow the Protection Unit to convey important protection information to potential victim participants. However, victims must receive adequate information prior to submitting an application to ensure adequate protection. Most importantly, victims should be informed that the prosecutor and the defense will have the opportunity to review the application and submit a reply to the Court pursuant to ICC Rule 89.21
We recommend that the Participation and Reparation Unit, in consultation with the Protection Unit, develop oral and written materials to accompany the application on the areas outlined in the outreach section (section C(1)). The materials should devote attention to the criteria for acting as a participant, how and when the information in the application will be utilized, the timeline for a decision on status, and how communication on determination of status will be conveyed.
3. The Participation and Reparation Unit should avoid exposing victims to security risks by submitting an application
Risks to security may be involved in providing information in the application process. We recommend that the Participation and Reparation Unit proceed cautiously in disqualifying applications where protection issues or other logistical constraints may have undermined the preparation of a complete application.
One potential issue concerns documentation to confirm information in the application. The Participation and Reparation Unit could require documents to prove identity, but the applicant may have lost all documents and cannot obtain duplicates without raising suspicion. We recommend that the Participation and Reparation Unit and the Protection Unit collaborate to develop and clearly convey in the application a policy of not exposing applicants to unnecessary dangers in the application process. We further recommend that the application include procedures that allow the applicant to explain why particular information is not included due to security reasons.
Other protection issues may arise with regard to how an application is submitted. If there is no mail service in an area, an alternative secure means of submitting an application locally needs to be established. This is particularly true when victims are from small villages where their absence would be noticeable if it was necessary to travel to submit the application. We recommend that the Participation and Reparation Unit consult with the Protection Unit to develop a dependable means of collecting applications safely. Ways to address this might include deploying a traveling courier service that can operate discretely by using local staff, or coordinating with local NGOs and ICC field offices to collect applications and transfer them to the ICC.
4. The Participation and Reparation Unit should ensure that information in the application is kept confidential
The information provided in an application may be sensitive and should be treated accordingly. At the ICTY and ICTR, serious lapses in keeping sensitive information confidential have occurred. For example, Human Rights Watch is aware that staff at the ICTY accidentally revealed the identity of certain victims serving as witnesses by leaving messages at their place of work.
We recommend that the Participation and Reparation Unit, in consultation with the Protection Unit, develop strict guidelines for maintaining the confidentiality and security of information contained in the applications. We recommend that Court staff and all actors working on behalf of the Court receive training in implementing these guidelines. Practices should also be established to transfer application information through the most secure channels possible from the registrar to parties, such as the defense, who will receive the information. We recommend that, at all times, access to sensitive information should be restricted to persons who need to know the information.
In order to encourage compliance with confidentiality guidelines, we recommend that the Participation and Reparation Unit and the Protection Unit coordinate to ensure that violations of the guidelines are investigated and sanctioned. Any violation that places victims at risk should be treated with the utmost seriousness.
F. Notifications
A number of notifications to victims are required under the Rome Statute and the ICC Rules throughout criminal proceedings. Human Rights Watch experience has shown that to ensure that notifications do not expose victim participants to safety or privacy risks, or undermine their physical or psychological well-being, the specific precautions outlined below should be implemented.
1. Notifications should not expose victims to security risks
Under the Rome Statute and the ICC Rules, the OTP must communicate with victims prior to a decision to proceed with a case. Under Article 15(6) of the Rome Statute and ICC Rule 49(1), the prosecutor is required to inform, without undermining their protection, victims who provided information during a preliminary examination if he decides that a reasonable basis for an investigation does not exist.22 Under ICC Rule 50, the prosecutor is also required to inform victims known to him or the VWU when seeking authorization from the Pre-trial Chamber to investigate a situation, unless such notice would undermine protection.23
These notifications are crucial to enable victims to participate as provided under the Rome Statute.24 However, they are also very sensitive. The prosecutor is indicating that he will not investigate the crimes reported by the victims, or that he will initiate an investigation but without guarantee that he will prosecute. The potential for confusion, distress, and frustration by victim participants receiving these notifications will be enormous. Moreover, victims who communicate with the OTP on crimes that are ultimately not prosecuted may be particularly vulnerable as targets of revenge attacks.
Consistent with the prosecutor's duties under Article 68(1) and the registrar's role in assisting in notifications to victims,25 we believe that the OTP should adopt flexible but effective guidelines to ensure appropriate considerations are taken when implementing requirements to notify victims of decisions prior to deciding to prosecute a case.
With regard to substance, we recommend that the OTP, in consultation with the Protection Unit, develop clear and easy to understand materials explaining what the prosecutor's decisions prompting these notifications do and do not mean. Where appropriate, these materials should be prepared in oral, in addition to written, formats.
Human Rights Watch recommends that the OTP, in consultation with the Protection Unit:
a. Assess the security situation before communicating with victims;
b. If at all possible, inquire in advance, such as in the application for participation, how applicants wish to be informed at this stage;
c. If there is mail service and sending a letter would not pose an unnecessary risk, send letters in an envelope without letter head;
d. If there is no mail service, security does not permit sending written communications, or the person is illiterate, consider using local intermediaries such as an NGO or legal representatives;
e. If security does not permit sending letters, consider favoring public announcements in newspapers or on the radio, or holding meetings in villages;
f. Avoid measures that could create unnecessary information leaks, such as leaving phone messages with a person other than the participant, identifying oneself as Court staff with a person other than the participant, or speaking to a person other than the participant in a non-local language; and
g. Identify a contact person, such as from an ICC field office, the ICC in The Hague, or a local NGO, that victims can contact for additional information.
Pursuant to ICC Rule 92, once a victim has been accepted by the Chamber to participate in the proceedings, the registrar must inform him or her regularly about the development of the case, and about times and dates of the hearings where he or she is entitled to appear.26 We understand that the Participation and Reparation Unit will handle this function. We recommend that the Participation and Reparation Unit take into account the same considerations as the OTP to ensure that notifications throughout proceedings respect the dignity, privacy, safety, and security of victims.
2. The Protection Unit should protect victims who are denied participant status
Rejection of an application to participate in criminal proceedings at the ICC or learning that a defendant is acquitted may cause significant distress and frustration for applicants. Rejection of participant status could be misinterpreted as a denial of the person's suffering. This is particularly true where the applicant is a victim, but does not meet the standard to participate under the Rome Statute.27
The potential of serious emotional damage for applicants who are rejected from participant status will be significantly magnified if the rejection is not communicated with adequate sensitivity. We recommend that, as much as possible, the Chambers explain in a clear and understandable way the basis on which it rejects an application to participate.28 We further recommend that the Participation and Reparation Unit coordinate with the Protection Unit to ensure that applicants receive rejections in a way that best upholds their dignity and psychological well-being based on consultation with experts in trauma. We also recommend that the Participation and Reparation Unit convey to applicants, consistent with ICC Rule 89(2), that they may re-apply for participant status.29
3. The Protection Unit should support the well-being of victims who participated in a case where the defendant is acquitted
Under the same reasoning discussed with respect to rejections of applications to participate, we believe that victims participating in a case where the defendant is acquitted may experience significant trauma. We are aware that witnesses at the ICTY, for example, expressed shock, anger, disappointment, and confusion when a case in which they testified was dismissed. Accordingly, we recommend that the Protection Unit take measures to ensure the safety and psychological well-being of these victims based on consultation with experts in trauma.
G. Working with Legal Representatives
An important feature of victims' participation involves the legal representative. Pursuant to ICC Rule 90(1), a victim participant may choose a legal representative to act on his or her behalf. Alternatively, pursuant to ICC Rule 90(2), the Chamber may request that "victims or particular groups of victims, if necessary with the assistance of the Registry, [may] choose a common legal representative or representatives." As discussed in the introduction, a legal representative of a victim participant may conduct a range of activities on behalf of victims, including attending proceedings, making written submissions, and questioning witnesses, accused, and experts.
Legal representatives may play a positive role in protection of participants. For example, the use of a legal representative could neutralize security and re-traumatization risks for victims in relation to a criminal proceeding by acting as a point person for interaction with the Court and attending proceedings instead of victims. However, Human Rights Watch experience has shown that using a legal representative could result in serious lapses in protection due to confidential information leaks or conflicts of interest resulting from common representation of multiple victims.
We understand that the Participation and Reparation Unit will be handling functions related to the registrar's requirement under Rule 16(1)(b) to assist victims in obtaining legal advice.30 To ensure protection of victim participants working with legal representatives, we believe that the Participation and Reparation Unit should collaborate with the Protection Unit to enforce strict adherence to guidelines for legal representatives of victim participants; make information on violations of the guidelines available to victim participants; and develop training materials for legal representatives on protection.
1. Legal representatives should be required to submit a certificate of good standing from the jurisdictions where they are licensed
We are aware that the registrar has prepared a draft "Code of Conduct for Counsel before the ICC" ("Draft Code") "as a common standard of achievement for all counsel practicing" at the Court.31 (emphasis added) We welcome that the Draft Code includes provisions on confidentiality, conflicts of interest, refraining from revealing the identity and whereabouts of protected victims, and avoiding causing victims unnecessary stress. We further welcome that the Draft Code includes a disciplinary regime with sanctions for violations, including a permanent ban on practicing at the ICC. We recommend that these areas be included in the final code of conduct.
In addition to compliance with the code of conduct, we recommend that the Participation and Reparation Unit require legal representatives to submit a certificate of good standing from the jurisdictions where they are licensed and that the Protection Unit establish a record of violations of the code of conduct that is made available to victim participants.
2. The Participation and Reparation Unit and the Protection Unit should collaborate on training material for legal representatives
Experience has shown that legal representatives of victim participants should receive training materials to ensure that they do not inadvertently undermine protection. We recommend that the Participation and Reparation Unit collaborate with the Protection Unit to design training materials on protection-related issues for legal representatives. We believe that such materials should address procedures relating to the Code of Conduct, such as keeping information confidential and secure, and other skills such as demonstrating competency when communicating with victim participants, particularly victims of sexual violence or children.
We recommend that the Participation and Reparation Unit distribute these materials to all legal representatives of victim participants. Once ICC field offices are established, we recommend that such materials be made available to local lawyers who are interested in representing participants.
H. Relations between the ICC and NGOs
Nongovernmental organizations could play an invaluable role in enabling the Court to ensure adequate protection for victim participants. Local NGOs can act as intermediaries in identifying potential participants, providing important information on security, assisting participants in maintaining their safety and psychological well-being, and disseminating information on the ICC. Consistent with ICC Rule 18(e), this resource should be utilized where appropriate.32 At the same time, broadening the circle of persons who have access to confidential information on participants by working with local NGOs could jeopardize protection. Below we make recommendations to enhance ICC cooperation with local NGOs while avoiding undermining protection.
1. The ICC should establish good working relationships with local NGOs
We believe that it will be crucial for the ICC to develop strong working relationships with local NGOs as soon as an investigation is initiated. We believe that one of the most important foundations of this relationship will be the ICC establishing credibility with local NGOs. To help achieve this, we believe that the Participation and Reparation Unit and the Protection Unit should hold joint meetings with local NGOs based in the geographic areas surrounding any situation under investigation. In these meetings, the Participation and Reparation Unit and the Protection Unit should convey the following information: 1) the Court takes victims issues seriously; and 2) suggestions or monitoring relating to the ICC's protection of victim participants would be welcomed.
Additionally, we recommend that the Participation and Reparation Unit and the Protection Unit assign a focal point in their units to be responsible for maintaining relationships with local NGOs. We believe that having such a focal point will help to ensure effective coordination with local NGOs.
2. The Protection Unit should consult local NGOs on security
Local NGOs are likely to have extremely useful information concerning the security situation in the territory where the crimes occurred, as this is the area in which they work consistently over time. We recommend that the Protection Unit consult with local NGOs on security and protection issues regarding victim participants.
3. The ICC should seek additional channels of communication with victim participants
Experience has demonstrated that not all NGOs will represent the needs or views of all victim participants at all times. Some NGOs may even be opposed to victims participating at the ICC. For example, at the ICTR, certain NGOs advised victims to refrain from testifying. Additionally, some groups of victims may also have more organized NGO assistance than others. Often, the most distressed or vulnerable victims, such as victims of sexual violence or victims who are children, have the least access to organizational support or are the least comfortable seeking out available organizational services. Accordingly, we recommend that the Protection Unit and the Participation and Reparation Unit pursue additional channels to communicate with potential or actual victim participants.
4. The Participation and Reparation Unit and the Protection Unit should collaborate on training for local NGOs on ICC practice and protection
Local NGOs often provide crucial services to victims. They have assisted with internal relocation and provided ICTY witnesses with someone to check-in with throughout proceedings. However, some work by local NGOs could undermine efforts to ensure protection before the ICC. For example, there is the risk that a victim's identity could be inadvertently leaked by a local NGO that releases information on a victim without giving a name, but the information could only describe a particular victim.
In order to ensure that local NGOs have the appropriate tools to assist protection for victim participants, we recommend that the Participation and Reparation Unit and the Protection Unit design training materials for local NGOs on the protection areas outlined in the outreach section (section C(1)). We further recommend that information on the utility of particular kinds of assistance that local NGOs may provide to victim participants be made available. By providing information on specific measures that support or undermine protection, we believe that local NGOs will be better equipped to assist victims with whom they work. We recommend that once ICC field offices are established, training materials be made available through these field offices.
I. Appearances at the Court
The Protection Unit is responsible for providing victims who appear at the Court with sufficient security and protection measures as required under ICC Rule 17.33
1. The Protection Unit should ensure adequate protection during appearances
We recommend that the Protection Unit develop procedures for providing safe travel for victim participants to and from the Court, including by assisting them in obtaining travel documents. In particular, this should include that ICC staff assisting in travel be discrete and use vehicles without ICC identifying characteristics.
We also recommend that the Court's layout be respectful of victims' protection. Specifically, we recommend that this include providing a curtain behind which victim participants can sit in the courtroom if they would like, making available separate rooms for participants to wait in prior to the commencement of proceedings in the courtroom, and situating victims in the courtroom to face the Chambers, and not the public.
It is envisioned that the ICC may hold some proceedings on the territory where the crimes occurred.34 We recommend that the Protection Unit advise the Chambers if conducting hearings on the territory where the crimes occurred in a particular case is not advisable due to protection issues. We further recommend that the Protection Unit consult with any relevant ICC field offices and local NGOs in determining if security is adequate to hold hearings in the field.
2. The Protection Unit should inform victims about court appearances and the limits of confidentiality
The Protection Unit should ensure that victims are properly informed about what will happen at any proceedings they attend. We recommend that the Protection Unit inform victim participants that criminal proceedings are largely public, that the accused will be present, and that relatives and witnesses for the defense are likely to be in and around the courtroom. We further recommend that the Protection Unit inform victims that despite whatever measures the ICC has implemented to protect the identity of a victim participant, it is quite possible that at least some persons in the courtroom will be able to identify the victim participant based on the specificity of facts in statements made or questions posed by the victim or his or her legal representative.
J. Post-Trial Protection
Human Rights Watch experience has shown that victims who served as witnesses suffer intense fear of being attacked once they return home. We believe that protection for participants post-trial is essential to ensuring their safety and is encompassed within the Court's obligations under the Rome Statute and the ICC Rules.35
1. The ICC should monitor threats to victims
We recommend that the Protection Unit develop procedures, in consultation with field offices, to avoid attacks on victim participants and to assuage their fear of attacks. We recommend that such procedures include monitoring threats, such as harassment and violence against victim participants. We recommend that this monitoring should include recording the type of threat, level of threat, background of the person threatened, and geographic area where the threat occurred. We recommend that the Protection Unit consider using ICC field offices to conduct this monitoring where appropriate as they are likely to be well placed to perform this function.
We recommend that the Protection Unit track and analyze this information, and provide the information to relevant local authorities where appropriate. We also recommend that the Participation and Reparation Unit ensure that general information regarding credible threats is made available to victim participants. To enhance the capacity of local authorities to use the information effectively, we recommend that the Protection Unit develop and provide training materials on protection of victim participants post-trial to local authorities.
2. Participants should be informed of post-trial protection options
As discussed above, the registrar's functions include assisting in relocation agreements and the Protection Unit is responsible for developing plans for victim participants' security long term.36 The ICC will not likely provide relocation in every case nor will relocation agreements always be preferable to asylum. The potential for confusion and misunderstanding due to differences between expected and actual services available through the Protection Unit may be enormous.
We recommend that the Protection Unit work with victim participants, relevant NGOs, and/or local authorities where appropriate to develop post-trial strategies beyond services through the ICC to ensure adequate protection. For example, we are aware that the ICTY held a conference in December 2003 with health professionals from the former Yugoslavia to discuss "follow-up services to meet the health needs of [ICTY] witnesses" to supplement ICTY services.37
We further recommend that the Participation and Reparation Unit coordinate with the Protection Unit to inform victim participants that relevant services may be available, such as internal relocation through local NGOs or government agencies, and that victims may independently seek asylum. We recommend that the Participation and Reparation Unit coordinate with the Protection Unit to refer them to the resources to pursue these possibilities.
Additionally, we recommend that the Protection Unit designate a post-trial emergency contact for victim participants. We believe that this will help to ensure adequate protection through availability for sufficient communication with the ICC. This could include a contact within an ICC field office, the ICC office in The Hague, or a local NGO.
1 Rome Statute, Art. 68(3); ICC Rules, Rule 89.
2 The Court "shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses." (emphasis added) Rome Statute, Art. 68(1); see also ICC Rules, Rules 16-17, 86-88.
3 Rome Statute, Art. 15(3); ICC Rules, Rule 50(3).
4 Rome Statute, Art. 19(3).
5 Rome Statute, Art. 68(3); ICC Rules, Rules 89(1)-(2), 90.
6 ICC Rules, Rule 91(2)-(4).
7 ICC Rules, Rule 131(2).
8 ICC Rules, Rule 144(1).
9 ICC Rules, Rule 93. The ICC Rules refer to the following areas where the Chambers may seek the views of victims or their legal representatives, among any other issue: whether there is cause for holding a hearing to confirm charges in the absence of the accused (Rule 125); amendment of charges (Rule 128); decisions on whether to hold joint or separate trials of persons accused jointly (Rule 136(1)); requests for additional evidence or to continue a trial following an admission of guilt (Rule 139); and whether to give assurances to a witness or expert by the Court that he or she will not be prosecuted, detained, or subjected to restrictions on personal freedom for any act or omission preceding the person departing the requested State (Rule 191).
10 "The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses." Rome Statute, Art. 43(6).
11 "[T]he Victims and Witnesses Unit shall, inter alia, perform the following functions [...]: With respect to [...], victims who appear before the Court [...]: (i) Providing them with adequate protective and security measures and formulating long-and short-term plans for their protection; (ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures; (iii) Assisting them in obtaining medical, psychological and other appropriate assistance; (iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality; (v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate; (vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule." ICC Rules, Rule 17(2); see also Rome Statute, Art. 43(6).
12 See Preparatory Commission for the International Criminal Court, Report of the Preparatory Commission for the International Criminal Court (continued), Addendum, Part I: Draft budget for the first financial period for the Court, PCNICC/2002/2/Add.1, 21-22; Assembly of States Parties to the Rome Statute of the International Criminal Court, Report of the Second Session, Program Budget for 2004, ICC-ASP/2/10, 76, 79-81. Although the unit is referred to as "the Witnesses and Victims Unit" in the Report of the Preparatory Commission (above), we understand that the unit is currently referred to as the Witnesses and Victims Protection Unit.
13 See Report of the Second Session, 26.
14 See section H for a more in-depth discussion of the ICC's relations with NGOs.
15 The prosecutor has the duty to "take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses [...] particularly during the investigation [...]." Rome Statute, Art. 68(1).
16 It is not yet clear whether victims who testify as witnesses before the ICC are prohibited from acting as participants in the same or a related case. See Victims Rights Working Group, Victim Participation at the International Criminal Court: Summary of Issues and Recommendations, sec. 5 [undated].
17 "The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6." Rome Statute, Art. 68(4).
18 "In order to present their views and concerns, victims shall make written application to the Registrar, who shall transmit the application to the relevant Chamber." ICC Rules, Rule 89(1).
19 Rome Statute, Art. 43(6); ICC Rules, Rule 17.
20 The Pre-trial Chamber may "where necessary, provide for the protection and privacy of victims and witnesses [...]." Rome Statute, Art. 57(3)(c). "The Trial Chamber may, as necessary: [...] (e) Provide for the protection of the accused, witnesses and victims [...]." Rome Statute, Art. 64(6).
21 "[T]he Registrar shall provide a copy of the application to the Prosecutor and the defence, who shall be entitled to reply within a time limit to be set by the Chamber." ICC Rules, Rule 89(1).
22 "If, after the preliminary examination [...], the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information." Rome Statute, Art. 15(6). "Where a decision under article 15, paragraph 6, is taken, the Prosecutor shall promptly ensure that notice is provided, including reasons for his or her decision, in a manner that prevents any danger to the safety, well-being and privacy of those who provided information to him or her [...]." ICC Rules, Rule 49(1).
23 "When the Prosecutor intends to seek authorization from the Pre-Trial Chamber to initiate an investigation [...], the Prosecutor shall inform victims, known to him or her or to the Victims and Witnesses Unit, or their legal representatives, unless the Prosecutor decides that doing so would pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses." ICC Rules, Rule 50.
24 For example, victims may make representations to the Pre-Trial Chamber once the prosecutor requests authorization for an investigation. "If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation [...]. Victims may make representations to the Pre-Trial Chamber [...]." Rome Statute, Art. 15(3).
25 "In relation to victims, the Registrar shall be responsible for the performance of [...]: (a) Providing notice or notification to victims or their legal representatives." ICC Rules, Rule 16(1)(a); Rome Statute, Art. 68(1).
26 "[V]ictims or their legal representatives participating in proceedings shall, in respect of those proceedings, be notified by the Registrar in a timely manner of: (a) Proceedings before the Court, including the date of hearings and any postponements thereof, and the date of delivery of the decision; (b) Requests, submissions, motions and other documents relating to such requests, submissions or motions." ICC Rules, Rule 92(5).
27 "Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings [...]." (emphasis added) Rome Statute, Art. 68(3).
28 "The Chamber, on its own initiative or on the application of the Prosecutor or the defence, may reject the application if it considers that the person is not a victim or that the criteria set forth in article 68, paragraph 3, are not otherwise fulfilled." ICC Rules, Rule 89(2).
29 "A victim whose application has been rejected may file a new application later in the proceedings." ICC Rules, Rule 89(2).
30 "In relation to victims, the Registrar shall be responsible for the performance of [...] (b) Assisting them in obtaining legal advice and organizing their legal representation, and providing their legal representatives with adequate support, assistance and information, including such facilities as may be necessary for the direct performance of their duty, for the purpose of protecting their rights during all stages of the proceedings [...]." ICC Rules, Rule 16(1)(b).
31 "The Presidency, on the basis of a proposal made by the Registrar, shall draw up a draft Code of Professional Conduct for counsel, after having consulted the Prosecutor." ICC Rules, Rule 8.
32 The VWU shall "[w]here appropriate, cooperate with intergovernmental and non-governmental organizations." ICC Rules, Rule 18(e).
33 "The Victims and Witnesses Unit shall, inter alia, perform the following functions [...] With respect to [...] victims who appear before the Court [...] in accordance with their particular needs and circumstances: (i) Providing them with adequate protective and security measures [...]." ICC Rules, Rule 17(2).
34 Report of the Second Session, 26.
35 The responsibilities of the registrar relating to victims include: "Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims [...] may be negotiated with the States by the Registrar on behalf of the Court." ICC Rules, Rule 16(4); See note 12, above, on Rule 17.
36 ICC Rules, Rules 16, 17.
37 ICTY Press Release, "First conference between health professionals from the former Yugoslavia and the ICTY on witness welfare," December 2, 2003.
