Irish Centre for Human RightsIrish Centre for Human RightsSummer Course on the International Criminal Summer Course on the International Criminal

CourtCourt20122012

Victim ParticipationVictim Participation

John McManusJohn McManus

Counsel and Team LeaderCounsel and Team Leader

Crimes Against Humanity and War Crimes SectionCrimes Against Humanity and War Crimes Section

DOJ CanadaDOJ Canada

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ThemeTheme

WHAT IN GOD’S NAME ARE WE WHAT IN GOD’S NAME ARE WE DOING?!?DOING?!?

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ThemeTheme

oror Is ICL simply an enforcement arm of Is ICL simply an enforcement arm of

human rights and humanitarian law, human rights and humanitarian law, adopting incarceration of violators as adopting incarceration of violators as a new remedy available to victims? a new remedy available to victims? Or is it a system of criminal justice Or is it a system of criminal justice that respects the philosophical that respects the philosophical preconditions for the punishment and preconditions for the punishment and stigmatization of individuals? stigmatization of individuals? Robinson, Robinson, Identity CrisisIdentity Crisis, at 932, at 932

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Victim ParticipationVictim ParticipationIntroductionIntroduction

“… “… to me it also does not seem to be to me it also does not seem to be just to beg the judge, nor to be just to beg the judge, nor to be acquitted by begging, but rather to acquitted by begging, but rather to teach and to persuade. For the judge teach and to persuade. For the judge is not seated to give away the just is not seated to give away the just things as a gratification, but to judge things as a gratification, but to judge them. For he has not sworn to gratify them. For he has not sworn to gratify whoever seems favorable to him, but whoever seems favorable to him, but to give judgment according to the to give judgment according to the laws” laws” Apology of SocratesApology of Socrates Plato Plato

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Victim ParticipationVictim ParticipationIntroductionIntroduction

“The Tribunal was to achieve justice through criminal proceedings. The purpose of such proceedings was multi-fold: the primary objective was to convict – and punish – those individually responsible for their crimes. The suffering and loss of the victims of such crimes would thereby be internationally recognised and acknowledged.” Prosecutor v. Momir Nikolic (IT-02-60/1-S) (2 Dec. 2003) par. 59

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Human Rights Committee for the International Covenant on Civil and Political Rights, General Comment No. 32 on Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32. 23 August 2007

at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G0743771.pdf?OpenElement437/71/PDF/G0743771.pdf?OpenElement

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Victim ParticipationVictim ParticipationProsecutor’s DutiesProsecutor’s Duties

Article 54 Article 54 (Duties and powers of the (Duties and powers of the Prosecutor)Prosecutor)

1.1. The prosecutor shall:The prosecutor shall:

a)a) In order to establish the truth, extend the In order to establish the truth, extend the investigation to cover all facts and investigation to cover all facts and evidence relevant to an assessment of evidence relevant to an assessment of whether there is criminal responsibility whether there is criminal responsibility under this Statute, and, in doing so, under this Statute, and, in doing so, investigate incriminating and investigate incriminating and exonerating circumstances equally.exonerating circumstances equally.

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Victim ParticipationVictim ParticipationThe Statute GenerallyThe Statute Generally

Trust Fund for Victims (Article 79 and Trust Fund for Victims (Article 79 and Rule 98)Rule 98)

Victims and Witnesses Unit (Art 63 Victims and Witnesses Unit (Art 63 (6); Rules 16 – 19; Court Regs (CReg (6); Rules 16 – 19; Court Regs (CReg 41) and Registry Regs (RRegs 54 – 41) and Registry Regs (RRegs 54 – 118)118)

Office of Public Counsel for Victims Office of Public Counsel for Victims (Rule 16(1)(b) & (c), CReg 81 and (Rule 16(1)(b) & (c), CReg 81 and RReg 114-117RReg 114-117

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Victim ParticipationVictim ParticipationVictim and Witness UnitsVictim and Witness Units

Ad hocAd hoc Tribunal and SCSL - Victims and Tribunal and SCSL - Victims and WitnessesWitnesses

Sections are neutral bodies which provide:Sections are neutral bodies which provide: Recommendations for protective measures for Recommendations for protective measures for

victims and witnesses (ICTY Statute Art. 22)victims and witnesses (ICTY Statute Art. 22) Counselling and support services, in particular Counselling and support services, in particular

for victims of sexual offences;for victims of sexual offences; Advice for investigators who interview victims Advice for investigators who interview victims

and witnessesand witnesses Information services for witnesses re conduct Information services for witnesses re conduct

of trials and role of witnesses in trialsof trials and role of witnesses in trials Assistance in relocation of witnessesAssistance in relocation of witnesses

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Victim ParticipationVictim ParticipationVictims and Witnesses UnitVictims and Witnesses Unit

Article 43 (The Registry)6 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. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence

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Victim ParticipationVictim ParticipationVictims and Witnesses UnitVictims and Witnesses Unit

78. Whilst there is no doubt as to the continuing instability in parts of the Democratic Republic of Congo, the risks to the witnesses in question are not uniform and instead depend on a range of factors that require detailed and careful assessment, applying appropriate criteria. The Unit has taken this approach: it has identified [REDACTED]criteria; it assesses the level of any threat,the likelihood of harm and the overall riskto the particular applicant; and it thenconsiders each application on its individualmerits, on a fact sensitive rather than amechanical or formulistic basis. It is clearfrom the detailed consideration of thedisputed applications in this decision that the Unit isapproaching and discharging its considerableduties with skill and care. LubangaLubanga decision on Disclosure Issues, decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-Responsibilities for Protective Measures and other Procedural Matters, ICC-01/04-01/06-1311-Anx2 08-05-200801/06-1311-Anx2 08-05-2008

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Victim ParticipationVictim ParticipationIdentifying VictimsIdentifying Victims

Rule 85 (Definition of victims)For the purposes of the Statute and the Rules of

Procedure and Evidence:(a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;(b) Victims may 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.

(see Rules Section III, Rules 85 – 99)

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Victim ParticipationVictim ParticipationIdentifying VictimsIdentifying Victims

Natural person or organization or Natural person or organization or institutioninstitution

- Suffered harm (determined on a case by Suffered harm (determined on a case by case basis, single instance of harm is case basis, single instance of harm is sufficient, direct or indirect for individuals)sufficient, direct or indirect for individuals)

- From a crime within the jurisdiction of the From a crime within the jurisdiction of the Court (think definitions of crimes, after Court (think definitions of crimes, after entry into force of statute etc) entry into force of statute etc)

- And there was a causal link between the And there was a causal link between the crime and the harm (essentially, a link crime and the harm (essentially, a link between the victim and the evidence between the victim and the evidence which the court will be considering)which the court will be considering)

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Victim ParticipationVictim ParticipationIdentifying VictimsIdentifying Victims

Par 92:Par 92: The Rome Statute framework does not The Rome Statute framework does not provide a definition of the concept of harm under provide a definition of the concept of harm under Rule 85 … . However, in accordance with Rule 85 … . However, in accordance with Principle 8 of the Basic Principles, a victim may Principle 8 of the Basic Principles, a victim may suffer, either individually or collectively, from suffer, either individually or collectively, from harm in a variety of different ways such as harm in a variety of different ways such as physical or mental injury, emotional suffering, physical or mental injury, emotional suffering, economic loss or substantial impairment of his or economic loss or substantial impairment of his or her fundamental rights. This principle provides her fundamental rights. This principle provides appropriate guidelines. appropriate guidelines. Situation in the DRC, Situation in the DRC, P. v. P. v. Thomas Lubanga DyiloThomas Lubanga Dyilo, ICC-01/04-01/06, 18 January 2008,, ICC-01/04-01/06, 18 January 2008,

Par 38:Par 38: harm has to be personal but not harm has to be personal but not necessarily direct. necessarily direct. Judgment on the appeal, Judgment on the appeal, ICC-01/04-01/06-1432 11-07-2008

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Victim ParticipationVictim ParticipationProtection GenerallyProtection Generally

Article 68 (protection of Victims and Witnesses)1 The Court shall take appropriate measures to

protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

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Victim ParticipationVictim ParticipationProtection GenerallyProtection Generally

Article 54Article 541.1. The Prosecutor Shall:…The Prosecutor Shall:…b) b) Take appropriate measures to ensure the Take appropriate measures to ensure the

effective investigation and prosecution of effective investigation and prosecution of crimescrimes within the jurisdiction of the Court, and within the jurisdiction of the Court, and in doing so, respect the interests and personal in doing so, respect the interests and personal circumstances of victims and witnesses, circumstances of victims and witnesses, including age, gender … and health, and take including age, gender … and health, and take into account the nature of the crime, in into account the nature of the crime, in particular where it involves sexual violence, particular where it involves sexual violence, gender violence or violence against children; gender violence or violence against children; and,and,

c) Fully respect the rights of persons arising under c) Fully respect the rights of persons arising under this Statute.this Statute.

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Victim ParticipationVictim Participation Protection pre-trial Protection pre-trial

Article 68Article 6855 Where the disclosure of evidence or Where the disclosure of evidence or

information pursuant to this Statute may information pursuant to this Statute may lead to the grave endangerment of the lead to the grave endangerment of the security of a witness or his or her family, security of a witness or his or her family, the Prosecutor may, for the purposes of the Prosecutor may, for the purposes of any proceedings conducted prior to the any proceedings conducted prior to the commencement of the trial, withhold such commencement of the trial, withhold such evidence or information and instead submit evidence or information and instead submit a summary thereof. Such measures shall a summary thereof. Such measures shall be exercised in a manner which is not be exercised in a manner which is not prejudicial to or inconsistent with the rights prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. of the accused and a fair and impartial trial.

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Victim ParticipationVictim ParticipationProtections during TrialProtections during Trial

Article 64 (Functions and Powers of the Trial Chamber)

2 The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

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Victim ParticipationVictim Participation Protection During Hearings Protection During Hearings

Article 68Article 68 2) provides for 2) provides for in camerain camera hearings to hearings to

protect a victim, witness or accused, protect a victim, witness or accused, particularly in the case of sexual particularly in the case of sexual offences or when a child is providing offences or when a child is providing evidence.evidence.

4) empowers the Victims and 4) empowers the Victims and Witnesses unit to advise the Court and Witnesses unit to advise the Court and Prosecutor on protective measuresProsecutor on protective measures

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Victim ParticipationVictim ParticipationRights of VictimsRights of Victims

Article 68Article 683 Where the personal interests of the victims are

affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

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Victim ParticipationVictim ParticipationProcedureProcedure

Article 15(3) Victims may make representations to the Pre-Trial Chamber at the point where the Prosecutor submits a request for authorization of an investigation

Art 19(3): Victims may submit observations to the Court on an issue of jurisdiction or admissibility

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Victim ParticipationVictim ParticipationRights of VictimsRights of Victims

On January 17, 2006, the Pre-Trial On January 17, 2006, the Pre-Trial Chamber decided that victims have Chamber decided that victims have the right to participate in the the right to participate in the proceedings at the investigation proceedings at the investigation stage pursuant to the provisions of stage pursuant to the provisions of article 68(3) of the Rome Statute article 68(3) of the Rome Statute Situation in the Democratic Republic of the CongoSituation in the Democratic Republic of the Congo Decision Decision on the Applications for Participation in the Proceedings of on the Applications for Participation in the Proceedings of

VPRS 1, VPRS 2 … (VPRS 1, VPRS 2 … (ICC-01/04-101-tEN-Corr 22-03-2006))

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Victim ParticipationVictim ParticipationRights of VictimsRights of Victims

Par 55.Par 55. Participation pursuant to article Participation pursuant to article 68(3) … is confined to proceedings before 68(3) … is confined to proceedings before the Court, and aims to afford victims an the Court, and aims to afford victims an opportunity to voice their views and opportunity to voice their views and concerns on matters affecting their personal concerns on matters affecting their personal interests. This does not equate them … to interests. This does not equate them … to parties to the proceedings before a parties to the proceedings before a Chamber, restricting their participation to Chamber, restricting their participation to issues arising therein touching upon their issues arising therein touching upon their personal interests, and then at stages and personal interests, and then at stages and in a manner not inconsistent with the rights in a manner not inconsistent with the rights of the accused and a fair and impartial trial.of the accused and a fair and impartial trial.

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Victim ParticipationVictim ParticipationRights of VictimsRights of Victims

Par 57.Par 57. … It is for the Pre-Trial Chamber to … It is for the Pre-Trial Chamber to determine how best to rule upon determine how best to rule upon applications for participation, in compliance applications for participation, in compliance with the relevant provisions of the Court’s with the relevant provisions of the Court’s texts. The Pre-Trial Chamber must do so texts. The Pre-Trial Chamber must do so bearing in mind that participatory rights bearing in mind that participatory rights can only be granted under article 68(3) … can only be granted under article 68(3) … once the requirements of that provision once the requirements of that provision have been fulfilled. have been fulfilled. Situation in Darfur, Situation in Darfur, Judgment on Judgment on victim participation in the investigation stage of the victim participation in the investigation stage of the proceedingsproceedings…; …; ICC-02/05-177 02-02-2009

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Victim ParticipationVictim ParticipationRights of VictimsRights of Victims

3. The right to lead evidence pertaining to 3. The right to lead evidence pertaining to the guilt or innocence of the accused and to the guilt or innocence of the accused and to challenge the admissibility or relevance of challenge the admissibility or relevance of evidence lies primarily with the parties, evidence lies primarily with the parties, namely, the Prosecutor and the Defence. namely, the Prosecutor and the Defence. However, the Appeals Chamber does not However, the Appeals Chamber does not consider these provisions to preclude the consider these provisions to preclude the possibility for victims to lead evidence possibility for victims to lead evidence pertaining to the guilt or innocence of the pertaining to the guilt or innocence of the accused and to challenge the admissibility accused and to challenge the admissibility or relevance of evidence during the trial or relevance of evidence during the trial proceedings. proceedings. P v. LubangaP v. Lubanga Judgment on the appeals of The Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, ICC-01/04-01/06-1432 11-Victims' Participation of 18 January 2008, ICC-01/04-01/06-1432 11-07-200807-2008

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Victim ParticipationVictim ParticipationLubangaLubanga

iii) Participation by victims at trial will first and foremost take place by way of the procedure established in Rule 89(1) of the Rules.

iv) Only those who suffered harm as a result of the crimes charged may be considered victims in the case.

v) “[P]ursuant to Article 68(3) of the Statute, victims will first have to demonstrate that their personal interests are affected by the trial …”

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Victim ParticipationVictim ParticipationLubangaLubanga

vi) In accordance with Rule 131(2) of the Rules, victims have the right to consult the record of the proceedings, including the index … In principle, victims have the right to access and receive notification of all public filings and those confidential filings which concern them (as identified by the parties) …

vii) Victims may request the Chamber to use its broad powers to call all the material it considers relevant for the determination of the truth, in order that the evidence identified by victims concerning the guilt or innocence of the accused is introduced (to the extent appropriate). Victims may tender evidence, examine witnesses and challenge the admissibility or relevance of evidence during the trial so long as: (i) they submit a discrete application; (ii) notice is given to the parties; (iii) the personal interests of one or more victims are affected by the evidence; (iv) there is compliance with their “disclosure obligations and [any] protection orders”; (v) the Chamber determines this course is appropriate and (vi) there is consistency with the rights of the accused and a fair trial.

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Victim ParticipationVictim ParticipationLubangaLubanga

viii) Victims have the right to participate in public hearings and to file written submissions, and they may be permitted to participate in closed or ex parte hearings or to file confidential or ex parte submissions, depending on the circumstances

ix) Victims’ views and concerns may be presented by a common legal representative

x) Victims may apply to the Chamber for leave to call evidence relating to reparations during the trial

xi) Anonymous victims may participate in the trial.P v. Lubanga, Judgment pursuant to Article 74 of the Statute, ICC-

01/04-01/06-2842 14-03-2012 par 14

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Victim ParticipationVictim ParticipationReparationsReparations

Article 75 (Reparations to victims)

1 The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

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Victim ParticipationVictim ParticipationReparationsReparations

Article 752 The Court may make an order

directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.

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Victim ParticipationVictim ParticipationReparationsReparations

Article 753 Before making an order under this

article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.

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Victim ParticipationVictim ParticipationReparationsReparations

Article 754. In exercising its power under this

article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1. (protection of victims and witnesses by States)

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Victim ParticipationVictim ParticipationMiscellaneousMiscellaneous

Article 79: establishment of a trust fund for the benefit of victims and their families, paid into through fines, etc

Article 82(4): right of counsel for victims to appeal an order for reparations

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Victim ParticipationVictim ParticipationNice ConclusionNice Conclusion

The ICC has made significant advances in The ICC has made significant advances in protecting and recognizing the rights and protecting and recognizing the rights and interests of the victims of the world's worst interests of the victims of the world's worst crimes. The Rome Statute is sensitive to issues crimes. The Rome Statute is sensitive to issues that relate to the role of victims as witnesses and that relate to the role of victims as witnesses and as individuals who have experienced extremely as individuals who have experienced extremely traumatic events. In this way, the Rome Statute traumatic events. In this way, the Rome Statute strengthens the position of the victim under strengthens the position of the victim under international law and provides victims with much-international law and provides victims with much-needed opportunities for empowerment and needed opportunities for empowerment and agency. This represents a crucial step forward for agency. This represents a crucial step forward for victims of heinous crimes all over the world, who victims of heinous crimes all over the world, who have historically been under-represented, if not have historically been under-represented, if not forgotten by judicial systems.forgotten by judicial systems.

Irish Centre for Human RightsIrish Centre for Human RightsSummer Course on the International Criminal Summer Course on the International Criminal

Court 2012Court 2012

Victim ParticipationVictim Participation

John McManusJohn McManusCounsel and Team LeaderCounsel and Team LeaderCrimes Against Humanity and War Crimes SectionCrimes Against Humanity and War Crimes SectionDOJ CanadaDOJ Canada