Side Event – “Victims at the Heart of Justice: Reflections on Victims’ Participation at the ICC”

(co-hosted by the State of Palestine, the United Kingdom and the International Federation for Human Rights (FIDH))

Overview by Lea Schwagereit, Research Associate PILPG NL

Highlights: 

• Participants agreed on the need for a collective system for victims to apply for participation, similar to collective representation.

• Panelists pointed to the dire situations for victims participation in Afghanistan and Bangladesh/Myanmar. 

The event focused on a report launched by FIDH on victims’ participation, which was argued to become a central focus of the ICC proceedings. Karine Bonneau, director of the International Justice Desk at the International Federation for Human Rights (FIDH) opened the event by stressing the importance of victim participation as a source of evidence that the ICC proceedings heavily rely upon. FIDH’s report places victims’ participation at the heart of judicial proceedings. The Rome Statute grants victims the right to participate in proceedings where their personal interest is affected. This feature of victim participation is considered one of the most innovative features of the Rome Statute as it it grants victims the right to participate in international criminal proceedings for the first time in international criminal justice. 

Gilbert Bitti, Senior Legal Advisor of the Pre-Trial Division at the ICC, reflected on lesson learned from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the importance of victims’ participation in trials. He cited the President of the ICC stating that “the court ensured that victims voices are heard and puts them at the heart of the proceedings”. But many problems remain, such as the lack of information about the ICC, access to the court, and thereby the right to participate. He acknowledged the importance to provide victims with (at least) a minimum of information. He further pointed to the improvements made, such as the new application form which was changed from 17 pages to only 1-2 pages. He argued for a collective system to apply and further argued that victims should be treated as parties (entitled the same rights as the parties to the process). It is moreover key that victims are entitles to choose their legal representation.

Wayne Jordash QC from Global Rights Compliance, which is representing the interest of over 400 women and girls, victims of the crimes committed against Rohingya in the situation Bangladesh/Myanmar, underlined the importance for victims to be able to communicate with the Court and submit information even if they are not recognized as victims (yet), as there was a degree of procedural uncertainty on victims’ participation during the preliminary examination process. Myanmar continues to insist that no crimes have been committed. While the Prosecution argued that since the examination was initiated by the OTP and not by a UN Security Council referral pursuant to Article 93 victims are not entitled to make submissions, the Pre-Trial Chamber was of the opinion that victims do have the right to make submissions for the preliminary examination. The attempt to exclude victims at the state of preliminary examinations might stem from an anxiety that too many victims may have a right to participation and become a challenge for international trials. The real problem is not that they will delay proceedings but that they have no information, no access to justice, and eventually risk having no voice at all in this.

With regard to the Afghanistan situation, the preliminary examination of the case took 10 years. When thinking about the purpose of the ICC and its deterrent role, this should not be acceptable, Katherine Gallagher (Center for Constitutional Rights), representative of victims of the situation in Afghanistan, stated. Over this long period of time, more people are victimized. While there has been limited outreach form the ICC, several victims have been collected from states that are parties to the Rome Statute, she described. Therefore, the ICC should be more concerned about the crimes committed by the U.S. The panelist furthermore questioned the cooperation between the ICC and NATO with regard to information in the Afghanistan case. Furthermore, collective representation could be a solution, yet funding for it is necessary. This can further create a victims’ narrative what the court should include in their indictment (e.g. include forced disappearance). 

Anushka Sehmi was involved in victim participation in the case against Ongwen as a legal representative. In 2015, he consulted with 700 victims on ceasing investigations in the Kenyatta case. He noted that the right to truth, justice, and reparation have not been insured in this case. Even after the collapse of the case, victims are still entitled to assistance form the court, he argued. But instead, State Parties have looked the other way, the referral to the ICC has been ineffective, and their duty to communicate to provide assistance to the victims has been neglected. In the meantime, victims have passed away and thereby remained invisible to the ICC. 

The event was concluded by a comment by the co-hosting state of Palestine. The representative stressed the importance to take a stand for victims. For him, the presented eye-opening statements were discomforting: to see the amount of difficulties that are put in front of victims to gain justice. He urged for increasing the sharing of information to increase access to justice. He further stressed not to exclude the financial aspects of victims’ participation. 

Side Event – “Déclaration de Paris sur l’efficacité de la justice pénale internationale” (hosted by France)

Overview by Phedra Neel, Research Associate PILPG NL

Highlights:

• The drafters of the Paris Declaration explained the importance of some of the proposals of this Declaration in order to enhance the effectiveness and consistency of international courts and tribunals.

• Importance of planning and managing of proceedings as well as continuing education of judges were underlined.

Mr. Leurent, Director of the French National School for the Judiciary, opened the session with stating that we must come together and find means to counter all the attacks and criticisms on the ICC and international criminal law (ICL) in general. The Paris Declaration on the Effectiveness of International Criminal Justice includes recommendations to increase the efficiency of the international tribunals and courts. It strives for some kind of uniformity regarding the proceedings of the different international tribunals and courts. The Paris Declaration was developed by experienced representatives of these international courts and tribunals in October 2017 with the aim to take the best from both common and civil law systems, including topics such as predictability, expediency, and governance.

Ms. Trendafilova, President of the Kosovo Specialists Chambers, mostly focused on the role of judges in planning and managing proceedings. Drafting a planning of the proceedings will make these more predictable for all those involved or interested. This planning would have to be created in agreement with the parties involved. It is also important that judges have a common understanding on the approach of admissibility of evidence: will they be presented all at once or piece by piece? Lastly, it should be prevented that the trial chamber has to do all the work the pre-trial has done again.

Ms. Prost, ICC Judge, clustered her points around three topics, the first one being management. Judges must see themselves as managers with respect to managing the proceedings, managing the staff, and managing the limited recourses, she said. This of course will have to be done in a sphere of collegiality, but is mostly the task of the presiding judge who must not only execute the manager role, but must also set the tone and pace of the proceedings. Her second point on organization entailed that judges should already start drafting their judgement from day one. Not to undermine the process, but you can already write down the factual circumstances. The same goes for witness statements, it is better to assess their statement as soon as possible when it is still fresh in the memory rather than waiting at the end. Lastly, she talked about how often they run out of time when it comes to the actual proceedings. She believes that efficiency should be kept in mind at all times because fairness demands efficiency. As a response to a question asked by a member of the press, she explained that the drafters of the Paris Declaration are not striving for similarity of all the proceedings across the courts, but for more consistency.

Thirdly, Ms. Hrdlickova, President of the Special Tribunal for Lebanon, focused on the need for transparent rules and independent oversight mechanisms to create an atmosphere of accountability to increase the faith in these courts. The judicial activities between the different courts should also be compared to boost the will to be more efficient, to create some kind of competition. In addition, she explained the proposal to create independent audits to evaluate the management of the court. Lastly, there was much emphasis on the continuing education of all members of courts. Such education would include seminars, professional discussions and others on topics like psychology, technology, communication. “We are lawyers, we are not specialized in everything else”, she concluded. 

This statement was fully supported by Mr. Schmitt, Judge at the ICC, who stated that judges are reluctant to admit that they do not know everything, but that training is a sign of readiness to improve one’s competence. This education is important as universality and acceptance require knowledge on the main legal systems of the world. Secondly, Mr. Schmitt focused on case management and seconded that the judges really need to think as managers and that the presiding judge has an important role to play. Lastly he noted that judges sometimes need to have more self-control when feeling the urge to write dissenting opinions. Not every opinion is a matter of principle or a new development in law; they on the other hand cause for lengthy judgements which affects the overall efficiency.

Mr. Cotte, Former President of the ICC’s Trial Chamber, reiterated all that has been said on the need to improve efficiency. He is happy that these professionals came together to create the Paris Declaration’s recommendations - and thus not binding rules - in order to counter criticism. He hopes that this text will be discussed and considered by all the judges of all international courts and tribunals and is very much open to keep improving the recommendations along the way. Universities have also drafted recommendations that are complementary to the Paris Declaration. 

Side Event – “Documenting Conflict and Atrocity-Related Sexual Violence Crimes in CAR, Iraq, Myanmar and Sri Lanka"

Country Supplements to the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict

(co-hosted by the United Kingdom, the Centre for International Law Research and Policy – Case Matrix Network, the Commission for International Justice and Accountability, the Institute for International Criminal Investigations and Redress)

Overview by Adina Nistor, Affiliated Expert PILPG NL

Highlights:

• When victim and documenter safety cannot be insured, the mindful decision is to choose not to document the perpetration of international crimes;

• Guiding principle that cannot be emphasized enough: do no harm. Investigating international crimes and particularly crimes of sexual violence requires cultural sensitivity and a commitment to not further traumatize victims or put them (and documenter) at risk;

• Taboos, strong cultural and religious beliefs, and investigators’ own prejudices can hamper the investigation of sexual violence crimes.

• The Protocol on the Documentation and Investigation of Sexual Violence in Conflict (the Protocol) is a useful tool for documenting conflict and atrocity – related sexual violence crimes, which should be adapted to match the specificity of the country where the crimes have been committed.

This side event offered a thought-provoking discussion on investigating sexual violence in various socio-cultural and economic contexts, on how it should be ideally conducted, and what the steps are to move further in a constructive way. The speakers explained the role of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (the Protocol) and how theory and practice related aspects of documenting conflict and atrocity – related sexual violence crimes can be strengthened. Through the development and application of the Protocol to four country-specific supplements (on CAR, Iraq, Myanmar, and Sri Lanka), the first steps into solidifying and increasing knowledge on this sensitive topic have been taken. Other states and relevant actors are encouraged to use the Protocol, and to transpose and adapt it to national practices.

The experts present at the meeting addressed weaknesses inherent to current practices prevalent in the work of those documenting sexual violence crimes, with a particular focus on over-documentation, inadequate coordination, and the lack of competence of (especially self-appointed) investigators to conduct such sensitive work. The Protocol has been therefore designed to guide practitioners in conducting the documentation of sexual violence crimes in a culturally sensitive and ethical manner, which concern for the mental and physical wellbeing of those interviewed, but also the wellbeing of themselves as investigators. Being aware of the context-specificity of sexual violence crimes is essential first of all for appropriately identifying the crimes committed, for addressing survivors with sensitivity and dignity, and for ensuring that they are not re-traumatized by the process of providing evidence. Given that each conflict and each country where such crimes take place have their own set of legal practices, cultural norms, and traditions that are locally specific, the guidelines offered in the Protocol serve as a starting point in having the awareness that is necessary to adapt to the given context and to the given conflict situation.

The speakers also discussed the four individual guides on the four different countries (CAR, Iraq, Myanmar, and Sri Lanka) more in-depth; they addressed issues concerning the countries’ common ground, but also their points of divergence. The stigmatization suffered by victims of sexual crimes for example is a particularly challenging issue from an investigative point of view. The stigma attached to these survivors has legal and social implications for how such crimes are being addressed. In the case of male victims of sexual violence in particular, in countries where sodomy laws are in place, this prevents them from coming forward about what they have suffered for fear of legal repercussions and double victimization (by the perpetrator(s), and by the legal system).

One aspect that was underlined by the practitioners present at the meeting was that the issue of over-documentation is increasingly problematic, especially when it is conducted by self-appointed, untrained investigators. Ad-hoc approaches to gathering and handling extremely sensitive evidence, and of gathering statements from survivors of sexual violence crimes can lead to further human rights violations and can jeopardize the process of justice delivery for the victims. Gathering evidence without having a clear understanding on why and how this evidence is collected leads to unnecessarily exposing survivors to risks (filming interviews with victims can endanger them and this aspect should be always considered by the investigator). Documenters and donors have to be mindful of the dangers of investigating international crimes and at times make the decision to not investigate when doing so is harmful. While all victims of sexual violence crimes are extremely vulnerable, the speakers addressed the fact that when it comes to children, collecting evidence from them is even more problematic and ethically challenging. 

The discussion ended with best way to look forward. Ideally, victims of sexual violence crimes should be empowered to fully know their rights. They should therefore receive clear, truthful and appropriate answers to questions such as: Who are you and why are you taking my statement? What purpose will it serve? In what way does it benefit me? Ultimately, the role of the investigators is not only to document what happened, by whom, and to whom, but also to protect those who have been victimized and not to produce further harm.

Side Event – “Realizing Victims’ Right to Reparation at the International Criminal Court”

(co-hosted by Chile, Finland, Switzerland, Redress and the Trust Fund for Victims (TFV))

Overview by Abby Roberts, Research Associate PILPG NL

Highlights: 

• Redress views the Rome Statute’s treatment of reparations as comprehensive but feels that more needs to be done with regards to implementation and action. 

• Many issues remain to be addressed in the reparations process, as it is a slow process in identifying partner organizations and identifying victims, and further efforts are necessary to fulfill the mission of the court. 

• The assistance mandate of the TFV needs to start much earlier and needs to play a more central role, according to Redress. 

• Several panelist suggested to look at the primary responsibility of states to provide reparations.

This event began with a brief speech by the Ambassador from Finland outlining their support for the Trust Fund for Victims (TFV), which amounts to 800,000 Euros yearly earmarked for victims of sexual assault and gender-based violence, and urging other member states to consider contributing. 

Judge Marc Perrin de Brichambaut, Second Vice President of the ICC, was next to speak and he provided a background and overview of reparations. He began by explaining that the reparations phase takes place after conviction and sentencing and is a written process involving exchanges between the representatives of victims and the defense. The TFV intervenes when it is requested to do so. The reparations phase has had to address a multiplicity of legal questions and there is a managerial dimension when allocating reparations. The key issue is to determine the scope of the defendant’s liability for reparations: the reparations have to be proportionate to the harm caused and extent of the perpetrator’s participation. Moreover, assessing and identifying the victims is a key challenge to awarding reparations. However, being recognized as a victim by the ICC seems to be a positive experience for the victims. Judge Marc Perrin de Brichambaut noted that in order for reparations to materialize, the TFV will have to be involved in aspects of fundraising and motivating states. Another challenge is the determination of the types of reactions as there are both individual and collective reparations. Individual reparations can be tailored to the needs of the victims. All of his exchanges with victims have indicated that this type is preferred by the victims. Collective reparations, benefiting a group or category submitted to a common harm, are supposed to be the default type and are preferred by the Court. Many issues remain to be addressed in the reparations process, as it is a slow process in identifying partner organizations and identifying victims, and further efforts are necessary to fulfill the mission of the court, he concluded. 

Lorraine Smith van Lin of Redress followed by referring to a report compiled by Redress outlining what needs to be done to improve the reparations. The report contained numerous general findings, including that the ICC failed to implement the five imperatives of reparations. The ICC reparations system is an interplay of judicial and non-judicial elements and Redress was satisfied that the provisions in the text of the statute reflect the unique role which victims enjoy under the Rome Statute. They were also satisfied that this has been recognized by the chambers and that the ICC has consolidated its case law on reparations. However, the process has been protracted and has not been effective in the provision of reparations. The current system is inconsistent, characterized by delay, and does not allow the victims proper access to reparations. Lorraine emphasized that delivering prompt reparations to victims should be a priority. Redress felt that although significant time has been devoted to interpreting legal texts regarding reparations, the ICC victim’s strategy is outdated and they need a new comprehensive one that takes into consideration of questions such as where the reparations system fits into the broad scheme of complementarity and restorative justice. The general insights from Redress were that the assistance mandate of the TFV needs to begin much earlier and it needs to play a more central role.

Philipp Ambach from the Victims Participations and Reparations Section of the ICC Registry noted that the ICC procedural framework provides liberty for chambers to decide the scope and framing of reparations. He believes this has been done with the idea that the chambers need to be able to tailor the reparations to the case at hand. Here he believes we are looking at a tendency to streamline the technical aspect of the registry. The procedural system that is being applied is a healthy discourse between registry, victims, and chambers.  

Pieter de Baan, Executive Director of the TFV, spoke on the role of the TFV. The TFV has a role to the extent it is invited to do so prior to reparations order, but after the order the role expands. The TFV does not represent victims but it always has the responsibility to act in the interest of victims.  They are transitioning towards a more distant role under the assistance mandate and working with field partners. However, through direct engagement with counsel and victims, they have come to appreciate that the engagement is highly significant.  Much of the focus of the debate has been around reparation proceedings. Hopefully soon the debate will transition to the operational theater in which reparations are implemented, De Baan emphasized. The TFV are looking at conflict and post-conflict situations, which are highly volatile and force the fund to find other ways to interact with victims which may take longer. There have been extensive procedural discoveries since the outset and there will still be new and unforeseen situations.  The fund is optimistic they will respond with creative and proactive solutions.

Allan Ngari from the Institute of Security Studies was the last to speak. He noted that we have romanticized the standard set by the ICC for reparations, but states have not fully followed suit despite the fact that it is the primary responsibility of states to provide for these reparations. He suggested that the Kenyan chapter on reparative justice is extremely comprehensive and could be used as a model. Also, truth mechanisms are important due to the participation means for victims to craft their reparations needs. He believes that we cannot only look at the ICC as the frame through which reparative justice is issued, we need to look at it as a complementary method.

Tenth Plenary Meeting of the ASP17: Achievements and challenges regarding victims’ participation and legal representation after 20 years of the adoption of Rome Statute

Overview by Filipe Gomes Dias Costa, Research Associate PILPG NL

This plenary meeting aimed at addressing victim participation and legal representation in the 20 years of existence of the Rome Statute. For the occasion, a panel of stakeholders from the ICC, practitioners, and civil society reflected on what has been achieved since 1998, what challenges remain, and how these challenges can be overcome from a theoretical and practical perspective. 

The session was opened with introductory remarks by the moderators, Erica Lucero and Philip Dixon. They underlined that victims should be at the heart of everything we do and that it is both appropriate and necessary to put the issue of victim participation and legal representation in the spotlight this ASP. The panel started with a short film on victims of the LRA in Uganda and their perspectives regarding the ICC cases.

The first panelist was Mr. Hirad Abtahi, head of the legal and enforcement unit. In his speech, he noted that the number of victims applying for participation in proceedings has increased by 10 times in comparison to the initial days of the Court. This poses one of the ultimate challenges of effectiveness and efficiency according to him. 

The second panelist to address the Assembly was Fabrício Guaruglia from the Office of the Prosecution, answering how victim participation works at different stages of ICC proceedings. Mr. Guaruglia explained that victim participation mutates through the different stages of proceedings. For example at the preliminary examination stage, the OTP receives information from victim and therefore directly interacts with victims. He highlighted that victims shall not act as party to the proceedings and are actually not prosecutorial assistants since they have their own interest to pursue. Additionally, he underscored in light of the development of the Rome Statute during its 20 years that its provisions are heavily victim-centered.

Philipp Ambach, Chair of victims representation session followed by addressing the practical elements of how to make victims engage with the ICC. An obvious lesson, he mentioned, was that the one month period to receive the views of victims was simply too short. Moreover, engagement with external actors such as NGOs has proven to be essential. Finally, the shortening of the application form as well as the usage of online forms and other digital resources have been proven particularly efficient to make victims engage with the ICC. 

Next, Francisco Cox, counsel for victims in the Ongwen case remarked that in the end, financial resources are still the key elements in order to enhance victim representation.  Furthermore, victims are often confused by the whole procedure concerning reparations. This may lead to inconsistencies in their statements, since some may exaggerate the injuries suffered when reporting for reparation.

Speaking from the perspective of civil society, Christine Alai pondered that victims normally do not have access to key information on the consequences of the procedure it engages with. In this sense, the Trust Fund for Victims shall play a major role in strengthening the role of victims in order for them not to be seen as mere object and tools for the proceedings. Answering a question from the moderators with regard to challenges to victim participation, Ms. Alai reiterated the importance of recognizing that victim participation is not just a procedural issue but a question of quality, of substance and impact: how can we conduct it so it is meaningful and does not cause further harm. This also implies sufficient resources. 

Concluding the exposition of the panelists, Paolina Massida differentiated between the mandates of organizations related to victims that are acting within the ICC system. Moreover, the role of victims is essential not only for the proceedings, but for contributing to ease the deep trauma caused as a result of grave crimes. Answering a question by the moderators as to what the biggest achievement with regard to witness participation has been, Ms. Massida underlined that today it is not disputable anymore that victims have a central place in proceedings. 

After the panelists had addressed their issues, the interactive segment of the meeting started, allowing those states present to reflect upon the statements and ask questions. Most notably, Argentina inquired on whether states may contribute to the whole process in any other way than financially. Philipp Ambach and Christine Alai answered that states can provide operational and technical support as well as more engagement of their legal profession. Norway inquired into the use of modern technology for the purpose of victim participation. In response to this question, Ms. Massida answered that this is an important development for victim participation, referring also to the video shown in the beginning of the meeting. FIDH, after stating that wrong conceptions of participation are persistent, urged the Court to reflect on the practice and purpose of victim participation, noting that it is crucial to the efficiency as well as legacy of the Court. A representative of defense counsel, representing Yekatom, also criticized the lack of engagement of members of the defense in the panel and challenged the entwined relation between condemnation of the suspect and reparation for the victims.