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Prosecutor Challenges Judges' Decision at ICC

The role of victims at the new International Criminal Court is at stake in a power struggle between prosecution and chambers.
By Alison Butler
Recent legal developments at the International Criminal Court in The Hague suggest a behind-the-scenes battle is being fought between the prosecutor and judges in the pre-trial chamber for control over the investigation stage of proceedings.

The pre-trial chamber is dealing with the situation in the Democratic Republic of Congo, where the prosecutor alleges that serious human rights violations have been committed including unlawful killings and the illegal use of child soldiers.

The court decided earlier this year that six Congolese victims who applied to be part of the court’s processes could be represented in court. Through a tangle of legal documents available on the court’s website, it is clear that serious precedents are being set about victims’ roles within the court and those of the judges and the prosecution.

The prosecutor has not only challenged the court’s decision to allow victims to participate, but he has also called on the court’s appeals chambers to give him the right to appeal the judges’ decision – after the pre-trial chamber denied him that right – arguing that any decision has “serious potential consequences for the fairness and efficiency of the court”.

The new role that victims will play at the court is one of the most interesting features of the newly created ICC, which only formally began operating in July 2002. Lawyers and human rights activists alike are watching intently to see how exactly victim participation will be allowed, and what its consequences will be for subsequent trials.

When the court decided in January this year that six victims of alleged crimes in the DRC could present their views during the investigation phase, the decision was greeted in some quarters with considerable rejoicing.

Sidiki Kaba, Director of the Federation International des Ligues des Droits de l’homme, FIDH, who represented the victims in their applications, said that it was “an international legal first…a landmark victory” for the victims.

“For the first time the violation of the fundamental rights of victims, the harm they have suffered and their rights to defend their interests have been recognised by a court,” he continued.

The other previously established international criminal institutions, such as the ad hoc tribunals for Rwanda, former Yugoslavia and the Special Court for Sierra Leone, did not provide for victim participation. Intense lobbying from NGOs in the lead up to the creation of the court successfully highlighted the importance of victim participation in the justice process.

But the prosecution is deeply concerned about when victims can take part.

The prosecutor is objecting to the timing of victim participation in this instance. As investigations in the DRC are still underway, he argues there is no specific “case” with which the victims can identify themselves - although the court now has its first accused person in the DRC case in custody.

However, the applications for participation by victims were granted before the accused, Thomas Lubanga, was arrested for alleged recruitment of child soldiers.

Early victim participation, in the opinion of the prosecutor, would be detrimental to the efficiency of pre-trial investigations, because the prosecution would be required to consider and respond to their concerns, diverting resources from the investigation.

Further, he says, it could encourage “tens of thousands, or hundreds of thousands of individuals” to seek victim status.

One of the people closely involved in drafting elements of the court’s rules, David Donat Cattin, an expert in international criminal law, disagrees with the prosecutor’s argument.

He told IWPR that it would be a “false stereotype” to believe that countless applicants will be seeking victim status. He pointed out that despite the ICC’s investigations and issuance of arrest warrants in connection with the situation in northern Uganda, victims of that conflict are yet to exercise participatory rights. Many victims are unaware of their rights or are unable to complete the application form without legal assistance, he says.

But legal observers in The Hague say this apparent lack of applications may not hold true in every case.

By permitting the participation, the court needs to consider the ways in which victims will contribute. The issues surrounding the participation of victims for the first time in the history of international criminal institutions are likely to be quite complex, many observers say. One such legal expert who did not want to be named has told IWPR that it will “require a pragmatic approach” and that the question will become “how are the judges going to control the victims?”

Cattin, though, counters that provided the rights of the accused are not in jeopardy, the participation of victims during the investigation phase can only assist the pre-trial chamber in its “responsibility to discover the truth”.

The rules provide that all evidence gathered by the prosecution, whether incriminating or exculpatory, is obliged to be presented to the court. The views and experiences of victims provide an additional element that serves to better inform the investigation of crimes.

The pre-trial chamber appears to agree. It considers that “the personal interests of victims are affected in general at the investigation stage, since the participation of victims at this stage can serve to clarify the facts, to punish the perpetrators of crimes and to request reparations for the harm suffered”.

The underlying struggle between the pre-trial chamber and the prosecutor over who has the power to control the investigative phase is also drawing attention from legal experts, with a large number of articles on the Rome Statute - the rules which govern the court’s functioning - and victim participation all hitting the pages of various legal journals.

For many legal commentators, the juggling for power comes as no surprise. They point out that the ICC is not only a new institution, but that it has a mix of elements it has taken from different legal systems - sometimes known as a “hybrid” of common law, practiced in Anglophone countries and civil law, practiced in continental Europe.

In one system, the prosecution carries the investigation forward, in the other the judges control the pre-trial work. But at the ICC, with its unique system, set up by treaty in Rome in July 1998, the balance is yet to be established.

Judge Claude Jorda, the presiding judge in the pre-trial chamber dealing with the DRC, brings a wealth of experience from his time as a judge at the Yugoslav tribunal – which also has a “hybrid” system, albeit different from that of the ICC.

He’s known to favour short trials as “essential for the credibility of international criminal justice”. Some observers have suggested that what is driving the judges’ denial of the prosecutor’s leave to appeal may be his aim for speed and efficiency.

One Hague-based commentator, who preferred not to be named, told IWPR that the central issue was whether the pre-trial chamber really had investigative powers, as it would do in a civil law system. It doesn’t in this case, he concluded.

By denying leave to the prosecutor to appeal against the original decision on victim participation, it is clear, he told IWPR, that “the pre-trial chamber is trying to gain more power from the prosecutor”.

Ekkehard Withopf, a member of the prosecution team dealing with the DRC, confirmed to IWPR that they see it an issue where “the prospective powers of the organs of the court are not quite clear”.

Even though the rules governing the court do “allow for action of the pre-trial chamber”, it should only be within “clearly defined areas”, he said.

The prosecutor has asked the appeals chamber for an “extraordinary review” of the matter, arguing it would be “absurd” to allow the pre-trial chamber the authority to decide on whether its own decision is correct. The issue is one of constitutional significance and should therefore be considered by a higher judicial authority, he argues.

On June 6, in response to a new application for victim participation, the prosecutor again argued that participation during the investigation phase is inappropriate. In this latest application, he argues, the applicants have not proven they were personally affected as a result of the alleged crimes.

He requested the court to suspend its decision until the appeals chamber decision is available.

If the prosecutor’s appeal is unsuccessful, the pre-trial chambers are likely to face decisions of great complexity and significance regarding how victims can participate. In the meantime, the battle for control of the investigation phase will continue.

Alison Butler is an independent legal observer based in The Hague.

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