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Victim Participation in ICC Cases Jeopardised

Court’s limited provision of legal aid may prove to be a major obstacle to victim involvement in proceedings.
By IWPR ICC
Lawyers say that victims applying to participate in International Criminal Court, ICC, cases are not receiving the legal support they need to complete their applications.



They say that victims should be given legal aid to help with the long, complicated application process, while the court argues that it lacks resources to give such assistance to large numbers of applicants.



According to the court’s proposed budget for 2008, 735,000 euro will be set aside to pay for legal aid for victims. However, only those who have been recognised by the court and approved for participation are eligible.



For the first time in international law, people affected by war crimes and crimes against humanity can apply to participate in investigations and cases at the ICC, after its founding members decided it was important to make justice relevant to victims living thousands of kilometres away from the Hague-based court.



To qualify to participate, victims must submit a detailed application form, outlining their eligibility and proving that they have been directly affected by specific crimes under investigation. The prosecution and defence are then allowed to comment on each application through legal submissions.



It can take years for judges to make a decision over an individual’s eligibility to participate, and during this time, victims and their lawyers have the right to supplement their applications.



Victims are given no financial assistance by the court until it grants them participant status, so those who cannot afford a lawyer have no-one to represent them or guide them through this complex process.



Approximately 500 victims have applied to participate in proceedings at the court and most are still waiting to find out if they will be accepted.



On December 6, after three years of legal wrangling, 11 victims of the Darfur conflict were recognised by the ICC as eligible to take part in proceedings. However, another ten victims were turned down, some because their applications were deemed “incomplete” by the judge.



Other than this, the ICC has also granted participation rights to just seven victims from northern Uganda and ten from the Democratic Republic of Congo, DRC.



United States lawyer Raymond Brown said that while a high level of legal expertise is needed to successfully complete a victim’s application to be granted participant status, the court provides no resources to support applicants or the lawyers representing them.



Brown and fellow lawyer Wanda Akin have been working free of charge to help Darfuris fill in application forms and deal with the extensive legalities needed to support applications.



“The application process is never complete. We continued to supplement applications as we learned of new evidence, received comments and requests from the [ICC] Registry, and saw the court's standards evolve,” said Akin.



On reading judicial decisions from other investigations and cases at the ICC, Akin and Brown calculate how the evolving jurisprudence impacts their clients, and modify the applications accordingly.



The lawyers say victims are unable to overcome language barriers and understand different legal cultures sufficiently well to do this on their own, and need the help of a lawyer with expert knowledge of war crimes and crimes against humanity.



“There is an enormous amount of high-level lawyering that goes into filling out applications, and no lay person is capable of doing it,” said Brown.



He points out that in Darfur these difficulties are compounded by the tense security situation.



Although in other countries, such as Uganda and DRC, victims are given help with application forms from NGOs, including Avocats Sans Frontieres, ASF, and La Federation Internationale des Droits de l'Homme, FIDH, the situation in Darfur is very different.



“The long-running DRC conflict has divided but not destroyed civil society, but in Darfur there is total destruction of communities,” said Brown.



“Even if there was a thriving civil society beforehand, it has been scattered throughout the diaspora or driven into camps - which themselves are subject to threats - so how could you expect NGOs to be on the ground, able to help?”



Akin and Brown say that the fiscal and logistical requirements needed to ensure victim participation are being ignored by the court.



“The court seems to feel that NGO partners of the court should be picking up the ball, but aside from a handful which are fully familiar with the process, most NGOs could not wade through all the legal requirements,” Akin told IWPR.



In order to be considered complete, an application must have the identity of the applicant, the date and location of the crime and description of the harm suffered as a result, along with proof of identity, and a signature or thumb-print of the applicant.



However, Brown and Akin say that many Darfuri victims lack the necessary documents, after having been driven from their homes, stripped of property, possessions and the support of their own government, and forced to travel thousands of kilometres to a place of refuge.



Brown said legal aid should be provided to victims - many of whom have been left with nothing.



“We are talking about persons who have been denuded of all kind of social structural support. If we want them to participate in a complicated court process, they must be funded. Justice on the cheap is never justice,” he said.



Mariana Goetz from the human rights organisation REDRESS agrees that victims need help from lawyers to apply successfully to participate in proceedings.



“We’ve seen so many applications from people who haven’t understood the questions in the way a lawyer would. Children who were recruited by militias describe the crime they suffered as abduction, which is not a prosecutable crime – the crime is recruiting or conscripting children under 15 to fight in hostilities,” said Goetz



“Providing legal aid from the start means that ICC would receive fewer incomplete applications - which cause delays - because lawyers would help victims understand the forms.”



Martine Schotsmans from ASF agrees that without legal assistance, victims are submitting applications without the necessary information or accompanying documentation.



“The court does outreach to [inform] victims [of] their right to participate, but local NGOs have to help fill in forms,” she said, pointing out, however, that sometimes they may not have the necessary expertise to help.



According to Schotsmans, the promise of participation without the practical support necessary to complete applications is giving victims false hope and causing them immense frustration.



“They file their application for participation, and if their application is rejected because it is incomplete they will get very frustrated. This is why there needs to be assistance at this stage,” she said.



She also stressed the security concerns facing victims in Darfur are an obstacle to their participation.



“If you want to grant [victims] the right to participate, they need to be provided with protection and legal assistance so they do not take unnecessary risks or expose themselves without having any chance to be accepted by the court,” she said.



The ICC has set up two offices in order to support victims and the lawyers representing them - the Victim Participation and Reparation Section, VPRS, and the Office of Public Counsel for Victims, OPCV.



According to the ICC’s Fiona McKay, the OPCV was established partly to ensure victim participants have sufficient legal assistance. Pre-trial judges decided that the OPCV could be automatically appointed to give some assistance to applicants until their status is determined, she said.



However, she explained that if the court were to cover legal aid for every applicant, it could become very expensive.



“We do not have these resources, but are very well aware of the problem, and are trying to find solutions,” she said.



Luc Walleyn, the lawyer representing victims in the trial of Congolese militia leader Thomas Lubanga, said while the OPCV is useful for assisting with legal work, such as drafting submissions, “the work of representing a client you have to do yourself, or with the help of NGOs who are in contact with clients”.



NGOs are also frustrated by the amount of assistance victims are provided.



Goetz said that while the ICC outreach department and the VPRS hold one-day trainings with local NGOs and community leaders on what victim participation means, it does not directly help with filling out application forms in a bid to stay neutral.



McKay told IWPR that one of the reasons the VPRS does not assist victims directly is because it is more effective to work through local intermediaries who know the victims and have their trust.



“We try to interpret our mandate in the best interest of victims, and given all the constraints, we try to develop strategies that most effectively help victims,” she said.



However, many NGOs remain adamant that money should be provided to fund independent legal counsel for victims throughout their dealings with the ICC.



According to Karine Bonneau from FIDH, the Assembly of State Parties, ASP - the countries which support the ICC - were set to review the court’s legal aid scheme at a meeting in New York this week, but instead chose to discuss other matters.



“FIDH is disappointed because legal aid for victims was not referred to at the ASP discussion,” said Bonneau.



“We feel legal aid should be provided from the very beginning of the application stage, as it is impossible for victims to apply and defend their application if they have no legal representative.”



Katy Glassborow is an IWPR international justice reporter in The Hague. With additional research by Marije Van Der Werff in The Hague.