Controversy Over ICC Victim Participation

A new office at the International Criminal Court, ICC, has been accused of overstepping the mark in carrying out its remit to help victims of human rights abuses take part in the trials of those accused of carrying out these abuses.



The controversy arose when judges at the ICC dismissed a document which the Office of Public Counsel for Victims, OPCV, had submitted concerning 49 Ugandans who had applied to take part in a future trial of four leaders of the Lord's Resistance Army, LRA, a rebel group which has mounted a two-decade-long insurgency in northern Uganda.



The four, including LRA leader Joseph Kony, have not been apprehended, so any trial is still a distant prospect, but the dispute raises serious concerns about the arrangements for allowing victims a role in ICC trials.



The ICC is the first international war crimes tribunal to invite victims to participate in proceedings on a voluntary basis, rather being summoned to testify as witnesses. Victims are free to make submissions to judges on issues they themselves feel are important, unlike witnesses who are required to give testimony and are subjected to questioning by prosecution and defence lawyers.



But before they are accorded this right, victims must fill out application forms. These are scrutinised by judges, who then decide whether to invite them to take part in the trial , at which point they are provided with legal counsel. Individuals are not automatically granted legal representation from the moment they submit their applications, and only have a right to it once they have been approved by judges and assigned the legal status of victims.



The controversy relates to the intervening period between application and the judges' decision, when it is unclear how much legal advice and representation applicants can be offered by the court's institutions.



In the case of the 49 Ugandans, the OPCV – an independent office set up in 2005 to look after the legal interests of victims at the ICC – clearly interpreted the rules differently from the judges, offering comments on the applicants' suitability as well as advising them on their rights.



This disparity in interpretations has created some confusion over the OPCV's precise remit, and has made human rights organisations worry about how the legal rights of individuals applying for participation are being safeguarded.



OPCV staff recently travelled to Uganda to meet the 49 people who had filed applications to take part in the LRA trial.



On February 1, prior to the visit, pre-trial judges at the ICC issued a decision which sought to define the OPCV’s role in assisting victims. It tasked the OPCV with giving applicants “any support and assistance which, albeit falling short of legal representation, may be necessary or appropriate at this stage of the proceedings".



Judge Mauro Politi, the judge assigned to look after matters relating to victims in the LRA case, explained that what this meant was that the OPCV should explain the ICC's process to applicants before any decision on their application was taken, and inform them of the rights they would enjoy as trial participants if their application was successful.



Staff at the OPCV told IWPR that they interpreted this as enabling the office to "provide comments to the chamber, if this is useful to the applicants"; in other words, that they could not only give applicants the factual information referred to by Judge Politi, but also report back to the court with findings from their meetings and observations on the applicants.



On returning to The Hague, the OPCV team submitted a document to judges on March 27 which outlined the legal merits of each applicant's case and commented on whether he or she should be allowed to participate.



ICC prosecutors came back with a riposte on April 3, filing an objection which said the OPCV's observations were "without a legal basis and outside the mandate conferred" in the judges' February 1 statement.



Lawyers looking after the rights of the defence also objected to the OPCV's submission.



In a ruling issued on April 16, Judge Politi ruled that the OPCV had indeed acted outside its mandate, and that its observations were inadmissible.



There was no legal basis for the "spontaneous submission of legal observations as to the admissibility and the merits of the victims' applications", he said.



He said the OPCV had not interpreted the February 1 decision the way that judges had intended it.



The OPCV was established to provide "support and assistance to the legal representative of victims and to victims, including legal research and advice, and appearing before a Chamber in respect of specific issues". Its regulations require it produce factual background documents on situations the court is looking into, write research papers, and "provide advice on selected aspects of international criminal law, in particular on law relevant to victim's participation".



However, Judge Politi made it clear that under the court's regulations, all the tasks that the OPCV performs are "conditional upon their being appropriate". Filing observations on the admissibility of applicants was not, he concluded, "appropriate".



The OPCV still maintains that it had the right to act as it did. Its head Paolina Massidda told IWPR that the February ruling "implies the possibility to provide legal arguments to the Chamber in favour of the applicants", especially because judges had asked the OPCV to provide assistance in any manner it considered "useful and necessary".



But Politi's view is that whenever there is any doubt or ambiguity, the OPCV should consult first before taking any action. "As far as any activity or initiative not specifically authorised by the Chamber is concerned, the proper way for the OPCV to fulfil its mandate is to refrain from taking any initiatives vis-à-vis the Chamber without prior seeking authorisation to do so," he said in his ruling.



Anabela do Céu Atanásio Alves of the Hague Institute for the Internationalisation of Law, and a former advisor to ICC judges, told IWPR that the February decision which set the stage for the OPCV's Ugandan visit left the level of assistance that could be offered a very open matter that was left to the OPCV to interpret.



Alves said the OPCV's role is an advisory one, and does not envisage it providing legal arguments or acting as counsel for victims, unless it is specifically requested to do so by judges.



As such, she said, the February 1 decision was "too open, reflecting the broad language of the statute".



According to Alves, judges could have given clear guidance as to the OPCV's precise role in assisting victims, thus setting a precedent for other ICC cases. As things stand, however, "unfortunately it remains unclear how far the office can go", she said.



She added that "now is the time to set guidelines, parameters and precedents", so that there are clear interpretations of the rules defining who plays what role at the ICC when it comes to arranging the participation of victims.



"The ICC is a unique system and there are no precedents," she said, noting that as the court's rules are an amalgam of different legal systems, when the rules were drafted many issues were left for the judges to decide.



"Many procedural issues in the wording were left open, which reflects the compromise that had to be made during the drafting," she said.



Describing the procedural grey areas as "vacuums" which must be filled by judges as soon as possible, Alves insisted that precise regulations are "fundamental for the good running of proceedings from the outset".



Given the lack of clarity surrounding the process of applying to participate in an ICC in the capacity of a victim, human rights organisations have on occasion stepped in to fill the breach.



The International Federation for Human Rights (FIDH) and Avocats Sans Frontières, ASF, assisted victims of the Ituri conflict in the Democratic Republic of Congo to fill in ICC application form.



Martine Schotsmans of ASF takes the view that "any victim who files a request should be represented legally from the moment a request is filed".



It cannot be fair, she argues, that people who find that their request to participate is rejected at the initial stage are not entitled to legal representation. This means that while the prosecution and defence are invited to comment on their applications, the victims themselves cannot respond.



In addition, the jurisprudence regarding victim participation is developing with every decision that is made, and the trial proceedings themselves are very complex. Schotsmans argues, therefore, that "victims should be given representation, otherwise the right to participate in complex proceedings is just an empty right - victims need legal assistance".



In dismissing the OPCV's observations on the 49 Ugandan applicants, the ICC judges were careful to make it clear that their decision would not prejudice future requests for OPCV assistance, "on a case-by-case basis".



Regardless of the legal wrangling, Massidda remains upbeat about the role her office can play. "We are studying their [victims'] issues all day and are in a position to provide advice," she said.



Victim participation is still a new and evolving concept where "everything needs to be defined", she said, adding that "we need to wait for further jurisprudential developments to see to what extent participation will be effective in court proceedings".



Katy Glassborow is an IWPR reporter in The Hague.