The right of victims to participate in proceedings before the International Criminal Court is contained in Article 68(3) of the Rome Statute, which provides:
“Where the personal interests of the victim 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”.
Article 68(3) therefore provides victim participants with the right to present their views and concerns to the Court where their personal interests are affected, at a stage of the proceedings to be determined by the Court, and in a manner which is not prejudicial to the right of the Defendant to a fair and expeditious trial. The use of the word “shall” in the text of Article 68(3) denotes that, where the various conditions of the provision are satisfied, the right of victims to present their views and concerns is not subject to the exercise of any permissive discretion on the part of the Court.72 The provisions of Article
Procedure’ in Adam Crawford and Jo Goodey (eds), Integrating a Victim Perspective within
Criminal Justice: International Debates (Ashgate 2000) 193. 72
This interpretation is reinforced by the use of the word “may” subsequently in the Article, and is consistent with an “ordinary meaning” approach to treaty interpretation, Article 31(1) of the Vienna Convention on the Law of Treaties (1969). Recognition of a similar approach to the interpretation of the provisions of the Rome Statute has been acknowledged in the caselaw of the Court, see, for example, The Prosecutor v. Thomas Lubanga Dyilo (“Lubanga”) (Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 Jan. 2008) ICC-01/04-01/06-1432 (11 July 2008) [85]. See also The Prosecutor
v. Germain Katanga and Mathieu Ngudjolo Chui (“Katanga and Ngudjolo”) (Decision on the
Modalities of Victim Participation at Trial) ICC-01/04-01/07-1788-tENG (22 January 2010) [53], in which the right of victims to present their views and concerns is described in terms of a statutory entitlement; Prosecutor v. Laurent Gbagbo (“Gbagbo”) (Decision on issues related to the victims’ application process) ICC‐02/11‐01/11‐33 (6 February 2012), in which the single judge describes “her obligation to guarantee the rights of victims to express their views and concerns in a
meaningful manner” [emphasis added] [5]. See also Mariana Pena and Gaelle Carayon, ‘Is the ICC Making the Most of Victim Participation?’ (2013) International Journal of Transitional Justice 1, 2.
37
68(3), together with Court’s Rules of Procedure and Evidence (“Rules” or “RPE”), however, indicate that the manner in which the victims’ right to participate is exercised is subject to a number of judicial discretions, including the determination of an appropriate stage of proceedings in which victims’ views might be presented, the specific modalities of participation and the meaning and ambit of “views and concerns” in the given case.73 In exercising its discretion in this regard, the Court is required by Article 68(3) to give primacy to the right of the Defendant to a fair and expeditious trial. Participants must, in turn, be “victims” within the meaning of Rule 85 RPE.74
Victims wishing to participate in specific proceedings before the International Criminal Court are required to submit a written application to the Registrar. Applications are processed by the Victims Participation and Reparation Section (“VPRS”) of the Registry, and victim participation status is determined by the Tribunal on a case-by-case basis.75 The potential modalities of participation are wide-ranging, and include the ability of victims to attend and participate in specific hearings, either orally or in writing,76 the opportunity for victims to present any views and concerns which are specifically engaged by the proceedings in question,77 and the chance to make opening and closing statements in a case.78 Victim participants may also be able to question, challenge and seek to discredit witnesses,79 contest the admissibility of evidence80 and submit evidence
73 See Katanga and Ngudjolo, ibid, [53], including in relation to the ambit of “views and
concerns”. See also Rule 89(1) of the Court’s Rules, indicating the Court is able to specify the appropriate stage for, and modalities of, victim participation.
74
The definition of “victim” is discussed in more detail at para 1.2.4.(ii).
75 There are modifications to simplify the process in the case of collective forms of application, see Prosecutor v. Ruto & Sang (“Ruto and Sang”) (Decision on victims’ representation and
participation) ICC-01/09-02/11-460 (3 October 2012) [10]; Gbagbo (6 February 2012) (n 72) and
Gbagbo (Second decision on issues related to the victims' application process) ICC-02/11-01/11-86
(5 April 2012).
76 Rule 91(2) RPE. 77 Rule 89 RPE. 78
Rule 89(1) RPE, and indicated in caselaw, for example, in Prosecutor v. Bosco Ntaganda (“Ntaganda”) (Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings) ICC-01/04-02/06-211 (15 January 2014) [87].
79 Rule 91(3) RPE. See also Lubanga (Decision on the Manner of Questioning Witness by the
38
themselves,81 including by testifying as a witness in their own right, independently of the Defence or Prosecution.82
As noted in the introduction to this thesis, the integration of victims into the criminal justice process is widely described in academic and practitioner literature as “[o]ne of the major innovations of the ICC”,83
which “completely modifies the position of victims from witnesses of crimes to that of being the subject of rights”.84
The pioneering, victim- focussed provisions of the Rome Statute reportedly provide “the promise of justice for, and not just with, the victims”.85
In this section, the potential of the Court’s victim participation endeavour to provide a positive, restorative benefit to participants is examined and assessed, firstly in terms of its theoretical underpinnings and content, and secondly, in relation to the practical
interpretation and application of the endeavour by the Court and expert commentators alike.
Prosecutor v. Jean-Pierre Bemba Gombo (“Bemba”) (Decision on Directions for the Conduct of
the Proceedings) ICC-01/05-01/08-1023 (19 November 2010) [18]; Prosecutor v. Francis Kirimi
Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (“Muthaura, Kenyatta and Ali”)
(Decision on Victims' Participation at the Confirmation of Charges Hearing and in the Related Proceedings) ICC-01/09-02/11-267 (26 August 2011) [116] – [117].
80 Lubanga (11 July 2008) (n 72) [101]; Katanga and Ngudjolo (22 January 2010) (n 72) [104]. 81 Lubanga (11 July 2008) (n 72). Evidence can be either documentary or oral: see Katanga & Ngudjolo (22 January 2010) (n 72) [101], and see also Katanga (Judgment) ICC-01/04-01/07 (7
March 2014) [31].
82 As a witness of the Court, under Article 69(3) of the Rome Statute, whereby the Court is able to
“request the submission of all evidence that it considers necessary for the determination of the truth”, subject to certain prior conditions being met; Lubanga (11 July 2008) (n 72) [4] and [104];
Katanga & Ngudjolo (Directions for the conduct of the proceedings and testimony in accordance
with rule 140) ICC-01/04-01/07-1665-Corr (1 December 2009) [19]; Bemba (Decision on the supplemented applications by the legal representatives of victims to present evidence and the views and concerns of victims) ICC-01/05-01/08-2138 (22 February 2012) [23]-[24].
83 See, for example, Schabas (n 1), 328; Wemmers (2010) (n 1), 629; Cohen (n 2), 351; Fiona
McKay, (Victim Participation) (n 1). See also Bassiouni (2006) (n 1), 230.
84 Cohen, ibid, 357. 85
39