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The International Criminal Court and Participation of Victims: A Third Party to the Proceedings?

  • HÅKAN FRIMAN
Abstract

The provisions of the ICC Statute allowing victims to participate in the criminal proceedings in their own right were a novel feature in international criminal proceedings. While representing a welcomed restorative element, victim participation has been a time and resource consuming issue for the ICC to handle. After a number of decisions concerning participation in the investigation and pre-trial phases of the process, the trial chamber in the Lubanga case and the Appeals Chamber have issued the first rulings with respect to victim participation at trial. This note addresses these decisions and controversial issues therein, such as the nexus between the victim and the crime charged and the victim's right to adduce and challenge evidence. One may now ask whether victims as ‘participants’ are in fact becoming ‘parties’ to the criminal proceedings.

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1 The Rome Statute of the International Criminal Court, 2187 UNTS 90, adopted on 17 July 1998.

2 Rules of Procedure and Evidence, adopted on 9 September 2002, doc. ICC-ASP/1/2 (Part II-A).

3 On the negotiations, see G. Bitti and H. Friman, ‘Participation of Victims in the Proceedings’, in R. S. Lee et al. (eds.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence (2001), 456.

4 See, e.g., Eide, A., ‘Preventing Impunity for the Violator and Ensuring Remedies for the Victim’, (2000) 69 Nordic Journal of International Law 1, and Zwanenburg, M., ‘The Van Boven/Bassiouni Principles: An Appraisal’, (2006) 24 Netherlands Quarterly of Human Rights 641.

5 See, e.g., T. van Boven, ‘The Position of the Victim in the Statute of the International Criminal Court’, in H. von Hebel et al. (eds.), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (1999), 87.

6 See, e.g., S. A. Fernández de Gurmendi and H. Friman, ‘The Rules of Procedure and Evidence of the International Criminal Court’, (2001) 3 Yearbook of International Humanitarian Law 289, at 312.

7 E.g. A. Zahar and G. Sluiter, International Criminal Law (2007), 75–6.

8 E.g. C. Jorda and J. de Hemptinne, ‘The Status and Role of Victims’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 1338–9; E. Haslam, ‘Victim Participation in the International Criminal Court: A Triumph of Hope over Experience?’, in D. McGoldrick et al. (eds.), The Permanent International Criminal Court – Legal and Policy Issues (2004), 334; M. Heikkilä, International Criminal Tribunals and Victims of Crime (2004), 152–4; R. Cryer et al., An Introduction to International Criminal Law and Procedure (2007), 361.

9 E.g. Stahn, C. et al. , ‘Participation of Victims in Pre-trial Proceedings of the ICC’, (2006) 4 Journal of International Criminal Justice 219; Chung, C., ‘Victims' Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’, (2008) 6 Northwestern Journal of International Human Rights 459; S. Vasiliev, ‘Article 68(3) and Personal Interests of Victims in the Emerging Practice of the ICC’, in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (2009), 635; H. Friman, ‘Participation of Victims before the ICC: A Critical Assessment of the Early Developments’, in G. Sluiter and S. Vasiliev (eds.), International Criminal Procedure: Towards a Coherent Body of Law (forthcoming in 2009); Baumgartner, E., ‘Aspects of Victim Participation in the Proceedings of the International Criminal Court’, (2008) 90 International Review of the Red Cross 409.

10 Situation in the Democratic Republic of the Congo, Decision on the Application for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04–101-tEN-Corr, P.T. Ch. I, 17 January 2006.

11 Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision on Victims’ Participation, ICC-01/04-01/06-1119, T. Ch. I, 18 January 2008 (hereinafter Trial Chamber Lubanga Decision).

12 E.g. Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0005/06 concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007, ICC-01/04-01/06-925, A. Ch., 13 June 2007. For a critical view see e.g. H. Friman, ‘Interlocutory Appeals in the Early Practice of the International Criminal Court’, in Stahn and Sluiter, supra note 9, at 553–61.

13 Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victim's Participation of 18 January 2008, ICC-01/04-01/06-1191, T. Ch. I, 26 February 2008.

14 Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I's Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06 OA9 OA10, A. Ch., 11 July 2008 (hereinafter Appeals Chamber Lubanga Decision).

15 Situation in the Democratic Republic of the Congo, Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of Pre-Trial Chamber I of 17 December 2007 and in the appeals of the OPDC and the Prosecutor against the Decision of Pre-Trial Chamber I of 24 December 2007, ICC-01/04-556, A. Ch., 19 December 2008.

16 Trial Chamber Lubanga Decision, supra note 11, para. 84.

17 E.g. Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision on the Applications by Victims to Participate in the Proceedings, ICC-01/04-01/06-1556, T. Ch. I, 15 December 2008.

18 Ibid., para. 137. See also Trial Chamber Lubanga Decision, supra note 11, para. 138.

19 Judge Blattmann, dissenting, disagreed with the majority's application of the provisions on leave for appeal and considered that leave should also be granted concerning the modalities of identification of a victim, the participation of anonymous victims, and the scope of a provision allowing evidence relating to reparations to be presented during the trial process; see Situation in the Democratic Republic of the Congo, supra note 13, Separate and Dissenting Opinion of Judge René Blattmann.

20 See Situation in the Democratic Republic of the Congo, PT.Ch. I, 17 January 2006, supra note 10, para. 82. See also Bitti and Friman, supra note 3, at 461.

21 Some commentators even argue that the judges, at least of the Pre-Trial Chamber, should refrain from an adjudication of harm during the evaluation of victims’ participation; see e.g. American University Washington College of Law, Victim Participation before the International Criminal Court, War Crimes Research Office, November 2007, at 63.

22 Trial Chamber Lubanga Decision, supra note 11, para. 92.

23 Adopted by the UN General Assembly, Resolution 60/147 of 16 December 2005.

24 Trial Chamber Lubanga Decision, supra note 11, Separate and Dissenting Opinion of Judge Blattmann, paras. 4–5.

25 Appeals Chamber Lubanga Decision, supra note 14, paras. 20 and 33.

26 Trial Chamber Lubanga Decision, supra note 11, para. 91.

27 Appeals Chamber Lubanga Decision, supra note 14, paras. 31–32.

28 Ibid., paras. 35 and 37.

29 Ibid., para. 32.

30 Appeals Chamber Lubanga Decision, supra note 14, Partly Dissenting Opinion of Judge Pikis, para. 3.

31 See also ibid., para. 18.

32 Trial Chamber Lubanga Decision, supra note 11, para. 93.

33 Ibid., paras. 94–95 (misquoting Art. 68(3) of the ICC Statute by leaving out that the interests must be ‘personal’).

34 Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-172, PT. Ch. I, 29 June 2006, p. 6 (‘Considering that at the case stage, the Applicants must demonstrate that a sufficient causal link exists between the harm they have suffered and the crimes for which there are reasonable grounds to believe that Thomas Lubanga Dyilo bears criminal responsibility and for which the Chamber has issued an arrest warrant’); see also Situation in Uganda, Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, Case No. ICC-02/04-101, PT. Ch. II, 10 August 2007, paras. 9, 30, 39, 49, 59, 66, 75.

35 Trial Chamber Lubanga Decision, supra note 11, para. 103.

36 Ibid., para. 97.

37 Ibid., para. 93.

38 Appeals Chamber Lubanga Decision, supra note 14, paras. 58–66.

39 Ibid., para. 62.

40 Ibid., paras. 63–64.

41 Trial Chamber Lubanga Decision, supra note 11, para. 85.

42 See Chung, supra note 9, at 497–503.

43 American University Washington College of Law, Victim Participation at the Case Stage of Proceedings, War Crimes Research Office, February 2009, 38–9.

44 See also Chung, supra note 9, at 509–14.

45 Ibid., at 530.

46 For critical comments see, e.g., American University Washington College of Law, supra note 43, at 51–2.

47 Trial Chamber Lubanga Decision, supra note 11, para. 108.

48 Ibid., paras. 119–122.

49 Ibid., para. 108.

50 Ibid., para. 109.

51 Partly Dissenting Opinion of Judge Pikis, supra note 30, at para. 19; Appeals Chamber Lubanga Decision, supra note 14, Partly Dissenting Opinion of Judge Kirsch, paras. 36–38.

52 Appeals Chamber Lubanga Decision, supra note 14, para. 93.

53 Ibid., paras. 95 and 98.

54 Ibid., para. 97.

55 The International Criminal Tribunal for the former Yugoslavia (ICTY), where the judges have a similar power (Rule 98 of the ICTY Rules of Procedure and Evidence), has in practice applied different alternatives; see, e.g., Prosecutor v. Blaškić, Decision of Trial Chamber in Respect of the Appearance of General Enver Hadžihasanović, IT-95–14-T, T. Ch. I, 25 March 1999 (order to appear as a court witness); and Prosecutor v. Deronjić, Decision on Production of Additional Evidence Pursuant to Rule 98, IT-02–61-S, T. Ch. II, 5 December 2003 (order to the Prosecution to produce additional evidence).

56 Cf. Partly Dissenting Opinion of Judge Kirsch, supra note 51, paras. 20–21 (‘the Statute is unambiguous in this reference to evidence at trial being presented by the parties’ – referring to Art. 64(6)(d) of the ICC Statute).

57 Appeals Chamber Lubanga Decision, supra note 14, para. 100.

58 See Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), T. Ch. I, 26 February 2008, supra note 13, para. 42.

59 Compare, however, the investigation conducted by an ICTY trial chamber with respect to two court witnesses who were not called by any of the parties; Prosecutor v. Krajišnik, Reasons for Decision Denying Defence Motion Regarding Chamber Witnesses Biljana Plavšić and Branko Đerić and Decision on Admission into Evidence of Biljana Plavšić's Statement and Book Extracts, IT-00-39-T, T. Ch. I, 14 August 2006, paras. 3–7.

60 See, e.g., American University Washington College of Law, supra note 43, at 52; Chung, supra note 9, at 520.

61 Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision Regarding the Timing and Manner of Disclosure and the Date of Trial, ICC-01/04-01/06-1019, T. Ch. I, 9 November 2007, para.16.

62 Appeals Chamber Lubanga Decision, supra note 14, para. 100.

63 Partly Dissenting Opinion of Judge Kirsch, supra note 51, para. 16.

64 See, e.g., Prosecutor v. Momir Nikolić, Order Summoning Miroslav Deronjić to Appear as a Witness of the Trial Chamber Pursuant to Rule 98, IT-02-60/1-S, T. Ch. 1A, 10 October 2003, at 4.

65 Appeals Chamber Lubanga Decision, supra note 14, para. 102. The Appeals Chamber also read a right to produce documents, i.e. written evidence, into the provisions of Rule 91(3), but arguably this goes further than the scope of the provisions; sub-para. 3 is clearly confined to questions to a witness called by someone else, and the ‘production of documents’ mentioned in sub-para 3(b) must refer to auxiliary documents to the testimony and the questions, not to written evidence as such.

66 Partly Dissenting Opinion by Judge Kirsch, supra note 51, paras. 31–32.

67 See also Chung, supra note 9, at 530–1.

68 See Prosecutor v. Krajišnik, 14 August 2006, supra note 59, para. 13.

69 See Prosecutor v. Krajišnik, Judgement, IT-00-39-A, A. Ch., 17 March 2009, paras. 111–16.

70 See, e.g., F. Terrier, ‘Powers of the Trial Chamber’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 1272–3.

71 See also P. O. Ekelöf, Processuella grundbegrepp och allmänna processprinciper (1956), 240.

72 ICC Rules, Rules 91(4) and 94(1)(g).

73 ICC Statute, Arts. 75 and 76(3).

74 See Bitti and Friman, supra note 3, at 487. See also the Regulations of the Court, Regulation 56.

75 Trial Chamber Lubanga Decision, supra note 11, paras. 119–121. Interestingly, the Chamber also claimed that it ‘will be able, without difficulty, to separate the evidence that relates to the charges from the evidence that solely relates to reparations’ (para. 121).

76 Ibid., paras. 61 and 122.

77 See Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), T. Ch. I, 26 February 2008, supra note 13, paras. 51–53.

78 Appeals Chamber Lubanga Decision, supra note 14, para. 101.

79 Prosecutor v. Katanga and Ngudjolo Chui (Situation in the Democratic Republic of the Congo), Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-trial Stage of the Case, ICC-01/04-01/07-474, PT. Ch. I, 13 May 2008, paras. 30–31.

80 Ibid., para. 35.

81 Ibid., para 101.

82 Trial Chamber Lubanga Decision, supra note 11, para. 106.

83 Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, ICC-01/04-01/06-228, PT. Ch. I, 22 September 2006, 6–7.

84 See Prosecutor v. Katanga and Ngudjolo Chui (Situation in the Democratic Republic of the Congo), PT. Ch. I, 13 May 2008, supra note 79, para. 128.

85 Prosecutor v. Bemba Gombo (Situation in the Central African Republic), Fourth Decision on Victims’ Participation, ICC-01/05-01/08-320, PT. Ch. III, 12 December 2008, paras. 99, 103–105.

86 Trial Chamber Lubanga Decision, supra note 11, para. 113.

87 See Prosecutor v. Katanga and Ngudjolo Chui (Situation in the Democratic Republic of the Congo), PT. Ch. I, 13 May 2008, supra note 79, paras. 130, 140.

88 Prosecutor v. Katanga and Ngudjolo Chui (Situation in the Democratic Republic of the Congo), Decision on Limitations of Set of Procedural Rights for Non-anonymous Victims, ICC-01/04-01/07-537, PT. Ch. I, 30 May 2008.

89 See, e.g., Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), (Public) Decision on the Applications by Victims to Participate in the Proceedings, ICC-01/04-01/06-1556, T. Ch. I, 15 December 2008, as amended on 13 January 2009 (ICC-01/04-01/06-1556-Corr).

90 E.g. Prosecutor v. Bemba Gombo, supra note 85.

91 See, e.g., American University Washington College of Law, supra note 43, at 30–43.

* Director in the Swedish Ministry of Justice and Visiting Professor, University College London. As a member of the Swedish ICC delegation, the author served as working group sub-coordinator concerning, inter alia, procedures for victim participation. Opinions expressed are those of the author and cannot be attributed to any institution.

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