ICC Conference Boost for Victim Participation

Reflecting on the recent International Criminal Court, ICC, review conference in Kampala, Uganda, international lawyers and NGOs have welcomed discussions about victim participation and the court’s engagement with communities who have suffered abuses.

“I think [victim participation at the ICC] has become much more understood as a result of the discussions [in Kampala] and there is some sort of greater acceptance of the idea,” Mariana Goetz, of the London-based rights organisation Redress, said.

She added that many states have been very vocal about the issues, and supportive of the court’s provision for victim participation.

Rights groups and victims have previously voiced concern that the court does not engage effectively enough with communities on the ground in the regions where it operates.
They have called upon states to throw their support behind this process, with a lack of court staff on the ground being a particular concern.

Under the ICC’s founding treaty - the Rome Statute - victims have the right to participate in criminal proceedings at the court. They can apply to take part in a case and be represented in the courtroom by a lawyer. If a conviction is handed down by the court, the victim is also entitled to seek compensation for the suffering endured as a result of the crime or crimes perpetrated against them.

ICC member states met in Kampala from May 31 to June 14 for a scheduled review of the court’s work since its inception in 2002.

“The very fact that victims' issues and the impact of the ICC on... affected communities was so central to the discussions in Kampala is [really significant],” Goetz said. “It’s become part of the mainstream in the discussions as opposed to being a marginalised topic.”

Raymond Brown, an American lawyer who represents victims in the ICC’s Darfur investigation, also welcomed the conference.

He said it was a rare opportunity for NGOs and lawyers to talk directly to delegates from the states supporting the court, and for key questions on the issue of victim participation to be raised.

“It’s a test [of whether states feel it is just] a fiscal responsibility [or] whether they truly... desire to have victims fully participate and especially in the Darfur situation,” he said.

But Brown pointed out that the states’ efforts to fund victim participation at the ICC has been disappointing.

“Some states are clearly committed and are learning more about what is required. There is a second category of states that are still open to persuasion,” he said. “But there are some states that are [reluctant] and I think are never going to make the difference. So, at the end of the day, the question is: where is the critical mass? I think the next couple of years will determine that.”

For Goetz, the conference was significant in that it helped clarify a fundamental issue that has not come across clearly to the international community: what does victims’ involvement in criminal trials actually mean to the victims themselves?

“There is a general sense that victims of mass violations, particularly of wars, are helpless masses who have very immediate needs and who haven’t really got an interest in seeing justice being done,” she said.

“There is a real division between the people who are in the field and very far away from the trials in The Hague and diplomats who question whether the trials and processes really matter to them. I think that that message – that this is really important to people – is beginning to get through.”

Miia Aro-Sanchez, who represented Finland at the review conference, acknowledged that not all states were onboard with victim participation.

“I don’t think you can change the minds of states who have never even heard of victim participation overnight to saying 'this great and we should do it',” she said.

But Aro-Sanchez added that there is a fairly broad consensus that victim participation is important.

It’s now twelve years since the introduction of the Rome Statute, but progress on the participation of victims has been slow. Aro-Sanchez says that this is because it is not a regular part of criminal procedure in many countries that have ratified the treaty.

“I think it is normal there is some hesitancy,” she said. “There is [still] a lot of new ground that has to be somehow mapped with regard to victim participation.”

This aspect of the ICC’s work has proved controversial, with some critics questioning the extra burden it places on the court. Some have also questioned whether it could ultimately affect the outcome of trials.

However, the Rome Statute indicates that victims are a vital part of the justice process.

“The contribution that the victims are making as participants in the trial is very significant and enriches the process,” Goetz explained. “[Justice] is perhaps a bit hollow without their involvement.”

IWPR contacted the ICC on this issue but the court declined to comment on discussions at the Kampala conference, since it is a forum organised by member states.

A resolution, adopted by member states on June 8, re-affirms victims’ rights before the court and underlines the need to help them to realise those rights.

Currently, there are 105 victims participating in the ICC trial of alleged Congolese warlord Thomas Lubanga and a further 346 in the court’s second Congo case against alleged militia leaders Germain Katanga and Mathieu Ngudjolo.

During proceedings, victims have been able to use their involvement in the cases to directly address judges on factual issues.

“[Victims] contribute together with the prosecution… to help the judges to assess the case before them based on the evidence and the accounts of the witnesses,” legal expert Ali Agab said.

There have been calls for additional funding, but it is unclear that heightened awareness about victim participation will translate into extra resources being made available.

But Finland's Miia Aro-Sanchez thinks its not just about more funding.

“I think that the court needs to look at [all of its] activities: what it does in The Hague and what it does in the field,” she said. “[This] is really about creating a better impact because in the end that’s what [the justice process] is about.”

Tajeldin Abdhalla Adam and Assadig Mustafa are IWPR trainees. Simon Jennings is an IWPR reporter in The Hague.