Victims and The International Criminal Court Research Paper

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This research paper reviews the treatment of victims in the International Criminal Court, including the victims’ participation and reparation regime; the establishment of a Trust Fund for Victims, the institution of an office of Public Counsel for Victims, state cooperation procedures, and relevant jurisprudence.

Fundamentals

The treatment of victims in the International Criminal Court (ICC) represents a substantial innovation in the field of victims’ redress under international law. It marks a significant departure from traditional interstate approaches to individual claims for breach of an international legal obligation based on classical principles of state responsibility, towards a more comprehensive regime in which individual victims have a right under international law to seek and obtain reparations directly from individuals found responsible for genocide, war crimes, crimes against humanity, or the crime of aggression. Unlike the Nuremberg and Tokyo International Military Tribunals or the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), the ICC Statute allows victims ample opportunity to participate in the Court’s proceedings and to receive some form of redress directly from the Court by way of judicial award. The ICC legal regime ensures that the right of victims to redress is no longer left exclusively in the hands of domestic authorities.

The ICC Statute’s provisions on victims figure centrally within the ICC’s general architecture, linking to other relevant provisions, such as those relating to state cooperation as enshrined in Part 9 of the Statute. This approach anchors the victim’s rights to redress solidly in the ICC’s norms and operation and improves the coherence and comprehensiveness of the victims’ participation and reparation regime beyond that of the ICTY or ICTR.

Key Issues

The Rome Statute’s victims’ regime rests on five main pillars:

Participation in the proceedings
Establishment of reparation procedures
Creation of a Trust Fund
Institution of an Office of Public Counsel for Victims
State cooperation procedures

Participation In The Proceedings

The ICC allows victims some degree of direct participation in the Court’s proceedings, in line with modern victimology theories which recognize the importance of victims’ participation in the retributive process as a fundamental component of the healing process, especially where serious human rights violations are involved. In this sense, the ICC helps to crystallize one of the emerging, fundamental normative components of the victims’ right to redress, namely, the right to be involved in the justice process, irrespective as to whether this process is to be administered by a judicial body, such as the ICC, or by quasijudicial bodies such as truth and reconciliation commissions, enquiry commissions, human rights bodies, or similar entities.

Based on these premises, Article 68(3) on “Protection of the victims and witnesses and their participation in the proceedings” provides that:

Where the personal interests of the victims 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 [.. .]. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate [.. .].

This provision basically allows victims to be heard at certain stages of the proceedings, from the beginning of an investigation to the sentencing stage, thus conferring upon them a measure of locus standi. In particular, the ICC regime provides victims with the faculties discussed below.

Victims Can Provide Information To The Prosecutor For The Purpose Of Initiating An Investigation

The ICC Statute does not provide victims with an independent power to institute proceedings. Unlike the European Court of Human Rights or the Inter-American Court of Human Rights, where individual victims can petition the Court either directly or, in the Inter-American system, through the Commission, the drafters of the Rome Statute decided against conferring individual victims full capacity to petition the Court. As such, victims have only “indirect” access to the Court through the action of the Prosecutor. At the very initial stages of the judicial process, victims are among those who can provide the Prosecutor with information which may trigger the initiation of a proprio motu investigation into a crime falling within the jurisdiction of the Court under Article 15. At this stage, the Prosecutor has an obligation to “analyze the seriousness of the information received,” and, in this context, he or she may “seek additional information” and “receive written or oral testimony at the seat of the Court.” Should the Prosecutor decide that the information received is not adequate to satisfy the “reasonable basis” requirement to proceed with an investigation, victims are allowed to submit further information on the same situation “in light of new facts or evidence” (Article 15(6)).

The limitation of not having an independent power to initiate proceedings can prevent victims from accessing the Court, should the Prosecutor fail to give proper consideration to the information provided by victims. In practice, the Prosecutor has ample discretion to decide whether or not to initiate an investigation or to proceed to a prosecution upon investigation.

Under Article 53(1)(c), should the Prosecutor have “substantial reasons to believe that an investigation would not serve the interests of justice,” he or she may determine that there is no reasonable basis to proceed to an investigation. Similarly, the Prosecutor can decide whether or not to proceed with a prosecution even following an investigation, as provided in Article 53(2)(c). Although this determination must take into account elements such as “the gravity of the crime and the interests of victims” (Article 53), the Prosecutor’s ample discretionary powers to decide on whether a particular prosecution should go ahead or not may limit the possibility of victims seeking and obtaining redress through the ICC.

The Rome Statute, however, provides a series of checks and balances to prevent abuse of power on the Prosecutor’s part. For example, should the Prosecutor decide not to proceed with an investigation or with a prosecution following an investigation, the Pre-Trial Chamber retains the power to review and confirm the decision, either on its own motion or at the request of the referring party.

Should the Prosecutor decide that there is a “reasonable basis” to proceed with an investigation, he or she must inform the victims or their legal representatives of the decision to proceed, unless the Prosecutor, at his or her discretion, decides that this “would pose a danger to the integrity of the investigation or the life or wellbeing of victims and witnesses” (Rule 50).

Also, in terms of limitations for the victims, one needs to consider that, unlike the Security Council’s authority to refer to the Court situations of genocide, war crimes, or crimes against humanity taking place anywhere in the world, even where the country in question is not a party to the Rome Statute, the Prosecutor’s capacity to investigate a particular situation out of his or her own motion must comply with the general conditions of territoriality or nationality. In other words, the Prosecutor can only initiate proprio motu investigations into situations that either have occurred in the territory of a State Party to the ICC or that have involved accused who are nationals of a State Party to the ICC.

Victims Can Make Representations To The Pre-Trial Chamber

Full participation of victims at the pre-trial stage is an essential prerequisite both for the preparation of an eventual trial and for the purposes of reparation. Once the Prosecutor has decided to proceed with an investigation of a situation under the jurisdiction of the Court, the matter goes to the Pre-Trial Chamber for a judicial review of the decision. At this stage, victims can make representations to the Pre-Trial Chamber (Article 15(3)), and the Chamber may decide to hold a hearing to collect additional information.

Victims are the only ones who can make representations at the pre-trial stage, since neither States Parties nor individual suspects can challenge the admissibility of the Prosecutor’s request for authorization of an investigation. During the pre-trial stage victims can also trigger the power of the Pre-Trial Chamber to take protective measures for the purpose of forfeiture, which is often an essential step in ensuring proper financial coverage of an eventual reparation award.

Also, in case the Prosecutor seeks a ruling on a question of jurisdiction or on the admissibility of a case, victims or their representatives can make representation to the Court to submit their observations (Article 19(3) in combination with Rule 59).

Victims Can Make Opening And Closing Statements And Participate In Hearings

The Chamber has wide discretion to determine ways in which victims can participate in the proceedings. Once victims have filed a written application to “present their views and concerns” (Article 68(1)), it is up to the Chamber to decide whether or not to accept the application and, in case it does, to specify appropriate ways for victims to participate in the proceedings, including through the making of opening and closing statements (Rule 89).

However, the ICC Statute indicates at least one way in which victims may participate in the proceedings, and this is by way of participating in a hearing and posing questions to witnesses, experts, or the accused either in writing or orally, subject to the Chamber’s prior approval. In the case of a hearing for reparations, the victims’ legal representative must not be subject to any restriction on the questioning of witnesses, experts, or the accused prior to the approval of the Chamber (Rule 91). Yet, both the Statute and the Rules clarify that victims’ participation in the proceedings will be allowed only if it is “not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial” (Article 68(3)) or if it does not hinder the “need for a fair, impartial, and expeditious trial” (Rule 91). It is therefore up to the Chamber to be responsive to the requirements of the Statute on victims’ access to the proceedings and to ensure proper ways for victims to participate in the justice process.

Establishment Of Reparation Procedures

The ICC’s powers in relation to the victims’ right to seek and obtain reparation for damages represent a major advance. The Court’s capacity to award reparations directly to the victims was among the more controversial issues debated both prior to and during the Rome Diplomatic Conference. Delegations expressed concern that a direct reparation system would be difficult to manage and would not be compatible with the Court’s main responsibilities to prosecute and punish the offender. However, delegations finally agreed on a rather innovative formula providing the Court with the power to determine the scope and extent of damages, losses, and injuries suffered by victims once an individual is found guilty of one of the crimes under the jurisdiction of the ICC. According to Article 75:

The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

Article 75(1) adopts non-exhaustive language but also lists specific reparation elements such as restitution, compensation, and rehabilitation, thus resolving what had been a lengthy debate over redress terminology.

Although the Court can determine damages, losses, or injuries either upon request or proprio motu, the reparation procedure is designed to be accessible mainly at the request of victims. The Court therefore acts on its own initiative only “in exceptional circumstances.” A victim’s request for reparation must be made in writing and filed with the Registrar and must contain certain specific information such as the “identity and address of the claimant”; a “description of the injury, loss, or harm”; the location and date of the incident; the identity of the person the victim believes to be responsible for the violation, if possible; a description of the objects for which restitution is claimed; a claim for monetary compensation, rehabilitation, and other forms of remedy; and any other relevant supporting documentation.

In general, the drafters of the Rome Statute conceived the reparation regime and relevant proceedings to function as a widely publicized process. Under Rule 96, the Registrar has an obligation to give publicity “as widely as possible and by all possible means” to the reparation proceedings before the Court “to other victims, interested persons and interested states.” To this end, the Registrar may seek the cooperation of relevant States Parties and the assistance of NGOs.

Following the determination of the scope and extent of damages, losses, and injuries suffered by the victims, the Court can expedite payment in one of two ways. It could:

– Make an order directly against the convicted person “specifying appropriate reparations to, or in respect of, victims, including restitution, compensation, and rehabilitation”

– Where appropriate, order that “the award for reparations be made through the Trust Fund” established under Article 79 of the Statute. The Court has the authority to exercise its full discretion in the choice of the reparation awards. Reparations may be awarded in the form of restitution of property, compensation, or rehabilitation but also in forms other than those specifically listed in the Rome Statute, such as orders for apologies, satisfaction, or guarantees of non-repetition. Although the Rome Statute does not contemplate expressly the possibility of awarding punitive damages in addition to compensatory damages, this option might fall within the Court’s discretion. The Court must give consideration “to the extent of the damage caused, in particular the harm caused to the victims and their families” in determining sentence under Article 78. Conversely, wherever appropriate, the Court must also consider efforts by the convicted person to compensate the victims as a mitigating circumstance (Rule 145).

Creation Of A Trust Fund

The ICC has the authority to channel a reparation award against a convicted person through the Trust Fund, which is established under Article 79 “by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court and of the families of such victims.” Broadly speaking, the Fund can be used almost as an intermediary for the transfer of awards, for example, in the case of mass claims. The Statute identifies two sources of income for the Trust Fund as follows:

– Reparation awards against a convicted person ordered by the Court to be made through the Trust Fund (Article 75(2))

– Money or other property collected through fines or forfeiture under Article 77, ordered by the Court to be transferred to the Trust Fund for the benefit of the victims and their families (Article 79(2))

The choice of the language in Articles 75 and 79 reflects the different scope of application of the two provisions with respect to the Trust Fund. Article 75(2) establishes that “the Court may order a reparation award against a convicted person to be made through the Trust Fund,” which suggests that the Trust Fund is bound to use the proceeds of a specific reparation award exclusively for the benefit of the victims with respect to the particular case before the Court, rather than to use it for other cases or situations. In this regard, the Trust Fund functions more as an intermediary for the transfer of individual awards. Rule 98(2) indicates accordingly that the Court could order an award for reparation against a convicted person to be deposited with the Trust Fund only in cases where, at the time of the order, “it is impossible or impracticable to make individual awards directly to each victim.” This particular award will remain separate from other resources of the Trust Fund and will be distributed to each victim “as soon as possible.” However, Rule 98(3) also specifies that “where the number of victims and the scope, forms and modalities of reparations makes a collective award more appropriate,” the Court may order such award to be made through the Trust Fund. Indeed, collective awards resulting from class actions appear to be the most likely form of reparation to be distributed by the ICC, as compared to narrowly targeted and administratively onerous individual awards.

In contrast, Article 79(2) indicates broadly that the Court can order “the transfer of money or other property collected through fines or forfeiture to the Trust Fund.” This suggests that the Trust Fund is not bound by the Statute with respect to the use of money or property collected from fines or forfeiture, as long as the funds are used “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims” as per Article 79(1). Rule 85(a) defines “victims” as “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court,” but also:

Organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

Accordingly, the Trust Fund has the power to recognize and approve intergovernmental, international, or national organizations as beneficiaries of reparation awards directed through the Fund. The ICC Statute establishes that the Court and the Victims’ Trust Fund have different budgets and financing schemes. Because the Trust Fund is not funded directly from the budget of the Court, voluntary contributions to the Trust Fund take on added importance.

A crucial question for the operation and effectiveness of the Trust Fund is precisely who can be considered to qualify as a victim for the Fund’s purposes. On this point, the Statute’s only indication is that the Trust Fund is established for “victims of crimes within the jurisdiction of the court” (Article 79(1)). Some have interpreted the provision of Article 79(1) as conferring “victim’s status” for the purpose of the Trust Fund exclusively on family members and victims of violations under consideration in ICC proceedings, thus aligning the Trust Fund’s scope of application ratione personae to that of the Victims and Witnesses Unit originally provided for in the Statute. Others have suggested that the Trust Fund’s scope of action should cover also victims of violations who do not fall within the ambit of the Court’s proceedings. This latter approach is based on the argument that Article 79 creates the Trust Fund for the benefit of victims of “crimes within the jurisdiction of the Court” in general, without specifically mentioning their participation in the proceedings. Based on this approach, the Trust Fund’s resources could be accessed by any victim of crimes falling within the Court’s jurisdiction, regardless of the victim’s participation in the proceedings, as a witness or in another capacity.

Institution Of An Office Of Public Counsel For Victims

The Office of Public Counsel for Victims (OPCV) replaces the Victims and Witnesses Unit, originally established under the ICC Statute to function as a permanent statutory organ of the ICC which is financed by regular budget funding. The OPCV is intended to provide “legal research and advice to victims and their legal representatives at all stages of the proceedings,” as well as legal representation to victims. Placed under the Registrar for administrative purposes, the Office comprises Counsel, Legal Officers, and Administrative Assistants. It is designed to function completely independently from the Registrar and the organs of the Court, and in this connection, all members of the Office are obliged to follow a “Code of Professional Conduct” for counselors of traumatized or threatened victims.

State Cooperation Procedures

To work effectively for the benefit of victims, the ICC reparation regime requires the full cooperation of States Parties, non-States Parties, and all others concerned. State parties are under the obligation to cooperate fully with the Court in relation to investigations or prosecutions and to ensure that reparation orders are fully enforced. To this end, the Rome Statute embodies a number of provisions aimed at supporting and implementing the victims’ participation and reparation regime. Cooperation provisions come under the general umbrella of Articles 86, 87, and 88 in Part 9 of the Rome Statute. Article 86 provides for a general obligation for states to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Article 87 grants the Court the power to request state cooperation and sets out some basic procedures to seek assistance, including a provision specifically dedicated to the assistance of victims, potential witnesses, and their families. Finally, under Article 88, States Parties have an obligation to ensure that “there are procedures available under their domestic law for all forms of cooperation” specified under Part 9. State cooperation is required from the early stages of the proceedings, particularly where the Pre-Trial Chamber, acting under Article 58, issues a warrant of arrest or a summons to appear before it and consequently decides to take “protective measures” for the purpose of forfeiture, in particular for the ultimate benefit of victims’ under Article 57(3)(e). In its preliminary work, the Pre-Trial Chamber can request the cooperation of states under Article 93, which could include the identification, tracing, and freezing of the defendant’s assets; the seizure of proceeds, property, and assets and instrumentalities of crimes; and the execution of searches and seizures.

The Court can also request cooperation at subsequent stages in the enforcement of ICC reparation orders. State cooperation is essential, particularly during early phases of investigation, for example, with regard to identification, tracing, and freezing of assets which could later become the object of reparation orders. Prompt State action at the request of the Court could help to prevent the alleged offender from relocating his or her assets to countries willing to shield the suspect from reparation orders.

Significantly, in its first reparations decision in the Lubanga Case, the Court ruled that Part 9 of the Statute did not prevent it from awarding forms of reparation other than those expressly mentioned in the Statute. In particular, the Court could award reparations as follows:

By establishing or assisting campaigns that are designed to improve the position of victims; by issuing certificates that acknowledge the harm particular individuals experienced; setting up outreach and promotional programmes that inform victims as to the outcome of the trial; and educational campaigns that aim at reducing the stigmatisation and marginalisation of the victims of the present crimes (ICC-01/04-01/06-2904 at para. 239).

Jurisprudence

In the ICC’s first substantial decision on the situation in the Democratic Republic of the Congo (Decision on the applications for participation in the proceedings of VPRS1, 2, 3, 4, 5, and 6, “Lubanga Case” ICC-01/04-01/06, 17 January 2006), the ICC Judges addressed some of the Statute’s ambiguities concerning the definition and role of victims in the proceedings.

In the Lubanga Case, six individuals requested to participate as victims at the investigative stage of the proceedings. This prompted the Pre-Trial Chamber to consider “whether the Statute, the Rules of Procedure and Evidence … and the Regulations of the Court accord victims the right to participate in the proceedings at the stage of investigation of a situation and, if so, what form such participation should take.” In its decision, the Court also considered the question of whether the applicants met the criteria for being considered victims within the meaning of Rule 85.

The Prosecutor contended that victims could not participate in the proceedings at the investigative stage because “there are, strictly speaking, no proceedings within the meaning of Article 68 of the Statute during the investigation phase” since “from a terminological point of view, the word ‘proceedings’ does not encompass the investigation of a situation.” The Prosecutor considered victims’ participation as “inappropriate” and further argued that, in any case, the applicants had failed to show that their personal interests were affected at the investigation stage.

In response to the Prosecutor’s challenge, the Pre-Trial Chamber observed that the Court had a general obligation to “take appropriate measures to protect the safety, physical and psychological well-being, dignity, and privacy of victims and witnesses,” including at the investigation stage and that, in fact, there was no “explicit exclusion” of the investigation stage from the scope of application of Article 68(3) on the question of victim’s participation. On this basis, the Chamber concluded that Article 68 of the Statute gave victims a general right of access to the Court, including at the stage of investigation of a specific situation.” The Court noted that the victims’ right of participation at the investigation stage was in fact consistent with the “object and purpose of the victims’ participation regime of the ICC” and, more generally, with “the growing emphasis placed on the role of victims by the international body of human rights law and by international humanitarian law.” The Chamber went on to say that victims had the right, under the Statute, to express an “independent voice and role” in ICC proceedings and noted that the victims’ right to participate in the proceedings was part of a more general right to participate “in the fight against impunity,” thus adopting a broad approach. During the course of the Lubanga Trial, 129 victims participated in the Court’s proceedings with submissions, requests to introduce evidence, and more directly, by questioning witnesses. Three victims themselves testified as witnesses.

The approach that the Pre-Trial Chamber adopted to victims’ participation in the Lubanga Case has come under a certain degree of criticism, especially as concerns the distinction between a victim in the context of a “situation” and a victim in the context of a “case.” The difference is that, under the ICC Statute, a situation is a set of background circumstances in which crimes may have been committed, and which the Prosecutor is investigating, for example, the Darfur situation or the situation in the Central African Republic. A case, on the other hand, involves allegations, investigation, and prosecution of a particular individual or individuals who have been accused of crimes within the jurisdiction of the Court. In Lubanga, the Trial Chamber decided that whoever had a “personal interest” in the investigation of a situation could participate in the investigative phase of the proceedings. Potentially, this opened the door to a very large number of victims, which raises the question as to whether the Court’s having to handle perhaps many hundreds or even thousands of people participating at an early investigative stage could hinder or even compromise the Prosecutor’s investigative efforts which require a methodical, organized, and systematic approach.

Once the Prosecutor decides to move on from investigating a “situation” to the laying of charges and preparation of a formal indictment, the Court will have to narrow its recognition of individuals as “victims” to only those persons directly relevant to the issue of criminal guilt.

Only those individuals with a clear nexus to the crime (“personal interest linked to the charges,” to be assessed by the Court) would be in a position to offer testimony relevant to guilt or innocence and, ultimately, to apply for reparations. A risk is that where the Prosecutor fails to make a strong enough case, the Pre-Trial Chamber can decline to authorize the Prosecutor to proceed further, which could then leave out victims related to the particular crimes in question.

The potential shortcomings of this approach for the victims have been partially addressed by the Court’s first reparation order of 7 August 2012, issued following the Court’s decision to sentence Thomas Lubanga Dyilo to 14 years imprisonment for war crimes and crimes against humanity in the DRC, for having conscripted and used child soldiers in his rebel army. As regards causation, the Court observed that:

Neither the Statute nor the Rules define the precise requirements of the causal link between the crime and the relevant harm for the purposes of reparations. Moreover, there is no settled view in international law on the approach to be taken to causation. Reparations should not be limited to “direct” harm or the “immediate effects” of the crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in the hostilities, but instead the Court should apply the standard of “proximate cause.” (ICC-01/04-01/06-2904 at paras 249–250)

On the same point, the Court also clarified that:

Reparations may be granted to direct and indirect victims, including the family members of direct victims [.. .]; anyone who attempted to prevent the commission of one or more of the crimes under consideration; and those who suffered personal harm as a result of these offences, regardless of whether they participated in the trial proceedings. (ICC-01/04-01/06-2904 at para 194)

In its order, the Court noted that “reparations can be directed at particular individuals, as well as contributing more broadly to the communities that were affected” and that reparations must:

Relieve the suffering caused by [the] offences; afford justice to the victims by alleviating the consequences of the wrongful acts; deter future violations; and contribute to the effective reintegration of former child soldiers. Reparations can assist in promoting reconciliation between the convicted person, the victims of the crimes and the affected communities. (ICC-01/04-01/06-2904 at para 179)

The Court also opted for a “collective approach” to reparations to ensure that reparation awards reach both victims who have applied for reparations and those who have not been identified, specifying that individual and collective reparations are not mutually exclusive and that they may be awarded concurrently. In terms of implementation, the Court ordered that the processing of claims and the subsequent awards should be channeled through the Trust Fund for Victims. Eighty-five victims have launched applications for reparations, and it is estimated that there are more than 8,000 victims who were directly affected by the crimes prosecuted in the Lubanga Case.

Bibliography:

Bottigliero I (2004) Redress for victims of crimes under international law. Martinus Nijhoff, The Hague International Criminal Court, http://www.icc-cpi.int
Schabas W (2004) An introduction to the international criminal court, 2nd edn. Cambridge University Press, Cambridge
Sunga LS (1997) The emerging system of international criminal law: developments in codification and implementation. Kluwer Law International, The Hague
Trust Fund for Victims, https://www.trustfundforvictims.org/