Comparing victim participation at the ICC

kenya-icc-justice_30.10.13

Calls for justice in Kenya following the country’s 2007-8 post election violence. © 2008 Getty Images

With differing systems in place and a review underway, Mariana Pena – legal officer for international justice with the Open Society Justice Initiative – explores the application process for victims to participate in ICC proceedings in this guest post.

On February 6, 2015, Trial Chamber VI at the International Criminal Court (ICC) issued a decision on victim participation at the trial stage in the Bosco Ntaganda case (February 6 decision). During pre-trial proceedings, 1,120 victims participated, specifically in relation to the confirmation of charges. The February 6 decision considers the process for victims to apply to participate in the Ntaganda trial proceedings and how the court will treat those applications.

The system for victims to apply to participate in proceedings before the ICC (application system or application process) has been under review. In decisions issued since April 2012, various chambers introduced changes to the application system in specific cases. The application process had been burdensome on the chambers, the parties, and the Registry, had created significant backlogs of applications, and appeared not to be effective for victims. Some of the reasons that contributed to these problems include the length of the application form (an initial form was 17-pages long, which was later shortened to a seven-page form) and the fact that the applications needed to be transmitted to the parties and therefore redactions had be applied in order to protect the identity of the applicants.

In different cases, the chambers have explored different options to put in place a more streamlined and less burdensome process. At the pre-trial stage of the Laurent Gbagbo case, a partly-collective application form was created. In the Kenya situation, at the trial stage, the chamber decided to do away with applications and order the Registry to instead “register” victims in both the case against William Ruto and Joshua Sang and the case against Uhuru Kenyatta. As a result, no applications or other information on the participating victims were transmitted to the parties, and therefore no redactions were needed. Significantly, they were not transmitted to the judges either. While the Kenya cases decisions ordered the Registry to undertake registration, in practice the legal representatives of victims were involved in identifying and vetting victims. Such an involvement of the legal representatives could create conflicts taking into account their mandate to represent victims. Finally, at the pre-trial stage of the Ntaganda case, the pre-trial chamber introduced a simplified one-page application form and ordered that applications be transmitted to the chamber and the parties. In submissions made prior to the February 6 decision, the Registry explained that it would take it about a year to process victim applications should the same system be maintained at trial.

Some of the decisions on the application process taken in different cases have considered the practice of previous cases, seeking to learn lessons and to build upon those experiences. The February 6 decisions considers in particular the systems put in place in the Kenya cases at trial stage and in the Ntaganda case at the pre-trial stage. After careful consideration of past practice and legal requirements, the chamber designs a new sui generis application process that builds upon the experience of various cases yet introduces new procedures. The main features of the new system in comparison to previous cases are discussed below. (For a full summary of the decision, see here).

Application Forms Maintained

In contrast to the Kenya cases, the application forms for participation are maintained. These had been abolished in the Kenya cases and replaced by registration forms only available to the Registry and the legal representative of victims. Instead, the February 6 decision orders the Registry to distribute and collect simplified application forms (like the ones used at the pre-trial stage of the case). The Registry must transmit all applications received to the trial chamber. In contrast to the system put in place at pre-trial, whereby any supporting material would be stored by the Registry and not transmitted to the chamber, the February 6 decision states that supporting materials must also be forwarded to the judges.

Strengthened Role for the Registry

The Registry had already acquired a stronger role in relation to analysis of victim applications for transmission to the chamber at the pre-trial stage of the Ntaganda case. The February 6 decision further reinforces that role. At the pre-trial stage of the case, the Registry had been instructed to group applications in accordance with relevant criteria (such as the nature of the crime, the location of the crime, or the location of the victims). Grouping was meant to simplify and expedite the decision-making by the chamber.

At the trial stage, the chamber delegates responsibility to the Registry for the assessment of the applications on the basis of criteria identified by the chamber. The Registry is requested to separate applications in three groups, but grouping is instead based on whether applicants meet the criteria to qualify as victims. The three groups are: applicants who clearly qualify as victims (Group A); applicants who clearly do not qualify as victims (Group B); and applicants for whom the Registry could not make a clear determination for any reason (Group C). This division in three categories has an impact on which applications are to be transmitted to the parties (see below).

The Registry must prepare one or more reports listing the victim applications that fall under each of the three groups. The Registry does not need to undertake an application-by-application analysis in those reports (such an analysis had been required according to the pre-trial system). The reports must be shared with the chamber, the prosecution, the defense, and the victims’ legal representative.

Partial Transmission to the Parties

According to the decision, only the applications falling under Group C should be transmitted to the prosecution and the defense. This practice should reduce the amount of applications that need redactions and therefore lessen the Registry’s workload. It should also contribute to a decrease in the parties’ workload as it should bring about a fall in the number of applications that the parties receive and need to comment on.

Questions had been raised by the parties as to their right to receive and reply to all applications, as per Rule 89 of the Rules of Procedure and Evidence. However, the chamber noted that the parties’ right to reply to victim applications is not absolute and should be read in light of certain Rome Statute provisions.

All applications had always been transmitted to the parties in previous cases, except for the Kenya cases where the victims were simply registered and no communication of registration information was shared with either the chamber or the parties.

Ruling on the Applications by the Chamber

At the pre-trial stage of the Ntaganda case, while the report written by the Registry included an initial assessment on the applications, the final decision was to be made by the chamber. According to the February 6 decision, upon receiving any submissions from the parties on the applications falling under Group C, the chamber will assess them individually and make a determination. The chamber will also ratify the assessment made by the Registry in relation to applications falling under Groups A and B. This also differs from the system in place in the Kenya cases, where the chambers were not involved in any determination in relation to the applications.

Other Matters: Modalities for Participation and Legal Representation

The February 6 decision does not deal with the issues of modalities for victim participation at trial or legal representation. The modalities for victim participation will likely be decided upon in a future decision. With regard to legal representation, the chamber notes that a system involving representation by the Office of Public Counsel for Victim, which is an independent office within the ICC structure, of two groups of victims having a conflict of interest (child soldiers and victims who suffered from attacks) was put in place at the pre-trial stage. For the purpose of trial, the chamber orders the Registry to consult the victims that participated in the pre-trial stage as to whether that system should be maintained. The decision does not order the Registry to consult other victim applicants on either the system to be put in place or the qualifications that lawyers representing victims should meet.

This is article was produced by and originally appeared on the International Justice Monitor, a project of the Open Society Justice Initiative.

This entry was posted in Africa, Democratic Republic of Congo, Kenya, Kenyatta, Ntaganda, Ruto/Sang and tagged . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s