05 Sep IWPR on Victims in the Lubanga Case
Rachel Irwin of IWPR has published a typically excellent article on the role of victims in Lubanga. (The article quotes me liberally, though, so you shouldn’t take my word for that.) A taste:
A total of 99 victims represented by seven lawyers are participating in the Lubanga trial at the International Criminal Court, ICC. The lawyers are present in the courtroom each day, where they are able to question witnesses and put their clients’ views.
It is the first time that victims have been able to present their views and concerns before an international court.
“The landscape of international criminal justice has changed perhaps forever, because of the role of the victims,” said Lorraine Smith, who monitors the ICC for the International Bar Association, IBA.
Victims can apply to participate in trials at the ICC if they are able to prove a link to the crimes in the indictment. Some are also witnesses for the prosecution.
Analysts say they have shaped the Lubanga trial – the first to take place at the ICC – in ways large and small.
However, their most significant contribution so far was the application by their lawyers to add charges of sexual slavery and cruel and inhumane treatment to the indictment, just as the prosecution prepared to close its case this spring.
Later in the article, Lorraine Smith, who follows the ICC for the International Bar Association, responds to my criticism of the “recharacterization” of the facts by arguing that — in Irwin’s words — “the victims are simply exercising the rights they have been given, which include presenting their views and concerns to the court.” That is a misleading statement, at best: nothing in the text or history of the Rome Statute indicates that the victim-participation provisions in Article 68 give victims the right to force the OTP to prosecute charges it declined to bring initially. Presenting “views and concerns” is one thing; undermining prosecutorial independence — to say nothing of the fair-trial rights of the defendant — is another.