The Early Stages of ICC Proceedings: Why the Court Must Ensure Access to Justice for Victims and Suspects (Part I: Victims and ICC Investigations: Rhetoric v. Reality)

[Megan Hirst is ICC victims’ representative in the Bangladesh/Myanmar and Afghanistan situations.

Marie O’Leary is acting Principal Counsel for the ICC Office of Public Counsel for the Defence (OPCD). The views in this post are those of the author alone and do not reflect the views of the ICC.

Valeria Babără is Legal Adviser at Women’s Initiatives for Gender Justice, and Danya Chaikel is FIDH Representative to the ICC.]

Last year, litigation in the Palestine Situation put a spotlight on the International Criminal Court’s (ICC) early stages. Over the recent years, much of the ICC’s work has occurred at what we here call the “early stages”: the investigation stage, or the period in a case before a suspect is before the Court. Despite this, there is insufficient understanding and little scrutiny of the work done at these stages. Much occurs behind the scenes, and under the cloak of investigative secrecy. Yet the investigation stage is vitally important for both victims and suspects. It is the time when the Prosecution gathers the bulk of its evidence, and selects crimes, suspects, and charges.

This is the first in a two-part post which considers the Court’s early stages of proceedings, first from the perspective of victims, and then from the perspective of defendants. We ask whether current approaches to the oversight of the ICC’s early stages are fit for purpose: both in terms of living up to rhetoric about victim-centred justice, and for safeguarding fundamental rights held by its defendants. Our analysis concludes that without clearer regulations, procedural safeguards, and meaningful access to justice, the Court risks failing both victims and suspects in these critical early stages.

The Investigation Stage Actors

Within the ICC, discussion around the investigation stage often assumes that there is only one actor at this stage: the Prosecution. 

Clearly, this is the stage when the Prosecution begins to gather evidence and build cases. But this itself indicates that the Prosecution is not alone. No Prosecution investigation takes place without victims. Victims are a key source of crime-base evidence. And the Prosecutor is duty-bound, under Art. 53(2)(c) of the Rome Statute, to consider victims’ interests when deciding whether to initiate a prosecution.  

And beyond those victims whom the Prosecution approaches, there will be many, many other victims interacting with the Court and with each other. Where an investigation is initiated under Art. 15, or where admissibility proceedings occur under Art. 18(2), Judges ask victims about their views. Once the investigation is open, victims (and their lawyers) are invariably active, and regardless of the Prosecution’s activities, they will be documenting crimes and advocating for their interests. At this stage, victims’ lawyers advise their clients on the proceedings, and engage on their behalf with various parts of the Court.

The investigation stage therefore involves frequent interactions: between victims and the Prosecution; among victims’ lawyers; and between victims’ lawyers and the Registry. Other actors, such as States Parties, can also become involved. These interactions generate procedural questions relevant to the proper collection of evidence, and to the Court’s protection obligations under Art. 68(1). And yet, at present, the ICC largely ignores these questions. 

A Regulatory Vacuum 

ICC observers will be familiar with the practice of establishing various “protocols” within cases. These now include a protocol on the handling of confidential information during an investigation and interactions with witnesses (a template is annexed to the Chambers Practice Manual) and a protocol on interactions with victim-witnesses (e.g. Abd-Al-Rahman Dual Status Protocol). These protocols address important questions such as:

• To whom confidential information may be given during an investigation, and what duties fall on the person who shares it? 
• Where an investigator interviews a participating victim, can the victim’s lawyer be present and if so, what is the lawyer’s role?
• When investigators meet with a participating victim, is the victim or the victims’ lawyer entitled to a copy of the record of that meeting?

The reason for addressing such matters in protocols is obvious: these topics are not sufficiently addressed by the Court’s texts. While some texts, including the Rome Statute (Arts. 54(1)(b) and 68(1)), the Code of Conduct for Investigators (ss 6 and 7), and of the Code of Conduct of the Office of the Prosecutor (paras 25-26, 66-68) all require some forms of consideration and protection of victims, they provide no detail on what that means in practice. Regulations 35-39 of the Regulations of the Office of the Prosecutor include more specific requirements for witness interactions but do not address interactions with participating victims and their lawyers. Protocols are therefore adopted to fill these gaps with actionable frameworks. .

But, crucially, these protocols have only been adopted for specific cases, and only after a suspect is in custody. What happens, then, during the many years that often elapse before that, during the investigation stage?

In practice, these key matters simply go unregulated. The very issues that Judges consider must be regulated in cases – to protect victim and witness well-being and the integrity of proceedings – are not addressed during the initial stage when the bulk of the Prosecution investigation occurs.

One-party Litigation 

This lack of regulation does not affect all actors equally. This is partly due to the dramatic asymmetry that exists on standing. Standing – the power to seize or be heard by the Judges – allows actors to enforce rules where they exist, and to seek clarification by judicial determination where they do not. 

The Prosecution’s standing at the Court is almost absolute (at least until reparations proceedings). During the investigation stage, if the Prosecution has a concern, including on a matter where insufficient regulation exists, it can always seize the Pre-Trial Chamber (PTC) to have the matter addressed. 

But what happens if a victim has concerns, for example about the conduct of the Prosecution, or conduct of another actor (victim, lawyer, intermediary, or a suspect)? Can victims seize a PTC to ensure that investigation-stage activities are conducted in compliance with the limited rules which do exist? Or to seek clarity where there are no such rules? 

Victims’ standing during the investigation stage was first litigated before the Appeals Chamber (AC) in 2008. The appeals challenged two decisions of PTC I which had held that on approval of their applications, victims obtained a status entitling them to participate directly in the Prosecution’s investigation. While overruling that approach, the AC nonetheless affirmed that victims can participate in judicial proceedings during the investigation stage when their personal interests are affected, including by initiating such proceedings (para. 56). It gave the example of victims requesting measures for the protection of their safety, well-being, privacy etc. under Art. 68(1) and (2) (para. 50). The question was addressed again in a series of PTC decisions across several ICC situations in 2010-2012 (Kenya, CAR I, DRC, Libya, Uganda). While determining that victim applications would not routinely be processed outside of a case, these decisions reiterated that victims could make submissions to a PTC at the situation level, including on the victims’ own initiative (see e.g., Kenya Decision, paras 12, 15-16). The Judges also clarified that the “situation victims” who could take such steps included those who had submitted applications for participation, regardless of whether the applications had been ruled on (see e.g., Kenya Decision, p. 9, fn. 19).

Unfortunately, subsequent practice has not always lived up to the promise of those early decisions. This might be for several reasons. For one, a lack of legal aid has limited lawyers’ assistance to victims, such that submissions have only rarely been made. Secondly, regardless of the clear position set out in those decisions, the Prosecution has continued to insist that victims have no standing at this stage (see e.g. here, here and here).  

Chambers have reacted variously. At times, PTCs have accepted victims’ submissions, whether in response to other filings (e.g. paras 20-21) or when victims have themselves initiated litigation (e.g. paras 16-19). The AC and Presidency have broadly supported victims’ standing. In 2019, in appeals from the Art. 15 ruling in the Afghanistan Situation, the AC allowed victims’ lawyers to make numerous written submissions and allocated them time during hearings (see procedural history). It again accepted victims’ submissions in proceedings concerning Art. 18. The previous Presidency also received requests from victims (even if it did not grant them – see here and here).

However, in recent years the PTCs – who have oversight of the investigation stage – have often not followed suit. This is exemplified by a 2023 PTC I decision. Victims’ lawyers in the Bangladesh/Myanmar proceedings requested – with notable support from the Offices of Public Counsel for Victims (OPCV) and Defence (OPCD) – a protocol to regulate activities during the investigation stage, and for access to confidential records (as occurs for victims’ counsel within cases). They argued that this was needed following problematic incidents. For instance, a victim’s request for the presence of a lawyer during a Prosecution meeting was denied; and the Prosecution then refused to share records of that meeting with the victim or the lawyer. PTC I declined to decide the merits of the request, ruling that the victims did not have standing to even make the request. 

It is difficult to conceive of matters more directly related to the victims’ personal interests than these. If the victims did not have standing on them, who would? 

The answer – at least in the view of some Judges – appears to be that there is only one actor with standing during the investigation stage: the Prosecution. This naturally fits with the Prosecution’s own apparent view: that it operates alone during the investigation stage, free not only of protocols regulating its conduct, but also of anybody who can challenge or hold it to account. On this view, for an important and often lengthy period, the ICC is a one-party court. That such an approach could gain traction is surprising within an institution so anchored in the adversarial model. It also deviates from national frameworks: in what system is there no party who can seek to judicially challenge or review police or prosecutorial conduct?

The Consequence: No Rules, No Chance to Be Heard?

The result is that the investigation stage is overseen only by Prosecution itself: there are few specific rules (other than some internal Prosecution rules), and no system for accountability. The Prosecution and other actors operate without the detailed independent protocols which will apply to investigations at pre-trial and trial. And if victims suffer harm through this lack of regulation, or a breach of the few rules which do exist, they have no avenue to seek redress. 

How can harm to victims arise in practical terms? It might be – as in the Bangladesh/Myanmar example cited above – that the Prosecution adopts problematic procedures in its investigation. But it might equally be unintended by the Prosecution or the Court: imagine a large-scale data hack after which no information is provided to victims about whether their information has been affected. Harm may also arise from conduct of other actors altogether: a state party might inappropriately attempt to intimidate or put pressure on victims’ counsel. All these scenarios have occurred. And as the Court’s current practice stands, victims have no recourse.

For victims, one especially troubling part of this picture is the Prosecution’s position. Far from seeking to ensure that investigations happen according to clear, transparent and rigorous regulations that meet international standards, and to which all actors are held accountable, the Prosecution actively opposes such an approach. It resists victims’ filings, arguing against their standing. For instance, in response to victims’ request for a protocol applying the same standards routinely applied at pre-trial and trial, the Prosecution objected, essentially arguing that it should be trusted to comply with its internally-produced rules and policies. In the Prosecution’s view, it is the only actor at this stage – it is for the Prosecutor alone to both carry out the investigation, and safeguard its integrity: 

the statutory framework that grants the Prosecutor the power to solely and independently conduct and ensure the integrity of the investigations and protect the confidentiality of the information should not be compromised by giving the victims a permanent standing/role in the investigations.

Prosecution response, para. 47

The approach is a curious one from an institution whose very existence is premised on the value of a rules-based order and mechanisms for accountability. For victims, it is disheartening, especially given the Prosecution’s frequent public claims of promoting victims’ interests. In the Prosecutor’s own words:

My primary and indeed my only objective must be to achieve justice for the victims. 

The Registry must also do better. In May 2024, our organisations and others held an event at the Court to examine the challenges faced by victims in participating during the ICC’s early stages. Despite statements of commitment made at that time by the Registry, no action has yet been taken. Legal aid measures for this stage which were approved by the ASP in December 2023 are unimplemented, and a policy for investigation-stage services to victims counsel, proposed by the ICCBA in September 2023, remains pending with the Registry. As the ICC reviews and updates its victims’ strategy “to align [it] with their evolving needs and challenges,” the time is already well overdue to improve the Court’s approach to victims in these formative early stages.

Coming next…

Victims are not the only actors impacted by how the Court operates during the early stages of proceedings. In the second instalment of this post, we will consider defence rights, and conclude with a discussion of why these issues matter for the ICC and what can be done.