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.
Are we in favour of victims’ rights? I’d think they are problematic exactly for this reason: because they tend to undermine the objectivity and neutrality of the affair.
KJH,
How did the victims force the OTP to prosecute the additional charges? Is it that the victims can apply directly to the judges to add the charges? And, the judges can agree to the additional charges even if the prosecution does not? Something else?
Kevin,
Thank you for your timely discussion on the issue of victims’ rights at the ICC, based on the IWPR article. I note your reference to the quote from the article- which was included as a response to your earlier statement- though it was not intended as such. The quote refers to Article 68(3) of the Statute which sets out the general right of victims to participate in proceedings before the ICC.
On the specific issue of the victims’ application to recharacterise the charges, it is clear that the standing of a victim to make specific applications before the Court will obviously be considered by the Chamber based on a number of factors including the particular legal text governing that application, the potential impact on defence rights and the general intent of the Statute. On this issue my view is that Regulation 55 (the provision on which the application was made) does not per se prevent any participant, including victims, from bringing such an application. Although this regulation empowers the Chamber to legally recharacterise the charges, the provision may be triggered by any party or participant. The Chamber will ultimately decide whether the application is appropriate or ill-founded.
What is significant (as mentioned elsewhere in the interview) is that the timing and scope of the application appear to be unfair to the defendant. The application is being brought at a time when the Prosecution has closed its case; further, the application itself appears (as noted by the dissenting Judge) to be for an “amendment or addition to, or substitution for the charges” rather than a modification of the legal characterisation of the facts as provided by regulation 55. Those are important issues that the Appeals Chamber will have to decide upon if the Trial Chamber grants leave.
The other issue which you’ve noted is whether or not this potentially impacts Prosecutorial independence. The Prosecution has not specifically raised this as an issue thus far nor have they challenged the standing of victims to bring the application. This may be a matter of strategy or procedural imperative at this time (given the limitations of the provisions on interlocutory appeals).
Lorraine