Victim Participation at the International Criminal Court

Misha Boutilier (1L)

“I feel that my voice should be heard throughout the world because it is not going to help only me, but the whole clan, the whole Acholi tribe.” These words, spoken by a victim who participated in the pre-trial period of cases against members of the Lord’s Resistance Army (the “LRA”) in Uganda, illustrate the importance of victim participation at the International Criminal Court (the “ICC”). Speaking anonymously as part of a group of individuals who were, among other things, abducted and forced to be child soldiers, this victim felt that the ICC could provide a meaningful forum for the voices of victims to be heard. Yet, not all victims who participate at the Court share this sentiment. Consider the words of one Kenyan who was the victim of ethnic violence after Kenya’s 2007 election. After the Prosecutor’s case against Kenya’s President Uhuru Kenyatta for inciting post-election violence in 2007-2008 collapsed in 2014, this victim felt that “The next time there is ethnic bloodshed in Kenya, the ICC should not even bother showing up.”

The ICC was created to hold the perpetrators of mass crimes accountable to their victims. Speaking at the 1998 Rome Conference, former United Nations Secretary General Kofi Annan declared that the new Court’s “overriding interests must be that of the victims and the international community as a whole.” As Madam Prosecutor Fatou Bensouda recently declared, the ICC is meant to seek “accountability for the victims” and is “the voice of those victims.”

Fatou Bensouda, Prosecutor of the International Criminal Court arriving at the Global Summit to End Sexual Violence in Conflict, 12 June 2014. (Photo Credit: Foreign and Commonweath Office, Wikimedia Commons)

The Rome Statute places justice for victims at the centre of the ICC’s mandate. Victims are not formal legal parties before the Court, but they are given a voice. Article 53 requires the Prosecutor to take into account “the interests of victims” when deciding whether to initiate a prosecution. Likewise, Article 54 directs the Prosecutor to “respect the interests and personal circumstances of victims” during the investigation stage of proceedings. Victims are able to participate at every stage of the proceedings where their interests are affected and their participation would not be prejudicial to a fair trial. They are not mere witnesses. The Victims Participation and Reparation Section and the Victims and Witnesses Unit of the ICC also exist to interact with victims and encourage their participation.

The ICC’s efforts to encourage victim participation and emphasize the interests of victims are fundamental to its effectiveness and legitimacy. The ICC depends on the willingness of victims to provide testimony to effectively prosecute perpetrators and secure convictions. If victims do not feel that the Court is sufficiently concerned about their interests and needs, many will choose not to participate. Victim participation also improves the effectiveness of the Court’s preventative function. When perpetrators of mass atrocities are forced to face their victims in court and listen to their testimony, it sends a powerful message against impunity. Finally, victim participation is essential to the Court’s legitimacy because the ICC exists in large part to provide redress to victims. If victims do not feel confident in the Court and support its investigations, it will be difficult for the Prosecutor to justify politically sensitive investigations that anger powerful states.

In fact, the Prosecutor and victims have worked effectively together in the past. Pre-Trial and Appeals Chambers have repeatedly notified victims of admissibility and jurisdictional proceedings and allowed victim submissions. In Prosecutor v. Germain Katanga, for instance, the Appeals Chamber considered the submissions of victims that supported the Prosecutor’s arguments on admissibility of evidence. Victims are also able to tell their stories to the Court and present evidence. In Prosecutor v. Lubanga, the Trial Chamber allowed victims to tell their stories, ensuring that the harm they suffered was documented and acknowledged. The Prosecutor and victims jointly emphasized the victims’ suffering as aggravating circumstances in the sentencing phase of Lubanga, and the Court took these factors into consideration.

However, the scope of the charges laid has sometimes led to tension between the Prosecutor and victims. In Lubanga, for instance, the Prosecutor only filed charges relating to the use of child soldiers, because of what was deemed insufficient evidence on the sexual violence count. Victims of sexual violence at the hands of Mr. Lubanga’s militia attempted to broaden the charges to include sexual violence, but the Court rejected these requests because of the Prosecutor’s independence. Yet, victim submissions have helped broaden the scope of investigations in a few cases. In Situation in the Republic of Côte d’Ivoire, the Pre-Trial Chamber directed the Prosecutor to expand the scope of the investigation because of victim testimony about sexual and gender-based crimes.

Another point of tension is the type of reparations awarded to victims. In Lubanga, the Trial Chamber chose to award collective reparations to the communities in the Democratic Republic of the Congo that Lubanga’s militia had taken child soldiers from. However, victims generally rejected collective reparations since they awarded reparations to communities that had been actively complicit in the taking of child soldiers. These victims also argued that collective reparations did not provide direct redress for the harm they had suffered individually. The victims are currently appealing the decision on these grounds.

The ICC has demonstrated a concerted effort to integrate victim participation into the Court’s processes. At the same time, the Court should remain vigilant and attentive to the difficulties, challenges, and barriers that victims can experience when trying to access justice at the ICC. The Court’s effectiveness, legitimacy, and ability to provide redress to the victims whose interests it was established to serve depend on its continued attentiveness to the victims of the crimes prosecuted at the ICC.