Whose Court Is It? Judicial Handbook on Victims' Rights at the International Criminal Court
Total Page：16
File Type：pdf, Size：1020Kb
Whose Court is it? Judicial handbook on victims’ rights at the International Criminal Court April 2021 / N° 771a Whose Court is it? Judicial handbook on victims’ rights at the International Criminal Court • April 2021 1 Cover photo: A relative of an alleged extrajudicial killing wears a veil as he takes part in a protest versus the drug war killings outside the military and police headquarters on 17 July 2019 in Manila, Philippines. © Ezra Acayan / Getty Images via AFP This publication had been produced with the generous support from the Ministry of Foreign Affairs of the Netherlands. The contents of this publication are the sole responsibility of FIDH and can in no way be taken to reflect the views of the Ministry of Foreign Affairs of the Netherlands. 2 FIDH Whose Court is it? Judicial handbook on victims’ rights at the International Criminal Court April 2021 Whose Court is it? Judicial handbook on victims’ rights at the International Criminal Court • April 2021 3 TABLE OF CONTENTS Executive summary …………………………………………………………………… 06 List of acronyms and abbreviations ………………………………………………… 10 Introduction ……………………………………………………………………………… 11 1. Whose Court is it? …………………………………………………………………………… 12 2. Victims are essential to the Court’s mandate ……………………………………………… 13 3. Clarifying misconceptions …………………………………………………………………… 13 4. Objectives and methodology ………………………………………………………………… 14 Chapter 1: Decision-making on victims’ rights …………………………………… 16 1. Qualities required of judges ………………………………………………………………… 17 2. Making informed decisions …………………………………………………………………… 17 3. Human rights standards as a source of law ………………………………………………… 18 4. The need for legal certainty ………………………………………………………………… 19 5. Individual contributions through dissenting opinions ……………………………………… 20 Recommendations ……………………………………………………………………………… 21 Chapter 2: Fulfilment of victims’ rights through legal representation ……… 22 1. Victims’ right to choose their legal representative ………………………………………… 23 2. The necessity for and limits of common legal representation ……………………………… 24 3. The relationship with victims and the importance of country dynamics …………………… 25 4. The composition of teams of victims’ legal representatives ………………………………… 25 5. The role of OPCV …………………………………………………………………………… 26 6. Legal aid for victims ………………………………………………………………………… 27 7. Other challenges ……………………………………………………………………………… 28 Recommendations ……………………………………………………………………………… 29 Chapter 3: Victims’ right to information …………………………………………… 30 1. The importance of outreach and the publicity of proceedings ……………………………… 31 2. Challenges for the Registry ………………………………………………………………… 32 3. The role of Chambers ……………………………………………………………………… 32 Recommendations ……………………………………………………………………………… 33 Chapter 4: Victims’ rights in the preliminary and investigation stages ……… 34 1. The added value of victim participation in early stages ……………………………………… 35 2. Legal basis for victim participation in early stages …………………………………………… 35 3. The need for early outreach and engagement with victims ………………………………… 37 4. Setting up procedures for enabling victim participation …………………………………… 38 5. Challenges of victim participation in early stages …………………………………………… 39 Recommendations ……………………………………………………………………………… 41 4 FIDH Chapter 5: The process to authorise the participation of victims …………… 42 1. The process for victims’ applications under Rule 89 ………………………………………… 43 2. Victims’ application forms …………………………………………………………………… 43 3. Criteria for recognising victim status ………………………………………………………… 44 4. The assessment process: the ‘A, B, C system’ ……………………………………………… 45 5. Redaction of victims’ applications …………………………………………………………… 46 6. Timing of victims’ applications ……………………………………………………………… 46 7. The role of VPRS …………………………………………………………………………… 47 Recommendations ……………………………………………………………………………… 47 Chapter 6: Modalities of participation ……………………………………………… 48 1. General remarks……………………………………………………………………………… 49 2. Participatory rights …………………………………………………………………………… 50 3. The right to appeal …………………………………………………………………………… 53 Recommendations ……………………………………………………………………………… 55 Chapter 7: Reparations ………………………………………………………………… 56 1. What are effective reparations? ……………………………………………………………… 57 2. Towards institutional principles on reparations …………………………………………… 58 3. The role of Chambers ……………………………………………………………………… 59 4. The identification of beneficiaries …………………………………………………………… 60 5. Assessment of the harm ……………………………………………………………………… 63 6. The determination of the accused’s liability ………………………………………………… 64 7. Types and modalities of reparations ………………………………………………………… 64 8. The roles of the TFV and VPRS ……………………………………………………………… 66 9. Consultation with victims as a fundamental element of reparations ………………………… 69 10. Urgent assistance as a form of interim relief ……………………………………………… 70 Recommendations ……………………………………………………………………………… 71 Conclusion ……………………………………………………………………………… 72 Bibliography ……………………………………………………………………………… 74 Whose Court is it? Judicial handbook on victims’ rights at the International Criminal Court • April 2021 5 EXECUTIVE SUMMARY hose Court is it? This question their commitment to upholding the rights of victims must be asked when assessing throughout the Court proceedings and to harmonise Wimplementation of the ground- their procedural rights. breaking provisions on victims’ rights since the The main findings are structured in seven chapters. adoption of the Rome Statute, more than 20 Based on these findings, FIDH makes a series of specific years ago, and considering how to concretely recommendations to ICC Chambers, on each of the move towards an effective victim-centred topics addressed in this report. The recommendations approach in proceedings at the International can be found at the end of each chapter. Criminal Court (ICC). Judges have the highest authority within a court. They Chapter 1: Decision-making on have the duty and privilege to ensure that justice is victims’ rights carried out, not just for the victims, but also with the Judges play a central role in ensuring the meaningful and victims: as envisioned in the Rome Statute and in line effective implementation of victims’ rights. However, with international law, victims must be meaningfully and the ICC Chambers’ practice so far on various aspects of actively part of the justice process. Judicial practice must victims’ rights lacks consistency and reflects a sometimes reflect recognition of victims as active rights holders, narrow interpretation of victims’ role under the Rome their aspirations and priorities. This Court, after all, Statute framework. belongs to them. This Chapter provides an overview of the prerequisites In addition to strengthening the Court’s credibility in terms of the decision-making process on victims’ and legitimacy, the recognition of victims’ rights pays rights. It addresses the qualities required of judges tribute to the centrality of victims’ experiences and their (1), the importance of making high-quality, informed potential to contribute to the justice process. It also decisions and ways of strengthening judges’ expertise underlines that respect for the rule of law plays a central on victims’ rights and their understanding of dynamics role in rebuilding societies and that having members in the situation countries (2), and the need to follow of the communities individually engaged with rule of the guidance and best practices from the international law processes can significantly contribute to social human rights law framework on victims’ rights (3). It reconstruction. Victim participation can also strengthen also underlines the need for some legal certainty (4) the work of the Court, as victims provide important and highlights the contribution of dissenting opinions by factual and cultural context regarding the crimes judges with advanced expertise on victims’ rights (5). committed and their impact. Victim participation can help the ICC establish the truth, facts and responsibilities and In order to make high-quality informed decisions on bring concrete reality, and humanity, to the courtroom. victims’ rights, as well as to be fully aware of the impact of their decisions on affected communities, judges must The purpose of this judicial handbook, based on research consult victims - as active rights holders - on all matters and interviews with 18 practitioners and experts, is to that affect their interests. Judges should also have or take stock of judicial implementation of victims’ rights develop knowledge of victims’ procedural rights and at the ICC as of early 2021. The goal is to produce key country dynamics and ensure that their decisions reflect practical recommendations for Chambers on the role the current state of the law, including best practices from they can, and must, play in ensuring meaningful exercise international human rights law. of victims’ rights. Indeed, the election of six new judges in 2020 and their swearing-in in March 2021 should be To render victims’ access to the Court effective, it is viewed as an opportunity for all the ICC judges to renew paramount that Chambers harmonise their practices in 6 FIDH order to give legal certainty to victims and practitioners. legal representative for victims, and Chambers should They must only depart from established jurisprudence, ensure that victims are properly consulted before any in particular from the Appeals Chamber, when it is clearly decision on their legal representation. It is also essential justified. This requires updating the Chambers Practice that an improved policy of legal