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OBTAINING VICTIM STATUS FOR PURPOSES OF PARTICIPATING IN PROCEEDINGS AT THE INTERNATIONAL CRIMINAL

One of the most lauded features of the permanent International Criminal Court (ICC) is its victim participation scheme, which allows individuals harmed by the crimes being prosecuted by the Court to share their views and concerns in proceedings against the allegedly responsible. To date, more than 12,000 individuals have applied to participate in proceedings before the ICC, and well over 5,000 have successfully obtained victim status. However, the process established under the documents governing the ICC by which individuals apply for and receive permission to participate – which involves each individual victim submitting a detailed OBTAINING VICTIM STATUS FOR PURPOSES OF form with supporting documentation to the Court, observations on each application by the parties, and an individualized decision on the application by a Chamber of the Court – has proved PARTICIPATING IN PROCEEDINGS AT THE inefficient for the applicants, the parties, and the Court. At the same time, the process has been frustrating for victims, as it can take more than two years for applicants to receive a decision on INTERNATIONAL CRIMINAL COURT their status, meaning victims are often unable to share their views and concerns with the Court during key proceedings in the case. This frustration is compounded by the fact that, for the vast majority of victims, participation takes place through a common legal representative, appointed by the Court to represent significant numbers of victims together, raising the question as to why individual victims were required to endure such a lengthy and detailed application process.

Recognizing that the current system is both unsustainable and undesirable, various Chambers of the Court have been exploring alternative means by which individuals may obtain victim status in the cases before them, and the Court’s Assembly of States Parties (ASP) is considering reforming the system courtwide. This report examines the different options that have been tried and/or that are under consideration by the ASP and ultimately recommends changes to the victim application system aimed at saving valuable time and resources for applicants, the Registry, the parties, and the Chambers. Importantly, the recommended changes are unlikely to undermine the meaningfulness of victim participation, and in fact will allow victims to gain recognition and the right to representation much more quickly than under the current system, meaning the recommended AR RIMES ESEARCH FFICE approach is likely to make participation more meaningful for a large number of victims. W C R O International Criminal Court Legal Analysis and Education Project December 2013

WAR CRIMES RESEARCH OFFICE Washington College of 4801 Massachusetts Avenue, NW Washington, DC 20016

www.wcl.american.edu/warcrimes war-report18_cv_war-report18_cv 12/5/2013 10:28 AM Page 3

ACKNOWLEDGMENTS

Susana SáCouto, War Crimes Research Office (WCRO) Director, and Katherine Cleary ORDERING INFORMATION Thompson, WCRO Assistant Director, prepared this report. The WCRO also received research assistance from Washington College of Law (WCL) J.D. students Justin Miller and Merve All our reports are available in PDF online at: Stolzman, as well as additional assistance from WCL J.D. Students Sophia Niazi, Kalli Wells, Melissa Bellitto and WCRO Staff Assistant Adam Deutsch. We are grateful for the generous http://www.wcl.american.edu/warcrimes/icc/icc_reports.cfm. support of the Open Society Institute, the Finnish Ministry of Foreign Affairs, the Swiss Federal Department of Foreign Affairs and the WCL, without which this report would not have been possible. We also wish to thank all those who gave generously of their time to this project, Inquiries about obtaining print copies of reports may be sent to: including Robert Goldman, Commissioner and Member of the Committee of the International Commission of Jurists (ICJ) and WCL Professor, and the members of the WCRO’s War Crimes Research Office ICC Advisory Committee: Mary McGowan Davis, former Acting New York State Supreme Washington College of Law Court and Member of the International Judicial Academy and of the American 4801 Massachusetts Avenue, NW Association for the ICJ; Unity Dow, Commissioner of the ICJ, Member of the ICJ’s Executive Washington, DC 20016 Committee, and former Judge of the Botswana High Court; Siri Frigaard, Chief Public for the Norwegian National Authority for Prosecution of Organized and Other Tel.: 202 274-4067 Serious Crimes and former Deputy General Prosecutor for Serious Crimes in East Timor; Fax: 202 274-4458 Richard Goldstone, former Chief Prosecutor of the International Criminal for the former Yugoslavia (ICTY) and Rwanda (ICTR); Chief Justice Phillip Rapoza of the Massachusetts Appeals Court and Reserve Judge of the Extraordinary Chambers in the E-mail: [email protected] of Cambodia (ECCC) Supreme Court Chamber and former Chief International Judge serving as Website: www.wcl.american.edu/warcrimes Coordinator of the Special Panels for Serious Crimes in East Timor; and Juan Mendez, UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and former Special Advisor on Prevention to the Prosecutor of the International Criminal Court.

ABOUT THE WAR CRIMES RESEARCH OFFICE The core mandate of the WCRO is to promote the development and enforcement of international criminal and humanitarian law, primarily through the provision of specialized legal assistance to international criminal courts and tribunals. The Office was established by the Washington College of Law in 1995 in response to a request for assistance from the Prosecutor of the ICTY and ICTR, established by the United Nations Security Council in 1993 and 1994 respectively. Since then, several new internationalized or “hybrid” war crimes tribunals have been established under the auspices or with the support of the United Nations, each raising novel legal issues. This, in turn, has generated growing demands for the expert assistance of the WCRO. As a result, in addition to the ICTY and ICTR, the WCRO has provided in-depth research support to the Special Panels for Serious Crimes in East Timor, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special for Lebanon. It has also provided similar assistance to mechanisms and institutions involved in accountability efforts for serious international crimes at the domestic level, including the War Crimes Section of the Court of Bosnia and Herzegovina, Argentina’s Assistance Unit for Cases of Violations Committed under State Terrorism, Peru’s Instituto de Defensa Legal (dedicated to representing victims in serious crimes cases before Peru’s National Criminal Court), and the U.S. Department of State’s Office of Global . The WCRO has also conducted legal research projects on behalf of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). However, in view of how significant the impact of the Court’s early decisions are likely to be on the ICC’s future and in recognition of the urgent need for analytical critique at early stages of the Court’s development, in 2007 the WCRO launched a new initiative, the ICC Legal Analysis and Education Project, aimed at producing public, impartial, legal analyses of critical issues raised by the Court’s early decisions. With this initiative, the WCRO took on a new role in relation to the ICC. While past projects were carried out in support of the OTP, the WCRO is committed to analyzing and commenting on the ICC’s early activities in an impartial and independent manner. In order to avoid any conflict of interest, the WCRO did not engage in legal research for any organ of the ICC while producing this report, nor will the WCRO conduct research for any organ of the ICC prior to the conclusion of the ICC Legal Analysis and Education Project. Additionally, in order to ensure the objectivity of its analyses, the WCRO created an Advisory Committee comprised of the experts in international criminal and humanitarian law named in the acknowledgments above. 34334-war_report 18 Sheet No. 1 Side A 12/05/2013 09:53:13 FFICE O TATUS FOR TATUS FOR ESEARCH R S RIMINAL C RIMES ARTICIPATING IN ARTICIPATING C P ICTIM AR W Court International Criminal Project Legal Analysis and Education 2013 December V BTAINING BTAINING OURT URPOSES OF URPOSES AT THE ROCEEDINGS M K NTERNATIONAL NTERNATIONAL C Y O P P I C 34334-war_report 18 Sheet No. 1 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 1 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 1 Side B 12/05/2013 09:53:13 M K C Y , courtesy ICC Press , courtesy

(from left) (from courtesy Shane Bauer Office All rights reserved All rights Aurora Hartwig De Heer 2007, courtesy Shane Bauer OVER PHOTOGRAPHS C Printed in the United States of America United States of America Printed in the American University Washington College of Law Washington College University American Narkaida, Darfur, Sudan, 2007, A village elder meets with people from the surrounding area. the surrounding meets with people from elder A village annual meeting of the Trust Fund for Victims The International Criminal Court building in The Hague, courtesy Archbishop Desmond Tutu and Minister Simone Veil at the second A Darfuri rebel fighter sets aside his prosthetic legs. Abeche, Chad, A Darfuri rebel fighter sets aside Copyright © December 2013 by the War Crimes Research Office Copyright © December 2013 by 34334-war_report 18 Sheet No. 1 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 1 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 2 Side A 12/05/2013 09:53:13 6 1 4 6 49 16 49 13 60 16 22 37 51 , ...... AND ASES , MENDED C A

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ANALYSIS AND RECOMMENDATIONS AND ANALYSIS GENERAL BACKGROUND GENERAL M K C Y III. INTRODUCTION I. INTRODUCTION II. EXECUTIVE SUMMARY SUMMARY EXECUTIVE IV. 34334-war_report 18 Sheet No. 2 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 2 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 2 Side B 12/05/2013 09:53:13 M K C Y 34334-war_report 18 Sheet No. 2 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 2 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 3 Side A 12/05/2013 09:53:13 1 UMMARY S M K XECUTIVE C Y E International lauded features of the permanent One of the most which participation allows scheme, (ICC) is its victim Court Criminal to being prosecuted by the Court by the crimes individuals harmed against the persons proceedings in and concerns views share their allegedly responsible. individuals have than 12,000 date, more To before the ICC, and well over in proceedings applied to participate the process status. However, obtained victim 5,000 have successfully governing the ICC by which the documents established under in to participate permission for and receive individuals apply a submitting each individual victim – which involves proceedings to the Court, detailed form with supporting documentation by the parties, and an individualized observations on each application Chamber of the Court – has proved decision on the application by a same parties, and the Court. At the the the applicants, inefficient for more as it can take for victims, frustrating has been the process time, on their status, a decision than two years for applicants to receive concerns and views their share are often unable to victims meaning is in the case. This frustration proceedings key during with the Court of victims, vast majority by the fact that, for the compounded legal representative, through a common takes place participation significant numbers of victims appointed by the Court to represent were to why individual victims together, raising the question as and required to endure such a lengthy application process. detailed is both unsustainable and Recognizing that the current system the Court have been exploring undesirable, various Chambers of status in the obtain victim may by which individuals alternative means of States Parties (ASP) is Assembly and the Court’s cases before them, the examines report courtwide. This the system considering reforming different options that have been tried and/or that are under the ASP recommends that by the ASP and ultimately consideration the ICC Rules of Procedure and and relevant amend of registration and to adopt the bifurcated system the application used in the two Kenya cases currently being tried by Court. who wish to share Under this approach, only those victims their views and concerns personally before the Court are required to go 34334-war_report 18 Sheet No. 3 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 3 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 3 Side B 12/05/2013 09:53:13 M K C Y as more register victim participants by submitting their names, contact information, and information, contact their names, by submitting participants victim The Registry suffered to the Registry. the harm regarding information a database, without into enter this information automatically will then the from review by the parties or a decision any individualized Court-appointed with the shared and the database will be Chamber, once registered, the Importantly, common legal representative. granted to the overwhelming rights will enjoy the same victims to receive the right cases, including: in previous of victims majority about the legal representative their common from information and proceedings court records, filings, the right to access proceedings; legal for their common the right legal representative; via their common and the right to opening and closing statements; representative to make their common evidence through question witnesses and to present legal representative. the most bifurcated system represents As explored in detail below, the saving application system, the victim efficient option for reforming the parties, for applicants, the Registry, and resources valuable time and the Chambers. it is true that this approach deprives the While the whether individuals meet of the opportunity to challenge has demonstrated under the ICC’s Rules, experience status of “victim” of individual applications teams that the review conducted by defense out unqualified applicants, not necessarily be effective at weeding may are heavily victims’ applications most the fact that likely due to It is also comment. for to the parties redacted before being transmitted will still have an opportunity that the Defense remember to important on behalf of legal submissions made to respond to each of the during the course of the proceedings – including “registered” victims of to the admissibility challenges opening and closing statements, it has always had an opportunity to way evidence, etc. – the same on behalf of victims who obtained their made respond to submissions status through the individualized application process. Most significantly, perhaps, the bifurcated approach is unlikely to participation. Indeed, given of victim the meaningfulness undermine and the to gain recognition will allow victims this system the fact that quickly than under the current more right to representation much participation the bifurcated approach is likely to make system, will have earlier as they of victims, for a large number meaningful 2 the established under procedures the individual application through rules. ICC’s current simply may victims remaining The 34334-war_report 18 Sheet No. 3 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 3 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 4 Side A 12/05/2013 09:53:13 3 M K C Y access to information and, ideally, be able to communicate their views their views able to communicate ideally, be and, information access to case. throughout the to the Court and concerns 34334-war_report 18 Sheet No. 4 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 4 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 4 Side B 12/05/2013 09:53:13 ­ M K C Y

http://www.icc While well While 1 the process established under the the process established 2 Twenty-Third Diplomatic Briefing: Figures from Briefing: Figures Twenty-Third Diplomatic meaning an individual may choose to participate in choose meaning an individual may 3 , 3 (29 May 2013). 2013). , 3 (29 May NTRODUCTION , International Criminal Court, Victims’ Participation and Reparation Participation and Reparation Court, Victims’ , International Criminal I International Criminal Court, Criminal International e.g. , Id. See See the Registry 2 3 over 5,000 have successfully obtained victim status and have exercised status and successfully obtained victim over 5,000 have that or more of the twelve cases of participation in one form some before the Court thus far, have come 1 To date, more than 12,000 individuals have applied to participate as to participate as have applied 12,000 individuals than more To date, Court (ICC). Criminal before the International victims 4 I. governing the ICC by which individuals apply for and documents proved inefficient for the to participate has receive permission for victims. and the Court, as well as frustrating applicants, the parties, Court have years, certain Chambers of the Over the past few in the models new application with implementing experimented and various been made proposals have before them, individual cases of the none has yet been procedures, although for courtwide reform adopted. report outlines the victim application process as This Rules of Procedure and Evidence originally conceived under the ICC’s that alternative models as well as the various and related documents, and considered in reports issued by by Chambers have been attempted at aimed makes recommendations the Court and outside groups, and and unsustainable system. a broken ameliorating recommendations in this to stress that the analysis and It is important apply to participate process by which victims to the report are limited qualifying for the process for before the ICC; it does not address for is the same in a case. While the definition of “victim” reparations at the ICC, the two are schemes both the participation and reparations de-linked, Section Booklet, Victims Before the International Criminal Court: A Guide for the Guide for the Court: A the International Criminal Before Victims Section Booklet, at available of the Court, in the Proceedings Participation of Victims (describing the different roles of different roles the (describing cpi.int/library/victims/VPRS_Booklet_En.pdf order an seeking and participation between distinguishing the ICC and before victims de l’Homme, Droits des Internationale the Court); La Fédération from of reparations their Victims, A Guidefor Court: International Criminal Before the Rights Victims’ April 2007, 4: Participation, at 5, Legal Representatives and NGOs, Chapter 34334-war_report 18 Sheet No. 4 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 4 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 5 Side A 12/05/2013 09:53:13 5

, Decision on the Admissibility , Decision on of the Admissibility the It is therefore not timely at this juncture at this juncture It is therefore not timely 4

(“It is important to http://www.fidh.org/article.php3?id_article=4208 (“It is important M K See The Prosecutor v. Thomas Lubanga Dyilo C Y available at procedure. is an independent reparations procedure for requesting the note that a order to make in or proceedings pre-trial in to participate not have do Victims reparations.”). for claim 4 to opine on the appropriate process by which victims should apply for should apply process by which victims to opine on the appropriate reparations. proceedings without seeking reparations, and may apply for may and reparations, seeking without proceedings in the proceedings she did not participate even if he or reparations scheme the ICC reparations the scope of Moreover, prior to . Court has yet to issue up for debate, as the very much remains work will process reparations how the addressing courtwide principles principles in a single one decision considering such in practice, and the on appeal. case is currently Appeals against Trial Chamber I’s “Decision Establishing the Principles and and Principles Establishing the I’s “Decision Trial Chamber Appeals against Conduct on of the Further to be Applied Reparations” Procedures Directions to and 2012). 14 December Chamber, (ICC Appeals ICC-01/04-01/06-2953 Proceedings, 34334-war_report 18 Sheet No. 5 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 5 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 5 Side B 12/05/2013 09:53:13 M K

C Y , 32

available at available RIBUNALS AND T

NTERNATIONAL I , 141-42 (2004) (arguing that victim that (arguing RIMINAL , Int’l Criminal Tribunal Int’l Criminal , TATUS C S While there is no While there is no . 8 9 ICTIMS BEFORE V

and accompanying text. and accompanying . FFECTING THIS NTERNATIONAL A

Proponents of restorative justice Proponents of restorative et seq.

TATUS OF OF TATUS 5 S the_ICC.pdf?rd=1 available at available n. 46 n. 46 ACTORS F

available at available ACKGROUND See infra TUDYTHE OF Mikaela Heikkilä, I Heikkilä, Mikaela S B A : Victims Compensation and Participation Victims’ Rights in Criminal : Prospects for Participation Prospects Trials: in Criminal Victims’ Rights Rather, it is also necessary to allow victims to participate necessary to allow victims Rather, it is also War Crimes Research Office, Victim Participation Before the Research Office, Victim War Crimes 6 RIME RIBUNALS AND OF C ENERAL Proponents believe that participation provides victims with a victims provides that participation Proponents believe T

7 The Purpose Scheme Victim Participation of the G , at 8-14 (December 2007), (December , at 8-14

of Law & Society 294, 295 (2005) (citing I. Edwards, An Ambiguous Participant: Participant: of Law & Society An Ambiguous 294, 295 (2005) (citing I. Edwards, ICTIMS OF RIMINAL Id. See generally ’ Report, Judges’ Report, in Prosecutions in Europe: Criminal Universal See Fiona McKay, Jonathan Doak, J. 967, of Crim. J. 44 Brit. Justice Decision-Making, and Criminal Victim The Crime See also (2004)). 973 Europe since 1990 for War Crimes, Crimes Against Humanity, Torture & Genocide, Genocide, Torture & Humanity, Against Crimes Crimes, War for 1990 Europe since 1999, REDRESS, at 15, http://www.redress.org/downloads/publications/UJEurope.pdf done). justice has been victims feel to help participation is a powerful tool (“For the healing process of victims, it is… important that they have a sense of sense a have that they important it is… of victims, healing process (“For the that they are generally, but also, more dealt with, being case is how their over control treated with dignity and respect.”). Notably, in referring participation,” we to “victim or as witnesses other than as proceedings in criminal a role for victims discussing are for damages. claimants V C in the proceedings and provide compensation to victims for their to victims and provide compensation in the proceedings injuries. and healing. empowerment, sense of closure, 6 7 8 9 5 A. is a regime participation victim Court’s Criminal The International restorative, rather seeking to achieve movement product of a broader justice. than strictly retributive, guilty is achieve justice, punishing the contend that, to truly insufficient. 6 II. universal understanding of what victim participation should entail, it of what victim participation universal understanding a say, being listened to, “having has been broadly described as victims respect.” or being treated with dignity and ­ http://www.wcl.american.edu/warcrimes/documents/12 2007_Victim_Participation_Before_ International Criminal International Criminal Court for the Former Yugoslavia, CC/P.I.S./528-E, at 1, 14 September 2000, September at 1, 14 Yugoslavia, CC/P.I.S./528-E, Former for the http://www.un.org/icty/pressreal/tolbe.htm 34334-war_report 18 Sheet No. 5 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 5 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 6 Side A 12/05/2013 09:53:13

7

See also See also RIMES AND E.S.C. Res. C

See also also See The Declaration The Declaration 10 LEMENTS OF LEMENTS :E Definition of Victims and General Definition of Victims and General

International Recognitionof OURT C

427, 428 (Roy S. Lee ed., 2001) 427, 428 (Roy S. Lee (noting that

RIMINAL RIMINAL C

, Art. 43(7), U.N. Doc. A/AC.249/1997/L.8/Rev.1 (14 VIDENCE

E

M. Cherif Bassiouni, M. n. 7, at 1. The Judges’ Report goes on to note that, “[w]hile on to note that, goes Judges’ Report 7, at 1. The n. Decisions taken by the Preparatory Committee at its session Committee at its Preparatory by the taken Decisions More specifically, the UN Victims Declaration UN Victims the More specifically, NTERNATIONAL supra supra 11 I United Nations Declaration of Basic Principles of Justice for Justice of Principles of Basic Declaration United Nations , 6 H.R.L. Rev. 203, 247 (2006) (noting that theVictims (noting that UN (2006) 247 203, Rev. , 6 H.R.L. HE Id. See also T

ROCEDURE AND in P

, M K See generally See generally ULES OF Judges’ Report, Judges’ Report, C Y Declaration was the “first international instrument to articulate victims’ right to victims’ to articulate was the “first internationalDeclaration instrument injuries.”). for their reparation obtain access justice and Principle Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. GAOR, 40th Sess., Sess., 40th GAOR, U.N. 40/34, Res. G.A. of Power, Abuse and of Crime Victims (1985). A/RES/40/34 Doc. U.N. Annex, mtg., plenary 96th U.N. 6, at 38, ¶ 1, 45th plenary mtg., No. Sess., Supp. ESCOR, 1996 U.N. 1996/14, attention the “bring to Secretary-General the that (1997)(requesting Doc. E/1996/96 International Criminal of an Establishment Committee for the Preparatory of the Courtpotential the applicability of the basic principles contained in the Gurmendi, de Fernández A. Silvia Declaration”); R 11 10 In translating the desire to serve the goals of restorative justice, the justice, the goals of restorative desire to serve the the In translating by the particularly influenced were of the ICC Rome drafters Justice for Victims of Principles of Basic Declaration United Nations unanimously Declaration), Victims Power (UN and Abuse of of Crime in 1985. Generaladopted by the UN Assembly marks the first formal recognition at the international level that victims victims that level recognition at the international formal the first marks to prompt of justice and mechanisms to the “access are assured that they the harm for by national , for redress, as provided have suffered.” issues relating to what might generally be referred to as ‘victims’ rights’ have been have rights’ ‘victims’ to as referred be generally to what might relating issues consideration of periods of time, for long law systems many domestic addressed in In 1985, the vintage. recent relatively of under is these issues of Crime Victims for Basic Principles of Declaration a adopted Assembly General rights legal cornerstone for establishing as the served has which of Power, and Abuse relating of developments number to a led has law and under international victims for to victims.”). Victims’ Rights the UN Declaration was distributed to delegations attending the Preparatory to delegations distributed was Declaration the UN Council). Social and by the Economic request to the pursuant Committee Report of the Preparatory Committee on the Establishment of an International Establishment Committee on the Preparatory Report of the and March-April Committee during Preparatory of the Court: Proceedings Criminal August 1996, U.N. GAOR 51st Sess., Supp. No. 22, vol. 1, ¶ 280, U.N. Doc. A/51/22 (1996) (noting that “attention was drawn” to the Victims Declaration as a as Declaration Victims the drawn” to that(1996) (noting was A/51/22 “attention 43 Article draft precisely formulat[ing]” and more elaborat[ion] of “further basis language Committee proposed Preparatory 1997, the In victims). addressing effect to the giving provisions include shall procedure of “[t]he rules providing that [Victims Declaration].” [Victims 1997 15 August 4 to held from August 1997). 34334-war_report 18 Sheet No. 6 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 6 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 6 Side B 12/05/2013 09:53:13

M K C Y 210, 213 213 210,

inter

OLICY OLICY P ICTIM (June 2008) (“As V 13 as victims “repeatedly say “repeatedly as victims 14 OLICY TO Victims’ Wishes for P Cross 441, 444 Cross 441, RIME

C Victims and International Criminal Justice: A International Criminal and Victims ROM F n. 10, ¶ 4. n. 10, in

,

supra , of the Red Review Int’l 90

Informing victims of their role and the scope, of their role and the victims Informing In addition, states are to facilitate the “responsiveness of facilitate the “responsiveness states are to In addition, , Marijke Malsch & Raphaela Carriere, Raphaela Carriere, & Malsch , Marijke 12 (a) of the and proceedings the and progress of timing where serious cases, especially disposition of their and where they have requested are involved crimes [and] such information; to be and concerns of victims (b) Allowing the views stages of the appropriate at considered presented and are affected, interests where their personal proceedings the and consistent with without prejudice to the accused justice system. national criminal relevant e.g. , ¶ 6. , that victims are “treated with compassion and respect for their respect for their and compassion are “treated with victims , that See UN Victims Declaration, UN Victims Id. 12 13 14 The rights promoted by the Victims Declaration, including the right to right the including Declaration, by the Victims The rights promoted the and judicial proceedings regarding relevant receive information to a court, have been right to present their views and concerns accessrepeatedly recognized as fundamental to to providing victims justice. in the rights of victims important the most Indeed, among in domestic justice system with a criminal interactions context of their to receive information, right is the systems alia dignity.” by: victims” processes to the needs of judicial and administrative 8 to ensure, designed measures states to implement encourages (Ezzat A. Fattah, ed. 1996) (describing results from a study of 278 crime victims in victims of 278 crime a study results from (describing 1996) ed. (Ezzat A. Fattah, lack of was for dissatisfaction reason “major noting that the England and Compensation: The (“Victims 240 (1999) Immaterial Just. 239, 27 J. Crim. Aspect, of the all stages case at the concerning receive information wish to of crime criminal by the they were treated fairly feel that likely to are more Victims process… cases.”); in their developments of the kept informed are they when justice system Scalia, & Damien Mina Rauschenbach kept are they when satisfied more seem victims proceedings, criminal regards part, active to play an opportunity the have they when or developments of informed Victims Shapland, Joanna proceedings.”); opinion on the their by giving for example Justice System Criminal and the Vexed Question? 34334-war_report 18 Sheet No. 6 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 6 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 7 Side A 12/05/2013 09:53:13 9

19

YSTEM S , at 38 (1999)., at n. 14, at 211-12 USTICE USTICE Handbook on on Handbook J Importantly, Importantly, 17 supra RIMINAL C 20

In addition, it is commonly In addition, it is Shapland, Shapland, It is the “chance to be heard 16 19 See also

ICTIMS IN THE

Rather, according to restorative to restorative Rather, according 18 n. 14, at 240 (“Allowing people to voice their opinions people n. 14, at 240 (“Allowing

n. 15, n. at 24. 15, n. at 24. supra supra supra supra supra , 2003 Utah L. Rev. 15, 20 (2003). Utah L. Rev.15, , 2003 Furthermore, research on “victim notification indicates notification “victim research on Furthermore, 15 Legal Foundations for the Victim Participation Scheme Legal Foundations for the Victim

M K Id. Malsch & Carriere, Sherman, & Strang Sherman, & Strang Repairing the Harm: Victims and Harm: Victims the Repairing Sherman, W. Strang & Lawrence Heather Prevention, Drug Controlfor Crime and Office Nations United C Y (“[T]he victims in our study [involving 278 crime victims in England] were not were in England] victims crime 278 [involving our study in victims (“[T]he want did not They justice system. over the criminal desire to take a expressing prosecute, to charge, decisions to the that happy power – they were decision-making today.”) who are taking them with those be left should to sentence, Justice for Victims on the Use and Application of the United Nations Declaration of Declaration Nations United of the and Application Use on the Victims Justice for Power of and Abuse of Crime for Victims of Justice Basic Principles understood that victims are more likely to be satisfied with the with the satisfied likely to be are more victims understood that heard. if their voice has been system justice criminal at all” that is “usually the crucial aspect for victims in achieving a for victims in achieving is “usually the crucial aspect at all” that system.” sense of satisfaction with the justice 17 18 19 20 B. right to participate in The fundamental victims’ provision governing V M. Wemmers, Jo-anne information”); 15 16 justice experts Heather Strang and Lawrence Sherman, victims merely victims merely Lawrence Sherman, Strang and justice experts Heather and on the case to someone, their views to present chance “seek the maker.” not necessarily a key decision that one of the greatest sources of frustration to them is the difficulty is the difficulty to them of frustration of the greatest sources that one in criminal developments authorities about justice out from in finding their cases.” feel that they had an authorities by informed who are kept that victims were taken into their wishes, that their wishes opportunity to express degree of some the authorities and that they had consideration by the case.” of the outcome influence over in necessarily want “a role not mean that victims however, this does of their cases.” the Restorative Justice Restorative justice.”). with satisfaction victim increases procedure within a (1996) (“The informational needs of victims are often identified as the most common common most as the identified often are of victims needs (“The informational (1996) victims.”) need of all 34334-war_report 18 Sheet No. 7 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 7 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 7 Side B 12/05/2013 09:53:13 M K C Y 21

Specifically, Rule 85 states:

22 ‘Victims’ means natural persons who have suffered natural persons who means (a) ‘Victims’ within of any crime as a result of the commission harm of the Court; the jurisdiction Where the personal interests of victims are affected, the of victims interests Where the personal and concerns to be their views Court shall permit of the proceedings at stages considered presented and and in a by the Court to be appropriate determined which with manner is not prejudicial to or inconsistent trial. impartial and a fair and accused the rights of the by the legal be presented concerns may Such views and the Court considers where the victims representatives of of Rules with the in accordance it appropriate, Procedure and Evidence. Diplomatic Conference of Plenipotentiaries on the Establishment of an of Establishment on the of Plenipotentiaries Conference Diplomatic Rome Statute of the International Criminal Court, adopted on 17 July 1998 by the 1998 by the 17 July Court, adopted on Criminal International Statute of the Rome ICC-ASP/1/3, R. Evidence, and Procedure of Court, Rules Criminal International 85 (2002). (2002). 85 21 22 Hence, although victims are guaranteed a right to express their “views are guaranteed Hence, although victims by which this specify the means not and concerns,” Article 68(3) does to discretion Chambers significant should occur, instead leaving the clear the provision makes time, to the right. At the same give meaning legal participate through that victims require that the Court may with the ICC’s Rules in accordance representatives, as necessary and of Procedure and Evidence. participation Statute, the victim Along with Article 68(3) of the Rome of provisions in the ICC is governed by a number at the ICC scheme the of the Court and Regulations Rules, as well as those found in the Regulations of the Registry. important of these the most Perhaps ancillary provisions is Rule 85, which provides the definition of “victim.” 10 10 of the Rome 68(3) found at Article the ICC is before proceedings which provides: Statute, International Criminal Court, entered into force 1 July 2002, U.N. Doc. force1 July 2002, U.N. Court, entered into International Criminal 68(3) (1998). Art. A/CONF.183/9, U.N. 34334-war_report 18 Sheet No. 7 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 7 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 8 Side A 12/05/2013 09:53:13

11 11

], the Registrar shall provide a ], the Registrar shall provide

24

n. 21, Art. 68(1). 68(1). Art. 21, n. supra supra 23 In order to present their views and concerns, victims their views and concerns, victims In order to present

copy of the application to the Prosecutor and the copy of the application to the Prosecutor reply within a time defence, who shall be entitled to to the Subject by the Chamber. to be set limit shall then specify provisions of sub-rule 2, the Chamber is participation in which the proceedings and manner include making considered appropriate, which may opening and closing statements. or on the 2. The Chamber, on its own initiative reject defence, may application of the Prosecutor or the the is not a the application if it considers that Victims may include organizations or institutions or institutions include organizations may (b) Victims their property to any of harm sustained direct that have art or science education, dedicated to religion, which is and to their historic monuments, or charitable purposes, places and objects for humanitarian hospitals and other purposes. 1. who to the Registrar, [a] written application shall make to the relevant Chamber. application the shall transmit Subject to the provisions of the Statute, in particular article 68, paragraph 1[ M K Id. Article 68(1) of the Rome Statute provides: “The Court shall take appropriate provides: “The Statute of the Rome 68(1) Article C Y 24 23 Other relevant provisions in the rules include Rule 89, which governs rules include in the Other relevant provisions to participate in proceedings before apply victims the process by which the Court. It states, in part: measures to protect the safety, physical and psychological well-being, dignity and well-being, psychological and physical protect the safety, measures to to all regard shall have doing, the Court In so and witnesses. victims of privacy and 3, paragraph 7, in article defined as age, gender including factors, relevant crime but not limited to, where the in particular, crime, of the nature health, and the violence or gender sexual involves particularly measures take such shall Prosecutor The children. against or violence not be shall These measures crimes. of such prosecution and investigation during the impartial fair and and a of the accused with the rights or inconsistent prejudicial to trial.” Statute, Rome 34334-war_report 18 Sheet No. 8 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 8 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 8 Side B 12/05/2013 09:53:13 M K C Y Reg. 86(4),

Id.

Subparagraph 29 28 26 May 2004. adopted

such as the identity of the of such as the identity 27 While victims are not required are not required victims While 26 25 99 of the Regulations of the Registry Regulation 99 of the Regulations n. 22, R. 89. n. 30

supra victim or that the criteria set forth in article 68, set forth in article or that the criteria victim whose victim fulfilled. A 3, are not otherwise paragraph a new application file may has been rejected application later in the proceedings… Reg. 86(5). Reg. 86(6). Reg. 86(2). The Registry or the relevant Chamber may request additional may Chamber relevant or the 86(2). The Registry Reg.

Id. Id. Id. Id. ICC Rules, 86(1), ICC-BD/01-01-04, R. of the Court, Regulations (7). (7). information from victims if necessary to complete the application. complete to necessary if victims from information of Regulation 86 requires that the Registrar “present all Registrar “present (5) of Regulation 86 requires that the thereon,” and together with a report to the Chamber applications… report for a group of victims, taking that it “endeavour to present one of the victims.” interests into consideration the distinct 25 26 27 28 29 30 Subparagraph (6) then specifies thatSubparagraph (6) then specifies subject to an the Registrar may, single report for multiple a choose to submit order of the Chamber, applications, “in order to assist [that] in issuing only one Chamber covering all and that “[r]eports of applications” decision on a number on a be presented period may received in a certain time applications periodic basis.” victim, the harm allegedly suffered at the hands of the accused, the the hands of allegedly suffered at the harm victim, that the victim’s evidence showing date of the crime, location and designation of the stage of personal interest is affected, and wants to participate. in which the victim proceedings Rule 89 is supplemented by Regulation 86 of the Regulations of the 86 of the Regulations of the by Regulation Rule 89 is supplemented Registry. 99 of the Regulations of the Court and Regulation a must make victims 86(1) reiterates that Specifically, Regulation that the Registrar to the Registry and mandates written application application form. establish a standard extent “to the form, all applications must, to use the standard information, contain specific possible,” 12 12 provides that, upon receipt of an application pursuant to Rule 89, “the pursuant application provides that, upon receipt of an whether disclosure to and assess application review the Registrar shall and/or other participants of any the defence the Prosecutor, jeopardise the safety may contained in such application, information 34334-war_report 18 Sheet No. 8 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 8 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 9 Side A 12/05/2013 09:53:13

13 13

Rule 91 34 The Chamber The Chamber 32 n. 21, Art. 61(5). supra

A victim may also request that “all request also may A victim 31

35

in nine cases and five cases have reached the trial the reached in nine cases and five cases have n. 22, R. 90(2)-(3). 36

33 supra

, Christine Van den Wyngaert, Victims Before International Criminal Criminal International Before Wyngaert, Victims den , Christine Van Brief Review of the Scope of Victim Participation in Brief Review Practice

Reg. 99(4). R. 91(2).

M K Id. See, e.g. Id. ICC Rules, a shall conduct Chamber Statute, the Pre-Trial Rome of the Article 61 to Pursuant International Criminal Court, Regulations of the Registry, ICC-BD/03-01-06, Reg. ICC-BD/03-01-06, of the Registry, Court, Regulations Criminal International C Y 99(1), (3) (2006). specifies that the legal representatives of to “attend and victims are entitled “shall include participation in hearings participate in the proceedings,” which circumstances unless, in the of the case, concerned is of the the Chamber view that the representative’s confined to written intervention should be observations or submissions.” or part of the information he or she has provided to the Registry not… provided to the he or she has the information or part of participants,” and Prosecutor, the defence, or other be disclosed to the of such request. notify the Chamber the Registry will 32 33 34 35 36 stage. has participation of victim By and large, the scope and manner 31 Finally, relate 90 and 91 of the ICC Rules of to legal representation Rules victims. of that, where a large number In particular, Rule 90 provides victims are participating request that the Registrar a case, the Court may in victims. legal representative appoint a common a group of for C. leaves the Chambers of the Court a As indicated above, Article 68(3) of the exact scope and modalities discretion to determine great deal of of has conducted confirmation date, the ICC participation. To victims’ charges hearings and security of the victim concerned” and “shall inform the Chamber the Chamber “shall inform concerned” and of the victim and security of the assessment.” of the results from Registrar to redact information to order the then has the authority or other before being transferred to the parties the applications participants. confirmation of charges hearing for each case to determine “whether there is there “whether determine to for each case hearing of charges confirmation sufficient evidence to establish substantial groundsbelieve that to the person charged.”of the crimes committed each Rome Statute, Courts: Some Views and Concerns of an ICC Trial Judge, 44 Case W. Res. J. Int’l L. 44 Case Trial Judge, ICC of an and Concerns Views Courts: Some 475, 482 (2012). 34334-war_report 18 Sheet No. 9 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 9 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 9 Side B 12/05/2013 09:53:13

M K C Y Report , Order on n. 37, at 4, n. 6. In other words, supra supra 40 , Criminal Court, Criminal , Proposal forCommon the ., Proposal for., Common the Katanga & Ngudjolo Katanga & Ngudjolo , Decision on Common Legal , Decision on Common Report of the Court on the Review of of the Court Report In each of the Kenya cases, all of In each of the Kenya cases, all of Bemba case, all 4,121 participating 38 ly 2009); International 39 n. 33, at 480 (“Although 33, it is theoretically possible n. supra

Similarly, in the Similarly, 37 The Prosecutor v. Francis Kirimi Muthaura, et al. Francis Kirimi Muthaura, v. Prosecutor The

Van den Wyngaert, den Wyngaert, Van See, e.g., The Prosecutor v. William Samoei Ruto, et al Ruto, et ProsecutorWilliam Samoei See, e.g., The v. See See The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui and Mathieu Katanga Germain v. Prosecutor The See Gombo Bemba v. Jean-Pierre Prosecutor The See (Trial Chamber III, 19 November 2010); ICC, 2010); 19 November III, (Trial Chamber in Proceedings Victims to Apply to Participate for the System of the Court on the Review of the System for Victims to Apply to Participate in Victims to Apply to Participate the System for of on the Review of the Court 2012). (5 November 6 n. 5, ¶ ICC-ASP/11/22, , Proceedings Legal Representation of Victims, ICC-01/09-01/11-243, at 4 (Registry, 1 August at 4 (Registry, ICC-01/09-01/11-243, of Victims, Legal Representation 2011); Legal Representation of Victims, ICC-01/09-02/11-214, ¶ 45 (Registry, 1 ¶ 45 August (Registry, ICC-01/09-02/11-214, of Victims, Legal Representation 2011). Representation of Victims for the Purpose of Trial, ICC-01/05-01/08-1005, ¶ 16 ¶ ICC-01/05-01/08-1005, of Trial, for the Purpose Representation of Victims of the view in be totally impractical this would individually, to appear victims for Court the by and goes as time to increase tends which victims, of number high the Organisation of Common Legal Representation of Victims, ICC-01/04-01/07­ Victims, of Legal Representation of Common the Organisation II, 22 Ju Chamber ¶¶ 2-4 (Trial 1328, 39 40 The second important aspect of the victim participation scheme, for for participation scheme, victim The second important aspect of the one exception, all participation purposes of this report, is that, with legal representative. through a common takes place 37 38 victims have been placed into one of two groups, with each group one of two groups, with each group into placed have been victims represented by a common . 14 14 focus of this report the these cases. Because in each of same been the the with as a victim individual is recognized by which an is the process the scope of participation, ICC, rather than at the right to participate the salient features of most briefly outline two of the we will only here. participation scheme scheme worth highlighting participation of the victim The first aspect has by an attorney, been represented every victim is that in each case, representative has been legal each first case, the very and in all but representing large and has been charged with selected by the Court in the Thus, for example, of victims. numbers were divided among in the trial who participated case, the 366 victims by a common legal was represented each group two groups, and representative. the victims in each case are represented as a single group by a as a single in each case are represented the victims common legal representative. 34334-war_report 18 Sheet No. 9 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 9 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 10 Side A 12/05/2013 09:53:13

15 15

Katanga & and a/0511/08, and a/0511/08, , Decision t Evidence and the in the

42 /06-1562, ¶ 45 (Trial (Trial /06-1562, ¶ 45 Otherwise, no individual case, three victims were victims case, three , Decision on the Supplemented 44 a/0542/08, a/0394/08 a/0542/08,

Decision on the Applications by 3 Applications on the Decision , ICC-01/04-01/07-2517-tENG, ¶ 20 (Trial (Trial ¶ 20 ICC-01/04-01/07-2517-tENG, , The one exception to this general The one exception 41 amber III, 24 May 2012). III, amber Lubanga The Prosecutor v. Germain Katanga and Mathieu and Mathieu Katanga Germain v. Prosecutor The resentatives of Victims to Presen of Victims resentatives case, the Chamber permitted two victims two victims permitted Chamber case, the Bemba , Decision on the Gombo, Decision Bemba v. Jean-Pierre The Prosecutor , Decision on the Maintenance of Participating Victim Status of Status of Participating Victim Maintenance on the , Decision and in the case, the Chamber initially decided four victims would be would initially decided four victims case, the Chamber 43 at 489.

M K The Prosecutor v. Jean-Pierre Bemba Gombo Bemba v. Jean-Pierre Prosecutor The Id. Dyilo, Lubanga v. Thomas Prosecutor The Chui Ngudjolo and Mathieu Katanga Germain v. Prosecutor The C Y ICC-01/05-01/08-2220, ¶ 7 (Trial ICC-01/05-01/08-2220, Ch Victims a/0381/09 and a/0363/09 and on Mr. Nsita Luvengika’s Request for Leave Request Nsita Luvengika’s on Mr. a/0363/09 and a/0381/09 and Victims ICC-01/04-01/07­ Legal Representative, his Mandate as said Victims’ to Terminate 3064-tENG, ¶¶ 42, 49 (Trial II, 7 July Chamber 2011). Victim by Concerns and of Views Presentation Ngudjolo Chui Ngudjolo 22 III, (Trial Chamber ¶ 55 ICC-01/05-01/08-2138, Victims, of and Concerns Views February 2012); Authorizing the Appearance of Victims a/0381/09, a/0018/09, a/0191/08, and of Victims the Appearance Authorizing of a/0363/09 on behalf acting pan/0363/09 2010); II, 9 November Chamber Applications by the Legal Rep 44 to give evidence under oath in The Hague, and three victims to present and three victims Hague, to give evidence under oath in The their views and concerns via video-link. all cases, at the ICC are, in reason, victims For that better known. becomes represented by common legal representatives.”). 41 42 43 it is the legal representatives, not victims themselves, who are who themselves, not victims representatives, it is the legal submissions make and hearings, status conferences to attend permitted and deliver witnesses, examine evidence, tender to the Chamber, statements. opening and closing Ngudjolo status of the victim but later revoked to testify in The Hague, permitted their veracity of about the concerned was Chamber two because the accounts; granted the right to testify in person in The Hague; granted the right victim or group of victims has personally participated in any manner in has personally participated in any manner victims or group of victim ICC. tried at the a case being rule is that, in the first three cases to go to trial, the Trial Chamber has to go to trial, the Trial Chamber cases first three rule is that, in the an application after submitting of victims, number allowed a limited personally in the to appear approval of the Chamber, and obtaining the to views his or her or to present to testify under oath trial proceedings the Court. in the Specifically, Chamber I, 18 December 2008). December I, 18 Chamber Victims to Participate in the Proceedings, ICC-01/04-01 to Participate Victims 34334-war_report 18 Sheet No. 10 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 10 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 10 Side B 12/05/2013 09:53:13 M K C Y In 45 , and (“There shall be a (“There shall for individualized ICC 46

Katanga & Ngudjolo n. 26, Reg. 86(9) , TATUS AT THE S n. 33, at 481. Lubanga supra ICTIM case, the “long and cumbersome process” went case, the “long and cumbersome

and accompanying text. text. and accompanying V As described by Judge Christine Van den Wyngaert, Van den Wyngaert, As described by Judge Christine et seq. et seq.

47 n. 24 n. 24 BTAINING The Early Cases: The Early Cases: [VPRS receives] the applications, which arrive in the which [VPRS receives] the applications, plus supporting standard forms of very lengthy form supporting – and especially the forms evidence. These the be translated into one of have to evidence – may working languages of the Court. Once that is done, the Bemba O Van den Wyngaert, den Wyngaert, Van ICC, Regulations of the Court, supra ICC, Regulations of the

See supra See supra See See specialised unit dealing with victims’ participation and reparations under the reparations under participation and victims’ unit dealing with specialised and victims for assisting Registrar. This unit shallresponsible be authority of the victims.”). of groups other words, each individual wishing to participate in proceedings in proceedings to participate wishing each individual other words, to the Victims an application before the ICC would submit (VPRS), which is the organ of Participation and Reparations Section victims, the Registry charged with assisting one of the three judges on the Trial Chamber that presided over the Chamber one of the three judges on the Trial Katanga & Ngudjolo as follows: 45 46 47 determination. In the first three cases tried at the ICC, the Chambers, Registry, and the Chambers, ICC, In the first three cases tried at the laid out in Rule 89 of the parties followed the application procedure described above. regulations, ICC Rules and the accompanying As described in detail below, the process by which an individual by which an individual the process in detail below, As described an evolution the ICC has gone through before obtains victim status is still struggling to find an Court years, and the over the past several forward. Specifically, the that will work going acceptable model being of crimes victims a process that will permit challenge is to find in the the Court to be recognized as participants prosecuted before that go rights and enjoy the within a reasonable time, proceedings resources taxing the very limited unduly without along with that status, it. before appearing and the parties of the Court itself A. 16 16 III. 34334-war_report 18 Sheet No. 10 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 10 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 11 Side A 12/05/2013 09:53:13

, 17 17 For

See

, 49 51 When applications applications When 50

The Prosecutor v. Jean-Pierre v. Jean-Pierre The Prosecutor l Chamber III, 22 February 2012). 22 February III, l Chamber

n. 49, at 16-18 (“Often victim applicants do not have

The Participation of Victims in International Criminal Court Criminal Court International Victims in of The Participation 48 supra supra

, Decision on the Supplemented Applications by the Legal Legal Applications by the Supplemented on the , Decision applications must be sent to the parties for observations. to the parties for must be sent applications of being identified are afraid all cases victims In almost redaction of identifying and ask for the publicly are blackened that their names This means information. lead passages in their story that may out, as well as any In principle, these redactions to their identification. by the competent approved checked and must each be then given a deadline to make The parties are Chamber. as they usually only receive observations. However, are their submissions forms, heavily redacted abstract.unavoidably somewhat is then The Chamber – on a case-by-case basis – whether required to decide the criteria of Rule 85 and each applicant meets affected by the are whether his or her interests proceedings. REDRESS Trust, at 22. at 481-82.

REDRESS Trust, M K Id. Chui Ngudjolo and Mathieu Germain Katanga v. Prosecutor The e.g., See, Id. See C Y also Decision on the Treatment of Applications for Participation, ICC-01/04-01/07-933­ for Participation, Applications of on the Treatment Decision 2009); II, 26 February (Trial Chamber tENG, ¶ 28 Bemba Gombo RepresentativesVictims of to Present Evidence andViews the and Concerns of (Tria 35 ¶ ICC-01/05-01/08-2138, Victims, Proceedings A Review of the Practice and Consideration of Options for the Future of Consideration Practice and Review of the A Proceedings extensive the and presence, VPRS field the limited (“Given 2012) at 18 (October have forms application incomplete to assist victims, intermediaries on local reliance far.”). participation so victim to challenges of the main one constituted 50 51 instance, in 2010, the Court reported that only 66 percent of the instance, in 2010, the Court reported completed. received were accurately applications 48 49 The process was further drawn out by the fact that applications applications the fact that by The process was further drawn out incomplete. to the Chambers were often by the VPRS submitted to the the application back remit had to the Chamber were incomplete, VPRS and the VPRS had in an attempt to follow up with the applicant or supporting documentation. information to fill in the missing easy access to the requisite proof to submit to the Court. Also, they may may they Court. Also, to the submit requisite proof to easy access to the 34334-war_report 18 Sheet No. 11 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 11 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 11 Side B 12/05/2013 09:53:13 M K C Y , ) (noting that Victim Victim

497, 512 (2009 , 6 Northwestern J. of Int’l , 6 Northwestern The situation was much The situation was 55 each application was each application 54 Decision on the Implementation of the of the Implementation on the Decision

III, 18 November 2010) (grouping 2010) (grouping 18 November III, Criminal Court: Achievements Made and Achievements Made Court: Criminal The Prosecutor v. Jean-Pierre Bemba Gombo Bemba v. Jean-Pierre Prosecutor The The Prosecutor v. Germain Katanga and Mathieu and Mathieu Katanga Germain v. Prosecutor The , which currently has 4,121 Bemba, which currently case, the Defense “repeatedly complained… “repeatedly complained… Defense case, the

n. 33, n. at 482. , 16 ILSA J. Int’l. & Comp. L. & Comp. Int’l. J. ILSA , 16 Victims’ Participation at the International Criminal Court: Court: at the International Criminal Participation Victims’ supra supra

, Decision on the Treatment of Applications for Participation, ICC­ for Participation, of Applications Treatment on the , Decision

n. 29 and accompanying text. accompanying 29 and n. Although the VPRS grouped victim applications “when applications victim the VPRS grouped Although pursuant to Regulation 86(5), pursuant to Regulation 52 53 See supra See supra Van den Wyngaert, den Wyngaert, Van Dyilo, Lubanga v. Thomas Prosecutor The Christine H. Chung, H. Chung, Christine

Are Concessions of the Court Clouding the Promise? Clouding the Court of the Are Concessions (2008). 490-91 459, Rights Human 54 55 nevertheless individually reviewed by the parties and the Court. the parties and the Court. reviewed by nevertheless individually a great deal of resources. this consumed Unsurprisingly, For instance, in the first case to be tried participated few victims although relatively at the ICC, the Lubanga responding to applicationsthat the burden of and the to participate, the was impairing raised therein, allegations detrimental’ ‘potentially for the hearing.” [D]efense’s preparation 52 53 there [we]re links founded on such matters as time, circumstance or circumstance founded on such matters as time, there [we]re links issue,” extensive and applications incomplete leads to which required what is misunderstand poor infrastructure by the complicated more made communication, forth back and situation countries. located in victims of many communications and limited non-existent or are documents countries civil records and identification In some difficult to access… the Registry inability of As a result of these challenges, and the 18 18 As of November for applications had received 9,910 2011, the ICC this to according reviewed was and each application participation, process. Defense in worse for the Reporting System Between the Registrar and the Trial Chamber in Accordance with in Accordance and the Trial Chamber Between the Registrar Reporting System to swiftly process the applications, years have sometimes gone by before before by gone sometimes have years the applications, process to swiftly Mariana 55, approved.”); and been fully applications have considered Decision on 722 applications by victims to participate in the proceedings, ICC­ to participate in the proceedings, by victims on 722 applications Decision Chamber ¶ 62 (Trial 01/05-01/08-1017, applications into four smaller groups according to the location of the harm). location of the according to the groups four smaller applications into Rule 89 and Regulation of the Court 86(5), ICC-01/04-01/06-1022, ¶ 19 (Trial 19 (Trial ¶ ICC-01/04-01/06-1022, 86(5), of the Court Regulation Rule 89 and 2007); November 9 I, Chamber the 2009) (affirming February 26 II, Chamber ¶ 4 (Trial 01/04-01/07-933-tENG, but not in the format, to slight changes making and I’s instructions Trial Chamber method); grouping the relation to Ngudjolo Chui Ngudjolo the “filing of incomplete applications, partially due to the lengthiness and complexity and complexity partially due to the lengthiness applications, of incomplete the “filing processing of in the delays” for “undue blame partly to was forms” of the application applications). victim Participation in the International in the International Participation Challenges Lying Ahead 34334-war_report 18 Sheet No. 11 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 11 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 12 Side A 12/05/2013 09:53:13 19 19 60 n. 26, Reg. aided the The Prosecutor v. The Prosecutor supra 58 Defense Observations Observations Defense The Prosecutor v. Jean- Prosecutor The Defense Response to the Defense Response to the

The Chambers were The Chambers Defense Response to the Third Response Defense

59

amber III, 11 October 2010); 11 October III, amber n. 37, at 4, n. 6. 4, n. n. 37, at It added that it was able to process the It added that it was 57 Defense Observations on the “Fourth Transmission to Transmission “Fourth on the Observations Defense n. 33, n. at 493. supra supra

In that case, the Defense filed multiple multiple Defense filed case, the In that

, 56 Transmission of 350 Victims’ Applications, ICC-01/05­ of 350 Victims’ Transmission

Defense Request for an Extension of Time for the Filing of Filing for the of Time an Extension Defense Request for th

supra supra

The Prosecutor v. Jean-Pierre Bemba Gombo, Bemba v. Jean-Pierre Prosecutor The case, for several months, more than one third of the than one more months, case, for several

The Prosecutor v. Jean-Pierre Bemba Gombo, Bemba v. Jean-Pierre Prosecutor The , Report of the Court on the Review of the System for Victims to Apply to to Apply for Victims of the System on the Review of the Court Report Katanga M K See The Prosecutor v. Jean-Pierre Bemba Gombo, Bemba v. Jean-Pierre Prosecutor The See den Wyngaert, Van See, e.g.

ICC, 77 of Regulation under established Defense, for the Public of Office The C Y 59 60 56 57 58 submissions to the Chamber explaining that the time spent on that the time explaining to the Chamber submissions was to victim applications on the submissions and making examining its prepare and its capacity to investigate of detriment the complete the trial. own defense for the VPRS, which is placed significant strain on Finally, the system of individual applications, but required not only to process thousands incomplete from missing documentation and to obtain information pursuant to Regulation Chambers for the prepare reports applications, and redact sensitive information 86(5) of the Regulations of the Court, participating victims. participating the applications. examining defense team in by Judge Van den Wyngaert, as noted this system, also taxed under in the hearings on the merits the start of that “before who has written the applications.” staff was working on victims’ support Chamber’s applications only because the Chamber granted it a time extension, and extension, it a time granted the Chamber only because applications for the Defense (OPCD) Counsel the Office of Public Participate in Proceedings supporting and things, other among with, the Regulations of the Court,is tasked Court, Regulations of the necessary. Defense when assisting the 77. 01/08-1992, ¶ 10 (Trial Chamber III, 7 December 2011). 7 December III, ¶ 10 Chamber (Trial 01/08-1992, Jean-Pierre Bemba Gombo, Jean-Pierre Bemba of Applications for Versions Representatives of Redacted Legal the Parties and 22 III, (Trial Chamber 5-6 ¶¶ ICC-01/05-01/08-968, Participation in the Proceedings, October 2010); Redacted Representatives of and Legal to the Parties Transmission on the “Seventh ICC-01/05-01/08­ Proceedings”, the Participation in for Applications of Versions 2010). 26 III, November Chamber 1053, ¶ 5 (Trial 18 on the Submissions Third Transmission of Victims’ Applications for Participation in the Proceedings, Proceedings, for Participation in the Applications Victims’ of Third Transmission ICC-01/05-01/08-945, ¶ 5 (Trial Ch ICC­ Proceedings, the in Applications for Participation of Victims’ Transmission October 2010); III, 11 Chamber ¶ 6 (Trial 01/05-01/08-945, Gombo, Pierre Bemba 34334-war_report 18 Sheet No. 12 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 12 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 12 Side B 12/05/2013 09:53:13 M K C Y 61 n. 49, at 20 n. 49, at 63 supra supra Indeed, even in 62

REDRESS Trust, Pena also noted that the process Pena also noted that the process 65 This situation had not improved This situation had not improved case “were admitted at a Bemba case “were admitted .” 66 See also See also Is the ICC Making the Most of Victim the Most Making ICC the Is n. 49, at 18-19.

n. 64, at 11. n. In addition to lamenting the slow pace of In addition to lamenting supra supra 67 including victims including supra This state of affairs caused Mariana Pena, who was at This state of affairs caused Mariana 64 n. 55, at 497.

n. 51, at 512.n. 51, at added). 511 (emphasis n. 51, , Int’l J. of Transitional Justice, 11 (2013). , Int’l J. of Transitional Justice, 11

supra supra

supra supra REDRESS Trust, . Id See Mariana Pena & Gaelle Carayon, & Gaelle Carayon, Pena Mariana Pena, & Carayon, Pena Chung, Pena, Participation? processing applications, victims’ advocates have also complained that also complained have advocates processing applications, victims’ most noting that complicated, find the application procedure victims 64 65 66 67 by 2011, as ongoing delays in processing applications meant that “a applications meant by 2011, as ongoing delays in processing in the of applicants” large number had part of the trial a “significant very late stage,” by which time [already] unfolded.” 61 62 63 the first few years of the Court’s operations, during which the overall of the Court’s operations, during the first few years itself was was relatively low and the Court of applications number applicants waited some number of situations, operating in a limited status. on their victim to receive word more than two years victims backlogs…resulted in many “persistent Unfortunately, such relation to key and concerns in their views losing out on presenting proceedings.” Of course, the “glacial” pace at which individual applications were applications pace at which individual the “glacial” Of course, themselves that the victims early cases also meant adjudicated in these their between submitting of time amounts had to wait significant recognized by the learning whether they had been applications and gaining any participatory rights. Court, and before 20 20 and Defense. to the Prosecution the applications before transmitting “brought about a high amount of litigation during a phase which amount of litigation during a high “brought about should be purely administrative.” (“[E]ven when victims have managed to comply with the deadlines [established by [established deadlines with the comply to managed have when victims (“[E]ven always not has VPRS the of applications], case for the submission in a Chambers such and thus deadline of the advance in applications process the been able to no key participate in hearings, through opportunity to applicants were denied the the time the Permanent Representative to the ICC of the International the Permanent the time in 2009 that the complain to Rights (FIDH), Federation for Human for all process “long and cumbersome current application system was a parties involved, fault of own.”). their 34334-war_report 18 Sheet No. 12 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 12 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 13 Side A 12/05/2013 09:53:13 21 21

The , VRWG , VRWG 68

Redacted Version of the Version Redacted As the organization REDRESS As the organization 69 n. 64, at 10; Victims’ Rights Working Group, Working Rights 10; Victims’ 64, at n. , in which there were relatively few , in which there were relatively few supra

n. 49, at 16. 70 supra Lubanga case calling into question the meaningfulness of the review. of the the meaningfulness calling into question 71 Pena & Carayon, & Carayon, Pena Because of the individualised processing requirements, requirements, processing Because of the individualised to provide are requested victims array of personal an to prove their including information information, experience of crimes on their identity, information of the Court and how they under the jurisdiction though they will invariably be suffered harm, even which represents heard through a legal representative of other interests their interests collectively with the also being represented. Thus, there is an victims between the typical way in which apparent mismatch the information and participate will ultimately victims to them to enable in order to produce they are required participate.

M K Id. v. Thomas Lubanga See, Dyilo, Prosecutor The e.g., See, e.g., REDRESS Trust, C Y Bulletin, Issue 9, Summer/Autumn 2007, at 7. 9, Summer/Autumn Bulletin, Issue Sudan Victim Recount Their Experiences with the ICC So Far with the Recount Their Experiences Lawyers Sudan Victim to Participate in the 15 Victims Applications by of Decision on the Corrigendum I, Chamber ¶ 16 8 (Trial February ICC-01/04-01/06-2659-Corr-Red, Proceedings, 2011) (arguing that extensivevital informationredactionspreventedof Defense the victim obtain to necessary the criteria applicants met the assessing whether from status). 69 70 71 Finally, even with this individualized review, it was difficult for the Finally, even with this individualized applications, given the heavy the review parties to effectively redactions, Indeed, in the 68 victims and thus presumably the Defense had more opportunity and opportunity and had more the Defense and thus presumably victims the all three of theresources to devote to reviewing applications, victims need assistance in completing the standard forms. in completing need assistance victims frustration victims experience when completing the forms is the forms completing experience when victims frustration status, their do obtain victim they fact that, once by the compounded and thus by a legal representative collectively interests are represented rights are limited. their participatory has explained: 34334-war_report 18 Sheet No. 13 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 13 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 13 Side B 12/05/2013 09:53:13 M K C Y Trial Chamber Trial Chamber , Decision on the

, the Kenya Cases, and , Judgment pursuant to Article 74 of the Article 74 pursuant to , Judgment Gbagbo Katanga & Ngudjolo Katanga & Ngudjolo

In these cases, the applications of the five In these cases, the 73 Similarly, as mentioned above, two of the four victims of the four victims above, two mentioned as Similarly, 72 expressed their concerns to the Assembly of States Parties their concerns to the Assembly expressed 74 Innovations By Chambers: Ntaganda The Prosecutor v. Thomas Lubanga Dyilo Lubanga v. Thomas Prosecutor The Chui Ngudjolo and Mathieu Katanga Germain v. Prosecutor The The OPCV, a wholly independent unit of the Court that falls within the remit of within the falls of the Court that unit independent wholly The OPCV, a Statute, ICC-01/04-01/06-2842, ¶ 502 (Trial Chamber I, 14 March 2012). I, 14 March Chamber (Trial Statute, ICC-01/04-01/06-2842, ¶ 502 Maintenance of Participating Victim Status of Victims a/0381/09 and a/0363/09 and a/0363/09 and a/0381/09 and of Victims Status Victim of Participating Maintenance said his Mandate as for Leave to Terminate Request on Mr. Nsita Luvengika’s Chamber 48 (Trial ¶ ICC-01/04-01/07-3064-tENG, Representative, Legal Victims’ 2011). II, 7 July 74 72 73 By 2011, the Court could no longer ignore the extent to which the ignore By 2011, the Court could no longer burdened the parties involved in applications of victim number that and the amount of time as well as the Chambers, proceedings, In applicants had to wait to receive recognition by the Court. victim of the Court, of certain branches April of that year, representatives of Public Council for Victims including the VPRS and the Office (OPCV), who received permission from the from who received permission and later denied that privilege, to the Court were to present testimony their legal representative status revoked, after had their victim provided by” the as to the veracity of the statements “expressed doubts to the Court. victims 22 22 own request to testify at their before the Chamber came who victims the Chamber status after of their victim stripped were subsequently were Court to the they gave that the accounts determined “unreliable.” individuals had been reviewed by the parties and victim status had status had victim reviewed by the parties and individuals had been they provided the the Chamber, and it was not until been granted by was able to that the Chamber statements detailed Court with far more the criteria to in fact, meet that the individuals did not, determine in the case. participate as victims B. the Registry solely for Regulation pursuant to 2005 established in September was purposes, administrative Court. of the Regulations 81 of the of the mandate to Regulation 81(4), According andto the legal support assistance OPCV is to: “provide where appropriate: (a) Legal including, victims, and to victims representative[s] for research and advice; and 34334-war_report 18 Sheet No. 13 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 13 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 14 Side A 12/05/2013 09:53:13

23 23 Against 80 In 2007, the The results of , ICC-ASP/10/31, at 3 , ICC-ASP/10/31, 77 81 Report of the Bureau on Bureau Report of the The representatives of the The representatives 79 trial, this number this number Bemba trial, n. 37, ¶ 1 (referring to paragraph 49 of ICC­ of 49 to paragraph (referring n. 37, ¶ 1

Reg. 80(2). These representatives noted that within the that within noted These representatives supra supra 75 Id. ,

By the time of the By the time 78

They also stressed that the increase in the number of that the increase in the number They also stressed 76

n. 26, Reg. 81(4). Report of the Court on the Review of the System for Victims to Apply to to Apply of the System for Victims on the Review of the Court Report supra at 6, n. 8. n. 6, at ¶ 12. 8. n. 6, at . . Appearing before a Chamber in respect of specificbefore a Chamber in Appearing issues. Regulations of the M K Id. Id Id. Id Id. ICC, International Criminal Court, Assembly of States Parties, of Court, Assembly Criminal International C Y Court, of legal with the appointment 80(2),deals In addition, Regulation which OPCV as the legal to appoint a Chamber permits victims, representatives for for victims. representative ASP/10/Res.5, which was December which adopted in 2011). ASP/10/Res.5, 76 77 78 79 80 81 (b) 75 increased to around 500 applications inincreased to around situations, but relation to seven the same. remained the VPRS’s resources (ASP) over the Court’s strategy toward victim participation, stressing participation, toward victim the Court’s strategy (ASP) over to deal were insufficient them to available resources that the applications of victim in the number with the influx effectively the Court. to submitted per of applications submitted the number of 2011, first five months the in submitted the average number 207% from month escalated whole of 2010. to this increase. contributed situations substantially this review are described in Section III.C below. this review are described in Section In the meantime, with alternative experimenting various Chambers of the Court began individual cases used in the approaches to the application process before them. VPRS was processing around thirty applications per month in relation per month around thirty applications VPRS was processing to four situations. to had, on several occasions, the Registry that Court further reported would be unable to that it was backlogged and notify the Chambers set. the Chambers within the deadlines process applications that the Court “review the system this background, the ASP requested and effectiveness to ensure its sustainability, applications for victims’ Assembly.” thereon to the efficiency, and to report Participate in Proceedings Victims and Affected Communities and Trust Fund for Victims for Communities and Trust Fund Victims and Affected (5 November 2012). (5 November 34334-war_report 18 Sheet No. 14 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 14 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 14 Side B 12/05/2013 09:53:13 M K C Y 85 88 It recommended, in It recommended, confirmation confirmation Gbagbo 86 It opined that an approach that It opined that an 84 Chamber III, 6 February 2012). 2012). 6 February III, Chamber Decision on Issues Related to the Victims’ Victims’ Related to the on Issues Decision

The Court could, at a later stage in the in The Court could, at a later stage 87 The Registry, recognizing the substantial The Registry, recognizing 83 The Gbagbo Approach The Gbagbo

Specifically, Single Judge Silvia Alejandra Fernández de Alejandra Fernández Judge Silvia Specifically, Single 82

1. ¶¶ 25, 32. ¶¶ 33-39. ¶¶ 32, 49. ¶ 1. ¶ 23.

The Prosecutor v. Laurent Gbagbo, Id. The Prosecutor v. LaurentVictims”, Gbagbo,of “Organization of the Participation Id. Id. Id. Id. backload of applications that had yet to be processed, outlined its that had yet to be processed, backload of applications collective a more implementing the possibility of views regarding process. approach to the application Application Process, ICC-02/11-01/11 (Pre-Trial Chamber III, 6 February 2012). 6 February III, Chamber (Pre-Trial ICC-02/11-01/11 Application Process, ICC-02/11-01/11-29-Red, ¶ 19 (Pre-Trial ¶ 19 ICC-02/11-01/11-29-Red, proceedings, consider in more detail whether a fully collective collective detail whether a fully consider in more proceedings, term. in the long approach could be implemented the short term, that the Single Judge implement what it called the Judge implement the short term, that the Single to apply either allow victims would approach that “mixed” individually or as a group. 82 83 84 85 86 87 88 In a 6 February 2012 decision, the Single Judge agreed to implement Judge agreed to implement Single In a 6 February 2012 decision, the approach in the calling for a mixed the Registry’s recommendations, aim of possibly progressing toward a fully with the short term, Gurmendi began discussions in January 2011 with the VPRS and other began discussions in January 2011 Gurmendi the victims’ to seek new approaches to Registry representatives that would improveapplication process and substantive the efficiency including a possible scheme, participation value of the victim approach. collective a collective process implementing However, the Registry stated that resources, would require more that represented a “long term project” amendments and significant process, application in the radical changes calls in its opinion, expressly to the Court’s legal framework, which, approach. for at least a partially individualized The first Chamber to explore a new application model for victims was for victims application model to explore a new Chamber The first presided over the III, which Pre-Trial Chamber hearing. through a collective application participate only to allowed victims and the parties’ workload. would likely reduce its, the Chambers’, 24 24 34334-war_report 18 Sheet No. 14 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 14 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 15 Side A 12/05/2013 09:53:13 25 25 92

¶ 10. The n. 22, Id. be She 94 90 The 89 95 supra detailing the detailing 97 The individual 96 Gbagbo case. Annex B: Proposed Partly Collective Partly Proposed B: Annex

To that end, the Single Judge To that end, the that was compatible with the Court’s with the Court’s compatible that was Decision on Issues Related to the Victims' Victims' Related to the on Issues Decision Victims’ Related to the on Issues Decision 91

93

n. 93, ¶ 11. The Prosecutor v. Laurent Gbagbo, v. Laurent Prosecutor The Annex A: Report on the Registry’s Proposed Collective Application

supra ¶ 8. ¶ 11; . 89(3). M K Id. Id. Gbagbo, Id. The Prosecutor v. Laurent Gbagbo, The Prosecutor v. Laurent Gbagbo, Id The Prosecutor v. Laurent Gbagbo, A: Annex on Report the Registry’s Proposed Rule 89(3) provides that another individual may apply on behalf of a victim if that victim of a behalf apply on may individual that another provides 89(3) Rule C Y R. requested that the Registry implement its proposal and formulate a its proposal and formulate Registry implement requested that the would provide such encouragement. form that application collective Application Process, ICC-02/11-01/11, ¶ 7 (Pre-Trial Chamber III, 6 February 2012). III, Chamber ¶ 7 (Pre-Trial ICC-02/11-01/11, Application Process, 6 February 2012). III, Chamber ¶ 8 (Pre-Trial ICC-02/11-01/11, Application Process, Application Form, ICC-02/11-01/11-45-AnxB (Pre-Trial Chamber III, 29 Feb. III, 29 Chamber ICC-02/11-01/11-45-AnxB (Pre-Trial Application Form, 2012). Form, Collective Application Form, ICC-02/11-01/11-45-AnxA, ¶ 10 (Registry, 29 (Registry, ICC-02/11-01/11-45-AnxA, ¶ 10 Collective Application Form, approach fully collective a its belief that The Registry, reiterating 2012). February stated that its framework, legal the without amending be implemented not could proposed approach “wouldstill allow for individualpresentation and treatment of applicableby the while at the as required law, participation, for applications victims’ process.” of the management of collective measure introducing a time same 94 95 96 97 89 90 91 92 93 On 29 February 2012, the Registry submitted its proposal for a “partly its proposal for a Registry submitted 2012, the On 29 February process” application collective the “efficiency and substantive improved current legal framework, with the and could be implemented applications,” value of victim for the had already allocated resources the Court collective approach, applicable to all cases, in the long-term. to all cases, approach, applicable collective by is made with others so that a single application “encouraged to join their behalf.” a person acting on group form was intended to outline the common elements of the group, was intended to outline the common elements group form in question. suffered or the crimes such as the harm proposed application form had two parts: the group form, comprising parts: the group form, proposed application form had two declaration form. eight pages, and a single-paged individual injury, their personal to describe allowed victims form acknowledged that while the Court cannot impose collective collective impose the Court cannot that while acknowledged 89(3), to Rule could, pursuant victims on victims, applications victim granted him or her consent, is a child or is disabled. ICC Rules, or is disabled. child is a consent, or her him granted victim 34334-war_report 18 Sheet No. 15 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 15 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 15 Side B 12/05/2013 09:53:13 M K

C Y

n. 95, at 9. Assuming Assuming supra supra 100 101 Finally, the 99 The collective application form was not form application The collective 98 Additionally, it emphasized that a victim Additionally, it emphasized 104 However, the Registry also highlighted some potential some However, the Registry also highlighted The Registry also noted the possible difficulties of of difficulties The Registry also noted the possible Finally, the Registry recognized could be that there 102 103 105 n. 93, ¶ 12.

Annex Annex B: Proposed Partly Collective Application Form, Annex A: Report on the Registry’s Proposed Collective Application ¶ 17. supra ¶ 11. ¶ 21. ¶ 22.

Id. Id. Id. Id. Id. Id. Gbagbo, Gbagbo, Registry proposed that additional VPRS staff be maintained in the staff be maintained VPRS that additional Registry proposed the relevant forms. in completing field to assist victims Form, 98 99 100 101 102 103 104 105 challenges that the partly collective approach might present. For present. approach might collective challenges that the partly application and a an individual both submit might instance, a victim combine both and the Court may group application, in which case together with the group process the individual application application. that, given increased VPRS identifying duplicates, but hoped be able to detect them would ground, the Registry on the involvement early on in the process. that instance, the Court could than one group. In belong to more may for each relevant group process an individual declaration application. mandatory, and victims had the choice to apply individually using the to apply individually had the choice and victims mandatory, Court had been using previously. standard form the would available that having both forms The Registry emphasized and the Court’s workload and processing substantially reduce be less time-consuming. would analyzing applications it argued that under the previous applicants, victim there were 100 form, application seven-page would submit the each individual system, This would, in effect, or her identity document. together with his the that the Registry would have to process 800 pages. Under mean would be one group application, Registry’s proposed approach, there that meaning 100 identity documents, 100 individual declarations, and of 210 pages the Registry would only have to process approximately applications. 26 26 and location in to it, and the date events that led the harm, individual occurred. injury which the 34334-war_report 18 Sheet No. 15 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 15 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 16 Side A 12/05/2013 09:53:13 27 27 112 The Defense further 111 It particularly welcomed the It particularly welcomed , Prosecution’s Observations in Relation to Relation Observations in , Prosecution’s on Issues Related to the , Second Decision 109 It suggested that victims would likely submit victims It suggested that submit would likely 108 Gbagbo case. The Defense urged the Single Judge to reject the The Defense urged the Single Judge 107 110 It proposed that the Court could either request more more could either request that the Court It proposed 106

¶ 8. ¶ 6. ¶¶ 19, 22. ¶ 23.

Id. Gbagbo v. Laurent Prosecutor The Id. Id. Gbagbo v. Laurent Prosecutor The Id. Id. M K C Y Victims’ Application Process, ICC-02/11-01/11, ¶ 5 (Office of the Prosecutor, 9 Prosecutor, of the (Office ¶ 5 ICC-02/11-01/11, Application Process, Victims’ March 2012). Registry’s proposed increased presence in the field, stating that this in Registry’s proposed increased presence before they are are complete would ensure that the applications alleviate the significant the Court, and would, therefore, to submitted the Court had spent in the past in requesting of the time amount transmitted to complete information or material supplementary applications. as detailed as the is not application form that the collective highlighted not particularly because it does form, application existing individual date of birth or gender. identify their require that victims 107 108 109 110 111 112 106 at least four collective applications, based on the four underlying four applications, based on the at least four collective in the incidents discrepancies between the content contained in the group application in the group content contained between the discrepancies of sexual for victims particularly declarations, and the individual violence. to apply the victim or encourage this problem, to remedy information individually. filed both the Prosecution and the Defense On 9 March 2012, approach. the proposed collective application observations on The Registry’s that it did not object to the Prosecution indicated proposal, and with the Court’s legal framework compatible arguing that it was to make forms provided sufficient detail that the application them. observations on Victims’ Application Process, ICC-02/11-01/11, ¶ 10 (Pre-Trial Chamber I, 5 April I, 5 Chamber ¶ 10 (Pre-Trial ICC-02/11-01/11, Application Process, Victims’ 2012). proposal, contending that instead of increasing the effectiveness and proposal, contending that instead actually application process, it would efficiency of the victims’ of work by the parties. increase the amount 34334-war_report 18 Sheet No. 16 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 16 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 16 Side B 12/05/2013 09:53:13 M K 119 C Y 113 117 highlighting 118 and the Registry’s 120 , Observations on the Practical Finally, the OPCV expressed and contended that pressures to and contended that 121 115

It also asserted that the collective application form that the collective It also asserted Among the OPCV’s objections was the claim that the objections was the claim Among the OPCV’s 116 114 ¶¶ 10, 12. ¶ 15. ¶ 16. ¶¶ 25-33.

. Id. Id. Id. Id. Id. Id. Id. Id See generally The Prosecutor v. Laurent Gbagbo v. Laurent Prosecutor The generally See Implications of the Registry’s Proposal on a Partly Collective Application Form for Form Application Collective Partly on a Proposal the Registry’s of Implications 19 Victims, for Counsel (Office of Public Participation, ICC-02/11-01/11 Victims' partly collective the proposed to objections OPCV’s the 2012) (outlining March application process). limited experience in Côte d’Ivoire. experience in Côte limited 114 115 116 117 118 119 120 121 the limited amount of time and resources the Registry has at its of time amount the limited disposal to assist all application, collective groups applying with the applications, the likelihood of having duplicate did not guarantee that the form concern that the individual declaration have another act on his or her behalf was consent to victim’s given that the person acting “voluntary and indisputable,” particularly 113 conform to views of the group or its leader compounds these group or its leader compounds to views of the conform concerns. on certain victims, certain of crimes impact” ignores the “real to sexual violence, explaining that particularly those who were subject effectively participate of gendered violence often cannot victims of those crimes. because of the hidden nature collectively thatMoreover, the OPCV considered Registry’s proposal might the not lead to more expeditious proceedings as claimed, Although it expressed support for “improving and expediting” the and expediting” for “improving it expressed support Although particular process, it opposed the Registry’s application victims’ proposal. the with process would be inconsistent application partly collective legal framework.goals of the Court’s the proposal It argued that Court of its participation before the would deprive “victims’ individualizedpersonalized and/or of a clearly more in favor character generalized and/or one,” collective 28 28 on the observations filed its own 2012, the OPCV On 19 March procedure. collective partly the Registry’s of implications practical 34334-war_report 18 Sheet No. 16 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 16 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 17 Side A 12/05/2013 09:53:13

29 29

124 ¶¶ 32-39. Id.

¶¶ 9, 18-20. First, it noted 9, 18-20. First, ¶¶ The organization also also organization The

Id. Id. Id. , the victim’s identity and identity victim’s , the , REDRESS Trust Observations to Pre- to Observations Trust , REDRESS The Single Judge concluded that The Single Judge

123 n. 22, R. 85(a) (“‘Victims’ means natural means (“‘Victims’ 22, R. 85(a) n. inter alia inter supra ing sexual or gender-based violence. to make its own general observations on the Registry’s on the generalmake its own observations to ¶¶ 40-53.

122

Id. ICC Rules, Second Decision on Issues Related to the Victims’ Application Victims’ to the Related Issues on Second Decision

¶¶ 29-31. Specifically, REDRESS opined that factors such as weak weak such as that factors REDRESS opined 29-31. Specifically, ¶¶ n. 111. Id. see also ¶¶ 26-28. Second, it highlighted the challenges the Court might be faced be the Court might the challenges it highlighted 26-28. Second, ¶¶ The Prosecutor v. Laurent Gbagbo v. Laurent Prosecutor The supra supra Id. 122 ¶ 30. In addition to receiving submissions from the parties and the OPCV on and the the parties from submissions receiving to In addition 30. ¶

¶ 20; See Gbagbo, Id. Id. M K C Y Finally, REDRESS emphasized that legitimacy of the group representatives might be representatives might group that legitimacy of the emphasized Finally, REDRESS group leadersmight coerce individual possibility that the of concern, highlighting representative may not be and/or that they own agendas, their into following victims a whole. group as of the infrastructure, harsh terrain, the fact that victims may speak different languages, that languages, different speak may victims fact that the terrain, harsh infrastructure, efforts, outreach in to engage resources limited Court’s or the they might move, regard. in this impediments significant would be expressed concern over victims’ ability to constitute themselves into a group, a into over victims’ ability to constitute themselves expressed concern involv instances particularly in Process, the collective process, the Chamber permitted REDRESS, a non-governmental non-governmental REDRESS, a permitted Chamber process, the the collective organization, rights human the information required in the Registry’s proposed forms would be proposed forms in the Registry’s required the information under an applicant qualifies as a victim whether sufficient to determine that and participating in the proceedings, of Rule 85 for the purpose a particular as necessary should could be obtained further information hearing. of charges at the confirmation called to testify be victim 123 124 The Single Judge also noted that the information contained in the also noted that the information The Single Judge the requirements individual application fulfilled Registry’s proposed by providing, of Regulation 86 122 on the victim's behalf need not show any direct connection to the connection to the show any direct behalf need not on the victim's victim. the partly to implement opted Judge the Single Despite these concerns, approach. application collective Trial Chamber I of the International Criminal Court Pursuant to Rule 103 of the to Rule Court Pursuant International Criminal of the I Trial Chamber 16 March Trust, (REDRESS 4 ¶ ICC-02/11-01/11, Evidence, and Procedure Rules of 2012). a collective incorporated have courts that of other on the experiences Relying on its own institutional well as as framework, their into process application victim face crimes of mass victims challenges specific some out laid knowledge, REDRESS proceedings. court participate in to applying when proposal. that views the potential could present difficulties of victims diverse when grouping victims. amongst communicating or in victims victims, with with in communicating themselves. persons who have suffered harm as a result of the commission of any crime within of the commission result as a harm have suffered who persons the jurisdiction of the Court.”). 34334-war_report 18 Sheet No. 17 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 17 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 17 Side B 12/05/2013 09:53:13 M K C Y , 128 126 Out of the , Decision on , Decision case and Trial 127

Because the

130 International Criminal Court International Criminal 129 Ruto & Sang Ruto & See cases.

case.

In May 2013, the Presidency of the ICC of In May 2013, the Presidency

, Decision on Victims’ Participation and on Victims’ Decision , at Participation Victims’ on Decision , Second Kenyatta Kenyatta and Kenyatta The Approach in the Kenya Cases The Approach in the Kenya Cases Second Decision on Issues Related to the Victims’ Application Victims’ to the Related Issues on Second Decision The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Uhuru and Muthaura Kirimi Francis v. Prosecutor The

Further, the Single Judge similarly concluded that the Judge similarly Further, the Single

n. 111, ¶ 21. ICC Presidency Decides on New Composition of Trial Chamber V on New Compositionof Trial ICC Presidency Decides 125 , Decision on Victims’ Representation and Participation, ICC-01/09-02/11­ , Decision on Victims’ Representation 2. supra supra . . The Prosecutor v. Williamand Ruto SamoeiJoshua Sang Arap See Gbagbo, Id Gbagbo v. Laurent Prosecutor The Id Gbagbo v. Laurent Prosecutor The Process, 3 V, (Trial Chamber Participation, ICC-01/09-01/11 Representation and Victim’s October 2012); 130 125 126 127 128 129 On 4 June 2012, the Single Judge granted 139 out of 158 applicants the Single Judge granted 139 out On 4 June 2012, charges hearing. of status for the confirmation victim additional sixty an admitted the Single Judge On 6 February 2013, participants. individual applicants as victim application process the victim Yet another approach to simplifying presiding at the time V, which was was adopted by Trial Chamber over both the Ruto & Sang collective application form contains sufficiently detailed information information sufficiently detailed form contains application collective pursuant mandate her his or representative “to fulfil to allow the legal Rules.” and Rules 90 and 91 of the of the Statute to Article 68(3) 30 30 within the a crime from suffered the harm a description of address, incident, supporting of the jurisdiction, a description Court’s of personal interests on the affected information and documentation, the victim. 158 applicants, fifty-seven applied individually while the remaining the remaining applied individually while 158 applicants, fifty-seven applications. through one of six collective 101 applicants applied Press Release, Press Release, Kenyatta 2012). October 3 V, 498, (Trial Chamber to preside over the V(b) Chamber Victims’ Common Legal Representation at the Confirmation of Charges Hearing and Hearing of Charges the Confirmation at Legal Representation Common Victims’ Chamber 25-26 (Pre-Trial pp. ¶ 5, ICC-02/11-01/11-138, Proceedings, in the Related 2012). I, 4 June ICC-02/11­ Proceedings, the Related and in Hearing of Charges the Confirmation 2013). February 6 I, Chamber at 22-23 (Pre-Trial 01/11-384, V(a) to preside over the constituted Trial Chamber ICC-CPI-20130521-PR906 (21 May 2013). Two of the three judges are the same for three same of the judges are the Two 2013). (21 May ICC-CPI-20130521-PR906 34334-war_report 18 Sheet No. 17 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 17 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 18 Side A 12/05/2013 09:53:13 as 31 31

n. 132 supra register Rather, the The VPRS 136 137 Id. Specifically, only those Specifically, only 133 case. In addition to submitting a written In addition to submitting For victims who wish to participate For victims 134 Specifically, after noting the dramatic the dramatic noting after Specifically, 135 131 Ruto & Sang Ruto & Sang , Decision on Victim’s Representation and Participation, Participation, and Representation on Victim’s Decision ,

¶ 25. ¶ 49. ¶ 25. ¶ 56.

. to video-link via or person Court in the before appearing victims (requiring .

Ruto & Sang & Ruto Id Id. Id Id. Id. Id. M K C Y 130. 130. Chamber created a system under which victims may simply simply may created a system under which victims Chamber contact information, and names, their participants by submitting victim suffered to the VPRS. the harm regarding information each Chamber, but each is presided over by a different judge. by a different presided over but each is each Chamber, 131 132 133 134 135 136 137 application to the Registry, these individuals must indicate, through individuals must application to the Registry, these best representative they are the legal representative, why the common of the group as a whole. the Court, the Chamber without personally appearing before views and be allowed to present their that they should determined representative without needing to concerns through a common legal in Rule 89. the application process established complete increase in victims’ participation compared to the Court’s earlier cases, to the participation compared increase in victims’ approach was that a more streamlined V determined Trial Chamber participation. victim to ensure meaningful warranted in order to each victim the traditional protocol requiring Instead of following devised a Chamber pursuant to Rule 89(1), the an application submit the that is dependent upon participation to victim bifurcated approach desired participation. level of a victim’s decisions were the same, the following analysis will outline only the analysis will outline the following same, were the decisions used in the reasoning in a 3 applications new plan for victim V set forth its Trial Chamber October 2012 decision. will then automatically enter this information into a database, without into this information enter automatically will then the parties or a decision from any individualized review by the Court-appointed with the shared and the database will be Chamber, victims who wish to share their views and concerns personally before and concerns personally before share their views who wish to victims the application procedures the Court are required to go through established under Rule 89. satisfy the Rule 89 application requirements). requirements). 89 application satisfy the Rule 34334-war_report 18 Sheet No. 18 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 18 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 18 Side B 12/05/2013 09:53:13 M K C Y In 143 According to 145 and the right to and the right

142 As yet another As yet another 138 ¶¶ 64-66. Id. the right to question witnesses, the right to question Importantly, once the common legal legal once the common Importantly, 141 139 the right for the common legal representative to make to make legal representative common the right for the

140

144 ¶ 52. ¶¶ 74-75. ¶ 55. Statute). of the Rome 22 (citing to Article 51 ¶ ¶ 73. ¶ 77.

. Id Id. Id. Id. Id. Id. Id. The Chamber retains the ability to decide on a case-by-case basis whether to whether retains the basis on a case-by-case ability to decide The Chamber allow them access to confidential information. information. access to confidential allow them present evidence through the common legal representative. the through present evidence addition to establishing this registration system, the Chamber the Chamber system, addition to establishing this registration with “detailed provide the Chamber that the VPRS mandated represented by its registration population as statistics” on the victim in consultation with two months, prepare a report every database and these legal representative, “on the general situation” of the common victims. 138 139 140 141 142 143 144 145 Although the registration process designed by the Chamber designed by the Chamber Although the registration process its justified of Rule 89, the Chamber the requirements circumvented Statute the directs the Rome that decision by reference to the fact of any conflict in the event to the Statute precedence Court to give and Procedure. between it and the Rules of Evidence opening and closing statements; opening and closing actingeither through OPCV legal on behalf of the common the or herself when himself representative, or the representative to appear; representative authorizes the Chamber representative determines that a victim is in fact eligible to participate to participate is in fact eligible that a victim determines representative in rights granted to victims same will enjoy the victim in the case, that and access court records, filings, to the right previous cases, including: proceedings; 32 32 verify which who would then for victims, legal representative common case. in the to participate are eligible victims the Chamber, this meant that it could interpret Rule 89(1) in a manner interpret Rule 89(1) in a manner that it could this meant the Chamber, alternative, the Chamber stated that the common legal representative representative the common legal that stated the Chamber alternative, the views and concerns of non- to present would be permitted legal representative who contact the common registered victims such individuals that as the representative determines directly, so long of the case. qualify as victims 34334-war_report 18 Sheet No. 18 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 18 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 19 Side A 12/05/2013 09:53:13 33 33 146

It did 149 First, 147 Id. ¶ 52. The 150

amicus Amicus ,

Id. , Decision , Decision

Finally, it assists Finally, it assists

148 filed a submission welcoming filed a submission welcoming

151 r V, 15 November 2012). November r V, 15 case containing observations on the case containing observations on

Ruto & Sang

Observations of Kituo Cha Sheria Pursuant to Rule 103 of the Rules of Rules of the 103 to Rule Pursuant Sheria of Kituo Cha Observations

¶ 50. The Chamber also acknowledged that some victims may wish to avoid even even may wish to avoid victims some that also acknowledged Chamber The

. The Prosecutor v. Williamand Ruto SamoeiJoshua Sang Arap The ProsecutorSamoei Ruto See and Joshua Arap Sang v. William Id. Id. Id Id. M K C Y not,how commondescribe however, the legal representativewhatwould the know would be. victims un-registered of these and concerns views the less onerous registration process for security or privacy concerns. concerns. privacy or for security process registration onerous the less possible, as inclusive as be should representation victim that emphasized Chamber and views present the must representative legal common the and indicated that register. not to who opt victims those of even way, general a in concerns, Cha SheriaKituo Observations, by Granting the Application Submit to for Leave ICC-01/09-01/11-473, ¶ 8 (Trial Chambe the Court’s approach and noting that initial reactions from initial reactions that the Court’s approach and noting registration in Kenya to the simplified and victims intermediaries 150 151 146 147 148 149 No party participating in either of the Kenya cases was given the in either of the Kenya cases No party participating proposal before on observations the Chamber’s opportunity to submit did receive two the Chamber although it was implemented, that would give life to the object and purpose of Article 68(3) of the of Article 68(3) object and purpose give life to the that would 68(3) should of Article and purpose norms as advancing the Statute, the Rules imposed. technical requirements over any take precedence three purposes for the victim also enumerated The Chamber registration procedure. “with a channel First, it victims provides of victimhood.” their claim can formalize through which they and their victims between a personal connection Second, it establishes to provide and enables a way for victims common legal representative to provide feedback. input and the representative briefs filed in the delivered its decision. shortly after the Chamber new system Kituo Cha Sheria (Center for Legal Aid Empowerment), a non­ Aid Empowerment), Kituo Cha Sheria (Center for Legal organization in Kenya that is actively rights human governmental Truth participation in the country’s involved in enhancing community Justice and Reconciliation Process, the Court in communicating relevant information to the victims. relevant information the Court in communicating Curiae November 23 V, Chamber (Trial ICC-01/09-01/11-478 Evidence, and Procedure 2012). 34334-war_report 18 Sheet No. 19 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 19 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 19 Side B 12/05/2013 09:53:13 M K C Y

The Chana 154 , Request to Request Pursuant , 157 Chana, like 156

(Trial Chamber V, 24 (Trial Chamber

Ntaganda case. As an initial

victims during the pre-trial phase, during the pre-trial victims It also advised that the Court guarantee the Court guarantee that It also advised 153 , ICC-01/09-01/11-519, ¶ 8 However, the organization also expressed also expressed the organization However, 158

152 Ruto & Sang She observed that the new system presents the presents the the new system She observed that The Ntaganda Approach 155 Amicus Curiae Amicus

submission came from the attorney who served as legal as legal who served from the attorney came amicus submission 3. ¶ 27. ¶ 30. ¶ 26.

. Id. The Prosecutor v. Williamand Ruto SamoeiJoshua Sang Arap Id Id. The Prosecutor v. Williamand Ruto SamoeiJoshua Sang Arap Id. Id. Present Views and Concerns of Legal Representation at the Trial Phase, ICC-01/09­ at the Trial Phase, of Legal Representation and Concerns Views Present 2012). V, 6 November (Trial Chamber ¶ 16(a) 01/11-469, to Submit Leave for Evidence and of Procedure the Rules 103 of to Ruel Observation as December 2012). December 154 155 156 157 158 The most recent case in which a Chamber has attempted to simplify case in which a Chamber has attempted recent The most is the application process the victim 152 153 danger that victims will be divided into “first-” and “second-“ classes, “first-” be divided into will victims danger that category to in the second victims the ability of thereby undermining and voice their concerns. effectively tell their story that, as a result of the registration system, “divisions amongst the amongst “divisions the registration system, that, as a result of and of unfairness populations feelings do not arise and victim hold do not take resentment the various regions.” within 34 34 were positive. process Kituo Cha Sheria, also emphasized that the registration process must that the registration process must Kituo Cha Sheria, also emphasized and transparent way.” in a “principled be implemented Court critique was that the however, that her ultimate emphasized, a before making themselves victims consult the failed to adequately process victim collect and in which it will manner on the decision “directly affected” particularly because it is they who are applications, by the Court’s decision. concern regarding the lack of judicial oversight with respect to the with respect of judicial oversight regarding the lack concern Chamber that the thus recommended process, and registration in order to of form some “endeavour to undertake process.” ensure a credible second the representative of Sureta Chana. 34334-war_report 18 Sheet No. 19 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 19 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 20 Side A 12/05/2013 09:53:13 35 35 In response, the In response, 159 For instance, the For instance, , rather than that than used in the , rather 160 experience was an Gbagbo experience was an experience indicated indicated Gbagbo experience Gbagbo. Gbagbo 2/06-57, ¶ 7 (Pre-Trial Chamber II, Chamber 6 2/06-57, ¶ 7 (Pre-Trial Gbagbo approach be adopted in , Decision Requesting the Victims Victims the Decision Requesting , with , Observations in Compliance Registry Ultimately, for these reasons, the Ultimately, Indeed, the 164 163 Instead, it advised the Court to adopt a more Instead, it advised the Court to adopt 165 Id. case. However, the Registry also However, the Registry acknowledged that in some 162 Additionally, grouping victims at the application stage at the victims Additionally, grouping ¶ 8 (indicating that some victims will be uncomfortable speaking in front in speaking uncomfortable will be victims some (indicating that 8 ¶

161 ¶ 10 (noting that this process ended up being time-consuming and burdensome burdensome and up being time-consuming ended process 10 (noting that this ¶

. . Ntaganda Id. Id See id. Id Id. The Prosecutor v. Bosco Ntaganda The Prosecutor v. Bosco Ntaganda M K C Y of groups due to the nature of the harm suffered, community tensions, or tensions, community suffered, the harm of nature the due to of groups stigmatization). 161 162 163 164 165 improved not only the application process itself, but also the ability of process itself, but also the not only the application improved legal it easier for the victims’ to participate in that it made victims when they are pre­ with his or her clients interact representative to grouped. not be advisable or feasible to physically bring together cases it may concerns process due to security for the application groups of victims of victims. or discomfort the Registry did not recommend that the 159 160 matter, the Single Judge overseeing pre-confirmation proceedings in proceedings overseeing pre-confirmation Judge the Single matter, on the present its observations that the Registry requested that case adopted in collective approach partially pertaining matters to discuss that the VPRS facilitated group meetings psychological well­ victims’ improved process to the application being. that, where a group was not pre-existing or self-identified, victims or self-identified, victims that, where a group was not pre-existing resulted in reluctance to appoint a within the group lacked trust, which no he or she was to have single contact person, even when representational capacity. invaluable experiment into more collective processes, and that it had collective processes, into more invaluable experiment benefits with this approach. observed certain but where individuals would still apply separately, flexible approach Registry informed the Single Judge that the Registry informed on the Registry). on the Registry). Participation and Reparations Section to Submit Observations, ICC-01/04-02/06-54, ICC-01/04-02/06-54, Section to Submit Observations, Participation and Reparations ICC-01/04-0 ICC-01/04-02/06-54, the Decision May 2013). ¶¶ 3, 5 (Pre-Trial Chamber II, 26 April 2013). The Single Judge why did not explain 2013). The 26 April II, Chamber 3, 5 (Pre-Trial ¶¶ cases. two Kenya she chose to focus on the application process in process application on the to focus she chose 34334-war_report 18 Sheet No. 20 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 20 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 20 Side B 12/05/2013 09:53:13 M K C Y 166 Gbagbo, namely: namely: Bemba 169 170 (Pre-Trial Chamber II, 28 May II, Chamber (Pre-Trial Lubanga, Katanga, and , Decision Establishing Principles on the on the Principles Decision Establishing , However, the judge did not indicate However, the judge did not indicate It directed the Registry to create a form, create a form, Registry to It directed the 171 168 167 a link between the victim and the crimes with crimes a link between the victim and the which the suspect is charged; and which the suspect is charged; and crimes. applicant as a result of those information regarding the harm suffered by the harm regarding the information the identity of the applicant; the identity (i) (ii) (iii) ¶ 21. ¶ 20. ¶ 34. . Id. Id The Prosecutor v. Bosco Ntaganda Id. Id. Id. whether this grouping would differ from or be more efficient than the from whether this grouping would differ the grouping the VPRS had done in 166 167 168 169 170 171 which asked the applicant for only such information as is “strictly information applicant for only such which asked the an applicant whether to determine required by law for the Chamber set forth in rule 85 of the Rules,” satisfies the requirements that the Registry should group victims The Single Judge also observed that would “facilitate the at the application stage in a manner time-efficient and beneficial for application process and could be participation.” victims’ In line with the Registry’s recommendation, the Single Judge rejected recommendation, the In line with the Registry’s the application to simplify deciding instead a collective approach, seven from form down the standard application process by paring page. pages to a single This approach would provide that a victim is not permanently linked to not permanently is victim that a would provide This approach or as part separately, later, be considered group, but could, a particular difficulty that arose in the thereby avoiding of another group, the separately from needed to be evaluated where, if a victim and re-characterize the Registry had to disband collective application, groups in its database. 36 36 a group. applications in process the would subsequently the VPRS Victims’ Application Process, ICC-01/04-02/06-67 Application Process, Victims’ 2013). 34334-war_report 18 Sheet No. 20 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 20 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 21 Side A 12/05/2013 09:53:13 37 37

While such an option would such an option While n.supra 37. 176 , 172 and accompanying text. text. and accompanying 174 Report of the Court on the Review of the System for Victims to of the System for Victims Review on the the Court Report of in December 2011, the Assembly of States Parties, the Assembly in December 2011, Specifically, this option would involve increases in Specifically, this option would involve 173 et seq. et seq.

2012 ICC Report 2012 ICC Report Keep the current system intact, but increase funding Keep the current system 175 ICC, n. 81 n. 81

Proposals for Courtwide Reform of the Victim Application Application of the Victim Reform for Courtwide Proposals a) Process 1. ¶ 33. ¶ 22. ¶ 25. Id. See supra See generally Id. Id. M K C Y obviously reduce the resource burden placed on these various actors, placed on these various obviously reduce the resource burden the option, noting that even if disfavored the report ultimately sustainable in the current system resources could be increased to make to the not be sufficiently tailored “may the near term, the approach of applications under expected givenvolume the scale of the crimes 172 173 174 175 176 The Court first considered continuing to implement the current system, system, the current to implement The Court first considered continuing that would ensure its effectiveness and but funding it in a manner sustainability. recognizing the continued backlog of victims’ applications that had yet applications backlog of victims’ recognizing the continued all and resources of time amount and the limited to be processed, applications, these had in assessing proceedings parties to the system. application of the undertake a review Court requested that the ASP in to the courtwide review, submitted The results of this the Court could adopt 2012, contained six possible reforms November highlighting the of the system, in order to enhance the efficiency discussing its of each option, advantages and disadvantages to and identifying the legal framework, with the Court’s compatibility the be necessary to reform may areas in which amendments application process. cases described above. cases described C. As noted above, funding to support the Registry, the victims’ legal representatives, and legal representatives, the victims’ funding to support the Registry, and the OPCD. Defense teams Apply to Participate in Proceedings 34334-war_report 18 Sheet No. 21 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 21 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 21 Side B 12/05/2013 09:53:13 M K C Y The Court’s 181 However, given However, given 183 179 The second approach would allow the The second approach would allow 184 Because this option represented a option represented Because this 177 182 In addition, this option proved to save the Gbagbo In addition, this 178 Furthermore, the report noted “[i]ndications… that the report noted “[i]ndications… Furthermore, Establish a partly collective application process application process a partly collective Establish Establish a fully collective application process Establish a fully collective application Gbagbo case. that noted the report matter, As an initial 180

case remained in the pre-trial stage at the time of the stage at the time in the pre-trial Gbagbo case remained c) b) ¶ 35. ¶ 30 ¶ 33. ¶ 38. ¶ 39.

. 39(1). Id. Id. Id. Id. Id. Id. Id Id. significant shift away from the default system, the Court considered the Court considered the default system, away from shift significant could be carried out. several possible ways this option First, the groups to apply collectively to the to allow process could be reformed in Rule 89. Court pursuant to the process outlined 177 178 179 180 181 182 183 184 the option may not be suitable for all circumstances, especially where circumstances, be suitable for all the option may not can be identified and/or where no natural or pre-established groups are scattered over a wide geographical area.” victims collective reviewed by the Court was the fully The third option application process. Such an approach would be based on collective of a community or by a representative on behalf submitted applications recognized association. Next, the Court considered the partly collective application approach application approach collective considered the partly Next, the Court adopted in the to the current be adopted without any amendment this approach could legal framework. of time. a substantial amount Pre-Trial Chamber 38 38 jurisdiction.” the Court’s that the was the effectiveness of the approach of assessment report, a complete not possible. require modifications to would report noted that such an approach and those only individual victims Rule 85 to allow recognition of not institutions discussed in the current Rule 85, but also allow recognition as victims. of communities 34334-war_report 18 Sheet No. 21 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 21 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 22 Side A 12/05/2013 09:53:13 39 39 It also found the 188 Another issue, raised by 192 The final possibility would abolish possibility would The final 185 Concerns were also raised about the propriety Concerns were also raised about 191 The report acknowledged that this approach The report acknowledged Next, the report cautioned that any potential Next, the report cautioned that any 186 189 In particular, it noted that where victims do not already victims In particular, it noted that where 187

190 ¶ 39(2). ¶ 39(2). ¶ 39(3). ¶ 39(3). ¶ 41. ¶ 42. ¶ 41. ¶ 44.

Id. Id. Id. Id. Id. Id. Id. Id. M K C Y impact on victims of this approach would have to be “carefully have to of this approach would on victims impact evaluated.” essentially mirrors the approach adopted by the Trial Chamber in the Chamber by the Trial approach adopted the essentially mirrors Kenya cases. the OPCV, was whether victims of gender crimes would be able to would be able to of gender crimes the OPCV, was whether victims 185 186 187 188 189 190 191 192 identify themselves as part of a group or established community, they as part of a group or established community, identify themselves a representative to adequately lack confidence in the ability of may speak on their behalf. After identifying some of the ways in which a fully collective ways in which a fully collective of the some After identifying report considered could be established, the ICC application process and legal of such an approach on resources of the implications some these because that indicated the report Importantly, restructuring. would whether amendments options are as yet untested, it is unclear to Rule 68(3). 85 and/or Article need to be made Chambers to constitute victims into an association defined by specific by specific an association defined into constitute victims to Chambers for to the Registry association to apply the and then permit criteria, case. in a particular certification effects on resource requirements of suchunclear. an approach to be effects on resource requirements resources required by the Registry, While it could be expected that the be significantly reduced, some the parties, and the Chambers would legal be required by the common additional resources may representative(s). of grouped associations in the creation of the Court being involved exists. where none previously or naturally the detailed application process altogether in favor of “appointing a process altogether in favor the detailed application generally (or more in the case to represent victims legal representative interest between different of is a conflict than one if there groups of she who to define representative it to the legal and delegating victims), or he represents.” 34334-war_report 18 Sheet No. 22 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 22 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 22 Side B 12/05/2013 09:53:13 M K C Y those 198 The 197 The 199 201 195 Finally, the report acknowledged the report acknowledged Finally,

193 200 n. 37, ¶ 52.

194 supra supra , Registry report as basis for observations and approval observations as basis for Registry report While the VPRS has typically prepared reports on While the VPRS

report on the victims’ applications, which would serve as applications, which report on the victims’ n. 29 and accompanying text. accompanying 29 and n. 196 d) Report of the Court on the Review of the System for Victims to Apply to to Apply of the System for Victims on the Review of the Court Report ¶ 46. ¶ 47. ¶ 48. ¶ 50. ¶ 50. ¶ 51. ¶ 53. Id. Id. Id. Id. See supra Id. Id. Id. ICC, Participate in Proceedings that concerns over fairness to the rights of the accused could also arise the accused could of the rights to fairness over that concerns to is insufficient applications in the collective where information credibility. assess victims’ reports are shared only with the Chambers, not with the parties. reports are shared only with the Chambers, 193 194 195 196 197 198 199 200 201 the basis for parties’ observations as well as the decision by the by the as well as the decision the basis for parties’ observations Chambers. to this option, including cost The report noted several advantages and the Chambers. savings for legal aid, the Prosecution, The fourth option discussed in the ICC report would envision the report would ICC discussed in the The fourth option a and the parties and distributing to the Chamber Registry preparing prima facie applications pursuant to Regulation 86(5), individual victims’ by the ICC report, the envisioned in the scenario Furthermore, highlights that in a manner Registry could prepare the report to require adjudication. borderline cases that are most likely Ultimately, the report concluded that a fully collective approach would a fully collective approach would that the report concluded Ultimately, before the net effects of its and examination require further study could be fully understood. implementation 40 40 process. in a collective participate Registry report could also be structured in such a way as to allow Registry report could also be structured which would more uniformly, their observations parties to submit in assessing those observations and improve assist the Chambers their consideration. efficiency in 34334-war_report 18 Sheet No. 22 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 22 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 23 Side A 12/05/2013 09:53:13 41 41 205 204 In addition, the 208 However, under any of the 207 206 Additionally, the OPCD expressed Additionally, the 203 In fact, the Registry’s workload could increase if could increase the Registry’s workload In fact, 202 Eliminating party observations on victims’ applications on victims’ party observations Eliminating

e) ¶ 54. ¶ 55. ¶ 58. ¶ 60.

Id. Id. Id. Id. Id. Id. Id. M K C Y the reports require redacting. the reports require burden on the parties would be significantly reduced, and victims reduced, and victims burden on the parties would be significantly on their applications receive a decision would presumably themselves would not need to wait for as the Chambers manner, timely in a more observations before issuing decisions on victims’ the parties to submit 202 203 204 205 206 207 208 In evaluating this approach, the report observed that, while no real the report observed this approach, In evaluating in the application process, the would be seen by victims impact savings if it no longer had to Registry would see significant time of each application. prepare redacted versions concern that tasking the Registry with making assessments of assessments the Registry with making concern that tasking providing a summary of rather than the applicants’ applications, regarding its neutrality. would raise questions information, on victims’ ruling Chambers the report envisioned In this option, the parties. observations from limited or with either no applications variations on this idea: possible identified three the report Specifically, for observations, but information be provided limited (i) parties would would would be withheld; (ii) Chambers the applications themselves issues,” but the legal on “relevant request parties’ submissions and (iii) parties would receive no applications would be withheld; opportunity for observations at all. Registry, however, would see no gains in efficiency, as it would efficiency, as it see no gains in however, would Registry, under the it does in to prepare the reports continue manner the same current system. scenarios, the parties would be given the right to move to exclude scenarios, the parties would be given individuals granted victim after a decision status by the Chamber granting such status had been issued. 34334-war_report 18 Sheet No. 23 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 23 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 23 Side B 12/05/2013 09:53:13 M K

C Y 211 The report n. 21, at Art. 214 supra Rome Statute, Rome see also n. 22, R. 128 (authorizing the Pre-Trial the 22, R. 128 (authorizing n. n. 37, ¶ 62 & n. 40 (indicating the Appeals 40 (indicating n. n. 37, ¶ 62 & Bemba case, in which the Defense supra Another disadvantage was that this option that this option disadvantage was Another supra supra 210 , ICC Rules, Dealing with victims’ applications solely at the pre-trial Dealing with victims’ 212 phase

see also However, the OPCD raised concerns that this option could this option could concerns that the OPCD raised However, 213 f) Report of the Court on the Review of the System for Victims to Apply to to Apply of the System for Victims on the Review of the Court Report 209 ¶ 61 (explaining OCPD’s concerns that the reform option implements no implements option reform that the concerns OCPD’s 61 (explaining ¶

¶ 63. ¶ 64. ¶ 65; Id. Id. Id. Id. Id. ICC, 67(1) (outlining the rights of the accused in ICC proceedings). of the (outlining the rights 67(1) Chamber may have even less capacity to deal with the delayed workload). deal with the delayed workload). capacity to have even less may Chamber balancing safeguards typically seen in , which could negatively could which jurisdictions, law civil typically seen in safeguards balancing proceedings); of the the fairness impact Participate in Proceedings cited the experience of the of the cited the experience about the fact that several thousand repeatedly complained of the trial, dealt with at late stages were still being applications these applications negatively of reviewing the demands claiming 211 212 213 214 209 210 would likely only delay the workload, assuming the parties the parties delay the workload, assuming would likely only saving time at the victims, to exclude accepted subsequently move savings. term potentially offering no real long early stages but option could be used in this that the report concluded Ultimately, but was the application system, to of reform types concert with other increase the efficiency of the to viable measure not on its own a process. report would establish a firm ICC The final option considered in the must they dictating that applications, in all cases for victims’ deadline hearing. of charges be received prior to the confirmation Finally, the option could lead to disappointment and distress for could lead to disappointment Finally, the option have that status, but then receive victim initially who may victims, status revoked. 42 42 status. Chamber to include additional or more serious charges proposed by the Prosecution Prosecution by the proposed serious charges or more additional to include Chamber 122). 121 and with Rules in accordance violate the right of the accused to be heard, although the report did not although the to be heard, right of the accused violate the on this point. elaborate 34334-war_report 18 Sheet No. 23 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 23 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 24 Side A 12/05/2013 09:53:13 43 43

217 221 Such 223 A related but A related 215 Having a deadline in the pre­ In terms of advantages and of advantages and In terms 219 218 Further, parties would save

220 n. 37, ¶ 65.

216 supra supra , If time or resources were insufficient, or if the were insufficient, or or resources If time 222

Report of the Court on the Review of the System for Victims to Apply to to Apply for Victims of the System on the Review of the Court Report (indicating potentialArticles 39, with conflicts 57, 61, and 64).

¶ 66. ¶ 67. ¶ 68. ¶ 69. Id. Id. Id. Id. Id. Id. Id. Id. M K ICC, C Y Participate in Proceedings alternative idea would be to give the Pre-Trial Chamber the role of Chamber to give the Pre-Trial idea would be alternative moved the case has even after at all stages, status on victims’ deciding or later. on to the trial stage 215 216 217 218 219 220 221 222 223 Registry did not have adequate personnel on the ground early enough Registry did not have adequate personnel about the victim information in the process to assist in disseminating the effect would be to and preparing applications, participation scheme from being able to apply at all. victims prevent many Further study would be needed in order to determine whether dividing whether dividing be needed in order to determine Further study would could be supported by Chambers Pre-Trial and Trial the work between Statute. the Rome various articles in would with only function properly However, the proposed system pre-trial stage, and if there was at the significantly increased resources of prior to the confirmation to process applications sufficient time charges hearing. impacted its time and ability to prepare its case. prepare and ability to its time impacted by could be made revisions that such indicated The Court report that of Procedure and Evidence, and Rule 89(1) of the Rules amending Statute. of the Rome Article 68(3) to be required may amendments the of applications to the submission disadvantages, limiting in time savings would clearly result in significant stage confirmation and resources for the Trial Chambers. trial phase would also limit the number of applications and increase and increase the number of applications trial phase would also limit the sustainability of the system. be required to review would not at trial, as they time resources and throughout the trial. applications and prepare observations concerns could potentially be alleviated by extending the pre-trial prior the investigation to complete phase, or requiring the Prosecution 34334-war_report 18 Sheet No. 24 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 24 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 24 Side B 12/05/2013 09:53:13 M K C Y

Because 227 229 However, concerns could then arise concerns could However, Finally, the report stressed that other Finally, the report stressed that other 225 224 228 n. 21, at Art. 67(1)(c) (providing the accused accused the (providing n. 21, at Art. 67(1)(c) n. 37, ¶ 72.

supra supra supra , Once again, the report indicated that the six possible report indicated that the six possible Once again, the Other Proposals Final Conclusions of the ICC report Final Conclusions 226 Rome Statute, Rome

2. g) Report of the Court on the Review of the System for Victims to Apply to to Apply of the System for Victims on the Review of the Court Report see also ¶ 60. ; ¶ 73. ¶ 74. ¶ 20. Id. Id. Id. Id. Id. ICC, with the right to “be tried without undue delay”). undue without “be tried to with the right reforms mentioned need not be mutually exclusive, but could be used need not be mutually mentioned reforms “in different combinations.” one another in concert with Participate in Proceedings 224 225 226 227 228 229 At about the same time that the ICC submitted its report evaluating that the ICC submitted time At about the same key participation plan, two victim potential alternatives to the current rights, REDRESS and the organizations concerned with victims’ Group (VRWG), a network of international Rights Working Victims’ Although it presented a wide variety of potential reforms and revisions reforms a wide variety of potential Although it presented not did ultimately application process, the ICC report to the victim alteration. the adoption of any particular endorse or encourage It did, quo was the status that simply maintaining however, indicate by the process improve to and deemed it “necessary unsustainable, proceedings or seek apply to participate in the which victims reparations.” 44 44 charges. of to the confirmation several of the options outlined in the report have yet to be formally or yet to be formally report have in the options outlined several of the to it “premature deemed substantively evaluated, the Court recommended at this stage” and instead a specific option recommend financial, and practical further consideration of the “legal, of those options. implications” over the lengthier pre-trial phase and potential conflicts with the right with the right conflicts potential phase and pre-trial lengthier over the trial. to a speedy of the accused options for improving the application process not presented may also process not presented may options for improving the application possible of the combination warrant consideration, and that some be implemented. may reformations 34334-war_report 18 Sheet No. 24 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 24 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 25 Side A 12/05/2013 09:53:13

45 45

International

All three, However, 234 232 Specifically, it Specifically, 233 . http://www.vrwg.org/about­ , available at published their own views on the their own views published 230 While the Independent Panel of the While Session of the Assembly of of States Parties the Assembly 14-22 Session Who We Are We Who 235 th

available at available Report on Victim Participation at the International on Victim Participation at the Report

n. 49; Victims’ Rights Working Group, Group, Working Rights 49; Victims’ n. Additionally, several months after the ICC months Additionally, several (November 2012), (November 231 supra supra

. ¶ 66 (July 2013), 2013), 66 (July ¶

.

REDRESS Trust, ¶¶ 44-45. ¶ 65.

. ¶ 66. Id. Id. Id See M K Independent Panel of Experts, of Experts, Panel Independent Victims’ Rights Working Group, Working Rights Victims’ C Y vrwg/who-we-are Criminal Court, November 2012, The Hague November 2012, The - http://www.vrwg.org/VRWG%20Documents/201114_VRWG_ASP11-ENGLISH VERSION.pdf various approaches available to the Court in relation to the victim victim in relation to the to the Court available various approaches application procedure. the Independent Panel of Experts also recommended that the form be that the form recommended also the Independent Panel of Experts other would be able to attach any devised in such a way that victims their the Court, whether to detail to they wished to divulge information views concerns, or express personal experiences, highlight security regarding legal representation. Experts acknowledged the benefits of implementing a group of implementing Experts acknowledged the benefits the Court “to see it would allow application procedure, stating that 232 233 234 235 230 231 groups focused on ensuring that the rights of victims are victims that the rights of on ensuring groups focused civil society ICC proceedings, during protected collaborated to an Independent Panel of Experts issued its report, proposals to reform the application process. formulate the from short one-page form proposed that the Court adopt the would be less Ntaganda decision, reasoning that this approach that a shortened and noting and intermediaries, for victims burdensome and resources to process. would require less time form like the ICC, highlighted both structural changes that would keep the keep that would changes both structural like the ICC, highlighted in which it is the manner intact, but streamline current procedure the of require a revamp radical ones that would applied, and more regime. current the existing Panel of Experts favored streamlining The Independent changes. any drastic making process rather than Criminal Court at 10: The Implementation of Victims’ Rights: Issues and Concerns Concerns and Issues Rights: of Victims’ Implementation at 10: The Criminal Court on the Occasion of Presented the 11 _Report_on_Victim_Participation_at_the_ICC.pdf http://www.iccnow.org/documents/Independent_Panel_of_Experts http://www.iccnow.org/documents/Independent_Panel_of_Experts 34334-war_report 18 Sheet No. 25 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 25 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 25 Side B 12/05/2013 09:53:13 M K C Y 239

and enhanced 240 It first acknowledged 242 In addition to these recommendations, In addition to these recommendations, 241 However, it also warned that both the However, it also warned that both and because victims do not naturally fit into fit into do not naturally victims and because 243 n. 49, at 24. 236 237 Accordingly, it proposed a number of logistical Accordingly, it supra 238 Specifically, REDRESS expressed concern that the Specifically, REDRESS expressed 244

at 24-26. at 27. at 33. at 40. ¶ 77. ¶ 78.

. Id. Id. Id. Id. Id Id. Id. Id. REDRESS Trust, homogenous groups. homogenous support to intermediaries so that they may better aid victims in better aid victims so that they may support to intermediaries the applications. completing REDRESS analyzed the advantages and disadvantages of REDRESS analyzed the advantages collective approach. more a implementing 236 237 238 239 240 241 242 243 244 REDRESS also recommended increased VPRS field help presence to applications, incomplete of alleviate the problem REDRESS stressed that the key concern during the reform process process REDRESS stressed during the reform that the key concern that allows meaningful system a more efficient should be developing that “[a] highlighting proceedings, participation in the victim the most reform agenda is unlikely to produce financially driven effective results.” 46 46 it did not participating,” ‘classes’ of victims the different more clearly requires legal framework the because this approach recommend applications individual that, in reality, most victims participate collectively through a common participate collectively through a common victims that, in reality, most find that a collective could victims legal representative and, as such, of participation with the form application process is more “consistent receive.” they ultimately approach contain “intrinsic partial and the fully collective limitations.” changes that would meet this goal. First, highlighting the correlation highlighting the correlation this goal. First, meet changes that would and the level of victim indicators performance between outreach strengthen its proposed that the Court participation, REDRESS outreach efforts to ensure that victims about the are well informed participate. may in which they Court’s procedures and the manner voices of victims of gendered crimes and other marginalized groups and other marginalized of gendered crimes voices of victims would of victimization not be properly heard or that their form may 34334-war_report 18 Sheet No. 25 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 25 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 26 Side A 12/05/2013 09:53:13 47 47 and 247 It also reiterated the It also reiterated In the end, REDRESS In the end, REDRESS 245 that the members may lack may members that the 248 246 252 n. 231, at 8. n. 231, at To that effect, it recommended To that effect, it recommended 251 supra supra

Instead, it stressed that the Court must must Instead, it stressed that the Court 253 In particular, REDRESS emphasized that the Court In particular, REDRESS emphasized However, it stressed that the tiered application procedure that the tiered application procedure However, it stressed 250 The network also emphasized that the Court should collect should that the Court The network also emphasized 249 254 at 36-37. at 37. at 37-38. at 37. at 40. at 39. at 7.

. Id. Id. Id. Id. Id. Id Id. Id. Id. M K Victims’ Rights Working Group, Working Rights Victims’ C Y danger that those claiming to speak for the group may not be the group may to speak for those claiming danger that interests; of all members’ representative that the Court, should it choose to implement this approach, enhance implement that the Court, should it choose to system” way communication its outreach efforts and set up a “two representative. legal with the common 245 246 247 248 249 250 251 252 253 254 the trust necessary to share their experiences with the group; to share their experiences the trust necessary be difficult given various might members among that communication lack of a common terrain, poor infrastructure, factors such as harsh frequency of relocation. language, and the representative was communicating would need to ensure that the legal regularly with registered victims. on the partial and fully collective observations The VRWG also made applications, but did not indicate a approaches to collecting victim either one. preference for degree to which each decided the consider all options carefully, and while at the application process, the goal of enhancing the promotes participation for it allows meaningful ensuring that time same victims. also presented certain challenges, and proposed that the Court consider proposed challenges, and also presented certain and other the parties, consult victims, these carefully, and this procedure generally applying contemplates before it stakeholders, to all cases. not be recognized under a collective process. a collective under not be recognized proposed a tiered application process similar to that in the Kenya application process similar proposed a tiered efficient, and it would be significantly more because cases, particularly and the intermediaries, burden on victims, would alleviate the Registry. 34334-war_report 18 Sheet No. 26 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 26 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 26 Side B 12/05/2013 09:53:13 M K C Y 256 Gbagbo, the Registry 258 Commenting on the partly collective collective the partly on Commenting 255 However, it observed that this system does not that this system However, it observed 257

at 8-9.

. Id. Id. Id Id. 255 256 257 258 guarantee that the majority of victims will choose to register rather will choose to register of victims the majority guarantee that to to be prepared still need that the Court may than apply, and warned victims wishing to from of applications assess a large volume personally appear during the proceedings. In relation to the two-tiered system used in the Kenya cases, VRWG used in the Kenya cases, VRWG two-tiered system In relation to the the burden on REDRESS, that it would alleviate recognized, like and processing and the Registry in collecting intermediaries victims, applications. application process, VRWG observed that in application process, and of 101 victims, collective applications on behalf received only six a partly collective evaluate the impact that the Court recommended in these proceedings. to participate ability victims’ approach had on 48 48 including the victims stakeholders, the views of all and assess application on the proper determination a when making themselves, to implement. system 34334-war_report 18 Sheet No. 26 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 26 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 27 Side A 12/05/2013 09:53:13

49 49 The 259

While this represents a represents this While 260

ECOMMENDATIONS ECOMMENDATIONS R and accompanying text. text. and accompanying text. and accompanying et seq. et seq. et seq.

261 n. 24 and accompanying text. accompanying 24 and n. n. 72 n. 62 NALYSIS AND The Victim Application Process is Unsustainable and Must and Must is Unsustainable Process Application The Victim A Reformed be Dramatically See supra See supra See supra See supra M K C Y very small sample, it at least raises the possibility that the review possibility that the review the it at least raises sample, very small at the application stage may conducted by the parties and Chambers been have themselves Finally, victims not be particularly meaningful. between and the disparity process the frustrated with the slow pace of status and the level of the difficulties involved in obtaining are successful in by those who experienced ultimately participation that endeavor. 259 260 261 resource strain is particularly acute for defense teams, which are faced teams, defense particularly acute for resource strain is applicant qualifies as a of whether each not only with the question also by Rule 85, but which must under the definition set forth “victim” resources challenging what they decide whether to expend valuable contained in the statements consider false and/or damaging applications. in the victims In addition, five of the seven participating received additional scrutiny from the first two cases who actually were contained in their applications, beyond the information Chamber, status. subsequently stripped of their victim that the entire victim suggests The scope of these problems the strain of the under collapse may scheme participation reformed. significantly it is not individualized application process if by the being contemplated of the reforms Unfortunately, a majority Court – including increasing the funds dedicated to processing victim IV. A. which individuals III.B above, the process by As outlined in Section in proceedings before for purposes of participating obtain victim status and accompanying contemplated in the ICC’s Rules the ICC Court, as regulations, is unsustainable. the Chambers, the As an initial matter, not have the resources to conduct do simply parties, and the Registry pouring into thousands of individual applications reviews of the timely Rule 89. established by to the procedure the Court according 34334-war_report 18 Sheet No. 27 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 27 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 27 Side B 12/05/2013 09:53:13 M K

C Y 263 See

The 262 , or Ntaganda

dered various ways in dered various which a fully

and accompanying text. accompanying and and accompanying text. text. and accompanying et seq. et seq. and accompanying text. accompanying and et seq. et seq.

n. 82 n. 82 n. 130 et seq. et while also allowing for the possibility that some individual that some while also allowing for the possibility , under which victims will have the option of will have the option of , under which victims Gbagbo 264 n. 182 182 n. See supra See supra See supra As noted above, the 2012 ICC report consi ICC 2012 noted above, the As collective process could be implemented, but all of the options included some mass mass included some but all of the options collective process could be implemented, or parties by the review individualized without any of individuals, grouping legal representative. by a common be represented would then who Chambers, supra second is adopting the bifurcated approach used in the Kenya cases, approach second is adopting the bifurcated 262 263 264 victims may apply pursuant to the Rule 89 process in the event they apply pursuant to the Rule 89 process in the event may victims wish to address the Chamber in person. For the reasons discussed the latter option. below, this report recommends Of course, this is not to say that of certain other proposals aspects parties should not be adopted in considered by the Court and outside conjunction with the bifurcated approach. In particular, even with a a robust VPRS sense to maintain system, it makes registration simple where the Court is active, not only presence in the field in situations are aware of the victims for purposes of ensuring potential which essentially encompasses the fully collective approach fully collective the encompasses which essentially registration by way of a simple considered by the ICC’s 2012 report process, altering the stage at and/or process by which individual victim individual victim process by which the stage at and/or altering problems the fundamental – fail to resolve are considered applications to the available increasing the funds For instance, above. outlined amounts of the fact that enormous will not resolve Court and parties and parties Chamber, devoted by the Registry, be will still need to time to will continue proceedings the applications, meaning to processing long for to wait and victims will continue the process be delayed by before Other recognition by the Court. receiving periods of time the or eliminating the application form simplifying options, such as on the applications will only to comment ability of the parties and on the Registry and Chambers, reduce the workload marginally Only two of timing. the problems improve thus also only marginally all of the problems inherent in the options appear squarely address current system. a partly collective approach, first is implementing The as seen in group. individually or as a status either applying for victims 50 50 seen in as form the application simplifying applications, 34334-war_report 18 Sheet No. 27 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 27 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 28 Side A 12/05/2013 09:53:13 51 51

– the system dispenses with – the system 266 n. 274 and accompanying text. n. 274 and accompanying

and accompanying text. text. and accompanying see infra Since the two-tiered approach does not require Since the et seq. et seq.

The Two-Tiered Approach is the Most Efficient of the Approach is the Most Efficient The Two-Tiered Available Options 265 n. 45 n. 45 The ICC Should Adopt the Bifurcated Approach Adopt the Bifurcated Approach The ICC Should Introduced in the Two Kenya Cases as the Process by Kenya Cases as Two Introduced in the in Status for Participation Victim Obtain which Individuals All Cases 1. See supra See supra M K For more on this, For more C Y 265 266 victims to apply to participate in proceedings as long as that to apply to participate in proceedings victims legal representative – through a common takes place participation the case unless the individual is which is necessarily going to be be a handful of victims seeking to be one of what will presumably directly invited to address the Chamber and the Registry to ensure that on victims the burden placed has been and all necessary documentation applications are complete participation scheme, but also to conduct periodic reporting for the reporting for to conduct periodic but also scheme, participation with the interacting experiences regarding the victims’ Chambers Court. be will that the resources as discussed below, Importantly, of victims majority for the vast system a registration saved by adopting the VPRS on such an increased presence by be used to support may the ground. B. enhance would considerably The bifurcated application system by which individuals obtain process of the efficiency and expediency significant burden on the Registry, status at the ICC, lifting a victim also increasing the likelihood that the parties, and the Chambers, and to a legal and concerns views their will be able to express victims a case. representative early in the life of delays seen in the processing of As explained above, the significant and resources of the time applications arises due to the limited received of applications status of the majority Registry, the incomplete by which the parties submit by the Court, and the lengthy process reviews and ultimately Chamber before the comments on applications rules on them. 34334-war_report 18 Sheet No. 28 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 28 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 28 Side B 12/05/2013 09:53:13

M K C Y IGHTS ’R – the same etc. ICTIMS , V . legal common Indeed,

While it is true that this approach approach it is true that this While available at available 267 likely due to the fact that most victims’ likely due to the n. 274 and accompanying text. n. 274 and accompanying

Moreover, the Defense will no longer have to Moreover, the Defense 268 and accompanying text. text. and accompanying text. and accompanying 269 see infra New Victim Participation Regime in Kenya Regime New Victim Participation et seq. et seq. et seq. this increase in resources will be offset by the by the will be offset in resources this increase

6, (Spring 2013), (Spring 6, 270 n. 72 n. 72 n. 71 ROUP

G See supra See supra See supra For more on this, For more Anushka Sehmi, ORKING 267 268 269 270 W significant decrease in the resources required by the Registry, the required resources in the decrease significant system. under the individualized application parties, and the Chambers reduce the substantially may While a partially collective approach of bringing down the number strain on the Court and parties by deprives the Defense of the opportunity to challenge whether of the opportunity to challenge deprives the Defense under Rule 85, experience has of “victim” the status individuals meet of individual by defense teams that the review conducted demonstrated out weeding not necessarily be effective at applications may unqualified applicants, applications are heavily redacted before being transmitted to the to the being transmitted before redacted are heavily applications parties for comment. 52 52 are relieved and Chambers the parties time, the same At submitted. a few be but what will likely of reviewing all the requirements from to who wish those individuals only considering applications, victim in person. address the Court worry about the Chambers receiving potentially false and/or damaging and/or damaging receiving potentially false Chambers worry about the to It is also important applications. contained in victims’ information to respond to have an opportunity still will that the Defense remember victims on behalf of “registered” made each of the legal submissions closing opening and – including course of the proceedings during the of evidence, challenges to the admissibility statements, made respond to submissions to way it has always had an opportunity Rule 89 their status through the who obtained on behalf of victims application process. the bifurcated approach will almost while Finally, certainly require an increase in the funds and resources allocated to to engage in that they are able to ensure common legal representatives are they and assessing the victims” of registering the “process representing, representatives will likely need not only additional financial resources, but also resources, but only additional financial not representatives will likely need those staff compensate funds to well as the in the field, as additional staff members members. http://www.vrwg.org/downloads/130617EnglishVersion.pdf 34334-war_report 18 Sheet No. 28 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 28 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 29 Side A 12/05/2013 09:53:13 53 53

case, two case, Lubanga Gbagbo case – and accompanying accompanying and et seq. et seq. n. 42

At the same time, the partly the partly time, At the same

271 See supra case, and five victims victims five and case, Ngudjolo & Katanga case. case.

273 and accompanying text. accompanying and text. accompanying and Bemba Bemba While this is theoretically a possibility, in the first is theoretically this While et seq. et seq. et seq. 274 n. 270. and there is nothing inherent in the registration system and there is nothing inherent in n. 128 n. 100 text. 258 and accompanying n. 275 Under the partly collective approach, the Registry will also approach, collective Under the partly supra

272 See supra See supra See supra See supra M K Sehmi, Sehmi, in the personally appeared victims three above, discussed As C Y 271 272 273 274 275 have to expend resources weeding out duplicate applications in have to expend resources weeding as both part of a group and applies where an individual instances By contrast, groups. or seeks to participate in multiple individually, outsources the process of “effectively approach the registration of the cases to the legal the victims registering and assessing representative’s team.” above, the VRWG has questionedIt should be noted that, as detailed as the fact prove more efficient, will in approach whether a bifurcated to only will seek not victim individual possibility exists that every in person before the Chamber, register, but also to apply to participate set currently the application procedure which will require adherence to forth in Rule 89. proportion of the participating small three trials at the ICC, only a very appear before for leave to personally applied to the Chamber victims the Court, collective approach will place additional burdens on the Registry, who on the Registry, burdens will place additional approach collective field to identify presence in the an increased will need to maintain of application and assist in the completion of victims potential groups forms. individual applications, these actors would have to continue to devote have to continue actors would applications, these individual submitted, that are applications individual to those and resources time applications the ensuring in involved and resources time the including and a decision is redacted, and reviewed, translated, are complete, in the one case in which the partly rendered. Notably, ultimately far – the thus attempted has been approach collective in the who applied to participate victims 117 out of the 210 application, individual applied via an proceedings confirmation in to occur will continue review suggesting that individualized in future cases. numbers significant appeared personally in the text. victims appeared personally in the personally appeared victims 34334-war_report 18 Sheet No. 29 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 29 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 29 Side B 12/05/2013 09:53:13 M K

C Y

Bemba case, and a/0511/08, and a/0511/08,

t Evidence and the Ultimately, five of Ultimately, 277 , Decision on the Supplemented , Second Order Regarding the Regarding Order , Second a/0542/08, a/0394/08 a/0542/08,

ber III, 24 May 2012). III, ber resentatives of Victims to Presen of Victims resentatives Even though each of these seventeen individuals individuals of these seventeen Even though each to appear personally to eight. 276 Again, there is nothing inherent in the registration Again, there is nothing inherent , Decision on the Gombo, Decision Bemba v. Jean-Pierre The Prosecutor 278 . ¶¶ 9-12. Id Gombo Bemba v. Jean-Pierre Prosecutor The See The Prosecutor v. Jean-Pierre Bemba Gombo Bemba v. Jean-Pierre Prosecutor The ICC-01/05-01/08-2220, ¶ 7 (Trial ICC-01/05-01/08-2220, Cham 277 278 system that would prevent a Chamber from adopting the same adopting the same from that would prevent a Chamber system of applications from by the number approach if it feels overwhelmed under the bifurcated approach. wishing to participate in person victim approach is the only feasible In light of the foregoing, the bifurcated the that will effectively reform option available to the Court benefitsapplication process, resulting in parties. to all interested 276 had already been approved through the Rule 89 application process, approved through the Rule 89 application had already been such a large that it would be excessive to consider found the Chamber before the for purposes of personal participation of victims number of victims number maximum the limited and it therefore Chamber permitted to apply to personally participate in the right the were granted the eight proceedings. 54 54 in the victims just because would increase this number that suggests 89 process. the Rule than applying through registered rather the case or there is a reasonable an issue, does become that this In the event could request that the common it will, a Chamber that basis to expect wishing to review of victims conduct its own legal representative and the views best represent that to select those participate personally application the and limit of victims, number concerns of the largest in the Notably, this occurred victims. procedure to those in which the legal representatives originally requested that the that the requested representatives originally in which the legal to appear personally victims a total of seventeen permit Chamber before the Court. Presentation of Views and Concerns by Victim by Concerns and of Views Presentation Applications of the Legal Representatives of Victims to Present Evidence and the to Present Representatives of Victims Applications of the Legal Applications by the Legal Rep 22 III, (Trial Chamber ¶ 55 ICC-01/05-01/08-2138, Victims, of and Concerns Views February 2012); Views and Concerns of Victims, ICC-01/05-01/08-2027, ¶ 10 (Trial Chamber III, 21 III, (Trial Chamber ¶ 10 ICC-01/05-01/08-2027, Victims, of and Concerns Views 2011). December 34334-war_report 18 Sheet No. 29 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 29 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 30 Side A 12/05/2013 09:53:13 55 55 280

, at 7 , at

and accompanying accompanying and

et seq. et seq. that “no study has been “no study that

n. 283 283 n. case indicates that they favor the favor that they indicates case the victims’ experience experience improves the victims’

See infra See infra Furthermore, as discussed below, feedback below, feedback as discussed Furthermore,

Id. Ruto & Sang Sang & Ruto e report goes on note to

and accompanying text. text. and accompanying Modes ofModes Participation and Legal Representation Hence, in practice, the “views and concerns” of Hence, in practice, et seq. et seq. 279

The Two-Tiered Approach Will Likely Not Undermine Will Likely Not Approach The Two-Tiered Victim Participation of the Meaningfulness

n. 42 n. 42 2. See supra See supra M K A recent report suggests that “the fact that no organ… is involved in determining determining in is involved organ… no “the fact that that suggests report recent A C Y conducted in this regard and it is not possible to assert whether that is a factor that that factor is a that whether assert to possible it is not and regard this conducted in and their process the in participate to willingness the victims’ influence may participation.” of their experience from victims participating in the the participating in victims from text. bifurcated approach, and there is no indication that they are frustrated with the lack frustrated with are that they is no indication there and bifurcated approach, their applications. of of judicial review victims contemplated in Article 68(3) are communicated to the Court are communicated to the in Article 68(3) contemplated victims lawyer connects that Whether a lawyer. through exclusively almost a lengthy and have completed with his or her clients after they the Court, final approval from frustrating application process requiring act of information upon a simple or after receiving their contact does not lawyers’ change the nature of the registration by the victims, access the Court. in which the victims representation or the manner (November 2013). However, th (November the admissibility of victims’ requests for registration is problematic,” observing problematic,” is for registration requests of victims’ the admissibility and that judges reach the stories their that it be important may victims, “[f]or some by the Court.” made be status on their victims’ determination an independent Frontières, Avocats Sans If anything, the registration process If anything, the registration process 279 280 with the Court because it does away with the “apparent mismatch” mismatch” because it does away with the “apparent with the Court between the application process and the REDRESS identified by which has led to of participation, mode ultimate victim’s While, as discussed in Section IV.C below, adopting the Kenya IV.C below, adopting in Section While, as discussed the ICC Rules and require changes to Rule 89 of approach will likely participation the nature of the victim corresponding regulations, As described undermined. be will not under Article 68(3) regime a handful of for exception of the possibility above, with the single personally to give before the Trial Chambers to appear victims and concerns – a possibility that express their views evidence or approach – all victim unchanged under the bifurcated remains legal ICC takes place through common participation at the representatives. 34334-war_report 18 Sheet No. 30 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 30 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 30 Side B 12/05/2013 09:53:13

M K

C Y The case

, Periodic , Periodic 282 , Second Periodic Report Periodic , Second Similarly, in the in Similarly,

r V, 25 March 2013). r V, 23 January 2013); 284

In addition, the registration the registration In addition,

281 case, they did not cite the bifurcated approach as a bifurcated approach did not cite the case, they The ProsecutorSamoei v. William Rutoand Joshua -01/11-661-Anx (Trial Chambe -01/11-566-Anx (Trial Chambe

and accompanying text. text. and accompanying

Ruto & Sang & Ruto et seq. et seq.

, Periodic Report on the General Situation of Victims in The Victims Situation of General Periodic Report on the , n. 70 and accompanying text. accompanying 70 and n. n. 10 For example, the first report highlights that, in the Eldoret that, in the Eldoret highlights the first report For example, , Common Legal Representative for Victims’ Comprehensive Report on Report Comprehensive for Victims’ Legal Representative , Common

283 Ruto & Sang & Ruto See supra See supra See supra Samoei v. William The Prosecutor Ruto and Joshua Arap Sang See 284 confirms that victims have been satisfied with the registration option have been satisfied that victims confirms thus far. were in favor of the of the participants region, “[t]he majority because they considered it of participation of victims proposed system process and because application than the individual less cumbersome legal reliable for the [common they thought that it would be more in person.” representative] to verify his clients 281 282 283 Importantly, reporting by the VPRS to Trial Chamber V on the by the VPRS to Trial Chamber reporting Importantly, & Sang in the Ruto of the bifurcated process implementation 56 56 of victims. on the part disappointment process will ensure that victims are recognized by the Court at an by the are recognized will ensure that victims process have they will turn means which in in proceedings, earlier stage to relating information and their legal representative quicker access to their views and as well as the opportunity to express the proceedings, above, stage. As explained at an earlier concerns to the Chamber respect, receive information are treated with ensuring that victims and are given in which they are interested, proceedings the regarding Court are among concerns to the present views and the opportunity to participation scheme. the ICC’s victim the key goals of Notably, although ninety-three victims recently expressed a desire to withdraw from withdraw to desire a recently expressed victims ninety-three although Notably, participation in the about the likely Instead, they complained withdrawal. for their reason with frustration expressed Others process. reparations of a collective implementation or were of the accused, believe in the culpability not did proceedings, the pace of the about their security. concerned Report on the General Situation of Victims in The Prosecutor v. William Samoei WilliamSamoei Prosecutor v. in The Victims of Situation General Report on the Ruto and JoshuaSangArap and Activities the of the VPRS and the Common Legal Representative, ICC-01/09 ProsecutorWilliam Samoei v. Ruto and JoshuaSangArap Ruto and Samoei William Prosecutor v. in The Victims of Situation General on the Legal Common and the VPRS Activities of the Arap Sang and the Joshua Representative, ICC-01/09 Arap Sang the Withdrawal of Victims for the Turbo Area by Letter Dated 5 June 2013, ICC- 2013, for the Turbo Area by Letter Dated 5 June Withdrawalthe of Victims 2013). V(A), 5 September Chamber (Trial 12 ¶¶ 5, 01/09-01/11-896-Corr-Red, 34334-war_report 18 Sheet No. 30 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 30 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 31 Side A 12/05/2013 09:53:13

57 57

, Second Periodic It is also notable It is also notable /11-980-AnxA, ¶¶ 3-6

286 are able to present their present are able to n. 283, ¶¶ 3-5, 8. Of course, 8. Of 3-5, n. 283, ¶¶ n. 283, ¶ 11(b)(i) (Trial n. 283, ¶ , Second Periodic Report on the Report Periodic , Second supra supra supra supra See, e.g., Ruto & Sang & Ruto e.g., See,

The ProsecutorRuto Samoei v. William and The Prosecutor v. William Samoei Ruto and and Samoei Ruto William v. Prosecutor The resentative, ICC-01/09-01 Ruto & Sang & Ruto

gh which participating victims

, ¶¶ 11-12; 11-12; ¶¶ , n. 283, ¶¶ 3-5; n. 283, ¶¶ 3-5;

and in Turbo/Lugari, a “majority of participants were of participants were a “majority and in Turbo/Lugari, , Fifth Periodic Report on the General Situation of Victims in The Victims of Situation General the on Periodic Report , Fifth , Fourth Periodic Report on the General Situation of Victims in Victims of onSituation , Fourth Periodic Report the General 285

supra supra

, Second Periodic Report on the General Situation of Victims in The

See, e.g., id.

¶ 11(a)(i). 11(c)(i). ¶ into developed have themselves reports periodic the Interestingly, n. 283, ¶¶ 4-5. Others expressed that they were suffering from poverty from suffering they were that expressed Others 283, ¶¶ 4-5. n.

Id. Id. M K C Y this is not to imply that the Chamber has theaddress suchbut Chamber authority to concerns, that the this is not to imply victims is providing scheme participation victim the behind key purpose again, a contribute reports VPRS Court, and the the views to their to express avenue with an goal. to this Prosecutor v. William Samoei Ruto and Joshua Arap Sang and the Activities of the of the Ruto and Joshua Arap Sang and the Activities Samoei William v. Prosecutor Representative, Legal Common the VPRS and the VPRS and the Common Legal Representative, ICC-01/09-01/11-825-AnxA, ¶¶ ICC-01/09-01/11-825-AnxA, Representative, Legal Common the the VPRS and 2013); 23 July V, (Trial Chamber 3-4 Joshua Arap Sang Prosecutor v. William Samoei Ruto and Joshua Arap Sang and the Activities of the of the Ruto and Joshua Arap Sang and the Activities Samoei William v. Prosecutor Legal Rep Common VPRS and the not was rape VPRS why the asked Others 2013). September 23 V, (Trial Chamber possible. if a later stage at it be added that requested and proceedings, in the charged Sang & Ruto an additional avenue throu views and concerns to the Chamber, alongside any submissions made by the made submissions any alongside Chamber, to the and concerns views victims reports, of the For instance, representative. the majority legal in common with after cooperating feared reprisals and security about their concerns expressed the Court. WilliamProsecutorSamoei v. in The Victims of Situation General Report on the Ruto and JoshuaSangArap and Activities the of the VPRS and the Common Legal Representative, Joshua Arap Sang Activities of Arap Sang and the Joshua William and Ruto Samoei Prosecutor v. The General Situation of Victims in The Prosecutor v. William Samoei Ruto and Joshua Ruto and Joshua WilliamSamoei Prosecutor v. in The Victims of Situation General and the Common Legal Representative, VPRS Activities of the Arap Sang and the supra not was government and the their homes from forcibly displaced were because they this matter. in to aid them anything doing Chamber V, 23 January 2013). V, 23 January Chamber Prosecutor v. William Samoei Ruto and Joshua Arap Sang and the Activities of the of the and Joshua Arap Sang and the Activities Ruto Samoei William v. Prosecutor Representative, Legal Common the VPRS and 285 286 Nakuru region, “[p]articipants thought that generally thought that region, “[p]articipants Nakuru the [registration] the than victims and for would for intermediaries be easier system pre-trial in the process used application more extensive proceedings,” because… the individual of participation system in favour of the new was viewed as complicated.” application system that, despite the increased burden placed on the common legal placed on the common increased burden that, despite the and non- status of both registered the victim assess representative to 34334-war_report 18 Sheet No. 31 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 31 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 31 Side B 12/05/2013 09:53:13 M K

C Y

, Order on 287 Hence, even though the 289

Katanga & Ngudjolo case, which Katanga & Ngudjolo

r II, 22 July 2009). II, 22 July r representation.” However, this is actually a criticism of the manner in of the manner a criticism actually However, this is n. 193 and accompanying text. 193 and accompanying n. 288 See supra See supra Ngudjolo Chui and Mathieu Katanga Germain v. Prosecutor The See Remarks by Fergal Gaynor presented at an event of the Twelfth Session of the Session Twelfth of the event at an Gaynor presented by Fergal Remarks the Organisation of Common Legal Representation of Victims, ICC-01/04-01/07­ Victims, of Legal Representation of Common the Organisation ¶¶ 2-4 (Trial Chambe 1328, Assembly of States Parties on 22 November 2013, entitled“Effective and November Parties on 22 States of Assembly 287 288 289 which victims are grouped for purposes of common legal are grouped for purposes which victims individuals obtain than the process by which representation, rather Indeed, in the status. victim all individuals granted victim involved charges of sexual violence, one of two groups: placed in of participation were status for purposes of all child soldiers and the other comprised of former one comprised child soldiers. other than former victims As recognized in the ICC’s 2012 report on potential changes to the the ICC’s 2012 report As recognized in of the registration process one potential criticism application process, in the registering all victims the Kenya cases, in which as applied in is legal representative, to a single common case have been assigned may find it of sexual violence, such as victims that certain individuals, or for fear of stigmatization experiences their voice more difficult to retaliation. 58 58 in the Kenyatta representing victims the lawyer victims, registered approach. for the bifurcated expressed his support case has case followed the individualized application Katanga & Ngudjolo case followed the individualized process laid out in Rule 89, any victims who weresoldiers, not child would be placed in the general but who suffered sexual violence, not have been this may of other types of harm. While group of victims the result of the application issue was not the correct approach, the process. lines, while it happens to be the case that the Along the same could the Kenya cases that all victims each of in determined Chambers be nothing preventing a would participate in a single group, there from appointing multiple approach bifurcated following the Chamber and ordering the VPRS to establish legal representatives for victims according to the harm suffered various databases of registered victims vigilant remain must other criteria. Of course, the Chambers or some are carrying out their in ensuring that appointed legal representatives meaningful participation of victims before the ICC: The link between application, application, between link before the ICC: The victims of participation meaningful participation and 34334-war_report 18 Sheet No. 31 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 31 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 32 Side A 12/05/2013 09:53:13

, 59 59 , Request to n. 270. Yet, it may Yet, it may supra supra 291 available at available Comment on the Victims Decision of Trial Chamber V Trial Chamber of Victims Decision on the Comment

and accompanying text. accompanying and et seq. et seq. 290 n. 252

The Prosecutor v. WilliamSang Prosecutor v. Arap The Samoei Ruto and Joshua

; Tatiana Batchvarova, Tatiana Batchvarova, See supra See supra See M K C Y 01/11-469, ¶ 16(a) (Trial Chamber V, 6 November 2012); Sehmi, 2012); Sehmi, V, 6 November (Trial Chamber ¶ 16(a) 01/11-469, equally be argued that the views of victims who appeared in person in that the views of victims equally be argued have been given more by the Court may tried the first three cases who of the thousands of victims weight than the views and concerns through a common legal representative, even represented were merely through the Rule 89 process. obtained their status though these victims suggest this hypothetical In other words, there is nothing to the registration process, as opposed results from “hierarchy” of victims proportion of participating minute a very to the reality that only Court in address the to actually opportunity will be given the victims person. victim Regardless of the process by which individuals obtain case to consider the over the status, it is up to the Chamber presiding as presented by their legal views and concerns of victims representative. at the ICC is to regime participation victim the goal of the Ultimately, having by restorative justice are able to experience victims ensure that the ICC the Court. In practice, by their views and concerns considered by which these views and a system have implemented Chambers Court with the of instances, shared concerns are, in the vast majority or not these legal representatives. Whether through common 290 291 mandate in an effective manner and that victims have been organized been organized have and that victims in an effective manner mandate of groups. appropriate number into the endorse achieve this, we To set up that the Chambers noted above, recommendation, REDRESS’s legal with common system” a “two way communication representatives. registered approach is that, because of the bifurcated Another criticism of their credibility approval, the of stamp no judicial receive victims create a and this could be undermined, might views and concerns weight to grant more whereby the Chamber will hierarchy of statuses who participate in person. of victims the submissions ­ http://humanrightsdoctorate.blogspot.com/2012/10/comment-on-victims-decision-of trial.html PhD Studies in Human Rights Blog (18 October 2012), Blog (18 October Rights in Human PhD Studies ICC-01/09­ at the Trial Phase, of Legal Representation and Concerns Views Present 34334-war_report 18 Sheet No. 32 Side A 12/05/2013 09:53:13 12/05/2013 Side A No. 32 18 Sheet 34334-war_report 34334-war_report 18 Sheet No. 32 Side B 12/05/2013 09:53:13 M K

C Y 293 294

Trial Chamber V implemented the bifurcated the bifurcated V implemented Trial Chamber and accompanying text. accompanying and and accompanying text. text. and accompanying 292 n. 22, R. 89. n. et seq. et seq. et seq. et seq.

supra n. 145 n. 26 Rule 89 and Related Regulations Should Be Amended to Regulations Should Rule 89 and Related Provide a Legal Basis for the Bifurcated Approach Provide a Legal Basis for the Bifurcated See supra See supra See supra ICC Rules, 292 293 294 approach in the Kenya cases despite of Rule 89, the plain language to each participant requires that a procedure sets out which specifically and provides that the parties an application to the Registry, submit to assess the credibility is obligated, and the Chamber have the right, status. granted victim an applicant is of these applications before that Rule 89 approach by finding V justified its While Trial Chamber and the latter prevails, this reasoning is in conflict with Article 68(3), Rule 89. disregards the plain language of that Hence we recommend legal basis for that would provide a in a manner Rule 89 be amended the bifurcated approach. consistency, we recommend that To ensure of the Court and Regulations the related provisions of the Regulations II.B above also be amended. of the Registry cited in Section 60 60 they the victims concerns of views and learn of the representatives Court, concerns to the those views and to transmit order in represent, process and complicated a lengthy completed have victims after the whether or by a Chamber, status approval of their resulting in formal through a registration gain access to the victims the representatives on the overall participation have any impact process should not system loyally adhering to a flawed application By contrast, scheme. than two years to past to wait more in the that has forced victims victims many cases prevent many in status may gain victim simply and in a timely concerns and views their communicating from manner. meaningful C. As explained above, 34334-war_report 18 Sheet No. 32 Side B 12/05/2013 09:53:13 12/05/2013 Side B No. 32 18 Sheet 34334-war_report war-report18_cv_war-report18_cv 12/5/2013 10:28 AM Page 3

ACKNOWLEDGMENTS

Susana SáCouto, War Crimes Research Office (WCRO) Director, and Katherine Cleary ORDERING INFORMATION Thompson, WCRO Assistant Director, prepared this report. The WCRO also received research assistance from Washington College of Law (WCL) J.D. students Justin Miller and Merve All our reports are available in PDF online at: Stolzman, as well as additional assistance from WCL J.D. Students Sophia Niazi, Kalli Wells, Melissa Bellitto and WCRO Staff Assistant Adam Deutsch. We are grateful for the generous http://www.wcl.american.edu/warcrimes/icc/icc_reports.cfm. support of the Open Society Institute, the Finnish Ministry of Foreign Affairs, the Swiss Federal Department of Foreign Affairs and the WCL, without which this report would not have been possible. We also wish to thank all those who gave generously of their time to this project, Inquiries about obtaining print copies of reports may be sent to: including Robert Goldman, Commissioner and Member of the Executive Committee of the International Commission of Jurists (ICJ) and WCL Professor, and the members of the WCRO’s War Crimes Research Office ICC Advisory Committee: Mary McGowan Davis, former Acting New York State Supreme Washington College of Law Court Judge and Member of the International Judicial Academy and of the American 4801 Massachusetts Avenue, NW Association for the ICJ; Unity Dow, Commissioner of the ICJ, Member of the ICJ’s Executive Washington, DC 20016 Committee, and former Judge of the Botswana High Court; Siri Frigaard, Chief Public Prosecutor for the Norwegian National Authority for Prosecution of Organized and Other Tel.: 202 274-4067 Serious Crimes and former Deputy General Prosecutor for Serious Crimes in East Timor; Justice Fax: 202 274-4458 Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR); Chief Justice Phillip Rapoza of the Massachusetts Appeals Court and Reserve Judge of the Extraordinary Chambers in the Courts E-mail: [email protected] of Cambodia (ECCC) Supreme Court Chamber and former Chief International Judge serving as Website: www.wcl.american.edu/warcrimes Coordinator of the Special Panels for Serious Crimes in East Timor; and Juan Mendez, UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and former Special Advisor on Prevention to the Prosecutor of the International Criminal Court.

ABOUT THE WAR CRIMES RESEARCH OFFICE The core mandate of the WCRO is to promote the development and enforcement of international criminal and humanitarian law, primarily through the provision of specialized legal assistance to international criminal courts and tribunals. The Office was established by the Washington College of Law in 1995 in response to a request for assistance from the Prosecutor of the ICTY and ICTR, established by the United Nations Security Council in 1993 and 1994 respectively. Since then, several new internationalized or “hybrid” war crimes tribunals have been established under the auspices or with the support of the United Nations, each raising novel legal issues. This, in turn, has generated growing demands for the expert assistance of the WCRO. As a result, in addition to the ICTY and ICTR, the WCRO has provided in-depth research support to the Special Panels for Serious Crimes in East Timor, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. It has also provided similar assistance to mechanisms and institutions involved in accountability efforts for serious international crimes at the domestic level, including the War Crimes Section of the Court of Bosnia and Herzegovina, Argentina’s Assistance Unit for Cases of Human Rights Violations Committed under State Terrorism, Peru’s Instituto de Defensa Legal (dedicated to representing victims in serious crimes cases before Peru’s National Criminal Court), and the U.S. Department of State’s Office of Global Criminal Justice. The WCRO has also conducted legal research projects on behalf of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). However, in view of how significant the impact of the Court’s early decisions are likely to be on the ICC’s future and in recognition of the urgent need for analytical critique at early stages of the Court’s development, in 2007 the WCRO launched a new initiative, the ICC Legal Analysis and Education Project, aimed at producing public, impartial, legal analyses of critical issues raised by the Court’s early decisions. With this initiative, the WCRO took on a new role in relation to the ICC. While past projects were carried out in support of the OTP, the WCRO is committed to analyzing and commenting on the ICC’s early activities in an impartial and independent manner. In order to avoid any conflict of interest, the WCRO did not engage in legal research for any organ of the ICC while producing this report, nor will the WCRO conduct research for any organ of the ICC prior to the conclusion of the ICC Legal Analysis and Education Project. Additionally, in order to ensure the objectivity of its analyses, the WCRO created an Advisory Committee comprised of the experts in international criminal and humanitarian law named in the acknowledgments above. war-report18_cv_war-report18_cv 12/5/2013 10:28 AM Page 2

OBTAINING VICTIM STATUS FOR PURPOSES OF PARTICIPATING IN PROCEEDINGS AT THE INTERNATIONAL CRIMINAL COURT

One of the most lauded features of the permanent International Criminal Court (ICC) is its victim participation scheme, which allows individuals harmed by the crimes being prosecuted by the Court to share their views and concerns in proceedings against the persons allegedly responsible. To date, more than 12,000 individuals have applied to participate in proceedings before the ICC, and well over 5,000 have successfully obtained victim status. However, the process established under the documents governing the ICC by which individuals apply for and receive permission to participate – which involves each individual victim submitting a detailed OBTAINING VICTIM STATUS FOR PURPOSES OF form with supporting documentation to the Court, observations on each application by the parties, and an individualized decision on the application by a Chamber of the Court – has proved PARTICIPATING IN PROCEEDINGS AT THE inefficient for the applicants, the parties, and the Court. At the same time, the process has been frustrating for victims, as it can take more than two years for applicants to receive a decision on INTERNATIONAL CRIMINAL COURT their status, meaning victims are often unable to share their views and concerns with the Court during key proceedings in the case. This frustration is compounded by the fact that, for the vast majority of victims, participation takes place through a common legal representative, appointed by the Court to represent significant numbers of victims together, raising the question as to why individual victims were required to endure such a lengthy and detailed application process.

Recognizing that the current system is both unsustainable and undesirable, various Chambers of the Court have been exploring alternative means by which individuals may obtain victim status in the cases before them, and the Court’s Assembly of States Parties (ASP) is considering reforming the system courtwide. This report examines the different options that have been tried and/or that are under consideration by the ASP and ultimately recommends changes to the victim application system aimed at saving valuable time and resources for applicants, the Registry, the parties, and the Chambers. Importantly, the recommended changes are unlikely to undermine the meaningfulness of victim participation, and in fact will allow victims to gain recognition and the right to representation much more quickly than under the current system, meaning the recommended AR RIMES ESEARCH FFICE approach is likely to make participation more meaningful for a large number of victims. W C R O International Criminal Court Legal Analysis and Education Project December 2013

WAR CRIMES RESEARCH OFFICE Washington College of Law 4801 Massachusetts Avenue, NW Washington, DC 20016

www.wcl.american.edu/warcrimes