©Pierre-Yves Ginet. ©Pierre-Yves VICTIMS AT THE CENTER OF JUSTICE From 1998 to 2018: Reflections on the Promises and the Reality of Victim Participation at the ICC December 2018 / N° 730a table OF COnTEnts Introduction 4 A Court for Victims? by Gilbert Bitti 6 Part I: Victims’ Interaction with the ICC at the Preliminary Examination Phase Victim participation in the pre-situation phase: insights from the Pre-Trial Chamber’s Rohingya decision by Wayne Jordash QC and Uzay Yasar Aysev 13 Victims’ Representations in Afghanistan: Unprecedented Challenges and Lessons Learned by Kyra Wigard, Guissou Jahangiri, Zia Moballegh 22 The Challenges for Legal Representation of Victims of U.S. Torture on the Territory of Afghanistan and other States Parties at the International Criminal Court by Katherine Gallagher 29 Victims of political violence in Burundi: What participation before the ICC? by Lambert Nigarura 38 Beyond Victim Participation during Proceedings: Outreach and Information Activities during Preliminary Examination in Palestine by Nada Kiswanson 43 Part II: Reflections on Victims’ Participation Modalities: Strengths, Weaknesses Victims’ Participation in the Ongwen Case: Strengths, Weaknesses and Lessons Learned by Joseph A. Manoba and Francisco Cox 48 The Perfect Storm: Obstruction, Intimidation and Inaction in the Kenya Situation by Fergal Gaynor and Anushka Sehmi 55 The ICC Investigation into the Situation of Georgia: lack of victims’ involvement and related challenges by Nino Tsagareishvili 64 Part III: Reflections on Victims’ Participation in the Reparations Processes Retributive and restorative justice for victims: considerations on the Lubanga proceedings before the ICC by Paolina Massidda 69 Victims’ participation in reparations proceedings in the Bemba case by Me Douzima, Evelyne Ombeni and Lydia El Halw 75 Valuing victim participation: why we need better systems to evaluate victims’ participation at the ICC by Megan Hirst 81 Conclusion 88 Introduction The Statute of the International Criminal Court (“ICC”) grants victims the right to participate in proceedings where their personal interest is affected, remedying their earlier exclusion from international judicial proceedings. This feature of victim participation is considered one of the most innovative features of the ICC Statute as it is the first to grant victims the right to participate in international criminal proceeding1. Under this novel feature, victims enjoy the right to be heard and considered, at stages of the proceedings determined to be appropriate, and the Court has the duty to effectively enable them to exercise this right. Among other relevant provisions, Article 68(3) of the ICC Statute enshrines victims rights to participate at the ICC: “Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.” 2 In recent years, the participation of victims has become an area of focus both within and outside the Court. Concerns were raised by various stakeholders over whether this unique feature of the ICC Statute is implemented in a meaningful manner, whether some experiences of victim participation have become reduced to being symbolic, and whether the ICC is making the most of victim participation3. If appropriately implemented, victim participation can provide an essential link between the Court in The Hague and the national level, be a first step in the reparation or restorative justice process, and give victims the right to participate in the fight against impunity4. As expressed by the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence: “Victim participation implies the recognition of victims as rights holders, which is tremendously empowering for them and others[..]. Such participation manifests and strengthens the right to the truth [..]. Formalising methods of victim participation represents an acknowledgement that victims have played a crucial role not only in initiating procedures, but in collecting, sharing and preserving evidence... Victims’ participation increases the likelihood that the needs of victims will be taken seriously in processes that have had a long tradition of treating them solely as sources of information, as “mere” witnesses...” 5 FIDH has monitored the implementation of victims’ rights before the International Criminal Court since the entry into force of the ICC Statute. But what was envisioned in Rome under the system of victim participation at the ICC continues to be tested. With the growing number of victims seeking to participate in the ICC, different judicial approaches on modalities for 1. See in particular articles 15(1), (2) and (6), 19(3), 68 (3), 53 and 75 of the ICC Statute; Rules 49, 104, and 92(1) and (2) of the ICC Rules on Evidence and Procedure. 2. Rome Statute of the International Criminal Court, Art. 68(3), July 1, 2002, 2187 U.N.T.S. 90 3. See M. Pena and G. Carayon, International Journal of Transitional Justice, Volume 7, Issue 3, Is the ICC Making the Most of Victim Participation?, (2013) 4. ICC Pre-Trial Chamber “The Statute [of the ICC] grants victims an independent voice and role in proceedings before the Court [...] The Chamber considers that article 68 (3) of the Statute also gives victims the right to participate in the fight against impunity[…]”, (2006). 5. Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff UN Doc. A/HRC/27/56, (2014), para.94 4 FIDH - VICTIMS AT THE CEnTER OF JUSTICE From 1998 to 2018: Reflections on the Promises and the Reality of Victim Participation at the ICC participation have been explored and the situation is constantly evolving. Identifying modalities for effective victim participation without compromising the efficiency of the proceedings and the rights of other parties is essential, but it must not risk reducing victim participation in proceedings as merely symbolic. Unfortunately, FIDH has noted with growing concern a series of misconceptions in relation to the purpose and exercise of victims’ rights in judicial proceedings6. Twenty years after the adoption of the ICC Statute, FIDH embarked on a consultation project with those representing or supporting victims access to and/or participation at the ICC on achievements, concerns and challenges to meaningful victim participation at the ICC. 6. See in particular FIDH Reports: Five myths about victim participation in ICC proceedings, December 2014; Enhancing victims’ rights before the ICC, A View from Situation Countries on Victims ́ Rights at the International Criminal Court, November 2013; Cutting the weakest link, Budget Discussions and their Impact on Victims’Right to Participate in the Proceedings, October 2012; Victims’ Rights Before the International Criminal Court : A Guide for Victims, their Legal Representatives and NGOs, April 2007. VICTIMS AT THE CEnTER OF JUSTICE From 1998 to 2018: Reflections on the Promises and the Reality of Victim Participation at the ICC - FIDH 5 A Court for Victims? In memory of David, Boulissa and Myriam by Gilbert Bitti7 Victims of crime are missing from the history of international criminal justice. Only in the role of the witness before the tribunals of Nuremberg, Tokyo, and those created decades later by the United Nations Security Council for the situations arisen in former Yugoslavia and Rwanda, have victims been afforded a place in judicial procedure. How can we explain that procedures for these crimes involving thousands or even millions of victims exclude them at the same time? Is it a problem of legal culture? Is it the fear of what they have to say or their criticism? Is it the fear of the influence they might have on these procedures? Or is the explanation to be found in the very nature of the crimes that are often committed by the most powerful among us? The International Criminal Court (hereinafter, the Court or the ICC) has done better than the international criminal tribunals that preceded it by enshrining the right of victims to participate in the proceedings, at once in a general manner in application of Article 68(3) of the Rome Statute (hereinafter, the Statute), and in particular instances in application of Articles 15(3) and 19(3) of the Statute.8 From a utilitarian view of victims before these international criminal tribunals, i.e. victims being instruments in the hands of the Prosecutor to prove his or her cases, we have moved to a more humanitarian regard for the victims in which they are considered subjects of law who must be protected, assisted, and heard and who must obtain compensation for damages suffered. Bitti family picture - 1937 Non-governmental organisations (hereinafter, NGOs) have played a fundamental role in ensuring that international criminal justice finally takes victims into account; at the beginning of the Rome Conference, Representative Fiona McKay of the NGO Victims’ Rights Working Group, declared on 17 June 1998: “Punishing criminals is not enough. There can be no justice until justice is done to the victims. And to deliver justice to the victims, the International Criminal Court must have the capacity to respond to their rights and needs.” 7. Former member of the French delegation during the negotiations on the Rome Statute within the Ad Hoc Committee (1995), the Preparatory Committee (1996-1998), then at the Rome Conference (15 June - 17 July 1998), as well as in the negotiations on the Rules of Procedure and Evidence in the Preparatory Commission (1999-2000); currently Senior Legal Adviser of the Pre-Trial Division of the International Criminal Court. Opinions expressed herein must be considered to belong to their author and do not reflect the views of the French Government or the International Criminal Court.