Registry officials at the ICC have warned judges that they can’t
process the paperwork to enable victims to take part in crucial Court hearings, because they
simply have too few staff.
Earlier this month (4th July), Trial Chamber I ruled that hundreds of pending applications
from victims wanting to participate in the Callixte Mbarushimana confirmation of charges
hearing would be left out, because the Registry could not meet the deadline to process the
applications that had been set by the Court.
This decision will deny 470 victims who potentially qualify to participate in the case, a voice
during the confirmation of charges hearing, due to take place on 17 August 2011. This is
significant for victims who often perceive the Court as a remote institution and see the
confirmation of charges hearing as the first opportunity for their lawyers to make a
statement on their behalf.
The statement also offers the following comment:
“Victims are paying the price for the failure to properly resource the Registry. Victim participation is one of the most innovative features of the ICC, designed to involve in the justice process those most affected by crimes. Now, victims are finally coming forward to engage with the Court but the Court is not ready or capable to deal with them. If this resource issue is not resolved, victim participation will become a meaningless paper promise,” says Carla Ferstman, REDRESS’ Director.
The statement continued:
Mbarushimana is not the only case affected. In the Ruto case (Kenya) the Registry indicated
that it would only be able to process 400 out of 1800 applications. In the Muthaura case
(Kenya), the Registry also stressed that it would not be able to process all of the applications
from victims. So far, almost 2,000 victims are affected but the problem is likely to worsen in
the resource issue is not addressed.
The Court is finalising its Budget for 2012 which will soon be discussed with States that are
party to the Rome Statute, who are expected to pay. Despite the fact that the Court is now
working on many new investigations, including from Libya, Cote D’Ivoire and Kenya, some
States have been insisting on a ‘zero-growth’ budget from the previous year.
“States have recognised the importance of the Court by continuing to refer it new cases, but
have not matched this with adequate financial support. While recognising the financial
constraints on many States, why create a Court then prevent it from fulfilling its mandate?
Excluding victims from being involved in Court hearings is just another way to say they don’t
matter. This is the wrong signal to send to victims and affected communities.”
This is not the first time the court’s commitment to victim’s issues has been questioned. Previously, in the Jean-Pierre Bemba Gombo case, the court ordered that all recognized victims were to be represented by two lawyers. Bemba has the largest number of participating victims, 1620 so far. It is not clear how the two lawyers have an opportunity to establish a relationship with, or adequately represent, all the victims. Recently the Victims section has similarly solicited counsel to apply to be common legal representatives for all the victims in forthcoming Sudan and Kenya cases.
Victim participation in the proceedings is described in Article 68 (3) of the Rome Statute:
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.
The question raised by both the Bemba order and the REDRESS statement is how the court will meet those obligations. Do the current measures and increasing consolidation of representation adequately safeguard the victim’s interests? What procedures and funds are in place to allow the counsel to adequately represent hundreds or thousands of victims? Can any one or two lawyers adequately perform that function?
Victims have a right to offer their observations and arguments on motions before the court, offer some evidence and question witnesses. Victims may also seek reparations from the court if a conviction is entered. The exact form of those reparations is not yet known. The first case, against Thomas Lubanga began in 2009 and is not yet completed.
The International Criminal Court sits in The Hague, The Netherlands. It is a permanent court intended to punish War Crimes, Crimes Against Humanity or Genocide occurring within the 115 nations that have ratified the Rome Statute, or situations referred to the court by the United Nations Security Council, as has happened in Darfur, Sudan, and Libya. Ivory Coast has also accepted the jurisdiction of the court for crimes occurring in Post-Election violence, even though it is not a signatory to the treaty.