(co-hosted by the State of Palestine, the United Kingdom and the International Federation for Human Rights (FIDH))
Overview by Lea Schwagereit, Research Associate PILPG NL
Participants agreed on the need for a collective system for victims to apply for participation, similar to collective representation.
Panelists pointed to the dire situations for victims participation in Afghanistan and Bangladesh/Myanmar.
The event focused on a report launched by FIDH on victims’ participation, which was argued to become a central focus of the ICC proceedings. Karine Bonneau, director of the International Justice Desk at the International Federation for Human Rights (FIDH) opened the event by stressing the importance of victim participation as a source of evidence that the ICC proceedings heavily rely upon. FIDH’s report places victims’ participation at the heart of judicial proceedings. The Rome Statute grants victims the right to participate in proceedings where their personal interest is affected. This feature of victim participation is considered one of the most innovative features of the Rome Statute as it it grants victims the right to participate in international criminal proceedings for the first time in international criminal justice.
Gilbert Bitti, Senior Legal Advisor of the Pre-Trial Division at the ICC, reflected on lesson learned from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the importance of victims’ participation in trials. He cited the President of the ICC stating that “the court ensured that victims voices are heard and puts them at the heart of the proceedings”. But many problems remain, such as the lack of information about the ICC, access to the court, and thereby the right to participate. He acknowledged the importance to provide victims with (at least) a minimum of information. He further pointed to the improvements made, such as the new application form which was changed from 17 pages to only 1-2 pages. He argued for a collective system to apply and further argued that victims should be treated as parties (entitled the same rights as the parties to the process). It is moreover key that victims are entitles to choose their legal representation.
Wayne Jordash QC from Global Rights Compliance, which is representing the interest of over 400 women and girls, victims of the crimes committed against Rohingya in the situation Bangladesh/Myanmar, underlined the importance for victims to be able to communicate with the Court and submit information even if they are not recognized as victims (yet), as there was a degree of procedural uncertainty on victims’ participation during the preliminary examination process. Myanmar continues to insist that no crimes have been committed. While the Prosecution argued that since the examination was initiated by the OTP and not by a UN Security Council referral pursuant to Article 93 victims are not entitled to make submissions, the Pre-Trial Chamber was of the opinion that victims do have the right to make submissions for the preliminary examination. The attempt to exclude victims at the state of preliminary examinations might stem from an anxiety that too many victims may have a right to participation and become a challenge for international trials. The real problem is not that they will delay proceedings but that they have no information, no access to justice, and eventually risk having no voice at all in this.
With regard to the Afghanistan situation, the preliminary examination of the case took 10 years. When thinking about the purpose of the ICC and its deterrent role, this should not be acceptable, Katherine Gallagher (Center for Constitutional Rights), representative of victims of the situation in Afghanistan, stated. Over this long period of time, more people are victimized. While there has been limited outreach form the ICC, several victims have been collected from states that are parties to the Rome Statute, she described. Therefore, the ICC should be more concerned about the crimes committed by the U.S. The panelist furthermore questioned the cooperation between the ICC and NATO with regard to information in the Afghanistan case. Furthermore, collective representation could be a solution, yet funding for it is necessary. This can further create a victims’ narrative what the court should include in their indictment (e.g. include forced disappearance).
Anushka Sehmi was involved in victim participation in the case against Ongwen as a legal representative. In 2015, he consulted with 700 victims on ceasing investigations in the Kenyatta case. He noted that the right to truth, justice, and reparation have not been insured in this case. Even after the collapse of the case, victims are still entitled to assistance form the court, he argued. But instead, State Parties have looked the other way, the referral to the ICC has been ineffective, and their duty to communicate to provide assistance to the victims has been neglected. In the meantime, victims have passed away and thereby remained invisible to the ICC.
The event was concluded by a comment by the co-hosting state of Palestine. The representative stressed the importance to take a stand for victims. For him, the presented eye-opening statements were discomforting: to see the amount of difficulties that are put in front of victims to gain justice. He urged for increasing the sharing of information to increase access to justice. He further stressed not to exclude the financial aspects of victims’ participation.