19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
18 December 2020
Name of the Side Event: Assessing the Independent Expert Review Report’s Findings and Recommendations on Victims’ Rights: The Perspectives of NGOs - A Tribute to the Legacy of Dr. Felipe Michelini
(Co-hosted by the Permanent Mission of Italy to the UN, International Center for Multigenerational Legacies of Trauma (ICMGLT), International Federation for Human Rights (FIDH), Parliamentarians for Global Action (PGA), Redress and Victims’ Rights Working Group)
Report by: Shaya Javadinia & Isabelle Jefferies, Junior Research Associates PILPG-NL
Highlights:
This event presented an NGO perspective to the IER’s findings and recommendations relating to victims’ rights within the Rome Statute system and was structured around the three main features of victims’ rights: participation, protection, and reparations.
At its 18th session in 2019, the Assembly of State Parties commissioned the Independent Expert Review (IER) of the International Criminal Court and Rome Statute system. The IER published its final report containing extensive findings and recommendations to strengthen the Court on 30 September 2020. After lengthy informal consultations, the 19th Assembly adopted a resolution creating a mechanism to follow-up on the implementation of these recommendations, during a plenary meeting that took place just after this event.
This event was a tribute to Dr. Felipe Michelini, who dedicated his life to the rights of victims, and sadly passed away in April 2020.
Summary of the Event:
Ambassador Stefano Stefanile, Deputy Permanent Representative of Italy to the UN, opened the side event, taking place in the margins of the first day of the resumed 19th ASP in New York. He noted that Italy has been at the forefront of the promotion of victims’ rights at the ICC and that it attaches great importance to the Trust Fund for Victims (TFV). Ambassador Stefanile called on all States Parties to the ICC to sustain the TFV and encouraged fundraising efforts among private stakeholders, a recommendation also made by the IER.
Analia Banfi continued by remembering Dr. Felipe Michelini, Chair of the Board of Directors of the TFV who sadly passed away in April 2020. Ms. Banfi, a Human Rights specialist at the Inter-American Commission on Human Rights, and a professor at Georgetown Law School, and a very close friend and former student of Dr. Michelini, shared some of the main legacies of his work and personal history with human rights issues. Dr. Michelini’s sisters were political prisoners and his father, Senator Rafael Michelini, was killed during the Uruguayan dictatorship. Perhaps as a result of his experiences, his contribution to human rights always revolved around one central aspect: the rights of victims. He strongly believed in the need for the right to reparations for human rights violations, as there is no justice without reparations. As an illustration of Dr. Michelini's dedication to victims, Mrs. Banfi spoke about the Plan Condor Trial. The Condor Plan was a campaign of political repression against opposition to the right-winged governments of South America that took place in the 1970s, under which Dr. Michelini’s father was killed. After the Uruguayan parliament passed a law to prevent the prosecution of human rights abuses committed during the dictatorship, Dr. Michelini helped the families of victims achieve justice through Italian courts. In December 2019, a historical conviction was achieved for several of the key leaders of the Condor plan. Furthermore, in 2015, he was appointed as a member of the Working Group for Truth and Justice in Uruguay mandated to investigate crimes against humanity committed between 1968 and 1985. Thanks to his work, the Working Group was granted access to military archives, which is an important element in any prosecution, and the search for the whereabouts of those who disappeared during the dictatorship was reactivated.
The discussion moved onto the merits of the work on victims’ rights, with a discussion structured around three main features: participation, protection, and reparations. Delphine Carlens, Head of International Justice Desk at the International Federation for Human Rights (FIDH), presented the framework for the participation of victims in ICC proceedings. Under the Rome Statute, victims have a right to participate in proceedings and express their views and concerns where their personal interests are affected. Victims are crucial to the ICC, as they support justice by providing a factual and cultural context to the commission of crimes, provide evidence, and contribute to the legitimacy of the ICC. Mrs. Carlens conceded that victim rights under the Rome Statute are innovative, so the Court is expected to take some time to identify the modalities for effective and meaningful participation of victims.
FIDH submitted observations and recommendations to the IER, based on consultations with victims from situations under preliminary examination and investigation by the Court. FIDH’s main finding was that victim participation is overly complex and bureaucratic, sometimes inconsistent, and far removed from the reality that many victims find themselves in. The IER reflected some of these concerns and made the interesting finding that judges have considerable discretion in terms of victims’ rights, as the Rome Statute and its texts provide little guidance on the practicalities of victims participation. However, the IER report refers to certain common misconceptions about victim participation in ICC proceedings, and fails to respond to them adequately. For instance, the IER report refers to the common idea that victim participation increases the length of proceedings. However, there is no basis for suggesting that victim participation has this effect. Furthermore, the IER report refers to another common misconception that victim participation increases the cost of the Court. However, Mrs. Carlens believes that the impact of victim participation on the budget of the ICC is minimal. On the other hand, the 0% growth policy of the ICC’s budget has impacted victim participation. In fact, legal representatives for victims have faced budget cuts that have impacted their capacity to represent victims in proceedings. Mrs. Carlens emphasized the crucial role played by judges in ensuring the implementation of victims’ rights, and in guaranteeing their meaningful participation in all stages of the proceedings. Hence, the new judges elected at the 19th ASP must find ways to improve the scheme and harmonize it, without narrowing the participatory rights of victims.
David Donat Cattin, Secretariat General for Parliamentarians for Global Action, continued the discussion. For him, the independent experts struggled between two exigencies. On the one hand, they wanted to address the concerns of states, such as the time-consuming and costly nature of victims’ rights. On the other hand, they responded to the demands of civil society for more meaningful participation of victims, whereby they participate early on in the proceedings, understand what their role is, and expectations are met by the court. Dr. Cattin stressed that judges need to know how to address victims, who are survivors of heinous crimes. He invited people to consider Finding 865 of the IER, on the issue that judges can require notice of the questions legal representatives propose to put to witnesses. He argued it is not right to allow victims to participate, but impose a matter of weeks before they can actually be asked questions. He emphasized the need for immediacy in the interaction among parties, something which Recommendation 340 does not provide.
The discussion then moved onto the second feature of victims’ rights under the Rome Statute system: protection. The IER only provides one finding in this regard. Dr. Cattin pointed participants to Finding 481 concerning redactions. Redactions are included in Court decisions to conceal certain information and are fundamental for the protection of victims and witnesses. Under Article 68(1) of the Rome Statute, the Court has the obligation to take any possible measures to safeguard the safety, security, privacy, and well-being of victims and witnesses, and redactions are probably the most common way of doing this at a procedural level. However, Finding 481 stipulates that the use of redactions by the Court is probably the most significant factor in causing international criminal trials to last long. The IER does not make any recommendation on this basis, as the experts likely recognized the need to safeguard the safety, security, privacy, and well-being of victims and witnesses, even at the detriment of the efficiency and expeditiousness of trials. Dr. Cattin also stressed the importance of preventing re-victimization of victims at the hands of the Victims and Witness Section (a body within the Registry responsible for protective services to victims).
The discussion then moved onto the third feature of victims’ rights under the Rome Statute system: reparations. By contrast to protection, the IER report covered a lot regarding reparations. The floor was given to Alejandra Vicenti, Head of Law at Redress. She began by calling attention to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which just celebrated its 15th anniversary. The adoption of these principles followed the entry into force of the Rome Statute, and was a key moment for victims rights. Mrs. Vicenti believes that the expectations of victims within the ICC system have so far not been met. In 2019, Redress published a report entitled “No Time to Wait: Realising Reparations for Victims before the International Criminal Court”, which analyzed some of the challenges that exist within the court. Some of its recommendations were also made by the IER. For instance, both reports highlight the profound delays in awarding and implementing reparations. For instance, although Lubanga was convicted in 2012, it was only in 2020 that the Trust Fund announced the delivery of service based reparations. Moreover, in the Katanga case, the conviction took place in 2015, and monetary reparations ordered by the Court have been paid. However, the victims received a sum of 250 dollars each, and it is questionable whether this constitutes an effective reparation to address the harm they suffered. Lastly, the Al Mahdi case is another example in which the Court ordered the payment of reparations in 2017, but the contracts for these payments were signed only in 2020. Furthermore, Mrs. Vicenti explained that the number of beneficiaries of the TFV is unclear, as the number presented includes both direct victims, and indirect victims (the relatives of the victims). This raises a number of issues, as the calculations are merely based on average numbers and not all victims have received the same level of assistance from the TFV. As a result, the true impact of the TFV is difficult to assess. More transparency is needed to overcome these issues, Mrs. Vincenti concluded.
Furthermore, the IER has identified difficulties faced by the TFV in receiving funding. So far, it has been unable to meet its fundraising goals for its reparations awards, reparations orders, and expansion of its assistance mandates. The IER linked this to ineffective fundraising strategies and governance issues. This is also directed at states, which have an important cooperative role in asset recovery and enforcement of orders against individuals. But it is debatable whether states can always be expected to be the main contributors to the TFV. Some of the problems identified in this regard are a lack of consistent approach of the Chambers, but also the capacity of the TFV to implement reparations and its ability to respond to judicial requests in a timely manner. For instance, in the Al Mahdi case, the Chamber complained that the TFV had not provided an implementation plan by a certain date. On this topic, Dr. Cattin joined the discussion and stressed that when judges are not familiar with reparation proceedings, the matter is referred to the TFV while this is not the task of the TFV. The IER has suggested a new interpretation of the process, by viewing the reparation stage as a continuation of the trial (an approach which is not excluded by the Rome Statute). This approach could shorten the process, without infringing on the rights of the accused. Mrs. Vicenti agreed with Dr. Cattin on this point and referred to the IER as a “breath of fresh air” that could help overcome certain challenges associated with the current process. She explained that this is not a critique to the TFV, and all organs of the Court should work on developing a consistent approach, which could also help with managing the expectations of victims as to what they can(not) expect from the ICC.
The floor was then given to Dr. Yael Danieli, founder and director of the International Center for Multigenerational Legacies of Trauma. She highlighted the value of having people, such as Dr. Michelini, of high moral integrity and authority working for the TFV and the Court as a whole. It is important that those who listen to victims of heinous crimes understand and have the capacity for empathy for the most vulnerable. Dr. Danieli stated that “Justice is not only about the outcome but equally about the process. Any interaction between victims and the ICC is a moment of opportunity for healing, or a moment for disappointment and (re)traumatization. How early do we attend to the victims? As early as possible. Even before we plan to see them with this vision in mind.” In the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and in the Remedy Resolution, victims are considered victims regardless of whether the perpetrator has been found or is planned to be brought to justice.
She argued that the TFV is called an “independent organ” partially because of political reasons, and partly because the Court did not want to be involved in the process of the Fund, which could have negative repercussions. While there is now a better understanding among the various organs of the Court, particularly the registry and the TFV, in Dr. Danieli’s experience, judges are still seen as the weakest link who need to go through mandatory training on victim rights and optimal care. She expressed her belief that ICC judges are not prepared to adopt a consistent strategy when it comes to victims and therefore proposed a series of guidelines on this matter.
Dr. Danieli announced that the TFV will publish a report on Monday 21 December 2020, in which it will address the issue of humanitarian aid vs. justice-based assistance. She pointed out that the issue of time is one of the most important challenges between victims and justice, and is a matter of urgency. Moreover, Dr. Danieli discussed the issue of outreach by arguing that the TFV needs to do better in its own outreach, public relations, and education of the public on its work, process of decision making, and operations. She recommended that the ASP, states, and private institutions follow Sweden’s example of consistently supporting the TFV, and reminded the states that they have committed to the Court’s reparative justice mandate.
Following the discussion of the panelists, Dr. Cattin opened the floor for questions from the audience. One of the questions concerned the role of victims in ICC proceedings and asked whether victims are essentially playing the role of a second prosecutor. The panelists discussed that victims do not intervene beyond their role. They can even be considered as an ally to the defendant since they want the truth to be revealed and the right person to be convicted. This is also why the prosecutor has an obligation to find evidence against the accused and to acquit the accused if not guilty. Moreover, it is necessary for the judges to understand the victims. For that reason, it is important for the judges to be trained on victim participation at the ICC, regardless of their domestic background. The IER has discussed this issue and recommended that new judges receive a comprehensive introduction to the practice, law, and culture of the ICC.
Another question concerned the balance between the independence of the TFV and its need to have a direct link with the Court. The independence of the TFV is based on Article 79(1) of the Rome Statute, which states that the TFV shall be established by the ASP. The TFV is not a judicial or prosecutorial body, and it has to remain autonomous and professional. Its independence is not the type of independence that prosecutors and other organs of the Court have, but a type of autonomy that separates the TFV from the judicial institution the Court is. It still requires close, coherent, and predictable coordination, however.