October 2012

A Review of the Practice and Consideration of Options for the Future

This Report analyses the system of victim participation as it has developed at the ICC. First, it considers the practice by which victims have applied to participate in legal proceedings and by which their applications have been considered and decided by different Chambers. It then considers the effect of victim participation, in particular the ways in which victims have participated in legal proceedings and the contributions that have been made as a result. Further, it considers the role of legal representatives of victims, including common legal representatives and examines the various challenges in this regard. Throughout, the Report analyses the various statements that have been made regarding the need to reform the system and the concrete reform proposals that have come to light, particularly those which have focused on:

(1) The desire to simplify the victim application process and thus reduce the need for detailed judicial oversight;

(2) Consideration of the utility and feasibility of the suggestions to increase ”collective” approaches or partly ”collective” approaches to victim applications;

(3) Consideration of suggestions to revise the way in which applications to participate in proceedings are processed and assessed;

(4) Review of suggestions to amend the way in which victims may practically participate in proceedings;

(5) Analysis of proposals to increase the role of the Office of Public Counsel for Victims (OPCV) in lieu, or in some combination with, private legal representatives.

 

There is also consideration of what “meaningful participation” may, or should, mean and what steps may be taken by the Court and other stakeholders to enhance such meaning.

Finally, the Report concludes with a number of recommendations for the way forward. In particular, several principles to guide the eventual consideration of reforms are provided, as well as a number of options for consideration. Some of the recommendations which have been put forward by different stakeholders diverge from the legal framework set out in the Rome Statute and/or the subsidiary rules and regulations put in place by the Assembly of States Parties and/or Court organs. The impact of such divergences is also considered, having regard to the sanctity of the Rome Statute system as a whole. Whilst there are ways in which the ICC’s core texts can be amended, the impact of making such amendments must also be considered.

REDRESS reminds that the task of enabling victims to participate effectively in ICC legal proceedings is inherently challenging. There are undoubtedly logistical and informational hurdles, security constraints associated with the ongoing conflicts and insecure and unstable environments in which many victims live as well as administrative and efficiency concerns. Beyond these practical challenges, there are significant legal challenges associated with the practical application of the system taking into account the rights of all the parties and the context of an international criminal trial. This does not mean that victim participation is impossible or that it is not worth doing, if that were even an option for the sceptics to pursue. The judges and staff at the Court have the principal responsibility to develop workable systems in conformity with the Rome Statute and Rules of Procedure and Evidence. Further creativity must be deployed to strengthen a system which works in some respects but is underperforming. The victims, in all their differences, must be the starting point for any re-conceptualisation of a system that should be designed with them in mind, with their different wants and needs, their diverse locations, their potentially huge numbers. This daunting challenge is the grand beacon of international justice, and not the thread which will unravel it and cause its ultimate demise.

You can download the report here