The Chamber thus distinguishes personal injury from direct harm. It is based on the case of children soldiers, the main crime charged against Lubanga, to support its demonstration. The harm is obvious, it considers, when for example “there is a close personal relationship between the victims such as the relationship between a child soldier and the parents of that child” To determine if a victim suffered a personal injury, the Appeals Chamber estimates that the judges must determine, according to the “particular circumstances” if the undergone harm is personal.
On the links between the victims and the crimes charged against the defendant, the Appeals Chamber reminded that the purpose of trial proceedings was the determination of the guilt or innocence of the accused person and considers that “only victims who are victims of the crimes charged may participate in the trial proceedings”. It is up to the victims to prove it.
Lastly, concerning the participation of the allowed victims in the capacity of “civil parties”, the five judges ruled that they can participate in the trial proceedings and comment on the evidence presented during the hearings, but within very strict restrictions. The victims will have, in particular, to initially submit their comments in writing, and to show that their personal interests are concerned. They will then have the possibility, or not, of bringing evidence relating to the guilt or innocence of the defendant and of disputing the admissibility or the relevance of evidence presented in the trial.
The Appeals Chamber noted that this provision was not in contradiction with the principle of a fair trial or contrary to the rights of the defendant, and especially that it is not incompatible with “the responsibility for the prosecutor to prove the responsibility of the defendant”.
SM/PB/MM/SC