06.07.07 - ICTR/VICTIMS - THE ROME STATUTE GRANTS VICTIMS A PLACE

  The Hague, July 6 2007 (FH) - The statute of victims as a party of the trial had been neglected by the International criminal tribunals but was later applied by the Rome Statute establishing the International Criminal Court (ICC). Nevertheless, this has lead to some difficulties.   
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The position of victims as witnesses before the ad hoc Tribunals does not enable them to initiate an action or to be part of the trial, as they cannot file a civil party complaint or ask compensation for their damages. Both the victims' and the International Community's interests are defended by the Prosecutor.
 
This is primarily justified by the application of the common law. Claude Jorda, former President of the International Criminal Tribunal for the former Yugoslavia, used the image of a ping-pong ball to show the position of a victim/witness caught in the confrontational game between the prosecution and the defence.
 
The high number of victims of mass crimes raising concern about possible inequalities, the difficulty of helping all of them or the difficulty of considering the interests of each and everyone - these are all reasons which were invoked to justify the absence of compensation before these courts.
 
Nevertheless the article 23 (3) of the Statute of the International Criminal Tribunal for Rwanda (ICTR) enables the Judges to order the return of any property and the article 106 of its Rules of procedure and evidence enables the victims to use the ICTR judgement to ask for compensation before the competent national courts. This however means that the victims have to start a new procedure with all the difficulties it implies. Which undoubtedly explains why, until now, the victims never used it.
 
But due to the experience of the ad hoc Tribunals and the influence of the signatory countries of the Rome Statute using a civil law system, the International Criminal Court decided that a victim whose interests are concerned would from now be considered as a party of the trial.
 
Thus the victim can take part in the proceedings right from the beginning of the investigation, ask additional investigations and express him/herself about the complaint's admissibility and about the jurisdiction of the Court. According to a source at the ICC, "the most innovative thing is that the victim can make statements and has the right to rapid compensation".
 
The Statute of the ICC also provided a compensation fund financed by the signatory states. Nevertheless, neither the determination of the prejudice, nor the amount of the compensation have been defined yet.
 
The victim does not have the statute of a civil party. He/she cannot go to Court to initiate prosecutions or to produce evidence. What is "the most negative" is "to exclude the victims during the hearings in closed session and to deny them access to the confidential documents produced by the parties before the Court", Luc Walleyn, first representative of victims before the ICC in the case of the former Congolese rebel Thomas Lubanga, said to the French Coalition for the International Criminal Court.
 
However, the participation of victims might slow down the proceedings. Jean Flamme, former Defence counsel in this case, stated before the French Coalition after his resignation in April 2007 that the Defence was totally under-equipped to address adequately the motions and conclusions of the prosecution and the victims.
 
He also regretted that the victims could participate in certain stages, as for example in the preliminary stage where the question of compensation was no issue at all but rather to know whether or not there were enough evidence to prosecute the accused. He also complained that the victims had the right to participate in anonymity, which would considerably reduce the rights of the Defence.
 
According to Luc Walleyn, although the permanent Court is clearly "pro victims", "the Rome Statute and the Rules of Procedure and Evidence only established a skeleton for the participation of the victims in the proceedings before the Court" and that they "had to fight to obtain this role".
 
Perhaps the victims are more satisfied in the frame of trials before national courts which either use their universal jurisdiction or prosecute following a procedure of referral pursuant to article 11 bis of the Rules of procedure and evidence of the ad hoc Tribunals.
 
The parents of some Rwandan victims filed a civil party complaint in trials in Belgium, like the one of "the Four of Butare" in 2001, but although an order to compensate had been issued, it was not executed because of, likely, the insolvency of the convicted persons. In the just ended case of Major Bernard Ntuyahaga, the civil parties have shown diverse implications and motivations.
 
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