Before the two international criminal tribunals, for the former Yugoslavia and Rwanda (ICTY and ICTR), currently in activity, the victim is a witness. It cannot play any part on the procedural level. It can not be on the initiative of any action and cannot take part in the trial nor ask for reparations.
The ICC, pushed by the influence of countries from a civil law tradition that are signatories of the Statute and learning lessons from its predecessors, adopted a very different position. It allows the victims, whose personal interests are concerned, "that their opinions and concerns be exposed and examined, at stages of the procedure [that a chamber] estimates suitable" (article 68 §3 of the Statute).
But once this principle in place, it must now create a concrete framework to the general principle of participation of victims in the trial, the rules of evidence and procedure do not specify. And it is at each stage of the proceedings that the seized chamber will have to determine the methods of the victims' participation.
On 29 and 30 October, the first instance chamber I of the ICC thus met to give flesh to the "skeleton". It is the nickname which Luc Walleyn, first representative of victims at the ICC in the case against the former Congolese rebellion leader Thomas Lubanga, had given to the principle of participation of victims. The chamber has not yet rendered a decision.
An Office of Public Counsel for Victims (OPCV) of the International Criminal Court was set up. Independent but under the administrative authority of the registrar, it is charged with providing help and assistance to the legal representatives of the victims and to the victims themselves or to represent them in the proceedings undertaken before the ICC.
The OPCV can, under the terms of rules 80 and 81 of the rules of the permanent court, carry out investigations and deliver legal opinions to the attention of lawyers and victims and to appear before a chamber to answer specific questions. Lastly, the chamber can appoint a counsel from the OPCV as a legal representative of victims.
But it seems that victims only had a limited place within the framework of the confirmation of the charges against Thomas Lubanga Dyilo, The first case in progress at the ICC.
The decision of 22 September 2006 [http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-462_tEnglish.pdf ], authorizes them (i) to have access only to documents of the case that are public, (ii) to participate only in open sessions, (iii) to only make statements at the beginning and the end of the whole of the proceedings. In addition, if during the proceedings, their legal representatives wanted to intervene, this intervention was initially to be authorized by the chamber. The victims could not introduce elements of evidence to the case.
The first instance is not held by this precedent of the pre-trial chamber. It can decide differently and, who knows, grant more rights to the victims.
This time, the debate on this question was made as well as in the writings of the parties and participant as in their oral arguments. But it is not impossible that in the future, the chamber would be satisfied with written conclusions. There certainly will be a practice that will be established with time.
Jean Flamme, former main counsel for T. Lubanga, already criticized the participation of the victims in the pre-trial phase of the trial, in its principle. This contribution to international justice complicates indeed considerably the work of the defenders who must answer all the requests. The successor of Flamme requested to reinforce his team with collaborators with this intention.
Joseph Keta, legal representative of victims, considers that "the participation of the victims in the first interlocutory hearing is important, because these hearings will relate to the total control of the trial and a guarantee of its full and total success" (motion from 19 October 2007).
The participation of the victims at all the stages of the proceedings can be justified by their right to the truth established in international humanitarian law; in particular, in the additional protocol I to the Geneva Conventions, and was recognized by the United Nations Commission on Human Right by a resolution on 20 April 2005.
For this reason, the victim should be able to know all of the trial, even international, provided that the evoked facts are in connection with its cause. But today still, under the terms of these two days of proceedings, the prosecutor and the defence have opted for only a minimalist approach on the place of the victims in the trial.
The absence of the victims is still justified today as a party before of the ad hoc tribunals by their mainly common law procedures. However, even if in common law the victims were described as a table tennis ball going between the prosecutor and the defence, a lawyer working on this matter, and who wants to remain anonymous, reminds that clear provisions grant them a role beyond that of witness.
For example an American law from 2004 which grants a right of notification to the victims; thus enabling them to follow the trial. Procedures have been cancelled because the notification of the victim had not been made. He also states, the procedure of "Private Prosecution" in the United Kingdom which makes it possible for the victim to take legal action if the prosecutor decides to drop the charges. The expenses are in this case the responsibility of the victim, but the possibility of action exists.
The presence of the victims on the scene of international criminal justice represents a true progress. It remains to be seen the role which will be concretely reserved for them in a trial which has the purpose to decide on the guilt or innocence of Thomas Lubanga Dyilo; and in which can also be introduced into evidence elements related to the damage of the victims (see rule 56 of the rules of the court), by knowing that there is also, from now on, the possibility for the victims to ask for reparations for damages suffered.
© Hirondelle News Agency