23 October 2009 - A desire to achieve restorative justice led the drafters of the ICC's Rome Statute to create a victim participation scheme within the Court. In 1998, for the first time in the history of international criminal justice, victims were granted the possibility to present their views and concerns at all stages of proceedings before a Court. Victims have the opportunity both to have their voices heard and to obtain some form of reparation for their suffering.
But at the time of drafting the ICC Statute, the meaning of the term "victim" had to be negotiated. "Victim" was defined as a natural person, a concept wide enough to also include institutions and organizations, who has suffered harm as a result of the commission of a crime within the jurisdiction of the Court.
Although definitions were set out, exactly how victims were to participate remained unclear. The organs of the ICC are still working out how to turn the promise of the Rome Statute into reality. "Participation of victims is not clearly defined in the text of the Court. That depends on Chamber´s interpretation. Article 68 (3) has been drafted in a broad sense. The first problem is how to define ´personal interest´ and what present ´views and concerns´ means," says Paolina Massidda, Principal Counsel of the Office of Public Counsel for Victims, one of the legal representatives in the Lubanga trial. "Generally, Chambers have recognized that the interest of victims is affected per se by the outcome of the trial since they have interest in getting justice and truth. This recognition is a good step to start, but the main problem is how to implement this recognized interest during the trial proceeding."
Legal Representatives must face another challenge. The Trial Chamber recognized in January 2008 that the victims can present evidence not only relating to reparations but also to the guilt or innocence of the accused. "This principle is very important, but the main challenge we are facing is the way in which this principle is being implemented," says Ms. Massidda. The Chamber has requested that the Legal Representatives of Victims, before participating in proceedings relating to a particular piece of the evidence, write an application at least seven days before this evidence is presented. For example to question a witness, the representatives have to present a written application explaining the areas they want to cover during the testimony and the way in which the personal interest of their clients is affected.
In the Lubanga case, the decision on participation of victims was taken by the Chamber on 15 December 2008. The trial started on 26 of January 2009. This means that LR started receiving documents from the Office of The Prosecutor very late in the proceedings and mainly in January, just a , few days before the starting of the trial. "When you receive documents from the Prosecution you receive thousands of documents that you have to analyze, you have to understand why they are relevant for the OTP, if they are relevant for the interest of your clients. If you don´t do this assessment you are not able to write an application to the Chamber," explains Ms. Massidda. "At the beginning of the trial, the ´seven days´ rule was absolutely impossible for the LR because we had no time to review the all material."
Moreover, during the testimonies, the LR may discover issued pertaining to the interest of their clients that they did not identify before. "This happens frequently," says the Counsel. "So, [the acceptance of the application] really then depends on the flexibility of the Chamber."
In the Lubanga case, 103 victims are participating in the proceedings. To be recognized as a victim in the legal process the injuries or loss suffered by the victim must be closely linked to the crime included in the charges against the accused. At this trial, this requirement has led to an intense debate.
On 26 January 2009, during his Opening Statement, the Chief Prosecutor told the Judges that "in the camps, child soldiers were exposed to the sexual violence perpetrated by Lubanga´s men in unspeakable ways." However, the accused, Thomas Lubanga Dyilo was not charged with crimes related to sexual violence. Instead, the Prosecution presented this crime in the context of child recruitment, as an aggravating circumstance.
Several organizations reported that ex-girl child soldiers, who constituted a substantial number of the child soldiers in the militia, were disappointed at the neglect of sexual violence charges. A letter from Human Rights Watch to ICC Prosecutor Luis Moreno Ocampo lamented that "the narrow scope of the current charges may result in severely limiting victims' participation in the first proceedings before the ICC." By limiting the right of victims to reparations and representation, Human Rights Watch believes that the "failure to include additional charges in the case against Mr. Lubanga could undercut the credibility of the ICC in the DRC."
As the Prosecution has brought charges relating to the recruitment and use of child soldiers, for the Court the victims of Thomas Lubanga have been in effect limited to these former child soldiers and indirectly, their parents. This definition excludes all those who suffered harm as a result of attacks perpetrated by the UPC against their villages; or the young girls subjected to sexual abuses in the context of the conflict in Ituri. Those girls forced to be sexual slaves of UPC commanders meet the definition of child soldiers and consequently fall under the term of victim of child recruitment, but not of sexual violence. "The majority of Victims if not all of female victims, represented by the Legal representatives were actually recruited to became sexual slaves or forced wives to commanders," explains Ms. Massidda. "This was an essential component of the recruitment. And it is important for victims that their story is told in the way it happened. They want that the truth and the facts are qualified as they were in the context of the charges. That is the reason why Legal Representatives of Victims asked to the Chamber to trigger the mechanism of Regulation 55 of the Regulations of the Court."
On 22May 2009 the Legal Representatives of Victims requested the re-characterization of facts under Regulation 55 of the Regulations of the Court. The victims' lawyers submitted that, according to witness testimonies heard so far, the existing characterization of the facts constituted a violation of several of the prohibitions in the Rome Statute including sexual slavery and cruel and inhumane treatment. "I want to make clear that the point of the LR is not to change or amend the charges against Thomas Lubanga Dyilo," says the Principal Counsel. "The point we are raising is that the charges of recruitment includes elements of the crimes that can be qualified as sexual slavery and inhuman treatment. The goal for recruitment for female, girls and young women, was not essentially to form them in order to become soldiers, but to have them as sexual slaves and forced wives. And on the other hand, the way in which children were trained to become soldiers entails necessarily inhuman treatment. We are saying that the Chamber should consider that within the charges confirmed, the facts as stated by witnesses in the trial demonstrate these two elements."
This request has caused controversy.
The Trial Chamber has divided. While Judge Odio Benito and Judge Blattmann issued a decision giving notice that the legal characterisation of the facts may be changed, the Presiding Judge, Adrian Fulford presented a strongly worded dissent. His main argument referred to the article 74 of the Rome Statute and Regulation 55. These allow the Chamber to change the legal characterization of facts but not to exceed the facts and circumstances described in the charges. In Fulford´s view, "the proposals advanced by the victims do not raise the possibility that the legal characterization of the facts may change. Instead, the victims seek to add five additional charges, which is unlawful."
The Defence and the Prosecution also presented their objections. The Prosecution, following the same line of argument as in accordance with Judge Fulford, argued that this decision violates both article 74 of the Statute and Regulation 55 and also emphasized that during the opening statement, they highlighted that the child recruitment included aspects of cruel treatment and sexual slavery, and that they would request a severe punishment.
The Defence, for its part, clearly stated that the request by the victims' lawyers is the equivalent of five additional charges to be brought against the accused. "Sexual slavery is a specific crime. Inhuman and degrading treatment is a specific crime. The enlistment and enrolment of child soldiers is a specific crime. We cannot mix up things here. We should be rigorous," said the Lead Counsel, Ms. Mabille. In their opinion, the consequences of including new charges would be that all the prosecution witnesses would have to return to Court to be cross-examined for a second time, imposing a delay on the proceedings. That "gravely breaches the fundamental rights of the accused and his rights of due process."
Ms. Massidda answers these arguments: "For us it is really an element of the crime itself. The point we can argue against is that until now the LR and even the judges put forward to the witnesses specific questions in relation to this two points and they never objected, so they cannot say they were unaware of what we are saying," she says. "A charge is a crime, the element of the crimes and the facts. And the facts can be qualified differently without going to the core of the charges."
With the appeals ongoing, during a status conference on 17 September, the Chamber raised the question of whether or not the trial should continue hearing evidence on the basis of the charges as originally framed. The Defence´s position was categorical: No. "The Defence is unable to continue with this trial if we do not clearly define the charges which are being brought against the accused," said the Lead Counsel, Ms. Mabille. After consultation with all parties, on 2 October the Trial Chamber ruled to adjourn the presentation of the evidence by the Defence, while they awaited a decision of the Appeals Chamber. The Judges found that "Mr. Thomas Lubanga Dyilo should know whether or not the legal characterisation of the facts may be subject to change, so as to include the elements of sexual slavery, inhuman treatment and cruel treatment."
Sheila Vélez, 2009
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