I mentioned on this blog a few weeks back that concern was growing in The Hague on the scheme of victim participation in the International Criminal Court. The long-awaited decision of the Appeals Chamber on the appeals lodged against Trial Chamber I’s 18 January 2008 decision on victim participation in the Lubanga case was delivered last Friday (judge Pikis dissenting): www.icc-cpi.int/cases/RDE/c0106/c0106_docAppeal.html. The Appeals Chamber found that ‘harm’ suffered need not be direct, but must be personal, and that there must be a causal link with the charges. It also upheld the Trial Chamber’s finding that victims may potentially lead evidence pertaining to the guilt or innocence of the accused, or challenge the admissibility or relevance of evidence. While the Appeals Chamber did point out that the right to introduce or challenge the admissibility of evidence lies primarily with the parties (‘namely, the Prosecution and Defence’), the Appeals Chamber said these provisions did not preclude victims from doing so if their personal interests were affected.
Notwithstanding the fact that victims do not have the same disclosure obligations that the Prosecutor has to the Defence, it is far from obvious how such a right has emerged from the original basic right of victims ‘to present their views and concerns… in a manner which is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial’.
Article 69(3) of the Rome Statute clearly states that ‘the parties may submit evidence to the case’, while Article 66(2) states that the onus is on the Prosecutor to prove the guilt of the accused: allowing victims to lead evidence pertaining to the guilt or innocence of the accused means that the accused essentially now faces more than one accuser, contravening to the equality of arms principle central to the right to a fair trial. As victims can now gain access to the Prosecution's documents (under the Trial Chamber's 18th January decision: leave to appeal was not granted on this), material considered by the Prosecutor but not produced by him as evidence could be introduced by victims, and the case being redirected into areas thought irrelevant by the Prosecutor for the purposes of establishing the guilt of the accused. Indeed, the Trial Chamber itself, in the decision granting leave to appeal, did recognise that this element of the decision ‘may result in the Chamber considering evidence that otherwise would not be available’. The Appeals Chamber decided that if it were to deny victims outright the right to introduce or challenge evidence, ‘their right to participate in the trial would potentially become ineffectual’.
Representatives of victims will be delighted by the ruling. We are told that what is going on is merely a reflection of the continental legal system, where victims participate as parties civiles. But what we are seeing bears no resemblance to trials under Romano-Germanic procedure. The ruling may only worsen the havoc plaguing the Court with respect to this new and unknown frontier of witness protection.
Many thanks to Yvonne McDermott.