Tatiana Batchvarova has submitted this most interesting comment on the recent decision of Trial Chamber V concerning particpation of victims in the proceedings of the International Criminal Court:
The Thin Line between Judicial Creativity and Arbitrariness:
Why does the Recent Jurisprudence of Trial Chamber V of the International Criminal Court set an Alarming Precedent as Regards Victims’ Participation?
In two identical decisions in the Ruto and Sang case and, respectively, the Muthaura and Kenyatta case in the Kenya situation of 3 October 2012 Trial Chamber V of the International Criminal Court makes an attempt to further elucidate article 68(3) of the Rome Statute and to streamline the victims’ participation procedure. Is this attempt successful?
The two decisions have a promising start endorsing the general understanding that while participation of victims in proceedings must be “meaningful” as opposed to “purely symbolic”, victims are not vested with an “unfettered right … to participate”. The subsequent paragraphs of the decisions, however, break the thin line between judicial innovativeness and arbitrariness. Whereas judicial discretion exercised within the letter and the spirit of the legal framework is a welcomed creativity, judicial disregard of the imperatives of law amounts to arbitrariness. The decisions raise both legal and practical concerns.
I. Legal concerns
● Fundamentally wrong interpretation of article 68(3) of the Rome Statute. Putting the cart before the horse
An assessment of the stages of proceedings and the manner of victims’ participation as envisaged by article 68(3) is contingent on the willingness of alleged victims to participate in the proceedings and their admission thereto. Consequently, the discretionary power of the Chamber (article 68(3)) comes into play provided that the eligibility criteria (rule 85 of the Rules of Procedure and Evidence) and the application procedure (rule 89 of the Rules of Procedure and Evidence) have been fulfilled.
Accordingly, only after victim-applicants are admitted as participants in proceedings does article 68(3) give leeway to the Chamber to consider whether the personal interests of victims are affected, the appropriate stages of the proceedings and the manner in which victims’ views and concerns are to be presented. Hence, the decision of the Chamber under article 68(3) does not precede or pre-condition but rather follows the judicial authorization of victims’ admission for participation in accordance with the Rules of Procedure and Evidence.
● Violation of the law under the guise of judicial creativity
The decisions under consideration raise concerns regarding at least two violations of the existing legal framework.
1. Firstly, the invention of an alternative procedure to that set forth in rule 89 not only violates the Rules of Procedure and Evidence but also the Rome Statute. Article 68(3) explicitly refers to the procedure to be followed delineated in the Rules of Procedure and Evidence. Thus, the procedure as provided in the Rules of Procedure and Evidence is in effect imperative and no room is left for an assessment of the appropriateness or the necessity of the procedure to be applied, let alone for an invention of a different scheme.
For the sake of argument, even if the relevant legal framework were not imperative as regards the applicable procedure, the Chamber’s practical considerations for the invention of an alternative procedure are utterly untenable. Neither the large number of victims, nor the security concerns in the present cases represent an unprecedented or unfamiliar scenario in the context of the ICC. On the contrary, the nature and the gravity of the crimes under the ICC’s jurisdiction entail by implication large number of victims, security concerns, atrocities of widespread nature, multiple charges, factual and legal complexity.
2. Secondly, the decisions provide for the admission of victim-participants without judicial determination of the requirements set forth in rule 85.
The admission of participants in proceedings in the absence of determination and authorization by the Chamber in charge of their standing as victims is an unprecedented scenario both in domestic and international criminal proceedings which runs afoul of universal criminal justice precepts.
The lack of individual judicial assessment and authorization further deprives persons who fall within the rule 85 victim definition of formal recognition of their victimhood and, accordingly, of the suffering they have endured.
Finally, vesting a legal representative with an absolute discretion to determine who qualifies as victim in the case, which can neither be challenged nor subjected to judicial review, is unheard of in the realm of criminal justice and violates universal precepts. The Chamber’s approach sets a dangerous precedent which may pave the way for precarious practices heading for the ICC.
II. Practical concerns
Although the alleged purpose of the decisions is to streamline victims’ participation in order to safeguard the interests of victims and to ensure expeditiousness of proceedings, the practical consequences of the Chamber’s findings may have quite the opposite effect.
● Concerns originated by the invention of “categories of victims’ participation”
1. To begin with, the decisions in question establish two “groups of victim-participants” in the absence of clear criteria. If the “wish” of the alleged victims to appear individually and in person before the Court were to serve as a criterion, this approach could entail an alarming scenario whereby all alleged victims or a huge number of them would decide for attendance in person. The result - Chambers could be flooded with victims wishing to appear in person in proceedings. This would compromise the expeditiousness of proceedings and prejudice the fair trial rights of the accused.
Regrettably, the solution of the above scenario suggested by the Chamber, namely through the authorization of a limited number of individuals out of all wishing to appear in person, fails to set any guidelines or criteria which would inform its judicial determination. Hence, concerns arise as to the predictability and possible arbitrariness of the Chamber’s findings in this respect.
2. The “all inclusive” approach under the second “category of victims’ participation” raises equally serious concerns.
In particular, virtually anyone could be afforded victim standing in proceedings. In so far as the decisions leave it with the legal representative to unilaterally determine the victim participants of this group, their number could turn into an avalanche. Furthermore, mindful of the fact that even the suggested registration of such victims is merely an option, not an obligation, practically anyone may partake in proceedings. As a result, scenarios could unfold where under the guise of victimhood entire communities if not even whole populations may potentially participate in proceedings through a legal representative.
Apart from the real danger of blocking the proceedings, the approach advanced by the Chamber promoting an “as inclusive as possible” victims’ participation will certainly have implications on the rights of the accused who would be facing the views and concerns of (an) amorphous group(s) claiming to be victimized by his or her conduct.
3. The two “groups of victim-participants” established by the Chamber are not placed at an equal footing. According to the decisions, in assessing any submissions or requests on behalf of victims under the “second category of participation” the Chamber will be mindful of the lack of judicial assessment of their victim status. In all likelihood, this clarification made by the Chamber could motivate victims to apply for a “direct individual participation” instead, in order to avoid a purely symbolic participation and underestimation of their views and concerns. Consequently, the victims’ participation procedure invented by the Chamber may have an adverse effect on the expeditiousness of the proceedings and on the meaningful participation of victims.
● Problems related to the legal representation scheme
The suggested scheme whereby the legal representative who is best acquainted with the personal interests and the individual circumstances of his or her clients remains in the field instead of being present at trial may likewise inimically impact the meaningful participation of victims and equally the expeditiousness of the proceedings.
Although, according to the decisions, the legal representative is allowed to participate in “critical junctures involving victims’ interests”, such as making opening and closing statements, he or she has to rely mainly on the assessment of the OPCV - present in the courtroom - whether the personal interests of his or her clients are affected by the conduct of the proceedings. This regime is problematic, given that the legal representative who is in direct contact with the victims is best suited with the necessary information enabling him or her to best represent the victims before the Court. Endorsing a reversed approach which mandates the OPCV to do so is entirely unrealistic. The same holds true with respect to the Chamber’s ruling pursuant to which the OPCV will be the one examining evidence by conducting the questioning (if authorized) of witnesses and/or the accused while the legal representative will be the one presenting evidence (if authorized). Such division of tasks is, first, illogical and, secondly, untenable. According to it, the OPCV will observe the presentation of evidence and thereafter will inform the legal representative. The latter, on his or her part, will then seek the views of victims and, subsequently, will request interference on behalf of the victims (via the OPCV) in ongoing or already past proceedings which could cause repetition or suspension of the hearings. Given the direct interaction with the victims, the legal representative would indubitably be best placed to partake in the fact-finding process by examining and presenting evidence alike (subject to the Chamber’s authorization).
Over and above the budgetary implications, the division of tasks between the OPCV and the legal representative introduced by the Chamber could lead to disruption of proceedings, postponements and unwarranted delays. This is by and itself prejudicial to the rights of the accused, the victims and the interests of justice as a whole.
III. To conclude
Judicial innovativeness is commendable unless it goes against the law or instead of resolving, creates practical problems. The arbitrary approach of the Trial Chamber towards victims’ participation erodes the solid premises of the victim-related legal framework laid down by the drafters. Judges should better use their power as provided in article 51 of the Rome Statute to initiate amendments to the Rules of Procedure and Evidence in order to establish, if need be, a more simplified application procedure whereby the expeditiousness of the proceedings as well as the interests of the accused and victims will not be compromised.