Wednesday, October 1, 2008

Work in progress: Contours of victims' participation

The International Criminal Court (ICC) (left) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) are unique among international and hybrid criminal tribunals in allowing quasi-party status to victims alongside the prosecution and defense. The ICC Statute in particular provides at Article 68(3) that
Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.
Article 75 also allows the tribunal to award reparations to victims to be paid either by the convicted defendant directly or from the Victims’ Trust Fund established by Article 79. Given that there is no precedent for such procedures in international criminal law, the ICC is in many respects writing on a blank slate as it designs the specific modalities of victim participation and reparation.
In the Lubanga-Dyilo case (defendant shown left behind his former defense counsel), also discussed here, the ICC Appeals Chamber issued its first comprehensive opinion on the issue of victim participation. In addition to submissions by the parties, the Trial Chamber also heard from the legal representatives of some victims, the Office of Public Counsel for Victims, the Victims and Witnesses Unit, and the Registry. The ruling discusses several aspects of victim participation in the ICC’s proceedings, including the question of whether victims can lead substantive evidence pertaining to the guilt or innocence of the accused, but the most fundamental question addressed relates to who qualifies as a “victim” within the meaning of Rule 85 of the ICC Statute, which provides:

For the purposes of the Statute and the Rules of Procedure and Evidence:
a) “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;
b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.
In setting forth a general framework for integrating victims into the adjudicatory process, the Trial Chamber had taken an expansive approach when it determined natural persons could constitute victims before the ICC if they experienced either “direct” or “indirect” harm as a result of the commission of crimes within the subject matter and temporal jurisdiction of the ICC (but not necessarily crimes contained in the pending charges). It reached this conclusion through an exercise of statutory construction that included comparing sub-sections (a) and (b) of Article 85, only the latter of which specifically mentions “direct harm” with respect to victims who are legal, as opposed to natural, persons. As a limiting principle, the Trial Chamber argued that victims are entitled to participate under Article 68(3) only when their “interests … are affected,” which—it presumed—would not be the case where the harm alleged did not relate somehow to the charged crimes.
In so ruling, the Trial Chamber invoked the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the U.N. General Assembly in Resolution 40/34 in November 29, 1985. In particular, Principle 8 states that

“a victim may suffer either individually or collectively from harm in a variety of different ways such as physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights...”
In a partial dissent, Judge René Blattmann (Bolivia) (right) argued that the majority’s approach to defining a victim was too abstract and imprecise and risked jeopardizing the rights of the accused. He would have the Court limit victim participation to only those individuals who were harmed by the crimes charged in addition to confirming that:
► the victim applicant’s interests are affected in the particular case;
► participation by the victim is appropriate at the particular time, and
stage within the proceedings; and
► the manner of participation would not prejudice the rights of the accused to a fair, impartial and efficient proceeding.
Both parties sought to appeal aspects of the Trial Chamber’s decision. The Defense objected to the Trial Chamber’s broad definition of victim and its invocation of the Basic Principles, which had been considered but not incorporated during the ICC Statute drafting sessions. Although the Trial Chamber’s ruling was ambiguous in this regard, the Defense interpreted it to allow individuals who were members of a collectivity targeted by the accused to participate as victims, even where they suffered no personal harm from the charged crimes other than the derivative harm of being a member of a targeted group. In addition, both the Defense and the Prosecution appealed the Trial Chamber’s determination that a victim applicant need not show personal harm from the crimes charged against the accused.
The Appeals Chamber ruled that the notion of “harm” in Article 85 refers to harm to that person, i.e. personal harm. This, it confirmed, could include material, physical, and psychological harm. The petitioner in question, however, need not be the direct victim of the act of the defendant. As an example, the Appeals Chamber indicated that the parent of a child soldier, abducted into service in the context of an armed conflict, would have standing as a victim before the ICC where the defendant’s actions were not directed at him or her, but where he or she suffered an indirect, but personal, harm by virtue of those actions. With respect to the second question, the Appeals Chamber agreed that the Trial Chamber erred in not limiting the participation of victims to only those individuals harmed by the crimes charged.
The result reached by the Appeals Chamber with respect to potential indirect victims is a sound one. Hundreds of thousands of victims have already impacted by the war in DRC as detailed here; indeed, since the conflict started, several million people have become internally displaced (IDP) (a large percentage of which are women and children) (DRC IDP camp pictured right).
Over 500 victims have already applied to participate in the Court’s proceedings,
generally with help from NGOs such as Avocats Sans Frontières (ASF), and La Fédération Internationale des Droits de l'Homme (FIDH). Allowing all such individuals to participate in discrete cases could overwhelm the Court, especially given the lack of procedures for class or representative treatment. At the same time, the Court was correct in allowing for indirect as well as direct victims to participate.
The Appeals Chamber’s decision also dovetails with U.S. principles regarding party standing. In general, the U.S. Supreme Court has held, in order for a party to have standing to sue, the individual must have:
► personally suffered some actual or threatened injury
► that can fairly be traced to the challenged action of defendant; and
► that is likely to be redressed by a favorable decision. (See, e.g., Lujan v. Defenders of Wildlife, (1992)).
The alleged “injury in fact” (which may be broadly defined to include environmental, aesthetic or social interests) must be within the zone of interest to be protected or regulated by the statute or constitutional provision in question. Plaintiffs may not advance generalized grievances on behalf of a larger class of citizens. The second element above confirms the existence of a causal connection between the victim’s injury and the conduct that is the subject of the suit. These requirements have constitutional underpinnings in:
► the allocation in Article III of the U.S. Constitution of the judicial power to "cases and controversies"; and
► structural separation-of-powers principles.

1 comment:

Patrick said...

Beth -

This sounds like a really interesting and important piece. From the title of the post I inferred that it's a paper, but I may be wrong. If it is, will you be posting the article when it's ready? I'd love to see it.

Patrick Keenan
University of Illinois College of Law