Advancing the Impact of Victim Participation at the International Criminal Court: Bridging the Gap Between Research and Practice

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Expert Workshop, University of Oxford and the International Criminal Court Bar Association

4th October 2018

Dr Ellie Smith, a Principal Associate with GSDM, was recently invited to participate in an expert workshop convened by the Bonavero Institute of Human Rights, University of Oxford, and the International Criminal Court Bar Association. The aim of the workshop was to bring practitioners and academics together to explore and progress complex issues that arise as a result of the Court’s innovative victim participation endeavour.

Participants discussed a number of issues, including victim disillusionment with the International Criminal Court (ICC) process, in particular the reparations scheme. It was noted, for example, that despite convicting Thomas Lubanga in March 2012 (confirmed on Appeal in December 2014) for the recruitment and use of child soldiers in the Ituri region of Congo, the Court has yet to make any final reparations award to his victims.  The discussion encompassed the limitations of the reparations scheme, including its contingency on a finding of individual criminal responsibility, the length of legal proceedings and the impact of delay on victims (which one expert considered to amount to a breach of the victims’ legal right to timely justice), tensions between individual and collective reparations (replicated, to some extent, by tensions between the Chambers and the Trust Fund for Victims), and a perceived lack of coordinated action and responsibility for the progressing and direction of reparations components.

In the course of the workshop, a number of possible solutions were proposed, including untethering the reparations mandate of the ICC from the conviction requirement, thereby, it was suggested, removing any potential pressure on the Court to convict, and also enabling reparations processes to get underway at a much earlier stage. It was recognized, however, that this, in itself, was not unproblematic, since the reparations principle is itself defined within the Court’s constituent documents as a post-conviction remedy, and any such action may be deemed to prejudge accountability. Discussion was also had about the possibility of earlier intervention by the Court’s Trust Fund, prior to a conviction, via its assistance mandate. Finally, the need for the Registry to properly manage the frozen assets belonging to a Defendant, so that they did not lost value during the course of the trial, was stressed.

The need for a clearer and more developed outreach strategy from the Registry was also identified, in order that victims could be better informed about their participation rights under Artice 68(3) of the Rome Statute, progress in a case effectively transmitted to participating victims, and their expectations – including in relation to reparations – better managed. A suggestion that the number of participating victims be limited in order to render engagement between victims and legal representative more meaningful in practice proved to be a particularly controversial one, and divided opinion within the room. Others argued in favour of greater rights of participating victims, including the possibility to have an impact on the focus of an investigation or the charges brought.

Finally, it was noted by all participants that the ICC is not the only judicial mechanisms potentially available to victims, and, given the relatively limited capacity of the Court, greater emphasis and support should be given to the principle of complementarity, and ways for the ICC to engage with the State should to be identified.

During the workshop, Ellie presented her work on the impacts of trauma on the memory of victims, and the consequent effect of trauma-impacted memory on the content and quality of victim testimony. She then discussed the challenge of how the Court might go about evaluating the credibility and veracity of trauma-impacted testimony, with a particular focus on the need for the Court to remain the arbiter of fact in any case before it.

Dr Ellie Smith is a Principal Associate of GSDM, with a background in International Criminal Law, International Human Rights and International Humanitarian Law, with a particular expertise of working with trauma.

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