ICC and the Criminal Process

Question 1

What are the role of victims in the civil law system?

Answer 1

Victims are parties to the proceedings

(Claim by victims for compensation are integrated as part of civil action within criminal proceedings).

Question 2

What are the role of victims in common law?

Answer 2

Victims are not part of the criminal trial.

Can be part of parallel civil proceedings.

Question 3

What is difference between retributive and restorative justice?

Answer 3

Retributive and utilitarian: puts accused at centre.

Restorative: puts victim at centre.

Question 4

What was the traditional role of victims in international criminal justice?

Answer 4

IMT and IMTFE: no procedural role

–> Victims could simple observe the trial or participate as witness.

ICTY/ ICTR: No victim participation

–> Effort of getting support of P5

Question 5

How was the idea of justice shifted following ICC Statute?

Answer 5

From retributive to restorative

Question 6

What does victim empowerment facilitate?

Answer 6

1) Satisfaction
2) ownership
3) Reconciliation

Question 7

What does victim empowerment lead to?

Answer 7

1) A more meaningful criminal process for the victims
2) Stronger focus on impact of crimes; and
3) Potentially a more stable and durable peace
4) Exposes truth
5) Makes visible to offender suffering caused.

Question 8

What does Art 68(3) of Rome Statute do?

Answer 8

Provides for victim participation as a qualified right.

Question 9

Under ICC framework, what can victims do?

Answer 9

1) Participate in proceedings not as witnesses but as victims
2) Submit their views to judge as victims

Question 10

Who first deals with the victims?

Answer 10

Victim offices: inform and assists victims regarding participation and reparations.

Question 11

Once victim agrees to participate, what happens next?

Answer 11

Victim is assigned legal representation. (Eg Bemba)

Question 12

What approach has ICL largely adopted in prosecution?

Answer 12

Common law approach

• In Rome Statute, open for judge to take much more control of proceedings.
• But, in practice, common law approach has been taken.

Question 13

How does the ICC prevent putting victims at risk?

Answer 13

When ICC reaches out to victims, one confidentially and poverty to protect the victims.

Victims who are not also witnesses may remain anonymous vis a vis the parties (Lubanga) since this doesn’t undermine fair trial.

Question 14

What are the requirements for victims to participate? (Art 68(3))

Answer 14

1. The individual formally qualifies as a ‘victim’
2. Their ‘personal interests’ are affected
3. Their participation is ‘appropriate’ at the relevant stage; and
4. The manner of participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
   * However, chambers hold discretion in deciding when/ how victims may exercise this right.

Question 15

Do victims have to be presented by legal counsel? (Representative for victims - LRV)

Answer 15

They MAY be presented by legal counsel, but in practice this has become the rule.

Question 16

How are victims incentivised to choose a LRV?

Answer 16

Permits for more extensive modalities of participation (r91 (3)(a) RPE)

Examples: attendance or hearings or questioning of witnesses /experts/ accused.

Question 17

Can the court force victims to share representation?

Answer 17

Yes:

Can impose a common legal representative (r90(2) RPE)

Question 18

What does Rule 85(a) RPE set out?

Answer 18

Definition of a victim

Question 19

Who is a victim? (r85(a))

Answer 19

Natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the court.

Question 20

What is set out under Lubanga’s four pronged test?

Answer 20

1. Victim applicant = natural person
   2) Crime within jurisdiction of the court committed
   3) Victim applicant suffered PERSONAL harm
   4) Harm was result of the crime

Question 21

Where are the modalities of intervention set out?

Answer 21

r91-93 RPE

Question 22

What are the modalities of intervention?

Answer 22

Non exhaustive list:

i) Attending hearings
ii) Making oral interventions
iii) Questioning witnesses, experts and accused
iv) Making opening and closing statements
v) Challenging admissibility of evidence (Lubanga)
vi) Victims have been permitted to tender evidence pertaining to guilt/ innocence (Lubanga)

Question 23

What are the features of common law legal procedure?

Answer 23

Adversarial:

• Investigation and evidentiary presentations at trial are driven by parties
• Parties seek to influence adjudicators
• Lay jurors in court decided on the verdict whilst professional judge remains passive
• Judge acts as (i) referee and (ii) ensures fairness
• Strict rules of admissibility of evidence

Question 24

What are the features of civil law procedure?

Answer 24

Inquisitorial:

• Investigations and trials are judge led.
• Parties’ role = assist court in establishing the objective truth.
• An official under duty of objectivity guides the inquiry
• Trial court is composed of professional judges deciding both the verdict and sentence jointly with lay jurors.
• Relaxed admissibility rules due to focus on objectively ascertaining the truth and control of professional adjudicators.

Question 25

What is main benefit of using an adversarial system in ICL?

Answer 25

The weight attached to far trial guarantee of the accused.

Question 26

What are the main disadvantage of an adversarial approach in ICL?

Answer 26

Unsuitability to rely on parties conducting their own investigation.

This would depend on state cooperation.

Question 27

What are the main advantages of an inquisitorial approach?

Answer 27

1) Consistent with ICL’s focus on impartial judicial inquiry and the creation of accurate historical accord.
2) Permits room for active victim participation (victims do not clearly fall within one of the two parties)

Question 28

What sets out the ICC’s procedural provisions?

Answer 28

Detailed RPE

Question 29

On what condition can ICC judges amend RPE?

Answer 29

Art 51(3) : subject to state parties’ approval

Question 30

When can court regulations be adopted by judges?

Answer 30

As necessary for the Court’s routine functioning.