By: Iva Vukusic,
International Judicial Monitor Correspondent in The Hague
The
past year has seen numerous important developments at the International Criminal Court
(ICC) in
The Hague. News regarding cases involving Kenya post-election violence and Darfur, as well as Palestine’s successful bid
to become a state party made headlines worldwide. Among these important developments in
efforts to fight impunity is the judgment ‘establishing the principles
and procedures to be applied to reparations’ in the Lubanga case from March 3rd 2015. The decision followed disputes about the forms of reparations i.e.
individual and/or collective whether the community would benefit and not just
victims registered before the ICC and the rights of victims of sexual
violence in
this case. Broader issues of victim participation now come up in light of the decision that brings a measure of
clarity to long unresolved issues.
Thomas Lubanga Dyilo is the former leader of the
Union of Congolese Patriots and Commander of the Patriotic Forces for the Liberation of Congo, a militia operating in the
resources-rich Ituri region of the eastern Democratic Republic of the Congo. In
December 2014, Lubanga became the first person to be convicted on appeal at the ICC. He was
found guilty and sentenced to fourteen years for the conscription and usage of
child soldiers. This case is of major importance in further defining and implementing victim
participation and reparations, a major innovation of the Court where victims of crimes are
participating in proceedings against the accused.
The
ICC was established as a result of historical negotiations in Rome in 1998,
resulting in the Rome statute, which came into force in 2002. Today the
institution has 123 state parties, among them notably absent
the United States, Russia and
China. The
Court has struggled with political opposition, difficult investigations in war
zones, accusations of bias and budgetary challenges. The Court and the Office
of the Prosecutor have to navigate complex political situations and limitations
of jurisdiction as well as a lack of political will to make arrests such as in
the case of Omar Al Bashir of Sudan who has for years evaded facing charges of genocide in Darfur.
One
of the contributions the ICC has made has been in inviting victims, albeit a
limited number of them allegedly victimized by the accused in its cases, to
participate in the proceedings. How that participation takes place what the
victims want out of reparations and how the process can be made more meaningful is something to discuss after the decision in Lubanga that caused much debate in the international
justice community.
Three
rights have been articulated for victims of gross violations: truth, justice and reparations. Part of the growing focus on the rights of victims
is the effort to include them in proceedings and make them active agents
instead of passive recipients of justice processes. Victim participation in
proceedings beyond potentially in capacity of a witness is a relatively new phenomenon in international criminal
justice. It has not been a feature of the International Criminal Tribunals for
the former Yugoslavia and Rwanda or the Special Court for Sierra Leone. There
‘victim’ was defined more narrowly, as someone who directly suffered a crime
within the jurisdiction of that court. On the other hand, the Special Tribunal
for Lebanon (STL) and the Extra-Ordinary Chambers of the Courts of Cambodia
(ECCC) have options for victims to participate and especially in the case of
the ECCC, they have been analyzed by academics, civil society and policy
makers. As researchers have noted, there are tensions between the retributive
measures such as trials and the needs of victims, which might require more restorative
and reparative approaches.
At
the ICC the definition of victim was broadened, largely as a
result of criticism towards the ad hoc tribunals where it was felt that victims were not properly included in the
process. At the ICC, a victim is a person (but can also be a organization, such
as a church), who suffered as a result of the crime. Therefore, it also
includes surviving family members. This broadening of the definition is
mirrored in the broader mandate of the ICC.
Critics
argue that institutions designed for criminal proceedings should not be tasked
with those broad mandates such as achieving reconciliation or awarding and
implementing reparation programs. They claim that their task of investigating
and prosecuting individuals for grave crimes is difficult enough and that other
tasks, including those of restorative nature, should be done by others: the
courts are simply not built for that.
For
the International Judicial Monitor, Dr. Luke Moffett of Queen’s University
Belfast comments on victim participation at the ICC. The greatest challenge, he
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