Global Policy Forum

By Luc Walleyn

For the time first in the history of international criminal justice, victims may participate in proceedings other than as prosecution witnesses. The Statute of the International Criminal Court and its Rules of Procedure and Evidence (RPE) provide that victims may make representations before the Pre-Trial, Trial and Appeals Chambers of the Court. They may also request reparations and even, in some cases, ask to question witnesses. Accordingly, the role of legal representatives of victims is, in many ways, comparable to that of defence counsel; yet important differences remain.

Victims need justice

Tomorrow, the International Criminal Court will try the crimes still being committed today in Uganda and the Democratic Republic of Congo. The priority for victims of these crimes is physical survival, the protection of their families and property, medical or even psychological assistance and a minimum of economic and social wellbeing. Experience shows, however, that even the most dispossessed victims also need truth, public recognition of the gravity of the crimes and reparations (albeit symbolic). In short, they need justice.

An enormous distance separates the Criminal Court from women raped by militiamen in a Congolese village, or youngsters kidnapped from school in Uganda. The principle role of legal representatives of victims is to attempt to reduce that distance. In this respect, the task is very different from that of counsel for a suspect imprisoned in The Hague, who is in direct, daily contact with representatives of the Prosecutor's Office and the Registry, and later with the judges. The victims will remain in their countries, sometimes threatened or subjected to pressure.

Who can represent victims?

RPE Rule 90 provides that legal representatives of victims must have the same qualifications as those laid down for defence counsel in Rule 22. They must, therefore, have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings, and speak English or French fluently. The Registry has already established a provisional list of counsel. Those who ask to be placed on the list may specify whether they wish to act as defence counsel, represent victims, or both.

Nevertheless, a team of legal representatives of victims will probably resemble a team of defence counsel less than one might imagine at first glance. For example, victims will not need at first investigators, but people close to them who speak their language and will be able to keep them informed of the proceedings, counsel them and organize dialogue within a group that may be made up of many persons. Victims do need professionally competent jurists and experts, but will also want their spokespersons to understand, if not share their convictions and feelings. From this point of view, local lawyers and jurists active in local organizations would seem to be the most logical victims representatives. However, such counsel will be unable to appear before the Court unless the Registrar recognises their qualifications. These qualification requirements for legal representatives of victims thus create an urgent need for appropriate, targeted training in countries under investigation by the Prosecutor.

Even if the Registry does not include them in the list of counsel, local jurists will still play an indispensable liaison role, especially with respect to the public defenders who will be appointed by the Registry to represent the victims in the procedural stages, such as assistance during court sessions, or when lodging requests or submissions. A team of victims' representatives could take the form of a sort of network made up of jurists and social workers in direct contact with the victims in the field, international and local counsel qualified to appear before the Court, and a public defender for liaison in The Hague.

Collective or individual defence?

Freedom of choice of legal representatives is the rule for victims too. However, war crimes and crimes against humanity are mass acts by nature, and there are often numerous victims. If too many people attempted to appear before the Court, the efficiency of proceedings would be affected. For this reason, the Rules of Procedure provide that where there are numerous victims, the Chamber may request all victims, or a specific group of victims, to choose one or more common legal representatives. If they are unable to choose, the Chamber may request the Registrar to designate a common representative. This could prove to be a delicate exercise. Indeed, the victims of a specific crime do not necessarily all have the same interests. They may be divided along political, ethnic or religious lines, and the Court and Registrar will have to take account of such differences when imposing a common representative.

Payment of counsel, legal aid and the Court's budget.

The survivors of genocide and victims of war crimes are often impoverished. This is certainly true for victims of the Congolese and Ugandan "situations" (to quote the expression used in the Court's Statute) currently being investigated by the Prosecutor. Thus, in order to obtain representation before the ICC, the victims will generally need legal aid. Yet there is only a limited possibility for legal aid from the Court itself. Rule 90 provides as follows: "A victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court may receive assistance from the Registry, including, as appro- financial assistance." Under a restrictive interpretation of this rule, the Court would only pay representatives chosen for victims by the Chamber. However, at the very least, this rule should allow the remuneration of common representatives chosen by a group of victims, as long as their choice is reasonable. Otherwise victims will be obliged to renounce their freedom of choice if they wish to receive legal aid. It seems that the Registrar could share this interpretation. The Registrar's proposal to provide for the remuneration of one team of victims' representatives per situation was finally adopted by the Assembly of States Parties for the 2005 budget. This appears to be the absolute minimum given that victims may need to make representations to the Prosecutor and the Pre-Trial Chamber from the earliest stages of proceedings, especially when questions of admissibility and jurisdiction are being debated.

One alternative to legal aid being aired is a contingency fee system based on the sums obtained as reparations. Such a system is not perfect. It would only be useful in a limited number of cases, and donors may be shocked if representatives were to receive a proportion of awards made to victims from the Victims Trust Fund. Nevertheless, the draft Code of conduct, provisionally adopted by the Assembly of States Parties in September 2004, which prohibits any remuneration taking account of the results obtained, is too absolute. In the meantime, nongovernmental organizations and foundations should perhaps step in to provide the means for victims to intervene effectively during the up-coming pre-trial proceedings.