interviewBy Wairagala Wakabi
Paolina Massidda is the Principal Counsel of the Office of the Public Counsel for Victims (OPCV) at the International Criminal Court (ICC).
In this interview with the Open Society Justice Initiative in June 2013, she explains the ongoing appeal on the reparations process in the trial of Congolese Thomas Lubanga, who was last year handed a 14-year prison sentence for enlisting and recruiting children under the age of fifteen and using them in armed conflict. Mr. Lubanga is appealing his conviction and the sentence.
In the interview, Ms. Massidda also speaks about the views of victims on Mr. Lubanga's conviction and the drawn-out reparations process, as well as the challenges faced in victims' participation in cases at the ICC.
It is nearly a year since the reparations procedures in the Lubanga case were issued by Trial Camber I, but there is still an ongoing appeal on this decision. What are the arguments in this appeal?
The issue which was at stake for reparations in the Lubanga case was the nature of the decision issued by Trial Chamber I. This decision was considered by the Trial Chamber as a decision on principles in relation to reparations.
However, legal representatives of victims and the OPCV considered that a proper procedure for reparations had to follow the conviction of a person. In the Lubanga case, no procedure for reparations was activated by the chamber. As a consequence, victims who could have waited until the conviction before deciding if they would apply to participate in reparations proceedings were not able to do so.
Legal representatives and the OPCV filed an appeal against the Trial Chamber's decision, arguing that the said decision had to be considered as an order for reparations and therefore could be appealed directly before the Appeals Chamber, including by victims.
So the first issue discussed before the Appeals Chamber was the nature of the decision issued by the Trial Chamber, having in mind that, in the words of the Trial Chamber, that decision was for them not an order for reparations.
In the view of legal representatives of victims and the OPCV, the Trial Chamber decision was a reparations order because it was already instructing the Trust Fund for Victims to proceed with several actions, aspects which can only be touched upon, in our opinion, if an order for reparations is made.
Another issue the legal representatives contested is the delegation of judicial authority to the Registry and the Trust Fund for Victims. In the decision, the Trial Chamber decided to delegate the evaluation of individual applications for reparations to the Trust Fund and this is for us a typical judicial activity which cannot be delegated to a non-judicial entity like the Trust Fund for Victims.
Thirdly, the Trial Chamber decision ordered that another chamber would be in charge of supervising the entire reparations process. For us this aspect is also not in conformity with the provisions of the Rome Statute and the legal texts governing the Court, because in our reading of the provisions this could not be delegated to another chamber. The same chamber which has ruled on reparations has to supervise the process.
What were the observations of the other parties and participants in the trial?
The prosecution argued that this was simply a decision on principles and cannot be read as an order for reparation. The defense argued to some extent on some issues in conformity with legal representatives, considering this decision as establishing order for reparations. The Appeals Chamber ruled in December last year only on the nature of the decision, saying the decision is in fact a decision ordering reparations.
Following this decision, the parties (prosecution, defense, and legal representatives, because in the appeals procedure victims are full parties to the proceedings) were instructed to file their appeals, explaining which errors the Trial Chamber had made in the decision on reparations which required an appeal judgment. The Chamber has not yet ruled on these issues.
At this point it is difficult to provide more information on the reparations proceedings because there is no decision by the Appeals Chamber in the matter.
It is still uncertain if the Trial Chamber activated reparations proceedings, if so what kind of reparations proceedings, what roles and tasks of the Trust Fund for Victims plays, and if it is feasible in the legal framework of the Court to delegate judicial functions to a non-judicial entity. Finally, it is uncertain whether a new trial chamber could eventually supervise the reparations process.
What has the defense said on these reparations process?
It would be good to contact them so that you can see the different positions. But if you take their submissions, they were quite clear in relation to certain flaws that they see in the decision, including the possible participating role of Mr. Lubanga in the reparations proceedings because Mr. Lubanga is now indigent.
And the Appeals Camber recognized that Mr. Lubanga might have an interest in the reparations proceedings. To some extent the defense also agreed that the Trial Chamber decision is an order for reparations.
You mentioned the Trust Fund. What was the substance of their submissions?
The Trust Fund mainly reiterated their position which they had already put forward before the Trial Chamber. Before taking the decision the Trial Chamber decided to hear observations from different parties and entities, including amicus curiae and the Trust Fund for Victims. The Trust Fund was mainly advocating a sort of reparations plan, which was mainly endorsed by the Trial Chamber.
They provided the Trial Chamber with a plan in which they explained that consultation with the communities in different parts of the country where crimes were committed was necessary, and it was also necessary to appoint experts to assess the harms suffered by victims and in which way these harms could be addressed.
The Fund also advocated for reaching the majority of people in order to avoid conflict or addressing the needs of only one community and not of the entire community.
In my view, the Fund is trying to have a prominent role in relation to the decision on which kind of reparations has to be provided, a role which should not be delegated directly to the Trust Fund. The Trust Fund has an important role in providing inputs to the Trial Chamber but the entire process of reparations cannot be simply delegated to the Trust Fund.
You work with many victims. In the present case of Lubanga, what are victims saying, given that it has been a long time since the reparations decision was issued by the trial judges?
I can only speak of the victims represented by the Office who we have contacted several times because we need to explain to them the consequences of this decision. The majority of them are very patient.
They understand that it is the first proceedings so there are a lot of matters to be dealt with. Some of them are a little bit discouraged because the proceedings are taking very long and what they suffered has not been addressed on the level of reparations.
On the other side, they are happy that there is a decision of conviction establishing some facts of what they suffered, including this component of gender crimes suffered during the enlistment and recruitment of children under the age of fifteen. So they have mixed feelings.
On one hand they are happy the first trial concluded with a conviction because they feel to some extent justice has been done. On the other hand, not all of them are content with what they say is "only" 14 years sentence for Mr. Lubanga and they are still preoccupied by the fact that reparation proceedings and reparations have not been provided to them.
But on the issue of reparations the majority of our clients think that because of the type of crimes that they suffered, their lives and their dignity have to an extent been ruined for their entire life.
So they don't think that there is any kind of reparations which can fully restore what happened to them or that can remedy to some extent what they suffered from but not fully repair what happened to them.
In terms of what the victims you represent think can be done, what are some of the things they are looking at, perhaps pointing to what could be done for communities?
We are not yet at this stage because consultation with the communities has not started yet since the decision of the Trial Chamber is now suspended. And again I am talking only of victims represented by the Office, which is a minority.
Their wishes vary depending on the age, how they are living, whether they have been able to restart their life or not. We have victims who require completing their studies, those requiring to be provided with resources in order to start an activity. But we're not yet at the stage of talking of the needs of the communities.
If we could now shift to other issues of victims' representation and participation in the cases at the ICC, what are the trends and the challenges?
In the last year we have seen a proliferation of ideas in relation to the participation of victims. Different chambers and judges have ruled on different ways for requesting participation for victims. In the Kenya cases the Trial Chamber decided to adopt a registration system, which is not yet operational for different reasons.
I am also referring to the recent decision in the Bosco Ntaganda case in which the single judge decided to use a single page application for victims requesting participation.
This has repercussions on how legal representatives work. If you have different application forms then each time you have to explain to victims that there's a different way of applying.
It can be argued that victims in the Lubanga case could also be victims in the Bosco Ntaganda case. You have people who already applied in 2006-2007 and now it seems these people are required to apply again for participation in the Ntaganda case, with all issues of possible re-traumatization and the possibility to find that some people left their residences to find work or for other reasons.
So chambers would like to organize better the participation of victims to render it more efficient and more effective but it is still unclear how this could be done.
Would you prefer that the victims who are qualified to participate in the Lubanga trial should automatically also participate in that of Mr. Ntaganda?
In my opinion, this is possible because the first warrant of arrest against Mr. Ntaganda is practically the same warrant of arrest for Mr. Lubanga so I don't see why victims should not be automatically authorized to participate unless a victim decides he is not willing to. So the only component which should be addressed is the consent and willingness of the victim to participate in these proceedings.
What other trends are being witnessed in the area of victims' participation?
The second issue is legal representation of victims. Again in this matter we have different decisions by chambers. The court is indeed experimenting with different options for common legal representation.
We have one option which I will call the Gbagbo option, in which the chamber decided to appoint as common representative the OPCV with the possibility for the OPCV to be assisted in the field in Ivory Coast by an Ivorian lawyer.
The second option is the Kenyan option, in which the chamber decided to appoint as common legal representative an external lawyer and requested the OPCV to be present at the hearings. So the legal common representative is in Kenya while the OPCV is representing him during hearings here in The Hague.
We have more experience with option one since we already had the confirmation of charges hearings in the Gbagbo case and this worked very well. Having someone in the field is always very helpful because this person maintains a constant link between victims and the office in order to present the concerns and observations of victims.
In the Kenya case I am not able to provide lots of information because the trial has not yet started and this means that we have only preliminary assessment of this option.
But the Kenya option is not the one preferred by the Office because it is requiring the Office to second one staff to the common legal representative to the [William] Ruto case and another to the [Uhuru] Kenyatta case, which means the Office has two staff members completely allocated to an external lawyer who cannot work for the Office for other cases or assist other external lawyers. This is an issue because of the always increasing workload of the Office.
What is the cause of this experimentation such as what is happening with the Kenya cases?
This is a decision of the chamber; it is not something decided by us. I think the purpose is to find ways of rendering the participation of victims and their legal representation most effective.
Is there no precedent set by previous cases which chambers have to follow?
The issue of legal representation has been sorted differently by different chambers so I cannot say there is a practice. The chambers can rule on it as they think it is better for the case - it is case specific. The chambers normally rule on it depending on the specific case they are dealing with.