Congo-Kinshasa: ICC - A New Role for Victims

The Hague — Thomas Lubanga Dyilo made history when he became the first person to be arrested by the fledgling International Criminal Court, ICC, and imprisoned in its cells in The Hague.

The warlord from the Congo province of Ituri is the leader of the Union des Patriotes Congolais, UPC, a Hema ethnic militia in Ituri. He faces charges of kidnapping children and using them in front-line activities against the Lendu, the Hema's ethnic rivals, United Nations peacekeepers and the Congo National Army.

He should have appeared at the ICC for a pre-trial hearing in early June but this was postponed until September. Chief Prosecutor Luis Moreno-Ocampo explained it was because escalating violence in Ituri - ahead of the country's first democratic elections in over 40 years - meant the safety of witnesses and victims who were due to work with the ICC could not be guaranteed.

The right to have victims' voices heard has been fundamental to the development of the rules and procedures of this four-year-old court since the very beginning. It is also central to the ICC's goal of having a solid impact on peace and transition in the countries in which it is involved.

Explaining his decision to put the June hearing on hold, Moreno-Ocampo said, "Witnesses and victims are part of the trial. They have a role to play and that is why we have to protect them."

For the first time in the history of prosecuting war crimes, victims from conflicts such as the Congo can apply for permission to be involved in the judicial process in ways other than testifying as witnesses.

Significantly, they will be granted the right to question defendants and participate in the early stages of investigations.

This new way of prosecuting alleged war crimes perpetrators was borne out of a sense of frustration that victims have been too far removed from events at bodies like the International Criminal Tribunal for Rwanda, ICTR, established by the UN to deal with the Rwandan genocide of 1994.

A spokesman for an African NGO which supported the creation of the ICC told IWPR that many of the victims of that genocide do not know what is going at the ICTR - in the Tanzanian town of Arusha - and the only way their voices are heard by the court is by testifying as witnesses.

"No-one asks them what went on or what is happening to them, so they can't raise concerns," he said.

So how does victim inclusion work in practice?

In the Lubanga case, the pre-trial chamber ruled in January that six victims could participate in proceedings before the ICC, including at the stage of the investigation currently being conducted in the Congo.

Ekkehard Withopf, who is leading the prosecution of Lubanga, told IWPR that in principle they have similar rights to those of the prosecution and defence teams.

ICC officials or judges can appoint counsel to represent victims, or refer them to the Office of Public Counsel for Victims, OPCV, whose lawyers are able to act as legal representatives for victims in court, appear before a chamber of judges on issues surrounding victim involvement or support a victim's existing legal team.

In practice, however, the level of victim involvement, and the extent to which their own representatives will be able to question the accused, will be at the discretion of the trial chamber.

Judges must make certain that the rights of the victim do not affect the accused's right to a fair trial, said Withopf. However, he expects they will take a "very liberal approach" otherwise the concept of victim participation "would not work".

But Withopf does have concerns that allowing victims to take a more active role in the courtroom will slow down the process. "Unnecessary delays are to the detriment of the victim's interests," he said. "So the ICC must also ensure that cases are completed within a reasonable time."

There are also question marks over which cases victims should take part in.

In early June, Moreno-Ocampo argued that they should only participate in trials of defendants whose actions have affected them personally, saying wider participation could "jeopardise investigations".

Carla Ferstman, director of London-based REDRESS, which helps victims of torture, suggests that more needs to be done to encourage victims to participate, because she says only small numbers of people have come forward so far.

But even if more decide to take part and are then selected, getting them to The Hague could be complex, expensive and potentially distressing.

The ICC operates thousands of kilometres away from Congo, which held its first democratic elections in nearly half a century at the end of July.

More than 17,000 UN troops were tasked with keeping the peace before and after the polls.

Withopf points out that "there will be travel bans, and we might not be able to get into certain areas. Very practical aspects like this mean we are disconnected to the area".

But principal counsel for the OPCV, Paolina Massida, said various ways are being developed to ensure victims can join in safely. "The chamber could accept written submissions, or listen to victims via video link from the Congo - or another location chosen by the court," she said.

Apart from the practical difficulties, a debate is raging over whether victims should become involved at the investigation stage or once an individual is on trial for a specific war crime.

Some say they can contribute valuable material and insight into an investigation, while others feel their continued participation could prejudice a fair trial once a suspect has been arrested and detained in The Hague.

Human rights organisations that IWPR spoke to are guarded on the matter.

Lawyer Joost van Wielink, Congo project officer at the Centre for Justice and Reconciliation in The Hague, said that although it is imperative that victims feel justice is being done, the accused is innocent until otherwise proven.

Ferstman believes victims need to be consulted on the merits of allegations against the likes of Lubanga, well before the accused are brought to court. She also pointed out that part of the goal of the ICC goes beyond punishment of individual perpetrators to a "broader impact on peace and transition".

Withopf, however, argues that involvement of victims at the investigation stage is premature, as there is no accused and no proper defence. He argues that participation before there is a case against an individual would "create an appearance that the future defendant is disadvantaged".

Instead, Withopf suggested that victims should come straight to the office of the prosecutor. "We will interview them and integrate their views into the proceedings," he said, explaining that this would "not exclude their participation as formal victims in the case later on".

All sides agree, however, that victim inclusion at the ICC is vital.

Following lessons learnt from other ad hoc tribunals, their involvement addresses the disenfranchisement felt by past victims whose voices have not been heard. Through victims' testimonies and insight, the international community will also have a thorough record of what happened.

Lubanga is next in court on September 28.

(*) Katy Glassborow is an IWPR reporter in The Hague

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