, When the International Criminal Court (ICC) prosecutes people suspected of committing grave crimes, the adversarial format is familiar – prosecution pitted against defence, each with its own witnesses. What sets this court in The Hague apart from others is that the victims of crimes in each case are accorded their own, quite separate role in proceedings.
Now there are fears that they are being sidelined from the judicial process. Lawyers who have represented victims at the ICC warn that their special role is being eroded, with a series of decisions in which the job of protecting their interests has been assigned to ICC in-house lawyers rather than counsel of their own choice.
The ICC’s founding agreement, the Rome Statute, gives victims a voice at the court, which can be either in person or, more commonly, through a legal representative. The definition of “victim” is specific. To be deemed a victim, an individual must have suffered harm as a direct consequence of the specific crimes with which suspects are charged, and not, for example, as a result of the general conflict in which crimes were committed.
Since the ICC was set up in 2002, more than 5,000 people have been granted victim status.
Victims’ legal representatives are entitled to attend and participate in hearings, and are permitted to make both oral representations and written submissions. With the authorisation of the judges, they may also question witnesses and the defendant.
Those who are in favour of victim representation say that this form of legal representation affords them greater recognition of the harm that they have suffered, and helps with the healing process by showing that their concerns are being listened to.
Critics of the process counter that victim participation slows the legal process down and can interfere with the prosecutorial strategy, by introducing questions or issues that have not been raised by the other parties to the case.
If the trial ends in a conviction, victims can apply for reparations from the court.
DIMINISHING CHOICE FOR VICTIMS
If victims want the ICC to provide them with a lawyer to protect their interests, there is a dedicated department for that purpose, the Office of Public Counsel for Victims (OPCV).
In practice, though, victims – acting individually or as a group – have mostly opted to pick their own external, independent lawyers.
That freedom of choice seems to be diminishing, though, and some lawyers have highlighted what they see as a worrying trend towards the OPCV taking the lead role in victim representation.
In December 2013, judge Ekaterina Trendafilova prevented victims from seeking their own legal representation in the case against former Congolese rebel Bosco Ntaganda, and instead appointed two lawyers from the OPCV as common legal representatives to act for two separate groups of victims.