Originally published on Justice in Conflict as part of the Hybrid Justice – A Justice in Conflict Symposium series.
Philipp Ambach joins JiC for this last instalment in our Hybrid Justice Symposium. You can access all of the terrific contributions to this symposium here. Philipp is the Chief of the Victims Participation and Reparations Section in the Registry of the International Criminal Court (ICC).
The International Criminal Court (ICC) pioneered a set of new victim-centered features in its normative and procedural framework that are unprecedented by the ICC’s famous predecessors, the UN ad hoc tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR). A number of internationalised ad hoc criminal courts and tribunals were established subsequent to the ICC’s creation and, interestingly, almost all of these justice mechanisms include more or less comprehensive victim participation and reparation regimes. The Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon, the Kosovo Specialist Chambers, the African Union-sponsored Chambres africaines éxtraordinaires (established to try former Chadian dictator Hissein Habré), and the Cour pénale spéciale Centrafricaine in the Central African Republic all contain specific provisions on victim participation and, to varying degrees of detail, on reparations for victims in case of a conviction. It would thus appear that a more or less comprehensive victim participation regime has become a necessary component of any modern international criminal justice mechanism. This trend is guided by the idea that the traditional retributive justice paradigm has to be paired with restorative/reparative justice elements in order to have the long-term positive societal impact that modern international criminal justice is designed to achieve.
Yet the victim participation and reparations regime at the ICC is not without its challenges. These include procedural and budgetary challenges, as well as challenges associated with rendering meaningful the impact the system has on victims and affected communities. At the same time it needs to be acknowledged that the ICC is presently the best-equipped international criminal justice mechanism in operation, with a budget of over 147 million Euros, six field offices in different countries where the ICC investigates/operates, and a Trust Fund for Victims which is designed inter alia to render the ICC’s reparations mandate meaningful by supplementing the money available for reparations to victims through States’ and other funders’ voluntary contributions. It may be even more difficult for internationalized ad hoc justice solutions operating in singular situations alongside the ICC particularly where the latter has no jurisdiction, to succeed with their victim participation and reparation systems. A number of key challenges can be identified which may ‘make or break’ the general framework of meaningful participation of victims in criminal proceedings and reparative elements at the end of the process:
Identification of and Outreach to Victims for the Purpose of Participation and/or Reparations
In order to ensure meaningful participation of victims in judicial proceedings, victims need to have knowledge of the mandate of the institution, and sufficient information on how to access the proceedings. It is insufficient if a court or tribunal simply provides a legal framework allowing for the participation of victims, but remains inactive in terms of reaching out to affected communities on how they can best gain access. There needs to be a coherent outreach strategy for every institution to contact relevant victims and affected communities in order to explain what the court/tribunal is about, what victims’ participatory rights are and, importantly, what they can expect quite concretely from their participation in the proceedings.
There are a number of lessons learnt from the ICC and ECCC context on the development of outreach strategies to victim communities that should be devised at the outset of every new hybrid court/tribunal, most prominently the Kosovo Specialist Chambers and the Central African SCC which are both, while in different phases of establishment, still to commence their work. Only through a comprehensive and long-term outreach strategy will a hybrid court be able to generate the local legitimacy required for long-term, positive impact on affected communities.
Victims’ Choice of Counsel and the Provision of Legal Representation in the Proceedings
The more effectively the victims’ procedural rights are communicated and exercised, the more effective is the victims’ perceived access to justice. At the ICC, Rule 90(1) of the Rules of Procedure and Evidence starts off with the general principle that “[a] victim shall be free to choose a legal representative.” Reality, however, has shown that in almost all cases victims are organised in groups and assigned common legal representatives paid through legal aid funds provided by the ICC. This system has been reproduced by subsequent hybrid courts and tribunals, where bundling victim representation in the proceedings into one (or exceptionally more) team of common victim lawyers is increasingly the norm. In the prosecution of mass crimes (presumably involving large numbers of victims) before an international(ised) court with finite resources, it is likely that common legal representation will increasingly become the rule. The accused’s right to a speedy trial is another factor that speaks for a streamlined and not too time-consuming victim appointment and representation regime.
However, hybrid courts are well advised to devise selection systems for victims’ legal representatives that are not only well trained and professionally up for the task (which is a fundamental requirement in and of itself), but also attend to victims’ major desires and concerns. A legal representative that does not have its clients’ trust will not be helpful in rendering victims’ participation in the proceedings any meaningful.
Modalities of Participation in the Proceedings
All of the aforementioned hybrid courts and tribunals as well as the ICC have generally comparable and rather inclusive modalities of participation in the proceedings. Differences can be detected in how these rights are being formulated in the respective legal texts, and to what level of detail. As a concrete step to further solidify these procedural participatory rights across the different judicial institutions, it could be contemplated to provide a comprehensive mapping of the respective participation modalities of the different courts, and create a model standard operating procedure. This document could be a helpful template for future hybrid international(ised) courts to adopt a victim participation scheme that is fair to the accused without having to re-invent the wheel. The double benefit of this would be (i) a speedier build-up phase of the system; and (ii) the possibility to refer back to the institutional framework and jurisprudence of other institutions to solve any matter more effectively. Efficiency gains in terms of time and litigation would go to the benefit of (i) the accused, providing for a speedy trial and calculable victim participation, (ii) participating victims, since they can focus on the subject-matter and do not have to engage in litigation as to their procedural rights and status; and (iii) the stakeholders who will see effectively-run and fair trials with meaningful victim participation, flanked by a decrease in costs of the system.
It will be rather the exception than the rule that a convicted mass criminal before an international(ised) court will have sufficient remaining funds to repair victims’ harm where the reparation awards go into the millions of Euros. Funding of reparations through trust funds would appear to be the much more probable arrangement for future hybrid courts, provided they accept such a reparation regime at all, as opposed to simply referring to national civil litigation for any form of reparations. Looking at the fundraising challenges of the ICC Trust Fund for Victims despite its permanent nature, administrative structure and broad reach in terms of potential donors, it seems highly doubtful that sufficient funds will ever become available where an ad hoc court for a single situation creates an ad hoc fund to collect millions of Euros of voluntary contributions from no more than a handful interested States, if at all. Compromise solutions need to be developed where these trust funds operate within the margins of what they can obtain through voluntary (State) contributions. National reparation programmes should be factored into potential integrated redress solutions as far as actual reparation payments or other programmes can be reasonably expected to materialize at all. For both, voluntary contributions to a trust fund and/or commitment to fund national reparation programmes in conjunction to trust fund activities, State support is necessary.
In addition, where the number of victims surpasses the assets available for their relief, a sound strategy of managing expectations will be crucial. Victims need to be informed at the earliest stages what they can expect from the applicable reparations regime, and importantly what they cannot expect. This, in turn, points again to an active duty common to all international(ised) courts to engage in comprehensive information sharing and outreach at all stages of the proceedings.