The IBA urges speedy resolution of outstanding procedural issues before the ICC

The International Bar Association (IBA) today expressed concern that there continues to be significant procedural uncertainty at the International Criminal Court (ICC) regarding important issues such as victims’ participation and witness protection. The IBA noted in particular, that some inconsistent decisions on victims’ participation have been handed down by the Chambers and that has created uncertainty for parties and participants. Both the defence and prosecution have appealed the decisions. The IBA considers that speedy resolution of this issue is necessary for the fair and expeditious conduct of proceedings before the ICC.

The concerns were raised at the launch of the IBA’s latest monitoring report on the work of the ICC. The IBA report, entitled Balancing Rights: The ICC at a Procedural Crossroads (‘the Report’) highlights the challenges faced by the judges of the ICC in seeking to interpret the relevant legal provisions governing the participation and protection rights of victims and the rights of defendants before the Court. The Report comes at a critical stage in the Court’s existence: only a few weeks away from the 10th anniversary of the signing of the Rome Statute which established the ICC.

The issues faced by the judges in seeking to balance effectively the rights of the defendant and the rights of victims are very complex,’ states Lorraine Smith, IBA monitor in The Hague. ‘The lower Chambers are now looking to the Appeals Chamber for guidance and direction. The IBA’s hope is for matters to be resolved expeditiously so that all persons involved in the Court proceedings will have clarity and certainty concerning the participation of victims.’

The IBA also urged a unified approach towards the protection of witnesses. The Report highlights a significant difference in approach between the Victims and Witnesses Unit and the Office of the Prosecutor regarding the assessment of the standard of risk and the criteria for including witnesses into the Court’s protection programme. On this issue Ms Smith remarks, ‘This protracted impasse between two key organs of the Court raises fundamental concerns for the effective administration of proceedings. The issue has in some cases hindered the Chambers’ ability to make timely decisions on applications for non-disclosure of material to the defence. The matter must be resolved urgently.’

The Report was launched during a high-profile event at the official residence of His Excellency Lyn Parker, Ambassador of the United Kingdom of Great Britain and Northern Ireland to the Netherlands. The meeting included keynote speeches by Lord Iain Bonomy, Judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), and Ms Wilhelmina Thomassen, Judge at the Supreme Court of the Netherlands. The speakers praised the work of the IBA in raising awareness about important contemporary issues faced by the Court.

The event was attended by more than 50 participants, including diplomats, judges from the ICC and the ICTY, senior ICC officials, representatives of international non-governmental organisations, lawyers and law professors. The issue of victims’ participation provoked particularly lively debate among the attendees and speakers.

Download the IBA monitoring report, ‘Balancing Rights: The ICC at a Procedural Crossroads’.

For further information please contact:

Lorraine Smith
IBA Programme Manager
IBA/ICC Monitoring and Outreach Programme
The Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands

Tel +31(0)70 302 2859

Romana St Matthew-Daniel
Press Office
International Bar Association
10th Floor
1 Stephen Street
London W1T 1AT

Mobile: +44 (0)7940 731915
Direct Line: +44 (0)20 7691 6837
Main Office: +44 (0)20 7691 6868
Fax: +44 (0)20 7691 6544

Notes to the Editor

The IBA/ICC Monitoring and Outreach Programme

In 2005, the IBA commenced the ICC Monitoring and Outreach Programme through funding provided by the John D and Catherine T MacArthur Foundation. The monitoring component analyses developments at the ICC focusing in particular on issues affecting the fair trial rights of the accused, the implementation of the 1998 Rome Statute, the Rules of Procedure and Evidence, and related ICC documents. The outreach programme works in partnership with bar associations, lawyers and civil society organisations disseminating information and promoting debate on the ICC through the IBA’s membership network.

In preparing the Report, Lorraine Smith, the IBA’s full-time monitor in The Hague consulted with many sources, including judges and lawyers with experience in international criminal, humanitarian and human rights law, legal and academic experts, non-governmental organisations, diplomatic missions, staff of the ICC and defence counsel. It is the fourth such IBA monitoring report to be issued and covers the period from November 2007 to May 2008.

The legal framework for victims’ participation and witness protection before the ICC

Rome Statute

Article 68(3)

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

Rules of Procedure and Evidence

Rule 85

Definition of victim

For the purposes of the Statute and the Rules of Procedure and Evidence:

(a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;

(b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

Rule 89(1)

Application for participation of victims in the proceedings

In order to present their views and concerns, victims shall make written application to the Registrar, who shall transmit the application to the relevant Chamber. Subject to the provisions of the Statute, in particular Article 68, paragraph 1, the Registrar shall provide a copy of the application to the Prosecutor and the Defence, who shall be entitled to reply within a time limit to be set by the Chamber. Subject to the provisions of sub-rule 2, the Chamber shall then specify the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements.

Witness Protection

Rome Statute

Article 68

1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in Article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

2. As an exception to the principle of public hearings provided for in Article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in Article 43, paragraph 6.

5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

Article 43(6)

The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements.