Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Victim Participation
Defence’s preparations for trial, as the most recent
batch of applications had been transmitted to the
parties in the middle of the prosecution’s case at
trial. 1805 In particular, the Defence argued that the
delay in transmitting the ninth batch of applications
for participation which were the subject of the
present decision had prevented the Defence from
asking pertinent questions of the first 20 prosecution
witnesses, relating to the information and allegations
contained in the applications for participation. 1806
Acknowledging the ‘heavy burden’ on the parties
caused by the transmission of significant numbers of
applications, the Chamber put in place a schedule for
the filing of future applications and set 16 September
2011 as the final deadline for the submission to
the Registry of any new applications for victim
participation in the case. 1807
The Defence also challenged the role of intermediaries
in assisting with the completion of application forms
for victim participation in light of the testimony
of Witness 73, who had testified that a particular
individual was working with a team of people carrying
documents with the ICC logo, causing the witness to
believe that these people were ICC officials. Witness
73 had alleged that the individual in question had
encouraged applicants to fabricate or exaggerate the
value of pillaged items and to lie about the crimes
committed against them. 1808 The Chamber agreed with
the Defence’s assertion that Witness 73’s testimony
had cast doubt on the extent of that intermediary’s
involvement in the application process, and therefore
deferred consideration of the applications completed
with that intermediary’s assistance pending its receipt
of further information under Regulation 86(7). 1809
Kenya
No victims have been accepted to participate at the
Situation stage of proceedings in the Kenya Situation.
Pre-Trial Chamber II issued a decision on 3 November
2010 regarding the framework for victim participation
at the Situation stage of proceedings. 1810 The Chamber
held that Article 68(3) provides the normative
framework for victim participation in the absence of
more specific provisions in the Statute. Before deciding
on applications for participation, a Chamber must first
determine whether and to what extent the Situation
stage may qualify as a ‘stage of the proceedings’ for
the purposes of Article 68(3), and must then determine
(i) whether the relevant stage is ‘appropriate’ for the
purposes of victim participation, and (ii) whether the
personal interests of the victims are affected. 1811 The
Chamber will only consider these two criteria on a
case-by-case basis and only when an issue requiring
judicial determination has arisen. 1812 The Chamber
noted the Appeals Chamber jurisprudence which
had held that victims do not have a general right to
participate at the investigation stage of a Situation,
but acknowledged that victims could be permitted
to participate in judicial proceedings at the Situation
stage. 1813 Pre-Trial Chamber II therefore held that
victim participation at the Situation stage can occur
only when an issue arises which may require judicial
determination. The Chamber provided a number of
examples of issues requiring judicial determination
which may arise at the Situation stage of proceedings,
including but not limited to the power of the Chamber
to review a decision by the Prosecutor not to proceed
with an investigation or prosecution under Article 53,
the preservation of evidence in the context of a unique
investigative opportunity under Article 56(3), issues
of victims’ protection or privacy or the preservation of
evidence arising under Article 57(3)(c), or the power of
the Chamber to seek the views of victims or their legal
representatives on any issue under Rule 93. 1814
Pre-Trial Chamber II noted that the Appeals Chamber
decision of 19 December 2008 1815 had explicitly left
open the question of how applications for victim
participation at the Situation stage should be dealt
with in the future. The Chamber therefore sought
to define the procedural framework for victim
participation at the Situation stage. The Chamber
identified three hypotheses which would lead a
1805 ICC-01/05-01/08-1413, as cited in ICC-01/05-01/08-
1590, para 14.
1806 ICC-01/05-01/08-1413, as cited in ICC-01/05-01/08-
1590, para 15.
1807 ICC-01/05-01/08-1590, paras 24-25.
1808 ICC-01/05-01/08-1590, para 16.
1809 ICC-01/05-01/08-1590, paras 26-27.
1810 ICC-01/09-24.
1811 ICC-01/09-24, para 8.
1812 ICC-01/09-24, para 10.
1813 ICC-01/09-24, para 9.
1814 ICC-01/09-24, para 11.
1815 ICC-01/04-556. See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, p
99-100.
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