The Scope of Victim Participation Before the ICC and the ECCC

The Scope of Victim Participation Before the ICC and the ECCC
by Charline Yim
Harvard Law School 2011
DC-Cam Legal Associate January 2011


Both the International Criminal Court (“ICC”)[1] and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) have been viewed as significant advances in the protection and recognition of victims’ rights. The establishing laws and governing rules of both courts reflect recognition of the importance of victims as participants in criminal proceedings and as key stakeholders in the justice process. Consequently, both courts, acknowledging that victims must be provided a meaningful part, have offered victims the opportunity to play an active role in their criminal proceedings. The ICC provides that individuals and organizations can apply to be victim “participants” in the Court’s proceedings, while the ECCC allows victims the opportunity to participate as “Civil Parties.” While the application process to become a victim participant or Civil Party poses a number of challenges, victim participants and Civil Parties also face procedural limitations and hurdles once the respective court has granted status to participate in a criminal proceeding. As a result of the minimal guidance provided by the governing documents of the ICC and the ECCC, the Chambers of both courts have exercised broad discretion when interpreting the provisions and defining the modalities of victim participation during proceedings.

This Article provides a comparison of the current status of participation rights granted to victim participants in the ICC and Civil Parties in the ECCC. Generally, commentators have considered that, as “parties” to the proceedings, Civil Parties at the ECCC exercise more substantive rights than victim participants at the ICC. The general limitation for the exercise of victim participation rights before the ICC is the requirement that each procedural act must be authorized by the Chamber and is subject to the limitations and conditions imposed by the Chamber. Beyond this general limitation, if the Chambers of the ICC so determines, the rights of victim participants before the ICC in practice appear to be strikingly similar to that of Civil Parties before the ECCC. Furthermore, recent rule changes at the ECCC and current trends in the jurisprudence of both the ICC and ECCC suggests that modalities of participation granted to victim participants before the ICC can, at times, even surpass the rights of the ECCC’s Civil Parties.

1. The Provisions: Article 68(3) of the Rome Statute of the ICC and Internal Rule 23 of the Internal Rules of the ECCC
Article 68(3) of the ICC’s Rome Statute (“Statute”) provides that the legal representatives of victims are able to present their “views and concerns” to the Court where the victims’ “personal interests” are affected. The Court determines what stage of the proceedings and the manner in which such views are given so as not to be prejudicial or inconsistent with the rights of the Accused.

Internal Rule 23 to 23quinquies of the ECCC’s Internal Rules (“IRs”) address the general principles of victim participation, the application process to become a Civil Party, the representation of Civil Parties, Victims Associations, and Civil Party claims. IR 23 states that the Civil Party participates in criminal proceedings “by supporting the prosecution” and seeking “collective and moral reparations.” Successive amendments of the rules have increasingly restricted Civil Party participation in an effort to address perceived weaknesses in the system during the Court’s first case and the large number of Civil Parties who will be participating in upcoming Case 002.

2. Legal Representation
Both courts limit the ability of victim participants or Civil Parties to choose their own legal representation. In the ICC, the Chamber may, for the purpose of ensuring the effectiveness of the proceedings, request that victims or a group of victims choose a common legal representative, or may appoint a legal representative to the victims if the interests of justice so require. The Chamber and Registry is directed to take all reasonable steps necessary to ensure that the selection of the common representative is done in light of the distinct interests of the victims and to avoid conflicts of interests, as well as give consideration to the views of the victims and respect local traditions. A victim or groups of victims who cannot pay for a common legal representative chosen by the Court can receive assistance from the Registry including financial assistance.

Similarly, before the ECCC, an individual Civil Party may be directed by the Chamber to join an existing civil party group and share a common lawyer. When organizing common legal representation, the ECCC is required to take all reasonable steps to ensure that the interests of the distinct parties are represented and conflicts of interest are avoided. A group of victims can also organize as members of a Victims Association and are thus represented by the Association’s lawyers. Civil Parties who lack the necessary means to pay for legal representation can seek assistance from the Office of Administration.

IR12ter describes the new role of the “Civil Party Lead Co-Lawyer” within the ECCC: representing the interests of the single, consolidated group of Civil Parties at the trial stage of the proceedings. The core functions of the Lead Co-Lawyers are to protect the interest of the consolidated group of Civil Parties, and to shoulder the “ultimate responsibility to the court for the overall advocacy, strategy, and in-court presentation of the interests of the consolidated group of Civil Parties during the trial stage and beyond.” It is not clear if there will be an attorney-client relationship between Civil Parties and the Lead Co-Lawyers or if instead the Lead-Co-Lawyers will function as general victims’ advocates for the group as a whole.

With the most recent revision of the IRs on September 17, 2010 (Revision 6), it appears that after the Co-Investigating Judges’ issuing of a “Closing Order” ending the investigation phase, all Civil Parties are both required and entitled to representation by a lawyer. Rule 23ter(1) requires that after the issuing of the Closing Order, the Civil Party must be represented by a Civil Party lawyer in order to participate in the proceedings. In addition to this requirement, IR 22 provides that any person “entitled to” a lawyer under the IRs has the right to the assistance of a lawyer of their own choosing. Consequently, while no IR explicitly provides that a Civil Party is entitled to a lawyer, this is one possible interpretation of the recent revisions to the IRs. While this would appear to be a potential advance in the legal representation rights of Civil Parties at trial, it remains unclear what the sixth revision of the IR will mean in practice. Additionally, the creation of the role of Lead Co-Lawyers and the establishment of a pyramid scheme for Civil Party representation before the tribunal raises immediate concerns regarding the diminishing role that any individual Civil Party or Civil Party group plays in the proceedings.

3. Participation in the Pre-Trial Stage
Both Courts provide victims limited opportunities to participate in the Investigation and Pre-Trial stages of the proceedings. While the victim participants before the ICC do not have the right to intervene during the Prosecutor’s investigation, victims have been granted the right to actively participate during the confirmation hearing (of which there is no similar proceeding in the ECCC) if permitted by the Chamber. While during the investigation the ECCC grants Civil Parties the right to request that Co-Investigating Judges take specific investigative actions, such requests can be denied—particularly if the request is determined by the Co-Investigating Judges to exceed the scope of the Co-Prosecutor’s Introductory and Supplementary Submissions. The Co-Investigating Judges’ rejection of an investigation request can be appealed by the Civil Party, and the Civil Party has the right to participate in proceedings related to the appeals of other parties in this investigatory phase.

4. Participation in the Trial Stage
During the Trial, the ICC may allow victim participants to attend and exercise procedural rights in the specific proceeding for which the application was approved, subject to conditions set by the Chamber regarding the form and manner of participation. Before the ECCC, Civil Parties are granted a general right to participate in criminal proceedings, though the exercise of this general right has been limited by the Chamber in practice. Significantly, it remains to be seen to what extent recent revisions of the IRs vest the exercise of procedural rights only in Co-Lead Lawyers or if Civil Party lawyers retain the power to advance the interests of their clients at trial. Because the Co-Lead Lawyers have only an obligation to “seek the views” of and “endeavour to reach consensus” with Civil Party lawyers regarding overall advocacy, strategy, and in-court presentation, in practice the ability of individual Civil Parties to exercise their rights through their Civil Party lawyers may be substantially restricted.

The Chambers of the ICC has allowed victim participants the opportunity to make opening and closing statements. While Civil Parties in the ECCC have the right to make a closing statement, the Civil Parties do not have the right to make an opening statement, and appear to be specifically excluded from that opportunity.

Legal representatives of victims before the ICC have been granted access to both the public and confidential record. The lawyers of the Civil Parties in the ECCC have the right to access and obtain copies of the case file.

The ICC allows legal representatives of victims to submit applications to the Court to question witnesses including the Accused. While the ECCC provides that Civil Parties “shall” be able to ask questions, the permission of the President of the Chambers is required. Whether the “permission” requirement poses a substantive hurdle to the Civil Parties ability to exercise this right is unclear. Before the ICC, if the application of the legal representatives is granted, the Chamber may limit the manner and form of the questions posed by the legal representative. Similarly, the Chamber of the ECCC determines the order that it hears Civil Parties, witnesses, and experts, and also determines the order in which the judges and parties have the right to ask questions. Victim participants in the ICC, if permitted by the Chamber, can be both victim participants and witnesses in the same case. Civil Parties before the ECCC can no longer be questioned as a simple witness in the same case.

The right of victim participants or Civil Parties to offer, lead, and examine evidence has proven to be a controversial issue before both Courts. The Chambers of the ICC has determined that victim participants may submit and examine evidence (including exculpatory and incriminating evidence) as well as call witnesses if the Chamber determines that such actions are (1) necessary for the determination of the truth and (2) the issues addressed involve the victims’ personal interests. While the ECCC grants Civil Parties the explicit right to submit evidence, the ECCC has prohibited Civil Parties from submitting/examining evidence in relation to issues of sentencing and the character of the Accused, finding that the interest of Civil Parties is primarily the determination of reparations. The ICC has yet to address the issue explicitly, but appears to have left open the possibility that victim participants can lead, offer, and examine evidence regarding the sentencing and the character of the Accused. In the future, the ICC’s determination of this issue will rest on a finding of whether the “personal interest” of the victim is engaged by issues related to the sentencing and character of the Accused, and whether the evidence proposed by the victim participant accords with the Court’s general interest in the determination of truth.

In regards to the final judgment on the merits, victim participants before the ICC can only appeal an order of reparations. Civil Parties before the ECCC have the additional opportunity to appeal the verdict, but only when the Co-Prosecutor’s have also appealed. Neither victim participants before the ICC nor Civil Parties before the ECCC can appeal the sentence.

In regards to the substance of a reparations order, the ECCC is more limited than the ICC when determining reparations. While the ICC has the authority to order individual reparations, the ECCC has the power to grant only collective and moral reparations. As noted above, both victim participants and Civil Parties can appeal an order of reparations in their respective courts.

5. Trends
While a comparison of the substantive rights of victim participants in the ICC and Civil Parties before the ECCC has rested generally on the difference in meaning between the terms “participant” and “party,” developing jurisprudence before the respective court demonstrates that, in practice, there are numerous areas of similarities and convergence. Contrary to what has commonly been noted when comparing the rights of victims before the two courts, if recent trends in the form of participation rights granted to victim participants and Civil Parties continue, it appears that there may be instances in the future where the rights exercised by victim participants before the ICC during certain proceedings surpass those exercised by Civil Parties before the ECCC.

For a full report, click: http://www.dccam.org/Tribunal/Analysis/pdf/ECCC_ICC_Victim_Participation_C_Yim.pdf

[1] The International Criminal Court, established by the Rome Statute, is a permanent international criminal tribunal located in Den Haag, Netherlands. The jurisdiction of the ICC is limited to crimes occurring on or after July 1, 2002.

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