Can the ICC be fair in its trials, when the rights of victims of mass crimes have no real status during hearings? This is the question asked by Lhave Sermet, university professor and specialist in international law.
The Criminal Court is the first and only permanent jurisdiction competent to try senior officials for the crimes of genocide, crimes against humanity, war crimes and the crime of aggression: a real achievement on the part of the international community.
However, after almost twenty years of existence, the Court is the subject of persistent criticism and grievances abound. His "partiality" towards Africa is questioned, in particular on the pretext of the resounding acquittals of Jean ‑ Pierre Bemba, former vice-president of the DRC, in 2018, and Laurent Gbagbo, former president of Côte d'Ivoire, in 2019, accused of the most serious crimes. In addition, there are American economic sanctions against the prosecutor, Gambian Fatou Bensouda, due to the opening of an investigation in Afghanistan for war crimes and crimes against humanity committed by the various forces present, or the withdrawal of States from the jurisdiction of the Court (Burundi, Philippines) or their refusal to subscribe to it ( China, United States, Russia, India, Israel…).
So many elements which attest, even more than its disputed reputation, of its fragility. The universality of the jurisdiction of the Court is not established and many crimes can go unpunished.
How to improve its functioning? The election of a new prosecutor, the Briton Karim kahn, specialist in international criminal trials, who will take office next June, can she really change the situation? A line of thought aims to take into account the victims.
Victims absent from international trials
There is an unrecognized and yet fundamental point of procedural law: the place of victims in international criminal proceedings.
Until the adoption of Rome statute in 1998, international criminal law had excluded them from trials by choosing an exclusive face-to-face between the suspect and the prosecution, whether it was the international military tribunals of Nuremberg (1945) or Tokyo (1946) or ad hoc criminal tribunals for the former Yugoslavia and Rwanda (1993 and 1994). The criminals were thus not judicially confronted with the victims but with the proofs of guilt, in a logic of charge and discharge of the latter.
Thus victims were paradoxically absent from mass crime trials and could only be heard as witnesses to the evidence. The suffering, the trauma, the broken lives were not displayed in the international courtroom, thus saving precious time.
No possibility of repairing the mass crimes was possible leaving the victims unanswered. From the 1990s, an evolution is noticeable. Victims appear before justice and truth commissions and / or defendants appear before judges. Such a division can only pose a problem: failing to do justice to the victims is to double their initial damage.
A place for victims before the ICC?
Nothing of the sort, a priori, before the Court, whose statute recognizes the victims in two places, either to make them “participate” in the judgment (article 68), or as part of a final phase aimed at repairing their prejudices ( article 75). How can we really repair mass crimes? What individual, collective, symbolic and compensatory reparations? The practice of the Court is hardly provided.
For twenty years, only four cases - three in the DRC and one in Mali - have given rise to compensation, which does not attest, once again, neither really to the efficiency of the Court, nor to the taking into account of victims. The last repair order is recent (March 8, 2021, Bosco Ntaganda case). As the Court does not grant emergency and provisional reparation, victims must wait until the end of the trial phase so that, if necessary, the reparation phase begins.
Philippe Kirsch, principal negotiator of the Statute of Rome and first president of the Court, had qualified the place of the victims of "constructive ambiguity", that is to say a wobbly and peripheral statute placing them on the margins of the criminal trial.
Most of the game before the Court remains centered on the accusation-accused relationship. Two ongoing cases concerning crimes committed in the Central African Republic and Darfur show the difficulties in anchoring the place of victims in the international criminal trial.
In 1993, following the seizure of power by force leading to the flight of President François Bozizé, a conflict broke out between the Sélaka forces and the anti-balaka, precipitating the death of thousands of people and a massive exodus, both internal and in neighboring countries (especially Chad and DRC) according to UN. Masters Yare Fall and Elisabeth Rabesandratana have forbidden the interests of victims and the need to give them a voice during the trial Yekatom and Ngaïssona on February 17, 2021, as part of the opening hearing. Proof of the importance of their word: the trial is followed with attention in Bangui by the casualties.
Asmal Clooney, lawyer for victims of the Darfur conflict dating back to 2003, requested the Court, on January 8, 2021, in the case Abd-Al-Rahman, the "permission" to represent 102 victims of a conflict that has thrown on the roads some 340 refugees from Darfur, endorsing the point of view that prioritizes casualties.
Admittedly, determining the quality of victims for mass crimes is not an easy task and a “personal interest” in accessing the courtroom is required of them (art. 68 of the statute). Admittedly, the Court adopts an approach A, B, C, depending on whether the victims are recognized (A), are not (B) or can be (C). Admittedly, the Court adopted the possibility of double online form (participation / repair). This makes it possible to consider their identification from the start of the procedure and for it as a whole.
As things stand, crime continues to be the basis of the quality of participating victim, favoring a “criminal-centered” approach, that is to say one centered on the accusation-defense relationship. In fact, the material, geographic and temporal field retained for the prosecution, even if it is mobile in the stages of the investigation, includes and excludes the victims.
Victims exposed to complex legal tactics
These thoughts are not neutral. They raise questions of justice: what fair trial under these conditions? What real right to compensation for crimes? What international justice?
“The fundamental question that remains to be resolved after, of course, the conviction is the equitable management of the unspeakable and often incalculable consequences, which these atrocities have caused and continue to cause on a daily basis, to those who have been the victims. "(Master Fall)
These reflections also arise in terms of judicial tactics. In the Darfuri case, the defense lawyer, Maître Cyril Laucci, on January 13, 2021, expressed a marked concern for the interests of the victims, which is obviously a rare position because these are more spontaneously favorable to the prosecution evidence:
“Presuming that the interests of the victims diverge from that of the suspect necessarily implies that the latter is presumed guilty. The Defense endeavored to demonstrate that the respective interests of the victims and of Mr. Abd-Al-Rahman, although clearly distinct, could present certain converging aspects ... the conviction of a person without having established his guilt beyond any reasonable doubt at the end of a fair procedure is contrary to the interests of the victims in that it adds the double injustice of the potential conviction of an innocent person and the impunity of the real culprits to that which they already have endured? "
This positioning, obviously tactical, aims to embarrass the prosecutor who is reluctant to bring the victims to the forefront of the judicial scene because everything is, in this procedure of Anglo-Saxon origin, subject to a thorough contradictory examination, between the Prosecution. and Defense who will seek the advantages and disadvantages of their participation. That the victims are not present at the trial, the Defense will reproach that they threaten the presumption of innocence. Whether the victims are, they will be suspected of undermining the speed of justice and the balance of arms.
In reality, the access of victims to the procedure is a laborious process and which is, for each case and at each stage, the object of discussion to know if their quality of membership in group A, B, C is verified. Sometimes the status of victim is withdrawn. Once admitted, this participation is very constrained, by virtue of the Rules of Conduct precise, and placed under the control of the judge:
- Concerned about the fair and rapid conduct of the procedure, the Chamber will assess the necessity or the appropriateness of questions from the legal representatives of victims (LRV) on a case-by-case basis.
- The role of the LRV is different from that of the prosecution, which should be reflected in the type of questions asked. The prosecution bears the exclusive burden of proof in establishing the alleged crimes.
The Court is bogged down in practice and the ambiguity is not constructive. As stated Mr. Rabesandratana :
“The Court must be an example for all jurisdictions and international law. As such, it must formulate general principles of rights common to the various legal orders; thus build the unity of law; promote the rule of law over force, corruption and the fight against impunity; allow a country to rebuild itself. International criminal justice cannot / must not contribute to fragmenting the law. The unity of the law consists in granting an adequate place to the victims and thus moving from a dual / binary relationship “accusation v. defense ”to a ternary“ accusation-victims-defense ”relationship. "
Rethinking the place of victims
The addition of victims to the proceedings can be illustrated by the geometric figure of the rhombus:
This rhombus is interpreted with regard to three levels. The highest concerns the judge and his arbitration function. The intermediate level, the most publicized, opposes in a relationship of intense competition between the prosecution and the defense to admit the prosecution and defense evidence.
The victims belong to the third level of the international criminal process, peripheral, which places them in a "bureaucratic normalization" which could be perfectly revised by challenging this secondary position, by giving them the possibility of participating fully in the contradictory relationship between the prosecution and defense.
Indeed, the interpretation conducted by the Court overvalues the statute to the detriment of other sources of international law, in particular international human rights law which could serve as a source of inspiration, for example the Declaration basic principles of justice for victims of crime and for victims of abuse of power. It would only be a matter of applying the canons of international interpretation. And take up the challenge of resilience for "Go resolutely towards peace, social cohesion and living together" (in the words of Tidiani Moussa Naibi, imam of the Central Mosque of Bangui).
Laurent Sermet, University professor, associate of public law, skills in international law, anthropology of law, Sciences Po Aix. MR ADES 7268, Aix-Marseille University (AMU)
This article is republished from The Conversation under Creative Commons license. Read theoriginal article.