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Victims Voices Must Not Jeopardise Fair Trial

To date, 93 victims have been granted participation status in the trial of Thomas Lubanga Dyilo, and although it is early days in the proceedings their presence is already being felt in the courtroom.

Lubanga’s trial began on January 26 with the opening statements of seven victims’ representatives. The victims are mostly former child soldiers, but others also include family members, a school which former child soldiers attended and the headmaster of that school. Under court rules private entities including schools can participate as victims and are classed as “legal persons”.

For the most part, their opening statements focused on the harm suffered by the victims, on the victims’ rights to truth, justice, compensation, recognition of the harm they suffered, rehabilitation and protection. Lawyer Carine Bapita stressed the importance of giving victims a voice “to tell what they have been through, the distressing situation in which they found themselves, how they were mistreated, and how they were rejected by their community”.

While the opening statements would have been a perfect opportunity to tell individual victims’ stories, few representatives actually did this, with some opting instead to talk about the conflict in the DRC in general, issues of criminal liability and the reasons why child soldiers were used.

In addition, six of the seven victims’ representatives also mentioned the rape or sexual abuse of girl soldiers, even though Lubanga is charged solely with the recruitment of child soldiers.

Presiding judge Adrian Fulford did not seem to take issue with the reference to these additional crimes. However, defence lawyer Catherine Mabille, did not take kindly to the “oratory” of the victims’ representatives, saying in her opening statement the next day that their words amounted to anonymous accusations against her client for charges he isn’t supposed to be facing in the present proceedings.

Recognised victims are allowed to present their “views and concerns” at stages of the proceedings which the court deems appropriate, provided that participation doesn’t interfere with the rights of the accused to a fair and impartial trial. It is worrying, however, that many representatives used their opening statements to make reference to crimes not included in the charges against Lubanga, thus raising concerns on his right to a fair trial.

On the plus side, while perhaps not exactly providing a voice to victims to tell their personal stories, the questions of their representatives to witnesses have not been unduly burdensome or invasive on the accused’s fair trial rights.

To date, victims’ representatives have posed questions to five witnesses -three former child soldiers, a father of a former child soldier, and most recently, a psychologist who testified on post-traumatic stress disorder.

Some of these questions have been rather obscure, and it is occasionally unclear as to how they fall within the remits of presenting the “views and concerns” of the victims represented.

For example, one witness, a female former child soldier, was asked a rather specific question as to whether she was given the opportunity to change her clothes during the four weeks of her training. She replied that she stayed in the same unwashed clothes she was abducted in for the entire time.

Moreover, the expert witness was asked whether the onslaught of post-traumatic stress disorder would be affected by the belief that those who one is killing have specific magical or spiritual attributes, or that those who had given the orders to kill possessed such powers or attributes. Aside from raising a point of interest, it is difficult to see how this question illustrates the represented victims’ personal suffering in any way, but perhaps some light will be shed on the matter if and when victims introduce their evidence in the coming stages of the trial.

More controversial and of concern to the defence is the introduction of evidence by victims. While this means of participation was confirmed in January 2008, and re-confirmed in the appeals chamber decision of July 2008, it is clear that counsel for the accused finds it highly disagreeable.

Mabille told the trial chamber that the evidence which the victims are to introduce after the prosecutor is “something we [defence counsel] know nothing about”. How it will work out in practice remains to be seen.

However, access to documents has possibly been the most contentious issue with regard to victim participation throughout the trial to date.

On January 18, 2008, pre-trial chamber one ruled that victims could have access to confidential filings in the case, provided that they could show a personal interest in gaining such access, and that access would “not breach other protective measures that needed to remain in place”. Victims would also get advance notice of the list of documents which are expected to be referred to during witness testimony.

The victims’ lawyers went on to request notification of all filings except those that are ex-parte – known only to the chamber and one of the parties. This was denied in an April 8, 2009 decision, as was the request for access to all documents which either party intends to rely upon in the trial. Judges reconfirmed that victims lawyers must make advance requests for specific documents.

The April 8 decision appears to restore victims to their true position as participants, and not full parties to proceedings, and retains the balance between victims’ rights and the rights of the accused.

However, should victims be allowed introduce evidence after the prosecution concludes its presentation of evidence, this will raise serious concern for defence counsel and fair trial advocates alike, particularly if continued mention is made to sexual violence crimes.

One can only hope that the trial chamber strives to ensure that the participation of victims for the remainder of the trial does not prove unduly burdensome on the right of the accused to a fair and impartial trial.  

Yvonne McDermott is currently undertaking a Ph.D. in international criminal law at the Irish Centre for Human Rights. The views and opinions presented here represent the personal views of the author and do not necessarily reflect the views and opinions of either the Open Society Justice Initiative or IWPR-Netherlands.