International Justice Monitor

A project of the Open Society Justice Initiative

What can the ICC do for the victims of Kenya’s post election violence?

Sureta Chana, the recently appointed common legal representative for the victims in the Orange Democratic Movement (ODM) case, made a remarkable presentation on the first day of the confirmation of charges hearings. In a sense, the victims’ representative brought attention back to what it is all about: the killing, raping, and displacing of civilians who usually had done nothing else than supporting the wrong political party or belonging to the wrong ethnic group. Exemplifying the suffering of victims, Ms. Chana cited individual victims, such as the man from the Rift Valley who can no longer support his family because he was paralyzed after being stoned by his attackers or the women who bravely, but unsuccessfully, attempted to save the life of her child from the fires of the Kiambaa church.

As Ms. Chana pointed to the complete inaction of the Kenyan authorities, some might have been left wondering what exactly the International Criminal Court (ICC) can do for these victims.

The ICC is generally understood to be a “victim friendly” institution, especially if compared to the ad hoc tribunals set up for the former Yugoslavia and Rwanda, and many national systems of criminal justice. However, to understand how the ICC may help the victims of Kenya’s post-election violence it is first necessary to explain how the Court defines “victims.”

Rule 85(a) of the Rules of Procedure and Evidence stipulates that individual victims refers to persons “who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”

This provision provided Judge Ekaterina Trendafilova of the ICC’s Pre-Trial Chamber II with a starting point when in early August this year she made a ruling concerning who should be considered victims in connection to the ODM confirmation of charges hearings. In accordance with the jurisprudence of the ICC, the judge screened the applications received to clarify whether the victim could properly identify him- or herself; whether the events described in the application for participation constitute a crime within the jurisdiction of the Court with which the suspects are charged; and whether the applicant had suffered harm that “appears to have arisen as a result” of that crime. Such harm, the judge notes, should be “personal” but can involve physical injury, emotional suffering as well as economic loss. Consequently, both direct and so-called “indirect victims,” including those who suffered due to the loss of a family member, could in principle be granted victim status.

Of the 394 applications received in the ODM case, the judge characterized the vast majority (327) as victims within the meaning of the ICC’s legal framework.

What rights then do these victims have in connection to the confirmation of charges hearings and beyond?

A central feature of the Rome Statute is that victims are entitled to participate in the hearings, including the confirmation of charges hearings. In practice, this procedural right means that one or more legal representatives of the victims are appointed by the Chamber and can be present during all public sessions of the hearings.  It also means that the “views and concerns” of victims can be presented by these representatives during the hearings provided that the personal interests of victims are affected by the specific issue under consideration and that such oral submissions do not infringe the rights of the suspects, the expeditiousness of the proceedings or other important objectives of the hearings. Further, victims’ representatives are explicitly granted the right to make an opening and closing statement, an opportunity that Ms. Chana has opted for.

Subjected to any restrictions concerning confidentiality and the protection of national security information, victims or their representatives may also “consult the record of all proceedings before the Pre-Trial Chamber.” As a result, the legal representative of the victims in the ODM case has access to the evidence filed by the prosecutor and the defense counsel, including unredacted versions of documents, though the Chamber may decide on a case-by-case basis that the representative shall not have access to material classified as confidential.

The right to access material also allows the representative, following the Chamber’s authorization, to access transcripts of the sessions of the confirmation of charges hearings, including sessions held in camera or ex parte.

Further, it is noteworthy that the victims’ representative may make written submissions to the Chamber related to law as well as fact. Though again this right is restricted to instances where the personal interests of victims are affected and a number of other restrictions, it may have significant consequences for the ODM case.

Besides confirming or denying the charges against the suspects, Article 61(7)(c)(ii) of the Rome Statute allows the Chamber to adjourn the hearing and request the prosecutor to consider amending a charge because the evidence submitted “appears to establish a different crime within the jurisdiction of the Court.”

In the Decision on the Confirmation of Charges in the Lubanga case, seen here, Pre-Trial Chamber I understood this to allow the Chamber to independently – and against the wish of the prosecutor – add a charge against the accused.

Seemingly with this decision in mind, the victims’ representative in the ODM case has requested Pre-Trial Chamber II that she be allowed to make written submissions with the purpose of convincing the Chamber that it should expand the charges against the three suspects on its own initiative. Noting that virtually all of the victims “have suffered loss as a result of destruction of property,” Ms. Chana made it clear that she believes the charge of persecution should be extended to include “acts of destruction and/or burning of property, infliction of injuries and looting” (on this request, see further Tom Maliti’s article, “Victims may seek more charges against Ruto, Kosgey and Sang.”)

The presiding judge of Pre-Trial Chamber II rejected this application on the grounds that she believes “an amendment of the charges could only be brought by the Prosecutor” in light of the evidence submitted during the confirmation of charges hearings, thus dismissing the practice of Pre-Trial Chamber I in the case against Lubanga. Nonetheless, Judge Trendafilova did not exclude the possibility that arguments presented by the victims’ representative at an “appropriate stage” could be taken into account by the Chamber when ruling on the charges, a ruling that could potentially involve requesting the prosecutor to amend the charges.

In other words, the victims may, at least indirectly, affect how the Chamber rules on the charges, and thus the question of whether the suspects should stand trial and for what crimes.

A number of other rights may also prove important for the victims in the ODM case.

For one, the victims’ representative is allowed to question the witnesses and experts called by the prosecutor or the defendants to testify before the Court. While such examination is subjected to a number of restrictions, it is important to note that the Appeals Chamber has understood this right to imply that the representative’s questioning may relate to matters which bear upon the guilt or innocence of the accused person, see  Appeals Chamber judgment on victim participation in the Lubanga case.

As illustrated by Ms. Chana’s questioning of Cheramboss, a former commandant of Kenya’s paramilitary General Service Unit (GSU) called to testify by Ruto’s defense team in connection to the ongoing confirmation of charges hearings, this right does not only concern the trial itself, but may also be exercised in connection to other court hearings.

Interestingly, though neither the Rome Statute nor the Rules of Procedure and Evidence say anything specific about victims’ right to lead evidence before the Court, the Appeals Chamber confirmed a ruling of the pre-trial chamber in the Lubanga case that the victims through their legal representative may present their own evidence during the trial pertaining to the guilt or innocence of the accused. In other words, should the ODM case move on to trial, Ms. Chana may chose to introduce evidence on behalf of the victims which could ultimately influence whether the three suspects are found guilty or not.

Crucially, victims also have a right to reparations as a direct outcome of the ICC cases. According to Article 75 of the Statute, the Court is empowered to “determine the scope and extent of any damage, loss and injury to, or in respect of, victims.” Such a decision, which can be based on a request from the victims or be made by the Court acting on its own initiative, may award reparations on an individual or collective basis, or both. Article 75 also authorizes the Court to order that a convicted person provide victims with reparations, including restitution, compensation and rehabilitation. Should the convicted person prove uncooperative, the Court may request the relevant state to seize property and assets of that person with regard to satisfying the victims.

However, persons convicted by international tribunals often succeed claiming indigence. With this in mind, it is important that – as unique feature of the ICC – a Trust Fund for Victims has been established.

The Trust Fund, which began its operations in 2007, is mandated to give effect to a possible ruling on compensation, but it may also in other ways help the victims in Kenya. As illustrated by the establishment of a series of projects in Uganda and the Democratic Republic of Congo despite the lack of any conviction in these cases so far, the Trust Fund has created a policy according to which victims may enjoy benefits even before the ICC cases are finalized. However, as the Trust Fund has limited resources – and taking into account that a pre-trial chamber has “strongly recommended” that the Fund should prioritize allocating resources to execute future reparation orders – it is far from certain that victims in Kenya will benefit from the Fund’s existence in any significant way, or at all, at this stage.

The ICC provides the victims of Kenya’s post election violence with some important rights, also in connection to the ongoing confirmation of charges hearings. It is vital that these victims, many of whom according to Ms. Chana continue to receive threats, are respected, not only by the Court but also by the Kenyan government as well as the communities in which they live. As important as the ICC process is for the victims in Kenya, providing them with the redress that they deserve and are entitled to requires that attention be paid to other measures as well, including resettlement, establishment of a national compensation program, counseling, access to medical services, and other forms of reparations.

1 Comment
  1. I watched the final submissions and heard the advocate for thevictims make certain allegations and I am shocked at the levels of inaccuracy we can go to fix or for lack of a better expression, incite an already polarised population. Does the ICC have any remedies to such untrue facts made before it? Or is it open to such lie mongering as was exposed by Ms Chana.

    Read this link from a leading local daily

    http://www.nation.co.ke/News/politics/-/1064/1233450/-/item/0/-/gjj53m/-/index.html

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