Paolina Massidda is the Principal Counsel of the Office of the Public Counsel for Victims at the International Criminal Court (ICC). She has represented thousands of victims participating in the proceedings before the Court, right from the first trial the ICC conducted, that of Congolese militia leader Thomas Lubanga. In an interview in mid August, she explained to the Open Society Justice Initiative how victims’ participation has been shaped by the court over the years, her worries about possible reviews to victims’ participation, and why the first decision issued by the court on reparations presents challenges.
Wairagala Wakabi: One trial has been completed by the court and two others are going on. What are some of the positive things in terms of the way victims’ issues have been handled, in terms of their participation?
Paolina Massidda: First of all, the real possibility for victims to participate at trial, meaning to have their voice heard during the proceedings. This was probably the first success for victims in the Lubanga trial. In the Lubanga trial victims were consulted via their legal representative on any essential issue related to the proceedings. They were able to present their views and concerns. Sometimes they even presented views which were a bit different from the ones presented by the Office of the Prosecutor (OTP) and I think it is very important because often the role of the victims has been identified, mainly by the defense but also by others, as the role of ‘second prosecutors’ which is not the case because victims have an independent role in the proceedings and this has been clearly established during the Lubanga trial.
The second important step is that decisions on major issues related to victims’ participation issued by Trial Chamber I have established precedent for other trials. So for instance the way of intervening in the presentation of evidence by the parties was followed in the Katanga-Ngudjolo Chui case and then in the Bemba case. This established a practice of what victims could do during the proceedings, the way they can interact with the other parties and with the Chamber. These were mainly the novelty in victims’ participating in the proceedings.
And also the possibility of presenting evidence at trial, which was not very evident at the beginning. This was actually one point which was highly litigated among the prosecution, defense and legal representatives of victims, and finally the Appeals Chamber confirmed this possibility for victims to present evidence, including the possibility for victims to appear before the Chamber as witnesses called by the legal representatives; but also, as happened in the Bemba trial, to simply appear in the courtroom providing their story without being assimilated to a witness. In the Bemba trial, victims appeared indeed in their own capacity as victims telling their stories without being obliged to take the oaths.
WW: What is the importance of that? They are not presenting evidence but presenting their views and concerns to the Chamber.
PM: It is always important for a victim to have the opportunity to tell the story as he or she has lived it. If you appear as a witness, then you are a little bit confined in a role, someone is guiding you, and you are questioned on certain events. The fact that a victim can appear simply telling the story means that he or she is free to speak freely about the events he or she has suffered from, in the way he or she perceives the consequences of what happened to him or her. Of course the issue is what kind of value you can give to this appearance; and it is uncertain at this point since this possibility only happened in the Bemba trial and no decision has been taken so far on the way the Chamber will weigh this intervention. What seems clear to me is that it is not a testimony so probably the Chamber will not rely on it for purposes of the judgement, but in any case it could corroborate part of other testimonies or other issues dealt with at trial.
WW: Still on the issue of victims presenting evidence, there has been, mainly in the Lubanga trial but also when victims applied to present evidence in the Bemba trial, the reaction that this would be a double prosecution, that they would be repeating what prosecution witnesses had already said.
It has to be understood that the interests of victims are clearly distinct from the interests of the prosecution. Sometimes victims may have another perspective on the mode of liability or other issues at trial. If you look at the examples in which legal representatives of victims were allowed to present evidence, you will see that the evidence presented by victims was complementary to the evidence presented by the OTP.
One of the criteria established by Chambers in order for victims to be allowed to present evidence is that it will not duplicate what the prosecution had already presented. When victims ask permission to provide evidence, there is an evaluation by the Chamber on whether the proposed evidence is necessary to establish the truth, whether it will help the Chamber in understanding the facts, and whether the said evidence is not repeating something which has already been presented by the Office of the Prosecutor. Only if these criteria are met then will the Chamber allow the presentation of evidence. So it is really restricted. There is a prior evaluation before allowing victims to present evidence. In this sense, I don’t think we can say victims have duplicated the evidence and I think, in fact, victims gave an important contribution to the presentation of evidence because they concentrated on aspects which were not sufficiently explored by the OTP.
For example, witnesses presented by legal representatives in the Bemba trial were mainly people coming from areas of the country outside Bangui, which was the main area where the prosecutor had concentrated in relation to testimonies. So they were able to present another view of the extent of the crimes and the damages suffered because witnesses called by the legal representatives came from different areas ofCentral African Republicequally affected by the crimes as the capital. I think legal representatives contributed in making the Chamber understand the extent of the crimes and damages suffered from by the victims.
WW: Let’s talk a bit about reparations. We have had the first decision or guidance on how to go about making reparations. I have seen information from the Trust Fund for Victims that they have 1.2 m euros they are planning to use and that they can not use all of it for Lubanga victims but they’re also mindful of other trials going on. This looks like little money to cater for the reparations.
PM: Unfortunately I am not well positioned to answer for the Trust Fund, and I do not know how much resources the Fund will be able to reserve for purposes of reparations in the Lubanga trial. I do not know if the Trust Fund will ask for contributions, but the problem that I see is that the decision issued on the 7th of August 2012 is not a decision the victims were expecting on reparations. The Trial Chamber has indicated that it is a decision on principles for reparations. The Chamber has indeed identified important principles to be taken into account in reparations proceedings, however, in reading the decision what I understand, and this is my personal opinion, is that the Chamber has left to the Trust Fund for Victims the power to manage the entire process of reparations.
The legal representatives of victims and the Defense have considered that some important issues arose from the decision and at present two different appeals are pending on matters related to the procedure to be followed.
Moreover, in the decision, the Chamber has stated that it is essential to have coordination and co-operation between the Registry TFV, OPVC, and experts who will be appointed for purposes of establishing which kind of reparations victims might benefit from. But it is unclear to me which is the role of each of these entities at this point in time. So for me the decision on reparations is good on principles but I am still reflecting whether this decision is sufficient enough to grant victims effective reparations.
It is also true that the decision established that for the purposes of reparations, a Trial Chamber newly constituted will be appointed so that these three new judges could supervise and monitor the implementation of the reparations plan prepared by the TFV. But we are not yet at the very phase of reparations because the Trust Fund will need first to make a plan, then this plan will need to be approved by the Chamber, and as I have said some issues are pending in appeal. So the decision is not implementable at this time.
WW: Let’s look at some of the principles given by the Trial Chamber. The judges said victims should be at the center of reparations proceedings and the needs of vulnerable people such as children, women and victims of gender-based violence should be addressed as a priority. For the case of Ituri, how important is this?
PM: The Chamber did good reasoning in establishing these principles. The trial has to some extent established that many of the former child soldiers suffered from gender-based crimes so this is still a priority in Ituri. What is also important in the decision of the Chamber, is that the Chamber has clearly said it is important to address the issue of vulnerability and the issue of gender crimes also because people who suffered from these crimes were stigmatized from the community and this could be put in relation with other principles which have been established by the decision of the Chamber, the principle of reparations as a means of reconciliation in the community, as a means to again put together the community which has suffered from war and which could try to re-establish some way of living together despite what happened.
It is still a little bit a theoretical discussion because there is a need to see in practice how these principles should work and this is also something which the decision has left to the TFV. In the decision it is clearly written that there is a need to consult victims, to consult the communities, to understand from them what are the priorities and to find ways in which the victims and the communities can be involved in the process of reparations because if victims and communities aren’t involved, we risk having reparations which are not useful and which will not address the real needs in the field. This is the main challenge coming from the decision by Trial Chamber I.
WW: The same could also be said about offering symbolic reparations and promoting reconciliation between victims of child recruitment with their families and communities?
PM: Again it is too early to say how it will be done because the court has first to explore the possibilities available and what victims want. Only after having explored these two aspects, the court, presumably the Trust Fund, will be able to provide a clear implementation plan and this will probably take some time.
WW: You work with victims in many countries. Generally, and not just in the Lubanga trial, what are the expectations of victims in terms of reparations?
PM: The Office of the Public Counsel for Victims was created in 2005 and since then we have been involved in all situations and cases before the court. This means we have had the opportunity to see almost 10,000 files for victims and we have met in person with 90 percent of them. The first thing we do normally when we meet with victims is to ask why they want to participate, what are their expectations. The great majority of them tell us ‘I want my story to be heard and I want someone in the courtroom to tell my story.’ Sometimes we say that the OTP is also telling their story and often they reply that the OTP has necessarily a more limited view related to the duty to prove a case, so what they mainly want is someone in the courtroom that they trust and they are sure is going to present their interests in the proceedings.
Secondly, very few think about reparations at least at the beginning of their interaction with the court. For some, it is not really a priority and you can even have a difference with people who have suffered from crimes such as pillaging or destruction of property for whom it is more clear what reparations can be, such as to have back their house or property. On the contrary for victims who suffered from gender crimes or enlistment and conscription it is very difficult to think in terms of reparations because their life, as they say, has been completely destroyed. When you speak to them sometimes they will tell you ‘well, I don’t know what can help me because I have suffered so much and I have suffered from so serious events that I think there is nothing in life that can repair what I have suffered from and what I have lost’.
WW: In terms of victims’ participation, what do you think has not been done or has not been done well, where you would wish to see some changes?
PM: There are still a number of issues which need to be addressed in order to render victims’ participation more effective, starting with the timing of decisions on participation of victims. Until very recently, decisions on participation were taken very late in the proceedings, mainly at the eve of the start of proceedings – the eve of confirmation of charge or the eve of the start of the trial, which renders it very difficult for a lawyer to be in a position to properly represent the interests of clients particularly if that lawyer is appointed at a very short notice. When a decision of participation of a victim is taken, a decision is also taken on common legal representation and often the decision on common representation change the appointment of the legal representative of victims just at the start of proceedings. This renders it very difficult for the new legal representative to be ready to represent the interests of the clients effectively since he or she will need to be acquainted with the proceedings, as well as to know his or her clients.
The other issue which needs to be thought about is the way in which victims have to always argue on how their personal interests are affected at each phase of the proceedings in order for them to be able for instance to present evidence or to question witnesses or to participate in interlocutory appeals. When the Chamber, in ruling on victims’ participation, decides that the personal interests of victims are affected by the outcome of the trial, I don’t see why there should be a need each time there is presentation of evidence to still demonstrate that victims have a personal interest in intervening on that specific evidence in order to be allowed for instance to question witnesses at trial. Another issue is the access to documents particularly at pre-trial stage when legal representatives of victims are normally only granted access to public documents which cannot be enough to represent the interests of their clients.
But participation of victims is still a novelty and not even an entire cycle of a proceeding has ended. So there’s still a need to see how in practice the participation of victims could continue. The only thing I am worried about is that there seems to be a tendency to try to limit the participation of victims in the proceedings. For instance very recently in the [Laurent] Gbago case a collective approach to application forms was implemented and the OPCV expressed some doubts about the possibility to adopt the said approach considering that the legal texts of the court refer to individual applications and that victims might not be comfortable in using a collective form. I have also heard some discussions related to the possibility for legal representatives to only appear at specific stages of the proceedings. So we’re at a stage where the participation of victims is being reviewed and I hope this will not mean there will be restriction of the rights of the victims, which in my opinion was not the purpose of the drafters of the Rome Statute.
WW: Why would there be a rethink on victims’ participation at this stage?
PM: Several issues came up: the problem of handling thousands of applications with limited resources available; the problem of costs involved in the assistance and representation of victims. But proceedings before the Court necessarily involve thousands of victims because of the nature of the crimes adjudicated by the ICC. So we need to find a way to grant the rights of victims effectively, taking into account the resources that are needed and the best way to work effectively with the resources available.