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Judges Issue New Procedure for Admitting Victims in Ntaganda Trial

In new guidelines issued by International Criminal Court (ICC) judges for admission of victims to participate in the trial of Bosco Ntaganda, the court’s Registry shall assess individual applications to determine those who qualify as victims.

In a February 6, 2015 decision, the chamber considered that assessment of every application by judges was “neither appropriate nor necessary.” Rather, designating the Registry to assess the applications based on specific guidelines was the “most efficient and appropriate way.”

The judges noted that in other ongoing trials before the ICC, the Registry often makes similar assessments, including filtering out incomplete applications and making detailed reports on the merits of applications to inform judges’ assessments.

In reaching its determination, the chamber considered “the large number of victims expected to express interest in participating at trial” and the June 2, 2015 trial commencement date, among others.

It has been nearly two years since Mr. Ntaganda walked into the American embassy in Kigali, Rwanda and asked to be transferred to the ICC. The court had issued two arrest warrants against him: the first in 2006 and a second in 2012. In June 2014, pre-trial judges confirmed 18 charges of war crimes and crimes against humanity against him. The alleged crimes were committed during an ethnic conflict in Congo’s Ituri’s province in 2002-2003, when he allegedly served as deputy chief of staff of the Patriotic Forces of the Liberation of Congo (FPLC).

According to Rule 85 of the court’s Rules of Procedures of Evidence, individuals seeking to participate in a trial as victims have to make an application demonstrating that they suffered direct or indirect personal harm as a result of an incident falling within the confirmed charges.

During trial proceedings, victims may participate directly by testifying before the court as witnesses called by the prosecution (dual status witnesses) or upon a request to present their views and concerns by their legal representatives being granted by judges. If judges find the accused guilty, victims are entitled to reparations for the harm suffered.

During the confirmation of charges phase, 1,120 individuals were granted participating status in the proceedings. Of these, 140 were child soldiers and 980 were victims of alleged FPLC attacks. At the time, pre-trial judges rejected 80 applications while the Registry reported that approximately 800 applications were received but had not been transmitted to the pre-trial chamber. The Registry anticipates receiving 400 more applications to participate in the trial phase.

The guidelines issued for admission as a participating victim in the trial are as summarized below:

  1. The Registry must transmit all complete applications and any additional supporting materials, without redactions, to the chamber on a rolling basis.
  2. The Registry must assess applications on the basis of guidance provided by the chamber on identity as a natural person and the harm suffered. The Registry must separate the applicants into three groups: (a) applicants who clearly qualify as victims (‘Group A’); (b) applicants who clearly do not qualify as victims (‘Group B’); and (c) applicants for whom the Registry could not make a clear determination for any reason (‘Group C’).
  3. The Registry is to follow this same procedure for victims whose applications to participate were accepted during the confirmation stage. The Registry should list these victims under Group A except for those it considers may no longer qualify due to the parameters of the charges confirmed.
  4. The Registry must prepare at least one report which lists, without need for application-by-application analysis, the victim applications which fall into each of the three groups. Applicants in ‘Group B’ should be categorized according to those who failed to demonstrate identity or kinship, those who suffered harm outside the scope (including geographically) of the charges, and those rejected for any other reason. The Registry must notify these reports to the chamber, the prosecution, the defense, and the lawyers appointed to represent participating victims.
  5. To ensure that all applications are processed prior to commencing trial, the Registry must make a final transmission of simplified application forms falling under: (a) Group C to the chamber and parties no later than 60 days prior to the trial commencement date; (b) Groups A and B to the chamber no later than 15 days prior to the trial commencement date. No new applications may be submitted for consideration after these deadlines.
  6. The prosecution and defense are entitled to reply to Group C applications within a time limit set by the chamber.
  7. Upon receiving any submissions from the parties on Group C applications, the chamber will assess them individually. Barring a clear and material error apparent in the Registry’s assessment, the chamber will also ratify the assessment of applications in Groups A and B.
  8. The Registry must maintain a database of information provided by victims admitted to participate in the proceedings, and must make available to each legal representative of victims in the case the data provided by the victims that he or she represents.
  9. The Victims Participation and Reparations Section (VPRS) must periodically provide a detailed report about the victims admitted to participate in the proceedings and their general situation.

A status conference has been scheduled for this Tuesday, February 17. It will discuss progress on preparations for the Ntaganda trial, including the status of evidence disclosure, discussions between parties on agreed facts of the case, and the views of parties and participants as to the possibility of holding part of the trial in situ in the Democratic Republic of Congo or a neighboring country.