Q&A With ICC Victims’ Lawyer Paolina Massidda on Challenges and Successes of Victims’ Participation and Delays in Making Reparations

Paolina Massidda is the Principal Counsel of the Office of the Public Counsel for Victims (OPCV) at the International Criminal Court (ICC). She spoke to the International Justice Monitor about how victims’ participation and representation has been shaped at the court since its first trial opened seven years ago and the challenges of representing thousands of victims in a single trial. Massidda also discussed why it has taken so long for the court to have clarity on the reparations that could be made to victims in trials that have been concluded and what happens to victims in cases, such as in the Kenyan situation, that have been terminated. 

Wairagala Wakabi (WW): The first case was concluded about four years ago in terms of the conviction and issue of the reparation decision by the trial chamber, but victims are still waiting. Why is it taking so long to have clarity on reparations?

Paolina Massidda (PM): The issue of reparations was first discussed in the [Thomas] Lubanga case, but when the trial chamber issued the order on reparations, this order was appealed by all parties in the proceedings including the victims who were not so content about the result. It took three years for the Appeals Chamber to decide on the appeal. It is now almost one year that proceedings are with a new trial chamber in order to monitor how to implement the amended order for reparation issued by the Appeals Chamber. So there has been a delay because there are some procedural remedies to decisions which have been activated by different parties in the proceedings.

We are now in the stage where the Trust Fund for Victims should implement the amended reparations order as issued by the Appeals Chamber. However, this implementation has been rooted to some extent by the Trial Chamber monitoring the implementation phase and the Trust Fund has identified some practical problems in implementing decisions by the Trial Chamber, and this is the reason why we are to some extent still discussing how best to implement in practice the reparation order as amended by the Appeals Chamber.

WW: What were the issues in the appeal that judges decided on? In other words, how does the amended reparation order differ from the original one, and what are the current issues which the Trust Fund is raising?

PM: The amended order is essentially in relation to the responsibility of Mr. Lubanga. The trial chamber did not find Mr. Lubanga liable for reparation because Mr. Lubanga is indigent. The Appeals Chamber reverted this finding by saying Mr. Lubanga has to be liable on a civil law point of view about reparation. So this is one thing that the trial chamber has to determine, say the amount of responsibility for Mr. Lubanga. There was also the issue of only collective award of reparations. Some victims wanted to have individual reparations and the trial chamber decided to have only collective reparations. This was confirmed by the Appeals Chamber. I would say these are the main issues. And also the fact that the trial chamber considered that components of gender issues should be taken into account in the implementation of reparations and this was one of the issues which has been appealed by the defense because Mr. Lubanga was not charged with any gender crimes but only with the war crime of recruitment and enlisting and use of children under 15 for hostilities.

Of course the Appeals Chamber had to send back the proceedings to a trial chamber in order for the trial chamber to take over and monitor the implementation. The trial chamber decided to give the lead of this implementation to the Trust Fund for Victims, which is the entity in charge of implementing reparation awards. In doing so the Trust Fund has decided to go to the field and of course to meet with the victims, under instructions of the chamber, and the Trust Fund has to identify individual victims who may qualify for reparations and assess the extent of their prejudice.

This process is taking very long because it is resource consuming because victims are dispersed in various areas in Ituri. Second, because you need to interview victims one by one to take their story and the quest for reparation. Third, there is an issue of providing the defense with application forms of victims, including identity of the person, so you need to get the consent of the person for their identity to be given to the defense. This is an issue because victims might have security concerns particularly now that Mr. Lubanga is back in DRC [Democratic Republic of Congo]. All these issues create a certain delay in the way in which reparations can be implemented.

WW: Are these the issues that the Trust Fund has raised recently?

PM: Yes, these are the issues which the Trust Fund has raised recently in submissions filed on May 30 and June 7. Today we have filed our own submissions on those issues trying to identify some practical ways of proceeding. 

WW: But even when those issues are sorted out and there is clarity on how to go forward, for individuals who are indigent like Lubanga and Germain Katanga, what are the best mechanisms for making reparations?

PM: This is an issue which has to be decided by each chamber. For Lubanga is a quite clear we are going for collective reparations, and it will be the Trust Fund to provide it and this is also clear in the legal text of the court, that if the convicted person is indigent, then the Trust Fund shall implement awards for reparations.

WW: What kind of collective reparations might be considered?

PM: That will depend on a case by case [as] I don’t think we can have a definition of what collective reparation could be. We might have some example of what it means in the Lubanga case: the Trust Fund indicated that they would like to provide some projects which should alleviate the victimization of former child soldiers, including what they call an integrated approach, meaning that they can only approach the victimizations by providing different services not only for instance education but also psychological or medical support if needed. But the Trust Fund is probably better placed to explain the collective component of an award for reparation and what it could mean in the framework of the ICC proceedings.

WW: In many of the cases at the ICC, the crimes were committed very long ago – about 13-14 years ago. How do the victims feel, seeing up to now the issue of reparations has not been settled?

PM: I can only answer what concerns Lubanga because it is the case we are involved in so far. Of course victims have some concerns because it is taking so long. Some of them could decide to withdraw their request for reparations because they feel at this time they don’t need it any more or they don’t wish any more to have this kind of reparations. On the other hand there is still hope that despite the lapse of time something could be done for them to rebuild their lives.

WW: What happens to the victims are in the Kenya cases that were terminated? Do they get abandoned?

PM: This is a case for which I was not appointed as common legal representative, so I have not met directly with victims. But of course if a case is terminated then there is no participation of victims per se so it means victims will not be entitled to any kind of reparations. Now the question could be whether the Trust Fund for Victims might have activated their assistance program in Kenya or other countries. I think this is feasible, but it is not up to us to determine if it is feasible or not. It is the Trust Fund to determine if it is feasible and what kind of assistance could be provided.

WW: Seven years after the first trial opened at the court, how has victims’ participation at the ICC been shaped? What are the current models in victims’ participation and representation, and where are the challenges?

PM: There was a certain amount of interpretation of rules which helped shape participation of victims in proceedings and modalities of participation. We have today some rights acquired – the right to be heard, the right to appear in person, the right to present evidence, the right to intervene in all kind of debate during the proceedings. There are of course still matters that need to be interpreted. And there is also some need for uniform practices, but overall the participation of victims has been incentivized in these years. What would be necessary is more clarity on application forms for participation, meaning standardize the application form because different application forms have been used in different proceedings so far.

Regarding legal participation several models have so far been put in place by different chambers. I think the method which has been put in place now in several cases which provides for a team of lawyers led by a lawyer from the Office of Public Counsel for Victims supported by a field counsel based in the country where the victims are, has shown to be quite effective. In the two cases where this model has been implemented – that of Bosco Ntaganda and Laurent Gbagbo – there has been assessment by the Registry. In both cases victims have indicated that the system is effective, they can reach their lawyer at any time, they have sufficient information, they are aware of developments of proceedings, and they are able to convey their views and concerns to the lawyer.

WW: But there are some challenges…

PM: The first challenge is resources because you need quite some funds in order to be able to meet with hundreds of victims regularly and keep them informed. There is also an issue of consistency in interpretation and consistency in practices. Of course to some extent there could be a challenge in the possibility for victims to follow live the proceedings. In some countries like Ivory Coast it is easy to follow proceedings via video or radio, in others like in Ituri in Congo, it is difficult. So access to justice and seeing justice done could to some extent be a challenge.

WW: Are you able to say more about the issue of consistency in interpretation and practice?

PM: You might have a decision of chambers on similar issues which differ. On one side it could be good because it means the Chambers are adapting their practice on a case by case basis. But on several issues of principle maybe we should find consistency.

WW: In some trials you have thousands of victims. In the Dominic Ongwen case there are more than 2,060 victims. What are the challenges of representing such a big number of victims and how do you reconcile their various interests and expectations?

PM: I don’t think that per se the high number of victims is a problem. It could be a challenge to some extent, but from our experience the legal representation of victims is also an issue of how you organize yourself, how you organize meetings with victims individually or collectively. In our experience once this is organized it is easy to keep them informed and to speak with them.

In relation to the different interests, so far before deciding on legal representation the chamber takes into account the different interests, and if there are different interests then different legal representatives would be assigned to them. And when I look at the different groups of victims you can identify common interests of all individuals that are part of the group. Again it is a matter of first identifying which are these common interests then as a legal representative you represent the interests of each individual. If there are different positions in the group then your task is to present the different positions to the judges.

WW: Something else which has been mentioned in court a couple of times is holding at least part of proceeds near victims.

PM: We have always advocated for having proceedings next to the place where the victims are and where the crimes were committed. We have been pushing for judges going to the country and having part of the trial in situ or at least visit the country in order to have an idea of the cultural background, the area in which the crimes were committed, and to have a sense of the victimization. So we think it is very important for the court not to be seen as a court in distance but a court which is next to victims and this is the reason it is very important the court starts to some extent having some proceedings in situ.

WW: But of course there are challenges – logistical, security…

PM: But I don’t think these challenges are impossible to settle for the judges to travel to other locations. It was already done in the Katanga trial, and I don’t see why it could not be done in other proceedings.

WW: In May 2016, the Single Judge in the Ongwen case ruled that victims who individually choose their own legal representatives do not qualify for legal assistance from the court. What informs this decision and how does this affect victims’ rights?

The ruling in the Ongwen case was made because a group of victims, using their free choice of lawyer, decided to appoint specific lawyers to represent them in the proceedings. In the system of the court, because of the high number of victims, we use the model which is common legal representation and it is up to chamber to decide on the appointment of common representatives. In that specific case the single judge considered that the victims who chose a legal representative can continue to maintain that legal representative but that legal representative could not be appointed as a common legal representative. [The single judge] decided to appoint a lawyer from the Office of the Public Counsel for Victims – in this case myself, I was appointed as common legal representative for victims who did not appoint an external lawyer.

The issue was that in accordance with legal text, the accused are entitled to receive legal aid from court while victims may receive legal aid, but they can only receive legal aid if their lawyer is appointed as common legal representative. Since the lawyer they chose was not appointed as a common legal representative the single judge ruled that this lawyer was not entitled to be paid by the court.

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