Congo-Kinshasa: ICC Appeals Court Allows Reparations for 'Indirect' Victims

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Hirondelle News Agency (Lausanne)

14 July 2008
Posted to the web 15 July 2008

The Hague

Victims can present themselves and ask for reparations before the International Criminal Court (ICC) if they suffered a personal injury even if it was not direct, the Appeals Chamber ruled last week.

The decision follows an appeal filed early this year by the Democratic Republic of Congo DRC) rebel leader Thomas Lubanga's lawyers, Catherine Mabille and Jean-Marie Biju-Duval, who were unclear on three points: Must a victim have suffered a direct injury to participate in the trial? Is it necessary to impose a link with the crimes charged against the defendant? Can a victim intervene during the trial?

The Appeals Chamber has ruled that any harm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victims.

The Chamber thus distinguishes personal injury from direct harm. It is based on the case of children soldiers, the main crime charged against Lubanga, to support its demonstration. The harm is obvious, it considers, when for example "there is a close personal relationship between the victims such as the relationship between a child soldier and the parents of that child" To determine if a victim suffered a personal injury, the Appeals Chamber estimates that the judges must determine, according to the "particular circumstances" if the undergone harm is personal.

On the links between the victims and the crimes charged against the defendant, the Appeals Chamber reminded that the purpose of trial proceedings was the determination of the guilt or innocence of the accused person and considers that "only victims who are victims of the crimes charged may participate in the trial proceedings". It is up to the victims to prove it.

Lastly, concerning the participation of the allowed victims in the capacity of "civil parties", the five judges ruled that they can participate in the trial proceedings and comment on the evidence presented during the hearings, but within very strict restrictions. The victims will have, in particular, to initially submit their comments in writing, and to show that their personal interests are concerned. They will then have the possibility, or not, of bringing evidence relating to the guilt or innocence of the defendant and of disputing the admissibility or the relevance of evidence presented in the trial.

The Appeals Chamber noted that this provision was not in contradiction with the principle of a fair trial or contrary to the rights of the defendant, and especially that it is not incompatible with "the responsibility for the prosecutor to prove the responsibility of the defendant".

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