25th July 2018
An Analysis of Victims’ Participation in the Kosovo
Specialist Chambers from a Restorative Justice
Perspective: A Comparison with the International
Criminal Court
Alberto Martínez García Public International Law dhr. prof. dr. mr. G.K. (Goran) Sluiter
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To my grandmother, Conchi: I wish you had been eternal.
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Abstract
Following the so-called Marty Report, the Kosovo Specialist Chambers and Specialist Prosecutor’s Office were created. The mandate of this new international(ized) Chamber is to investigate and prosecute international crimes committed in Kosovar territory between 1 January 1998 and 31 December 2000. However, along with the disclosure of its regulations, the question of victims’ participation immediately arose. While the ICC Statute and Rules set up the most advanced system towards the recognition of victims in international criminal proceedings, it is necessary to analyse whether this trend is followed by the Kosovo Chambers.
In this thesis a comparison between the ICC and KSC victims’ participation scheme will be carried out. In doing so, the requirements to become victim before both tribunals will be assessed. This would lead us to the analysis of the different stages of the proceedings regarding victims’ possibilities to participate. Also, bearing in mind the attachment of the new Chamber to each level of the court system in Kosovo, some elements of victims’ representation and participation will be contrasted with their equivalent in domestic law. This thesis attempts to give an answer as to whether a restorative justice approach is possible with the Kosovo Specialist Chambers (KSC) regulations. For these purposes, a comparative approach will be followed.
Keywords: Kosovo Specialist Chamber; Kosovo Specialist Prosecutor’s Office;
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TABLE OF CONTENT
INTRODUCTION ... 7
Part I: CRIMINAL LAW AND VICTIMS ... 8
1. Victims in Criminal Proceedings ... 8
1.1 The Role of Victims in Domestic and International Law: Different Possibilities? ... 11
1.2 The Kosovo Specialist Chambers: New Features in the International Landscape ... 14
Part II: VICTIMS BEFORE THE KSC ... 16
1. The concept of ‘victim’ ... 17
2. Victims’ Interest: A Hidden Requirement in the KSC? ... 20
3. Means of participation: how can victims claim their rights?... 23
3.1 Applying for participation ... 23
3.2 Victim Representation Before the Kosovo Specialist Chambers ... 27
Part III: VICTIMS THROUGH PROCEEDINGS ... 30
1. Investigation and pre-trial stage ... 30
2. Trial: Participation as non-party? ... 32
3. Appeal, Supreme Chambers and Constitutional Court ... 34
CONCLUSION ... 37
6 Abbreviations
CoE Council of Europe
EULEX The European Union Rule of Law Mission in Kosovo ICC International Criminal Court
IHL International Humanitarian Law
IHRL International Human Rights Law
ICC OPCV Office of the Public Counsel for Victims of the ICC ICTY International Court for the Former Yugoslavia KSC Kosovo Specialist Chamber
KSC Law Law No. 05/L-53
KSPO Kosovo Specialist Prosecutor Office OTP Office of the Prosecutor, ICC
RPE ICC Rules of Procedure and Evidence of International Criminal Court RPE KSC Rules Procedure and Evidence of the Kosovo Specialist Chamber VPO Victims’ Participation Office
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INTRODUCTION
Since the appearance of the International Criminal Court (ICC), the role of victims in criminal proceedings has become more important. Changing the previous trend towards a more effective participation and restoration of victims, the ICC set up the basis for the rest of international actors with regard to the treatment of those affected by international crimes.
The application of a restorative approach in the aforementioned Court should be seen as a milestone in the fight against the consequences of the crime. This is why, the Kosovo Specialist Chambers (KSC) has a great opportunity to follow this path and contribute to victims’ recognition in the international landscape.
This thesis attempts to give an answer as to whether a restorative justice approach is possible with the KSC regulations. Taking into account the improvements achieved by the ICC in this field, a comparison between them proves to be useful. Therefore, a comparative approach is used in order to underline the similitudes and differences between the ICC and KSC regulation with regard to victims’ status and participation.
Representational practices in both international judicial bodies are assessed in order to identify whether the trend towards restorative justice was followed and, thus, whether the victims’ concerns are taken into account in international criminal proceedings to achieve a more effective remedy.
The first part of this thesis is dedicated to the explanation of the victim’s position in criminal proceedings and their implications as both the justification and purpose of international tribunals. The second part concerns the requirements to be met in order to be considered a victim in those proceedings. Finally, the third part explains victims’ possibilities to effectively participate in various stages of the proceedings, namely investigation, Pre-Trial, Trial and Appeal proceedings. Some aspects throughout this thesis are also compared with domestic legislation.
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Part I: CRIMINAL LAW AND VICTIMS
1. Victims in Criminal Proceedings
During the 20th century, victim’s participation in criminal proceedings suffered a
drastic change. While in the early 1900’s, the figure of the victim was seen as a mere consequence of the crime without voice in the trial, or even in the whole criminal proceeding, nowadays this perception has changed towards a more valuable and comprehensive participation of those who have suffered the cruel consequences of crimes.
In the past, crimes were considered to be against individuals. There was no sociological element in criminal behaviours and, thus, the punishment of the crime was left for those who were “punished” by the wrongdoer. The clearest example of this model is the Talion Law,1 where a pure retributive approach was taken.
The birth of the modern Criminal Law is characterized by the disappearance of this model and the introduction of the necessary social element. From that moment on, the Society was the subject entitled – through state’s institutions – to investigate and punish the criminal behaviour. The victim was considered a witness of the crime and was eventually used as an evidence that helped to clarify the facts. This phenomenon is known as the ‘neutralization of the victim’2 and represents what WALGRAVE defines as ‘state monopoly over the reaction to crime’.3 Therefore, a rather complete neutralization of
victim in proceedings was adopted in this model.
The role of victims as mere witnesses of the crime was criticized and rejected by society. That is why, caused by social movements and the increasing importance given to some victim groups – mainly in domestic systems –, the perception of victims changed. While it is true that criminal law is a part of Public Law and, therefore, the investigation and punishment of the crime is not in the victims’ hands, nowadays their role is seen as a
1 The most famous verse of this law can be translated to “eye for an eye and a tooth for a tooth”. It shows a “perfect” correlation between the damage suffered and the damage claimed.
2 Winfried Hassemer and Francisco Muñoz Conde Introducción a la Criminología y a la Política
Criminal (Tirant lo Blanch, Valencia 2012) p 149.
3 L Walgrave Restorative Justice, Self-Interest and Responsible Citizenship (Routledge, New York 2012) p 5. This author argues that the restorative justice is a challenge to the state monopoly to the reaction to crime.
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key element in the determination of the truth and the search for justice. The retributive approach was dropped in favour of restorative justice.4 This is also true in the field of International Criminal Law. In Tadić case, 5 the Appeal Chamber acknowledge that
[a] State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well.
Although no definition of restorative justice has been found as universal, it is characterized by the search for healing and justice. The victim is an important element of criminal proceedings and is considered the centre and principal receptor of justice. TINNEKE VAN CAMP correctly argues that restorative justice ‘holds great promise for compliance with victims’ needs for involvement and voice’. 6 This approach was born
with the intention of giving voice to victims and, through this process, accomplish a more effective healing and understanding of their necessities. This author also identifies the main subjects of restorative justice stating that ‘restorative process is characterized by the active involvement of the victim, offender and community in the search of conciliation and reparation (be it symbolic or material)’.7
Regarding the distinction between symbolic and material compensation, BASSIOUNI has stated that ‘[w]hile monetary compensation may be central to this process, victims often desire that their suffering be acknowledged, their violators condemned, and their dignity restored through some form of public remembrance’.8 As stated by WEMMERS ‘[v]ictims come to the criminal justice system seeking recognition and validation of what happened to them’.9 This recognition cannot be reached without a proper participation of victims in criminal proceedings.
4 For further information about states which follow restorative justice and their development within Europe, see, Frieder Dünkel ‘Restorative Justice in Penal Matters in Europe’ in Helena Soleto and others (eds) Justicia Restaurativa y Terapéutica (Tirant lo Blanch 2017).
5 (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY-95-1 Appeals Chambers (2 October 1995) § 97.
6 Tinneke van Camp ‘Victims of Crime Finding Meaning Through Participation in Restorative Practices’ in Helena Soleto and others (eds) Justicia Restaurativa y Terapéutica (Tirant lo Blanch 2017).
7 ibid.
8 M C Bassiouni ‘International Recognition of Victim’s Rights’ (2006) 6 Human Rights Law Review 203, 232.
9 Jo-Anne Wemmers ‘Where Do They Belong? Giving Victims a Place in the Criminal Justice Process’ (2009) 20 Criminal Law Forum 395,40.
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Restorative justice can be considered from its purist approach, or from a more
maximalist approach.10 It is not the aim of this paper to study them in-depth. However, it is worth mentioning that the involvement of the victim in the settlement of the criminal dispute increases when we go from the latter to the former, while the consideration of the crime as an offence against society decreases. Mediation as the only mean to solve disputes might be an example of the purist approach, while the application of mediation only in some “private” crimes only prosecuted at the victim’s instance, might be considered within the maximalist approach.
While in domestic law the desirable outcome of restorative justice can be accomplished by mediation, in international law instruments will differ. Nevertheless, the trend towards this restorative approach can be found in or infer from some international legal documents, such as the Rome Statute,11 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law12 or UN
Nations Approach to Transitional Justice.13 Nowadays, a wide range of international
conventions and declarations contain the rights of victims to participate in criminal proceedings. Human rights movements and their subsequent legislation made this possible, while state practice has complied with their duty to grant reparation to victims.14
10 WEMMER in her article ‘Where Do They Belong? Giving Victims a Place in the Criminal Justice
Process’ suggests a more elaborated classification. This author divides the different legal mechanisms regarding victims’ participation in abolitionism, addition and integration. The first represent a total elimination of retributive system and implementation of a pure restorative approach; the second placing the role of victims on the top of the criminal justice system; and the third is characterized for an integration of restorative values into the criminal system. In this regard, see also Daniel David Ntanda Nsereko ‘The Role of Victims in Criminal Proceedings – Lessons National Jurisdiction Can Learn From the ICC’ (2010) 21 Criminal Law Forum 399, 402-404.
11 Rome Statute of International Criminal Court, adopted on 17 July 1998, entered into force on 1 July 2002 (RS).
12 Adopted by General Assembly on 16 December 2006, A/RES/60/147 (UN Basic Principles).
13 Guidance Note of the Secretary-General, March 2010. According to this note, ‘[f]or the United Nations, transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.
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1.1 The Role of Victims in Domestic and International Law: Different Possibilities?
Restorative Justice protects and promotes victims’ interests over society’s needs and claims. This can be done easily when, a person is injured and society is not affected in a large extent. An example of this would be the commission of robbery to an individual. In this model, although society values are also under threat, the victim carries the most interest. Apology and an understanding of the reasons that led the offender to the crime will help the victim to heal and to reach closure.15
Therefore, Society, victim, and offender are overall the main actors in the crime and they all must be represented in criminal proceedings to ensure a fair outcome. Their interests and concerns are, by definition, different. The ICC has already made a distinction between them in Lubanga case. The Appeals Chamber, while deciding about the participation of some victims, stated that
[m]ore generally, an assessment will need to be made in each case as to whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor.16 However, regarding international crimes, society’s interest seems more relevant. The ICC Statute acknowledges that international crimes are “atrocities that deeply shock the conscience of humanity” and that “such grave crimes threaten the peace, security and well-being of the world”. The need of healing and restoration of the victim is undeniable, but international crimes are characterized by their threat to a larger extent of population, namely the international community.17
Crimes adjudicated in international criminal tribunals have very specific characteristic. The scope of their effects, the perception of these crimes by society or the threat to international peace are some of the characters that distinguish them from
15 Not surprisingly, in the Aftermath of the Holocaust, German Government used apology as a method of reparation to victims. See, for instance, Bassiouni (n 8) 221; On the other hand, as the same author explains in page 224, Japan had failed to offer apologies for their participation in the Wold War II. 16 Thomas Lubanga Dylo case, (Decision of the Appeal Chambers of the Joint Application of Victims a/006/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007) ICC-01/04-01/06 OA813 (June 2007) § 28.
17 Other references to international community as a receptor of international crimes effects can be found in the Rome Statute. For all of them, art. 5 of the mentioned legal document that states ‘[t]he jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole’.
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domestic crimes. Moreover, an interesting feature that differentiate international from domestic criminal proceedings is their goals. D LUBAN18 has recalled that international law pursues trial goals while domestic courts focus their attention in punishments. It is often argued that no matter the punishment that results of the commission of an international crime, it will never equal the damage caused. Therefore, international criminal law need other goals that legitimate its punishments. The abovementioned author identifies that aims as ‘promoting social reconciliation, giving victims a voice, or making an historical record of mass atrocities to help secure the past against deniers and revisionists’.19 These new goals are, in essence, a description of elements of restorative justice. This mechanism may have a role as both goal of international proceedings and its legitimator. While no consensus about the gravity or extent of the punishment will be reach, everyone agree that heal must be granted to victims.
Although the change of goals in international proceedings may be necessary, we also need to be aware of the limitation in the application of some techniques such as mediation. Restorative justice might not be applicable in its whole extent to international criminal proceedings. For instance, the large number of victims of war crimes, makes it impossible for all of them to talk before court and receive apologies from the offender. Therefore, while it is necessary to give the victim a relevant role in international proceedings, a complete equalization between international and domestic means cannot be made.
Nevertheless, the application of restorative justice in the international criminal context was led by the ICC and was acclaimed as one of the most valuables achievements of this international court. It gave voice to victims in proceedings. Even though victims were not considered parties to the conflict, art. 68 of the Rome Statute recognizes their right to participate when some requirements are met. The office of the Prosecutor (OTP) acknowledged that ‘victims are actors of international justice rather than its passive subjects’.20 This is, as mentioned above, the first step for the implementation of restorative justice. Obviously, without victim’s participation, this model cannot be
18 D Luban ‘Fairness to Rightness: Justice, Legality and the Legitimacy of International Criminal Law’ in S Besson and J Tasioulas (ed) The Philosophy of International Law (Oxford University Press 2010) p 574-577. This author believes in the role of norm projection of international law and reviews the change of focus from the mentioned punishment to a more restorative approach.
19 ibid 575.
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implemented. However, ICC Statute and its Rules of Procedure and Evidence, are far from let victims participate to an extent consistent with restorative practices. It is not the aim of this paper to explain the system of victim’s participation in the ICC. However, the recognition of the victim as a party to the conflict is essential to the full implementation of the restorative model. For the victim to feel that justice is done, a certain level of involvement in proceedings is necessary and it cannot be achieved without equalling the role of victims, Prosecutor and offender.
Moreover, the substitution of the retributive model for a more restorative one, has many advantages for both the community and the ICC.21 Firstly, the information that a victim who is willing to cooperate with the tribunal can offer, is of enormous value; secondly, the unique perspective that a victim has, can be used for prosecutorial purposes; thirdly, it helps to minimize the consequences of victimization and secondary victimization due to the effects of the process and institutions; fourthly, the active involvement of victims legitimates the role of the ICC.22 However, detractors of this
model have correctly ascertained that an individual treatment of victims is not possible when dealing with international crimes. The magnitude of these crimes makes it impossible to address all the victims and ensure a proper and efficient mental and physical reparation. D NTANDA, judge of the Appeals Chamber in the Special Tribunal for Lebanon, has summarized some criticism risen by detractors of victim participation in international proceedings, namely: introduction of an overly subjective voice into guilt and sentencing consideration; the possible effect to the balance of justice; the undue delay of the process and its ability to jeopardize de right of the accused; possible interferences with the prosecution and its ability to conduct prosecutions; and the secondary victimization that victims may suffer when they are forced to relive the trauma.23 Nevertheless, all these criticisms can be refuted looking into domestic jurisdictions and victims’ participation in its proceedings. None of these problems are specific to international adjudication, nor are such problems in domestic practice.
21 In this regard, BASSIOUNI understands that “Achieving these restorative goals is fundamental to both the peace and security of any State since it eliminates the potential of future revenge and any secondary victimisation that may result from the initial violation”, in his article Bassiouni (n 8) 232
22 All these advantages were already acknowledged in Office of the Prosecutor (n 20); for a more impartial point of view about how a victim can benefit proceedings, see Mariana Pena and Gaelle Crayon ‘Is the ICC Making the Most of Victim Participation?’ (2013) 7 The International Journal of Transnational Justice.
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1.2 The Kosovo Specialist Chambers: New Features in the International Landscape
The birth of the KSC and Specialist Prosecutor’s Office (SPO) is defined by a trial-and-error history in the fight against a rather unstable social and political situation and the alleged international crimes committed in Kosovar24 territory.
Back in 1999, pursuant to the United Nations Security Council Resolution 1244, the United Nations Interim Administration Mission in Kosovo (UNMIK) was stablished with the mandate of ‘provid[ing] transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo’.25 As this
objective was accomplished in 2008 with the declaration of independence of Kosovo26
and the adoption of its Constitution, the performance of UNMIK ceased.
The next step in Kosovo governance by foreign institutions was led by The European Union Rule of Law Mission in Kosovo (EULEX). 27 It was created in 2008 with
a more legal perspective and aim.28 Moreover, following the warning by the former International Tribunal for the former Yugoslavia (ICTY) Chief Prosecutor, Ms. del Ponte, concerning possible crimes committed in Kosovo, international actors took the call and reacted in various ways. These allegations triggered the Council of Europe (CoE) interest and urged the necessity of finding evidence of these facts. The Motion for a Resolution tabled by KOSACHEV29 led to the work of D MARTY.30 In his report, evidences of forcible imprisonment, inhuman and degrading treatment and organ trafficking were found and The Kosovo Liberation Army (KLA) was identified as responsible. However,
24 Mentions to Kosovo and Kosovar territory are strictly illustrative and lack of any legal aims with regard to Kosovo’s recognition and status. All references to Kosovo, thus, must be understood in accordance with Resolution 1244 of the United Nations Security Council.
25 Art. 10 UNSC Resolution 1244(1999).
26 Kosovo declaration of independence, 17 February 2008.
27 European Union Rule of Law Mission in Kosovo created by European Council Joint Action 2008/124/CFSP.
28 Reluctant about the presence and basis of the creation of EULEX, see, S Williams ‘The Specialist Chambers of Kosovo. The Limits of Internationalization?’ (2016) 14 Journal of International Criminal Justice 25, 27.
29 Konstantin Kosachev, Motion for a Resolution about ‘Inhuman Treatment of People and Illicit
Trafficking in Human Organs in Kosovo’ Doc. 11574, 15 April 2008, Council of Europe.
30 Dick Marty ‘Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo’
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D MARTY made another important statement: EULEX, as European team of investigators and prosecutors, was lost in the objective of fighting against these crimes. As he explains: ‘European Union and the other contributing states should set EULEX a clear objective and give it the necessary political support to combat organised crime uncompromisingly, to ensure that justice is done’.31
As a consequence of the doubts and allegations risen by D MARTY in his Report, the KSC and SPO were created.32 A rather informal procedure of exchanging letters between the European Union High Representative and the President of Kosovo set the basis for the new tribunal.33 In its domestic perspective, it was created pursuant Law No. 05/L-053.34 According to art. 3 of the mentioned law, ‘[s]pecialist Chambers shall be attached to each level of the court system in Kosovo (…)’.35 Although the SC and the SPO are independent in their functions, they are inserted in Kosovo’s domestic judicial system and shall comply with and apply Kosovo law.36 Nevertheless, it is not a domestic
tribunal per se , neither is it an international one since it also must adjudicate in accordance with customary international law and international human rights.37 Moreover,
the content of the crimes within the chamber’s jurisdiction are similar, if not the same, as the ICC crimes and they must be consistent with customary international law.
Some scholars have already discussed about the nature of the KSC without reaching a consensus. It has been defined as ‘internationalized institution’ or ‘regional variation of mixed tribunal’38. What seems clear – and rather obvious – is that we are not before an
31 ibid.
32 The EULEX performance will end in June 2018 leaving the KSC and SPO in charge of Kosovo’s
situation.
33 This exchange of letters was considered a way to reach an international agreement by Law No. 04/L-274 “On Ratification of the International Agreement Between the Republic of Kosovo and the European Union on the European Union Rule of Law Mission in Kosovo”. Art. 2 of the aforementioned Law includes the letters as integral part of the legal document and makes no reservations to its content.
34 Law No. 05/L-053, approved by Kosovo Assembly on 3 August 2015.
35 Art. 3(1) Law No.05/L-053.
36 ibid art. 3 (2)(a)(b)(c); For the creation of this tribunal and its insertion in Kosovo’s legal system, an amendment of the Constitution was necessary. Art. 103(7) of Kosovo Constitution does not allow extraordinary courts, although it permits specialized courts. The Assembly of Republic of Kosovo amended art. 162 to give legal basis to the creation of this institution. The Constitutional Court of Kosovo ratified this decision in their Judgement of 15 April 2015 (Constitutional Court of Kosovo, Judgment in Case No. KO26/15) in which set the differences between extraordinary and specialized courts.
37 ibid art. 3(2)(d)(e) and art. 12
38In this regard, it is worth noting that authors did not reach a consensus about the meaning of this categories. While WILLIAMS makes a distinction between hybrid and internationalised institutions to conclude that the KSC falls within the latter, CIMOTTA consider both to be similar and synonym of mixed criminal tribunals. See, Emanuele Cimotta ‘The Specialist Chambers and the Specialists Prosecutor’s Office in Kosovo. The ‘Regionalization’ of international Criminal Justice in Context’ (2016) 14 Journal of
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international tribunal. On the one hand, the KSC is attached to Kosovo justice system and its legal basis are to be found in it.39 But on the other hand, all staff and judges are international,40 and they are sat outside Kosovo.41 Moreover, it has jurisdiction over both international and national crimes.42
The debate about its nature is not irrelevant. The characterization of the KSC as an internationalized criminal tribunal has some consequences on victims’ participations and opportunities to be restored. The fact that it must comply not only with international law and principles, but also with domestic legislation, make of it an extraordinary opportunity to take a step forward on victim’s involvement in international proceedings.
Part II: VICTIMS BEFORE THE KSC
It is fair to believe that every international(ized) tribunal after the creation of the ICC will follow its steps towards a more efficient participation of victims. Movements in the opposite direction would not be logic or smart when it comes to the justification of the existence of international tribunals. The minimum standard already achieved by the ICC must be respected and promoted. This second part aims to explain the current situation of the victim before the KSC while comparing it with the standards already set by the ICC. Since no decisions about victims has been rendered yet in the Specialist Chamber, the analysis will be mainly based on legal precepts.
International Criminal Justice 53 andSarah Williams ‘The Specialist Chambers of Kosovo. The Limits of
Internationalization?’ (2016) 14 Journal of International Criminal Justice 25, 26.
39 Some scholars have argued that the legal basis for the function and creation of this Specialist Court are to be found in UNSC Resolution 1244(1999).
40 Art. 26 Law No.05/L-053.
41 Agreement between the Kingdom of the Netherlands and the Republic of Kosovo concerning the
Hosting of the Kosovo Relocated Specialist Judicial Institution in the Netherlands <https://www.scp-ks.org/en/documents/host-state-agreement-between-netherlands-and-kosovo-15-feb-2016> (accessed 1 March 2018).
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1. The concept of ‘victim’
The concept of ‘victim’ has different definitions according to which field of law we are referring to. Those who are considered victims of Human Rights violations might not qualify as such under international criminal law. For instance, the UN Basic Principles defines victims as
persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law.43
This definition contains a very wide range of who can be considered victim under International Humanitarian Law (IHL) and Human Rights Law (HRL).44 However, this broad concept is not present in the Rome Statute. Rights are only conferred to victims who fall within the definition of Rule 85 of the Rules of Procedure and Evidence (ICC RPE). This definition includes ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court’ and ‘may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes’. For the purposes of reparation, every subject under these two paragraphs will be entitled to act as a victim. However, some other requirements are to be fulfilled in order to participate as a victim in the proceeding.
According to art. 22(1) of the Law of KSC, ‘[a] Victim is a natural person who has personally suffered harm, including physical, mental or material harm, as a direct result of a crime within the jurisdiction of the Specialist Chambers’. Under KSC Law, legal persons are not entitled to be considered victims within their proceedings. The question
43 UN Basic Principles, principle 8. This concept is broadened as ‘immediate family or dependants of the direct victim and persons who have suffered the har in intervening to assist victims in distress or to prevent victimization’, are also included.
44 A rather wide definitions are also contained in ICTY and ICTR legal documents. However, these definitions cannot be taken into consideration since their purpose is to describe victims as recipients of compensation and protective measures, but not with regard to participation.
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of what these companies can do in order to get reparation is unsolved, although the resort to civil complains seems to be the only option.
Moreover, not all people who are harmed by crimes under the Specialist Chamber jurisdiction are considered victims. A second requirement must be met: the harm must be suffered ‘personally’. While in HRL, people related to the person who suffered the consequences of the violation are considered victims, under KSC Law only the person who physically, mentally or materially suffered the harm, can amount to that position. This poses a new threshold not present in the ICC regulation. In Lubanga case, the Trial Chamber I acknowledged the possibility of indirect harm for victims and based this statement on the UN Basic Principles.45 By this decision, the international court went one step closer to the definition of victim given by HRL. However, the KSC seems to dismiss this development. In order to be considered a victim of the international crimes alleged in Kosovo, a person must prove that the harm was directly suffered by him. The fact that the word “personally” was included in the article concerning victims’ rights cannot be a coincidence and must be understood as imposing a new threshold.
The suffered harm must be a “direct result of a crime within the jurisdiction of the Specialist Chambers”.46 This causal link between the harm and the crime committed was
already present in the RPE ICC and the ruling of its chambers. It is important to note that, the wording of the two precepts are practically the same.47 The Pre-trial Chamber II accepted the existence of a link between the crime and the suffered harm when “the spatial and temporal circumstances surrounding the appearance of the harm and the occurrence of the incident seem to overlap, or at least to be compatible and not clearly inconsistent”.48
The assessment of this link must be done prima facie based on the coherence of the applicants’ statements.49
45 Lubanga case (Decision on victims' participation) ICC-01/04-01/06-1119 (18 January 2008) § 90-92.
46 Art. 22 (1) KSC Law.
47 Note the similitude between “as a direct result of a crime within the jurisdiction of the Specialist Chambers” and “as a result of the commission of any crime within the jurisdiction of the Court”.
48 Situation in Uganda (Decision on victims' applications for participation) ICC-02/04 (10 August 2007) §14. In this case, it is equally interesting to note how the Single Judge dismisses the idea of an assessment about the nature of the link due to the lack of importance under the rule 89 RPE ICC. Also see Gombo case (Fourth Decision on Victims' Participation) ICC-01/05-01/08 (12 December 2008) §74.
49 Katanga case (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) ICC 01/04-01/07 (10 June 2008) § 67.
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Moreover, the ICC would only allow someone to submit evidence of his personal interest 50if he was affected by a crime under its jurisdiction and within the alleged charges. As the Appeals Chamber has already stated:
Given that the purpose of trial proceedings is the determination of the guilt or innocence of the accused person of the crimes charged, (…), only victims of these crimes will be able to demonstrate that the trial, as such, affects their personal interests. Therefore, only victims who are victims of the crimes charged may participate in the trial proceedings (…).51
This argumentation does not only come from the aforementioned articles but also from the most elemental concept of jurisdiction. Since only those crimes which are under the jurisdiction of an international tribunal can be prosecuted by it, only those people harmed by them will be considered victims. Furthermore, a victim of a crime cannot appear before the Court if the alleged crime is not under assessment in that specific proceeding. These criteria are bound to be used by the KSC when a problem in this matter arises.
However, far from getting closer to the IHL definition of victim and broadening its concept – so justice and reparation can be effectively done applying a restorative model– the KSC decided to reduce the number of subjects entitled to victim status.
Although this last definition will be used in the KSC, we should bear in mind that this Chambers were created as a part of the domestic judicial scheme. They are, according to art. 2 (1) of the KSC Law, attached to each level of the court system in Kosovo. The notion of victim in domestic law is, thus, relevant in the discussion of the status of this figure in the KSC. Pursuant art. 19 (1) (1.7) of the Kosovo Criminal Procedure Code52 (hereinafter Procedure Code), an injured party or a victim is defined as “person whose personal or property rights are violated or endangered by a criminal offence”. The introduction of the concept ‘endangered’ in this description broadens this definition to those who are victims of a crimes of danger.53 Therefore, under Kosovo domestic law the
actual harm is not a requirement, the mere brought about of a danger suffices.
50 The personal interest as a requirement is analysed in Part II.2.
51 Lubanga case (Judgment) ICC-01/04-01/06-1432 (11 July 2008) § 62.
52 Criminal Law No. 04/L-123
53 The concept of crimes of danger was defined by E S BINAVINCE in its article ‘Crimes of Danger’ as those crimes in which an actual injury is not necessary for completion of the offence.
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Nevertheless, the lack of this condition is logic regarding domestic criminal legislation because of the wider scope of the crimes under its jurisdiction.
We must note the lack of any other additional requirement. No mention has been made to personal harm or to the distinction between legal and natural person in domestic law. Indeed, the Procedure Code describe ‘damages’ as “harm that directly or indirectly result from a criminal action loss of property, loss of profits, loss of liberty, physical harm, psychological harm, or the loss of life of a spouse or member of an immediate family member”.54 Not only is not harm a requirement in some cases, but also when it is required
it can be indirect and suffered by a different person.
As can see before, the concept of victim under KSC is restricted in many ways from what both domestic and international standards require. Not only does it contain the requirements set by ICC, but also narrows down the number of people entitled to be considered as victim by adding a new requirement namely personal harm. While it is true that this can be justified by the character and nature of the crimes under its jurisdiction, the fact that KSC was design as a part of Kosovo domestic justice system makes us wonder why the domestic standards did not have a more substantial influence in the definition of victim.
2. Victims’ Interest: A Hidden Requirement in the KSC?
While before the ICC someone can be granted with victim status under the rules of procedure and evidence, his participation in proceedings is not automatic. Another requirement was stablished in the Rome Statute for victims to express their views and concerns before the Court. The reference to “where the personal interests of the victims are affected” in art. 68 RS, imposes a new feature in the definition of victims’ participation. In this regard, the Pre-trial Chamber55 has identified this interest with three main rights of the victims: right to the truth, right to justice and right to reparation.56
54 Art. 19 (1) (1.14) Kosovo Procedure Code.
55 Abu Garda case (Decision on the 34 Applications for Participation at the Pre-Trial Stage of the Case) ICC-02/05-02/09 (25 September 2009) § 3
56 The recognition of an interest beyond the mere economic reparation is a valuable step towards restorative justice. Nevertheless, the Office of the Prosecutor criticized this approach and adopted a more restrictive interpretation of art. 68 RS. The OTP aims to a more specific interest that supports and guarantee victim’s participation.
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Accordingly, in his decision in the Katanga case, the Single Judge emphasises the importance for victims to find the perpetrator guilty (or acquit the innocents) and fill the gap between the procedure truth and what really happened.57
In the ICC case law, the court seems to link the personal interest of the victim to the actual proceeding instead of accepting a general interest of the victims in every step towards the discovery of truth and justice of a crime that affected them. For instance, in Lubanga case, the participation of the victims was dismissed due to the lack of interest in a procedural matter.58
Once again, the KSC Law seems to imitate the ICC regulation and imposes the existence of a personal interest as a requirement for the participation of the victim in proceedings. Pursuant to article 22 (6) KSC Law,
[t]he Specialist Chambers may permit representations by Victims’ Counsel on behalf of Victims during the pre-trial and trial proceedings as provided for in the Rules of Procedure and Evidence, when the Victims’
personal interests are impacted and only when it is not prejudicial to or
inconsistent with the rights of the accused.59
It is worth noting that, according to art. 22 (5) KSC Law, Victim’s Counsel is the only representation allowed. Therefore, no representation is permitted to perform an appearance before Court if victims’ personal interest is not affected. Moreover, the requirement is stated again in the rule 114 (4) (1) KSC RPE. In this provision Victim’s Counsel is not entitled to make oral and written submissions or ask questions of witnesses unless the ‘personal interest of the victims participating in the proceedings are affected’. In this case victim’s interest is linked to the proceeding. As in the ICC system, here the person who suffered a harm and have already been entitled with victim status, will have to demonstrate in every stage of the proceedings that his personal interest is affected.
57 Katanga case (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) ICC‐01/04‐01/07 (13 May 2008) § 31-44.
58 Lubanga case (Decision of the Appeals Chamber on the Joint Application of Victims) ICC-01/04-01/06 OA8 (13 June 2007) § 21 and seq.; In this regard, Judges Georghios M. Pikis and Sang-Hyun Song issued separate opinions considering that the interests of the claimants are affected by the outcome of the proceeding insofar the decision confirming the charges of the accused might be quashed by the Appeals Chamber. The seek for justice in this case qualifies as an interest for the proceeding and must be taken into account when the decision can perturb it.
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Therefore, the question we should ask is whether the Specialist Chamber will use a wide concept of personal interest or will follow the ICC OTP in its narrow view. The answer might be in art. 22 (3) KSC Law. The first sentence of this article states: ‘A Victim’s personal interest and rights in the criminal proceedings before the Specialist Chambers are notification, acknowledgement and reparation’. While it seems fair to accept that the victims need for justice, truth and reparation are their genuine interests, the wording of the provision is no sufficiently clear. It seems to equate ‘personal interest’ and ‘victims’ right’. A joint interpretation of art. 22 (3) and (6) suggests that the KSC took a broad interpretation of the concept and, thus, the possible impact on the victim’s interest or rights by the outcome of the proceeding, is enough to justify his participation. Rule 114 (2) RPE KSC also seems to support this view since it allows Victim’s Counsel to perform some duties before court in order to ensure the personal interest and right of victims.60
Nevertheless, the rest of references of personal interest in the KSC Law and RPE KSC does not mention rights as possible target of the proceeding outcome.61 This reveals
two possibilities: first, the KSC will accept a broad interpretation of what is within victims’ personal interest due to the description contained in art. 22 (3) and, therefore, grant participation to victims when their interest or rights might be affected; or different standards will be applied to different actions of the Victims’ Counsel during its participation before court. In any case, a better drafting of the victims’ interest or a clear definition of it, would have been welcomed.
In Kosovo domestic law there is not such a reference to a personal interest of the victims as a requirement for their participation. Since the victim – or injured party – is considered per se a party to the proceedings pursuant art. 19 (1) (1.15) Procedure Code, his rights towards participation are granted in each stage of the proceeding. In this regard,
60 However, it is important to note that the mentioned article is related to the presence of the Victims’ Counsel at the pre-trial and trial proceedings and the possibility of making opening and closing argument with the purpose of ensure the personal interest and rights of the victims. Victims’ Counsel is not allowed to participate in any other way in the proceedings under this article.
61 See, inter alia, rule 114 (4) that enables the Victims’ Counsel to make oral and written submissions and ask questions of witnesses; and rule 126 allowing Victims’ Counsel to make opening statements relating to victims’ personal interest. This last article refers to the abovementioned art. 22 (3) and (6) of the SKC Law and, thus, imposes again the impact on victims’ personal interest as a requirement.
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victim status and right to participate are together. This approach matches with the classic view of victims’ participation in domestic legal systems.
3. Means of participation: how can victims claim
their rights?
3.1 Applying for participation
As seen above, international crimes are characterized, among other things, by the potential large number of people who are to be considered victims. Therefore, an effective participation is crucial when dealing with their rights. Rules 113 and 114 RPE KSC concern this issue. These provisions, under the title ‘Participation of Victims in the Proceedings’, set up the steps for victims to claim their rights before court.
Victims have to apply for their status by filling an application that will be assess by the Victims’ Participation Office (VPO).62The procedure that the KSC has stablished has
some differences with the one applied in the ICC. First of all, the office on charge of dealing with applications is different. While in the ICC, pursuant to rule 89 RPE ICC, the application will be received by the Registry and then transmitted to the relevant Chamber,63 the KSC takes a different approach and entitles the VPO to pre-assess the
requests.64 Although the Panel will make the last decision about the admission of
victims,65 a “recommendation on admissibility” will be addressed by the VPO. This
62 Rule 113 (1) (1) RPE KSC; The Victims’ Participation Office is defined in rule 23 (5) RPE KSC as part of the Registry whose function is to administer the system of victim participation provided in art. 22 of KSC Law, a list of Victim’s Counsel, as well as a system of payment for victim representation.
63 In the Regulation of both the Court and the Registry it is stated that the latter will provide the Court with the applications submitted together with a report. The content of these report will not entail a pre-assessment of the requests. In this regard, see art. 86 (5) and (6) of the Regulations of the Court and art. 109 of the Regulations of the Registry.
64 Rule 113 (2) (1) RPE KSC.
65 Rule 113 (4) RPE KSC; the Panel mentioned in the rule is constituted pursuant art. 33 (1)(b) KSC Law and rule 115 RPE KSC. However, the single Pre-Trial Judge set by art. 33 (1)(a) KSC Law might have to deal with this issue until the Trial Panel is seize (see the overlap of duties set by arts. 39 (8) and (9) KSC Law). Victims are allowed to fill their applications from the moment the indictment is confirmed by the Pre-Trial Judge (rule 113 (1) RPE KSC). From this moment until the Trial Panel is constituted pursuant art. 40 KSC Law, the Pre-Trial Judge will be the authority on charge in this regard.
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procedure might be inspired in the actual practice of the ICC.66 While no mention to a pre-assessment is made in its regulations, the Court has asked for an assessment about the participation of victims. It was, however, limited to the requirements set by rule 85 RPE ICC. In other words, the Registry will not assess the requirements of personal interest or whether the participation is adequate. The system in the KSC does not seem to impose any limits to the assessment of the Registry.
This system takes a big amount of work away from the judges and let them focus their attention in other matters. However, it is also true that the participation of victims in a proceeding against the alleged criminal will be first assessed by a non-judicial authority, the VPO, within the Registry. While this approach improves the expeditiousness of the process, it might also go against victims’ rights to a participation and fair trial. At to what extent the recommendation of the VPO will be important and have influence over the Panel’s decision, is an important assessment that the Chamber must undertake.
Second, the treatment of the applications will be different. The ICC procedure is characterized by a disclosure of the victims’ request to participate to the Prosecutor and the defence.67 Therefore, both parties have the possibility to appeal or reply according to the manner and time set by the Chamber. However, complete privacy of the application is granted by the KSC system. Pursuant rule 113 (1) (2) RPE KSC, ‘[a]pplication forms shall not be disclosed to the Parties’. Only a confidential report made by the VPO will be shared with Prosecutor and defence.68 Any submission about victim’s participation must be made on legal grounds regarding admissibility and common representation69 and it will be based exclusively in the confidential report abovementioned. The narrow scope for appeal in this system benefits the expeditiousness of the proceeding as well, especially in cases where the Prosecution’s view of victims’ participation is stricter than the judicial body’s criteria.70
66 See, inter alia, Situation in the Islamic Republic of Afghanistan (Order to the Victims Participation and Reparation Section Concerning Victims’ Representations) ICC-02/17 (9 November 2017) § 14. In this case, the VPRS is the responsible for carrying out the assessment.
67 Rule 89 (1) RPE ICC. 68 Rule 113 (2) (2) RPE KSC. 69 ibid rule 113 (3).
70 In this regard, the Policy Paper on Victims’ Participation (April 2010) of the OTP ICC discloses differences between Prosecutor’s view and Judicial practice in the role of the victims in proceedings before the Court. With no possibilities available to appeal the participation of victims, these differences will not provoke delays in the proceedings.
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Nevertheless, the decision of the Panel granting or denying participation, will be notified to the parties.71 This approach sets a more protective mechanism for victims that will not have to face a possible secondary victimization from the disclosure of their experience to Prosecutor and Defence. Moreover, victims will feel more confident about giving information of what happened if they know that it will not be known by the defendant, especially in cases in which high ranked officials are the accused.
Third, the content of the form differs. While no reference is made to the content of the form in the KSC Law, rule 113 (4) RPE SKC states
‘[i]n deciding whether a victim may participate in the proceedings, the Panel shall consider whether the applicant has provided prima facie evidence of the harm suffered as a direct result of a crime in the indictment’.
A reasoned statement of the harm suffered and a link with the alleged crime must be present in the application. In this regard, the prima facie verification of the causal link has already been used by the ICC.72 Furthermore, this content is not inconsistent with the jurisprudence of the ICC. According to this tribunal, in the application, the victims must contain statements of (i) how they fulfil the requirements to be a victim (ii) whether and how their personal interest are affected; (iii) why their participation is appropriate; (iv) their participation is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial.73 The KSC might use these requirements with regard to victims’
applications. However, the third element is not part of art. 22 KSC Law since no reference to the appropriateness of the participation can be found.74 In any case, as they confirm in
their website, the first application form will be release when the Pre-Trial Judge confirms the indictment and make it public.75
Indeed, according to the KSC legal provisions, the use of forms seems to be mandatory. The Rules of Procedure and Evidence states that ‘victims may file an
71 Rule 113 (5) RPE KSC
72 Agreement (n 41).
73 Ntanda (n 10) 405; Lubanga case (on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial) 01/04-01/06 OA 7 (13 February 2007) § 44-45.
74 On the contrary, art. 68 (3) Rome Statute contains the wording “their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court”.
75 https://www.scp-ks.org/en/specialist-chambers/victims: “At that point in time [when the indictment confirmed by the Pre-Trial Judge is made public], the Victims’ Participation Office of the Registry will make application forms available and provide detailed information about the requirements for admission as a participating victim and about the application process.
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application for admission’.76 The use of this application is, thus, the only way to
participate in proceedings although some victims might not be aware of the existence of these forms or, in some cases, they might not be able to understand them to their full extent. This is why the ICC also accepts other requests for participation that no entails the use of the form.77
With regard to the nature of the form, in recent cases, the ICC has accepted the request of the Registry to include “collective applications” to ease the procedure.78 A
collective description of common elements of the group will be followed by an individual declaration of the personal circumstances in these forms. Although this does not substitute the standard form, it could be used by the KSC. Since only collective representation is allowed and victims will not be able to freely choose their representative,79 a collective application might reduce the delay in proceedings. A broader description of both the personal and collective characteristics of an incident, will help the Chamber to decide about the means of representation and the possibility of dividing the victims in groups according to their needs. Moreover, the wording of rule 113 (1) RPE KSC does not deny this possibility.
The configuration and content of the application is crucial for victims. It is worth to note that it is the first step in victim’s participation before a court which deals with horrible crimes in which high ranked officials and politicians might be involved. The KSC demonstrate to take this into account and offer victims a confidential procedure that will encourage – or at least, not discourage – the participation of this collective. Moreover, it will make the victim status depending on the law and not on the interest of the parties to the conflict. Victims will not suffer from a judicial proceeding concerning the appeal of their participation request. Nevertheless, victims will be arranged as the Chambers consider more convenient. Even though KSC Law seems to accept their participation, it does it timidly. The system to access to the proceedings is design to avoid critics regarding their lack of respect for victims’ views and concerns, by the time they focus their attention in easier their inclusion. No choice is given to the victims with regard to their counsel or
76 Rule 113 (1) RPE ICC (emphasis added).
77 Situation in the Islamic Republic of Afghanistan (Order to the Victims Participation and Reparation Section Concerning Victims’ Representations) ICC-02/17 (9 November 2017) § 10.
78 Gbagbo case (Second decision on issues related to the victims' application process) ICC-02/11-01/11 (5 April 2012) § 16-22.
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the ways to as for participation in cases where the person does not have to ability to go through a form successfully. Celerity and avoidance of delays appear to be the main concern of the drafters.
3.2 Victim Representation Before the Kosovo Specialist Chambers
Although a person might fulfil all the requirements to be considered a victim before an international tribunal, the adjudication of international crimes makes it necessary to arrange a system of representation that benefit both victims and the expeditiousness of the proceedings. It is worth bearing in mind that international human rights law sets a right of counsel for defendants, but nothing is said about victims.80 Indeed, no rights to
individual representation must be expected from international criminal courts. In any case, self-representation in the specific case of international criminal courts might not be the best option. Professionals of the law will better defend the interests and rights of victims in proceedings. As stated by Judge FULFORD:
“It needs to be remembered that this is a court of law and, in particular, this is the criminal trial of an accused, and the presumption is that those who participate in the proceedings will be lawyers, lawyers acting for individuals or for bodies, for entities”.81
Nevertheless, unlike domestic proceedings, criminal representation in international proceedings is described as “collective”. Indeed, rule 90 (2) RPE ICC refers to “common legal representation or representatives” when the number of victims suggest that this mechanism would benefit the effectiveness of the proceedings.82 Although the limited
80See, inter alia, art. 14 International Covenant on Civil and Political Rights and 6 (3) (c) European Convention of Human Rights and Fundamental Freedoms. Note that, pursuant arts. 3 (2) (e) and 12 of the KSC Law, the Chamber is bound by and shall apply these conventions.
81 Situation in the Democratic Republic of Congo (Status Conference) ICC-01/04-01/06-T-101-ENG (12 January 2009) p 43 § 11-14. In the same conference, the judge accepted4 the possibility of victims’ participation in person in exceptional cases and with the existence of a good reason.
82 It is necessary in this point to mention the first decision concerning the adoption of legal representatives leading by the Trial Chamber in Lubanga case (Decision in the applications by victims to participate in the proceedings) ICC-01/04-01/06 (15 December 2008) § 121.
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resources at the court disposal in any case can affect their rights,83 it is worth remembering that their participation cannot affect the accused rights neither.84 The right to a fair trial without undue delay can be affected by the presence of a large number of victims in the proceedings. This argument has been used in favour of the common representation.
Perhaps because the KSC already acknowledges that the number of victims in international crimes will always suggest this system, no other representation is permitted. Pursuant art. 22 (4) KSC Law, any participating victims during the trial proceedings shall form one group. The exception to this rule is contained in rule 118 (8) RPE KSC. When some criterion is met, victims can be divided into more than one group according to their personal characteristics.85 In any case, paragraph 5 of that article clearly states that “no other victim representation, including self-representation, is permitted”. Therefore, one Counsel will be assigned to a group of victims.86
Unlike RPE ICC,87 KSC system deprives victims from the freedom of choosing
their own legal representative. Nevertheless, in practice, legal representatives were never chosen by the victims themselves.88 Victims’ Counsels will be assigned from a list supervised and administered by the Registry’s VPO.89 Pursuant to art. 22 (5) (1) RPE
83 The OTP has been clear in this regard and stated in their Policy Paper on Victim Participation that “bureaucratic or resource‐related arguments, such as the high number of victims, the costs involved or any other organisational problems require practical solutions: they are never a basis to oppose participation per se once the legal requirements for participation are met”.
84 This requirement of victims’ participation is present in art. 22 (6) KSC Law and art. 68 (3) RS with the same wording: “when it [victim’s participation] is not prejudicial to or inconsistent with the rights of the accused”. Although in the KSC regulation the reference to a fair and impartial trial is not present, it is not necessary since these are rights of the victims under international conventions applicable before the Specialist Chambers (see art.14 ICCR and 6 ECHR).
85 This is a possibility also recognised in the ICC pursuant regulation 79 (2) of the Regulation of the Court and Rule 86 RPE ICC, which provide victims with a more effective representation. An appropriate counsel specialised in the group of victims within its representation, can be useful for their complete restoration and healing. In this regard, see Cynthia Chamberlain Bolaños ‘Children and the International Criminal Court: Analysis of the Rome Statute through a Children’s Rights Perspective’ (Doctoral Thesis, Leiden University) in her defence of specialist intervention in the children representation before the ICC.
86 Although the common representation seems to be the only plausible option for victims of mass atrocities, its effectiveness and efficacy has been criticized. In their article ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’, S Kendal and S Nowen summarize and analyse some of these critics.
87 Rule 90 (1) RPE ICC.
88 This right, however, would lack of real applicability when it is read together with rule 90 (3) RPE ICC. The ability of victims to choose a common legal representative themselves is almost inexistent. Indeed, it is even more unlike that victims know a qualified Counsel to perform before the ICC according to its provisions.
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KSC, the Registrar adopted Directive on Counsel90 where the requirements and procedures for this purpose are located.
While common representation might not be the best option to protect and promote victims’ rights, it seems to be the only available at the moment. However, even though undue delays cannot be accepted in proceedings, a better communication between the counsel and the group of victims under his representation is essential. Fostering a proper communication system between them would have been an important step the KSC could have made towards a real restorative justice. Indeed, since the territorial and temporal jurisdiction of the KSC is focused on relatively specific facts, the implementation of a better communication is an effective and available option. It is equally important to note that the Kosovo Chamber is embedded in the domestic justice system and, therefore, it will benefit from their assistance and support. This is an advantage that the KSC has to take into account not only to pursue and prosecute suspects, but also to contribute to a better response and treatment of victims.
International tribunals must make sure that a real representation of victims which take their needs and claims into account, is granted. In this regard, offices within the Registry can play a relevant role. C CHAMBERLAIN defends the ICC OPCV as a legal representation of victims as long as it combines legal expertise, local expertise, and direct contact with victims through field team member or common legal representatives. 91 Due to the special character of thee KSC, a regulation of the OPV that combine these three elements, is both beneficial and necessary.
90 Directive of Counsel, The Hague, 6 November 2017 (Reference KSC-BD-04).
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Part III: VICTIMS THROUGH
PROCEEDINGS
1. Investigation and pre-trial stage
The involvement of victims in stages previous to trial has been largely discussed. However, the possibilities for victims to participate in the investigation of international crimes are almost inexistent: in some cases, it its denied and in some others, it mainly depends on the Prosecutor intention to “use” this source.
ICC jurisprudence has revealed a complete absence of participation in the investigation stage for victims. Since victims’ participation before international courts are granted to be exercised in “proceedings”, the investigation and collection of evidence is a duty and privilege of the OTP.92 Although their participation is not allowed, the OTP and the ICC judges acknowledged their value as a source of information. Since the prosecution can be triggered by the Prosecutor propio motu based on information addressed to his office,93 in some cases the Prosecution must rely in these victims during the investigation stage. Indeed, this information may be essential in the preliminary examinations. Nevertheless, victims have no right to participate in these stages as such.
The previous scheme changes in the Pre-Trial stage. Once the Prosecutor desires to initiate a proper investigation, he shall submit a request to the Pre-Trial Chamber and victims may be represented in this procedure. Victims, thus, can be represented in a Pre-Trial stage. Bearing in mind that one of the grounds for refusing the investigation is the lack of interest for justice – and the victims interests are to be taken into account in this assessment – this collective must have voice in the decision.94 In this regard, once the
92 Situation in the Democratic Republic of the Congo (Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD) ICC-01/04 OA4 OA5 OA6 (19 December 2008).
93 Art. 15 Rome Statute. 94 Art. 53 (2) (c) Rome Statute.
