The "Policy Paper On Victims' Participation"
Issued By The Office Of The Prosecutor Of The Internaitonal Criminal Court
Pubudu Sachithanandan 
On 12 April 2010 the Office of the Prosecutor ("the Office") of the International Criminal Court published its "Policy Paper on Victims' Participation" ("Policy Paper"). The Policy Paper sets out the Office's policy on the legal aspects of victims' participation in proceedings under article 68(3) of the Rome Statute in this regard.
Viewed from a methodological perspective, the mere fact that a prosecution office has set out in advance some of its key litigation policies regarding an emerging area of law is, alone, cause for discussion. The dissemination of the Office's policy papers in this manner, forms part of efforts to enhance predictability and consistency.
Regarding the substantive content of the paper, a few key points in the Policy Paper merit early consideration: The Office recognizes that victims bring a "unique and necessary perspective". Victims are acknowledged to be actors in the field of international justice rather than its passive subjects. Victims' participation is recognized as a statutory right, not a privilege bestowed upon victims on a case-by-case basis. Finally, and perhaps most importantly, the Office states that it will adopt a policy of supporting victims' participation when all statutory requirements are met. Consequently, bureaucratic or resource-related arguments are never a basis to oppose participation per se once the legal requirements for participation are met.
Scope and Purpose
The focus of the Policy Paper is on the participation of victims pursuant to article 68(3) of the Statute. The Policy Paper aims to ensure a clear and consistent approach of the Office in its activities, legal submissions and positions on victims' participation under article 68(3). The Office makes clear that the Policy Paper is an "internal" policy document, which does not give rise to legal rights or obligations. It also states that the document is subject to revision based on experience and the evolving practice of the Court.
Sources and Related Documents
The Policy Paper is based on the Rome Statute, the Rules of Procedures and Evidence ("Rules"), the Regulations of the Court, the Regulations of the Office, the ICC Strategy in Relation to Victims, and the Office's prosecutorial strategy and policy documents. The Policy Paper also relies on the lessons learned during the first years of the Office's activities as well as consultations with external experts and representatives of States and civil society.
Specifically, the Policy Paper relates to Objective 4 of the ICC Strategy which is: "To ensure that victims are able to fully exercise their right to participate in ICC proceedings, in a manner that is sensitive to their rights and interests and consistent with the rights of the Defence and the need to ensure a fair trial". The Policy Paper also relates to Principle 3 of the Office's Prosecutorial Strategy document, which requires the Office to systematically address the interests of victims in the work of the Office, seeking their views at an early stage, before an investigation is launched, and continuing to assess their interests on an on-going basis.
Satisfying the Statutory Requirements.
As stated above, the Office makes clear its support for victims' participation when all statutory requirements are met. The Policy Paper sets out 4 statutory requirements:
1) The applicant qualifies as a victim under rule 85
Rule 85 of the Rules requires that the applicant must have suffered "harm". The Policy Paper acknowledges that this includes both physical and psychological harm and can be both personal and collective in nature. Interestingly, the Office recognizes that the term "victims" can include persons who were not the direct targets of a crime, but who suffered indirect harm as a result of the commission of a crime. The Office supports a broad characterization of such "indirect victims".
Where the charges are not yet defined, the Office is satisfied if the harm suffered by a victim is linked to a crime relevant to the situation before the Court. Where a "case" is already in existence (i.e. charges have been defined) the harm must relate to one or more of the relevant charges. The Office follows a policy of focusing on a limited number of incidents and investigating/prosecuting those who bear the greatest responsibility for the most serious crimes. Consequently, there may be victims who suffered harm as a result of crimes other than those linked to charges selected for prosecution. They may not qualify for article 68 (3) participation in a case. The Office seeks to deal with this in several ways:
Firstly, the Office welcomes direct interaction with victims starting at the earliest stages of its work, when defining the focus of its investigative activity. Secondly, the Office also seeks to address the interests of a wider community of victims through its submissions on the gravity (and related impact) of the crimes. Thirdly, at the reparations stage, the Office will support reparations applications by a broader range of individuals/entities than those who are linked to the relevant charges.
2) The applicant's personal interests are affected by legal or factual issues raised in the proceedings at hand
In this context, the Policy Paper sets out that once a case is brought against a person, the applicant's personal interests must be affected in connection to the relevant charges for participation to be possible. The Office considers that the definition of "personal interest" in the context of article 68(3) must be more specific than the general interest of any victim in the progress and outcome of the prosecution.
3) The applicant's participation is appropriate at that particular stage of the proceedings
Investigations The Policy Paper notes current jurisprudence establishing that victims are not entitled to participate generally during the investigation of a situation and which recognize that authority for conducting investigations vests in the Office. However, the Office welcomes information from victims about the scope of investigations and states that it will seek to ensure effective interaction through public notice of its activities at this stage.
Pre-Trial and Trial The Office takes the position that participation under article 68(3) during Pre-Trial and Trial phases must be connected to the parameters of the charges. The Office considers that victims authorised to participate in the proceedings at the pre-trial stage should automatically be allowed to participate in trial proceedings, except for those whose harm and personal interests are linked with a charge not confirmed by the Pre-Trial Chamber.
Appeals Stage The Office supports participation if the applicant demonstrates her/his personal interests are affected by the issues on appeal.
Reparations Stage At this stage the Office supports participation by a broader range of persons/entities.
4) The manner of participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
Submitting/Challenging evidence The Office considers that victims do not have the right to introduce additional evidence at the Pre-Trial stage. At the Trial Stage (other than for reparation purposes), victims should be allowed to present evidence to prove the innocence or guilt of the accused or challenge the admissibility or relevance of a piece of evidence only as a rare exception, and must comply with the criteria for the same set by the Appeals Chamber. The Policy Paper notes that when victims have evidence in their possession, they have the option of contacting the Office. It notes further that allowing victims to collect or present evidence in their possession could affect their own security as well as that of persons at risk on account of the information they have collected. The Office also highlights the uncertainties in the disclosure process that may be created by such activities.
The Policy Paper adds that examination of witnesses by legal representatives (if permitted) should be limited to issues directly relevant to the interests of the victims. Only in exceptional circumstances should such examination reach issues of guilt or innocence of the accused. The manner of questioning should be neutral.
Access to records/evidence The Office's position is that victims do not have the right to access evidence in the Office's possession. However, pursuant to regulation 52 of the Office (which provides that there shall be constructive engagement with legal representatives) the Office will provide legal representatives access to its filings and evidence including those classified as confidential where appropriate, subject to the requirements of confidentiality and of witness protection. If the victims petition the relevant Chamber for additional confidential information, the Policy Paper states that such access should be granted 1) in highly exceptional situations and 2) only after an applicant has established a compelling case that the material in question directly affects his/her interests.
Participation of anonymous victims The Office takes the position that anonymous victims can participate in pre-trial and trial proceedings, subject to imposition of strict limits to procedural rights in light of considerations of fairness to the accused.
As recognized in the Policy Paper, the practice of the Court regarding victims participation will doubtless evolve over time. This will especially be the case in the near future, as the first trials draw to a close. In this context, the Policy Paper issued by the Office will be a welcome source of certainty and consistency for all participants in proceedings. It may even contribute towards harmonizing the occasionally conflicting jurisprudence of the assorted Chambers that deal with victims' participation. However, much work remains to be done: practical solutions must be found for dealing with increased numbers of applicants, broadening the category of victims participating at the reparations stage and the myriad other challenges that will arise in the future.
1 Mr. Sachithanandan is an Associate Trial Lawyer at the International Criminal Court and a member of the team investigating and prosecuting crimes that occurred in Darfur. He is currently reading for his Masters in International Human Rights Law at the University of Oxford.
2 “Policy Paper on Victims’ Participation”, April 2010, Office of the Prosecutor, International Criminal Court. Available at http://www.icc-cpi.int/NR/rdonlyres/BC21BFDF-88CD-426B-BAC3-D0981E4ABE02/281751/PolicyPaperonVictimsParticipationApril2010.pdf
3 Id, p. 2
4 Id, p. 4
5 Id, p. 2
6 Id, p. 1
7 Id, p. 3
8 Id, p. 5
9 Id, p. 6
10 Id, p. 3
11 Id, p. 2
12 Id, p. 2
13 Id, p. 2
14 Id, p. 3
15 Prosecutorial Strategy 2009-2012, Office of the Prosecutor, International Criminal Court. Available at http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf
16 The Prosecutorial Strategy is based on four fundamental principles: (i) positive complementarity; (ii) focused investigations and prosecutions; (iii) addressing the interests of victims; and (iv) maximizing the impact of the Office’s work. OTP, Prosecutorial Strategy 2009-2012, 1 February 2010, The Hague, para 22.
17 “Policy Paper on Victims’ Participation”, April 2010, Office of the Prosecutor, International Criminal Court, p. 10
18 P. 10
19 Id, p. 11
20 Id, p. 8
21 Id, p. 8
22 Id, p. 8
23 Id, p. 8
24 Id, p. 9
25 Id, p. 9
26 Id, p. 12.
27 Id, pp. 12, 13
28 Id, p. 14
29 Id, p. 14
30 Id, p. 15
31 Id, p. 16
32 Id, p. 16
33 Id, p. 18
34 Id, p. 18
35 Id, p. 18
36 Id, p. 19
37 Id, p. 19
38 Id, p. 21
39 Id, p. 21
40 Id, p. 21
41 Id, p. 23
42 E.g. On whether victims who have been granted the right to participate at the pre-trial stage must be automatically granted such rights at the trial stage. See the case law discussed at p. 15 of the Policy Paper.