External and internal common legal representation of victims at the International Criminal Court: Beyond the ‘Kenyan trial approach’

• Published date: 20 September 2021
• Citation: (2020) African Yearbook on International Humanitarian Law 159
• DOI: https://doi.org/10.47348/AYIH/2020/a6
• Pages: 159-191
• Date: 20 September 2021
• Author: Khamala, C.A.

159

External and internal common

legal representation of victims at

the International Criminal Court:

Beyond the ‘Kenyan trial approach’

Charles A Khamala*

Abstract

The International Cri minal Cour t (ICC) is prima rily mandated to

punish persons b earing the gr eatest responsibility for the worst c rimes

known to mankind. Additionally, its victim reparations are contingent

on conviction; because of th is, the Rome Statute’s retributive goal is

compounded with the inqui sitorial funct ion of seeking the tr uth by

realising the v ictim’s entitlement to participate at appropriate stages

throughout the proceedi ngs. However, the suspect’s due process r ights

must remain protected. W hile the Cour t balances these proce dural

functions, vic tims’ representatives determine which vic tims are members

of the appropriate constituency. This paper ’s theoretical f ramework shows

how victims are v ulnerable to their repr esentative’s claims. Therefore,

the question arises as to whet her external or inter nal legal representation

will be more effec tive for victim s. This determi nes how victims’ voices

may best be elicited. Some vic timologists contend that the exclusion of

an external C ommon Legal Representative (CLR) in t he search of mass

atrocity solutions promotes merely sy mbolic, rather than mean ingful,

victim par ticipation in ICC proceed ings. The Cour t insists on externa l

CLRs because of t heir local knowledge. Other s emphasise the proximity

of the Ofce of the Public Cou nsel for Victims (OPCV ) to judges as

providing access to justice at The Hag ue. Crucially, by requiring the OPCV

to interface between t he external CLR a nd the Chamber in day-to- day

proceedings, the ‘Kenyan trial approach’ has made victims’ participation

more meaningfu l. Yet, following the Ruto and Sang case, the ICC face s

challenges when confronted w ith diverse modal ities of implementing

reparations for multiple victi ms. In the Palestine situation, claims se eking

* Senior lectu rer, Africa Naz arene University L aw School and Academic Le ader,

Criminal Ju stice and Secu rity Management Prog ramme; PhD in Droit P rivé

(Sciences Crim inelles) Université de Pau et des Pays de l’Adour (mention trés

honourable); LLM (University of London); LLB (Hons) (Univer sity of Nairobi);

PGDip (KSL); Member AD C-ICT, List of Counsel: ICC, IR MCT, AfCHPR, ECCC,

ICJ(K), ILA, AN CL and WSV; advocate of the High Court of Kenya. No part s of

this paper have been p ublished elsewhere. Responsibilit y for content is entirely

mine. Email: chalekha@yahoo.co.uk.

https://doi.org/10.47348/AYIH/2020/a6

(2020) African Yearbook on International Humanitarian Law 159

© Juta and Company (Pty) Ltd

160 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2020/a6

to promote victims’ interests re quired vict im empowerment, including

strengtheni ng appropriate victim const ituencies through out reach to

enable them to articu late disagreements with their representatives . In the

Ongwen ca se, a broad interpretation gave victims’ voices enhanced agency

over the defence. Recently, in Ntaganda’s case, t he Court dire cted the

Registry to lia ise not only with the CLR s but also with the Trust Fu nd for

Victims for appropriate outreach a nd communication with victims.

Keywor ds: Rome Statute, International Criminal C ourt, victim partici-

pation, reparations, double status, constructive ambiguity, Common

Legal Representative, Kenyan trial approach

1 INTRODUCTION

The International Crimina l Court (ICC), which was established by

the 1998 Rome Statute (Rome Statute), is an ambitious attempt by the

international community to provide legal redress for mass atrocity

victi ms.1 In terms of the Rules of Procedure and Evidence (RPE), an

instrument for the application of the Rome Statute of the ICC, ‘victims’

are dened as ‘natural persons who have suffered harm as a result of

the commission of any crime within the jurisdiction of the Court’.2

Victims ‘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

pu r pos es ’. 3 Section 2 of this paper illustrates that this buttresses the

requirement of the Victims’ Declaration that, in terms of Article 19 of

the UN Declaration of Basic Principles of Justice for Victims of Crime

and Abuse of Power,

States should consider incorporating i nto the national law norms

proscribing abuses of p ower and providing remedie s to victims of

such abuses. In par ticular, such remed ies should include restitution

and/or compensation, and necessary material, medical, psychological

and social assista nce and support.4

1 International Crimi nal Court Statute of Rome 1998, entered i nto force on 1 July

2002, avai lable at res/ea9aeff7-5752-4f84-

be94-0a 655eb30e16/0/rome_statute_eng lish.pdf> (accessed on 1 Nove mber

2020) (hereaf ter the Rome Statute).

2 International Crimi nal Court ‘ Rules of Procedure a nd Evidence’ (RP E) 31,

available at ps://www.icc-cpi.i nt/iccdocs/pids/lega l-texts/ru lesprocedur e

evidenceeng.pdf > (accessed on 21 July 2021).

3 Ibid Rule 85(b).

4 General Assembly Resolution 40/34 (adopted on 29 Novemb er 1985), available

at //www.un.org/en/genocideprevention/documents/atrocity-crimes/

Doc.29_declaration%20victims%20crime%20and%20abuse%20of%20power.

pdf> (accessed on 2 Octo ber 2020).

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BEYOND THE ‘KENYAN TRIAL APPROACH’ 161

https://doi.org/10.47348/AYIH/2020/a6

Besides reparations,5 victims are also entitled to protection,6 recog-

nition7 and participation.8 However, most African states are ill-

equipped to effectively redress atrocity crimes.9 Sect ion 3 of this

paper describes victimhood, distinguishes between dif ferent victim

categories and traces the improvements to the ICC’s initial procedural

problems encountered by victims seeking to apply for victim status.

Representatives must determine which victims a re members of the

appropriate constituency. Section 4 of this paper therefore constructs

a normative framework that shows how representatives determine who

receives information about the proceedings, who can express their

concerns vis-à-vis their representatives, and who can contest claims.

Section 5 of this paper re- considers the ongoing debates about the

appropriateness of victim participation in ICC tr ials, the mechanisms

which give effect to part icipation, as well as their wider consequences.

Section 6 of this paper rev isits claims that t he ‘constructive ambiguit y’

contained in the Statute’s reparations and participatory regimes is

silent about whether victims may adduce evidence which impacts on

the substantive merits of the case. The ICC judges are given a wide

discretion to shape the victims’ participatory practice.10 They have

interpreted the relevant provisions conferring v ictim participants’

status as also compelling the Court to summon part icipants to play

the role of victim witnesses.11 As a result, the ICC’s legitimacy suffers

from perceptions that victim participation prejudices suspects. Such

perceptions, coupled with the ICC’s alleged targeting of situations

in African countries, have fuelled calls for withdrawal from

the Rome Statute.12

Section 7 of this paper traces t he ‘double status’ problem of the

Rome Statute’s civil law features, which attempt to rescue victims

from their struct urally subordinate and per ipheral role in domestic

common-law criminal trials. Yet the ‘victim case’ at the ICC

potentially re-characterises the prosecution’s case and lengthens the

5 Rome Statute op cit note 1 art 75(1).

6 Ibid art 43(6).

7 Ibid arts 15(2), (3) and 19(2).

8 Ibid art 68(3).

9 Chris Mahony The Justice S ector Afterthought: Witness P rotection in Africa (2010)

12.

10 Brianne McGon igle Leyh Procedural Justice? Victim Participation in International

Criminal Proceed ings (2011) 225.

11 Tatiana Bachvarova The Standing of Vict ims in the Procedural Desig n of the

International Cr iminal Court (2017).

12 Tim Murithi ‘B etween Political Ju stice and Judicial Polit ics: Charting a Way

Forward for the Af rican Union and the I nternational Crim inal Cour t’ in

Gerhard Werle, Lovell Fern andez and Moritz Vormbaum (eds) Afr ica and th e

International Cr iminal Court (2014) 179.

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