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

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

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 Criminal Court (ICC) is primarily mandated to

punish persons bearing the greatest responsibility for the worst crimes

known to mankind. Additionally, its victim reparations are contingent

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

compounded with the inquisitorial function of seeking the truth by

realising the victim’s entitlement to participate at appropriate stages

throughout the proceedings. However, the suspect’s due process rights

must remain protected. While the Court balances these procedural

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

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

how victims are vulnerable to their representative’s claims. Therefore,

the question arises as to whether external or internal legal representation

will be more effective for victims. This determines how victims’ voices

may best be elicited. Some victimologists contend that the exclusion of

an external Common Legal Representative (CLR) in the search of mass

atrocity solutions promotes merely symbolic, rather than meaningful,

victim participation in ICC proceedings. The Court insists on external

CLRs because of their local knowledge. Others emphasise the proximity

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

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

to interface between the external CLR and the Chamber in day-to-day

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

more meaningful. Yet, following the Ruto and Sang case, the ICC faces

challenges when confronted with diverse modalities of implementing

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

*Senior lecturer, Africa Nazarene University Law School and Academic Leader,

Criminal Justice and Security Management Programme; PhD in Droit Privé

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

honourable); LLM (University of London); LLB (Hons) (University 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

160AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

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

to promote victims’ interests required victim empowerment, including

strengthening appropriate victim constituencies through outreach 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, the Court directed the

Registry to liaise not only with the CLRs but also with the Trust Fund for

Victims for appropriate outreach a nd communication with victims.

Keywords: Rome Statute, International Criminal C ourt, victim partici-

pation, reparations, double status, constructive ambiguity, Common

Legal Representative, Kenyan trial approach

1 INTRODUCTION

The International Criminal 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

victims.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

purposes’.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 into the national law norms

proscribing abuses of power and providing remedies to victims of

such abuses. In particular, such remedies 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, available at res/ea9aeff7-5752-4f84-

be94-0a655eb30e16/0/rome_statute_english.pdf> (accessed on 1 November

2020) (hereaf ter the Rome Statute).

2 International Criminal Court ‘Rules of Procedure and Evidence’ (RPE) 31,

available at ps://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedure

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 Section 3 of this

paper describes victimhood, distinguishes between different 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 are 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 trials, 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 victim participants’

status as also compelling the Court to summon participants 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 the ‘double status’ problem of the

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

from their structurally subordinate and peripheral 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.

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

Criminal Proceed ings (2011) 225.

11Tatiana BachvarovaThe Standing of Victims in the Procedural Design of the

International Cr iminal Court (2017).

12Tim Murithi ‘Between Political Justice and Judicial Politics: Charting a Way

Forward for the African Union and the International Criminal Court’ in

Gerhard Werle, Lovell Fernandez and Moritz Vormbaum (eds) Africa and the

International Cr iminal Court (2014) 179.

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