Abstract
This chapter seeks to draw practitioners’ attention to the extent and importance of the role played by intermediaries and other parties in support for victims to exercise their rights before international criminal courts. The chapter explains the reasons that have led to reliance on third parties and describes the different tasks in which third parties have been involved. It offers practical considerations on both advantages and opportunities, and challenges involved when cooperating with third parties. The chapter also describes the legal and administrative framework applicable to intermediaries collaborating with the International Criminal Court (ICC) and provides critical analysis in relation to the ICC Guidelines on intermediaries. Practical advice is included for practitioners who may consider using, or have to rely on, third parties.
Mariana Pena is a legal officer with the Open Society Justice Initiative. This chapter draws extensively on the author’s prior experience working with participating victims, legal representatives and other civil society organisations. The author would like to acknowledge the International Refugee Rights Initiative for allowing her to draw on research she conducted on their behalf on the question of intermediaries. The views expressed herein are those of the author and do not necessarily reflect the views of the Open Society Foundations. This chapter was written in 2014 and updated in September 2016.
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- 1.
ICC, Guidelines Governing the Relations between the Court and Intermediaries (2014b) (The ‘ICC Guidelines’), https://www.icc-cpi.int/iccdocs/lt/GRCI-Eng.pdf. Accessed 20 July 2016, p. 6.
- 2.
De Vos 2013, pp. 1021–1024.
- 3.
There is no reference to third parties or intermediaries in either the Rome Statute of the International Criminal Court (ICC Statute) or the ICC Rules of Procedure and Evidence (the ‘ICC RPE’). The term ‘intermediaries’ was, however, introduced into the Regulations of the Court (Regulation 97 of the Regulations of the Court, ICC-BD/01-03-11 (2012)) and the Regulations of the Trust Fund for Victims (Regulations 67 and 71 of the Regulations of the Trust Fund for Victims, ICC-ASP/4/Res.3 (2005)) (ICC Regulations of the Trust Fund for Victims). While the initial version of the ECCC Internal Rules had some references to non-governmental organisations, those did not concern the intermediary role played in relation to assistance to civil parties.
- 4.
For an overview of the role of civil society in the lead-up to the adoption of the ICC Statute, see generally Glasius 2002.
- 5.
ICC Guidelines, p. 2.
- 6.
The number of participating victims has gone from a few hundred in the first two ICC cases to several thousands in more recent cases.
- 7.
ICC RPE, Rule 16.
- 8.
ICC Regulations of the Court, Regulation 86(9).
- 9.
See e.g. Proposed Programme Budget for 2014 of the International Criminal Court, ICC-ASP/12/10 (2013), paras 531–532.
- 10.
ICC, Report of the Court on the Revised Strategy in relation to Victims, ICC-ASP/11/40 (2012), para 39.
- 11.
ICC Regulations of the Court, Regulation 86(1).
- 12.
Regulation 105 of the ICC Regulations of the Registry, ICC-BD/03-01-06 (2013).
- 13.
ICC, Report of the Court on the Revised Strategy in relation to Victims, ICC-ASP/11/40 (2012), para 17.
- 14.
Ibid., para 39.
- 15.
ICC, Prosecutor v. Bosco Ntaganda, Registry, Registry Observations in compliance with the Decision ICC-01/04-02/06-54-Conf, ICC-01/04-02/06-57, 6 May 2013, para 3.
- 16.
ICC, Report of the Court on the Revised Strategy in relation to Victims, ICC-ASP/11/40 (2012), para 44. In addition, while the Registry initially worked primarily with national human rights organisations, it later shifted towards grassroots organisations or individuals with a prominent role in the communities. See Avocats sans frontières (ASF) 2013, pp. 19–20.
- 17.
The ICC’s approach to the legal representation of victims is further discussed in Chap. 5.
- 18.
E.g. ICC, Prosecutor v. Germain Katanga and Matthieu Ngudjolo Chui, Trial Chamber II, Order on the organisation of common legal representation of victims, ICC-01/04-01/07-1328, 22 July 2009, para 17.
- 19.
ICC, Prosecutor v. William Samoei Ruto & Joshua Arap Sang, Trial Chamber V, Decision on victims’ representation and participation, ICC-01/09-01/11-460, 3 October 2012, para 60; Prosecutor v. Uhuru Muigiai Kenyatta, Trial Chamber V, Decision on victims’ participation and representation, ICC-01/09-02/11-498, 3 October 2012, para 59.
- 20.
E.g. ICC, Prosecutor v. Laurent Gbagbo, Pre-Trial Chamber I, Decision on Victims’ Participation and Victims’ Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, ICC-02/11-01/11-138, 4 June 2012, para 44.
- 21.
ICC, ASF 2013, p. 21.
- 22.
For example, victims in Prosecutor v. William Samoei Ruto & Joshua Arap Sang.
- 23.
For example, Nairobi in Prosecutor v. William Samoei Ruto & Joshua Arap Sang (most victims are in the Rift Valley); Kinshasa for Prosecutor v. Bosco Ntaganda case (victims are in the Ituri district, Eastern Democratic Republic of Congo).
- 24.
Intermediaries are also mentioned in Regulation 71 of the Regulations of the Trust Fund: ‘The Trust Fund may identify intermediaries or partners, or invite proposals for the implementation of the award.’
- 25.
See also Chap. 13.
- 26.
ICC, Report to the Assembly of States Parties on the Projects and the Activities of the Board of Directors of the Trust Fund for Victims for the Period 1 July 2013 to 30 June 2014, ICC-ASP/13/14 (2014f), para 20.
- 27.
See e.g. McCleary-Sills and Mukasa 2013, pp. 44 and 46.
- 28.
An evaluation report from 2013 considers that the use of international and local NGOs as intermediaries to provide assistance to beneficiaries is a relevant cost-effective measure in the implementation of assistance by the Trust Fund. See McCleary-Sills and Mukasa 2013, p. 43.
- 29.
See e.g. ICC, Press Release, ICC’s Trust Fund for Victims Launches Expression of Interest Supporting Victim Survivors of Sexual and Gender-Based Violence in the Central African Republic (6 May 2011), http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/press%20releases%20(2011)/Pages/pr660.aspx. Accessed 19 October 2014.
- 30.
See e.g. ICC, Report to the Assembly of States Parties on the Projects and the Activities of the Board of Directors of the Trust Fund for Victims for the Period 1 July 2013 to 30 June 2014, ICC-ASP/13/14 (2014f), para 20; ICC Trust Fund for Victims, TFV Strategic Plan for 2014–2017 (2014), http://www.trustfundforvictims.org/sites/default/files/media_library/documents/pdf/TFV_Strategic_Plan_2014_2017__approved.pdf. Accessed 2 November 2014; ICC Trust Fund for Victims, Programme Progress Report Summer 2013 (2013), http://www.trustfundforvictims.org/sites/default/files/media_library/documents/pdf/TFVSummer2013PPR_FINAL_VERSION___rev_060913.pdf. Accessed 2 November 2014.
- 31.
Convictions have been handed down in the Lubanga Case and in the Katanga case respectively. In the Lubanga case, a decision on reparations was issued on 7 August 2012 (ICC-01/04-01/06-2904), and it was appealed. The Appeals Chamber handed down its decision on 3 March 2015 (ICC-01/04-01/06-3129). On 3 November 2015, the Trust Fund submitted to Trial Chamber II its ‘Filing on Reparations and Draft Implementation Plan’ (ICC-01/04-01/06-3177-Red). No reparations decision has yet been adopted in the Katanga case.
- 32.
ICC, Report of the Court and the Trust Fund for Victims on the rules to be observed for the payment of reparations, ICC-ASP/13/7 (2014e), paras 4–7. See also ICC, Prosecutor v. Thomas Lubanga Dyilo, Trust Fund for Victims, Observations on Reparations in Response to the Scheduling Order of 14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, paras 204, 214, 227; ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, para 197 (N.B. The role of the Trust Fund in reparations proceedings was one of the issues litigated in the appeals of the decision on reparations in Lubanga Case. See paras 181–184 of ICC-01/04-01/06-3129).
- 33.
ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with amended order for reparations (Annex A) and public annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015.
- 34.
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trust Fund for Victims, Filing on Reparations and Draft Implementation Plan, ICC-01/04-01/06-3177-Red, 3 November 2015.
- 35.
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber II, Order approving the proposed plan of the Trust Fund for victims in relation to symbolic collective reparations, ICC-01/04-01/06-3251, 21 October 2016.
- 36.
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trust Fund for Victims, Draft Implementation Plan for collective reparations to victims, Trust Fund for Victims. ICC-01/04-01/06-3177-AnxA, 3 November 2015, para 181.
- 37.
Ibid., para 184. The Trust Fund has already implemented a policy of not working with intermediaries who have assisted other ICC organs/sections when implementing its assistance mandate.
- 38.
Ibid., para 185. The same details were reiterated in a subsequent, supplementing filing (ICC, Prosecutor v. Thomas Lubanga Dyilo, Trust Fund for Victims, Additional Programme Information Filing, ICC-01/04-01/06-3209, 7 June 2016, paras 45–48).
- 39.
Sperfeldt 2012, pp. 152 and 158.
- 40.
Ibid., p. 152.
- 41.
Ibid., p. 156.
- 42.
Ibid., p. 151.
- 43.
Notes from author’s mission to Phnom Penh in February 2008 on behalf of Fédération internationale des ligues des droits de l’Homme (FIDH) (records on file with the author).
- 44.
Sperfeldt 2012, p. 152.
- 45.
Notes from author’s mission to Phnom Penh in February 2008 on behalf of FIDH (records on file with the author).
- 46.
Sperfeldt 2012, p. 151.
- 47.
For example, names and contact details of intermediary organisations are listed on the ECCC website. https://www.eccc.gov.kh/en/victims-support/intermediary-organizations-ios-0. Accessed 18 January 2017.
- 48.
Sperfeldt 2012, p. 151.
- 49.
Ibid., p. 156.
- 50.
FIDH 2012, p. 32.
- 51.
Ibid., p. 34. See also the lists of legal representation teams per case on the ECCC website, for Case 001 (http://www.eccc.gov.kh/sites/default/files/List_of_Legal_Teams_001.pdf. Accessed 22 July 2016) and for Case 002 (http://www.eccc.gov.kh/sites/default/files/List_of_Legal_Teams_case_file_002.pdf. Accessed 22 July 2016). Note that these lists may not be updated.
- 52.
- 53.
Interview with Silke Studzinsky, former civil party lawyer, ECCC, 22 October 2014 (records on file with the author). The NGOs that provided such support were those that had a specific ECCC programme and therefore sufficient funds to that end.
- 54.
This happened as a result of a memorandum of understanding between the ECCC and the Transcultural Psychological Organisation (Sperfeldt 2012, p. 156). FIDH also facilitated psychological assistance to the civil parties it supported through an agreement with the association TRACES.
- 55.
For example Justice pour le Cambodge.
- 56.
Ibid., Rule 23(1)(b). See also Chap. 13.
- 57.
See ECCC, Case 001, Trial Chamber, Judgment, Case No. 001/18-07-2007/ECCC/TC, 26 July 2010, paras 660–675.
- 58.
Rule 23quinquies of the ECCC Internal Rules, Rev. 9 (2015).
- 59.
Interview with Alice Banens, lawyer, former member of Justice pour le Cambodge, 13 August 2014 (records on file with the author). See also Rule 42bis(2) of the ECCC Internal Rules.
- 60.
ECCC, Case 002, Trial Chamber, Case 002/01 Judgement, Case No. 002/19-09-2007/ECCC/TC, 7 August 2014, paras 1109–1164. See also Chap. 13.
- 61.
As at 30 August 2016.
- 62.
Sperfeldt 2012, p. 158.
- 63.
United Nations Office of the High Commissioner for Human Rights (OHCHR) 2008, p. 21.
- 64.
Sperfeldt 2012, p. 159.
- 65.
This is because of the conditions established for participation and the need to prove a link with the facts underlying the case.
- 66.
Sperfeldt 2012, pp. 152–153.
- 67.
ICC Guidelines, p. 3.
- 68.
Unless they have a programme within their organisation that supports their work, which has been the case in Cambodia, and could be the case of international NGOs acting as intermediaries for the ICC.
- 69.
ICC, Prosecutor v. Laurent Gbagbo, Pre-Trial Chamber I, Second decision on issues related to the victims’ application process, ICC-02/11-01/11-86, 5 April 2012, paras 25–29; ICC, Prosecutor v. Bosco Ntaganda, Pre-Trial Chamber II, Decision establishing principles on the Victims’ Application Process, ICC-01/04-02/06-67, 28 May 2013, para 28; ICC, Prosecutor v. Dominic Ongwen, Pre Trial Chamber II, Decision Establishing Principles on the Victims’ Application Process, ICC-02/04-01/15-205, 4 March 2015, paras 10 and 24.
- 70.
OHCHR 2008, p. 21.
- 71.
Sperfeldt 2012, p. 156.
- 72.
For example, the ICC Registry has alerted the Court to the practice of some lawyers in certain countries of ‘fishing’ for victim clients. See ICC, Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Registry, Proposal for the common legal representation of victims, Annex I: Legal framework and experience to date on common legal representation, 1 August 2008, ICC-01/09-01/11-243-Anx-1, paras 8–9.
- 73.
ECCC Internal Rules, Rule 12bis(2).
- 74.
Ibid., Rule 12bis(3).
- 75.
Ibid., Rule 23quater.
- 76.
FIDH 2012, p. 33.
- 77.
The ICC Standard form for applications to participate includes the following questions: ‘23. Is somebody assisting this victim to fill in this form?’ and ‘24. If yes, what is that person’s name and organisations (if any)?’. For more information on the application process, see Chap. 2.
- 78.
In accordance with Rule 89 of the ICC Rules. See also Chap. 2.
- 79.
See e.g. ICC, Prosecutor v. Bosco Ntaganda, Pre-Trial Chamber II, Decision on victims’ participation at the confirmation of charges hearing and in related proceedings, ICC-01/04-02/06-211, 15 January 2014, paras 42–46.
- 80.
ICC, Prosecutor v. Jean-Pierre Bemba Gombo, Trial Chamber III, Public redacted version of the ‘Decision on the tenth and seventeenth transmissions of applications by victims to participate in proceedings’, ICC-01/05-01/08-2247-Red, 19 July 2012, para 25.
- 81.
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Redacted version of the Corrigendum of Decision on the applications by 15 victims to participate in the proceedings, ICC-01/04-01/06-2659-Corr-Red, 8 February 2011, para 30.
- 82.
ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, paras 478–484. See further Chap. 14.
- 83.
ICC, Prosecutor v. Laurent Gbagbo, Pre-Trial Chamber I, Second decision on issues related to the victims’ application process, ICC-02/11-01/11-86, 5 April 2012, para 27.
- 84.
ICC, Prosecutor v. Bosco Ntaganda, Pre-Trial Chamber II, Decision establishing principles on the Victims’ Application Process, ICC-01/04-02/06-67, 28 May 2013, para 28.
- 85.
ICC, Prosecutor v. William Samoei Ruto & Joshua Arap Sang, Trial Chamber V, Decision on victims’ participation and representation, ICC-01/09-01/11-460, 3 October 2012, para 49; ICC, Prosecutor v. Uhuru Muigai Kenyatta, Trial Chamber V, Decision on victims’ participation and representation, ICC-01/09-02/11-498, 3 October 2012, para 48.
- 86.
ICC, Prosecutor v. William Samoei Ruto & Joshua Arap Sang, Registry, First periodic report on the general situation of victims in Kenya, Annex, ICC-01/09-01/11-566-Anx, 23 January 2013, para 6; ICC, Prosecutor v. Uhuru Muigai Kenyatta, Registry, First periodic report on the general situation of victims in Kenya, Annex, ICC-01/09-02/11-606-Anx, 21 January 2013, para 6.
- 87.
Sehmi 2013, p. 6.
- 88.
See e.g. Victims’ Rights Working Group (VRWG) 2009, p. 3.
- 89.
FIDH 2010, p. 11.
- 90.
All three documents are available on the ICC website. Guidelines: https://www.icc-cpi.int/iccdocs/lt/GRCI-Eng.pdf. Model Contract for Intermediaries: https://www.icc-cpi.int/iccdocs/LT/MCI-Eng.pdf. Code of Conduct for Intermediaries: https://www.icc-cpi.int/iccdocs/lt/CCI-Eng.pdf Accessed 19 September 2016.
- 91.
In particular ‘it is recognized that the Guidelines do not in any way bind or limit the Chambers’ exercise of their powers’ (ICC Guidelines, p. 3).
- 92.
ICC Guidelines, p. 5.
- 93.
Ibid., pp. 7–9.
- 94.
Ibid., p. 10.
- 95.
Ibid., p. 11.
- 96.
Ibid., pp. 6 and 10. Determination as to whether the Guidelines apply to unapproved intermediaries (self-appointed intermediaries, one-off intermediaries) will be made on a case-by-case basis.
- 97.
Ibid., pp. 10–11, 17.
- 98.
Ibid., p. 11.
- 99.
Ibid., p. 17. See also ICC, Model Contract for Intermediaries, Article 10.
- 100.
ICC Guidelines, p. 10.
- 101.
Ibid., pp. 12–13.
- 102.
Ibid., p. 5.
- 103.
Ibid., p. 12.
- 104.
Ibid., pp. 13–14.
- 105.
Ibid., p. 14.
- 106.
Ibid., pp. 15–16.
- 107.
Ibid., pp. 14–17.
- 108.
Ibid., p. 17.
- 109.
The Guidelines establish a monitoring process and schedule a review (18 months after adoption of the Guidelines) that will result in an update. See ICC Guidelines, p. 18. However, no review has been conducted to date, over 32 months after their adoption.
- 110.
For example, compensation to intermediaries is not contemplated in the legal aid budget. According to the Guidelines (p. 12), ‘intermediaries who are tasked upon the request of Counsel may receive compensation if they are contracted as a ‘resource person’ per regulation 139 of the Regulations of the Registry.’ In cases where fees for a resource person are not foreseen by the legal aid budget (generally the position of resource person is only available to support Defence counsel at certain stages of the proceedings), counsel will in principle not be able to provide compensation to intermediaries. When it comes to the reimbursement of expenses, the ICC Registry has acknowledged that intermediaries’ expenses were not taken into consideration when establishing the legal aid budget but can be accepted on an ‘ad hoc case-by-case basis, when they are ‘reasonably necessary for an effective and efficient’ legal representation’ (ICC, Second Report of the Court on the financial implications of the draft Guidelines governing the relations between the Court and Intermediaries, ICC-ASP/12/53 (2013b), paras 11–12). As a result, counsel may agree with an intermediary as to a task that needs to be carried out and undertake to provide reimbursement of expenses, but such expenses may subsequently not be reimbursed by the Registry (who is in charge of managing legal aid and approving all of counsel’s expenses). Counsel and the Registry may not share the same opinion as to what is ‘reasonably necessary for an effective and efficient’ legal representation (this being a subjective notion).
- 111.
ICC Guidelines, p. 12.
- 112.
Ibid., p. 6.
- 113.
Ibid., pp. 10 and 16.
- 114.
Ibid., p. 13.
- 115.
Ibid., pp. 10 and 12.
- 116.
IRRI and Open Society Justice Initiative (OSJI) 2011, p. 2.
- 117.
ICC Guidelines, p. 11: ‘The organs and units of the Court and Counsel will use the standard template agreement…’ (emphasis added).
- 118.
ICC Guidelines, p. 2.
- 119.
Ibid., p. 3.
- 120.
There is only one general provision in the Code of Conduct for Intermediaries, by which intermediaries undertake to inform the Court of any existing or impending conflict of interests affecting their work (Code of Conduct, Article 7.7).
- 121.
ICC Guidelines, p. 5.
- 122.
This is revealed by comments provided by external actors. See e.g. VRWG 2011, pp. 3–4.
- 123.
ICC, Model Contract for Intermediaries, Article 8.3.
- 124.
VRWG 2011, pp. 3–4.
- 125.
The ICC Registry has indicated that it has been providing ‘passive protection capacity, e.g. encrypted USB sticks and lockable safes, to certain selected intermediaries in order to equip them to secure information and conduct their activities safely if they do not already have the means to do so.’ See ICC, Report of the Court on the Revised strategy in relation to victims, ICC-ASP/11/40 (2012), para 17.
- 126.
ICC, Model Contract for Intermediaries, Article 5.
- 127.
ICC, Code of Conduct for Intermediaries, Article 7.7.
- 128.
See generally Haslam and Edmunds 2013.
- 129.
ICC, Report of the Court on the implementation in 2013 of the revised strategy in relation to victims, ICC-ASP/12/41 (2013a), para 45.
- 130.
Personal experience and notes of the author. Inquiries were conducted by the author in the framework of her work with the Open Society Justice Initiative (notes on file with the author).
- 131.
Interview with member of ICC legal representation team, 22 October 2014 (records on file with the author, interviewee preferred to remain unnamed).
- 132.
Interview with Silke Studzinsky, former civil party lawyer at the ECCC, 22 October 2014 (records on file with the author).
- 133.
Ibid.
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Pena, M. (2017). The Role of Intermediaries and Third Parties in Victim Participation. In: Tibori-Szabó, K., Hirst, M. (eds) Victim Participation in International Criminal Justice. International Criminal Justice Series, vol 11. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-177-7_4
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