Horrific stories of murder, sexual slavery and beatings emerged in the courtroom this week as victim participants took the witness stand in the trial of Congolese militia leader, Thomas Lubanga, at the International Criminal Court.  A schoolmaster told of his suffering allegedly at the hands of the Union of Congolese Patriots (UPC) militia who hit him with gun butts as he tried to prevent them from abducting his students. A former child soldier spoke of seeing his friends killed  “like flies” during battle. A third victim, also a former child soldier, is set to testify next week.  But these victims are not testifying for either the prosecution or the defense case, so why are they testifying now?

In short, the ICC offers scope for victims to directly give evidence to the judges in their own right, and also to present their views and concerns to the judges (most often through their legal representatives) during the trial.   These three victims are the first ones to be able to take advantage of this opportunity to tell their experiences directly to the judges. That they were able to do so was triggered by a request made on their behalf by their legal representative, Joseph Keta, in April 2009.

In a case in which Mr. Lubanga is charged with the war crimes of conscripting, enlisting and using child soldiers to participate actively in hostilities, Mr. Keta had asked the court if  three of the victims he represents could either present evidence or provide their views and concerns to the court on four issues:

• their individual histories, within the context of the charges faced by the accused;
• the harm they individually experienced;
• the approach to be taken to reparations, focusing particularly on any relevant facts not canvassed thus far during the trial; and
• the issue of child recruitment, including its extent in their home region in the DRC.

In deciding this question in June 2009, Trial Chamber I, made up of three judges, first looked to the Rome Statute – the treaty which governs the law and operation of the ICC.  Article 68(3) says:

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.

This article, the judges said, creates “the unequivocal statutory right for victims to present their views and concerns in person when their personal interests are affected.” However, such presentations must not must not be inconsistent with “the rights of the accused and a fair and impartial trial.”  Considerations impacting fairness had to be taken into account, including trial management concerns such as the number of victims wanting to share their views and concerns with the court. A large number could impact the speediness of the trial, the judges feared, and their common views might be best expressed through a legal representative.

The judges also considered whether victims had a right to give evidence as well as present their views and concerns.  As in their previous decisions, they decided yes — in part because the Court had a general right to ask for the presentation of all evidence needed to find the truth. This also meant, the judges said, that victim participants could tender and examine evidence, as long as certain safeguards were in place.  They also recalled an earlier decision of theirs that victims could also offer evidence on reparations during the trial if the court decided it was appropriate.

In coming to these conclusions, the judges highlighted an important distinction: victims “expressing their views and concerns” is not the same as victims “giving evidence”.  The expression of “views and concerns” – either by the victim in person or through legal representatives —  does not form part of the evidence of the trial, but instead is meant to help the judges in their approach to evidence in the case.   For victims to give evidence in the trial, they must take the oath from the witness box before testifying.

In the case of these three victims that are testifying now, the judges decided that each individual could give evidence in the case because they had showed (1) that their personal interests were affected and (2) that the evidence they wanted to give was directly related to the charges against Mr. Lubanga.  In rejecting prosecution arguments that the two former child soldiers would be duplicating previous evidence, the judges noted that “the account of each former child soldier is unique” and that the victims planned to give evidence about child soldier recruitment in a region that had not been discussed so far during the trial. Meanwhile, the former school teacher as an indirect victim of the charges in the case could still testify on a region which had not been covered in testimony.

The judges also recognized that the victims may also want to share their views and concerns in person on issues such as “the harm they individually experienced and the approach to be taken to reparations” after they give evidence. The judges said they expected the legal representatives to give “careful and detailed advice” to the victims on the best way to present their views and concerns, and the judges would listen to arguments about presenting victim views and concerns after the victims had given their evidence.

The victims testifying this week have all had face and voice distortion so their identities were not revealed to the public.  The former child soldier testified in the presence of a psychologist, and broke down at times during his testimony.  After the school teacher finished his testimony, Judge Fulford thanked him for his assistance to court and then told him his legal representative, Joseph Keta, would advise him on the ways in which he would continue to play a part in the trial. We will see the final victim, another former child soldier, testify next week.  Then the defense case will start in earnest.

What we are seeing this week, however, is historic — the first time that victims can tell their own stories in person to the court.   What we don’t know is how the victims experienced the process themselves.   Hopefully this opportunity will provide one extra way for the legal process to be more meaningful to those who suffered most, and directly, from the crimes being prosecuted in the ICC.