Paolina Massidda is the Principal Counsel of the Office of the Public Counsel for Victims at the International Criminal Court (ICC). She has been closely involved with the trial of former Congolese leader Thomas Lubanga Dyilo, the first person ever to be tried at the ICC. Mr. Lubanga is alleged by ICC prosecutors to have been the head of the Union of Congolese Patriots (UPC), which used child soldiers during 2002 and 2003. Last month, she spoke to the Lubanga Trial website’s Tracey Gurd and Wairagala Wakabi about who the victims are, the negative and positive experiences of victim participation in this trial, and the issue of reparations for victims.

Q. Who are the victims and how are they related to the conflict in Ituri?

A. In the Lubanga case, the majority of victims participating are former child soldiers. This is because the charges Mr. Lubanga faces are directly linked to war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. Some of the victims are parents of former child soldiers who, of course, can have a prejudice from the crimes committed.

These are the only categories of participating victims because according to both the trial chamber and appeals chamber, in order to be recognized as victims in the Lubanga trial, you need to have a direct link with the charges confirmed by the pre-trial chamber and you also need to have suffered from a prejudice derived from such charges.

Q. Could you now tell us about how one gets to be recognized as a participating victim?

A. There is a standard application form available through the Registry [of the ICC] which victims fill in explaining what happened to them. The Victims Participation and Reparations Section of the Registry verifies the form to make sure it is complete with documents such as identity card attached, and any others one might want to annex such as medical certificates.

The form is then sent to the relevant chamber to assess that the applicant is a physical person or organization; and to evaluate whether the applicant suffered damage as a result of a crime under the jurisdiction of the court and a crime which is brought against Mr. Lubanga. There’s need for a causal link between the crime committed and damage suffered by the person. With these criteria fulfilled, the person is allowed to participate in the trial.

Q. Looking back at the experience of the Lubanga trial, what do you say is the importance of victims participating in such trials?

A. First is the chance of telling their stories and have their voices heard before the judges. What is also important is the possibility of challenging evidence brought by the prosecution and the defense, and particularly the possibility to provide evidence not only going to the reparations, but also going to the guilt or innocence of the accused. This is indeed a direct recognition that victims have an interest in the outcome of the trial and in the establishment of the truth.

Another important step was the possibility for victims to appear before the chamber. There has been a precedent of three victims who were not on the list of witnesses called by the Office of the Prosecutor (OTP) and were allowed to appear before the chamber to provide testimony.

In this respect, I think it would be more appropriate for victims to appear before a chamber in accordance with Rule 93 of the Rules of Procedure and Evidence, meaning giving them the possibility to simply provide their views and concerns, and not appearing before the chamber in the dual status of victims and witnesses which was actually the case during the Lubanga trial.

Q. Any negative experiences on the participation of victims in the Lubanga trial?

A. There is still difficulty in interpreting the provisions relating to the participation of victims. In the Rome Statute and the Rules of Procedure and Evidence, and all the text of the ICC, there are very few provisions dealing with the participation of victims. This is already a problem.

Second, these few provisions are not detailed enough. This could be positive, or negative, depending on interpretation. What for me is clear is that to a certain extent, chambers tend to have a cautious and sometimes restrictive interpretation of participation of victims, particularly when we are talking of the defense case.

What is happening in the Lubanga trial is that the chamber requests that in order for victims to participate in each piece of evidence produced by the parties, counsel have to show that the personal interest of each client is concerned by, for instance, each witness. Now we are in the course of the defense case and the defense is not providing legal representatives with disclosure of what they have collected for the defense case in a timely manner, so it is impossible for me as counsel to verify whether the interests of my clients are concerned until very few days before the testimony of a defence witness.

Furthermore, the defense wants to limit the ambit of questioning by legal representatives, yet the point is that we have an interest in questioning prosecution witnesses but we have an even higher interest in questioning defense witnesses. This is because defense witnesses are coming to rebut the thesis of the prosecution, even to discredit prosecution witnesses. If you as legal representative are representing someone for instance with dual status, then it is clear that you have an important role to play in questioning defense witnesses.

Q. The defense earlier this year suggested that some Legal Representatives of victims should not be in court when a particular witness was giving evidence.

A. In a recent decision [March 11, 2010 – Editor] the Chamber has clearly indicated that the presence of participating victims during the evidence of the defence even when the court is sitting in closed session is an essential part of their right to participate in the proceedings. The defense had asked the chamber to order that Legal Representatives not concerned by the evidence of specific witnesses should not be present in the courtroom. The argument of the defense, as I understood it, was that they thought Legal Representatives may not be in court in order not to jeopardize the security of the defense witnesses.

But the defense was not considering that Legal Representatives are counsel, they are bound by the Code of Professional Counsel for lawyers appearing before the court, and there is no incident of Legal Representatives having put at risk any of the witnesses. Plus, we are very cautious in how we handle information because even our clients could be put at risk. Now, we have victims who are not anonymous anymore in the proceedings, meaning that Mr. Lubanga knows the identity of some of my clients so I do not see why I should not know the identity of the defense witnesses.

Q. So how do you then, summarise you relationship with the defense?

A. The relationship is very good but we are in a trial and a trial is always a fight. The only thing I find excessive is asking judges to order the Legal Representatives to be in the public gallery for some of the defense witnesses. This is against the spirit of the Rome Statute.

Q. What happens to the victims in the event that Mr. Lubanga is found guilty?

A. Before the court victims can simply participate, meaning making their voice heard in the proceedings through a lawyer. There is also the possibility for victims to ask for reparations, compensation, restitution or any other form of reparation for the damage suffered. So far in the Lubanga trial, the majority of victims have simply asked for participation. We have few victims asking for reparations. And in any case, the procedure for reparation will not start until there is a culpability verdict against Mr. Lubanga.

If, at the end of the trial, Mr. Lubanga is not convicted, there will be no reparations procedures. This could have an impact on victims on the issue of reparations. I can think of other impacts, such as re-traumatization of victims and psychological trouble.

Q. As we understand it, the accused, in this case Mr. Lubanga, as well as the court, would have to provide the reparations?

A. The principle is that reparations shall be paid by the person convicted. If the person convicted has no financial resources, then the court will use the Trust Fund for Victims to provide awards for reparations to victims. The Trust Fund actually has a double mandate: on the one side to implement awards for reparations after the conviction of someone and after the end of the reparations proceedings. On the other side is the possibility of using some of the resources already available for assistance to victims, which is different from reparations.

It means the Trust Fund can put in place projects to help victims of crimes under the jurisdiction of the court, and their families. This is something that the Trust Fund is already doing in Uganda and in Congo. In Congo, there are several projects sponsored by the Trust Fund, including for rehabilitation of former child soldiers, education programmes, or programmes to minimize the psychological impact of the crimes on former child soldiers.

Q. There is the issue of sexual crimes, and the unsuccessful attempt by Legal Representatives of Victims to trigger Regulation 55 of the Regulations of the Court to re-characterize the facts in the trial to include sexual crimes. This attempt was rejected by the appeals chamber. Going forward, how do you think these could possibly be handled under the current charges that Mr. Lubanga faces?

A. This is more a question for the OTP, but there is still a possibility that the facts of sexual violence will be recognized at the end of the trial, meaning there is a possibility that in the judgement the judges might acknowledge that during the recruitment, young girls were also raped and obliged to be sexual slaves. This does not mean that the charges against Mr Lubanga will change.

Q. Could that impact the sentencing decision? Could it be an aggravating factor?

A. It could be. And actually, the prosecution is pleading for this, and as Legal Representatives I can not say at this point if we will be ready to plead this in our final submissions.

Q. We wonder if you could say a little bit about the victims’ reactions to the decisions on Regulation 55.

A. I can only speak for my own clients, who are not a lot in Mr. Lubanga’s trial. My clients were expecting something from the chamber particularly after the first decision saying that Regulation 55 could be triggered. We explained to our clients that it was very difficult that the chamber would accept our theory. So when the first decision was out, it was even more than what we as legal representatives expected from the chamber. So it was already, sort of, a victory.

But we explained to the victims that for us it was part of our duty to alert the chamber in the constitution of the truth that the facts were different from what was included in the charges. For the majority of people participating – young girls, former child soldiers – rape and sexual slavery were ‘normal life’ during their stay in the UPC. So it was first of all a moral obligation, an ethical and professional obligation, to explain that these things happened. We explained this to the victims and I think that they accepted this, as long as we had voiced their concerns in relation to these events.

Q. And why was it important to the victims?

A. Because it is part of what happened to them. The first thing that I do when I meet a client is to ask why they want to participate in the proceedings before the court. Majority of them say that they want their voice heard and they want that their story be known so that crimes will not be repeated in future. Very few in the Lubanga trial say that they want reparations. They want their voice heard and they want to contribute to the establishment of the truth. And for them, the establishment of truth also means what happened to them is recognized as it happened, not differently.

Q. And that could have been achieved through the legal re-characterization…

A. Yes. And for them, the fact that there is someone in the courtroom that can voice their concern, it is already important for them. It means that someone is caring about what happened to them. And this is highly important for victims in the proceedings.

Q. In common law systems, victim participation doesn’t happen and in the ICC you have got a mixture of common law lawyers and judges and civil law lawyers and judges. The civil law lawyers and judges are far more used to victims’ roles in the court. Do you think this mixture of common and civil law thinking has contributed to the lack of clarity on victims’ roles and how they can present themselves in court, for example

A. During the drafting process for the Rome Statute, it was very difficult to find a compromise between civil law countries and common law countries and there were actually two positions. The only agreement possible was the wording of Article 68.3 which is really very hard to interpret. Because Article 68.3 says that when the personal interests of victims are concerned, the court shall permit the views and concerns of victims to be heard in a manner which is not prejudicial toward or contrary to the interest of the defense and a fair trial.

Now, if you take this word by word, you can easily see that each term is subject to interpretation what is views and concerns? What does it mean that victims may present their views and concerns? Which kind of personal interests of victims are concerned is again a matter of interpretation. What it means that they can present their views insofar as they are not contrary to the right of the defense and a fair and impartial trial, is again a matter of interpretation.

We are still in the very beginning of the ICC proceedings, so the trend of interpretation is varying depending on the different chambers. But still, in the matter of participation, we are now assisting with harmonization of the practice of the court for the various cases and I hope that in the next years the participation of victims will improve.