On Friday, April 7, the International Criminal Court (ICC) will hold a hearing in the case against Sudan’s President Omar Al Bashir, for the first time in seven years. Pre-Trial Chamber II will hear submissions on whether action should be taken against South Africa for failing to surrender President Bashir during his visit to that country in June 2015 for an African Union summit.

Notably absent from the hearing will be any representative of the victims of Bashir’s alleged crimes, although a small number of them have been granted status to participate in the case.

The role given to victims in ICC proceedings is often described as ground-breaking. Victims’ voices, so it is claimed, are what distinguish this court from previous international tribunals. Under Article 68(3) of the Rome Statute:

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.

It is difficult to conceive of an issue arising before the court that is more inherently linked to victims’ “personal interests” than a suspect’s arrest and surrender. The Rome Statue does not allow the court to try a suspect in absentia, so the lack of surrender means there is no trial in which victims’ accounts can be heard; no prospect of criminal accountability; and no possibility of reparations following a conviction.

Why then will victims not participate in the April 7 hearing?

Background to the hearing

In September 2015, the pre-trial chamber decided that South Africa’s failure to arrest and surrender Bashir warranted proceedings under Article 87(7) of the Statute. That provision empowers the court to find that a state party has failed to comply with an ICC request for cooperation and to refer the matter to the Assembly of States Parties or, in some cases, to the Security Council.

The Article 87(7) process remained on hold until late 2016, pending the resolution of litigation in South Africa. The chamber then decided to convene a hearing and invited submissions from South Africa, the ICC Prosecutor, and the United Nations. (The UN has said that it will not make submissions.) The chamber also observed that “the issue is of general importance” and therefore invited written submissions from any state party. (Submissions have been made by Belgium.) Later, the chamber also allowed the Southern Africa Litigation Center to make written submissions as amicus curiae under Rule 103 of the Rules of Procedure and Evidence (RPE).

Victims’ request to participate

On February 24 of this year, the pre-trial chamber received a request for participation from lawyers representing four victims, who in 2009 were authorized to participate in the case. The victims’ request was refused by the chamber on March 9.

In essence, the chamber ruled that Article 68(3) only grants victims a “right” to participate in “criminal proceedings” related to the “the merits of the case” but does not apply in other proceedings, such as those under Article 87(7). Article 87(7) proceedings, it said, concern the relationship between the court and a state and therefore their only “indispensable participant” is the state. Others, including victims, may be invited to participate if they may have information relevant to the chamber’s determination.

Commentary

The chamber has discretion to invite submissions from any source that might be well-placed to assist it. However, the more important question is whether victims should be required to fall back on this general judicial discretion or whether they have another legal basis on which to be heard.

Indeed, Article 68(3) was intended to supersede precisely this “instrumentalist” approach, according to which victims should be heard only when offering information deemed helpful by the parties or a chamber. Instead, Article 68(3) envisages participation not as a benefit for the chamber or the parties, but for the victims themselves. It recognizes that, having experienced the alleged crimes as an often life-changing cause of harm, victims have a special interest in how those crimes are dealt with. This is why the test for Article 68(3) participation is whether a victim has a personal interest, rather than whether the chamber would be assisted. (Note, this does not mean victims’ views are not often useful for the chamber; only that this is not a pre-requisite for their expression.)

This of course still begs the question of whether participation under Article 68(3) is indeed intended to apply to all ICC proceedings.

The chamber held that it does not, but rather only applies to “criminal” proceedings leading to and following a determination on individual criminal responsibility. However, the decision lacks any reasoning on how it reached that interpretation.

Furthermore, in reaching this conclusion the judges did not make reference to the RPE, principles of international law, or previous ICC jurisprudence as provided for in Article 21(1) of the Statute. In fact, these sources support a different conclusion.

Under customary international law and Article 31(1) of the Vienna Convention on the Law of Treaties, Article 68(3)’s words should be given their “ordinary meaning … in their context and in the light of [the treaty’s] object and purpose.”

Nothing in the ordinary meaning of Article 68(3)’s words suggests their restriction to “criminal” proceedings. The plain meaning of “proceedings” encompasses any “action taken in a court to settle a dispute.” Elsewhere, the Rome Statute uses the term to refer to various legal processes, including those concerning jurisdiction and admissibility under Article 19 and domestic arrest proceedings under Article 59.

Past practice and jurisprudence of the ICC also do not support the chamber’s interpretation. In the Kenyatta Case, victims participated in Article 87(7) proceedings before both the trial chamber and the Appeals Chamber. In expressly permitting victims to participate pursuant to Article 68(3), the Appeals Chamber recognized that their personal interests were affected by the appeal and its consequences.

In a 2008 decision, the Appeals Chamber explained the meaning of “proceedings” as used in Article 68(3). In its key decision on victim participation in ICC situations, the Appeals Chamber said that the term refers to “a judicial cause pending before a Chamber” and went on to explain that “victims are not precluded from seeking participation in any judicial proceedings, including proceedings affecting investigations, provided their personal interests are affected by the issues arising for resolution.”

In that decision, the Appeals Chamber held that Article 68(3) does not permit victim participation in an investigation per se, but that it does permit victims to participate in judicial proceedings that occur in respect of an investigation (or situation). This is relevant because judicial proceedings in a situation are by their very nature not criminal proceedings on the merits of a particular case.

Situation proceedings include, for example, the review of a prosecutorial decision under Article 53 not to investigate. Such a review does not constitute criminal proceedings on the merits of a case. However, Rule 92(2) the RPE expressly contemplates victims participating in such reviews pursuant to Rule 89 (which derives from Article 68(3)).

All of these sources point to the conclusion that Article 68(3) applies in all judicial proceedings at the ICC. Of course, the chamber is not bound by previous jurisprudence and legal texts can be given different interpretations. However, the statute’s plain meaning and the express words of the RPE and the Appeals Chamber must carry some persuasive force. At the very least, an explanation is to be expected as to why the chamber was otherwise persuaded.

The closest thing to an explanation that appears in the pre-trial chamber’s decision is the implicit assertion that Article 68(3) does not extend victim participation to Article 87(7) proceedings because they “[concern] the relationship between the Court, on the one hand, and a State, on the other hand.” If, by this, the chamber means that cooperation proceedings by their nature only affect the interests of the state concerned, and therefore can never be of concern to victims, that view would be incorrect.

The chamber itself has previously said that the issue at stake in the present Article 87(7) proceedings is of “general importance,” and on that basis invited all states parties to make submissions. Cooperation requests, and proceedings relating to them, can involve a wide range of matters extending well beyond arrest and surrender to include collection of evidence, execution of search and seizures, freezing of assets, and protection of victims and witnesses.  The range of persons whose interests may be affected will depend on the cooperation sought. Of course, it is possible to conceive in the abstract of cooperation proceedings which don’t engage victims’ interests. But where that is the case, applying the “personal interests” requirement in Article 68(3) would itself lead to the result that victims could not participate. The court would in any event decide in which specific cooperation proceedings victims could participate, an approach which has clear appeal over the exclusion of victims from every cooperation proceeding.

The victims’ request to participate details how securing state cooperation for Bashir’s surrender to the ICC is very much a matter that concerns them. The chamber did not explain why those specific interests are to be disregarded in favor of a blanket conclusion that cooperation proceeding never concern victims. This is especially disappointing to advocates of victims’ participation because it prevents victims from being heard on an issue that fundamentally affects their rights to truth, accountability, and reparations.

The decision is also emblematic of broader problems at the ICC. Its lack of detailed reasoning and failure to undertake the most cursory application of established treaty interpretation principles are troubling. Where ICC chambers base their conclusions on assertion rather than reasoning, this not only increases the risk of judicial error, but also limits the abilities of parties, participants, and other chambers to appeal, consider, apply, or distinguish the decision.

As far as the scope and application of Article 68(3) is concerned, it is hoped that in future proceedings chambers will have greater regard to the Appeal Chamber’s reasoning rather than the example set by this decision. For now, it is clear that the court still has some way to go in truly allowing victims’ voices to be heard.

Megan Hirst is a barrister at Doughty Street Chambers in London and is currently Legal Assistant for the Victims’ Legal Representatives in the Dominic Ongwen case.