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Abstract
In the field of international criminal justice, the international criminal court (ICC) has been lauded for its integration of victim participants into its legal proceedings. In particular, the ICC’s framework of victim participation has been understood to figure as a balance between retributive and restorative justice as it enables the actual voices of the victims to be heard. However, there has been little research that considers how victim participation works in practice as a form of truth-telling. In order to begin to address this gap, the integration of the ‘voices of the victims’ into the proceedings and outcome of The Prosecutor v. Thomas Lubanga Dyilo is explored. The forms of harms and experiences that comprise the truth of the events under adjudication put forward by the victim participants are considered, and then how the truth-telling functions of the ICC represent these states of injury. While the ICC’s legal proceedings enable victims to speak of their harms and experiences, their ‘voices’ are largely absent from its judgment. To address this issue, the ICC needs to develop and maintain a level of ‘restorative justice coherence’ to manage victims’ expectations of its justice approaches.
Notes
1. Opening statement of the legal representatives of the victim participants, The Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04-01/06. Transcript of Trial Proceedings, 26 January 2009, p. 69 (Lubanga, Transcript).
2. Fieldwork was undertaken by the author at the ICC during February 2009.
3. Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo. ICC-01/04-01/06. Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 1358 (‘Lubanga, Judgment’).
4. See ICC, http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Victims/. The ICC also considers that its framework of reparations figures as an element of this balance between retributive and restorative justice.
6. Lubanga, Transcript, 30 October 2007, p. 22.
7. Lubanga, Transcript, 26 January 2009, p. 41.
8. This paper does not take the position that legal proceedings, whether encompassing victim participation or not, can provide a comprehensive ‘truth’ of the events under adjudication. The idea that law can construct or represent the ‘truth’, ‘history’ or ‘collective memory’ of past atrocities is problematic given the constraints of legal process (Osiel, Citation2001). Nevertheless, uncovering the ‘truth’ of past events in order to adjudicate the claims of the Prosecution (and Defense) necessarily figures as an aspect of legal proceedings. This paper seeks to explore how victim participation impacts upon the forms of truth heard and represented by the law.
9. Rome Statute of the ICC, Article 68(3).
10. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the United Nations General Assembly, resolution 60/147, 16 December 2005.
11. Lubanga, Judgment, para. 14 (ii).
12. Lubanga, Judgment, para. 14 (iv).
13. Lubanga, Judgment, para. 14 (v).
14. Lubanga, Judgment, para. 14 (v).
15. Lubanga, Judgment, para. 15.
16. Lubanga, Judgment, para. 14. See Lubanga, Judgment, para 14 for the procedural parameters of victim participation in these forms.
17. Lubanga, Judgment, para 14.
18. ICTY, ‘Holding Leaders Accountable’, http://www.icty.org/sid/324
19. ICTY, ‘Judgements and Sentencing’, http://www.icty.org/sid/147
20. The Prosecutor v. Ranko Češić, IT-95-10/1-S. Sentencing Judgement, 11 March 2004, para. 23.
21. The Prosecutor v. Dragan Obrenović, IT-02-60/2-S. Sentencing Judgement, 10 December 2003, para. 45.
23. The Rome Statute of the ICC entered into force on 1 July 2002 upon obtaining the requisite 60 state ratifications (Schabas, Citation2004, p. ix).
27. See ICC Statute, Article 15(3).
28. Booklet, Victims Before the ICC: A Guide for the Participation of Victims in the Proceedings of the Court, p. 16 (ICC Booklet).
29. ICC Booklet, p. 16.
30. ICC Booklet, p. 16.
31. ICC Booklet, p. 16.
32. Lubanga, Judgment, para. 1.
33. Lubanga, Judgment, para. 913.
34. Lubanga, Judgment, para. 915.
35. Lubanga, Judgment, para. 913.
36. Lubanga, Judgment, para. 913. As sexual violence does not form part of the charges against the accused, the Chamber did not make any findings on the fact of the issue.
37. Lubanga, Judgment, para. 1358. Lubanga was charged with the commission of the crimes within the context of both an international and non-international armed conflict. Following an extensive review of the situation in Ituri during the relevant period, the Trial Chamber changed the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was non-international in character (Lubanga, Judgment, para. 566).
38. Lubanga, Judgment, para. 11.
39. Lubanga, Judgment, para. 11.
40. Lubanga, Judgment, para. 1351. The Trial Chamber held that Lubanga had entered into an agreement, and thereafter participated in a common plan, with his co-perpetrators to build an effective army. These co-perpetrators included Floribert Kisembo, Bosco Ntaganda and Chief Kahwa (Lubanga, Judgment, para. 1352).
41. Lubanga, Judgment, para. 1355.
42. Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo. ICC-01-/04-01/06. Decision on Sentence pursuant to Article 76 of the Statute, 10 July 2012.
43. Lubanga, Judgment, para. 15.
44. Lubanga, Judgment, para. 17. A school was also given the status of victim participant.
45. Lubanga, Judgment, para. 17. A school was also given the status of victim participant.
46. Lubanga, Transcript, 17 March 2009, pp. 40–41.
47. Lubanga, Transcript, 21 January 2010, pp. 42–43.
48. Lubanga, Transcript, 7 January 2010, p. 29.
49. Lubanga, Transcript, 25 February 2009, p. 55.
50. Lubanga, Transcript, 6 March 2009, p. 29.
51. Lubanga, Transcript, 12 January 2010, p. 26.
52. Lubanga, Transcript, 3 March 2009, p. 36.
53. Lubanga, Transcript, 3 March 2009, p. 36.
54. Lubanga, Transcript, 21 January 2010, p. 46.
55. Lubanga, Transcript, 25 August 2011, p. 61.
56. Lubanga, Transcript, 3 March 2009, p. 36.
57. Lubanga, Transcript, 9 July 2009, p. 29.
58. Lubanga, Transcript, 9 July 2009, pp. 18–19.
59. Lubanga, Transcript, 3 July 2009, p. 3.
60. Lubanga, Transcript, 3 July 2009, p. 3.
61. Lubanga, Transcript, 3 July 2009, p. 2.
62. Lubanga, Judgment, para’s. 13–21.
63. It is important to note that the legal process may serve to refute the victim status of victim participants due to inconsistent testimony, or contrary evidence. For example, the Chambers in Lubanga found that there was insufficient evidence that six of the victim participants were victims (Lubanga, Judgment, para. 484).
64. Lubanga, Separate and Dissenting Opinion of Judge Odio Benito, ICC-01/04-01/06-2842, 14 March 2012, para. 8.