Allowing the voices of victims to be heard

Natalie Simpson

Legal representation for victims in international criminal trials is an interesting and emerging field of international criminal law currently being developed through the International Criminal Court in The Hague. Governed by Article 68 of the Rome Statute, legal representation of victims is the practice of allowing victims of crime to have counsel represent them throughout proceedings.

The precise role of victims in proceedings is essentially left up to the discretion of the presiding judges who have ultimate power over deciding the manner in which the victims’ legal representatives can participate in the proceedings.

The concept of victim participation at the pre-trial and trial phase of a hearing is novel in international criminal law and while it has its basis in protecting the rights of victims to a crime, it also has significant flaws. One of the main arguments against the system of having victims legally represented by counsel is that it upsets the balance of justice in the court.

This practical concern stems from the idea that having a prosecutor and a representative for victims effectively allows the prosecution more power, therefore undermining the strength of the defence from the outset and undermining the presumption of innocence afforded to the accused.

The Rome Statute attempts to correct this imbalance by stating in Article 68(3) that such intervention can only be allowed if it ‘is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial’. However, one questions how effective such a provision will be in reality when the mere existence of such representatives arguably undermines this fundamental right.

The highly problematic role of the legal representatives for victims needs to be dealt with carefully in these early years of the International Criminal Court in order to maintain the integrity of the Court’s proceedings. The first case to openly question the role of legal representatives of victims is The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui.

In this case, the defence team for Mr Katanga recently voiced its concerns to the Court that the representatives are effectively acting as a substitute or ancillary prosecutor by picking up the slack in the prosecutor’s questioning. The counter-argument to this particular objection from the representatives was that if curtailed, the legal representatives risk becoming glorified spectators to the proceedings with no practical function.

The Court has yet to decide on the exact role the legal representatives will play in this particular case, and given the youth of the ICC there is very little instruction as to how the role of the legal representatives will develop, but it will be interesting to see how this field emerges and how the Court manages to balance the fundamental rights of the victims with those of the accused.

Natalie Simpson is a Liberty Victoria volunteer.