FIDH and KHRC call upon the ICC to ensure a meaningful participation and legal representation for Kenyan victims

On 3 October, the Trial Chamber V of the International Criminal Court (ICC) established a new scheme for the participation of Kenyan victims in the two cases related to the post-electoral violence of 2007-2008. Whilst acknowledging the effort to overcome some of the difficulties of the present system, FIDH and its member organisation, the Kenya Human Rights Commission (KHRC), are concerned about the design of this new system in ongoing proceedings, the feasibility of its implementation and calls upon the relevant organs of the ICC to adopt all measures required to ensure that the scheme established by the judges allows victims to have a meaningful, efficient and effective participation in the proceedings.

"The ICC Statute was innovative in allowing victims of international crimes to participate in proceedings before the Court. However, this decision, adopted in a context of intense budgetary discussions on legal representation may undermine their participation through an independent and effective legal representation", declared Souhayr Belhassen, FIDH President.

On 3 October 2012, the ICC judges issued almost identical decisions on victims’ representation and participation in the cases of The Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta and The Prosecutor v William Ruto and Joseph Sang.

The Judges adopted a differentiated procedure. They decided that victims may participate through a common legal representative, based in Kenya, through a registration process that would be less detailed than the present individual application. The Office of Public Counsel for Victims (OPCV), an office within the ICC structure, should assist the common legal representatives in Court and act on his or her behalf. The Trial Chamber also enabled victims who wish to appear directly before the Chamber to present an individual application.

This is the first time that a Chamber of the Court adopts a differentiated scheme, particularly with a collective legal representative in the field being assisted by staff from OPCV in The Hague.

The Pre-Trial Chamber granted 560 persons the status of victims authorised to participate in the proceedings. They are being represented by two common legal representation teams since August 2011. Around 4500 persons have applied to be considered as victims and being able to participate. The trials are set to start in April 2013.

The existing system of individual applications has led to quite significant problems in other cases due to the lack of resources of Victims Participation and Reparations Section (VPRS) to process them on time. The Court has reported that, at present, “the Registry is unable to keep pace and a sizeable backlog of applications exists”. The judges have argued that due to the “large number of expected victim participants”, it is not feasible to apply the system of individual applications in the Kenya cases.

Whilst FIDH and KHRC acknowledge the Court’s interest in solving the issue of individual applications, they are concerned that the scheme adopted by the Trial Chamber V may lead to serious problems of implementation. The Registry would have to ensure that the common legal representative has the resources, capacity and support in the field to maintain constant communication with the group of victims she or he represents, bearing in mind the security situation in Kenya in relation to these cases.

"An effective representation of victims will be possible only if victims are duly informed and are able to provide their observations to their representatives. The presence of a team is therefore necessary in the field, and this team needs to act in a discrete manner in the security situation, that may not ameliorate before the presidential election", declared Atsango Chesoni, KHRC Executive Director.

In addition, there is a need to establish efficient and effective coordination between OPCV and the independent legal representative to ensure meaningful participation. This collaboration may be particularly difficult. OPCV has previously expressed concerns about its feasibility. In a document dated the 27 of September 2012, answering to a Registrar’s proposal of a similar scheme to the one adopted by the judges, OPCV expressed its view that such a system “gives rise to both legal and practical impediments”. The main concerns of the Office related to its lack of resources, the threat to its independence and ability to work on multiple cases, and accountability issues for its staff.

Furthermore there is no clarity on how the transition to this new form of participation will take place, bearing in mind that legal teams have already been appointed to represent the victims. The decision also raises questions as to how these victims will receive a change in the way their interests are being represented in Court.

FIDH and KHRC are concerned that such a scheme was defined by the judges without any prior consultation with victims’ actual representatives, the victims and OPCV, and without asking for their observations.

Finally, this decision comes in the midst of increasing discussions on the need for a review of the system of victims’ participation and representation, in particular the legal aid scheme. Unfortunately, the debate has been caught in a turmoil of budgetary discussion with the main objective of ensuring savings in the operation of the ICC.

"The judges of the Court through their decisions have confirmed that participation of victims has to be meaningful and not purely symbolic. We reiterate our call for a comprehensive review of victims` participation, in consultation with victims, their representatives and civil society, to make sure that the system designed will be inspired, mainly, by the need to ensure an effective and meaningful participation", declared Patrick Baudouin, FIDH Honorary President.

Background of the cases

The cases relate to post-electoral violence in Kenya triggered after the announcement of the electoral results on 30 December 2007.

One of the two cases is against Francis Kirimi Muthaura, former Head of the Public Service and Secretary to the Cabinet, and Uhuru Muigai Kenyatta, Deputy Prime Minister and former Minister for Finance. In the other case, the Prosecutor brought charges against William Samoei Ruto, Former Minister for Higher Education, Science and Technology, and Joshua Arap Sang, Head of operations at Kass FM in Nairobi.

All the defendants have been accused for crimes against humanity. None of them is in the custody of the Court.

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