Recalde-Vela 199 4.3.2 Statelessness at the ICC: challenges and opportunities Participation is important in international criminal legal proceedings. According to Cryer et al., the main purpose of victim participation is to ‘contribute to the prosecution and obtain restitution or reparation and other forms of satisfaction’.196 For the victims, participation can help ensure that the experience of the violations they suffered can be heard in their own terms and own voices, and can contribute to the reconciliation of a community or an entire country.197 It should be noted that victims before the ICC are not given the status of a partie civile—or civil party—as is common in civil law systems.198 The ICC allows victims to present their views and concerns through their legal representatives.199 However, despite having this possibility, victims are not party to the proceedings,200 but are “participants” who can present their views and concerns under certain conditions, and whose participation is limited by the judge’s discretion.201 The legal basis for victim participation can be found under the RS and the Rules of Procedure and Evidence (RPE). Victims are always represented by their legal representative during proceedings and can participate as witnesses if they wish. Under Rule 85(a) of the RPE, in order to fall within the definition of victim, an individual needs to be able to show that he/she is a natural person and suffered harm as a result of the commission of a crime under the jurisdiction of the Court.202 There is no requirement to be directly affected by the crime in order to participate as a victim203 which allows for families and dependents of direct victims to fall within the definition of victim.204 A problem with the ICC’s approach is that the RPE provide only limited guidance on what exactly the right to participate entails. In order to be able to participate, victims must apply for status as victims in the proceedings. Since the ICC is a criminal tribunal with the mandate to punish perpetrators, higher evidentiary standards are in place, in order to ensure fairness to the accused. To establish some necessary facts—such as the identity of the victim seeking participation—a higher standard of proof is in place due to the nature of the court.205 Transparency and accuracy is required in order to ensure a fair trial to the accused. Therefore, the application process for participating as victims in the proceedings can be burdensome due to the ‘individualized processing requirements’.206 In the prosecutor v Kony, Otti, Odhjambo & Ongwen—when deciding whether an applicant fulfils the criteria under Rule 85(a) RPE—the Appeals Chamber observed that while all judicial decisions are based on the evidence presented,207 determining what evidence is sufficient cannot be pre-determined. This means that acceptable evidence varies in every case, and all relevant circumstances should be considered,208 while 196 197 198 199 200 201 202 203 204 205 206 207 208 R Cryer, H Friman, D Robinson & E Wilmshurst (eds), An Introduction to International Criminal Law and Procedure (3rd, Cambridge University Press, 2014), at 489. C Stahn, H Olasolo & K Gibson, ‘Participation of Victims in Pre-Trial Proceedings of the ICC’ (2006) 4(2) Journal of International Criminal Justice 219, at 221. A partie civile is the subject damaged by a crime, that can enter the process to see the status confirmed by a judge and be entitled to indemnification. Victims and civil parties often coincide, although a civil party might also not be the victim of a criminal conduct (in the case of a murder, for instance, civil parties could be the relatives of the victim). R Cryer, H Friman, D Robinson & E ­Wilmshurst (eds), An Introduction to International Criminal Law and Procedure (3rd, Cambridge University Press, 2014), at 488. ‘Participation’ in K. Booth & J Sulzer, Victims’ Rights Before the International Criminal Court: A Guide for Victims, their Legal Representatives and NGOs (International Federation for Human Rights (FIDH), Paris 2007), at 5. R Cryer, H Friman, D Robinson & E Wilmshurst (eds), An Introduction to International Criminal Law and Procedure (3rd, Cambridge University Press, 2014), at 488; L Carter & F Pocar, International Criminal Procedure. The Interface of Civil Law and Common Law Legal Systems (Edward Elgar Publishing, Cheltenham, UK 2013), at 172. L Carter & F Pocar, International Criminal Procedure. The Interface of Civil Law and Common Law Legal Systems (Edward Elgar ­Publishing, Cheltenham, UK 2013), at 172. R Cryer, H Friman, D Robinson & E Wilmshurst (eds), An Introduction to International Criminal Law and Procedure (3rd, Cambridge University Press, 2014), at 490. ‘The Evolution of Victims’ Access to Justice’ in K. Booth & J Sulzer, Victims’ Rights Before the International Criminal Court: A Guide for Victims, their Legal Representatives and NGOs (International Federation for Human Rights (FIDH), Paris 2007), at 37. Ibid, at 37. R Cryer, H Friman, D Robinson & E Wilmshurst (eds), An Introduction to International Criminal Law and Procedure (3rd, Cambridge University Press, 2014), at 490; Redress, The Participation of Victims in International Criminal Court Proceedings A Review of the Practice and Consideration of Options for the Future (Redress Trust, 2012), at 16. Redress, The Participation of Victims in International Criminal Court Proceedings A Review of the Practice and Consideration of Options for the Future (Redress Trust, 2012), at 16. The Situation in Uganda in the case of the Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo & Dominic Ongwen [2009] ICC Appeals Chamber ‘Judgment on the appeals of the Defense against the decisions entitled ‘Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06’ of Pre-Trial Chamber II’ ICC-02/04-01/05-371, para 36. ibid, para 38.