Standards for the Engagement and Participation of Victims' Representatives
International justice mechanisms have developed certain standards for the engagement and participation of victims in proceedings. Under the Rome Statute and ICC practice, victims may participate not only as witnesses but as independent parties to proceedings, with the right to legal assistance, to submit their views and concerns, and to seek reparations.
In the Lubanga case[595], the Court for the first time systematically defined the status of victims and admitted them as independent participants in the proceedings: their representatives could file applications for participation, express views on the legal characterisation of acts, put questions to witnesses through the Court, and participate in reparations proceedings. At the same time, the Chamber clearly delineated the scope of their interventions — prohibiting them from going beyond the charges and duplicating the function of the Prosecutor — thereby establishing practical boundaries on the powers of victims' representatives.
In the Katanga case[596], the ICC introduced a model of collective victim representation in proceedings, established criteria for admission to participation and for the allocation of roles among multiple representatives, subject strictly to the condition that their activity did not undermine the rights of the defence or procedural economy. Developing this approach further, in the Ongwen case victims were grouped into large clusters with two common legal representatives, who could submit written observations, examine witnesses within the limits set by the Chamber, and actively participate in the reparations phase. At the same time, the Court consistently emphasised that victims' participation must not transform the proceedings into a "collective truth-finding commission" and must remain compatible with the rights of the accused[597].
Certain categories of crimes require the engagement and participation of not only individual but also of collective victims. In the Al Mahdi case, which concerned the destruction of cultural heritage in Timbuktu, victims' representatives argued the link between the destruction of shrines, the moral harm to local communities, and the need for collective reparation measures (memorials, restoration of sites, reconciliation programmes), but were unable to claim reparations for harm falling outside the scope of the established incidents.[598]
ICC practice, which typically assesses the responsibility of high-level perpetrators, may also expand the categories of victims identified in a case. The reparations decision in Ntaganda[599] identified groups of direct and indirect victims of attacks on the civilian population and other crimes in the Congo who were entitled to reparations. For victims to be eligible for inclusion in any given category, their representatives had to demonstrate the existence of a specific causal link between each type of harm and the charged incidents. The Chamber recognised a very broad range of harm but rejected claims where the connection to the established facts was insufficiently substantiated. A victims' lawyer in such proceedings therefore bore an independent burden of proof, rather than being merely obliged to provide "moral representation" of a general tragedy.[600]
The case law of the European Court of Human Rights has additionally established requirements for the effectiveness of victim representation in criminal proceedings, for ensuring victims' access to the truth, and for a fair hearing in cases of mass and systematic human rights violations. The role of victims and their representatives in proceedings is assessed in light of the state's procedural obligations under Articles 2 and 3 of the Convention. The Court consistently emphasises that in cases involving deprivation of life or violations of the prohibition of torture, the state is obliged to conduct an effective investigation which must, among other things, "involve the next of kin to the extent necessary to safeguard their legitimate interests." This means that victims' representatives must have access to information about the progress of the investigation, the ability to examine the case materials (at least in their key parts), to put questions to witnesses, to challenge decisions to close proceedings, and to influence the conduct of the investigation.[601]
The ECtHR has further developed the standard of equality of arms — which, while primarily shaped in the context of the rights of the accused, also applies to victims' representatives when they are parties to proceedings. The Court emphasises that no consideration of speed or procedural economy can justify inequality between the parties as regards access to evidence, the opportunity to comment on submissions by the other party, or participation in key hearings. In Nideröst-Huber v. Switzerland[602], Barberà, Messegué and Jabardo v. Spain[603], and other cases, the ECtHR held that correspondence between the court and one party concealed from the other, the absence of an opportunity to respond to an opponent's arguments, or the use of evidence to which the applicant had no access, are incompatible with the requirements of a fair trial. For victims' lawyers, this means the right to demand equal opportunities to be informed of and to express views on materials that affect the outcome of the case.
