ICC Victims Role Under Scrutiny in Kenya Hundreds of victims have been given a voice in trials, but some

experts warn thi s will complicate judicial process. By Evelyn Kwamboka - International Justice - ICC, ACR Issue 308, 21 Nov 11

"Now they will see fire! Go, go for it!" a victim of Kenyas post-election violenc e cheered as she watched proceedings unfold at the International Criminal Court, ICC, on a television screen in a remote town in the Rift Valley. Others in the room waited in anticipation. They were not disappointed, as their legal representative asked the questions they wanted to put to the suspects them selves. Hearings were held at the ICC in September to determine whether prosecutors had enough evidence to try six public figures suspected of orchestrating Kenyas 200708 post-election violence. Observers say the participation of victims in legal proceedings at the ICC provi des a crucial opportunity for them to contribute to the justice process. But law yers representing suspects before international courts fear their involvement co mes too early on in the case, and puts the defendants at a disadvantage. In the first of two cases, the former education minister, William Ruto, ex-minis ter of industrialisation, Henry Kosgey, and radio presenter Joshua Sang are accu sed of crimes against humanity for the bloodshed sparked by the alleged rigging of presidential elections at the end of 2007. The second case involves Francis Mathaura, chairman of the national security adv isory committee, Deputy Prime Minister Uhuru Kenyatta, and Mohamed Ali, Kenya s former police commissioner, all of whom face similar charges of planning carnage that killed approximately 1,000 civilians and injured more than 3,000 in under two months. Thousands of kilometres away from The Hague, the voices of the victims who bore the brunt of the violence are urgent and real. Under the ICCs founding treaty the Rome Statute many have gained the right to par ticipate in the trials and to be represented in court by a lawyer. The ICC is the first international court to incorporate victims into criminal pr oceedings. They want to play meaningful roles in this court, Morris Anyah, the legal represen tative for 233 victims from Kenyas Nakuru and Naivasha regions, explained. Their l ives have been changed forever, and they would not want to be silent forever. However, judges still need to confirm the charges against the six suspects befor e any trial can take place, prompting concern that the involvement of victims co uld hamper defence cases. Ken Ogeto, who is defending Muthaura, said victims should only be allowed to par ticipate at the end of the trial. Involving them at the confirmation of charges stage or in the trial itself is like "having a trial within another trial, he sai d. Ogeto warned that victim involvement places an excessive burden on the defence,

forcing it to simultaneously counter legal arguments from both the prosecution a nd the victims lawyers, The defence has to prepare to tackle the prosecution and the victims at the same time, he said. Others who share Ogetos concerns are calling for victims being allowed to partici pate in proceedings only if and when suspects are convicted. As a defence lawyer, I see no need for victim participation at the confirmation h earing, said Michael Karnavas, a lawyer who represents defendants at the Internat ional Criminal Tribunal for the former Yugoslavia, ICTY, in The Hague as well as the United Nations-backed tribunal in Cambodia. The judges should make their fin dings on whether to confirm all, part, or none of the charges drawn up, without being influenced by the victim parties, who are there as advocates, and effectiv ely shadow prosecutors. Those identified as victims are allowed to contribute to cases through a lawyer who can put their concerns directly to the court. In a landmark decision delivered by ICCs appeals judges in its first trial, that of Congolese militia commander Thomas Lubanga, victims were given a green light to lead on, and also challenge, evidence relating to the criminal responsibility of the defendant. Following reams of witness testimony on rape and other abuses allegedly committed by those under Lubangas control, judges granted a request by victims lawyers for new charges to be added in the case. It is this sort of direct impact on proceedings, right from the start, that hold s value for the victims in ICC cases. It is frustrating because of the distance from where victims are to the ICC, Brigi d Inder of the Womens Initiative for Gender Justice in The Hague said. They can fe el a bit disconnected, but their legal representatives are there for them and th ey have a formal status at the court. Anyahs clients, along with 327 other victims represented by lawyer Sureta Chana, have been approved by judges to participate in the proceedings against the six K enyan suspects. In a manner similar to the Lubanga case, Chana, who represents victims in the ca se against Ruto, Kosgey and Sang, has asked pre-trial judges to add charges to t hose already levelled at the suspects. The victims representative wants charges of destruction of property and looting t o be added to the existing charges of crimes against humanity. In their bid to a dd these charges, they told the court that some victims have still not been able to return to their homes because others have occupied their properties. These proceedings directly affect the personal interests of those I represent at the very individual, family and community. It affects the future of their countr y and their succeeding generations who live in it, Chana said at the confirmation of charges hearing in early September. On November 9, Chana requested judges to allow her to make further submissions o n behalf of 126 of the victims she represents. During consultations with Chana d uring October, victims said that the prosecutor s case was lacking in both evide nce and scope. Among other testimony, Chana cited accounts from victims in the R uto, Kosgey and Sang case that widespread rape occurred during the post-election violence, although the three suspects are not charged with rape. The victims we re also concerned that the prosecutors investigations had not implicated Prime Mi

nister Raila Odinga in the violence. If a conviction is handed down by the court, victims represented at the ICC will also be entitled to seek compensation for suffering endured as a result of crim es perpetrated against them. While victims can benefit greatly from their role in the justice process, there are concerns that they might exert undue influence on the evidence presented in a case. Karnavas said the threshold of evidence needed to confirm charges against the su spects was already set fairly low by the court, and additional accounts from vic tims would tips the balance further in the prosecutors favour. There is no need to try and bolster the nature of evidence through the use of vic tims, he said. However, other commentators keenly defend the right of victims to participate in proceedings at the ICC, right from the beginning of a case. They say it helps the judges make a fully informed decision about the criminal r esponsibility of a suspect. Judges will look at evidence given by all parties [in reaching their decision]. T hey will also [take] into consideration answers given by witnesses when being cr oss-examined by victims representatives, said Alpha Sesay, a legal officer for the Open Society Justice Initiative which monitors trials at the ICC. Others say victim accounts of the crimes under investigation will help judges to understand and shape a narrative of the post-election violence and how it unfol ded. For the victims, the expectations of a trial go beyond any convictions that are handed down or compensation that might be given out. A final judgement and narrative of events becomes part of the healing process by contributing to the books of history, said Frank De Rue, the UN Special Rapporteu r on Freedom of Expression. However, De Rue also recognised the traumatic burden placed on victims who parti cipate in what are long, drawn out proceedings held over several years. I would not insist that victims go for it because of the trauma, but at the end o f the day, they have a right to know who participated in crimes against them, De Rue said. The participation of victims can make judicial proceedings last even longer, pro mpting some experts to call for a balance whereby victims can provide additional information to judges, without hampering the trial. I am mindful that the prosecution is not always attentive to all concerns that vi ctims may have, and to that extent, some victims participation is necessary, Karna vas said. The question is how much is enough, without infringing on the fair admi nistration of proceedings, including the fair trial rights of the accused? Dealing with victims accounts of crimes and atrocities given in pre-trial proceed ings can be a daunting challenge for the defence, particularly if time and resou rces are short. However, in cases where it appears likely that judges will confirm charges again

st the suspects, Karnavas says the defence might do better to ignore them. The wiser course of action for the defence at the confirmation of charges stage m ay be to lay low and not engage in grand opening statements and lengthy examinat ion of witnesses, Karnavas said. Why reveal the theory and strategy of the case an d expose the weakness of the prosecution case at this stage, and risk harming a co-accused, and worst yet, making the case harder to defend? However the defence chooses to handle the victims, lawyers representing them bel ieve their clients have a crucial role to play both in the administration of jus tice and in determining Kenyas future as it recovers from the post-election viole nce. For Chana, the role of victims would lose its value if they were not allowed to put their concerns directly to judges, and at the earliest opportunity. It will be too late if victims are only allowed to come in at the end of the tria l. Victims participation is meaningful from the start. In the end, it is the vict ims who were injured, [and who] lost property and loved ones, Chana said. Evelyn Kwamboka is an IWPR-trained journalist in Nairobi. This article was produced as part of IWPRs international justice training program me for Kenyan journalists, held in The Hague.