Court/Judicial body: International Criminal Court, Trial Chamber 1
Date: January, 18, 2008 CRC
Provisions: Article 3(1): Best interests of the child Article 12(2): The child’s opinion
Other international provisions:Rome Statute of the International Criminal Court (“Rome Statute”)Rules of Procedure and Evidence, International Criminal Court (“ICC Rules”)
Background: Thomas Lubanga Dyilo was charged as an alleged co-perpetrator of war crimes consisting of enlisting and conscripting children under the age of 15 into the armed forces and using them to actively participate in hostilities and armed conflict. On Sept. 5, 2007, the Trial Chamber issued an order inviting the parties and participants in the case to make submissions on the “role of victims in the proceedings leading up to, and during, the trial,” before issuing a decision on the participation of victims in the proceedings.
Issue and resolution: Participation of child victims in International Criminal Court (“ICC”) proceedings. The Trial Chamber’s decision provided general guidelines on the participation of victims in the proceedings pursuant to Article 68 of the Rome Statute.
Court reasoning: The Trial Chamber must provide opportunities for victims to participate in the proceedings while also ensuring that the defendant’s right to a fair trial is not undermined. The Court explained the procedures for victims to participate in the trial process as follows: All victims wishing to participate in the proceedings shall submit a written application to the Trial Chamber, specifying the nature of the harm they suffered and how their personal interests are affected. The Trial Chamber must consider (i) whether the applicant was a victim of a crime under the jurisdiction of the ICC (note, however, the applicant is not required to be a victim of the specific crimes charged against the defendant); and (ii) whether the applicant victim’s interests are affected in the proceedings. If the Trial Chamber determines a victim may participate, the victim must then submit a second application in order to participate in a specific stage of the proceedings. Such application must indicate how their interests are affected by the evidence or issue at such stage and the nature and extent of the participation sought. In addition, the Trial Chamber may order protective and special measures to assist victims, and will generally take into account, to the fullest extent possible, the special needs and interests of victims or groups of victims, such as child victims.
Dissenting opinion: Requiring two applications places too great a burden on victims seeking to participate in the proceedings. In determining whether a victim may participate in the proceedings, the Trial Chamber must assess whether the victim suffered harm as a result of a crime the defendant has been charged with.
Excerpt citing CRC and other relevant human rights  Regarding the victims’ rights to participate in the proceedings and to be granted protection, Article 68 of the [Rome] Statute provides: 1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in Article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. […] 3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. …  In order to assist the Court in determining who is a victim under the statutory framework, Rule 85 of the [ICC]Rules states: For the purposes of the [Rome] Statute and the Rules of Procedure and Evidence: (a) Victims means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.  Rule 86 of the [ICC] Rules provides certain general principles on matters related to victims, setting out that: A Chamber in making any direction or order, and other organs of the Court in performing their functions under the [Rome] Statute or the [ICC] Rules, shall take into account the needs of all victims and witnesses in accordance with Article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence. […]  In addition, Article 21(3) of the [Rome] Statute states that: The application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status  In light of Article 21(3) of the [Rome] Statute, and taking into consideration the decision of the Appeals Chamber that it “makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights”, the Trial Chamber has considered the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“Basic Principles”), which in its principles 8 and 9 provides as follows: 8. For purposes of the present document, victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. 9. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim.  As regards victims who are children, Article 3(1) of the Convention on the Rights of the Child indicates the following: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.  Article 12(2) of the same convention provides: For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Follow up: Thomas Lubanga Dyilo’s trial commenced on January 26, 2009 and remains ongoing. For up to date information on the trial, visit the ICC’s case page: http://www.iccnow.org/?mod=drctimelinelubanga. CRIN Comments: CRIN believes that the principles underlying this decision are consistent with the CRC. All court proceedings involving children should be tailored to respect their rights and meet their special needs and best interests, as this court recognised with respect to the child victims/witnesses involved. Citation: Situation in the Democratic Republic of the Congo, Prosecutor v. Lubanga Dyilo, Decision on victims’ participation, Case No ICC-01/04-01/06; ICL 505 (ICC 2008). Link to Full Judgment:http://www.icc-cpi.int/iccdocs/doc/doc409168.PDF This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice. Related Rome Statute of the International Criminal Court Countries CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.