<<

. 24
( 54 .)



>>

these are individually developed by the VWU and approved by the Registrar.
Extensive contact with local NGOs aids the VWU in getting its message
out and learning about potential problems; NGOs are also key in pressing
victims™ and witnesses™ rights and demanding improved services from the
ICC (see Chapter 5).

Victim Participation and Reparations
The VPRS of the Registry implements the Statute mandate to take into
account the views of victims throughout the Court™s processes. The practice

59
Rule 34 A(I“ii).
132 Building the International Criminal Court

and law of this new inclusive mandate are a major area of operational and
legal development for the ICC. Operationally, the VPRS is closely linked to
the activities of NGOs in the ¬eld and is (along with the Victims™ Trust
Fund, discussed later in this section) the focus for their pressure on the ICC
to become much more fully engaged than its predecessors in victim-oriented
justice activities.
A major uncertainty of the VPRS operation is that the idea of
˜˜participation™™ has not been fully de¬ned in practice nor is there a clear
de¬nition of what constitutes a ˜˜victim.™™ Since the Registry in general, and
the VPRS within it, is mandated to serve the needs of the Court, it depends
upon the Court “ that is, the Chambers “ to establish de¬nitions and
parameters within which to work. In practice, these criteria are being
developed in the context of legal wrangling between victims™ counsel and
the OTP in front of the Pre-Trial Chambers, as the victims seek to parti-
cipate at early stages in Court proceedings (see Chapter 7; this has been the
subject of extensive consideration in the case of Thomas Lubanga Dyilo of
the Democratic Republic of the Congo).
In 2006, the VPRS developed and issued forms for victims, as indivi-
duals 60 or organizations,61 seeking participant status, on which they (or a
representative) can indicate how they consider themselves victims, the
crimes by which they believe they have been victimized, and the kind of
participation that they seek. Use of the form is not mandatory, and in fact
the ¬rst requests for participation (in the DRC case) were ¬led by the
NGO International Federation of Human Rights Leagues (Federation ´´
Internationale des Ligues des Droits de l™Homme, FIDH) before the form
was issued.
In the ¬eld, the VPRS sought to identify and work with NGOs and other
local groups to inform and assist victims about how they could participate
in the ICC™s proceedings. VPRS personnel generally did not go to victim
communities, but worked through people with local contacts such as
NGOs, local authorities, and religious and traditional leaders. In the late
winter of 2006, the staff consisted of seven people at headquarters in The
Hague, and they were seeking to add about two people in each country
where investigations were under way. The aim was to have VPRS staff on
the ground as soon as the OTP initiated serious investigations.


60
ICC, ˜˜Standard Application Form to Participate in Proceedings before the International
Criminal Court for Individual Victims and Persons Acting on their Behalf.™™
61
ICC, ˜˜Standard Application Form to Participate in Proceedings before the International
Criminal Court for Victims Which are Organizations or Institutions.™™
133
Building the Court

VPRS staff were traveling frequently to the situation countries Uganda and
the DRC in 2005 and 2006, seeking to improve contacts with victim commu-
nities. The ICC™s active engagement is mandated by the Statute but also spurred
by contrary pressures. On one hand, NGOs are pressing for greater involvement
of victims with the ICC and for the Court™s eventual heavy engagement in
reparations and restorative justice programs. On the other hand, the ICC itself is
concerned not to raise victim expectations too high, since disappointed high
expectations could undermine ICC legitimacy as much or more than under-
attention to victims in the ¬rst place. The VPRS was working closely with the
Registry™s public information/outreach of¬ce to develop and disseminate
information about the ICC into local communities, a challenging task given that
most of the target communities have high levels of illiteracy and operate in local
languages. In addition, VPRS staff were holding daylong information and
training sessions for magistrates and lawyers in Uganda and the DRC. The idea
of victim participation was easier to explain in the DRC, which followed civil-
law and French traditions, as compared with Anglo common-law Uganda,
where victim participation was alien to justice traditions.62
Under the Statute, the Court (judges) were instructed to ˜˜establish prin-
ciples relating to reparations to, or in respect of, victims,™™63 requiring resti-
tution from convicted persons or awards from or through a Victims™ Trust
Fund (VTF) established for the purpose by the Assembly of States Parties.64
The Statute left the details for future elaboration. A board was appointed for
the VTF at the ¬rst ASP in September 2002. Because of disagreements among
states over the rival objectives of serving victims™ rights and maintaining
due process standards for suspects, it took until the end of the fourth ASP in
the fall of 2005 to reach agreement on the VTF rules (see Chapter 6), and the
agreement left to the judges the ¬nal determination of how to strike the
appropriate balance. In November 2006, the board of the VTF announced its
intention to begin considering requests for assistance.65 By January 2007, the
trust fund had received 2.3 million Euros in contributions.


Outreach
The isolation of the ICTY/ICTR from the areas in which crimes were
committed and the inadequacy of the broadcasting of trials by the ICTY

62
Interviews.
63
Statute Article 75.
64
Statute Article 79.
65
ICC, ˜˜Communique from the Chair of the Board of Directors of the Trust Fund for Victims
of the International Criminal Court™™ (2006).
134 Building the International Criminal Court

led to the gradual establishment in the ICTY of an ˜˜outreach™™ program,
as described in Chapter 3. Outreach was another aspect of ˜˜new justice™™
that evolved in the tribunal context and informed discussions in the ICC
development process, but has only begun to be explicitly addressed in
operations of the Court “ not written into the Statute or rules. Outreach is
pursued both by the Registry and the OTP, in the context primarily of
the ¬eld of¬ces. NGOs pressed hard for an improvement in the Court™s
outreach activities. At the 2005 ASP, they were critical of the Committee
on Budget and Finance™s (CBF) reduction of ¬nancial allocations to
Registry outreach; they were much relieved in 2006 when a similar
CBF recommendation was rejected by the ASP, and the budget for out-
reach signi¬cantly increased (see Chapter 6). Court personnel from
all three organs traveled with increasing frequency to situation areas as
well as states contemplating accession to the Statute to explain the Court™s
purpose and operations. Many of the meetings were organized by NGOs
(see Chapter 5). Recognizing a lack of coordination among the separate
organs™ outreach activities, following a recommendation from the CBF, the
Court developed a consolidated plan for outreach that was presented to
the fall 2006 Assembly of States Parties (see following discussion).


COORDINATION AND PLANNING

In March 2004, the Committee on Budget and Finance of the Assembly
of States Parties reported ˜˜concern over a certain fragmentation between
the three organs™™ of the Court.66 Worried that the ICC might fall prey to
the ad hoc tribunals™ schizoid con¬‚icts between their Presidents, Prose-
cutor, and registrars, the Court declared a ˜˜one-court principle,™™ at once
verifying the CBF™s concerns and seeking to rectify the problem. In
addition, as had the tribunals before it,67 the Court formalized the
existence of discussions among the Presidency, Registry, and OTP,
referring from the spring of 2004 to the Coordinating Council (Coco),
which intended to iron out administrative coordination problems.
Moreover, in the fall of 2004, the CBF recommended that the Court
initiate a deliberate planning process, and this turned into a project to
develop a strategic plan for the Court68 and this turned into a project to

66
ICC, Assembly of States Parties, Third Session,˜˜Report of the Committee on Budget and
Finance,™™ ICC-ASP/3/CBF.1/L4 (2004).
67
See ICTY Rules of Procedure, amended in 2000, Chapter 2, Rule 23bis.
68
ICC, Assembly of States Parties, Third Session, ˜˜Report of the Committee on Budget and
Finance™™ ICC-ASP/3/18 (2004), Para. 46.
135
Building the Court

develop a strategic plan for the Court. Separately, a ¬nancial planning
model and an outreach plan were being developed. The plans were pre-
sented to the fall 2006 ASP, showing that the Court had completed its
initial formative phase and had taken shape as a continuing and stable
organization.


Battling a Split Personality
Administrative leadership con¬‚icts in the ICC have to be worked
out among the three top of¬cials, and this is affected by the of¬cials™
personal relations as well as by their formal roles. While major aspects of
overlapping and contested responsibilities that bear on the conduct of
judicial proceedings are being sorted out in formal proceedings, Court
of¬cials are trying to improve internal administrative coordination with
administrative innovations.
The Court™s three main organs are organizationally largely independent.
The judges are elected by the ASP (to nine-year, nonrenewable terms) and,
in turn, elect from among themselves their President (to a three-year, once-
renewable term). The President has overall responsibility for the func-
tioning and administration of the ICC. The Registrar is elected by the
judges69 (a ¬ve-year, once-renewable term) and is to ˜˜exercise his or her
functions under the authority of the President of the Court.™™70 The Pros-
ecutor is elected by the members of the ASP (to a nine-year, nonrenewable
term)71 and ˜˜shall have full authority over the management and admin-
istration of the Of¬ce, including the staff, facilities and other resources
thereof.™™72
The clash between the Registry and OTP over personnel recruitment was
an early example of the fractious nature of the Court™s structure. Other
matters have been more dif¬cult to resolve.
Since the President is a judge who sits in judicial chambers (the ¬rst
President, Philippe Kirsch, placed himself on the Appeals Chamber), there
is something of a role con¬‚ict for the President when, as the top of¬cial of
the Court, he is confronted with Registry“OTP disputes whose outcome
may bear upon a particular case in Court. For example, were the Registrar
and OTP to disagree over administrative control of activities connected


69
43.4.
Statute Article
70
43.2.
Statute Article
71
42.4.
Statute Article
72
42.2.
Statute Article
136 Building the International Criminal Court

to victims and witnesses in a particular case, the President could come to
believe that coming down on one side or the other would entail taking
a position that favored, for example, victims over the accused, or vice
versa, in matters that could hypothetically also come before the Appeals
Chamber. President Kirsch™s actions in response, according to people
close to the Court, has been to attempt to mediate disputes and
facilitate agreements between the Registry and Prosecution, rather than
authoritatively to intervene. Thus, although the Registrar is statutorily
subordinate to the President, in practice the Registrar remains largely
independent.
Because OTP press releases and other kinds of outreach activities were
not being effectively coordinated with similar activities originating in the
Registry™s External Relations Of¬ce, in 2004 the Coco established its
External Communications Working Group made up of representatives of
the Presidency, the Registry, and the OTP. These of¬cials meet frequently to
coordinate the activities and statements of the three organs in order to
present a consistent external message.
When in 2004 the Committee on Budget and Finance recommended, and
the ASP adopted, a resolution calling for development by the Court of a
strategic plan, an interorgan working group, called the Strategy Group, was
established in response. Additional working groups were established to help
coordinate budget development (the Budget Steering Committee), and the
External Communications Group was assigned the job of drafting an
overall strategic plan for ˜˜outreach.™™73


Planning
In its ¬rst years, the Court expanded prodigiously. Like any international
organization funded from state contributions, the ICC had to develop a
budget that would meet with states™ approval, and the states™ approval
hinged on the willingness of their governments (generally foreign affairs
and ¬nance ministries) to support it. The PrepCom had prepared an initial
draft budget, and the ¬rst Assembly of States Parties duly approved
expenditure levels and assessed members for contributions. Worried about
the high rate of growth, particularly in light of the unexpectedly large size
and costs of the ad hoc tribunals, the ASP™s Committee on Budget and
Finance recommended in 2004 that the Court ˜˜prepare a set of over-
arching objectives and expected accomplishments for the court as a whole

73
Wennerstrand, ˜˜Presidency Promotes ˜One Court™ ™™ (2005), 4.
137
Building the Court

re¬‚ecting the collective plans for advancing the aims of the Rome
Statute . . . underpinned by the objectives of each of the organs,™™74 and the
recommendation was adopted by the third ASP. The ad hoc tribunals had
developed their completion plans under pressure from the Security
Council; the Court would develop its Strategic Plan with the strong
encouragement of a nervous ASP.


ICC Budget, 1,000 Euros (% Growth)

Budget Year 2002“3 2004 2005 2006 2007
55,089a 69,564b 82,464c 93,458d
ICC Requested
(26) (19) (13)
30,894e 53,072f 66,784g 80,417h 88,872i
Approved by
ASP (72) (26) (20) (11)
21,479j 43,510k 63,830l 64,107m
Actual
Expenditure (102) (47) (0.4)

<<

. 24
( 54 .)



>>