The Katanga and Al Mahdi Appeals Judgments and the Right of Access to Justice for Victims: Missed Opportunity?

On 9 March 2018, the International Criminal Court (ICC) Appeals Chamber rendered two judgments on reparations, namely the Al Mahdi and Katanga cases. The general principles and approaches of ICC reparations have been previously addressed in this blog (here and here). This time, the two appeals judgments were the first occasions for the Court to review the right of access to justice for victims during these reparations proceedings. InAl Mahdi, the Trial Chamber delegated the task of eligibility screening to the Trust Fund for Victims (TFV), thereby allegedly failing to accord victims a right to judicial assessment of their applications for reparations by a competent tribunal. In Katanga, it was argued that the right of victims to receive continuous legal representation was essential for a meaningful and practical right to claim reparations, given the complexity of the proceedings.    

At the outset, both rights to judicial assessment by a tribunal and to legal representation come within the purview of the right of access to justice, a right guaranteed in international human rights instruments (ICCPR article 14(1); ECHR article 6(1); ACHR article 8(1); ACHPR article 7(1)). The purpose of this post is not to say that the appeals judgments were incorrect in affirming the Trial Chamber’s decisions on these issues because the rights of victims had been violated. Rather, it takes a helicopter view on the way these issues have been dealt with. Whereas the Al Mahdi judgment recognises that the judicial assessment of reparations must ultimately be before trial chambers, the Katanga judgment dodged the relevance of continuous legal representation of victims to their right of access to justice during the reparations proceedings.

Bearing in mind that chambers are obliged to ensure the compliance of international human rights law (Rome Statute, article 21(3); ICC Rules of Procedure and Evidence, Rule 97(3)), both judgments may have indicated a judicial practice of non-interventionism within the Court by over-relying on procedural discretions.

Al Mahdi: delegation of administrative screening permissible

In Al Mahdi, the Legal Representative for Victims (LRV) contended that the Trial Chamber erred in granting a “power of adjudication” to the TFV, a non-judicial entity (LRV’s Appeal Brief, p. 11). On this issue, Trial Chamber VIII had earlier relied on the “impracticability of identifying all those meeting its individual reparations parameters” (Reparation Order, ¶144).

The Appeals Chamber first noted that the ICC legal text does not directly “regulate the content of a chamber’s final decision on reparations”, referring to the discretion of trial chambers in article 75(1) when making reparations orders and rule 98(2) which allows chambers to order that a reparations award “be deposited with the Trust Fund where [..] impossible or impracticable to make individual awards directly to each victim.” (¶60). In a more extreme tone, the Appeals Chamber held that “it is within a trial chamber’s discretion to grant, or not to grant, individual reparations and that, therefore, victims do not have a right to an individual award as such” (¶66).

Importantly, for the first time, the Appeals Chamber dispersed the speculation of whether the Trial Chamber shall have the final say in the TFV’s eligibility screening:

68. The Appeals Chamber notes that the entire procedure for implementation of the Impugned Decision, including the screening process by the TFV, will remain under the supervision of the Trial Chamber. […]

69. The Appeals Chamber finds that the oversight of the Trial Chamber exercising judicial control over the screening process shall include that the Trial Chamber finally endorse the results of the screening, with the possibility of amending the conclusions of the TFV on the eligibility of applicants for individual reparations, upon request of those applicants, or proprio motu by the Trial Chamber.

This oversight requirement appears to be in line with the robust approach in international human rights law. As correctly noted by the Appeals Chamber, in any event, the non-judicial nature of the TFV would be remedied by the final determination of trial chambers (¶¶68-69). On ICCPR article 14(1) (right of access a tribunal), the Human Rights Committee stated that the determination of civil rights (in this case the right to reparation) “must be done at least at one stage of the proceedings by a tribunal” (GC No. 32, ¶18). The European Court of Human Rights consistently found that ECHR article 6(1) an administrative procedure may precede the determination of civil rights by tribunals as long as a judicial body has subsequent control (Zumtobel v. Australia, ¶64; Albert and Le Comptev. Belgium, ¶29).

Katanga: no continuous legal representation for victims

In Katanga, the Office of Public Counsel for the Victims (OPCV) alleged that the Trial Chamber failed to appoint a new counsel for 32 victims immediately after approving the withdrawal of the former legal representative. It averred that “there should be ‘no gaps’ in the legal representation of victims as they must remain represented throughout the proceedings” (OPCV’s Appeal Brief, ¶32).

Unlike Al Mahdi, the Katanga Appeals Judgment did not recognise the issue as one to be analysed alongside international human rights law. Rather, it simply notes that firstly the Rules and Regulations of the Court sporadically requires the appointment of legal representative to victims “where the interests of justice so require” and secondly “the Court’s legal texts do not expressly provide that victims must be represented by counsel at all times”. Accordingly, the Appeals Chamber dismissed the OPCV’s appeal based on the late stage of the reparations proceedings without much opportunity to submit new evidence to substantiate specific applications for reparations.

In so doing, the Appeals Chamber glossed over two important areas. First, it restricted the meaning of “interests of justice” to merely the submission of evidence, in disregard of other aspects of access to justice, such as to ensure the flow of information and to receive legal advice. Second, it neglected the OPCV’s reliance on human rights jurisprudence. For instance, the European Court of Human Rights in Artico v. Italyemphasised a positive obligation to ensure an effective fair trial right (¶36). The case of Pakelli v. Germanyfound that legal representation is determining for one to develop legal arguments, in particular given the complexity and voluminous nature of the case (¶37).

Implications beyond the judgments

No doubt, both judgments have filled in the legal voids of the ICC reparations proceedings. In Al Mahdi, the Appeals Chamber finally delineated part of the blurred line on the TFV’s functions vis-à-vis the trial chambers. In ongoing cases, such as Bemba which deals with 5000 individual applications for reparations, the Trial Chamber can now comfortably fasten up the process by charging the TFV with permissible tasks. In fact, functional delegation is no stranger to the ICC chambers: think about the delegation by Single Judge Fernández in the Gbagbo pre-trial decisionand by two Kenya chambers (Ruto and Sangand Muthaura andKenyatta) during trial concerning the participation of victims. In the context of reparations proceedings, as noted in the Al Mahdi judgment, trial chambers are to maintain “a high level of control over the activities of the TFV” which gives effect to victims’ right to access a tribunal.

Likewise, the Katanga Appeals Judgment provides some guidance, albeit not comprehensively, on when a trial chamber should take active steps to ensure legal representation for victims during the reparations stage.

There, however, seems to be a worrying trend for the Court, where faced with human rights issues, to develop an instrumental argument that because the ICC legal text does not expresslygovern or providefor certain rights, they are not directly transposed into the unique system of the Court. In particular, the Katanga judgment refers to the absence of an absolute right for continuous legal representation. The Al Mahdi judgment relies substantially on the discretions conferred upon trial chambers under article 75 of the Rome Statute, based on which it held that “it is within a trial chamber’s discretion to grant, or not to grant, individual reparations” (¶66).

While this may be satisfactory in a strictly legalistic approach, such micro-analysis is not sustainable and puts at risk the rights of the parties in the entirety of the proceedings. More could have been done by classifying the action or failure of trial chambers as (un)lawful. This is particularly needed when the part of the ICC’s mandate on reparations was highly debated at Rome.

Rightfully so, to an extent, the Appeals Chamber must still defer to the trial chambers in the cases of factual errors. Yet, the failure to guarantee procedural rights of parties would appear to be a legal error. By over-relying on discretionary clauses, the Court may be blurring the standard of review in its non-interventionist practice and without high-quality internal scrutiny. In the particular context of reparations, the ICC is still “testing the water”. There is an extra amount of responsibility in the appellate decisions to progressively fill in the gaps, rather than letting the “constructive ambiguities” in the textual silence of Rome Statute create variegated practices of the lower chambers. By prioritising discretionary powers, the Court might be creating a catch-22 situation, whereby counsels can theoretically invoke human rights guarantees but are succumb to the primacy of ICC text granting procedural discretions.

On the way forward, serious consideration must go to the way in which victims’ rights are being handled. Tempted by the expeditiousness of proceedings, one must careful not to use procedural discretions as a shield to compromise the respect for the rights of all parties.