draft icc policy on intermediaries (2010, en)[1]
TRANSCRIPT
Maanweg 174, 2516 AB The Hague, The Netherlands – Maanweg 174, 2516 AB La Haye, Pays‐Bas www.icc‐cpi.intTelephone – Téléphone +31(0)70 515 85 15 / Facsimile – Télécopie +31(0)70 515 85 55
Le Greffe
The Registry
Project to define policies governing relations between the ICC and intermediaries1
DRAFT May 2010
1 This is a working document, which does not reflect so far the official position of the Court.
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CONTENTS
I. Introduction
II. Policies on intermediaries:
1. How to identify and select intermediaries
2. Criteria for Selection of Intermediaries
3. Establishing a Relationship with an Intermediary
4. Managing Relationships with Intermediaries
5. Consequences of a Relationship with an Intermediary
III. Monitoring and Evaluation
IV. Budgetary Implications
V. Annexes
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I. Introduction
The objective of the present project is to improve efficiency of the Court’s operations as well as to provide transparency and clarity for third parties who may interact with the Court. The present project arose out of a realization of the existence of a vacuum and the lack of a clear framework to govern the Court’s relationship with intermediaries. Many parts of the Court rely on intermediaries already and cooperate with them sometimes on the basis of a formal framework or merely on an informal basis. Intermediaries carry out work at the Court’s request, or on their own initiative. There is disparity between how different organs and units of the Court engage intermediaries in many aspects including criteria for selection, nature of the relationship and support provided. At this stage in the Court’s development, it was identified that there is a need for a standard setting exercise to provide guidance to different parts of the Court, to identify good practices in different areas and provide clarity to those outside the Court who may wish to engage with the Court. There is no definition of the term “intermediary” in any of the legal texts of the Court as such, though there are references to different forms of engagement with third parties. However, the Court has consistently received questions regarding the relationship between intermediaries and the Court. Consequently, in 2009 the Registrar decided to initiate a consultation process on policies and practices as regards to the selection, protection and support of intermediaries with the objective to clarify and harmonise internal policies and practices where possible. The relevant units of the Office of the Prosecutor and the Registry, the Secretariat of the Trust Fund for Victims and the Offices of Public Counsel for Victims and for the Defence, with a representative of the Presidency as observer, came together to explore to what extent it was possible to establish a common framework that would serve to guide the Court in its relations with intermediaries. The present document is the result of that process. As a first step, an internal Working Group was established and information on a wide range of key issues relating to relationships with intermediaries were shared in the form of questionnaires. Other policy documents, Standard Operating Procedures (SOPs) etc. were also shared. Consultations were also held with external stakeholders including some intermediaries, and the policies and practices of other international organisations were examined to see to what extent they could provide useful models.
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The outcomes expected from this project include the elaboration of common standards in areas where this is possible, including written guidelines, SOPs, templates and standard forms. Context for the exercise The Court’s activities regularly take place in different countries far from the Court’s headquarters and each of which involves distinct challenges. To facilitate these activities in the field, the Court uses different forms of field presence. The Court’s activities also depend to a large extent on the cooperation it receives from community, regional, national (governmental) organizations and individuals operating in the country where the Court operates. To carry out their respective functions effectively, the different organs and units of the Court2 must establish contacts within local communities, where appropriate, and work together with reliable local actors, so‐called intermediaries. The Court recognizes the efforts carried out by intermediaries cooperating with the Court, particularly at community and local level. The Court equally recognizes the fact that these individuals and organisations working locally together with the Court in one way or another, play a role in supporting the Court in accomplishing the objectives of the Rome Statute. The table below summarises some of the main purposes for which organs and units of the Court interact with intermediaries.
Function Organ/Unit Activities carried out (non‐exhaustive)
a. To assist in carrying out outreach and public information activities in the field.
PIDS
coordinates
• Raise awareness of the affected communities in “situation” countries about the Court and its work and conduct outreach activities
• Raise public awareness about the Court and provide information relating to the Court
• Inform victims about the TFV • Organise capacity building workshops for or with local actors (including officials, media, legal profession, community leaders, NGOs)
2 The term “organs and units of the Court” will be used throughout this document. The main parts
of the Court that interact with intermediaries are the relevant units of the Office of the Prosecutor
and the Registry, the Trust Fund for Victims and the Office of Public Counsel for Victims.
Comment [F1]: It is NOT proposed that the two tables below would be included in the eventual document (but could be in an annex and simply summarised here). However they are included here at this stage for the sake of discussion.
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b. To assist a party to conduct investigations in identifying evidentiary leads and/or witnesses and facilitate contact with witnesses.
OTP
Counsel
• Monitor the situations and document international crimes
• Assist in the preservation of evidence • Assist the OTP to locate and contact witnesses and other investigative leads, and/or to maintain contacts between the OTP and witnesses (for both investigation and protection purposes), particularly where it is adjudged to be too insecure for OTP staff to do so directly
• Assist Defence Counsel to contact potential witnesses and collect evidence for a particular submission
• Assist legal representatives of victims to contact potential witnesses and collect evidence for a particular submission
c. To assist (potential) victims in relation to submission of an application, request for supplementary information and / or notification of decisions concerning representations, participation or reparations.
VPRS
OPCV
• Identify victims in affected communities • Inform victims in affected areas about their rights
• Assist victims to get in touch with the Court • Assist Court staff to meet with victims • Assist victims in completing applications for representations, participation or reparation
• Provide support and assistance to victims linked to their participation, e.g. psychosocial services, security, legal services etc.
• Facilitate the information flow between the Court and the victim applicants eg to obtain missing information or implement other orders of the Chambers
• Assist victims to understand judicial decisions of the Court relevant to them (eg regarding common legal representation or criteria for acceptance as a victim)
d. To communicate with a victim / witness, in situations in which direct communication could endanger the safety of the victim/witness.
OTP
VWU
Counsel
VPRS
• Assist OTP to communicate with victims/witnesses
• Facilitate the flow of information between the Court and the victim applicants
• Assist the OPCV or VPRS to communicate with victims
• Act as the first contact point, receiving security concerns and providing them with advice
• Monitor the physical and psychological well‐being of victims and witnesses
• Locate and/or provide medical assistance, psychological support and other services for victims and witnesses
• Assist witnesses to appear before the Court
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e. To liaise between Legal Representatives and Victims for the purposes of victim participation / reparations.
Counsel
• Facilitate contact between victims and their legal representative to convey information to clients, collect evidence for a particular submission, and determine victims’ views and concerns and/or obtain instructions
f. To assist the TFV to identify potential benefactors and / or to implement TFV schemes in connection with the use of their ‘other resources’ or to implement reparations orders of the Court
TFV
• Inform victims about the TFV • Assist staff of the Secretariat of the TFV to identify and implement projects for the benefit of victims and their families, and to communicate with victims
Below is a summary in a different form of the main tasks conducted by intermediaries in relation to the relevant organs/units of the Court.
Organ/
Section Description of Tasks
Close partnership with partners at grassroots level (local NGOs, traditional/religious leaders, local
authorities, and especially victims themselves)
Assisting victims to ‘assist themselves’ through empowering them to undertake rehabilitation
activities to help them restore, as far as possible, the life they had or would have had if they had
not been victims of the crimes under the jurisdiction of the ICC
Mobilizing victims into groups with similar characteristics regarding levels of victimisation and
capacity to respond/rehabilitate in order to provide group assistance and encourage self help
initiatives
Working with communities, insisting on a mixed participation of families and communities
alongside victims in the rehabilitation of their communities
TFV
As direct recipients of funds from the TFV/ICC to administer to victims
Providing lead information that may assist an investigation, in particular in relation to other
individuals who may be potential witnesses
Initiating contact, assisting in arranging meetings and maintaining contact with relevant
individuals
Establishing initial contact and approaching victims of sexual violence, traumatised witnesses,
children or elderly persons with whom he or she developed a relationship of trust
Providing accompanying support to a witness during the screening and interview, upon witness’s
request and where this is practicable
Assisting with logistical support and assistance for witnesses, as appropriate
OTP
Assisting in monitoring the safety and well‐being of the witnesses
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Organ/
Section Description of Tasks
Assisting in seeking and receiving views of victims at all stages of the work of the OTP in order to
be mindful of and to take into account their interests
OPCV Facilitating contact with victims represented by the Office
Inform victims about their rights before the ICC, including preparing relevant materials
Assist victims in completing the application forms for participation or reparation
Act as channel of contact between the ICC and the victims in order to keep them informed about
developments concerning the status of their applications or of developments in the proceedings, or
to request missing information or documents, where there is no legal representative (these are
duties of the Registry under Rule 92 RPE and Regulation 86.4, ROC)
Act as a channel of contact between the ICC and the victims where the Registry is ordered to
implement specific requests by Chambers
Facilitate meetings or other direct contact (such as by telephone) between the ICC and the victims
Identify and inform the Court regarding any security concerns of applicants or victims linked to
participation in proceedings
Assist the Court to identify communities of victims and potential intermediaries
VPRS
Assist the Court in preparing and testing materials, evaluate impact of the Court’s activities, etc.
OPCD See “Issues raised” below
The need to develop clear and transparent policies is rooted in the Court’s overall strategic goals to be: (1) a model of international criminal justice, (2) a well‐recognized and adequately supported institution and (3) a model of public administration. In particular, Objective 3 of the first Strategic Goal is to further develop policies for implementing the quality standards specified in the Statute and the Rules of Procedure and Evidence with respect to all participants in proceedings and persons otherwise affected by the Court’s activities. Also relevant is Strategic Goal 3: to achieve the desired results with minimal resources and through streamlined structures and processes, within a common ICC culture, while maintaining flexibility. With a view to implementing these overall strategic goals, the Court has already elaborated several strategies in specific areas including outreach and victims that were drawn upon in the present exercise.
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The necessity for specific requirements for some parts of the Court is recognized, as a number of offices and individuals operate independently within the structure of the Court, although they share the common mission. Harmonising will not be possible in some cases, where different roles require different policies. As the proposed outcomes of the project contain innovations, the effectiveness will be monitored and the various outcomes updated where required to integrate lessons learned. For this reason a mechanism for monitoring and evaluation has been built in to the process. FOR DISCUSSION:
• To what extent should the present exercise aim to establish duties and obligations on intermediaries (as well as on the Court), such as ethical working standards?
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II. Policies on intermediaries 1. How to identify and select intermediaries 1.1. Scope of the term “intermediary” covered by the present Guidelines The first task that was identified by the Working Group was the need to define clearly the notion of “intermediary”, which is a term used by different organs and units of the Court but not always using the same definition. It would then be possible to proceed to define the rights and obligations that flow from this. The result of the exercise to attempt to define the categories of intermediary, and the relevant legal and policy frameworks is set out in Annex 1. Although in the Rome Statute or Rules of Procedure and Evidence, there is no definition of an “intermediary”, the role of third parties of various kinds and capacities is mentioned directly or indirectly either in the legal texts of the Court or various policy documents of the Court. The essence of the notion of an intermediary is someone who acts between one person and another; who facilitates contact or provides a link between one of the organs or units of the Court on the one hand, and victims, witnesses, beneficiaries or affected communities more broadly on the other (refer to the different definitions of victim in the Strategy on Victims).
As such, it is to be distinguished from where the Court simply contracts an individual or company to provide services in the field. Examples of this would be where an individual or group is contracted to prepare a mapping of victims in a particular area, or a hotel that is paid for the use of a meeting room. The notion of an intermediary does not necessarily imply that the Court itself has requested the intermediary to assist; an intermediary might be chosen by a victim or other person to assist them in making contact with the Court. Acting as an intermediary in most cases is not a full‐time occupation. An intermediary may assist the Court on a one‐off basis, or may cooperate with the Court over an extended period of time and/or in relation to multiple communications. An intermediary may work with only one organ or unit of the Court, or it may have contact with multiple organs and units or with individual counsel. Further, in many cases, there is not just one ‘intermediary’ serving as a conduit between the ICC and victims, instead, it is often the case that a large
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organisation may be working locally with multiple local groups and it involves a chain of contacts. The responses to the internal and external questionnaires revealed that intermediaries come from a wide variety of backgrounds. They often tend to be local non‐governmental or community based organisations who are very close to the communities most affected by the crimes in question.3 An intermediary can also be an individual. In some circumstances, an international organisation or agency operating in the relevant country might be an intermediary, or a governmental body. Many intermediaries are located in or near affected communities, although some still have to travel long distances to meet with victims who may be scattered over a wide area with difficult road communication. Some intermediaries are located in cities or outside the country, but if so, they would themselves normally work with intermediaries who are closer to the victim communities. The questionnaire asked whether intermediaries had changed the scope of their work in order to undertake Court‐related activities. The answers revealed that the work of the intermediaries has changed to some extent in order to accommodate Court‐related activities, including conducting interviews with victims and witnesses and assisting in the victim application process. It was mentioned that some intermediaries changed their strategies to include Court‐ related activities. Some intermediaries allocated resources and staff exclusively for carrying out work related to the VPRS due to the requirements of confidentiality and security. Some local intermediaries in the affected areas have been focusing on the Court‐related activities, such as outreach and information dissemination. The determining factor in whether or not a relationship is covered by the present project is not the nature of the individual or organisation, but the nature of the function that they carry out in relation to the Court.
Not all of those who cooperate with the Court will be considered intermediaries for the purposes of this project. For instance, some entities, such as inter‐governmental organisations (IGOs) and
3 Among the types of individuals who act as intermediaries were the following: community or local
leaders, traditional, cultural or religious leaders, members of NGOs, human rights defenders,
lawyers, journalists, IDP leaders, volunteers, university professors, teachers, victims. Among the
organisations were: local NGOs, international NGOs, community based organisations, associations,
victims’ groups, women’s associations, religious institutions, human rights organisations, local
communities, organisations in the diaspora, local councils, universities. Others included local
authorities, parliamentarians, national authorities and inter‐governmental organisations.
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national authorities whose relationship with the Court is based on co‐operation agreements (such as Memorandum of Understanding (MoU), national implementing legislation etc.), are not considered as intermediaries for this purpose. An example might be where national authorities agree to assist in the protection of witnesses.
Also excluded from the scope of this exercise, at least so far as protection is concerned, are intermediaries who are themselves victims or potential witnesses, and who therefore may be entitled to the protection of the Court in their own right (for instance already catered for under Rule 87 of the Rules of Procedure and Evidence). Intermediaries may act with or without a contractual relationship with the ICC.
FOR DISCUSSION:
• Whether the elements covered in this document and the annexes are sufficient to cover intermediaries who link defence counsel or legal representatives of victims with the victims/witnesses/others with whom they want to be in contact.
1.1. Why the Court works with intermediaries
As Pre‐Trial Chamber I found in a decision of 8 November 2008: “intermediaries who assist applicants in accessing the Court are essential to the proper progress of the proceedings” for instance in explaining and providing support to victims in relation to their participation in proceedings (ICC001/04‐545 paragraph 25). Intermediaries may provide (a combination of) the following assistance to the Court, depending on their nature, expertise and location:
a) Access to (remote) affected geographical areas: Intermediaries, because of their permanent presence on the ground, may have access to areas where the Court has no or limited access to victims, witnesses and/or affected communities. Often the Court works with intermediaries to establish the first contact with witnesses, victims and others. Intermediaries also serve a function in enabling the OTP and the Registry to take a proactive and preventative approach to witness protection issues. After the first contact, the Court attempts to have a direct relationship with the witnesses, victims and others, but due to security risks, logistical challenges in the field and limited resources the Court is not always able to reach out directly.
b) Specialized experience / expertise (Legal / working with victims): Intermediaries might
have a good understanding and knowledge of the Court due to their normal professional experience or specific interest. Furthermore, due to Outreach, awareness raising and
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training activities, an increasing number of organisations and individuals have good knowledge and understanding of the Court’s activities.
Intermediaries might have experience in working with victims from their country. Some have specialized expertise in working with specific categories of victims, such as women, young girls and children. Some, such as legal aid providers, have experiences in working with victims in judicial related activities.
c) Cultural, linguistic and proximity to affected communities: The cultural and societal
norms in many communities make it difficult for outsiders to communicate with people from the communities without going through local leaders. Intermediaries are more familiar with the affected communities, speak the languages spoken by them, can inform the Court of the best way to communicate respecting societal norms and customs, and have often experienced themselves the same conflict or crime (sometimes they are or have been, witnesses / victims themselves). Consulting with intermediaries, particularly those from affected communities will also often be useful in seeking and receiving the views of the victims in order to be mindful of and to take into account their interests.
Often, intermediaries already have relationships of trust and confidence with victims, and can therefore facilitate the contact with victims/witnesses. Furthermore, in the standard application form to apply to participate as victims in proceedings, applicants are asked to indicate how they would like to be contacted. Frequently, due to the lack of a telephone or a postal address, victims indicate that they wish to be contacted via an intermediary.
d) Security: The security situation in many places would make it difficult for ICC staff to directly and openly access particular communities, or to do so in a low profile manner without the assistance of local intermediaries.
Intermediaries serve a function in enabling the OTP to identify witnesses and to take a proactive and preventative approach to witness protection issues. Through intermediaries, the OTP is able to reduce the number of individuals it has to come into direct contact with.
In some instances, functions could be carried out either by intermediaries or by Court staff. For instance, the function of assisting victims directly to apply to participate in proceedings and for reparations and to disseminate information on the development of judicial proceedings could be achieved to some extent by increasing the number of VPRS field staff. Likewise, more outreach activities could be conducted in targeted areas with an increase in staff of PIDS. The advantages would be that Registry staff are security vetted and benefit from the privileges and immunities of the Court in performing their duties; and also that they receive security training from the Court and could implement best practices in
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protecting victim applicants. In other words, this is to some extent a question of choice as to the level and scale of activities of the Court as compared to other local actors. However, in other instances, the use of intermediaries will be of assistance. One reason for this is the factors and constraints faced by the ICC set out above that make intermediaries best, and sometimes uniquely, placed to enable communication to take place between the Court and victims. In particular, the security concerns in many places sometimes make it advisable that contact with victims or witnesses be made through, or at least involving, intermediaries. In such cases it is best for Court staff not to be directly in contact with victims, at least initially. Another reason is that regardless of what the Court itself does, some intermediaries will themselves choose to undertake activities in relation to the Court, such as to assist victims to apply for participation or to conduct sensibilisation activities. In other words, it is sometimes victims themselves, or the intermediaries, who decide to make contact with the Court rather than the other way around. 1.2. Challenges and disadvantages of working with intermediaries
The propriety and efficacy of using intermediaries may potentially be affected by the following:
(1) Intermediaries are not necessarily familiar with the development of the judicial proceedings before the Court. This may, for instance, affect their ability to assist the victims to formulate their applications in a timely and proper manner, if they are not kept regularly informed of developments;
(2) The Court lacks sufficient mechanisms for controlling or monitoring activities carried out by intermediaries;
(3) Intermediaries are normally affiliated with particular interest groups, which might not always be consistent with the best interest of the victims;
(4) Intermediaries are not necessarily trained in security and protection matters, and (5) Some intermediaries may be in contact with more than one organ and section(s) of
the Court, even though each organ or unit of the Court might not be aware that others are in contact with the same intermediary. This can have adverse consequences.
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1.3. What roles should and should not be played by intermediaries The following comments have been provided in response to the questionnaires completed by external commentators, particularly NGOs:
• The general sense of ‘intermediaries’ consulted on their role and relationship with the Court is that of frustration. They feel that the various organs of the Court have been asking a tremendous amount from ‘intermediaries’; to accomplish basic Court tasks; the work undertaken by ‘intermediaries’ is not being sufficiently recognised by the Court; and that the most basic needs of ‘intermediaries’ resulting from this work, especially their need for protection and for logistical and other support, is not recognised by the Court.
• In some instances, the Court’s lack of resources in its own budget has been used to assign
tasks onto ‘intermediaries’. The core functions of the Court should be undertaken by officials of the Court. ‘Intermediaries’ may assist and support but should not be called upon to undertake core functions.
• The fact that the Court’s own outreach is so limited in means that the ‘intermediaries’
receive the brunt of the society’s complaints about the functioning of the Court. ‘Intermediaries’ are also at the receiving end of the complaints from victims when the victims see that their cases have not advanced or have not been recognised by the Court. Victims have a range of concerns about the Court process, including the selectivity of charges. Not only is this unfair to ‘intermediaries’; it also further blurs the distinction of who and what the Court is (and who represents it), and heightens security risks for ‘intermediaries’.
FOR DISCUSSION:
• Are there some things that the Court should always do itself and never outsource to intermediaries? Is it necessary to define those?
• Establish a clear understanding of what is meant by “intermediary” and the relevant legal and policy framework.
2. Criteria for Selection of Intermediaries 2.1. Established vetting procedures After information was shared within the Working Group, it was seen that some organs and units of the Court already conduct assessments of intermediaries, and have developed criteria and vetting procedures for that purpose. The OTP develops profiles on intermediaries and conducts initial assessments in order to evaluate their functionality against defined criteria.
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The VPRS gathers information about intermediaries and maintains profiles with reference to selection criteria, in order to determine which intermediaries to work with and/or to evaluate their capacity and how to work with them. It is important that an evaluation of an intermediary is not just a one‐off exercise, but monitoring should continue throughout the entire period of the relationship with the intermediary to ascertain whether changes have taken place, particularly as regards potential risks. 2.2. Scope for choosing intermediaries Some organs and units of the Court have greater scope to exercise choice than others in the selection of intermediaries. A distinction needs to be made between two situations: a) Situations where the relevant organ or unit of the Court is in a position to choose whether or not to work with a particular intermediary, and b) Situations where the relevant organ or unit of the Court is not in a position to choose whether or not to work with a particular intermediary. An example of the second category is the VPRS when receiving applications for participation or reparations. The VPRS has found that in reality it is not always in a position to select intermediaries. In practice, intermediaries are often self‐selected and/or chosen by the victims, i.e. they decide on their own volition to engage in activities to assist victims in relation to ICC proceedings and approach VPRS, either in order to present applications or to express their intention to do so. Where the VPRS itself decides to contact a victim, for instance to follow up on an application, in reality its choice of intermediary will be limited. Some victims will have specified in their applications that they wish to be contacted through a particular intermediary. Even where the options for choosing intermediaries are limited, efforts are still made to evaluate intermediaries according to defined criteria. The VPRS takes steps to gather information about intermediaries and to evaluate them. Issues arising from such a procedure might potentially be a matter for judicial consideration.4 Further, steps might be
4 The example of the Kenya Article 15 representations, where the VPRS explained to the Chamber in
detail the process by which it identified and evaluated intermediaries used for targeting community
leaders in accordance with the Chamber’s Order needs to be added in this footnote.
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taken to address problems identified through the screening procedure, such as deficiencies in the ability of intermediaries to safeguard confidential information. FOR DISCUSSION:
• Should there be common criteria and a common screening/vetting procedure for all organs/units of the Court (even if the results are not shared)?
• What are the consequences of non‐compliance by intermediaries for different organs/units?
• Proposal of the TFV: To avoid any conflict of interest, a confidential database will be established for verifying and monitoring whether an intermediary is simultaneously working with different organs of the Court and monitoring any possible conflict of interest arising from the inter‐relationship between intermediaries and different organs of the Court. At the same time, the database will also contribute towards preventing particular intermediaries becoming overloaded with too much demand from the Court, and will enable one part of the Court to see what form of support might have been provided to the intermediary by another.
• Proposal of the VPRS: since it may not be feasible for organs and units to agree to sharing information about their intermediaries through a confidential database, consideration should be given to a mechanism for sharing at least certain information about intermediaries (eg drawing attention to problems encountered with a particular intermediary etc.).
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3. Establishing a relationship with an Intermediary
[To be completed] Formalising the relationship Establishing mutual rights and obligations Clarifying terms and conditions with the intermediary Determining the appropriate status for the relationship: MOU/Contract/Agreement, or informal, non‐contractual relationship? Forms of contract or MoU are in use by different organs and units of the Court, however these are not uniform. Code of ethics to be given to intermediaries setting out what is expected in interactions with victims?
FOR DISCUSSION:
• Can any common factors or principles be identified for determining in what circumstances a formal contractual agreement would be made and in what circumstances an informal non‐contractual relationship be maintained?
• Should intermediaries be given a code of ethics governing interaction between intermediaries and victims (Annex 4)?
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4. Managing relationships with Intermediaries 4.1. Support provided by the ICC to intermediaries
The results of the consultation process show that only some intermediaries receive funds from donors to carry out Court related tasks. Therefore they often have limited financial and human resources and their fundraising capacity is low. Problems faced by intermediaries include: lack of resources, staffing and facilities, security, and constraints in reaching remote areas. This part will deal with two questions: • The circumstances in which different forms of support are provided to intermediaries by
the Court, and • Where support is given, the basis on which it is provided. The approaches of the different organs and units of the Court currently vary in relation to both aspects. Furthermore, a distinction can be made between two things. On the one hand, to pay / reimburse for work carried out by intermediaries on a voluntary basis need to be very carefully considered so as to avoid a) putting the Registry’s neutrality and impartiality into question and b) creating a financial interest that could put into question the objectivity of the intermediaries. On the other hand, where the Court effectively out‐sources certain tasks to intermediaries, or requests intermediaries to provide assistance in carrying out those tasks, then at least the costs incurred in carrying out such tasks should be reimbursed. When interacting with intermediaries the terms and conditions under which Court‐related activities should be carried out, and the level of support and protection that could be expected, often differs between different parts of the Court and is confusing to intermediaries. In some instances, there are sound reasons why policies of the different parts of the Court vary. In other areas, there seems to be no reason why harmonisation could not take place. It is incumbent upon the different organs and units of the Court to make every effort to take a consistent approach, always taking into account the differing mandates of each.
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4.1.1. Material resources
Remuneration / fees for services FOR DISCUSSION:
• Is it the case that some parts of the Court pay intermediaries and others do not, for the same type of work? (remuneration / fees for services / per diems)
• If this is the case, is this an issue or should the Court aim to be consistent?
4.1.2. Reimbursement of costs
Reimbursement scales for contracted intermediaries should be consistent in all organs / units of the Court. It seems desirable to develop common standards based on certain criteria, including objectivity and impartiality, for expenses incurred as a result of carrying out functions at the request of an organ / unit / section of the Court. This also reduces the chance of intermediaries choosing to work for the organ / unit that pays the most. The amounts are to be adapted per country and will be revised regularly.
4.1.3. Material support
Intermediaries frequently lack basic resources required for carrying out their activities effectively. This may include equipment and materials that are essential for maintaining the confidentiality and security of information. For instance, many lack secure offices or other premises. This can create risks for the security of information and persons.
4.1.4 Capacity building
The expertise and capacity of the intermediaries is diverse. Different organs and units of the Court provide training to intermediaries, sometimes jointly. Strengthening the capacity of intermediaries also has the benefit of contributing towards strengthening national mechanisms related to combating impunity for international crimes. FOR DISCUSSION:
• The NGOs make the criticism that many of the tasks coming from or relating to the ICC are complex and do not relate to the realities on the ground and that the Court expects too much from intermediaries. Training alone will not resolve the problem.
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4.1.5. Other forms of support
4.1.5.1 Psychosocial care and support
FOR DISCUSSION:
• The NGO Victims Rights Working Group has proposed that the Court provides psychological care and support for intermediaries who assist the Court to deal with victims and witnesses and experience trauma as a result of such work. How to react to this proposal? Could the Court provide written guidelines, or referrals to local organisations?
4.1.5.2 Acknowledgement / Recognition of legal status
FOR DISCUSSION:
• Who should decide what is recommendable for which intermediary? What to do if intermediary wants recognition, but Court thinks confidentiality is necessary for security reasons, or vice versa?
FOR DISCUSSION:
• Which of the above forms of support, if any, should be conditional upon an intermediary having been screened according to the selection criteria in the previous section (OPCD proposal)?
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4.2. Security and Protection One of the most frequently mentioned concerns raised with the Court by intermediaries are security concerns. Many intermediaries fear that their work with victims in relation to the ICC exposes them to risks or potential risks. They want to know what the Court would do if they were exposed to threats to their security as a result of their connection to the Court. The internal and the external questionnaires revealed that both intermediaries and the organs and units of the Court that work with them believe that the security of intermediaries is compromised by interaction with the Court (footnote answers to Q 11 of the Questionnaire).56 Further, the results of the survey indicated that intermediaries are often exposed to risks due to their normal business, but had also often changed the scope of their work in order to work with the Court. Different parts of the Court already conduct analysis of the risks prior to establishing a relationship with an intermediary and/or prepared plans to mitigate foreseeable risks.7 Some have produced guidelines for intermediaries on risk prevention and management. These documents were shared within the Working Group and there appeared to be scope for consolidation into a single document that could serve as guidance Court‐wide. If necessary, versions specific to a situation could be prepared. At least one judicial decision has shed light on the responsibilities of the Court. On 13 May 2008, in an appeal in the Katanga case, the Appeals Chamber decided that: “Rule 81(4) of the Rules of Procedure and Evidence should be read to include the words ʺpersons at risk on account of the activities of the Courtʺ so as to reflect the intention of the States that adopted the Rome Statute and the Rules of Procedure and Evidence, as expressed in article 54(3)(f) of the Statute and in other parts of the Statute and the Rules, to protect that category
5 Risks faced by intermediaries might include insecurity and persecution, intimidation and threats,
arrest, or violence directed against them, their families or associates. 6 The level of risk may not necessarily be linked to the actual role in relation to the Court. For
instance, intermediaries may be at risk due to the fact that they are seen as having a relationship
with the Court, whether they are assisting the Prosecutor in identifying evidentiary leads or
assisting PIDS in outreach activities. 7 For instance Regulation 36 of the OTP Regulations: Prior to contacting a person to be questioned in
connection with an investigation, the Office shall collect as much information as possible on the level
of risk involved for that person as well as for others who may be at risk on account of such
questioning, including those who facilitated contact between the Office and the person to be
questioned.
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of persons.”8 The Chamber acknowledged that there are provisions in the Rome Statute and the Rules of Procedure and Evidence “aimed at ensuring that persons are not put at risk through the activities of the Court and which are not limited to the protection of witnesses and victims and members of their families only.”9 The application of this principle outside the scope of redactions is unclear, and the Appeals Chamber has also held that protective measures should restrict the rights of the suspect or accused only so far as necessary, and that if less restrictive protective measures are sufficient and feasible, a Chamber must choose those measures over more restrictive measures.10 In so far as uncertainties as to the scope of these legal obligations remain, it is incumbent on the Court to nevertheless adopt clear and transparent policies so that intermediaries know what they can expect from the Court as regards protection. There is scope for harmonisation and policy development in the following areas: prevention, management of confidential information and response.
4.2.1. Prevention
Preventing the exposure of the identity of intermediaries is one important way in which risks can be prevented. However this has to be balanced against the interests of publicity of proceedings and the rights of the defence. Conducting risk analysis prior to establishing a relationship with an intermediary. ICC staff exercising (harmonised) best practices when interacting with intermediaries.
4.2.2. Confidentiality agreements
Problems arise because many intermediaries are not in a position to safeguard the confidentiality of information. Nor have they received training on methods of securing information.
8 ICC‐01/04‐01/07‐475, paragraph 1, and see also paragraph 56. 9 ICC‐01/04‐01/07‐475, paragraph 43. 10 ICC‐01/04‐01/06‐773 of 14 December 2006 in the Lubanga case, paragraph 33.
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Some parts of the Court had difficulties in ensuring the confidentiality of information on intermediaries, through different internal administrative processes at the Court.
4.2.3. Responses to security threats
FOR DISCUSSION:
• Should there be any difference in the protection offered by the Court to intermediaries between those whose relationship with the Court is formalised and those where it is not?
• Conduct a thorough legal and operational review of what measures of protection could be provided to intermediaries who are at risk on account of the activities of the Court?
5. Consequences of a Relationship with an Intermediary
[To be completed]
- Legal disputes and claims - Security concerns and demands for protection: how to assess, and what constitutes
an appropriate response
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III. Monitoring and Evaluation [To be completed) ICC Staff, staff from intermediary organizations, individual intermediaries, victims, and witnesses will participate in a comprehensive monitoring process using the following methods:
A) Staff and stakeholders surveys B) Semi‐structured interviews with Key informants C) Case studies D) Desk top review of policies and procedures E) Permanent observation and complaint mechanism
IV. Budgetary implications
Potential impact of the guidelines on the sectional budgets.
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V. Annexes
1 Legal /Policy Framework for the Court’s relations with intermediaries (draft available)
2 Criteria for selection of intermediaries (draft available)
3 Standard Contracts / MoUs / agreements between the Court and an intermediary (to be developed)
4 Rules of Ethics governing interactions between intermediaries and victims (draft available)
5 Common standards for reimbursement of costs (draft available for some aspects)
6 Good Practice Sharing: Guidelines for intermediaries on Risk Prevention & Management (draft available)
7 Questionnaires, internal and external (available)
8 List of policy documents (guidelines, SOPs etc) shared by members of the Working Group (to be developed)