## Facts

- Thomas Lubanga Dyilo was tried before the International Criminal Court (ICC) for war crimes arising from the conscription, enlistment, and use of children under 15 in hostilities in Ituri, Democratic Republic of the Congo, in 2002–2003.
- During the proceedings, individuals applied to participate as victims under Rome Statute Article 68(3) and the ICC Rules of Procedure and Evidence, including Rule 85(a) (definition of “victim”) and Rules 89–91 (participation procedure and representation).
- Trial Chamber I issued a “Decision on victims’ participation” on 18 January 2008 addressing: (i) what harm qualifies a natural person as a victim; (ii) whether a victim’s harm must be linked to the confirmed charges; and (iii) what victims may do during trial, including involvement with evidence.
- The Trial Chamber’s approach accepted that harm need not be direct and did not treat participation as confined to the crimes contained in the charges confirmed by the Pre-Trial Chamber.
- The Prosecutor and the Defence filed interlocutory appeals challenging parts of the Trial Chamber’s approach, including the standard for harm under Rule 85(a), the required link between victims and the confirmed charges, and the extent to which participating victims could lead evidence or challenge admissibility and relevance.
- The Appeals Chamber decided the consolidated appeals and issued a judgment that confirmed some aspects of the Trial Chamber’s approach, amended part of the definition of victim, and reversed the Trial Chamber’s approach on whether participation may extend beyond the confirmed charges. Judges Kirsch and Pikis issued a partial dissent.

## Issues

1. Under Rule 85(a), must a victim’s harm be direct, personal, or both, and what types of harm qualify for victim status?
2. At the trial stage in a specific case, must a participating victim’s alleged harm be linked to the crimes and facts contained in the charges confirmed by the Pre-Trial Chamber?
3. May participating victims, subject to the Trial Chamber’s control and the accused’s rights, (a) lead evidence on the guilt or innocence of the accused and (b) challenge the admissibility or relevance of evidence?

## Decision

- On the definition of victim under Rule 85(a), the Appeals Chamber confirmed that harm does not have to be direct, but amended the Trial Chamber’s reasoning to require that the harm be personal to the individual claiming victim status; material, physical, and psychological harm can qualify if personally suffered.
- On the link between victim participation and the confirmed charges, the Appeals Chamber reversed the Trial Chamber to the extent it allowed participation untethered from the crimes contained in the charges confirmed by the Pre-Trial Chamber; participation at trial must be connected to the charged crimes and facts as confirmed.
- On the scope of victims’ procedural role at trial, the Appeals Chamber confirmed that participating victims may, when permitted by the Trial Chamber, lead evidence pertaining to the guilt or innocence of the accused and may challenge the admissibility or relevance of evidence, so long as such participation remains consistent with the accused’s rights and a fair and impartial trial.

## Legal Principles

- For Rule 85(a), a natural person qualifies as a victim if the person suffered harm as a result of a crime within the Court’s jurisdiction, and the harm must be personal; it need not be direct.
- A victim’s harm may be material, physical, or psychological, provided it is harm suffered by that person (not merely generalized harm).
- The trial is defined by the charges confirmed by the Pre-Trial Chamber; victim participation at the trial stage in a particular case must be connected to those confirmed charges, rather than to the broader situation.
- Article 68(3) permits victims’ “views and concerns” to be presented at appropriate stages only in a manner not prejudicial to, or inconsistent with, the rights of the accused and a fair and impartial trial; the Trial Chamber must manage the mode and scope of participation.
- Participating victims may be permitted to take steps affecting the evidentiary record—such as leading evidence on guilt or innocence when allowed and raising admissibility or relevance challenges—subject to close judicial control to preserve the structure of the proceedings and the accused’s fair-trial guarantees.

## Conclusion

The Appeals Chamber clarified that victim status under Rule 85(a) requires personal (not necessarily direct) harm, narrowed trial participation to victims whose alleged harm is connected to the crimes and facts in the confirmed charges, and affirmed that victims may, with Trial Chamber authorization and consistent with the accused’s rights, lead evidence and challenge evidence on admissibility and relevance.


Prosecutor v. Lubanga (Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008), Case No. ICC-01/04-01/06-2843 (2008)