The Law and Practice of International

Courts and Tribunals 19 (2020) 137–145

brill.com/lape

Face à Face
Interview with Paolina Massidda – Principal Counsel of the Independent
Office of Public Counsel for Victims at the ICC

Freya Baetens and Régis Bismuth

Could you please introduce yourself and say a few words about your
mission at the ICC Office of Public Counsel for Victims?

I am an Italian lawyer, specialised in international criminal law and interna-

tional humanitarian law, and a member of the Genoa Bar since 1992. Before
joining the ICC, I practised in a law firm, representing defendants as well
as victims before national courts. I also appeared before the International
Criminal Tribunal for Rwanda (ICTR) as part of the team of lawyers repre-
senting Mr. Barayagwiza, a former diplomat who was the chairman of the
executive committee for the Rwandan radio station, Radio Télévision Libre des
Mille Collines at the time of the genocide. My experience also includes submit-
ting applications before the European Court of Human Rights. Additionally,
I have worked as Legal Adviser on international humanitarian law for the
International Federation of the Red Cross and the International Committee of
the Red Cross and participated as an expert in several European Union train-
ing programmes for judges and legal professionals. In September 2005, I was
appointed as Principal Counsel of the then-newly-established independent
Office of Public Counsel for Victims at the ICC. The creation of this Office was
a real novelty in international criminal law. The position of Principal Counsel
is particularly interesting because it offers the possibility to work as an inde-
pendent lawyer, yet as part of an entity in support of victims in their quest for
justice. In essence, this is an opportunity to contribute directly to the causes of
bringing justice and ending impunity.
I am currently appointed as counsel for victims in three on-going proceed-
ings (Yekatom and Ngaїssona, Ongwen and Laurent Gbagbo and Blé Goudé); in
two completed trials at the reparations stage (Lubanga and Katanga); as well as
in the Afghanistan proceedings, the Palestine proceedings, the Comoros situa-
tion, and the Gaddafi, Kony and Simone Gbagbo cases. In essence, my mission
is to help victims have their voices heard in the proceedings before the Court.
In this regard, one of my priorities as Principal Counsel has been to shape the

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Office in order to ensure a meaningful and quality representation of the inter-

ests of thousands of victims of crimes against humanity and war crimes in
ICC proceedings, in order to permit them to be able to be part of the criminal
process and to contribute to the search for truth and justice. Moreover, my mis-
sion includes supporting external counsel for victims by advising them on any
substantive and procedural matters related to the ICC proceedings.

Looking backwards, how do you perceive the evolution of the

consideration of victims’ rights and interests at the ICC?

One of the main innovations of the Rome Statute has been to change the role
of victims from ‘witnesses’ – who provide the majority of the incriminatory
or exculpatory evidence presented in the proceedings – to ‘autonomous par-
ticipants’. They no longer merely serve to support the thesis developed by one
of the parties, namely the Prosecution or the Defence, as traditionally under-
stood, but they present “their views and concerns” (as stipulated in Article 68(3)
ICC Statute) in an independent manner.
However, the participation of victims in proceedings before the ICC has
been a subject of controversy and heated debate since its introduction in
the founding legal texts of the Court. The first challenge was to ensure the
indisputable character of the principle of the participation of victims and its
effective implementation. Furthermore, victims and their counsel often have
to face criticism concerning their role in the proceedings. Defence teams regu-
larly argue that the participation of victims ought to be limited in order to
prevent them from becoming a ‘second’ prosecutor, which would be contrary
to the defendant’s rights, such as the right to a fair and impartial trial. In this
regard, the role of victims has proven to be clearly distinct from the role of
the Prosecutor in practice. Even if their interests frequently converge (in par-
ticular concerning the truth-seeking process and the need to prosecute the
defendant), their views and strategies often differ on many substantive and
procedural issues.
For instance, in the Lubanga case, the Prosecutor decided not to bring any
charges of gender-based crimes despite the notorious fact that those types
of alleged crimes had been committed as part of the child recruitment prac-
tice. In fact, the majority of the participating victims indicated that rape and
other forms of sexual violence were recurrent during their recruitment and
quite a number of witnesses testified to this effect. During the trial, counsel
for the victims triggered the procedure for a legal re-characterisation of the
facts, requesting the Chamber to give notice of the possibility that certain
facts of gender-based crimes could be recognised in the judgment. While the

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possibility was by majority recognised at the trial, the Appeals Chamber ruled
that said course of events was not appropriate in the circumstances. However,
in the trial judgment, the judges indicated that gender-based crimes had been
committed against recruited child soldiers. Whereas Mr. Lubanga could not be
convicted of those crimes because he had not been charged with them, for the
victims it was an important recognition of their victimisation.
Taking into account the jurisprudence developed by the Court, the presen-
tation of views and concerns corresponds to the manner of victim participation
and specifically to the modalities of victim participation which are ruled upon
by Chambers. Indeed, the statutory instruments of the Court do not stipulate
in detail the modalities of victims’ participation in the proceedings. Counsel
for victims contribute greatly in shaping the extent of the rights granted to
their clients in the proceedings by proposing broad interpretations of the
applicable law. This enriches the developing system, but it is also a factor of
fragility. Indeed, the first proceedings before the Court have demonstrated
the complex nature of the legal framework, showing that the effective partici-
pation of victims mainly depends on the interpretation by Chambers of the
relevant provisions of the legal texts. Furthermore, questions concerning the
aim of victims’ participation in ICC proceedings, and the modalities which
would render such participation effective, remain, to a certain extent, unad-
dressed. In general, in the first proceedings held before the ICC, Chambers
showed a more restrictive approach to such modalities compared to the
approach adopted in more recent cases. Some participants in ICC proceedings
were initially opposed to victims’ participation, but the objectives and func-
tions of this participation have become better understood and accepted over
the years. This includes an understanding of the specific role of counsel for
victims and the particular perspective they can bring on behalf of their clients
about the extent of the victimisation, through the questioning of witnesses
and experts. Another significant achievement is the possibility for victims to
appear in person before Chambers to tell their stories without having to take
an oath.

What are, in practice, the procedural constraints that have limited the
participation of victims?

As I stated, the legal instruments of the Court do not specify the modalities
of victim participation in the proceedings; this question is left up to interpre-
tation by the judges. The practice shows that there are different approaches
(with consequent repercussions) depending on the type of procedural right
relied on by the victim. For instance, it is not uncommon that in trials running

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simultaneously, counsel for victims enjoy a wide-ranging latitude in represent-

ing the interests of their clients (i.e. whether to pose questions on the liability
of the accused, or on the background of the case and of a general nature), or in
the time they have for questioning. More generally, although a Trial Chamber
is not legally bound by the practice of another Trial Chamber, a coherent
approach to the scope of victims’ procedural rights is desirable in order to
ensure legal certainty and predictability, and to guarantee that the participa-
tion of victims is effective and meaningful in all proceedings.
Furthermore, decisions on victims’ participation in proceedings and on their
legal representation are sometimes issued at a late stage of the proceedings. As
a result, their appointed counsel have limited time to familiarise themselves
with the entirety of the documents filed by the Prosecution and the Defence in
the case record, as they are given access only shortly before the commencement
of the procedural phase in which the victims are authorised to participate. This
also applies to their familiarisation with the information technology system of
the Court, with the clients’ files (if counsel were not already appointed by the
victims themselves and/or if they have been appointed for victims who did
not designate a lawyer), and, more importantly, with the clients themselves.
In addition, the lack of deadlines for the issuance of decisions is a factor of
uncertainty for victims (and more broadly for all participants in the proceed-
ings) and may negatively affect the expeditiousness, fairness and transparency
of the procedure and the ability of victims to remain engaged in the process.
Moreover, Chambers often set very short deadlines for submitting observa-
tions on issues which significantly affect the personal interests of victims – such
as requests for interim release of a defendant or issues regarding the jurisdic-
tion of the Court and the admissibility of cases. This often renders it unfeasible
to have consultations with clients who reside in remote areas (and who are
thus not easily reachable), in order that they present their views and concerns.
Last but not least, the impossibility for victims to challenge appeal decisions
which negatively impact their personal interests (such as a decision denying
participation in the proceedings or a decision by the Prosecutor not to open
an investigation) limits the effectiveness of a victim’s right to truth and justice.

Some people, including some ICC judges, are of the view that the early
participation of victims is too time-consuming and should therefore be
limited to the advanced stages of the proceedings. What do you think?

At the outset, I wish to underline that, in my experience, victims expect careful,

independent, fair, transparent, effective and watchful justice. In other words,

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they expect both protective and restorative justice from a Court able to estab-
lish the truth concerning the crimes committed from which they have suffered.
Victims mention a multitude of reasons for exercising their right to participate
in the proceedings before the Court. The right to the truth seems to be one
of the key components of the right to justice. In this regard, the main inter-
est of victims in the establishment of the facts and the identification of the
perpetrators is, in itself, the essence of the right to truth generally recognised
for the benefit of victims of serious violations of human rights. In the process
of implementing this right through criminal proceedings, victims have a key
interest in the outcome of the proceedings, which ought to bring clarity in
relation to what really happened and fill gaps that might persist between the
procedural findings and the truth itself.
From this perspective, the involvement of victims at the early stages of
the proceedings not only is important but also foreseen in the legal texts of the
Court. For instance, the involvement of victims at the stage of the preliminary
examination is particularly important, especially because the Prosecution
still has to determine the geographical, territorial and temporal focus of any
potential investigation, as well as the type of crimes to be investigated and
eventually prosecuted. Such involvement will give victims an opportunity to
contribute meaningfully already at an early stage, by providing information
to the Prosecution which could result in broader investigations and therefore
better prospects of seeing the crimes they suffered from considered and inves-
tigated. In fact, information provided by victims will enhance the possibility of
opening an investigation.
The involvement of victims is also important when the Prosecutor asks
a Pre-Trial Chamber for authorisation to open an investigation or when the
Prosecutor decides not to open an investigation. Indeed, these matters go to
the core of the victims’ interests to establish the truth and to seek justice. If the
possibility to participate is limited to the more advanced stages of the proceed-
ings, not only will the role of the victims be affected, but the judges will also
lose the opportunity to fully understand the interests of the victims – one of
the factors to be taken into account in any proceedings. Consequently, judges
would be deprived of important information which could inform their judicial
decisions. A recent example is illustrative of the importance of having victims
participate at an early stage of the proceedings. When reversing the decision
not to open an investigation in the Afghanistan proceedings, the Appeals
Chamber stated that the Pre-Trial Chamber erred in considering the ‘interests
of justice’ factor, when examining the Prosecutor’s request for authorisation to
open an investigation. This argument had been raised by counsel for victims
and not by the Prosecution.

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What are your expectations concerning the icc review process with regard
to victims’ rights and interests?

I hope the experts will suggest measures to enhance the expeditiousness of the
proceedings, a key concern for victims who regularly have to wait several years
before seeing a procedure open before the ICC and even more years to see the
end of that procedure. As counsel representing victims, I would also like to see
some improvements in standardizing practices for applying to participate in
the proceedings.

What is your opinion about the two-fold mandate of the Trust Fund for
Victims (TFV)? Are you of the view that the TFV, and more broadly the
recognition of victims’ harm, should be disconnected from the proceedings
and the recognition of a criminal conviction?

Victims’ support and reparations are distinct features of the TFV mandate. The
two-fold mandate serves, in my view, the interests of victims. Indeed, on one
side, assistance can be provided to them even as early as at the situation stage,
and, on the other side, reparations awards can be implemented in the case of
the indigence of a convicted person. As far as the second prong of the question
is concerned, reparations in the ICC system are part of the judicial proceed-
ings and an amendment to the legal texts of the Court would be necessary to
disconnect the recognition of the harm suffered by a victim from the need for
a conviction. In my experience, however, victims value the recognition of their
suffering by a court of law and attach great importance to the acknowledge-
ment by judges of that harm and its impact on their life. Therefore, I am not
inclined to disconnect the recognition of the victim’s harm from the criminal
proceedings, also because, as a general principle, the convicted person has to
‘repair’ the damage he or she has caused to the victims. So, reparations for vic-
tims have a restorative factor, but also a just and moral component, in so far
as the person who has been found guilty bears the responsibility of remedying
the wrongdoing.
However, I consider it important that the TFV strengthen its capacity to
respond to victims’ needs. I advocate a stronger role for the TFV and its involve-
ment in the country as soon as a situation is brought before the ICC. The early
design and implementation of assistance programmes would serve to read-
ily address the needs of victims and their families when proceedings before
the ICC are at an embryonic phase. This would, first, respond to their needs
in a timelier fashion, but it would also alleviate disappointment in cases of

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non-conviction. Moreover, it would set the basis for the implementation of

services at the local level, thereby strengthening national capacities to assist
victims. Furthermore, in cases of conviction, the assistance programmes could
help as models for the reparations measures to be implemented. In this regard,
the majority of assistance programmes implemented by the TFV thus far could
be re-designed for reparations purposes, which would avoid further delays in
implementing reparations awards and possibly lengthy procurement proce-
dures as well.
The practice so far has shown that reparations proceedings are lengthy and
often delayed by the situation in the field, which can evolve rapidly making
it impossible to carry out operations. Moreover, when reparations proceed-
ings are opened, victims have already waited several years for their harm and
needs to be addressed; some have died in the meantime; and for the majority
of them, measures of reparations effective at the time of the commission of
the crime(s) may no longer be appropriate or feasible; even, on occasion, vic-
tims may have been re-victimised by subsequent crime(s). The TFV also bears
the responsibility to generate sufficient resources to meet the financial bur-
den ensuing from a reparation order to benefit victims to the required degree
when the convicted person is indigent. In this regard, since the ICC’s current
reparations system is almost completely dependent on the Fund’s ability to
secure funding (because, so far, all convicted persons have been found to be
indigent), the TFV should be urged to diversify its funding sources and develop
its fundraising ability by enhancing its communications capacity to become
a more visible and well-known institution, and to ensure effective synergies
and strategies amongst the relevant actors. Furthermore, based on the concept
of reparative complementarity, State Parties have a general responsibility to
offer redress to victims who have suffered egregious abuses on their territory,
and more generally, all State Parties should bear the collective responsibility
to assist in ensuring that victims are provided with meaningful reparations for
crimes successfully prosecuted under the Rome Statute.

What do you think (more generally) about the public criticism of the
ICC as being, allegedly, too focused on African conflicts, as expressed, for
example, in the African Union’s Recommendation to its members to leave
the ICC?

That certain African States have referred situations to the ICC is an undeni-
able fact. Some African States made the choice of resorting to ICC jurisdiction
because they could not themselves investigate and prosecute crimes under

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their jurisdiction for various reasons. In my view, this cannot be held against
the Court. However, another matter is whether the ICC Prosecutor should also
investigate in other areas of the world. My answer is, of course, yes; and some
progress has been made recently in this regard, as shown by the Afghanistan,
Palestine and Bangladesh/Myanmar proceedings. I wish also to stress that
it is often overlooked that the ICC cannot operate without the cooperation
of States (Parties and non-Parties to the system). If arrest warrants are not
executed, having alleged perpetrators prosecuted, ensuring justice is done for
the victims and, more generally, fulfilling a fight against impunity will not be
achieved.

What, if anything, could the Office of Public Counsel for Victims do to

prevent further withdrawals?

The best way to discourage States from withdrawing is to show that the ICC
performs its task efficiently, expeditiously, impartially and in fairness towards
all participants in the proceedings. The results will encourage States to trust
the ICC and to engage with it, instead of withdrawing. While the Office does
not have a specific role to play in terms of cooperation and enhancing adhe-
sion to the ICC, it may contribute more generally with counsel taking part in
the proceedings representing victims, by showing that justice matters for vic-
tims and that the ICC can bring justice to affected communities.

Some have argued that the work of the ICC should be “regionalized” (for
example through an African Criminal Court) which would also allow for a
better understanding of the particular situation of the victims of a specific
conflict. What is your position on this?

I think that there is an added value in a permanent court such as the ICC, which
operates worldwide, in terms of fighting against impunity globally and impos-
ing a certain standardization of practices and interpretation of international
criminal law. In my experience, victims have always shown trust in such an
institution, even if it is based far from the places where crimes are committed.
In this regard, counsel play an important role in bringing the reality of the field
to The Hague; and there is always the possibility for judges to organize judicial
site visits and/or to hold proceedings in situ as ways of filling the gap between
the judicial reality in The Hague and real life in the field.

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We would like to finish with two questions that we put to every interviewee:
What does the public, and even international criminal lawyers, not know
about the work of the ICC in general, and about the work of the Office of
Public Counsel for Victims in particular?

Often, the fact that the Office is independent is overlooked by the general pub-
lic and even by lawyers. This is an essential aspect, since independence is the
pre-requisite for being able to provide legal support to and representation of
victims, in order to preserve the privileged relationship between counsel and
client, and to avoid any interference. Another aspect which may not be so evi-
dent is the role of counsel from the Office in supporting victims at an early
stage of the proceedings (including when an investigation is not yet opened).
Finally, it may not be known that, since its inception in 2015, counsel from the
Office have assisted and/or represented more than 60,000 victims. As a team,
we are particularly proud of this result, considering that the Office has limited
resources, being composed of only 12 people.

What would you like your legacy at the ICC to be?

The Office of Public Counsel for Victims was the first ever created with the spe-
cific mandate to support and assist victims to participate in an international
criminal proceeding, in addition to external counsel. I would like people to
remember how the Office facilitates the process by which victims, through
their participation, can ‘tell their story’ and have their voice acknowledged in
the proceedings, paving the way for victims’ rights in international criminal law.
But more importantly, I would also like victims represented by counsel from
the Office to remember their experience as important and unique, one which
really helped them to speak out, to share the terrible events on the basis of
which they suffered, and to have their suffering recognised and acknowledged.
In other words, I would like them to remember that they greatly contributed to
the search for the truth, and that justice is done thanks to their courage, which
will set an example to prevent the commission of crimes for the international
community.

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