1.The International Criminal Court(“ICC”)is the first permanent,treaty-based,internationalcriminal court established to help end impunity for the perpetrators of the most serious crimes to theinternational community.Ten years after opened its door,the ICC announced its first verdict on 14 March2012 in the case of the first suspect to be tried,Thomas Lubanga Dyilo(“Lubanga”),who is the formerPresident of the union des patriotes congolais and Commander-in-Chief of the Forces Patriotiques pourla libération du Congo.In the Judgement,the Trial Chamber I convicted Lubanga of the war crimes ofconscripting and enlisting children under the age of 15 and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii)and 25(3)(a)of the ICC Statute from early September 2002 to 13August 2003(“the Judgement”).1

　　2.As the ICC’s first verdict,the Lubanga Judgement is significant in many aspects,particularly inits noteworthy ruling concerning the dual status victim and witness.Dual status victim and witness is anovel issue in the ICC which comes with the creation of the victims’participation.Article 68(3)of theICC Statute gives the victims the right to participate in the trial proceedings“where the personal interestsof the victims are affected,the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court[…].”However,a victim may also be called as a witness by the Prosecution,the Defence or a legal representative to give direct evidence about the alleged offences.Neither the ICC Statute nor the Rules of Evidence and Procedure(“Rules”)expressly prohibit the recognition of the procedural status of victim and witness for a same person.Therefore,the dual status victim and witness has been recognized in the ICC’s practice.2 The Trial Chamber I held that“Whether or not victims appearing before the Court have the status of witnesses will depend on whether they are called as witnesses during the proceedings.”3 It was also held that the fact that an individual had dual status did not grant him or her rights in addition to those of someone who is only a victim or only a witness.4 However,due to the lack of precedents,the Court did not elaborate further how the two participating rights would intersect until the delivery of the first ICC Judgement.

　　3.In the Lubanga Judgement,the majority of the Chamber found that the testimony of several witnesses initially introduced as former child soldiers by certain intermediaries to be unreliable.5 As a result,the Chamber found the status of victim given to five of these witnesses should be withdrawn.

　　4.Indeed,I would agree with the Majority since,as a matter of fairness,it would have been wrong to continue the participation of these victims when the relevant evidence clearly showed factual errors of the basis for granting their participatory rights in the first place.The Defence has properly tested the evidence and successfully revealed the falsehood provided by these individuals during the trial.6 If the Chamber decided otherwise,it would have been unfair to the accused,who would be forced to reencounter these victims in later proceedings,such as sentencing and reparations proceedings.Therefore,I believe that the Majority’s decision in this regard is consistent with the rights of the accused and the principle of fair trial.

　　5.Regarding the dual status victims in question,after discussing the contradictions in their evidence,in particular,as to their ages and identities,the Trial Chamber concluded that:

　　[T]he Chamber has not accepted the prosecution’s submission that it has established beyond reasonable doubt that P-0007,P-0008,P-0010,P-0011,P-0157,P-0213,P-0294 and P-0298 were conscripted or enlisted into the UPC/FPLC when under the age of 15 years,or that they were used to participate actively in hostilities,between 1 September 2002 and 13 August 2003.7

　　6.As the direct result of this finding,the Majority of the Trial Chamber held that the basis for granting the status of victim to these five individuals in the trial proceedings no longer exists.In particular,the Majority stated that:

　　In the view of the Majority,given the Chamber’s present conclusions as to the reliability and accuracy of these witnesses,it is necessary to withdraw their right to participate[…]In general terms,if the Chamber on investigation,concludes that its original prima facie evaluation was incorrect,it should amend any earlier order as to participation,to the extent necessary.It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated they no longer meet the relevant criteria.8

　　7.In her dissenting opinion,Judge Odio Benito agreed with the Majority on the unreliability of the testimonies of P-0007,P-0008,P-0010,P-0011 and P-0298.However,she stated that this should not have resulted in the withdrawal of their participatory status as victims since there is a possibility that these individuals could have been recruited as child soldiers.9 The evidence advanced at trial establishing guilt needs to meet beyond reasonable doubt standard.10 The standard for granting victims participatory right is prima facie standard.11 Judge Benito argued that using evidence at trial to reassess the victim’s participatory right,the Majority placed a higher evidentiary threshold on dual status individuals with regard to their victim status is unfair,especially in light of future considerations on reparations to victims.

　　8.Indeed,the Majority adopted a de facto higher standard towards these dual status victims without elaborating on the legal basis may invite criticism.Many will question whether it is appropriate to use the evidence submitted by the parties proving or disproving the guilt of the accused for the additional purpose of re-assessing the validity of the status of victims.The evidentiary threshold for assessing the victims’applications for participation is not explicitly mentioned in the ICC Statute or the Rules.13 Nonetheless,it was the Chambers of the ICC that established the prima facie standard for assessing victim applications.For example,a Pre-Trial Chamber held that“the analysis of the applications for participation will assess each statement by victims applying to participate first and foremost in the merits of its intrinsic coherence and on information available,without assessing the credibility of the statements or engaging in a process of corroboration stricto sensu.”14 However,I would argue that this evidentiary standard only applies when a Chamber assesses a large amount of victim applications submitted at the early stages of the proceedings.As pointed out by a Pre-Trial Chamber,“only a prima facie presentation of proof of identity appended to the application is required for a decision on the applications pursuant to rule 89(1)of the Rules.Throughout the proceedings,there will be additional opportunities for the credibility and authenticity of the Applications’identities and the allegations within their applications to be further scrutinize.”(emphasis added)15From a plain reading of this ruling,a stricter evidentiary threshold would have to be imposed when the opportunities arise for further evaluating the credibility of victims’allegations.Therefore,although the Majority chose to avoid the discussion of double standards,in light of the totality of the evidence presented at trial,the Trial Chamber I correctly used a higher evidentiary standard when it assessed the validity of the victim status of the individuals in question.

　　9.A closer scrutiny of dual status victims by the Chamber is unavoidable during the trial if they testify as witness about the events which had previously served as the basis of the Chamber’s decision granting the status of victims.For the purpose of cross-examination,a party wishing to call a dual status witness would need to disclose the latter’s identity,the content of the written statements,and other relevant materials to the other party.16 The opposing party is then entitled to cross-examine the dualstatus victims in court and present further evidence.Therefore,a need to reassess the validity of victims’status arises naturally before a Trial Chamber.This is because the judges are under an obligation to ensure that the trial is fair and conducted with full respect for the rights of the accused.17 Moreover,pursuant to Article 68(3)of the Rome Statute,which sets the most important legal basis for victim participation at the ICC,victims may only present their views and concerns“in a manner not prejudicial to or inconsistent with the rights of the accused.”Considering that the Defence has successfully undermined the reliability of the testimonies of the alleged former child soldiers,it would have been profoundly unfair to the accused if these witnesses were allowed to continue their participation in the proceedings as victims.

　　10.The statutory provisions of the ICC are not fully clear on many issues related to victims,who are supposed to play a major role in the proceedings.The Lubanga trial has exposed this lack of clarity.The Majority’s decision,which resulted in disqualifying certain dual status victims,is not easily to be accepted by the advocates of victims’rights.Following the delivery of the Judgement,the Principal Counsel of the Office of Public Counsels for Victims(“OPCV”)as the Legal Representative of victims,filed a request asking the Chamber to reconsider the withdrawal of the status of the above mentioned participating victims in the trial proceedings,for the reasons in line with Judge Odio Benito’s opinion.18

　　This request was subsequently rejected by the Trial Chamber I,as the OPCV is not entitled to appeal the Judgement under Article 81(1)of the ICC Statue.19 Although withdrawing these dual status victims’participatory rights may fall short of the high expectations of victims’Legal Representatives,the Majority was right in doing so for the sake of ensuring the fairness of the trial and full respect of the rights of the accused.

　　【1】The Prosecutor v.Thomas Lubanga Dyilo,Judgment pursuant to Article 74 of the Statute,No.ICC-01/04-01/06,14 March 12,(“Lubanga Judgment”),par.1358.

　　【2】The Prosecutor v.Thomas Lubanga Dyilo,Decision on Victims’Participation,No.ICC-01/04-01/06-119,Trial Chamber I,18 January 2008,par.132-137;See also,The Prosecutor v.Thomas Lubanga Dyilo,Decision on the Application for Participation of Witness 166,No.ICC-01/04-01/07-632,Pre-Trial Chamber I,23 June 2008,par.18-19 and 23-25.

　　【3】The Prosecutor v.Thomas Lubanga Dyilo,Decision on Victim’s Participation,No.ICC-01/04-01/06-1119,Trial Chamber I,18 January 2008,paras.132-137.

　　【4】The Prosecutor v.Thomas Lubanga Dyilo,Decision on certain practicalities regarding individuals who have the dual status of witness and victim,Doc.ICC-01/04-01/06-1379,5 June 2008,p20.

　　【5】The Prosecution had hired intermediaries for its investigation for security reasons.However,the Chamber’s ruled that the Prosecutor should not have delegated his responsibility for investigating and that he is to be faulted for some evidence becoming unreliable as a result.See Lubanga Judgment,p.90-217.

　　【6】Lubanga Judgment,par.222-230.

　　【7】Lubanga Judgment,par.480.

　　【8】Lubanga Judgment,par.484.

　　【9】Separate and dissenting opinion of Judge Odio Benito,par.22-34.

　　【10】Article 66 of the Rome Statute.

　　【11】Situation in Darfur,Sudan,Corrigendum to Decision on the Applications for Participation in the Proceedings of Applicants,No.ICC-02/05-111-Coor,PTC I,14 December 2007,par.5.

　　【12】Separate and dissenting opinion of Judge Odio Benito,par.35.

　　【13】Article 68 of the Rome Statute,Rule 89 of the Rules and Regulation 86 of the Regulations of the Court.

　　【14】Situation in Darfur,Sudan,Corrigendum to Decision on the Applications for Participation in the Proceedings of Applicants,No.ICC-02/05-111-Coor,PTC I,14 December 2007,par.5.See also,Situation in Darfur,Sudan,Decision on the Request of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e)of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor,No.ICC-02/05-110,PTC I,3 December 2007,par.8.

　　【15】Situation in DRC,Decision on the Applications for Participation Filed in Connection with the Investigation in the DRC by the Applicants,No.ICC-01/04-505,PTC I,3 July 2008,par.20-21.

　　【16】The Prosecutor v.Tomas Lubanga Dyilo,Decision on the Defence Application for Disclosure of Victims Applications,No.ICC-01/04-01/06-1637,TC I,21 January 2009,par.11-13.See also The Prosecutor v.Jean-Pierre Bemba Gombo,Decision on the participation of victims in the trial and on 86 applications by victims to participate in the proceedings,No.ICC-01/05-01/08-807-Coor,TC III,12 July 20120,par.58-60.

　　【17】Article 64(2)of the ICC Statute.

　　【18】The Prosecutor v.Tomas Lubanga Dyilo,Request for reconsideration of Trial Chamber I’s decision to withdraw the status of participating victims in the proceedings to a/0047/06,a/0048/06,a/0050/06,and a/0052/06,No.ICC-01/04-01/06,23 March 2012.

　　【19】The Prosecutor v.Tomas Lubanga Dyilo,Order refusing a request for reconsideration,No.ICC-01/04-01/06,TCI,23March 2012.