Victims' participation rights within the International Criminal Court: a critical overview.

AuthorCohen, Miriam

    The formation of the International Criminal Court marked an important change in international criminal justice. The Rome Statute of the International Criminal Court (hereinafter "Rome Statute") (1) not only established the International Criminal Court (hereinafter the "ICC" or the "Court") as a permanent institution with jurisdiction "over persons for the most serious crimes of international concern," (2) but also brought about changes to the international criminal scene, (3) namely a completely new system for victims' participation in criminal proceedings (4) during the trial phase as well as the pre-trial phase. (5) One of the Court's main function is the establishment of the truth and in this sense participation of victims may contribute to the accomplishment of this goal. (6)

    The recognition of victims' participatory rights in criminal proceedings is a novelty in international criminal law. (7) Victims' right to participate in the proceedings is one of the main innovative features of the Court, granting victims further rights than testifying as witnesses. (8) Before the ICC, other international criminal tribunals did not provide victims with significant rights of participation and were mainly concerned with bringing criminals to justice. (9) In this sense, this participatory scheme is a distinguishing feature between the ICC and other ad hoc international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (hereinafter "ICTY") and the International Criminal Tribunal for Rwanda (hereinafter "ICTR") which bear no provisions on victims' participation in proceedings. (10) As far as national criminal law systems are concerned, victims may have participatory rights to a certain degree depending on the jurisdiction in question. (11)

    The adoption of provisions recognizing participatory rights has caused much dissension amongst jurists. The arguments in favor and against victims' participation in proceedings are numerous. (12) Many argue that the recognition of participatory rights represents a great victory in international criminal justice. (13) Others fear that victim participation in proceedings may conflict with the accused's right to a fair trial (14) and "affect the expeditiousness of proceedings." (15)

    It has been asserted that "punishing the criminals is not enough" as there will be no justice without ensuring justice for victims. (16) Moreover, it has been argued that allowing victims to participate in proceedings may preclude them from "taking justice in their own hands" and stop the cycle of violence. (17) Taking part in proceedings only as witnesses before the ICC does not address victims' concerns; as witnesses they are an object in the criminal process. (18) Victims have witnessed the crimes but also live with the consequences of those crimes; therefore their position and rights as victims go beyond that of a witness.

    The adoption of provisions that allow victims to participate in proceedings regarding hideous crimes can also represent an achievement in bringing criminals to justice. Victims can provide the Court with knowledge that only those who experienced these crimes can give and "their attendance in person at the trial may help in establishing the truth." (19) As Claude Jorda and Jerome de Hemptinne have observed, the ICC "appears to mark a new step forward.... victims are accorded the double status denied to them by the provisions setting up the ad hoc Tribunals." (20) Their participation will ensure that their concerns are taken into account when passing a final judgement on criminals. Nevertheless, victims' participation rights are provided for throughout the proceedings and not only during the trial stage. (21) After all, crimes were committed not just against the international community but also against people, namely the victims.

    As the right to take part in proceedings has been recognized in the Rome Statute, it remains for the different Chambers of the Court to interpret the scope of participatory rights. The jurisprudence concerning the scope and interpretation of participatory rights are currently under development. In order to provide for effective participation, the Rome Statute and the Rules of Procedure and Evidence (22) combined establish victims' participation rights. These provisions, although providing for the same objective of giving victims a voice in proceedings, differ in application. On the one hand, articles 15(3) and 19 of the Rome Statute (23) for example recognize very specific rights of participation that apply only in the context prescribed in the text of these provisions. On the other hand, victims are granted a very broad right of participation because article 68(3) recognizes participatory rights in the "proceedings," making it possible for victims to participate in different phases of the proceedings. (24)

    The extent to which victims can take part in proceedings, as well as the conditions of participation regarding this general right of participation affirmed in article 68(3) will have an impact in the exercise of other specific participatory rights in the proceedings. Accordingly, what is the difference between a situation and a case and what is the status of victims relating to each? (25) Is the investigation phase included in the term "proceedings" of article 68(3)? Finally, what are the criteria for eligibility as victims and more specifically what is the conception of "personal interests", which determines the status of victim to a situation or a case. These questions will be addressed in this article that analyses the compatibility of participatory rights with the rights of the accused.

    Victims' participation may not amount to a second prosecutor (26) since it would be against the rights of the accused and contrary to a fair trial (which are in turn conditions to participation pursuant to article 68(3)). (27) The Rome Statute grants diverse participatory rights but is not clear as to how these rights may be applied in practice and how conflicting interests might be reconciled. Much is left for judicial interpretation and clarification. The jurisprudence of the Court in this regard is still being developed thus it is not yet entirely clear what role victims might play in the different stages of criminal proceedings and how far their rights can go. (28) From the few decisions of the different Chambers of the Court, it can be argued that a common interpretation of participatory rights is being sought. (29)

    The goal of this paper is to give a critical overview of the participatory scheme devised within the ICC. It analyzes the scope of victims' participation at different stages in the proceedings and the interpretation of participatory rights thus far. It also focuses on examining some specific provisions and the application of article 68(3) at different stages of the proceedings. Although article 68(3) is contained in Part 6 of the Rome Statute concerning "the trial", as this paper will examine, it has been used in relation to participation at other stages of the proceedings. This paper will also analyze whether equilibrium can be reached in practice between opposing interests of the Prosecution, the accused, and victims.

    The analysis in this paper of the different participatory provisions follows the structure of the Rome Statute. It will first focus on certain provisions concerning specific participatory rights--that allow participation only within the scope of the specific provision and the application of the criteria in article 68(3) to these provisions. Then, it will examine the conditions for the exercise of the broad right of participation pursuant to article 68(3) of the Rome Statute. Finally, the paper will conclude by contending that a balance between contrasting interests can be reached in practice.


    This section will focus briefly on victims' rights within the framework of ad hoc international criminal tribunals in order to illustrate the position of victims in international criminal proceedings prior to the ICC. This section does not intend to give a thorough analysis of the practice and jurisprudence of these tribunals. The aim of this section is to point out the gap that existed prior to the establishment of the ICC in matters relating to participatory rights in order to set the context to examine the groundbreaking system of victims' participation created in the ICC.

    Although victims are an inevitable part of an armed conflict, their rights have not been recognized in a satisfactory way in criminal proceedings prior to the establishment of the ICC. Neither in the World War II trials nor in the ad hoc tribunals which followed, were victims allowed to participate. (30) The Nuremberg and Tokyo trials represented a step forward in international criminal justice by creating a new era for the recognition of war crimes, crimes against humanity, and genocide regarding individuals' accountability for their actions in the international arena. (31) This beginning of the fight against impunity was crucial for the development of international criminal law as it is today. Just like any new system, however, it needed improvements. One of the changes that needed to be made was in relation to the rights of victims.

    After the Second World War tribunals, other conflicts started that generated new international criminal tribunals. This was the case for the ICTR and the ICTY. In spite of the great achievements of the ICTY and ICTR in bringing war criminals to justice and promoting peace in their respective regions, they failed to address victims' concerns. (32) As stated above, (33) the ICTY Statute did not include provisions that recognized participatory rights. (34) The ICTR Statute also did not provide for such rights, but, according to Gerard Mekjian and Mathew...

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