Susana SáCouto is the Director and Katherine Cleary is the Assistant Director of the War Crimes Research Office, American University Washington College of Law. The opinions expressed are those of the authors alone. This article builds upon a presentation delivered by Ms. SáCouto at the War Crimes Symposium held at the University of Iowa College of Law in February 2007. The subject matter addressed herein forms part of a broader report, entitled Victims' Participation Before the International Criminal Court, published in December 2007 by the War Crimes Research Office at American University Washington College of Law. We are grateful for the generous support of the Open Society Institute, the John D. and Catherine T. MacArthur Foundation, and the Washington College of Law in connection with our research, analysis, and writing on this and other legal issues critical to the effective functioning of the ICC raised by its early judicial decisions and prosecutorial activities.
On January 17, 2006, Pre-Trial Chamber I (PTC I) issued the first decision1 of the International Criminal Court (ICC) interpreting and implementing the ground-breaking provisions2 of the Rome Statute, which allow for victims to participate in the Court's proceedings. The decision arose in the context of the "situation"3 in the Democratic Republic of Congo (DRC) and specifically involved the applications of six victims who expressed their desire to "participate in the proceedings, be it at the investigation, trial or sentencing stage."4 Upon receiving the applications, Pre-Trial Chamber I determined that the applicants' request raised the question of whether Article 68(3) of the Rome Statute5-which is the general provision governing Page 75 victims' participation before the Court-should apply at the investigation stage of a situation.6 The Office of the Prosecutor (OTP) submitted several arguments to PTC I supporting its position that Article 68(3) is only intended to apply in a "case," i.e. after the Court identifies an individual suspect, not in a "situation."7 However, in its January 17, 2006 decision, the Chamber rejected the OTP's position, setting forth a number of counter-arguments to find that Article 68(3) applies to both "situations" and "cases."8
This article takes the position that neither the plain text of the Rome Statute nor the drafting history behind Article 68(3) demonstrates unambiguously whether or not the provision is intended to apply to the investigation phase of a "situation." Rather, as detailed below, the drafters of the ICC victims' participation scheme left the Court broad discretion to determine how the provisions of that scheme should be implemented to achieve an appropriate balance between the drafters' goals and concerns. However, as a practical matter, PTC I's decision to extend Article 68(3) to the investigation phase of a situation has failed to serve the restorative function envisaged by the drafters of the victims' participation scheme, while also undermining the efficiency and fairness of the proceedings.
Thus, rather than afford a small number of "situation victims" with a set of theoretical "participation rights" at the investigation stage under Article 68(3), the Court should focus its resources on ensuring the effective exercise of the rights expressly available to victims, particularly at the investigation stage. This means making information about the ICC available to victims and encouraging them to communicate with the Court, notifying the broadest category of potential victims about specific rights available to them in the Rome Statute and Rules of Procedure during an investigation, and making clear to victims how they might meaningfully participate under Article 68(3) in the context of a case against an individual suspect in the future. Page 76
The unprecedented provisions of the Rome Statute governing victims' participation before the International Criminal Court are largely a product of a much broader movement in recent decades towards the achievement of restorative justice.9 Generally speaking, restorative justice theory holds that "justice should not only address traditional retributive justice, i.e., punishment of the guilty, but should also provide a measure of restorative justice by, inter alia, allowing victims to participate in the proceedings and by providing compensation to victims for their injuries."10 While the concept of victims' "participation" is not easily defined, it has been described broadly as victims "having a say, being listened to, or being treated with dignity and respect."11 Advocates of victims' participation in criminal justice mechanisms believe that participation has a number of potential restorative benefits, Page 77 including the promotion of victims' "healing and rehabilitation,"12 through a "sense of empowerment and closure"13 that is said to accompany victims' participation. Additionally, some supporters of victims' participation claim that the participation of victims may assist courts "in making a contribution to the reconciliation of a community or nation more generally."14 Finally, groups that supported a right of victims' participation before the ICC argued that victims' involvement will bring the Court's proceedings "closer to the Page 78 persons who have suffered atrocities"15 and increase the likelihood that those most affected by criminal acts will be satisfied that justice has been done.16
The drafters of the ICC Rome Statute were particularly influenced by the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (U.N. Victims Declaration), unanimously adopted by the U.N. General Assembly in 1985.17 The Declaration marks the first formal recognition at the international level that victims are entitled "access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered."18 More specifically, the Page 79 U.N. Victims Declaration encourages states to implement measures designed to ensure, inter alia, that victims are "treated with compassion and respect for their dignity."19 In addition, states are to facilitate the "responsiveness of judicial and administrative processes to the needs of victims" by:
(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; [and]
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system . . . .20
Thus, among the rights promoted by the Victims Declaration are the right of victims to be treated with respect, the right to receive information regarding relevant judicial proceedings, and the right to present their views and concerns to a court. While some national jurisdictions involve victims to an even greater extent in criminal proceedings, these principles-being treated with respect, receipt of information, and the opportunity to present views and concerns-are seen as fundamental to providing victims "access to justice."21
In addition to being influenced by the restorative justice movement generally, the drafters of the ICC victims' participation scheme were conscious of the experiences of the ad hoc criminal tribunals in the former Yugoslavia and Rwanda, which are widely-perceived to have failed to connect with the affected communities on whose behalf they were established.22 Page 80 Indeed, despite the growing recognition of restorative-based justice mechanisms in the 1980s and early 1990s,23 a number of commentators have claimed that the U.N. Security Council "overlooked" victims' interests in the creation of the international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) in 1993 and 1994, respectively.24 While the ad hoc criminal tribunals do benefit from the participation of victims as witnesses, victims have no opportunity to participate in their own right, nor can victims request compensation in proceedings before the tribunals.25Furthermore, although the judges of both the ICTY and the ICTR considered the possibility that their statutes might be amended to...