Victims' Rights and Advocacy at the International Criminal Court.

• Author: Sorensen, Juliet S.
• Position: Book review

T. MARKUS FUNK, VICTIMS' RIGHTS AND ADVOCACY AT THE INTERNATIONAL CRIMINAL COURT (Oxford University Press 2010). 227 pp (not including appendices and index).

The establishment of the International Criminal Court (ICC) in 2002. (1) was a watershed moment in the history of human rights and international criminal justice. As demonstrated by the ad hoc tribunals that continue to address atrocities committed in Rwanda and the former Yugoslavia, the international community recognized that certain states were unable or unwilling to prosecute "the most serious crimes of concern to the international community as a whole," (2) and that a permanent court was essential to adjudicate those crimes.

However, the new ground staked by the ICC was not limited to its existence. The Rome Statute of the International Criminal Court (Rome Statute) accorded fights to victims of war crimes never before enshrined in international treaties or local laws. Specifically, victims of a crime were accorded the right to participate in all stages of the investigation and prosecution of that crime, including proceedings before the Pre-Trial Chamber (3) and the Trial Chamber. (4) Moreover, the Rome Statute expressly provided that victims are entitled to various remedies, including reparations. (5) As T. Markus Funk explains in his important new book, Victims' Rights and Advocacy at the International Criminal Court, the philosophy of the ICC regarding victims contrasts sharply with prevailing theories of criminal justice in twentieth century America, in which the victim's role was secondary and achieving the broader societal objective of crime control became the justice system's raison d'etre. (6)

In his book, Funk first offers a fascinating overview of different Western theories of justice and what role, if any, victims of crime play in those schools of thought. He then provides a concise and insightful summary of the events and institutions that led to the founding of the International Criminal Court. Funk's discussion of the organization of the ICC includes valid criticisms and constructive suggestions for improvement. The final portion of the book is a manual for victim representatives on how to best represent their clients at various stages of the proceedings before the ICC. This last section is a break in tone and perhaps purpose from the earlier sections of the book, which are a valuable read for any practitioner and student of international justice, human rights, and history.

Funk traces the development of victims' rights under international law, addressing both criminal justice theories in general and certain criminal codes in particular. Funk notes that theories of criminal justice in the West have gradually drifted far away from a "restorative" approach, in which an attempt is made to restore to the victim that which was wrongfully taken. (7) However, as the role of the central government became larger and more powerful in Western societies, restorative justice lost out to the theories of justice focusing on (1) the perpetrator, including punishment, rehabilitation, and deterrence from committing future crimes; and (2) how to reduce crime in and fight the wrong to society, as opposed to an individual victim. (8) This focus on society and the needs of the defendant continues to play a significant role in the treatment of crime and punishment in the United States. (9) By contrast, victims have long received greater recognition in other countries and under international law: for example, the Inter-American Court on Human Rights, founded in 1979 and located in Costa Rica, held in a 1988 opinion that family members have the fundamental fight to know what happened to their loved ones, reflecting historical legacy of civil wars and state-sanctioned disappearances in numerous Latin American regimes in the twentieth century. (10) It was this tradition upon which the ICC based its explicit recognition in the Rome Statute for victims' rights.

The book reminds us that the atrocities of World War I1 put the international community on notice of the need for a war crimes court and paved the way to the eventual establishment of the ICC. (11) The United Nations General Assembly took the first steps in 1948 with the Convention on the Prevention and Punishment of the Crime of Genocide. (12) While the United Nations Security Council gridlock caused by the Cold War temporarily derailed the effort to establish a permanent international criminal court, a series of United Nations treaties and conventions made clear that the international community remained willing to seek redress for war crimes and their victims. (13) These included, among others, the United Nations Charter itself, enacted in 1945; (14) the Universal Declaration of Human Rights, enacted in 1948; (15) and, significantly from the perspective of this book, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, enacted in 1985. (16)

The ICC opened for business on July 1, 2002, after sixty nations ratified the Rome Statute, and since then, three state parties to the Rome Statute--the Republic of Uganda, the Democratic Republic of the Congo, and the Central African Republic--have referred situations occurring on their territories to the court. The Security Council also has referred the situation in Darfur, Sudan. (17) In addition, the court granted the Prosecution authorization to open an investigation proprio motu in the situation of Kenya. (18) Funk briefly discusses the 1998 Rome Conference that led to the founding of the ICC, and acknowledges the primary challenge that faced its participants: how to reconcile a nation's legitimate interests in sovereignty with the international rule of law. (19) The...