Victims of Crime Research Digest, Issue No. 5
Victims before the International Criminal Court: A New Model of Criminal Justice?
Frédéric Mégret, PhD is Assistant Professor of Law at the Faculty of Law, McGill University, in Montreal. He is Canada Research Chair on the Law of Human Rights and Legal Pluralism and Director of the McGill Clinic for the Sierra Leone Special Court.
The International Criminal Court (ICC or the “Court”) was created in 1998 following a diplomatic conference and started functioning in 2001. It is the first permanent and, potentially at least, universal international criminal tribunal. It has over 100 members, including Canada. As such, it is closely watched for developments that might be of relevance for criminal justice. Its jurisdiction extends over genocide, crimes against humanity and war crimes: all crimes that typically make victims in the thousands, often in very traumatic and life-altering ways. Based in The Hague, the ICC has begun investigating and prosecuting cases in the Congo, Uganda, Sudan, and Kenya, creating much expectation among victims and their relatives.
One of the striking features of the ICC is the role it purports to give to victims, in a context where victim rights and victim-centered approaches to criminal justice have become stronger. This article examines the role of victims at the ICC and discusses the challenges that their presence before the Court creates. The ICC may choose to see victims in three different ways, that is, merely as witnesses, as participants of some sort, or as potential beneficiaries of assistance and reparations.
The Rise of the Victim in International Criminal Justice
International criminal tribunals traditionally paid little attention to victims. At Nuremberg post World War II, where much of the procedure relied on written sources, victims appeared only occasionally as witnesses. The 1990s ad hoc international criminal tribunals (former-Yugoslavia and Rwanda) relied more extensively on witness testimony and, as a result, were more open to the idea that, as a minimum, victims should not be further victimized by the international criminal justice system. The ad hoc tribunals thus saw the development of significant efforts to better protect at least those victims who testify. Two things were nonetheless clearly excluded: first, victims were in no way parties to the criminal procedure; and second, very few provisions were made for reparations (in the best of cases, victims were supposed to go before domestic courts with an authoritative international judgment against their tormentor, but in practice, this almost never happened).
The movement to create the ICC almost from the outset took a different view of the role and status of victims. First, the ICC was not to be created by the Security Council and sought alternative forms of legitimacy. Second, the ICC’s creation owed much to the influence of civil society groups (notably Redress, Human Rights Watch) that were more inclined to see international criminal justice as fundamentally a form of justice to victims rather than simply, for example, a means to international peace and security. Third, debates in the 1990s were influenced by the growing frustration and disappointment of victims’ associations with existing international criminal tribunals and by a number of legal developments particularly relating to the human right to reparation. As a result of these various pressures, the Rome Conference, which created the ICC, granted an unprecedented role to the victim before the Court.
The incorporation of a strong victim component in international criminal justice raises several challenges. Perhaps most importantly, there have been concerns that a significant focus on victims would detract from the attention traditionally bestowed on the accused, and perhaps even have a negative impact on due process and the right to a fair trial. Defense counsel have already been known to appeal the designation of certain victims as victims. There is also a specifically prosecutorial concern involved in granting victims too prominent a role, the fear being that the trial will become side-tracked or even hijacked by victims’ agenda. This is a particularly significant concern given the potentially huge numbers of victims in some ICC trials (numbering in the thousands), and the considerable challenges that international criminal justice already faces in terms of expeditiousness. Finally, reparations raise highly complex practical and jurisprudential questions about who should be compensated, for what, and why. These questions have not begun to be answered and may yet leave victims before the ICC frustrated.
Specifically, in addition to a revamped mandate to protect victims insofar as they are witnesses, the ICC is asked to facilitate victim participation before and during the trial. The Rome Statute also anticipates that the ICC has a mandate to provide victims with reparations for harm suffered. These provisions have implications for the general economy of procedure before international criminal tribunals. Traditionally, that procedure has been largely adversarial and common law inspired, but lately a number of changes have nudged the procedure towards more of an inquisitorial model. An effort to pay more attention to victims is hardly the monopoly of any particular tradition, but might the move to give victims a strong role signal a more distinctly continental-European approach? Victim participation provisions have also been strongly influenced by international human rights law, which provides a justification for attending to victims (e.g., the right to an effective remedy) but also protects the accused’s right to a fair trial. The main article concerning victims in the Rome Statute is article 68,Footnote 1 which provides only a very broad overview of their status. Much surrounding the place of victims before the ICC therefore remains shrouded in mystery and in need of judicial clarification.
The Victim as Witness: A Mandate to Protect
The victim as witness is not necessarily a rare occurrence; however, not all witnesses have been victimized, and not all victims are called to testify. Nonetheless, when victims appear as witnesses in judicial proceedings, some issues must be addressed, such as their security (individuals may be threatened when it becomes known in their community that they will testify) and the high incidence of psychological trauma and a concomitant risk of re-traumatizing experienced by victims who testify. Accordingly, Article 68.1 states that “[t]he Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”
Among the more common measures employed are closed sessions or the redaction of information that might identify witnesses to the public. Resettlement of witnesses is a possibility as a last resort. The ICC is particularly asked to “have regard to all relevant factors, including age, gender …, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children.”
As in many provisions relating to victims, a caveat is included that “[t]hese measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”
A Victims and Witnesses Unit was created within the Registry (the ICC’s administrative arm) which conducts vulnerability assessments, helps victims throughout their experience at the ICC and provides medical and psychological assistance. It appears to be similar to a systems-based victim services program in Canada. The Unit has even set up an emergency hotline.
A Party or not a Party?
Nothing prevents victims from forwarding information to the Office of the Prosecutor, which promotes “direct interaction” with them. Such information may lead to investigations, but it does not have any particular status, and victims have no right to register formal complaints. There is, in other words, no way that victims can “refer” a case in the way states parties and the Security Council can with the Prosecutor, or that the latter’s discretion to launch investigations and indictments is in any way determined by information forwarded by victims. Victims’ role, rather, seems limited to their ability to “appear” before the ICC. The central provision in terms of victim participation is Article 68(3), according to which “the Court shall permit their views and concerns to be presented …”
“natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”The crimes must be crimes of which the defendant is accused and not simply crimes that were committed in the same region. Indirect victims (e.g., relatives) fall within the definition, but victims with blood on their hands (e.g., child soldiers) raise difficult issues. The ICC may encounter substantial evidentiary difficulties in ascertaining victim status and has shown a willingness to adapt requirements to local specificities. Victims, who are often indigent, can get legal aid, but in order to ensure that the ICC is not overwhelmed by victim participation, they may be requested to choose a common legal representative. In addition, for their views to be heard at any particular stage in proceedings, victims must establish that their “personal interest” is affected.
Article 68 anticipates that victims’ views may be presented “at stages of the proceedings determined to be appropriate by the Court,”
a notion that is a matter of evolving case law. Stages have been understood very broadly as the entire stage by some chambers (pre-trial), but much more narrowly by trial and appeal chambers where victims must show their “personal interest” in the particular procedural step involved (for example, the examination of a particular piece of evidence or issue). Presumably, victims will have a keen interest in having their voice heard by the time judgments have been rendered and reparation hearings take place, although no proceeding before the ICC has yet gone this far. The trial itself also provides many opportunities for victims, who may have evidence available, to be heard. But victims have also been allowed to voice their views at much earlier stages than that, notably at the pre-trial stage, and especially at indictment confirmation hearings. It is less clear whether victims can intervene at the stage of investigation of a “situation” given that strictly speaking no judicial proceedings have begun.
It is perhaps understandably at the stage of actual trial proceedings that the tension between the rights of the accused and the rights of victims risk being most pronounced. There may be concerns that defining victims could in itself negatively prejudice the trial against the accused. Of course, the victims are not victims (yet) of the accused, they are simply victims of “a crime,” which the defendant may or may not be found guilty of at trial. But there is a general suspicion from the defense that the participation of victims in proceedings may unfavorably prejudice the accused. Article 68(3) anticipates that victims’ views should be heard “in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”
In practice, this means that victims “can only participate actively if their intervention would make a relevant contribution to the determination of the truth.”
Concerns about the expeditiousness of the trial have also been prominent in judges’ minds.
The extent of victims’ “procedural rights” under the Statute and the Rules is unclear, as is the extent to which victims are entitled to “present (sic) their views,”
in accordance with the Statute and Rules. At the minimum, victims should be allowed to access public filings, but confidential filings are more problematic, especially when they involve issues of national security or protection of witnesses. Victim representatives are as a rule entitled to attend hearings, although again concerns may arise with ex parte hearings. Strikingly, victims have been allowed to present evidence in Court, albeit under strict conditions, based on the Court’s general “authority to request the submission of all evidence that it considers necessary for the determination of the truth.”
These are all sensitive questions for which the ICC seems determined to retain a certain flexibility.
The overall status of victims is the object of much speculation. The Prosecutor has described victims as having an “independent voice” in the Statute’s procedure and as being “actors” rather than “passive subjects” of international justice (ICC Prosecutor’s Office 2010, 5 and 13). Victims are indeed independent from the Prosecutor and appear in their own name. However, their status is not clearly defined, and it would be claiming too much to say that they are parties as such. The procedure does not go noticeably further than instructing the judges to “consider” the views that have been presented by victims. One might say that formally the position of victims is somewhere between a partie civile,Footnote 3 a supplementary source of prosecution, and an amicus or friend of the court. They have a sufficiently vested interest to be heard in court but do not carry the burden of prosecution and can claim reparations even if they have failed to participate in proceedings. The closest analogy domestically might be the auxiliary prosecution institution which exists in Germany and Austria, but the ICC system is really quite unique. In practice, of course, only evolving judicial interpretations will fully define the formal status that victims hold and how much or how little influence they will have over judicial outcomes.
Reparations: Many Unanswered Questions
The reparations regime set out in Article 75 provides for the possibility that the ICC may make orders against convicted persons. The procedure is entirely separate from Article 68. Reparation orders are made against a particular offender for the benefit of the victims of his crimes. Three types of reparation are envisaged: restitution, compensation, and rehabilitation. Restitution consists in the return of property seized in the course or as a result of the commission of the crime; compensation is for economically assessable damage resulting from physical or psychological harm; and rehabilitation covers medical and psychological care and legal and social services. Traditional forms of reparation like satisfaction (e.g., apologies) and guarantees of non-repetition are not mentioned, perhaps because they are more appropriate in the case of states, but nor are they excluded (the list is non-exhaustive).
One of the great weaknesses of the reparations regime is that it only targets individuals. The ICC does not have the power to order reparations from states, who would have comparatively much deeper pockets, even if the accused was the head of state or involved in the implementation of a state policy. Perhaps partly to remedy that shortcoming, a Victims Trust Fund was created which is independent from the ICC. The VTF has a dual role: it is part implementer of reparation awards ordered by the ICC and which, for example, have an enforcement or collections aspect making it too burdensome for the ICC to manage; but it is also part distributor of moneys received from international donors which it can dedicate to the rehabilitation of victims. It has already started distributing money in areas where investigations are undertaken, much earlier and entirely separately from reparations that may eventually be obtained. Given the dire situation in which many victims of atrocities find themselves and the sheer difficulty of evaluating the amount of reparations, not to mention finding someone who can pay for them, it may well be that the VTF will end up being the most important dimension of assistance to victims.
Conclusion
The ICC victim regime is the product of very peculiar conditions. The gravity of the crimes and the large number of victims make it very difficult to ignore the fact that international crimes are not just committed against an abstract humanity but also very much against actual individuals. It is still early to evaluate the impact that the inclusion of the victim will impose on the nature of international criminal procedure and justice, but it is worth remembering that domestically some victim-oriented movements have been quite conservative and repressive in orientation. In a context where it is already very difficult to protect the presumption of innocence, facing significant groups of victims in court may yet significantly tilt the balance against the accused. Still, as the ICC struggles to establish its legitimacy, in a context where it has been accused of being manipulated by states or doing the Security Council’s bidding, establishing a strong victim constituency is sure to reinforce its claim that it stands for a particularly necessary form of justice. Moreover, the ICC has been at pains to retain control over which victims participate, when, and in what way or how, showing that it is attentive, on a case by case basis, to the many rights and interests involved, including those of the accused, and to the reasonable expediency of justice in general.
It may be remarked that there is certainly no obligation for states parties to have a similar regime in domestic law. For example, simply because Canada is a party to the Rome Statute, does not mean that it needs to introduce legislation allowing victims to voice their concerns in the course of trial (even if only in trials involving international crimes). The ICC regime operates under the principle of complementarity. According to that cardinal principle, states have primary jurisdiction over ICC crimes and are encouraged to prosecute them according to their own legal and judicial traditions. A case is only admissible before the ICC if the state that has jurisdiction over it has proved either “unwilling” or “unable” to prosecute it, notions that are interpreted strictly to cover states that are either committed to ensuring impunity or too weak to even carry out prosecutions. This will not be the case of states which are effectively engaged in the struggle against impunity for atrocity crimes but may nonetheless be less victim-friendly than the ICC purports to be. Nonetheless, domestic judiciaries should be watching the ICC closely as a laboratory for victim-conscious approaches to criminal justice in the wake of particularly grave crimes, which is sure to yield some original insights.
References
International Criminal Court Office of the Prosecutor. 2010. Policy Paper on Victims’ Participation. The Hague: International Criminal Court Office of the Prosecutor. Accessed November 21, 2011.
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