Participation of victims in pre-trial proceedings of the ICC

Journal of International Criminal Justice

Volumn 4, Issue 2, 2006, Pages 219-238

  Stahn, Carsten ^a,b   Olásolo, Héctor ^b   Gibson, Kate ^c  

^a NEW YORK UNIVERSITY   (United States)

^b Cantab ^*

^c Cantab Research Ltd   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 33744457261     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqi089     Document Type: Article

References (67)

1. See generally G. Bitti and H. Friman, 'Participation of Victims in the Proceedings', in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (hereafter 'Elements of Crimes') (Ardsely, NY: Transnational Publishers, 2001), 459
2. G. Bitti and G. Gonzáles Rivas, 'The Reparations Provisions for Victims Under the Rome Statute of the International Criminal Court', in Redressing Injustice Through Mass Claims Processes: Innovative Solutions to Unique Challenges (Oxford: OUP, forthcoming)
3. J.R.W.D. Jones, 'Protection of Victims and Witnesses', in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court, Vol. II (Oxford: OUP, 2002), 1357
4. C. Jorda and J. de Hemptinne, 'The Status and Role of the Victim', in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court, Vol. II, 1390
5. D. Donat-Cattin, 'Article 68', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999), 869
6. S.A. Fernandez de Gurmendi, 'Definition of Victims and General Principles', in Lee, Elements of Crimes, 427
7. H. Brady, 'Protective and Special Measures for Victims and Witnesses', in Lee, Elements of Crimes, 434.
8. For a full discussion, see Jorda and de Hemptinne, supra note 1, at 1401 and 1403.
9. See Art. 101 of the Spanish Code of Criminal Procedure. See generally United Nations Office for Drug Control and Crime Prevention, Handbook on Justice for Victims: On the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (New York, 1999), 39.
10. Ibid.
11. Ibid.
12. See Jorda and de Hemptinne, supra note 1, at 1389.
13. See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Violations of International Human Rights and Humanitarian Law, UN doc. E/CN.4/2000/62, 18 January 2000, Annex; Annex to the Final report of the Special Rapporteur, M. Cherif Bassiouni, submitted in accordance with the Commission on Human Rights Res. 1999/33 'reaffirming the principles ... including that victims ... have their right to access to justice and redress mechanisms fully respected'. See also II.3. ('The obligation to respect, ensure respect and enforce international human rights and humanitarian law, includes, inter alia, a State's duty to:... (c) Provide victims with equal and effective access to justice irrespective of who may be the ultimate bearer of responsibility for the violation').
14. See 'Proposed Guiding Principles for Combating Impunity for International Crimes', in M. Cherif Bassiouni (ed.), Post-Conflict Justice (New York: Transnational Publishers, 2002), at 255. See, in particular, Principle 8 ('A victim's right of access to justice includes all available judicial, administrative, or other public processes under existing domestic laws as well as under international law').
15. See W.A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2004), 172-173.
16. The link between reconciliation and the participation of victims can be illustrated by the South African Truth and Reconciliation Commission, where statements were gathered from approximately 24,000 victims of human rights abuse during its term of office. See G. Simpson, 'A Brief Evaluation of South Africa's Truth and Reconciliation Commission: Some Lessons for Societies in Transition', Occasional Paper, Johannesberg Centre for the Study of Violence and Reconciliation, 1998, available online at http://www.csvr.org.za/papers/paptrce2.htm (visited 21 October 2005). For an appraisal of the work of the South African Truth Commission more generally, see P. van Zyl, 'Unfinished Business: The Truth and Reconciliation Commission's Contribution to Justice in Post-Apartheid South Africa', in M. Cherif Bassiouni, supra note 8, at 745.
17. see P. van Zyl, 'Unfinished Business: The Truth and Reconciliation Commission's Contribution to Justice in Post-Apartheid South Africa', in M. Cherif Bassiouni, supra note 8, at 745.
18. 'As a result, in order to determine the group of natural persons, organizations and institutions that are included within the notion of victim at any given stage of the proceedings, one has to apply the definition of victim to the object of the relevant stage of the proceedings, H. Olásolo, The Triggering Procedure of the International Criminal Court (The Hague, Boston, London: Martinus Nijhoff Publishers, 2005), 109.
19. Rule 85 does not define victims in relation to proceedings against a specified individual in respect of a given conduct. It merely links the term 'victim' to the commission of a crime within the jurisdiction of the Court. See Rule 85(a) ('Victims means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court').
20. See Donat-Cattin, 'On Article 68', supra note 1, at 873. This idea is reflected in the title of Art. 68, which relates to Court 'proceedings'. Similarly, Rules 87-93 are contained in Chapter 4 of the Rules, which contains 'Provisions relating to various stages of the proceedings'. Furthermore, Art. 57(3)(c) provides the Pre-Trial Chamber with the general authority to 'provide for the protection and privacy of victims' without limiting it to any specific point in time in the pre-trial proceedings.
21. For example, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (GA Res. 40/34 (1985)) requires that 'the views and concerns of victims [should] be presented and considered at appropriate stages of the proceedings where their personal interests are affected...'. See Declaration of Basic Principles, sub.A.6.(b).
22. See European Court of Human Rights, Ogur v. Turkey (21594/93) [1999] European Convention on Human Rights (ECHR) 30, §92
23. Kelly and others v. The United Kingdom (30054/96) [2001] ECHR 324, § 98.
24. H. Olásolo, Corte Penal Internacional: Dónde Investigar? Especial Referencia a la Fiscalía en el Proceso de Activación (Valencia: Tirant lo Blanch/Cruz Roja Española, 2003), 428-430.
25. H. Olásolo, 'The Triggering Procedure of the International Criminal Court, Procedural Treatment of Complementarity and the Role of the Office of the Prosecutor', 2 International Criminal Law Review (2005), at 125-126.
26. See Rule 92(2), second sentence reads: 'Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the situation or case in question' (emphasis added).
27. Regulation 86(6), first sentence reads: 'Subject to any order of the Chamber, the Registrar may also submit one report on a number of applications received in accordance with sub-regulation 1 to the Chamber seized of the case or situation in order to assist Chamber in issuing only one decision on a number of applications in accordance with rule 89, sub-rule 4′ (emphasis added).
28. As Bitti and Friman, supra note 1, have pointed out at 457: 'However, many delegations were concerned that the potential numbers of victims might make their participation impossible and, thus, the modalities for exercising their right to participate in a given case were left in the hands of the Court'.
29. See on this issue a letter from the then President of the ICTR, Judge Navanethem Pillay, to the United Nations Secretary General addressing the issue of whether the task of processing and determining claims concerning the compensation of victims should not be left to international tribunals, where she stated that any such proposal 'would not be efficacious, would severely hamper the everyday work of the Tribunal and would be highly destructive to the principal mandate of the Tribunal' (annex to a letter of the United Nations Secretary General to the Security Council dated 14 December 2000, UN doc. S/2000/1198).
30. See Regulation 86(5) ('The Registrar shall present all applications described in this regulation to the Chamber together with a report thereon' (emphasis added)).
31. See specifically, Arts 64(2) and 64(3)(a), and Rules 84, 91, 101 and 131.
32. See on this concern Jorda and de Hemptinne, supra note 1, at 1402 ('[Rule 85] may pose problems for the presumption of innocence, as it appears to presuppose a crime that has been committed whereas that remains to be proved at trial').
33. See also J.R.W.D. Jones, supra note 4, at 1357.
34. On the other hand, it might be argued that the recognition the status as victim is a separate finding which 'remains true with or without a decision of conviction against a specific perpetrator' ('the accused'). See Donat-Cattin, 'On Article 68', supra note 1, at 876, note 24. See also §2 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which states: 'A person may be considered a victim under this Declaration, regardless of whether the perpetrator is identifies, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim'.
35. See Regulation 86(2), which specifies that the application for participation in the proceedings shall contain a 'description of the harm suffered', a 'description of the incident, including its location and date and, to the extent possible, the identity of the person or persons the victims believes to be responsible for the harm' and any 'relevant supporting documentation, including names and addresses of witnesses'.
36. See Olásolo, supra note 16, at 429.
37. This flexibility is also reaffirmed by Rule 91(2), which states that 'the Chamber shall [...] specify the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements'. See Bitti and Friman, supra note 1, at 456-474 and 456-457.
38. The structural principles underlying the framing of victim participation in the RPE have been summarized by Timm as follows: 'First, the participation of victims in the proceedings under part 2 of the Statute is treated separately, as the Statute already sets defined standards in Art.15(3) and 19(3). Separate Rules should also account for the different interests in these early stages of the proceedings. Second, all other participation under Art. 68(3) is contingent on admission by the Court. In order to enable victims to apply for participation, there are Rules on notification for the different stages of the proceedings. Third, when deciding on the application for participation the Court also decides on the form of participation. Some rights to participate, e.g. in oral proceedings, may only be afforded to the legal representatives of the victims and not the victims themselves. Fourth, particularly in cases of mass violence, the Court may ask a group of victims to choose a common legal representative in order to participate in the proceedings'. See B. Timm, 'The Legal Position of Victims in the Rules of Procedure and Evidence', in H. Fischer (ed.), International and National Prosecution of Crimes Under International Law (Berlin: Berlin Verlag Arno Spitz, 2001), 289, at 293.
39. It is quite telling that Art. 15(3) makes only reference to the RPE in this regard, without mentioning Art. 68.
40. See also M. Bergsmo and J. Pejic, 'On Article 15', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, supra note 1, at 369
41. Timm, supra note 28, at 294.
42. See Art. 15(1) and (2).
43. See United Nations Office for Drug Control and Crime Prevention, Handbook on Justice for Victims, supra note 6, at 38. The important role that victims can play in this context was also acknowledged in the Council of Europe's Recommendation No. R (85)11 on the 'Position of the Victim in the Framework of Criminal Law and Procedure', which provides 'it is important to enhance the confidence of the victim in criminal justice and to encourage his co-operation, especially in his capacity as a witness'.
44. See Bitti and Friman, supra note 1, at 459 ('Rules on the modalities of victims participation in [Part 2] proceedings would have to be different since the matters may arise at a very early stage, when neither the crime nor suspect is yet clearly identified .... Separate proceedings were thus developed for notification to and participation of victims in these proceedings').
45. Some general indications are given in Rule 91(2).
46. For a discussion of the background of Rule 50, including the option of issuing a general notice, see J.T. Holmes, 'Jurisdiction and Admissibility', in Lee, Elements of Crimes, supra note 1, at 333.
47. See Council of Europe, Committee of Ministers, Recommendation No. R (85)11 on the Position of the Victim in the Framework of Criminal Law and Procedure of 28 June 1985 ('A.2... The police should inform the victim about the possibilities of obtaining assistance, practical and legal advice, compensation from the offender and state compensation... (D.9 ... The Victim should be informed of ... his opportunities of obtaining restitution and compensation within the criminal justice process, legal assistance and advice)').
48. M.E.I. Brienen, and E.H. Hoegen, Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, University of Tilberg dissertation (Nijmegen: Wolf Legal Productions, 2000), at 997.
49. Ibid.
50. Ibid., at 998.
51. See Holmes, supra note 35, at 333.
52. In this case, the role of victims of the situation will have to be addressed as in the context of Art. 53(3)(b). On the rationale of Art. 53(3)(b), see F. Guariglia, 'Investigation and Prosecution', in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, and Results (The Hague: Kluwer Law International, 1999), at 230 ('Delegations that had in the past opposed the judicial review of the exercise of the Prosecutor's powers accepted that, in order to ease concerns about the potential for possible abuse of powers, judicial supervision by the Pre-Trial Chamber could provide an adequate balance that would not substantially affect the independence of the Prosecutor').
53. See Council of Europe Recommendation No. R (85)11 on the 'Position of the Victim in the Framework of Criminal Law and Procedure', under recommendation B.7.
54. In Spain, victims can, in some cases, act as 'private prosecutors', where a public prosecutor has taken the view that a given case should not be prosecuted. See Arts 270 and 642 of the Spanish Code of Criminal Procedure. In Germany, if a prosecutor decides against prosecution of a particular case, the victim may petition a superior of the prosecutor for a review of the decision, and then may appeal directly to the court (see Arts 171-174 of the German Code of Criminal Procedure). In France, victims have a right to appeal directly to the court. If the court decides on the motion of the victim that the case should be prosecuted, the prosecutor is obliged to proceed. In Mexico, victims have a constitutional right to appeal a decision of the prosecutor not to prosecute a case, while in Israel, victims can appeal the decision to the Attorney General or State Attorney. See United Nations Office for Drug Control and Crime Prevention, Handbook on Justice for Victims, supra note 3, at 39.
55. See report of the The Redress Trust, 'Ensuring the Effective Participation of Victims Before the International Criminal Court: Comments and Recommendations Regarding Legal Representation for Victims', May 2005, at 6 ('Victims may wish to present their views to the Pre-Trial Chamber on the commencement of the investigation; they may, for instance, wish to add support to the request for authorization, or to draw the attention of the Pre-Trial Chamber to other crimes that are outside of the Prosecutor's focus that they believe merit investigation').
56. See H. Olásolo, supra note 11, at 65.
57. See H. Friman, 'Investigation and Prosecution', in Lee, Elements of Crimes, supra note 1, at 497.
58. C.K. Hall, 'On Article 19', in Triffterer, Commentary on the Rome Statute of the International Criminal Court, supra note 1, at 407, has suggested that in the context of challenges to admissibility and jurisdiction pursuant to Art. 19, 'the concept of a "case" would seem to imply that an individual or individuals had been or were being targeted as the result of an investigation of a "situation"'.
59. It could be argued that as Art. 19 only allows victims to make submissions to the Pre-Trial Chamber, this is the only form of involvement open to victims at this stage. On the other hand, a Chamber might take a more flexible approach by applying Art. 68, and thus Rules 89-91.
60. See Holmes, supra note 35, at 343.
61. See Hall, supra note 47, at 411.
62. An argument that the Pre-Trial Chamber should adopt a flexible interpretation of the requirement that a victim's 'personal interests are affected' can draw support from the Commission on Human Rights' Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law. This document recognizes the concept the 'collective victim', by including in its definition of victim 'a dependent or a member of the immediate family or household of the direct victim as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental or economic harm'. See sub.V.8.
63. See further below, discussion of Art. 53.
64. See Rule 59(3).
65. See also Bitti and Friman, supra, note 1, at 470.
66. See Basic Principles and Guidelines, sub.V.9 ('A person's status as a victim should not depend on ... whether the perpetrator of the violation has been identified, apprehended, prosecuted or convicted').
67. See Declaration of Basic Principles, sub.A.2.