The victims’ role

Rome Statute of the ICC, preamble:
“…Mindful that during this century
millions of children, women and men
have been victims of unimaginable
atrocities that deeply shock the cons-
cience of humanity…”

Punishment is not enough

In cases before the ICC, as in all criminal trials, society‘s purpose is to condemn proven wrong-doers. But punishing the perpetrators is not enough if the aim is justice for the victims. When the crimes concerned are core international crimes, the victims are entitled to more. The United Nations has on numerous occasions stressed the right of victims to reparation in the broadest sense, and has most recently formulated its position in the Basic Principles and Guidelines of the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law drafted by the Commission on Human Rights in April 2005. Victims of core international crimes want:

›    the perpetrators to receive a just punishment
›    to be heard in the proceedings
›    moral and political rehabilitation
›    material compensation
›    protection from further human rights abuses

Criminal justice systems are normally unable to provide such comprehensive rehabilitation for the victims of such crimes. The protection of victims and giving them a greater role in proceedings are amongst the most important developments contained in the Rome Statute. The Charters of the Nuremberg and Tokyo Military Tribunals contain no such provisions. The international tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) greatly improved the position of the victims. But even before these courts, victims can only appear as witnesses. However, when establishing the ICC, new solutions were sought to give the victims greater justice.

Participation in proceedings

Victims cannot themselves institute proceedings before the ICC. But they can give the Prosecutor relevant information (Art. 15) and so indirectly help initiate an investigation or prosecution. During the trial itself they may with the Court’s permission present their views and concerns either in person or through a legal representative. They also have the right to examine the accused. They appear for this purpose as victims, independently of any possible appearances as witnesses. The Court may however also accept written submissions or enable victims to participate by video-link. The Court determines the extent to which the victims may participate, and must thereby take into consideration the rights of the accused and must make sure that the proceedings do not become unduly expensive, complicated or protracted. The Registry contains a Victims Participation and Reparations Section and a Victims and Witnesses Unit, both of which are allocated appropriate funds. The ICC also provides an Office of Public Counsel for Victims (OPCV) which exists to provide legal assistance to victims and can provide them with counsel to represent them in proceedings.

Protection of the victims

“The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses” (Art. 68 (1)). Victim protection is a key objective of the ICC. The Statute attaches particular importance to the protection of women and children.
It is important for victims to be involved in the proceedings. But participating in the trial can also be extremely difficult for the victims and may traumatize them again. The ICC seeks to minimize this danger. A Gender and Children Unit has been set up in the Office of the Prosecutor, which will in particular help women and children with problems related to ICC proceedings. This was particularly urgent, because the ICC‘s first case against the Congolese militia leader Thomas Lubanga concerns the recruitment of child soldiers. The first head of the Gender and Children Unit became Gloria Atiba-Davies, a former Principal State Counsel from Sierra Leone, who knows the suffering experienced by victims of core international crimes, having herself been forced to seek asylum as a result of political persecution.
Victims are provided with support from their very first contact with the Court, i.e. from the time of the interviews conducted with them by Court investigators in the field. If the victim protection staff are of the opinion that questioning would subject the person concerned to renewed psychological injury, they may not be questioned. In addition, they must be informed at the outset of the role of the ICC, the nature and possible duration of the trial, and the possibility that the accused may be acquitted.

Reparations

The Rome Statute itself contains provisions on reparations (Art. 75). The Court may determine the scope and extent of any damage, loss and injury to the victims, and can order convicted persons to make appropriate reparations “including restitution, compensation and rehabilitation”.

The Trust Fund for Victims

The Statute also provides for the creation of a Trust Fund for Victims by the Assembly of States Parties (Art. 79). The Fund is overseen by an independent Board of Directors and is currently administered by the Registrar. Money and other property collected through fines or forfeiture are paid into the Fund, which is disbursed for measures designed to ease the lot of the victims. At the end of 2010 the Trust Fund for Victims counted with a total of ca. 6 million euros of voluntary contributions by member states. Germany came up with about 25 percent of this sum. The money thus collected is spent mostly for victims in those African states in which the ICC has proceedings going on.

Non-governmental organizations have also realized that they need to work harder to protect victims’ concerns in proceedings before the ICC. An international Victims‘ Rights Working Group (VRWG), which brings together more than 200 NGOs, has been working since 1997 on strategies to support and protect victims at the ICC as well as possible.

Never before have victims of core international crimes had as many rights as they do before the ICC. Making sure that these are asserted, enhanced and extended is an important task for the States Parties of the Rome Statute.

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