Critical Evaluation of the Role of Victim Participation in the Delivery of Justice to Victims of International Crime at the International Criminal Court
The International Criminal Court (ICC), which is based in The Hague, Netherlands, was established via the Rome Statute as one way of achieving a universal human security agenda.[1] The court was meant to try convicts of crimes against humanity who were not sufficiently tried by local courts or tribunals in their country. As such, the court was meant to ensure that the victims of crimes against humanity received the justice that had been denied to them by local courts and tribunals. Consequently, the court has been variously described as ‘the victims’ court’. Due to its stature as a court for victims and the provisions of the Rome Statute, victim participation remains a key component of the court. However, it has been argued in the past that victim participation in the trial process does not add any value to the trial process and provides a financial nightmare to the home country governments who have to carter for the victims’ requirements since the ICC runs on limited resources. This paper critically analyzes the role of victim participation in the trial process that is meant to ensure that the victims get justice. The paper explores the realities of victim participation to expose the pros and cons of the same.
Advantages of Victim Participation
The shared vision of victim participation as is laid out in the Rome Statute was not in vain. In any justice system, victims are the most important cog and should be the center of the whole process. In any case, the whole purpose of any court is to ensure that victims of various crimes receive justice. The ICC is not different, victim participation is not only a tradition of the court, but also has great value to the trial process and ensuring that the victims get there justice.[2] As such, there are various benefits of victim participation in the ICC.
First, participation of the victims can be important for the truth-finding process.[3] In any criminal case, the amount of truth that can be unearthed is the most important determiner of whether justice will be done or not. In any case, the victims of crimes against humanity saw it all and thus are the ones who have most evidence. The fact remains that it is the victims who were in the geographical area of the crimes at the time of they occurred. Moreover, it is the victims who felt, saw, and heard all that constitutes the crimes against humanity that are being examined before the court; thus, the contribution of such people is of high value and cannot be disregarded. This explains why in the ICC and in any other criminal cases, the victims of the crimes done are usually the main witnesses in the trial process. However, the ICC does not allow one to hold the status of victim and witness at the same time. This is the whole importance of victim participation; it gives a chance to those who did not get a chance to be witnesses to express their side of the story.[4] Therefore, it does not make sense to have a court that seeks justice for victims without involving them in the trial process.
Unlike what is perceived by most critics of victim participation, allowing victims to participate in the trial process does not duplicate the work of the prosecutor.[5] Critics argue that presentation of additional evidence from the victims and the allowance of their attorney to question the defense team equals to double prosecution. However, the legal representatives of the victims do not have the capacity nor the expertise of conducting investigations and tabling their findings before the judges. Their ability to tender evidence and call witnesses is meant to aid them in projecting the various arguments that they are making before the court. In short, the role of victims in the truth finding process is only to fill in gaps where possible and not to introduce new evidence altogether.[6] Moreover, the victims do not always necessarily align with the prosecution. In fact, the victims may side with the defense in making demands such as the need for further investigation. Also, victims may question litigation decisions of the prosecution and enhance the quality of the trial and its outcomes. An example is the Bemba case where victims from DRC demanded that the accused be tried of crimes committed in their country too and not only for crimes against humanity committed in the Central African Republic.[7] The failure and the widespread criticism of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) are important evidences of the importance of victim participation.[8] Without the victims, the search for justice becomes meaningless and less benefit attached to its achievement. The two trials would have made more sense and would likely be more successful if victims were involved and their stories heard. As such, this confirms the importance of including victims in the trial process and the ultimate quest for their justice.
Moreover, part of the role of any court is ensuring that needs of the victims are achieved. Victim participation does just achieve this objective. Previous studies reveal that victims of any crime usually have emotional, practical, and informational needs; the victims usually hope that the trial will fulfill most if not all of these needs.[9] Owing to the scale and magnitude of the crimes committed against humanity, which have to be tried in an international court of law, these needs of the victims are likely to be more acute. Emotional needs of the victims may be severe enough to precipitate psychiatric conditions like major depression and post-traumatic stress disorder, which may require medical intervention.[10] Additionally, public acknowledgment of the victims’ suffering may be required to aid in countering impunity and proving to society why the trial is relevant. The emotional needs of the victims also inform the importance of victim protection measures in the judicial proceedings and ensuring that they are not victimized again. Victim participation is one way of ensuring that all these emotional needs of the victims are addressed. By giving the victims a chance to explain their story and get it off their chest, the healing process in the victims is enhanced hence the chance of developing complex psychiatric conditions is limited.[11]
The informational needs of the victims include the need to understand the context of their victimization, a wish to know the personalities responsible for their affliction, a wish to know why they were among the targeted groups, and a need to know how they could access redress or reparations.[12] Again, involving the victims in the trial process is the best way of helping them to fulfill these informational needs, hence, alleviating anxiety among the victims. Practical needs of the victims vary from person to person. These needs include a need for financial support, need to be protected from further persecutions, need to be provided with necessities, and a need to witness a favorable end to the trial, which will see the chief perpetrators of the violence identified and penalized accordingly.[13] The only way to have each victim present their practical and informational needs and have these needs addressed in the best way possible is having the victims involved in the trial process. As Moffett argues, the trial process should be flexible and sensitive to the needs of the victims since the final verdict of the trial process directly affects them.[14] Not involving the victims in the trial process means failure to identify their personalized needs, which tantamount to not protecting victims from further persecution, increased susceptibility of the victims to long-term psychiatric outcomes, and denial of a chance for redress and reparation for the victims. As such, the involvement of the victims helps to ensure that the victims feel part of the process and they own the final decision of the court, which in turn aids in the delivery of justice to the victims. In any case, justice for victims appreciates their suffering, affirms the dignity of the victims, and looks to remedy the harm they have suffered.
Furthermore, procedural justice requirements at the ICC are meant to ensure victim satisfaction and faith in the trial process.[15] Victims who are satisfied with the trial process are likely to enjoy the achievement of justice more. Apart from the need for victim participation, other procedural justice requirements are meant to ensure that victims are protected from any further harm, victims are sufficiently represented by a qualified lawyer in the trial process, and that all victims have access to reparations.[16] Since justice is meant for victims, anything that is likely to enhance their satisfaction in the trial process is valuable in the search for justice.
In addition, victim participation enhances the relevance of the court to them and the people surrounding them.[17] In other words, victim participation is the only way that the court interacts with the reality of crimes against humanity as they occurred on the ground in remote places that are far away from Netherlands. Arguably, it would not be justice to the victims if the accused individuals were accused somewhere in Netherlands while the victims still remained at the crime sites weary of further persecution. In such a state, even conviction and penalization of the accused would not sound like justice to the victims since their issues have not been addressed. In the same way, such a trial will leave the court severely out of touch with the realities of the case that is before them. Apart from addressing their personal needs, victim participation is one way of ensuring that the community in which the crimes were committed participates in the trial process and owns the outcome of the court. In reality, victim participation rouses the interests of the community in the cases which also aids in enhancing transparency. Additionally, it is important for the trial process to have as many local people follow the proceedings and express their opinions on the main issues. In essence, victim participation assures the local community that the case is about them and is not about foreigners trying to meddle into the domestic affairs of their country.
Indeed, victim participation can aid in ending impunity, which is at the very base of most of the cases that have to be tried at the ICC. Victim participation does this by enhancing the transparency of the proceedings.[18] If victims do not participate, the realities on the ground can never be known and it might be hard trying to convict individuals on legal facts and figures that could have been collected long after the crimes against humanity were committed.
A closer view of the ICC’s victim participation scheme reveals that the scheme was developed out of a desire to give restorative justice to the victims of crimes against humanity who are tried at the court. This means that the main reason for the establishment of the victim participation scheme is separate from the desire of the court to punish the wrongdoers.[19] As such, it can be argued that the ICC was created as a channel of ending impunity and as a way of ensuring that victims of crimes against humanity are catered for. The drafters of the Rome Statute looked to fulfill the principles of justice for victims as laid down by the United Nations declaration of 1985 on justice for victims.[20] The drafters might also have been influenced heavily by the failure of the ad hoc trials in which victim participation was low; it is not justice when the real victims of the suffering endured have not been involved. Viewing victim participation as a separate aim and role of the ICC can aid in realizing its importance to the search for justice. Ideally, justice is not only for the accused to be found guilty, convicted, and penalized; justice is meant for the victim(s), and the way that they are treated comprises the most important aspect of justice. Looking at victim participation at the ICC trials in this manner makes it seem even more important to the trial process. In essence, not including victims in the ICC trials will not only be violating the Rome Statute, but will also negate the whole sense of the cases since justice will not be done regardless of the outcomes of the cases at hand.
Further, the allegation that victim participation is costly for the ICC compared to its contribution in the quest for justice by critics of victim participation seems misplaced. As of 2015, 4.15% of the ICC’s budget was meant for victim related activities including provision of legal aid, reparations, and provision of humanitarian aid to the victims.[21] In the same year, the largest part of ICC’s budget (68.39%) was meant for staff remuneration and other staff affairs.[22] Moreover, the number of victims included in the trial does not necessarily mean that the cost of catering for the victims is increased since the victims are usually represented collectively.[23] The proportion of the budget that is meant for victim affairs is too small for it to be labeled costly, especially when compared to the benefits that victim participation brings to the quest for justice for the victims.
Finally, victim participation has been shown to greatly empower the victims.[24] It is common for victims of crimes against humanity to feel despondent and powerless especially when they learn that key decisions involving their day to day lives are to be made in a distant country and by individuals that they themselves have never interacted with. However, helping victims to enjoy their legal right of participating in the trial process makes them feel empowered by giving them a perception that their experiences can influence the trial process and help them to achieve the justice they are looking for.[25] The knowledge that they are entitled to reparations also empowers the victims further. Even when the final outcomes are unfavorable, this empowerment can help the victims to push for reparations locally.[26]
The Problems of Victim Participation
Despite the fact that the stories of the victims are important in the search for justice for the victims, the cost of victim participation outweighs its perceived benefits. In some ways, victim participation clearly undermines the quest for justice. The cons of having victim participation and how it undermines the quest for justice are considered below.
First, the prospect of reparation at the end or during the cases causes greed and dishonesty among the victims. People apply to be included in the trial process as victims without having anything significant that they would love to add to the trial process but to benefit from the reparations that might be awarded to the victims. As such, it is not a strange thing to hear of individuals who are not the real victims of crimes against humanity applying to be included in the trial process as victims just to benefit from the reparations and other favors given to victims. In fact, a study of the Kenya and Cote d Ivoire cases showed that the prospect of reparations not only motivated most people who applied to be included in the cases as victims, but also distorted their perception of justice with most of them viewing generous reparations for themselves and other victims as the justice they have been waiting for.[27] The inclusion of such ‘victims’ interferes with, rather than enhancing the process of truth-finding; without truth, there is no justice. Individuals who devalue and compromise the truth-finding process whilst masquerading as victims thus do not aid in the delivery of justice to the actual victims. Such faults in the process of admitting victims to the trial process discredit the whole process and the value of victim participation to the trial process.
Nevertheless, the increasing number of victims who apply to be included, whether legitimate or not, pose a financial challenge to the cost. The Bemba case, for instance, saw a total of 5229 victims included in the trial process.[28] The ICC has to use their rather limited resources to provide legal aid and other humanitarian aids to victims traveling from their homes to The Hague for trial. The process of reparation also requires money. The situation is worsened by uncooperative home governments who do not want to carter for the humanitarian aid of the victims traveling to the ICC hence imposing all relevant costs to the court.[29] In essence, the financial implications of victim participation on the court greatly outweigh the benefits of this participation to the trial process.
Moreover, the increasing number of victims that are included in the trial process coupled with the limited resources on which the ICC has to find legal representation for the victims can easily precipitate misrepresentation. The sense of misrepresentation is worsened by the difficulty in understanding the criteria that are used by the trial chambers to determine the number of attorneys that should be given to the victims in each case. This is best exposed when one compares the Lubanga case where there were seven representatives for 129 victims to the Bemba case where there were only two representatives for 5229 victims.[30] On average, the ratio of victims to attorneys in the Bemba case was 2615:1. It is practically impossible for one person to represent the views, the emotions, and the interests of 2615 different people accurately. Moreover, the victims themselves can worsen this misrepresentation; studies in the past have shown that most victims are reluctant to appear before the courts in person and would prefer being represented by intermediate parties like the attorneys.[31] The inaccuracy in representation, thus, simply waters down the whole essence of victim participation in the trial process.
Additionally, stories that are presented by victims in the trial chamber may confuse the whole process and undermine the gains that have been made in the trial process.[32] To make it worse, these stories may not be necessarily true. The story produced by a victim might discredit an importance piece of evidence which might have convicted or set free the key suspects of crimes against humanity. The fact that the victims may not have a chance to speak before the chamber in person and are to represented by a lawyer who is remunerated by the court makes it worse, the actual story can be corrupted in the process of exchanging it from a person to another and a story that is dangerous to the trial process born.
Furthermore, impartiality is key in the delivery of justice in any law system. Unfortunately, the victims and their representatives are guided by emotions of chagrin and hatred towards the defendants in the case and are thus not impartial. In fact, to many victims, justice is only achieved when the defendants have been convicted and punished accordingly. As such, the issues presented by the victims and their representatives are biased and at times too emotional to be of utmost good to the trial process. Van den Wyngaert seems to suggest that allowing victims to participate in the ICC makes article 68(3) of the Rome Statute, which requires victims to present their views in a manner that is not prejudicial and or inconsistent with the rights of the accused, and is impartial to the trial is contradictory.[33] According to his analysis, victim participation puts the defense team at a tricky stance where they have to counter the arguments posed by the prosecutor and the lawyers representing the victims. For the judges, the dilemma is that trying to force the understandably partial victims to act impartially is equal to totally alienating them from the process. Victim participation, thus, gives the judges in the trial chamber an unreasonably hard job of trying to balance the trial process for the sake of all parties. In fact, allowing victims to explain their stories usually raises emotions high within and without the court; such emotions of hatred and hostility towards the victim, who might not be the true convict, do not add any value to the trial process but only give the judges difficulties and impinge on the rights of the accused.[34] Also, the fact that victim participation interferes with the rights of the accused seems to lower its importance to the trial process and thus its contribution to the delivery of justice to the victims themselves.
Moreover, as earlier alluded to, victims in the trial process are allowed to participate as victims and thus cannot double as witnesses. This means that even though the victims might have potentially exonerating pieces of evidence with them, they are under the obligation not to disclose that evidence.[35] Actually, the victims only say their stories and do not contribute much to the evidence-gathering process. It is of no value allowing people who have potential evidence with them but cannot disclose it before the court in the trial process. Victims, thus, contribute little to the delivery of justice and the push to have them participate in the process is not worth it.
Moffett further argues that in the past, even though a few victims were allowed to present their views before the court chambers in person, their presentation had little or no influence on in the process of finding the truth and justice or in making decisions that are important to victims such as reparations. Although article 68(1) of the Rome Statute requires the victims to participate for them to id in the truth-finding process, this role of the victims is more of functional rather than practical.[36] This is because the wider notion of truth among the victims differ considerably from the facts of the case that the prosecution and the judges deem important in convicting the suspects. The Lubanga case where the victims who appeared before the court believed that contribution from neighboring countries helped Mr. Lubanga and his accomplices to inflict suffering on them while there were no facts about international contribution with the prosecutors is an example.[37] Therefore, it is clearly a waste of time and resources to have victims transported to the ICC to participate in the trial process when clearly their submissions contribute little to the search for their own justice.
Conclusion
From the discussion above, it can be concluded that victim participation plays a crucial role in the delivery of justice to the victims of crimes against humanity at the ICC. Although victim participation poses some challenges to the ICC, including hefty costs and impingement on the rights of the accused, its advantages greatly outweigh the challenges it breeds. Victim participation helps the court in understanding the context of the crimes, getting in touch with reality on the ground, and in unearthing some truths that may fill in the available information gaps. More importantly, victim participation aids the victims to get over the crimes committed against them and to feel part of the trial process which enables them to own and accept the final outcome. As such, victim participation aids in the delivery of justice to the victims of crimes against humanity being tried at the ICC.
Bibliography
Agger I, Sylvestre B, Terith C, Katherine G, Mar-jorie J, Sapna J, Martin BC, Richard S, and Norbert W. Independent Panel of Experts Report on Victim Participation at the International Criminal Court. Amnesty International, 2013, pp. 1-46.
Balasco L M. The International Criminal Court as a Human Security Agent. PRAXIS: Fletcher Journal of Human Security 28, 2013, pp.46-67.
Baumgartner E. Aspects of victim participation in the proceedings of the International Criminal Court. International Committee of Red Cross, 2008, pp. 409-440.
Burkhardt M. Victim participation before the International Criminal Court. Diss. Humboldt-Universität zu Berlin, Juristische Fakultät, 2010.
Cody, S S, Eric S, Mychelle B, and Alexa K. The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court. UC Berkeley School of Law: Human Rights Center, 2015.
International Federation for Human Rights, Five Myths about Victim Participation in ICC Proceedings, 2014, retrieved 3 May 2017, <https://www.fidh.org/IMG/pdf/cpi649a.pdf>.
Moffett L. Elaborating Justice for Victims at the International Criminal Court: Beyond Rhetoric and The Hague. Journal of International Criminal Justice, vol. 13, 2015, pp. 281-311.
Moffett L. Justice for victims before the International Criminal Court. London: Routledge, 2014.
Pena M, and Carayon G. Is the ICC making the most of victim participation? International Journal of Transit Justice, vol. 7, no.3, 2013, pp. 518-535.
Pena M. Victim participation at the International Criminal Court: achievements made and challenges lying ahead. Case Western Reserve Journal of International Law. vol. 44, no. 1, 2009, pp. 475-497.
Van den Wyngaert, C. Victims Before International Criminal Courts: Some Views And Concerns Of An ICC Trial Judge. 20111. Case Western Reserve Journal of International Law, vol. 44, no.1, 2011. pp. 475 – 498.
[1] L M Balasco. The International Criminal Court as a Human Security Agent, vol. 28, 2013, p. 46
[2] M Pena and G Carayon. Is the ICC making the most of victim participation? International Journal of Transit Justice, vol. 7, no.3, 2013, p.21
[3] C. Van den Wyngaert, C. Victims Before International Criminal Courts: Some Views And Concerns Of An ICC Trial Judge. 20111. Case Western Reserve Journal of International Law, vol. 44, no.1, 2011. p.487
[4] Pena and Carayon p.21
[5] International Federation for Human Rights, Five Myths about Victim Participation in ICC Proceedings, 2004, retrieved 3 May 2017, <https://www.fidh.org/IMG/pdf/cpi649a.pdf> p. 9
[6] International Federation for Human Rights p. 9
[7] International Federation for Human Rights p. 9
[8] Balasco p. 47
[9] L Moffett. Justice for victims before the International Criminal Court. London: Routledge, 2014, p.3
[10] Moffett, Justice for victims before the International Criminal Court, p.3
[11] I Agger, S Bisimwa, T Chy, K Gallagher, M Jobson, S Malik, C M Beristain, R Stein, and N Wühler. Independent Panel of Experts Report on Victim Participation at the International Criminal Court. p. 2
[12] Moffett, Justice for victims before the International Criminal Court, p.3
[13] Moffett, Justice for victims before the International Criminal Court, p.3
[14] Moffett, Justice for victims before the International Criminal Court, p.6
[15] Moffett, Justice for victims before the International Criminal Court, p.4
[16] Moffett, Justice for victims before the International Criminal Court, p.4
[17] Pena and Carayon p.21
[18] L Moffett, Elaborating Justice for Victims at the International Criminal Court: Beyond Rhetoric and The Hague. Journal of International Criminal Justice, vol. 13, 2015, p. 281
[19] M Burkhardt. Victim participation before the International Criminal Court. Diss. Humboldt-Universität zu Berlin, Juristische Fakultät, 2010, p. 2
[20] Burkhardt p. 2
[21] International Federation for Human Rights p. 12
[22] International Federation for Human Rights p. 12
[23] International Federation for Human Rights p. 12
[24] Agger p. 2
[25] International Federation for Human Rights p. 17
[26] International Federation for Human Rights p. 17
[27] S. S Cody, E Stover, M Balthazard, and a Koenig. The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court. UC Berkeley School of Law: Human Rights Center, 2015, p. 71
[28] Moffett. Justice for victims before the International Criminal Court, p.6
[29] Baumgartner E. Aspects of victim participation in the proceedings of the International Criminal Court. International Committee of Red Cross , p.431
[30] Moffett, Justice for victims before the International Criminal Court, p.7
[31] Cody et al. p. 72
[32] M Pena Victim participation at the International Criminal Court: achievements made and challenges lying ahead. Case Western Reserve Journal of International Law. vol. 44, no. 1, 2009, p. 475-494.
[33] Van den Wyngaert p. 484
[34] Van den Wyngaert p. 488
[35] Van den Wyngaert p.487
[36] Van den Wyngaert p.487
[37] Van den Wyngaert p. 487
