Week 4(i) - Victim Participation

Question 1

How may victims seek compensation in domestic systems? (2)

Answer 1

1) Common law: claim for compensation must be in separate civil process
2) civil law (FRA): compensation claim integrated as part of civil party action within criminal proceedings (partie civile)

Question 2

How do different philosophies put different actors at the centre of proceedings? (2)

Answer 2

1) Retributive and utilitarian: accused at centre

2) Restorative justice: victim at centre

Question 3

What role has victims played in ICL historically? (2)

Answer 3

1) IMT/IMTFE: no genuine procedural role for victims - sufficient that they could observe trial or participate as witnesses

2) ICTY/ICTR: no victim participation.
i) politically too difficult after Cold War
ii) witness evidence and spectation suffice
iii) common law influence where victims do not participate in criminal proceedings

Question 4

What are purposes of victim participation? (5)

Answer 4

1) Shift focus from retributive to restorative justice
- Response to Berkeley study showing very few people knew what ICTY was
- make victims subjects rather than objects of proceedings

2) create satisfaction, ownership and reconciliation amongst victims
3) legitimise criminal process (especially hybrid courts) (depends on local acceptance)
4) ensure truth is exposed
5) make visible to offender the suffering caused

Question 5

What is the role of victims before ICC? (3)

Answer 5

1) Art 68(3) Rome Statute
2) victims have a qualified right of participation
3) victims permitted to express views and concerns

Question 6

What are the requirements for a victim to participate? (7)

Answer 6

1) Art 68(3) Rome Statute
2) the individual is a ‘victim’
3) their ‘personal interests’ are affected
4) they can bring views and concerns (not evidence)
5) their participation is ‘appropriate’ at the relevant stage; AND
6) the manner of participation is not prejudicial to the rights of the accused or a fair trial
7) HOWEVER chamber hold discretion in how/when victims may exercise this right

Question 7

How has victim participation been done in ICL since ICC? (4)

Answer 7

1) Since 2002 the ICC victim participation approach has been followed by all other international or hybrid tribunals
2) EX: STL
3) ECCC
4) Kosovo Specialist Chambers

Question 8

How are victims represented before ICC? (3)

Answer 8

1) Represented by Legal Representative for Victims (LRV)
2) Representation permits for further modalities of participation (attendance, questioning witnesses/experts/accused) (r 91(3)(a) RPE)

3) Court can impose Common Legal Representative (CLR) to make cases more manageable (r 90(2) RPE)
- e.g. Bemba: 5000 victims represented by 1 CLR

Question 9

What tension of values arises with regards to legal representatives of victims (and generally) (2)

Answer 9

1) Giving victims genuine voice/representation

vs

2) having a manageable case

Question 10

What 2 sources must be consolidated in defining ‘victim’?

Answer 10

1) Rule 85(a) RPE

2) Lubanga 4-prong test

Question 11

How does r85 RPE define ‘victim’? (2)

Answer 11

1) natural persons who have suffered harm as result of the commission of any crime within court’s jurisdictoin
2) organisations and institutions having suffered harm to their property may also be victims

Question 12

How does Lubanga specify who is a victim? (4)

Answer 12

1) victim applicant must be natural person or organisation
2) crime committed must be within jurisdiction of court

3) victim must have suffered ‘personal harm’ (are you personally affected?)
- cf. direct/indirect victim categorization

4) harm must be result of crime indicted/prosecuted

Question 13

What are some modalities of victim participation? (8)

Answer 13

1) rr 91-93 RPE
2) attending hearings
3) oral submissions
4) questioning witnesses, experts and accused
5) making opening and closing statements
6) challenge admissibility of evidence (Lubanga)
7) Tender evidence pertaining to guilt/innocence (Lubanga)

–> 2 last: ICC goes further than RPE

Question 14

How may victims participate at the pre-trial stage at ICC? (2)

Answer 14

1) Art 15: when Prosecutor seeks PTC authorisation for proprio motu investigation, victims are asked whether they want investigation to go ahead and whether wish to participate
2) Art 18: victims’ views considered in deciding whether to defer investigation to domestic govt (PTC in AFG)

Question 15

What are stages in the proceedings where victims may be at risk of revictimization? (2)

Answer 15

1) Upon PTC-authorisation of proprio motu investigation: PTC may authorize only some of the indictments (meaning exclusion of certain victims)
2) Upon conviction: only certain indictments may lead to convictions and thus reparation

Question 16

How are victims in certain courts given greater powers than in ICC? (4)

Answer 16

1) EX: ECCC
2) partie civile can force certain acts of prosecutor (e.g. investigative steps)
3) inspired by FRA system
4) Cf. ICC: prosecutor not obliged to follow up on victims’ views

Question 17

How may victims participate during trial at ICC? (5)

Answer 17

1) Can intervene pretty much anywhere during trial but not rights on same level as parties
2) victims can share ‘views and concerns’
3) practice of judges has become open-minded and usually victims are heard
4) legal representative might ask victims to speak personally about e.g. consequences of crime or general context/culture
5) Victims may however not talk about the actual crime without also being witness

Question 18

How does the ICC ensure victims do not bring evidence but only express ‘views and concerns’ at trial stage? (5)

Answer 18

1) Lubanga
2) Victims may tender evidence and challenge admissibility of evidence BUT
3) only if “genuine contribution to the determination of truth” (Art 69(3) Rome Statute) AND
4) victim must show ‘personal interests’ affected by the specific proceedings
5) Thus distinction between evidence and ‘views and concerns’ is that the submission must be related to their immediate suffering

Question 19

How may victims participate at the end of/after trial? (6)

Answer 19

1) Art 75 Rome Statute
2) victims may request reparations
3) this is combination of civil and criminal process
4) Victims in a sense become ‘parties’ here as can appeal decisions as to reparations
5) reparations are paid by offender but may be advanced by Trust Fund for Victims (TFV) (funded by MS)
6) Cf. hybrid tribunals struggle to provide funding as not standing courts and thus lack of willingness to contribute

Question 20

What is the relationship between victims and witnesses before ICC? (3)

Answer 20

1) Victims: may bring views and concerns
2) witnesses may bring evidence
3) Dual status is permitted (Lubanga)

Question 21

What is the role of ICC as regarding victims? (3)

Answer 21

1) Moffett
2) whilst ICC often seen as “victims’ court” it should not be main forum for redress for victims
3) Primarily States must shoulder the burden of redress

Question 22

What values are victim participation at odds with? (3)

Answer 22

1) rights of the accused to fair trial (might influence the judges, and inequality of arms)
2) efficiency of proceedings
3) measures to ensure protection of victims