Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge
Van den Wyngaert, Christine, Case Western Reserve Journal of International Law
I. INTRODUCTION II. VICTIMS AT THE ICC A. Victim Status in General B. Victims' Participation in Proceedings C. What Participatory Rights do Victims Have ? D. Reparations III. SOME VIEWS AND CONCERNS A. Victims and the Truth Finding Process B. Victims and the Rights of the Accused C. Is the Participatory Regime Meaningful for Victims? D. How Meaningful Can Reparations Be ? E. Equal Access to Justice? F. Is the System Sustainable? IV. FINAL OBSERVATIONS
For much of my career as an academic, international criminal justice was a faraway dream. Like most scholars of my generation, I never expected to see international criminal courts emerge in my own lifetime. And then, all of a sudden, they were there: first the ad hoc tribunals, now the International Criminal Court (ICC). And to make it even more exciting, I have had the privilege of serving first at the International Criminal Tribunal for the former Yugoslavia (ICTY) for nearly six years and now at the ICC since 2009. These years have been the most rewarding years in my professional life. It has been a thrilling experience to have belonged to panels of judges who made defining decisions in the field of international criminal law. This was true at the ICTY, and perhaps even more so at the ICC, which, despite the entry into force of the Statute almost ten years ago, is still a fledgling court facing challenges that are multiple and immense. One of those challenges is the role of victims before the Court, which I believe to be one of the most important ones for the years to come. The victims' participation regime at the ICC has indeed been hailed as one of the major achievements of modern day international criminal justice. (1) But it is also only one of the more controversial aspects of the ICC Statute, and it is for this reason that I have chosen it as a topic for this lecture. It is a good moment in time, as the first two trials before the ICC have almost run their course, which allows for a preliminary assessment of how the regime has been implemented in practice. It also allows for a comparison between the objectives of the designers of the victims' participation regime and the results achieved in practice.
The ICC is said to have marked the shift away from a retributive judicial system to a more restorative, justice-oriented model. (2) Victims did not participate at Nuremberg, nor did they at the two ad hoc Tribunals of the U.N. created in the early 1990s. (3) In fact, the ICC regime for victims can, in part, be traced back to the dissatisfaction, at least in some quarters, over the ICTY system, which does not allow participation of or reparations for victims of serious human rights abuses. (4) Critics of the ICTY system blamed it for failing to sufficiently account for the interests of the victims. (5) Victims testifying at the ICTY, very far away from their homes and from the places where the crimes were committed, were often traumatised by the experience. The French ICTY judge, Claude Jorda, complained that victims were "reduced" to instrumentalised witnesses. (6) Civil lawyers had problems with the fact that victims testifying for the prosecution were subjected to the often painful cross-examination process by the defence. Much of this was captured in the phrase "secondary victimization," meaning that victims of atrocity crimes were victimised for a second time as a result of a judicial process in which they could not fully participate. (7)
Looking at this from my own experience as an ICTY judge, I understand these criticisms, but I am not sure they are well founded. I saw many courageous victims who were very keen to come and testify and tell their stories. The cross-examination process, although difficult at times, was practiced with restraint and caution by counsel appearing before the tribunal and, if necessary, was controlled by presiding judges. The system had its shortcomings, but whether victims' participation in criminal proceedings was an appropriate remedy against secondary victimisation remains to be seen. …