Academic journal article Australian International Law Journal

Victim Participation at the International Criminal Court

Academic journal article Australian International Law Journal

Victim Participation at the International Criminal Court

Article excerpt

Abstract

This article discusses the system of victim participation established by the Rome Statute, the accompanying regulatory materials, and the judicial pronouncements of the International Criminal Court. It focuses primarily on the recent decisions of the Trial Chamber and the Appeals Chamber in the Lubanga case, which established broad parameters for victim participation. In examining the contentious issues addressed in those decisions, two themes emerge: first, the importance of shifting victims away from their previous position as 'passive objects' of international criminal law to a more active engagement in the process; and second, the necessity of ensuring a fair and efficient trial. This analysis sets out recommendations designed to reconcile these sometimes countervailing demands. The purpose of the analysis and recommendations is to encourage victim participation, while at the same time ensuring efficient and manageable trials that uphold the fundamental rights of the accused.

Introduction

One of the most progressive facets of the system established under the Rome Statute of the International Criminal Court ('Rome Statute') (1) is the involvement of victims. This involvement takes the form of participation in legal proceedings and compensation through the Trust Fund for Victims. Such provision goes far beyond the provision made for victims in proceedings before the Tribunals for the former Yugoslavia ('ICTY') and Rwanda ('ICTR'). (2) Nevertheless, the drafters of the Rome Statute were justifiably concerned to avoid jeopardising the fair trial rights of the defence or impeding the conduct of efficient proceedings. (3) Consequently, the International Criminal Court ('ICC') judiciary must trace a careful path in order to facilitate victims' participation in trials, while at the same time ensuring fair and efficient proceedings to determine culpability for genocide, war crimes, and crimes against humanity, and, at some point after 1 January 2017, aggression.

Although long-established in civil jurisdictions, the active participatory role of victims in trials before the ICC is unprecedented in international criminal law. Unsurprisingly, it provokes a raft of questions. This article addresses two of the most important issues: first, the definition of victims eligible to participate in trials; and second, the manner and extent to which victims should be allowed to participate in trials. Recent decisions of Trial Chamber 1 and the Appeals Chamber in the Lubanga case have clarified the Court's approach to the quandary facing chambers seeking to deliver on the promise of victim participation signalled in the Rome Statute. (4) This article sets out the relevant regulatory framework governing victim participation at the ICC, the approach taken by the Trial Chamber and the Appeals Chamber in Lubanga, and the resulting legal position facing victims wishing to participate in trials at the ICC. (5) During the discussion, a number of recommendations are suggested for the meaningful realisation of victim participation in ICC proceedings without compromising the Court's primary function of investigating and prosecuting the most serious crimes known to the international community through fair and proper judicial processes.

I. The regulatory framework and prior decisions of the ICC

The Statute that finally emerged from the Rome Conference for the ICC (the Rome Statute), and the Rules of Procedure and Evidence ('ICC Rules'), (6) set forth a number of provisions referring to aspects of victim participation in the Court's processes. (7) However, these instruments do not contain an exhaustive codification of the modalities of victim participation. Consequently, judges have had to fill the lacunae, using the following provisions as a basis.

Central to the regime regulating victims' participation in proceedings before the ICC is article 68(3) of the Rome Statute. The parameters of article 68(3) are somewhat vague, simply stating that if the personal interests of victims are affected, the Court shall allow them to express their views at a stage of the proceedings that it considers appropriate. …

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