Abstract

The participation of victims in proceedings before the International Criminal Court (hereafter, ‘ICC’ or ‘the Court’) constitutes a unique phenomenon in the still expanding spectrum of judicial solutions to international crime. ² 1

Programme Manager, International Bar Association (IBA) ICC Programme The views expressed herein are those of the author and not the IBA. The author is grateful for the extensive research assistance provided by Rens van der Werf and Maria Radziejowska for this chapter

2

The victims’ rights provisions in the ICC legal texts were influenced by the UN GA, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc A/RES/40/34 (29 November 1985) which acknowledged the harm suffered by millions of victims around the world and the necessity of adopting national and international measures to secure the universal and effective respect for their rights.

Considered one of the major innovations of the Rome Statute, the role and rights ascribed to victims in the ICC’s normative texts was a belated attempt to remedy a perceived lacuna at the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) where victims were treated as mere passive objects within an adversarial judicial context in which prosecution interests and defence rights were considered top priority. ³ 3

See D Donat-Cattin, ‘Article 68: Protection of Victims and Witnesses and their Participation in the Proceedings’ in O Triffterer (ed) Commentary on the Rome Statute of the International Court (2nd edn Beck/Hart/Nomos, Berlin 2008) 1277–1278. For an interesting perspective on whether victims experienced secondary traumatisation at the ad hoc Tribunals (that is, whether victims were retraumatised for a second time because of their involvement in a judicial process in which they could not actively participate) see C van den Wyngaert, ‘Victims before International Criminal Courts, Some Views and Concerns of an ICC Trial Judge’, Lecture delivered to Case Western Reserve University, 21 November 2011, http://law.case.edu/journals/JIL/Documents/(22)%20Van%20den%20Wyngaert_Darby.pdf (last accessed January 18, 2013).

Criticised for their failure to adopt an inclusive approach to victims and to restore peace in post-conflict societies, ⁴ 4

See Donat-Cattin (n 3) 1277–1278.

the shortcomings of the ad hoc Tribunals catalysed a powerful international movement led by civil society, ⁵ 5

M Glasius, ‘How Activists Shaped the Court’, Crimes of War Project (December 2003) <http://web.archive.org/web/20081205072708/http://www.crimesofwar.org/print/icc/icc-glasius-print.html> last accessed 2 January 2012.

to ensure that victims’ right to participate and receive reparations would be firmly entrenched in the ICC Statute.