The Victims Lecture Question — Comments

Carla Ferstman’s Lecture on Victims

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Comment on the Victims Lecture Question: “Assuming that the ICC chooses to retain victim participation in its processes, how can victims’ representation at the ICC be improved and victims’ rights be protected?”

Assuming that a Court exists for alleged War crimes and Judicially real- Victims [MUST] exist. For victims to exist there [must] be a degree of participation. Victims do not have rights, victims having their rights violated when existing previously provides the Court with Jurisdiction and That Court with Authority within their administrations.

Victims right protection exists prior being violated [proven to not exist]. Example: Docket 16883, General list no. 143 Order of February 3rd, 1012....The courts erred fundamentally the ruling is flawed- Greeks, nor Italians presented at time of war and being occupied by Germany any guarantee while committing war crimes to have immunity whatever wrote. The jurisdiction Of the Italian Courts, German Courts, and Greek Courts do not exist at all material times to be effective at time the offenses are committed, Germany exercised Judicial discretion at all material times on all three lands and has Jurisdiction on all three lands when occupying the three territories in dispute during times Germany carried Judicial authority. the orders made by the independent Greek and Italian Court is an appeal process from Germany decision to commit war crimes and would be enforceable on Germany as well inclusive at times Germany decision is reviewed and appealed as an act of Legal Repair, Germany did not lose jurisdiction/responsibility solely as result of moving back to the lands originally seized on earth, and the Greeks with Italians had interventions for that too.

The victims are being forgotten, and the Courts are reading to much non existent material facts as if language changes. and words create facts as result of International as if Laws, being applied inconsistently and with prejudice excuses forming.

Vicitms are the source of the courts jurisdiction and authorities. even if scope of communication is limited with victims, the victims are real..the court exists from paper to exist. same as any state partie that formed the court. and are not victim.

Carla Ferstman made a valuable point in this week's talk about the fact that the victims of the human rights abuses caused by those on trial are not charity, but people with a worthwhile stake in the process who should be guaranteed a voice. The ICC was structured as a combination of a civil and criminal courts, and as such has a responsibility to involve the victims in a meaningful way.
The current protocol for victims is a lengthy and cumbersome application that further complicates an already complicated and lengthy trial process. I believe a valuable alternate to the current system is to use a group application, where victims would apply to testify in the court as a single entity- a village or group, for example-that share a common story. Either a spokesperson could speak for all of them or many could offer testimony. This would drastically decrease the more than 20,000 applications received by the court and help to solve the local intermediary issue of keeping victims informed, because there would only need to be communication between a leader and the ICC rather than many more individuals.
Some argue that the role for victims is not in this international arena, but rather domestic courts or tribunals where reparations can be distributed. However I believe that victims can and should play a powerful role at the ICC because their testimony brings a human face and reality to immense and abstract crimes. If the court can streamline and simplify the system over time, representation for victims will become an invaluable part of the process.

While I agree that a group application system could be a valuable alternative, the ICC would need to be extremely cautious about the implementation of such a system. As Carla discussed in the lecture, victims of the crimes prosecuted in the ICC can have myriad different grievances and goals for submitting such an application. Some may simply desire the public acknowledgement of and/or apology for the crimes, while others may have the orthogonal desire to participate actively in the court proceedings and make sure their grievances are duly taken into account by members of the court.

It's not even entirely obvious that the current system should be abandoned, despite the large amount of resources and time it requires, if allows for a more sufficient representation of each individual victim than a group system would. Having a single leader for an entire group runs the risk of having the group represented by its most outspoken member, not necessarily the member that best represents the group's interestes as a whole. Especially in an unsupervised setting, this could lead to situations wherein group members are coerced or even threatened to comply with the leader's message.

Overall, it seems that if the system could be implemented in such a way that these potential problems are addressed then it could significantly increase the ICC's efficiency, but otherwise it may be necessary to have retain the current process or a similar variant in order to fully represent victims' needs.

I agree with kbeckett's comment that the court can "streamline and simplify" the process of including victim testimonies over time. As we learn more about what is and is not effective and representative, the system would hopefully adjusted accordingly and become more sophisticated. Carla Ferstman's talk leaves me with two pressing themes: 1) the exact courtroom legal proceedings and application processes to enable victim representation and 2) the benefit to the victim of being involved in the judicial process. Because I have not yet studied law and can not speak to the nuanced legal mechanisms to include victims in trial process, I would like to explore the second theme. I really liked the Dr. Stacy's questions on retraumatization and whether or not it is even worth making a victim relive the pain and trauma when material reparations are not even guaranteed?

I definitely do feel that the process of victim inclusion pushes the law beyond being law for the sake of law and becoming law for the sake of justice. I also agree with Carla Ferstman's take that there is a symbolic utility to having one's voice heard in the court of justice. However, I would argue that the benefit is not just symbolic but psychological because one of the main sites of trauma and pain is the psyche (or mind or brain? whichever makes more sense to you depending on your leaning). Significant neuroscientific and psychological research goes to show how sometimes for victims, even if they do not receive material reparations, the process of venting in a public forum does have an impact. This is because, due to the trauma they have undergone, their sense of fending for themselves in the past and present is greatly diminished as is their sense of reward and punishment. And, in this situation, the best thing for their neurological well-being and psychological recovery is often the process of speaking about the incident. This is a very crude distillation of the materials that I have read but many articles can be found online and in libraries.

That said, retraumatization is also a veritable psychological process that needs to be addressed and so, I would like to return to Dr. Stacy's question. In addition to retraumatization, I would also say that sometimes, especially in the case of a rape victim hailing from a , the cost of victim testimony can go far beyond retraumatization. This can have implications for the victims re-integration into society and her future. I would not do away with victim inclusion altogether. Rather, I would like to ask, how do we improve the existing mechanisms to tackles such issues? Because of these concerns of retraumatization and th costs to the victim of victim participation outweighing the benefits, I strongly feel that every legal team that deals with victims should be comprised not only of lawyers but also psychologists, neuroscientists and humanities/social sciences/academics of some sort (anthropologists, historians, scholars of religion etc). This would standardize the process a little bit more even though each and every case would be dealt with on its own terms as the team of academics would be working to highlight those case-by-case specificities that may positively or negatively impact the victim testimony process. The relationship between this legal team and victims would be one shaped by both parties doing fact-findings, the former understanding the latter's experience and the latter enhancing their knowledge of their civil rights in the legal courts. Hence, the essential lynchpin of this is knowledge all-around, knowledge for and by the "givers" of justice and knowledge for and by the "recipients." In an ideal world, this process of knowledge would collapse the giver-recipient boundaries. It would 1) align the interests between the victims and legal team experts as lawyers since the legal team would be so deeply relating to the victims and 2) make victims feel like informed and included participants of legal processes. Of course, I am theorizing and, for this kind of a legal team, there is a need for greater personnel and funding (the problems of realpolitik).

As to the first part of the question (improving representation), the ICC should streamline and simplify its cumbersome application process. I was intrigued by Ferstman’s discussion of a two-tiered process in which victims could register their interest as a group and then make an application to present individual concerns as relevant to the case. The difficulty with this approach is that it would require the victims to be informed of court proceedings. While this would be challenging, I think it should be a priority of the court regardless. Although it may be good in its own right to have trials, the impact of the ICC will not be as large if people (especially in the country of the mass atrocities) are not aware of what is happening. As such, keeping local populations informed, and especially victims, should be focused on.

As to the second part (protecting victims’ rights), since I am unsure of what are the written standards and protocols for questioning victims, it is hard to make specific recommendations. What I will say is that I see the goal of victim participation as benefitting the victim and legal proceeding. It is a chance for victims to be visible, share their story, and assert their agency in achieving justice after living through a situation which denied them their rights. It is also a chance for the court to document what happened for the historical record and to put a human face to these crimes. When discussing mass atrocities, they are defined in part by the large number of victims. And when discussing such high volume of crimes and violence, it is easy to be removed and to ignore the individual experiences of those who have suffered and survived. Victim participation is one way to bring that personal experience to the court and hopefully impact how reparations are made. The problem arises when victims are treated as just another piece of evidence, as Ferstman described, and not as survivors of horrible atrocities who risk re-traumatization (i.e. victim participation is just to benefit the legal proceeding and not the victims themselves). So to protect their rights, victims need advocates, access to psychological resources, and confidentiality. Those questioning and interacting with victims need to be held to high standards and make efforts to be sensitive to victims’ needs, limiting themselves to relevant questions and details without causing undue harm, and avoid victim-blaming language (especially in cases of sexual violence).

According to Ms. Ferstman, there are mixed opinions about the participation (the ability of those who suffered harm as a result of the accused's crime(s) to present "views and concerns") of victims in ICC processes. On one hand, victims can be a valuable asset to the prosecution, add a humanizing effect to the case, and in some ways provide a manner of closure for themselves and other victims who seek personal justice.

On the other hand, victim participation can also be detrimental to court processes. For example, the ICC received 20,000 applications from victims who wish to participate, which take enormous amounts of time and money to evaluate. The court process itself is emotionally taxing on victims, and there have been many instances (such as the two mentioned by Ms. Ferstman in her lecture) where the rights of victims have been abused. Back in the regions from where victims are recruited, grassroots organizations are necessary intermediaries to assist potential candidates with applications. In addition, these organizations rely on expensive security from groups and individuals who may wish to violently avenge the accused.

Thus, when it comes to the participation of victims in ICC proceedings, one must consider whether a system can be arranged in which the benefits of victim participation outweigh the costs.

I believe that such a system that allows for participation is not only possible but crucial to the ICC. Laws, especially international laws, are created not just on political basis but on moral standards as well, that not only state sovereignty but human rights must be protected. Victims are an important element of any ICC prosecution, because they present a unique perspective of the human toll of the accused's actions. And if a goal of the ICC is to increase the protection of international human rights, then rights of victims must be a priority within court proceedings.

The protection of these rights can best be protected by improved communication and relationships between lawyers and the victims that they represent. Lawyers will gain access to a deeper, more detailed understanding of the victims' experiences, which will improve their cases.

The inclusion of victims in ICC proceedings and the protection of victims' rights are costly but indispensable to the success and legitimacy of the ICC in years to come.

First off, I would like to say that it is vital to global justice that victim's continue to participate in ICC. Seeking justice for such heinous crimes without amplifying the voice of victims is not right.
The most sensible solution to the issue of victim representation is the two level participation Ms. Ferstman discussed in her lecture; people who just want a voice can do so without getting incredibly involved and going through miles of paper work while people who want to get as involved as they can also have the opportunity to do so.
I also think Ms. Ferstman's point about a collective voice is also important. There would be an incredibly strong impact if a few people could some how be elected to represent the voice of the victims in the court.
If people could voice the wrongdoings committed against them on any level of involvement they see fit as well as select a local government official, a peer, etc to represent them in the ICC trial itself, I see the future of victim representation becoming less of a burden on the ICC and the victims as well as giving the victims a stronger voice.

First, let me say how refreshing it was to hear a perspective that centered on the rights and needs of the victims of these heinous crimes. The second line of the preamble to the Rome Statute states that signatories are "Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity" yet until now we have not really considered their position. I believe it is absolutely critical that the ICC retains -- and improves -- victim participation. Perhaps one way to do this is to take better advantage of available technologies to broadcast hearings and allow the citizens of places where mass atrocities have occurred to participate virtually. Though costly, I imagine this would be more economical than flying dozens of people to the Hague. As Ms. Ferstman mentioned, it is important for victims to feel their voice has been heard and their position considered. This notion was explored by some civic groups who hosted a mock international tribunal to determine suitable punishment for Japanese soldiers who had sex with comfort women during World War II. For the women, it was said to be extremely cathartic, even though they knew it was not a real or binding judicial process. That said, I think victim participation is key. I also liked Ms. Ferstman's suggestion of a two-tier application process in the hopes of effectively dealing with the increases number of petitions and allowing for division of individual and group complaints. This is a big challenge now to the European Court, which has been its applications rise more than 10 fold in recent years.

Carla Ferstman offered a refreshingly different perspective on the ICC - I appreciated her focus on the victims of the crimes rather than emphasizing the politics behind the court. Yes, the politics are important because they shaped the character and role of the ICC, but if the court's ultimate purpose is to rectify horrendous crimes such as genocide and crimes against humanity, then it is of crucial importance to include those who fell victim to the crimes in the process.
The politics of the ICC often constrain the courts focus on the victims. This probably has to do with the fact that previous courts, such as the tribunals created for Rwanda and Yugoslavia, did not have a strong or independent role for victims. In a court that clearly emphasizes human rights, however, it is of crucial importance for both legitimacy and proper functioning that the court adhere to each victim's right to have their voice heard.
The current process of involving victims in the trials is confusing. If the victims are going to be able to play a role in the trials, a new system needs to be implemented to sort through the thousands of victims and support them in their efforts to support the ICC's trials. Both the geographic separation of the crimes and the court and the large number of victims at hand does makes Involving victims messy and expensive. Their participation, however, is crucial and should enable the ICC to yield more successful convictions because of the additional evidence these individuals will bring to the table. The organization of the victims in the trials is also important. Victims should be grouped according to their opinions and the key points they want to leave with the court. Then, individuals should be chosen to represent each segment with the group's support. I believe the two tiered system, with both general and individual concerns, is the best way to hear each side of the story without overwhelming the court with multiple speakers for each point. The ICC's identification and support of the victims will begin their process of coming to terms with the crimes that have been committed against them and moving forward as an international legal body acknowledges their status as victims and displays a willingness to hear their stories.

Carla Ferstman made some excellent arguments in this discussion of victims' rights. Criminal law, with its punitive nature, is perhaps not the best instrument to achieve justice for many of these victims. The ICC and other international courts have been focused on ending impunity and invoking responsibility, which unfortunately has overshadowed the efforts for victims to gain a sense of closure about the horrors they endured.

The international tribunals have demonstrated a commitment to learning from mistakes made in the treatment of victims, gradually paving the way for criminal proceedings to be more accessible for victims. Judging from these prior examples, it is certainly very possible the ICC can incorporate victims' rights further as well. For example, the ICTY created the procedural Rule 96 to prevent certain types of intimidation, further trauma and stigmatization for survivors of sexual violence. Among its contributions, it lowered of evidentiary standards in sexual violence cases, as corroboration of a victim’s testimony was not always possible, barred evidence of a victim’s prior sexual conduct and explored the coercive nature of "consent" in a conflict situation. These were incredibly important advancements in victims' rights, found even in one of the earliest incarnations of international criminal justice.

Alternative mechanisms, such as Truth and Reconciliation Commissions, have brought a greater focus on the collective suffering rather than than the individual perpetrators, but these instruments have a very different mandate than the ICC. However, this is not to say that victims cannot be further included in criminal proceedings. Though some would argue that the ICC is not the appropriate forum to consider these issues, I think it is very important that victims are further included and integrated into the proceedings. One important remedy to the overwhelming increase in applications is better streamlining of the process (such as allowing collective applications), but also to significantly improve outreach. With the court being so far away from the victims, it is hard for them to feel connected to the process. Even though it is impractical for all these victims to be directly at the court, I believe it would make a huge difference if they were more informed and aware of the procedures. Victims deserve their day in court, so to say, and it is not unfeasible that we can provide this for them. Certainly this presents less political issues than some of the other problems that we have discussed in this lecture series.

While I personally believe that victims should be heard in the ICC, I question how necessary their participation is to a conviction. As we've discussed, many of those indicted are not necessarily the one's with blood physically on their hands, but the ones responsible for the perpetuation of these crimes. Additionally, although limited, my understanding of ICC proceedings leads me to believe that victims' testimonies provide a human face and real depth and understanding of the horror of what happened to the court, but are not the lynch pin to deciding the case nor even does their testimony provide the necessary evidence make the conviction. As has been mentioned, going through over 20,000 applications from victims to testify at the ICC is costly both with time and with money. If efficiency of the ICC is one of the overarching themes of these discussions, maybe victims' testimonies are actually a hindrance to efficiency.

However, the current question is not addressing this. If victims' representations is continued, it is necessary to improve representation and to better protect victims' rights. Both of these prove to be challenging endeavors. Group representation is a very viable way to ensure more are represented at the ICC and I believe this is a method that should be further pursued and encouraged. However, I do not believe that this should be the sole manner for representation. Individuals should still maintain the right to apply to testify and share their own personal experience.
My concern lies more with treatment of victims, a branch of protecting their rights. Carla Ferstman shared stories of horribly insensitive instances and instances that put the victims in uncomfortable and traumatizing situations in the ICC that never should have occurred. To be honest, I believe these instances were more than just natural human oversight. Putting a child in open view of the man for whom he committed unthinkable acts clearly will be traumatizing for the child. It is absolutely absurd that this would happen within an institution that is supposed to be seeking justice for these victims. Whether it be via sensitivity training or strict monitoring by someone well trained with victims’ rights and needs of the proceedings, ICC proceedings should be a place for the victim to regain some sense of power and strength, not to traumatize them.

This was definitely one of the guest lectures that I enjoyed the most. Carla Ferstman did a great job advocating for a clearer role and better protection of victims involved in the ICC's hearings. I do agree that the utmost care must be taken to ensure that victims who testify or participate in any other way should not be forced to unnecessarily relive the pain or trauma that they originally suffered. I also agree that victims deserve some type of representation in the courts. I don't however, agree with the notion that it is the ICC's job to deliberate sentencing based on victims' testimonies or to identify/design punishments that "best protect the victims' rights." I think this can be a very hairy matter. Throughout the series we have debated the different needs of specific victim groups and touted the idea that "no two victims are the same." Given the already demanding and serious responsibilities of the court and given the fact that the ICC has yet to prove it can fulfill these primary obligations in an efficient and time-effective matter, I do not believe the ICC should take on any responsibilities to promote victims' rights via sentencing. It is not a core competency of the court. The ICC should use victims' testimonies for one objective - to prove guilt or innocence. After that, the court should step aside and allow some other institution or organization to deliberate the ways to best represent victims while protecting their rights and providing adequate reparations.

The protection of victim's rights may be improved by actually knowing the background of the victim and what will actually help them. This will ensure that testimony goes as well as possible. For example, with the child soldiers testifying against the African troop leader. Knowing the background of the child soldier and the experiences of being in a group like that may have allowed them to predict the very negative reaction of the child soldier to seeing the old leader again by having the screen between them at first. Increasing the risk of retraumatization of the victim wold definitely violate their rights. So some kind of training or foresight with regard to this is essential.
Once we've begun to tackle this issue, and don't actively bring back the trauma or cause problems for the victim's reintegration into the society as in the case of some rape victims, then we should focus more on the victim's participation in the actual proceedings of the case. In regard to this, I think the point of victim's hearings in a criminal trial is to have a victim get acknowledgement for their condition. So, we may consider things like having trials in the victim's country and actually letting the people of that country know that there is, in fact, a trial. This would enforce the idea that the ICC is a source of Justice for people and not just an arbitrary punishment force after e fact. The human element is essential in showing that the Court is aiming for justice rather than for punishment.

The speaker talked at length regarding the different ways of including victims in the court proceedings and finding new ways to engage victims into the the ICC process. However, I am wondering whether or not this holds any psychological effects. If a case failed in the ICC (for whatever reason), would this be setback to the victims that are participating in the case? Would victims be psychologically harmed if they were to participate in a court proceeding, and then ultimately, have the case fail for some reason like insufficient evidence? I think that there definitely needs to be more victim participation in the court process and brainstorming new strategies, but I'm wondering as to the psychological effects it would inflict on victims to have to retell their stories and viewpoints or as to whether there are repercussions in the location in which they're from (i.e. victim blaming in their home community).