Victim Rights and Participation in ICC Proceedings and in Emerging Customary International Law
To date, the judges of the ICC have narrowly interpreted the court’s statute and have yet to provide victims with the full panoply of rights and remedies as defined by the 2005 Basic Principles.
The notion that human beings are entitled, as a matter of right, to an effective remedy for human rights violations has a turbulent and incomplete history in the international arena. The idea itself dates back to the Universal Declaration of Human Rights of 1948, which declared that victims should have an effective remedy for violations of fundamental rights. The form of that remedy has remained a source of disagreement, especially with regards to whether states and state actors are subject to criminal jurisdiction for human rights violations, and to the form of victim participation in criminal proceedings.
Since 1985 there have been three distinct attempts to articulate victims’ rights. The first of the three is the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Unfortunately the Declaration that was ultimately adopted, unlike the original draft, lacked expansive provisions for state accountability, especially for civilian superiors and was limited in scope to domestic proceedings. In 1998 the international community returned to this issue as part of the Statute of the International Criminal Court and its 2002 Rules of Procedure and Evidence (“RPE”), which explicitly recognized individual criminal accountability and rejected head of state and other immunities. Finally, the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“2005 Basic Principles”) provided expansive rights to victims for participation and remedy, which the ICC Statute and RPE did not.
However, the approaches adopted by the ICC and the 2005 Basic Principles are not uniform and express a divergence in philosophies between the common law approach of the ICC and the civilist approach of the 2005 Basic Principles. While the ICC provides for the participation of victims in proceedings, their place in the system is limited by three factors. First, prosecutorial considerations often narrow charges to specific crime scenes or incidents, thereby limiting the right of other actual victims to participate, which is especially troubling where the prosecution’s facts are narrowed at a later stage, effectively denying the participation and status of victims who had been previously recognized as such. Second, the ICC’s Statute and RPE, as interpreted by the court’s judges, do not provide universal participatory rights for victims, so that their participation is not assured, for instance on appeal. Finally, it is not yet clear how much latitude victims have in presenting evidence that is not part of the prosecution’s case.
These limitations at the ICC are incompatible with the 2005 Basic Principles, whose underlying premise is that victims cannot be denied a legitimate cause of action or the right to participate fully in proceedings which directly affect them. To date, the judges of the ICC have narrowly interpreted the court’s statute and have yet to provide victims with the full panoply of rights and remedies as defined by the 2005 Basic Principles. While the 2005 Basic Principles are undoubtedly “soft law,” they will hopefully become binding custom and provide guidance for the reformation of the ICC’s unsatisfactory approach. There is clearly a progression in the rights of victims at the ICC when compared to the 1985 Declaration and what came before, but the process is still ongoing and as yet incomplete, and the ICC will likely revisit the question in the years to come.
The Universal Declaration of Human Rights of 1948 states that, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”1 But it was not until 1985 that the United Nations addressed the question of victims’ rights when the Seventh United Nations Congress on Crime Prevention and Criminal Justice (“Congress”) adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (“Declaration”).2 The draft text, which was prepared by a committee of experts who convened in Ottawa, Canada in 1984 and subsequently submitted to the Congress, was far more extensive than the text that was eventually adopted in 1985.3 This is particularly so with respect to the right of redress for victims of states’ abuse of power.4 That section of the Declaration, whose draft text was two pages long, was reduced to an innocuous paragraph while the rest of the text dealt with victims of crime committed by individuals.
The catalyst for the UN’s effort to adopt a resolution concerning victims was a 1984 industrial disaster in the town of Bhopal, India, which caused the release of toxic chemicals resulting in the death and illness of thousands of persons.5 The deadly spill was due in large part to the state’s failure to protect its citizens from industrial malfeasance and misfeasance.6 The first issue confronting the 1984 delegates was whether states could be held civilly or criminally accountable, or both, for their failure to provide adequate oversight over private sector entities engaging in inherently dangerous activities. The second question was whether a state’s failure to oversee private sector entities placed them de facto beyond the reach of the law. The third question was whether state-actors and corporate decision makers can be de facto beyond the reach of the law when the outcomes of their conduct, by commission or omission, constitutes an international crime.
Establishing rights of redress for victims of states’ crimes was not something the international community was willing to accept in 1985, even though many states provide for administrative and civil accountability for injuries to victims in their national legislations. But states maintain barriers against criminal responsibility for state actors, particularly for civilian superior responsibility.
The Declaration provides for a victim’s right to participate in criminal proceedings, a provision that is mirrored in Rule 85 of the ICC Statute. Both the Declaration and the ICC Statute apply only to crimes committed by individuals, not by States themselves. There is not a single international instrument which extends criminal responsibility to states even for genocide7 and crimes against humanity.8 These issues and others concerning victims’ substantive and procedural rights for international crimes are pertinent to ICC state parties whenever they exercise domestic jurisdiction under the Article 17(1) of the statute pursuant to the principle of complementarity.9
It was not until 1998, following the adoption of the ICC Statute by the Rome Diplomatic Conference, July 17, 1998 that the question of victim’s rights took on a new life. Individual international criminal responsibility was the gravamen of the ICC’s jurisdiction.10 Head of State and other immunities were removed in Article 27 and superior responsibility was clearly established.11 The principal goal of the elimination of immunities and the application of superior responsibility was to provide deterrence and thereby to achieve prevention. These are the same goals reflected in the legislative policy underlying domestic criminal laws of most legal systems. The theory of general deterrence, however, is based on the effectiveness and relative certainty of retributive sanction attaching to the consequences of the criminal violation. Retribution in some legal systems goes back to Talmudic Talion Law (with its famous codification of an “eye for an eye”) which was designed to provide “justice” or, more appropriately, satisfaction to the victims.12 This is the reason for the inclusion in the Rome Statute of article 68(3), which provides for victims’ recovery. Subsequently, as stated above, the Rules of Procedure and Evidence adopted in 2000 provide, in Rule 85, for victim’s participation in the proceedings.13
The ICC Statute, having taken this unprecedented position, spurred the efforts undertaken by the United Nations Commission on Human Rights which resulted in the 2005 Basic Principles .14 Unlike the 1985 Declaration, which focused on domestic crime, the 2005 Basic Principles focused on gross violations of international human rights law and serious violations of international humanitarian law, thus complementing the ICC’s provision for victim compensation and participation in criminal proceedings.15
Unlike the ICC’s Article 68, the 2005 Basic Principles provide for a number of different remedies for victims of the crimes within the scope of international human rights law and serious violations of international humanitarian law. They are: a) restitution, or the “restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property”; b) compensation “for any economically assessable damage” including for physical or mental harm, lost employment, education or social opportunities, material damages and loss of income, moral damage, and the cost of any medical, psychological, legal or social services costs incurred; c) rehabilitation, or the provision of medical, psychological, legal or social services; d) satisfaction, or the implementation of measures to prevent future violations, the verification and public disclosure of facts related to the violation, a declaration from a judicial body recognizing the harm done to the victim thereby restoring the victim’s dignity and reputation, a public apology, the imposition of sanctions against the perpetrator(s), commemorations, and the inclusion of the incident in educational materials; and e) guarantees of non-repetition, including military, police and judicial reform as well as the protection of human rights defenders, the provision of continuing education to the military, police and judiciary, monitoring for human rights violations and reforming problematic laws.16
Under Rule 85 of the ICC’s Rules of Procedure and Evidence, victims have the right to participate in ICC proceedings with respect to crimes within the jurisdiction of the court, which as of now are defined in articles 6, 7, and 8—respectively “genocide”, “crimes against humanity”, and “war crimes”—and after its possible entry into effect in 2017, the crime of “aggression”.17 Violations giving rise to victims’ rights and participation under the ICC regime are more limited than under the 2005 Basic Principles, as are the remedies afforded. Under the ICC’s Rules, these remedies are limited to restitution, compensation and rehabilitation,18 and do not extend to other forms of redress for victims contained in the 2005 Basic Principles, as described above. It should also be noted that neither the Statute adopted in 1998 nor the Rules adopted in 2002 define compensation or rehabilitation. Under the provisions in the ICC Statute for the ICC’s Trust Fund,19 individual claims for reparations shall be made directly against the convicted person, which limits the exposure of States and also potentially the level of the reparation.
While the 2005 Basic Principles are still deemed “soft law”, they provide for broader rights and remedies, they do not limit the victims’ competent forum,20 and they do not limit the category of victims to those who are directly encompassed within the facts described in the indictment. More importantly, the ICC victims’ substantive and procedural rights are not applicable to state parties who elect to exercise their domestic jurisdictional under the complementarity provision of the ICC Statute by prosecuting the accused in domestic fora (Article 17). How victims’ rights can be reconciled under these two instruments, if and when the 2005 Basic Principles become in whole or in part customary international law, is still off the radar screen of scholars and experts of victims’ rights.
Under the ICC scheme, the determination of a victim’s status depends first upon the prosecutor’s selection of the incriminating facts and second upon the Pre-Trial Chamber’s confirmation of the Indictment. Although the prosecutor’s reasons may be objective and not discriminatory, they are nonetheless informed by prosecutorial policy which may narrow the charges against the accused to ensure successful prosecution.21 The narrowing of the charges for such purposes necessarily means narrowing the facts and focusing on a specific time and place on which the charges are based. As a result of such a narrowing, the category or group of court recognized victims becomes narrower and unjustly excludes those individuals whose victimization was not a part of the facts referred to in the indictment. Ultimately, this outcome arbitrarily distinguishes between victims on the basis of prosecutorial considerations, which are unrelated to the factual victimization caused by the total conduct of the perpetrator. It is obvious that this goes against the purpose and spirit of the ICC Statute. This approach also goes against the 2005 Basic Principles, whose focus was on defining categories of violations for which victims could obtain redress in a variety of forms, irrespective of the facts specified in the indictment.
The 2005 Basic Principles are more openly inclined towards the Romanist-Civilist (“civilist”) legal scheme of the “partie civile,” than the ICC Statute, whose procedures are strongly influenced by the adversary-accusatorial approach which is characteristic of the common law systems.22 The unarticulated premises of the 2005 Basic Principles is that no victim should be excluded before a forum and victims who have the right to a cause of action should be able to participate in the criminal proceedings without exclusion by the prosecution for whatever reason.
Victims in “partie civile” legal systems participate in the proceedings through their counsels who have the right to present or question evidence. The reason for such a prominent role of the “partie civile” in criminal prosecutions is that in those civilist systems the facts as determined in the criminal proceedings are binding on the subsequent civil proceedings. In other words, if there is no independent civil action for damages in respect to crimes for which prosecutions have taken place, then the victim has to establish the facts in the course of the criminal proceedings. The victim can either establish damages in the criminal proceeding or elect to have a subsequent civil action that establishes only damages. Judges in the proceedings can also remand the ascertainment of the quantum of damages to subsequent civil proceedings if that question excessively encumbers the criminal proceedings. If damages are established in the course of the criminal proceedings, the defendant is sentenced to pay the victim such damages. This is unlike common law systems where civil proceedings establish both liability and damages.
There are of course variations in civilist legal systems some of which allow greater latitude for the defense in the role of a “partie civile” while others are more restrictive in order to give the prosecution more leeway. In the latter cases the victims are allowed greater procedural latitude in bringing independent civil actions for damages in which they may or may not be bound by the facts as established in the criminal proceedings.23
The ICC Statute reveals the ambivalence that exists in its efforts to reconcile the differences between the common law and civilist approaches as to the rights and roles of victims before the court. This is evident in the contentious ICC pre-trial proceedings as to who the class of victims include, particularly before and after indictment confirmation hearings. In other words, a broader class of victims may be involved in the pre-confirmation investigatory stage only to be narrowed post-confirmation, which is a manifest injustice to the excluded victims. Another issue arises out of the ICC’s approach to the “partie civile” for victims arises in the context of victims’ counsel presentation of evidence which the prosecution may not find satisfactory. These and other issues pertaining to the fundamental rights of victims have yet to be resolved by the ICC.
The jurisprudence of the ICC during its first few years has demonstrated a lack of coherence which reflects the tensions between those judges who essentially support an adversary-accusatory system of criminal procedure and those favoring the civilist “partie civile” system. Neither the statute nor the rules have adequately dealt with the issues arising out of this incongruity causing several trial chambers and appeals chambers to issue multiple rulings over a period of 10 years that gave rise to criticism.24
A number of unresolved issues remain such as (1) the rights of victims before national tribunals of state-parties exercising their complementary rights under the statute; (2) the rights of victims left out of that category because of the ICC prosecutor’s choice of narrowing the facts in a given case (thus excluding actual victims of the crime); (3) The intersection of victims’ rights with ne bis in idem protections; (4) the rights of victims before the ICC to ask for additional remedies on the basis of customary international law, if and when, some or all of the remedies contained in the 2005 Basic Principles reach such a level; and 5) victims’ appeal rights.25
The ICC Statute and Rules were a step forward in securing victims’ rights, but for lack of political consensus, and maybe because the Rome Conference negotiators were mostly diplomats whose knowledge of comparative criminal law and procedure was limited, the statutory language was inadequate. Subsequently, the ICC Judges considering victims’ issues also did not demonstrate their grasp of these legal questions. The jurisprudence of the ICC is less than satisfactory, and it is likely to be revisited by the Court in the years to come.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Universal Declaration of Human Rights (10 Dec. 1948), U.N.G.A. Res. 217 A (III) (1948), Art. 8. ↩
Declaration, Annex (Article 11). ↩
Genocide in International Law (Cambridge University Press, 2nd ed., 2009). ↩,
Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge, 2011). ↩,
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]; 1-3 The Legislative History of the International Criminal Court (M. Cherif Bassiouni ed., Transnational Publishers, 2005). ↩
In addition to Talmudic law, Islamic law based on the Qur’an provides for crimes of Qisas, an option to the victim. The choices are: “Talion Law” or the equivalent harm (a death for a death, and injury for injury), the payment by the perpetrator of Diyya (victim compensation), or pardoning (forgiving) the perpetrator, which is the most desirable option. ↩
International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2000), Rule 85. ↩
G.A. Res 60/147 (New York, 21 Mar. 2006). ↩
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly Resolution 60/147, 16 December 2005, [hereinafter cited as 2005 Basic Principles]. Available online. ↩
ICC RPE Rule 98. ↩
Victims and the ICC: Still Room for Improvement (2008), available online; , Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. U. J. Int’l Hum. Rts. 459 (2008); , Victims’ Rights Overview under the ICC Legal Framework: A Jurisprudential Analysis, 7 Int’l Crim. L. Rev. 531 (2006); , , and , Participation of Victims in Pre-Trial Proceedings of the ICC, 4(2) J. Int’l Crim. Just. 219-238 (2006); and , Hearing the Victim’s Voice: Analysis of Victims’ Advocate Participation in the Trial Proceeding of the International Criminal Court, 17 Pace Int’l L. Rev. 1 (2005). ↩,
7 Nouvelles Etudes Penales, “International Protection of Victims” (M. Cherif Bassiouni ed., 1988); 65 International Review of Penal Law: “The Regionalization of International Criminal Law and the Protection of Human Rights in International Cooperation in Criminal Proceedings” (1994); 68 International Review of Penal Law: “Inquisitorial-Accusatorial: The Collapse of Dogmas in Criminal Procedure” (1997). ↩
Some Civilist states like Italy have provided as of 1989 with the adoption of their new code of criminal procedure for an independent right of civil action by victims irrespective of whether they were a partie civile in a criminal case or not. See Article 130 et seq. Codice di Procedura Pénale. ↩
Supra note 17; see also Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1119, Trial Chamber, Decision on victims’ participation (18 January 2008); ICC-01/04-01/06-1432, Appeals Chamber, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008 (11 July 2008). Prosecutor v. Thomas Lubanga: ICC-01/04-01/06-672 (6 November 2006); ICC-01/04-01/06-462 (22 September 2006); ICC-01/04-01/06-380 (4 September 2006); ICC-01/04-01/06-335 (17 August 2006); ICC-01/04-01/06-319 (10 August 2006); ICC-01/04-01/06-318 (9 August 2006); ICC-01/04-01/06-317 (8 August 2006); ICC-01/04-01/06-206 (24 July 2006); ICC-01/04-01/06-2698 (8 March 2011); ICC-01/04-01/06-2659-CORR-RED (8 February 2011); ICC-01/04-01/06-2586-RED (4 February 2011); ICC-01/04-01/06-2468 (9 June 2010); ICC-01/04-01/06-2340 (11 March 2010); ICC-01/04-01/06-2207 (26 January 2010); ICC-01/04-01/06-2175 (27 October 2009); ICC-01/04-01/06-2135 (22 September 2009); ICC-01/04-01/06-2127 (16 September 2009); ICC-01/04-01/06-2115 (11 September 2009); ICC-01/04-01/06-2109 (8 September 2009); ICC-01/04-01/06-2065 (23 July 2009); ICC-01/04-01/06-2063 (21 July 2009); ICC-01/04-01/06-2035 (10 July 2009); ICC-01/04-01/06-2032 (9 July 2009); ICC-01/04-01/06-1861 (8 May 2009); ICC-01/04-01/06-1564 (19 December 2008); ICC-01/04-01/06-1563 (19 December 2008); ICC-01/04-01/06-1562 (18 December 2008); ICC-01/04-01/06-1556 (15 December 2008); ICC-01/04-01/06-1379 (5 June 2008); ICC-01/04-01/06-1368 (2 June 2008); ICC-01/04-01/06-1333 (16 May 2008); ICC-01/04-01/06-1211 (6 March 2008); ICC-01/04-01/06-1191 (26 February 2008); ICC-01/04-01/06-1119 (18 January 2008); ICC-01/04-01/06 OA 9 and OA 10 (16 May 2008); ICC-01/04-01/06-1239 (20 March 2008); ICC-01/04-01/06-1347 (22 May 2008); ICC-01/04-01/06-1426 (9 July 2008); ICC-01/04-01/06-1432 (11 July 2008); ICC-01/04-01/06-1435 (15 July 2008); ICC-01/04-01/06-1448 (28 July 2011); ICC-01/04-01/06-1453 (6 August 2008); ICC-01/04-01/06-2155, (9 October 2009); ICC-01/04-01/06-2159 (14 October 2009); ICC-01/04-01/06-2168 (20 October 2009); ICC-01/04-01/06-2546 (30 July 2010); ICC-01/04-01/06-2552 (13 August 2010); ICC-01/04-01/06-2555 (17 August 2010); ICC-01/04-01/06-2556 (18 August 2010); ICC-01/04-01/06-2575 (29 September 2010); Situation in the Democratic Republic of the Congo, ICC-01/04 OA4 OA5 OA6. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui: ICC-01/04-01/07-3185 (21 October 2011); ICC-01/04-01/07-3064 (16 August 2011); ICC-01/04-01/07-2642 (10 January 2011); ICC-01/04-01/07-2517 (9 November 2010); ICC-01/04-01/07-2367 (6 September 2010); ICC-01/04-01/07-2288 (16 July 2010); ICC-01/04-01/07-2124 (24 May 2010); ICC-01/04-01/07-2108 (19 May 2010); ICC-01/04-01/07-2032 (19 April 2010); ICC-01/04-01/07-1967 (16 March 2010); ICC-01/04-01/07-1876 (16 February 2010); ICC-01/04-01/07-1788 (22 January 2010); ICC-01/04-01/07-1669 (23 November 2009); ICC-01/04-01/07-1567 (28 October 2009); ICC-01/04-01/07-1491-Red (23 September 2009). The Prosecutor v. Callixte Mbarushimana: ICC-01/04-01/10-483 (24 January 2011); ICC-01/04-01/10-476 (20 December 2011); ICC-01/04-01/10-441 (23 September 2011); ICC-01/04-01/10-382 (18 August 2011); ICC-01/04-01/10-351 (11 August 2011); ICC-01/04-01/10-265 (4 July 2011); ICC-01/04-01/10-229 (10 June 2011); ICC-01/04-01/10-181 (24 May 2011). The Prosecutor v. Jean-Pierre Bemba Gombo: ICC-01/05-01/08-2027 (21 December 2011); ICC-01/05-01/08-2011 (15 December 2011); ICC-01/05-01/08-1935 (21 November 2011); ICC-01/05-01/08-1862 (25 October 2011); ICC-01/05-01/08-1837 (11 October 2011); ICC-01/05-01/08-1711 (6 September 2011); ICC-01/05-01/08-1619 (23 September 2011); ICC-01/05-01/08-1597 (23 September 2011); ICC-01/05-01/08-1590 (8 July 2011); ICC-01/05-01/08-1091 (23 December 2010); ICC-01/05-01/08-1017 (18 November 2010); ICC-01/05-01/08-871 (6 September 2010); ICC-01/05-01/08-857 (18 August 2010); ICC-01/05-01/08-851 (11 August 2010); ICC-01/05-01/08-807 (19 July 2011); ICC-01/05-01/08-699 (22 February 2010); ICC-01/05-01/08-623 (27 November 2009); ICC-01/05-01/08-566 (20 October 2009); ICC-01/05-01/08-500 (3 September 2009); ICC-01/05-01/08-408 (22 April 2009); ICC-01/05-01/08-349 (8 January 2009); ICC-01/05-01/08-184 (23 October 2008); ICC-01/05-01/08-103 (12 September 2008). ↩