I argue that the ICC should prioritize the collection of qualitative data to measure whether victims’ access to the Court has been adequate. Quantitative data alone will not reveal whether victims have experienced meaningful participation in court proceedings. Although the current performance indicators can measure how often victims access the Court, these indicators cannot measure whether the victims’ access was actually adequate. For example, the current indicators cannot capture whether victims have had positive interactions with ICC staff or legal representatives. Collecting this kind of qualitative data is valuable for the ICC because it can be used to generate hypotheses about victims’ access. Then, the ICC can collect quantitative data to confirm or reject these hypotheses. In this way, qualitative data collection will complement the current quantitative performance indicators.

Ultimately, the ICC should prioritize the collection of both quantitative and qualitative data. Moving forward, the ICC should partner with research organizations and individual academics to create a qualitative performance indicator. Then, the ICC should work with these actors to perform qualitative research on victims’ access to the Court. These studies, which may center around individual interviews or focus groups, which will allow the ICC to explore victims’ experiences with the Court in rich depth. Through qualitative inquiries, the ICC will be better prepared “to respond to the dynamic and evolving interests of victims’ communities in situation countries.”11

Part II will discuss the importance of victim participation in ICC proceedings. This will include a brief summary of provisions from the Rome Statute and ICC Rules of Procedure and Evidence that have shaped victim participation. I argue that victim participation is an aspect of “victim access” that the ICC’s performance indicators should evaluate. In Part III, I will deconstruct the goal of “Victims have adequate access to the Court.” This will entail creating definitions for “victims” and “adequate access” that will help guide my argument.

Part IV will discuss the benefits of qualitative research. Then, this section will summarize the few examples of scholarly discourse in which researchers have gathered qualitative data about victim participation at the ICC and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). Finally, Part V will detail my suggestions for the next steps that the ICC should take to effectively measure the goal of victims’ adequate access. In both Parts IV and V, special attention will be paid to the “hidden pitfalls” and potential limitations of collecting qualitative data. I will also explain how the ICC can minimize those concerns.

II. Victim Participation in ICC Proceedings is an Aspect of “Victim Access” that the ICC’s Performance Indicators Should Evaluate

The ICC has allowed victims to engage the Court in a wide variety of ways. Victims may “apply to participate in proceedings through a lawyer, apply for reparations, seek assistance, [and] submit communications to the Office of the Prosecutor.”12 My argument focuses specifically on victim participation in ICC proceedings through their designated legal representative. The ICC permits victims (through their designated legal representative) to (1) attend and participate in hearings, (2) make opening and closing statements before the Court, (3) “[p]resent their views to the judges when the Court is considering what charges will be brought against the accused person,” and (4) question individuals who testify before the Court (e.g., witnesses, experts, or the accused).13

Three provisions of the Rome Statute explicitly promote victim participation in ICC proceedings. Article 15(3) provides that “[v]ictims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”14 Article 19(3) provides that “[i]n proceedings with respect to jurisdiction or admissibility…victims[] may also submit observations to the Court.”15 Finally, article 68(3) provides that “[w]here the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court.”16

In addition, the ICC Rules of Procedure and Evidence support victim participation in Court proceedings. Rule 91 provides that “[a] legal representative of a victim shall be entitled to attend and participate in the proceedings.”17 Also, rule 92 provides in part that “[w]here victims or their legal representatives have participated in a certain stage of the proceedings, the Registrar shall notify them as soon as possible of the decisions of the Court in those proceedings.”18

None of these provisions include an exhaustive list of the different methods of victim participation.19 Instead, the extent of victim participation is determined by each Trial Chamber and may vary from case to case.20

In the academic community, there is almost universal agreement that victim participation in the ICC’s proceedings can contribute to the Court’s legitimacy and efficacy.21 The ICC itself has recognized that victim participation can “be an important factor in helping the [Trial] Chamber to better understand the contentious issues of the case in light of [victims’] local knowledge and socio-cultural background.”22 In addition, scholars and practitioners alike argue that victim participation can “restore victims’ sense of dignity, contribute to their ‘healing’ and rehabilitation, and bring to light facts and evidence that may not otherwise emerge.”23 The ICC has intentionally promoted victim participation and “ensur[ed] that consideration is given to their suffering” so that victims “will have confidence in the justice process and view it as relevant to their day to day existence.”24 The ICC has stressed it will “[e]nsure that victims are able to fully exercise their right to effectively participate in the ICC proceedings with effective legal representation.”25

In these ways, victim participation is a crucial component of victim access to the Court. If the ICC intends to measure victims’ “adequate access,” this evaluation should focus in part on whether victims are able to participate in Court proceedings and have positive or meaningful experiences with ICC staff or legal representatives. Although this will likely require extensive and expensive qualitative research, it will provide valuable insights on how the ICC has succeeded on the critical goal of promoting victims’ adequate access to the Court.

III. Defining “Adequate Access” is a Necessary Starting Point for Developing a Qualitative Performance Indicator

Before discussing the benefits of qualitative research, it is important to break down and define the goal “Victims have adequate access to the Court.” Defining “victims” and “adequate access” is an appropriate starting point for my argument. Please note that there are multiple aspects of “access” that should be measured through qualitative research. For example, “access” could refer to a victim’s experience working with the Trust Fund for Victims. Qualitative research on this relationship would complement the above-mentioned quantitative performance indicator that will measure the percentage of victim populations reached through the ICC’s outreach activities.

However, the ICC itself has noted that “the interest to receive reparations,” is “far from being the sole motivation of victims” who work with the ICC.26 So although the ICC should consider performing qualitative research on victim “access” to the Trust Fund for Victims, my argument will focus exclusively on victim participation in ICC proceedings. I have limited my argument to victim participation, as prescribed by Rome Statute provisions such as article 68(3), because the ICC has recognized that “the core interest of victims in the proceedings is to effectively exercise their rights to truth and Justice.”27

Therefore, in order to avoid confusion about what is being measured, the ICC should adopt definitions for “victims” and “adequate access.” This will help determine the scope of the ICC’s quantitative and qualitative performance indicators.

A. Victims

The ICC has defined “victims” as “those who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”28 Victims must apply to participate in ICC proceedings.29 ICC judges are charged with reviewing victims’ applications and deciding whether an applicant is permitted to receive participant status.30 Only after a victim’s application is approved does the victim receive “victim participant” status and the rights associated with it.31

I argue that qualitative research should focus specifically on whether victim participants have received adequate access to the Court because “[m]any victims in situation countries are ineligible to participate” if they were not “affected by the specific crimes brought forward by the Office of the Prosecutor.”32 It would be inappropriate to measure these victims’ experiences with the Court because technically they aren’t able to “access” the Court in the same way as victim participants. Therefore, in creating a qualitative performance indicator, the ICC should recognize “victim participants” as the “victims” that are mentioned in the goal of “Victims have adequate access to the Court.”

B. Adequate Access

The definition of “adequate access” should be rooted in the rights that victim participants receive during ICC proceedings. The ICC has enumerated several rights that victim participants possess. Victim participants (1) “have the right to have a legal representative”; (2) “can present their views and concerns to the Court”; (3) are entitled to be “informed about developments in the proceedings”; and (4) “have the right to ask the Court to take all possible measures to respect their safety, well-being, dignity and privacy in the court of their participation.”33 These rights make up the “access” that victims have to the Court.

The most difficult term to operationalize in the goal of “Victims have adequate access to the Court” is the term “adequate.” If the phrase did not have this term, there would be no need for a qualitative performance indicator. Thus, the ICC’s emphasis on “meaningful participation” may inform an appropriate definition for “adequate access.” The ICC has recognized that “[t]he object and purpose of article 68(3) of the Statute and rules 91 and 92 of the Rules [of Procedure and Evidence] is to provide victims with a meaningful role in the criminal proceedings before the Court.”34 In order for victim participation to be meaningful, the ICC has stressed that victim participation “shall be ‘effective and significant as opposed to purely symbolic.’”35 In addition, the ICC has stressed that victims should have “the possibility to contribute to the truth to be established…as well as the possibility to tell their story and to have their story heard within the judicial framework.”36

In light of the ICC’s emphasis on participation that is “meaningful,” “effective,” and not “purely symbolic,” it may seem daunting to craft a concrete definition for “adequate” access. The ICC itself has expressed concern that it is too difficult to craft a meaningful performance indicator for this goal. Rather than using a nebulous term to define “adequate,” the ICC should simply measure the extent to which victims are able to exercise their rights as participants. For example, if victims are not informed about developments in case proceedings, then they have not received adequate access. A slight variation on this scenario would be that victims do receive information about case proceedings, but not in a timely manner that would allow them to correspond with their legal representative and take action. This would also be considered inadequate access.37 Thus, access is only “adequate” when victims have had the opportunity to exercise their rights as participants in ICC proceedings.

IV. Existing Qualitative Research on Victim Participation Can Help Guide the ICC’s Creation of a Qualitative Performance Indicator

Qualitative research will serve as a useful performance indicator because it will reveal broad patterns among victims’ experiences with the ICC. While there is no concise definition of qualitative research, it ultimately “aims to understand how the participants derive meaning from their surroundings, and how their meaning influences their behavior.”38 Unlike quantitative research, “qualitative research does not intend to achieve statistical representativeness but aims at providing an in-depth understanding of complex social processes.”39 Subject interviews are one of the most common examples of qualitative research.40

Scholars Catherine Cassell and Gillian Symon argue that qualitative research involves “a focus on interpretation rather than quantification.”41 A qualitative researcher must be “flexib[le] in the process of conducting research” and maintain an “orientation towards process rather than outcome.”42 Similarly, scholars Norman Denzin and Yvonna Lincoln argue that qualitative research “involves an interpretive, naturalistic approach to the world.”43 A qualitative researcher must “attempt[] to make sense of, or to interpret, phenomena in terms of the meanings people bring to them.”44 This requires the researcher to “turn the world into a series of representations, including field notes, interviews, conversations, photographs, recordings, and memos to the self.”45

Qualitative research is preferable when the existing field of research is not fully developed.46 Researchers can use qualitative methods to “generat[e] new hypotheses and theories.”47 Or, qualitative methods may be used “to identify the factors that affect the areas under investigation.”48 Researchers can then take their quantitative findings and use them to inform the collection of quantitative data.49 In this way, “combining quantitative and qualitative research helps to develop a conceptual framework” to direct a research path.50 This reaffirms the belief that “qualitative and quantitative methods should be viewed as complementary rather than as rival camps.”51

If the ICC wants to evaluate the adequacy of victims’ access to the Court, qualitative research can bring the victim’s perspective to the forefront of the ICC’s analysis. Scholars and practitioners alike contend that qualitative research is necessary to inform the ICC about how victim participation can be more meaningful and effective.52 However, there is a serious lack of in-depth, qualitative research on the effect of victim participation in international criminal justice processes.53 This dearth of literature may be a result of various criticisms against qualitative research (e.g., too expensive and time consuming; unscientific and too subjective).54

However, there currently exists a small handful of studies on victim participation at both the ICC and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). The ICC can gain important insights from these studies by examining the qualitative methods employed (e.g., interviews, focus groups, transcript review), the types of individuals who participated (e.g., age, gender, country of origin, victim status), and the limitations of each study.

A. Two Studies of Civil Party Participation in the ECCC

In 2011, Eric Stover, Mychelle Balthazard, and K. Alexa Koenig published a study about victim participation in the ECCC.55 The authors stressed that the ECCC was the first international criminal tribunal to allow victims of mass atrocities to serve as “civil parties” at trial.56 This meant that victims were not limited to strictly serving as witnesses in ECCC proceedings.57 In light of this new opportunity for victim participation, the authors focused their research on (1) “how civil party participation shaped the trial proceedings at the ECCC,” and (2) “how the civil parties viewed their interactions with the court.”58 Until this study, there had been barely any research on the impact of victim participation in the ECCC.59

The authors performed qualitative research for their study, which consisted of reviewing trial transcripts from the Duch trial and conducting interviews with civil parties.60 In addition, the authors supplemented this research by conducting “interviews with current and former members of the Cambodia court—judges, prosecutors, and administrators—as well as lawyers, psychologists, and human rights workers who interacted with the civil parties on a regular basis.”61

The authors conducted two rounds of interviews with civil parties.62 They conducted the first round in November and December 2009 with twenty-one of the twenty-two civil parties who had testified at the Duch trial.63 The authors interviewed eleven males and ten females, whose ages ranged from 33 to 79.64 After the verdict was delivered, the authors conducted a second round of interviews in August 2010 with seventeen of the twenty-one civil parties from the first round.65 During the interviews, the authors asked questions such as, (1) “What motivated [you] to testify and what was it like to appear before the accused?” (2) “What did [you] think of the behaviour of the judges, prosecutors, and defence attorneys?” and (3) “Was the process fair, the verdict just, and the sentence appropriate?”66

The authors expressed concerns about one limitation of their study.67 Because the authors relied on trial transcripts and interviews from “a relatively small number of individuals,” they conceded that they might “run the risk of formulating general conclusions from a limited data set.”68 To temper these concerns, the authors stressed that their overall purpose was not to create an all-encompassing explanation for what victims experienced when they participated in the ECCC.69 Rather, the authors’ main purpose was to perform qualitative research that would reveal how each victim’s “experience of testifying [at the Duch trial] affected their lives and their quest for justice.”70

In 2014, Elisa Hoven published a second study about civil party participation at the ECCC.71 Hoven’s goal was to “explore the value of civil party participation” by documenting “the perspective of all parties involved in the proceedings.”72 Hoven assumed that although a victim’s perspective “is of utmost importance when assessing the success of their participation in a trial, it is not the only factor to be taken into account.”73 For this reason, Hoven incorporated the perspective of legal professionals who participated in the trial.74

Hoven conducted thirty total qualitative interviews in Cambodia for her study.75 She interviewed individuals from the following populations: (1) civil parties, (2) legal parties to the proceedings, and (3) non-governmental organizations.76 Hoven interviewed “12 civil parties, eight civil party representatives (six civil party lawyers and two lawyers in the Lead Co-Lawyer section), four judges, three prosecutors and one defence lawyer.”77 Her fieldwork lasted approximately five months.78

Hoven made the conscious decision to not begin her study with specific hypotheses or theories about what information her interviews would yield. Instead, “interviews were analysed following the inductive approach of ‘grounded theory’ whereby hypothesis and concepts emerge[d] from the data during the process rather than being pre-defined.”79 One lesson learned from Hoven’s study was that “prosecutors and judges saw the impact of civil parties in ‘bringing a human side’ to the proceedings.”80

B. Two Studies of Victim Participation at the ICC

In 2013, Chris Tenove conducted qualitative research on victims’ attitudes toward the ICC.81 Tenove “assume[d] that victims of mass violence have valuable knowledge about the impact of violence and about the forms of justice that should address it.”82 Therefore, Tenove believed “that victims should be consulted to evaluate the ICC’s performance and the principles of justice it promotes.”83

Tenove conducted fourteen focus groups with eighty-four people total (forty-five women and thirty-nine men).84 Each focus group contained five to seven participants.85 The individuals who participated in the focus groups were either victims of Kenya’s post-election violence in 2007–2008, or victims of Uganda’s ongoing civil war.86 Because the ICC had not initiated trials against suspects from either Kenya or Uganda at the time Tenove performed his study, it is unclear whether the victims had applied for participant status with the ICC.87

To help facilitate the focus groups, Tenove partnered with local organizations: the Coalition on Violence Against Women in Kenya, and the Justice and Reconciliation Project in Uganda.88 Each group had a facilitator who led discussion for approximately two hours.89 The focus groups addressed questions such as: (1) “Who count as victims?” (2) “What kinds of justice do victims seek?” (3) “To what extent do ICC processes resonate with the desire of victims for justice?” and (4) “How should the ICC engage with victims?”90 These focus groups gave victims the space to present their personal opinions and then “discuss and justify their positions.”91

Tenove recognized two major risks for victims who participated in the focus groups.92 First, “discussions touched on possible criminal acts by other individuals, including members of the military or government.”93 Tenove responded to this risk by holding the focus group meetings in private settings.94 In addition, participants could maintain anonymity in Tenove’s meeting records.95 The second risk for victims was re-traumatization from discussing the violence that they had witnessed or experienced.96 As a precaution, “all research team members [were] trained to conduct research with survivors of violence” and “[p]articipants were offered access to psychological counseling if requested.”97

Like the previous authors, Tenove expressed concerns about his study focusing on a small sample size of the victim population.98 Therefore, Tenove also conducted interviews with ICC staff and individuals from a variety of civil society organizations in Kenya, Uganda, and The Hague.99

In 2015, the Human Rights Center (“HRC”) published the most extensive qualitative research to date on the experiences of victim participants at the ICC.100 The ICC’s Victim Participation and Reparations Section (“VPRS”) requested HRC to perform qualitative research on victim participation.101 In order to preserve the legitimacy of the researching findings, HRC and VPRS “agreed that HRC would conduct the study independently from the Court and that the conclusions and recommendations would be [HRC’s] own.”102 This relationship suggests that it would not be unprecedented for the ICC to coordinate with research organizations and individual academics to measure victims’ adequate access to the Court.

HRC conducted in-depth, semi-structured interviews with 622 individuals during the period of July 2013 to February 2014.103 The victims had already received participant status from the ICC, or had submitted applications and were awaiting approval.104 While some victims had received injuries that were covered by ICC criminal charges (“case victims”), other victims “were affected directly by the mass violence but not by specific charged offenses (situation victims).”105 HRC conducted interviews in Kenya, Uganda, the Democratic Republic of Congo, Côte d’Ivoire, and The Hague.106

Like Tenove’s focus groups, the HRC interviews were confidential and “varied in length from twenty minutes to two hours.”107 HRC used local intermediaries instead of professional translators in order to build rapport with interviewees and gain candid responses.108 Intermediaries asked the victims questions such as: (1) Do you feel like you have a voice in ICC proceedings? (2) Do you feel respected by ICC court staff? (3) Do you trust the ICC? and (4) Do you feel safe being associated with the ICC?109 One interesting finding that HRC drew from victim interviews was that “[v]ictim participants find value in filling out individual applications, but few are concerned with who at the Court reviews them.”110

HRC expressed concerns about several limitations of this study: (1) random sampling was not possible, so “there is a limit to the generalizability of [HRC’s] findings,” (2) it was not possible for HRC to visit every affected community because some areas “were too difficult to reach or, in a few cases, were deemed unsafe,” and (3) victims may not have answered questions honestly if they feared for their personal safety.111 Finally, HRC noted that the victim interviewees might have given different responses than the general population because “the time and cost required to participate in the interviews possibly created a bias in the study population.”112 To help curb these possible limitations, HRC supplemented the victim interviews by conducting interviews with “41 ICC staff members, legal representatives, and victims’ advocates to understand the evolution of the victim participation program.”113

V. Key Recommendations for a Qualitative Performance Indicator That Measures Victims’ Adequate Access to the Court

Moving forward, the ICC should partner with research organizations and academics like those mentioned in the previous section. Together, the ICC and these independent actors can (1) create a qualitative performance indicator and (2) perform qualitative research on whether victims’ access to the Court is adequate. I argue that the ICC should use the definitions of “victims” and “adequate access” that I outlined in Section III as a starting point for crafting the qualitative performance indicator. This will allow the ICC to narrow the initial pool of “victims” who may serve as potential subjects in the ICC’s qualitative research. The Human Rights Center study will be the most analogous to the qualitative research that I believe the ICC should conduct.

There are several potential “hidden pitfalls” involved in measuring the ICC’s performance. For example, research (especially qualitative research) is expensive and time-consuming. However, the ICC can overcome these pitfalls by partnering with research or academic institutions that have access to private grant funding. These institutions are well staffed with trained individuals who can dedicate the necessary time to perform extensive qualitative research. In addition, this partnership has the added benefit of allowing the ICC to be removed from the research process so that the final findings are not criticized for being biased by the ICC’s involvement. The Human Rights Center’s partnership with the ICC’s VPRS should serve as a guiding example here.

The ICC must also carefully consider what types of qualitative methods are most appropriate for its qualitative performance indicator. Prior studies show that interviews and focus groups are a viable option. One hidden pitfall that the ICC should be wary of is that “[t]oo often, interview-produced data contain only initial reflections of participants without explorations into the depth and breadth of the experience.”114 Scholars have argued that “[i]n order to obtain interview data of sufficient quality to produce worthwhile findings, researchers need to engage with participants in more than a one-shot, 1-hr session.”115 Researchers must also build rapport with the victim interviewees so that their responses are not biased or insincere.116

The ICC can overcome the pitfall of surface-level qualitative research in several ways. First, the ICC can emulate the research by Stover, Balthazard, & Koenig, who conducted two rounds of interviews with victims (pre—and post—trial verdict). This would also help the ICC to minimize the potential bias of victims’ answers being motivated by trial outcomes. Second, the ICC can emulate Tenove’s study, which allowed victims to expand, build upon, and justify their answers during focus group participation. Finally, the ICC can follow the trend exhibited in all of the previously discussed studies and supplement victim interviews with information drawn from ICC staff, legal representatives and civil society organizations that work closely with victims.

Finally, the ICC will need to account for the safety of victims who participate in any future qualitative research. Tenove’s study is particularly helpful in this respect. The ICC can use consent forms, allow victims to maintain their anonymity, and ensure that psychological support is available if victims experience re-traumatization during interviews.

Conclusion

The ICC should prioritize the collection of qualitative data to measure whether or not victims’ access to the Court has been adequate. The ICC should review prior studies conducted by academics and research institutions that contain qualitative research on victim participation in international criminal justice processes. The ICC can gain valuable insights from prior studies that will help the Court determine what the best research methods will be for a qualitative performance indicator (e.g., interviews, focus groups, surveys, transcript review). In addition, these studies will help the ICC determine which victims should be interviewed (e.g., age, gender, country of origin, victim status). Finally, these prior studies reveal the potential limitations of qualitative research, and how researchers can compensate for them.

Ultimately, quantitative data alone will not reveal whether victims have experienced meaningful participation in court proceedings. Although the current performance indicators can measure how often victims access the Court, they cannot measure whether the victims’ access was actually adequate. Herein lies the value-add of qualitative research.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Victims Before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the Court 12 (Sep. 16, 2010) [hereinafter Victims’ Guide], available online, archived.

   (Victims typically exercise this right through a legal representative). ↩

2. 2.

   The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04–02/06, Joint Submissions in Accordance with the “Order Scheduling a Status Conference and Setting a Provisional Agenda” Issued on 21 July 2014 (Aug. 14, 2014) (emphasis added) [hereinafter Joint Submissions], available online. ↩

3. 3.

   See International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015), available online, archived. ↩

4. 4.

   Id. at 6 (emphasis added). ↩

5. 5.

   Id. at 6. ↩

6. 6.

   Id. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    Stephen Smith Cody, Victims at the ICC: What is the Way Forward?, Post-Conflict Just. (Dec. 11, 2014), available online. ↩

12. 12.

    Victims, ICC, [hereinafter Victims], available online (last visited Jul. 1, 2017). ↩

13. 13.

    Victims’ Guide, supra note 1, at 13. ↩

14. 14.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], art. 15(3), available online. ↩

15. 15.

    Id. at art. 19(3). ↩

16. 16.

    Id. at art. 68(3).

    (Please note that other Rome Statute provisions also encourage the Prosecutor and the Trial Chamber to consider victims’ interests when conducting investigations or court proceedings, respectively).

    See, e.g., id. at art. 54.

    (“Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses”) (emphasis added).

    See also id. at arts. 53, 65. ↩

17. 17.

    International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 91 (2013), available online, archived. ↩

18. 18.

    Id. R. 92. ↩

19. 19.

    See Mélanie Vianney-Liaud, Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings, Opinio Juris (Aug. 20, 2015), available online. ↩

20. 20.

    Id.; see also Stephen Lamony, What are the Benefits and Difficulties of Victim Participation at the International Criminal Court?, Humanity United (May 4, 2015), available online.

    (discussing article 68(3) and stressing that due to “the vagueness of this Article, it has been left to the jurisprudence of the Court to determine just how victims can participate in proceedings.”) ↩

21. 21.

    Stephen Smith Cody, Eric Stover, Mychelle Balthazard & K. Alexa Koenig, The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court, UC Berkeley HRC, 12 (2015), available online, archived.

    (“Many observers now view victim participation as essential to the legitimacy and effectiveness of international criminal proceedings.”)

    See also Misha Boutilier, Victim Participation at the International Criminal Court, U. Toronto Int’l Hum. Rts. Prog., available online (last visited Jul. 1, 2017); Lamony, supra note 20. ↩

22. 22.

    Joint Submissions, supra note 2, at 9. ↩

23. 23.

    Stephen Smith Cody et al., supra note 21, at 7. See also Luke Moffett, Meaningful and Effective? Considering Victims’ Interests Through Participation at the International Criminal Court, 26 Crim. L. Forum 255 (Jun. 2015), SpringerLink paywall, earlier version online; Mariana Pena & Gaelle Carayon, Is the ICC Making the Most of Victim Participation?, 7 IJTJ 518 (Sep. 2013), Oxford Academic paywall; Lamony, supra note 20.

    (“Participation can promote individual healing and rehabilitation by providing victims with a sense of agency, empowerment, and closure. In other words, by allowing a victim to participate in the proceedings, abstract justice can take on a more personal dimension, permitting victims to ‘experience’ justice.”) ↩

24. 24.

    International Criminal Court, Report of the Court on the Strategy in Relation to Victims, ICC-ASP/8/45 (Nov. 10, 2009), available online, archived. ↩

25. 25.

    International Criminal Court, Court’s Revised Strategy in Relation to Victims, ICC-ASP/11/38, 5 (Nov. 5, 2012) (emphasis added) available online, archived. ↩

26. 26.

    Joint Submissions, supra note 2, at 8. ↩

27. 27.

    Id. ↩

28. 28.

    Victims, supra note 12. ↩

29. 29.

    Victims’ Guide, supra note 1, at 13. ↩

30. 30.

    Id. ↩

31. 31.

    Id. ↩

32. 32.

    Mark Kersten, Victim Participation at the ICC—What’s the Deal?, Just. in Conflict (Nov. 22, 2013), available online.

    (noting also that “[o]f those granted participant status, only a handful appear in trial proceedings.”) ↩

33. 33.

    Id. at 12. ↩

34. 34.

    Joint Submissions, supra note 2, at 9 (emphasis added). ↩

35. 35.

    Id. (emphasis added). See also Vianney-Liaud, supra note 19.

    (arguing that “victims, even if they are many, are not symbols. They deserve the opportunity to really participate in the criminal proceedings which affect them, as soon as this right is granted to them.”) (emphasis added). ↩

36. 36.

    Joint Submissions, supra note 2, at 4. ↩

37. 37.

    See, e.g., Amnesty International & REDRESS, Independent Panel of Experts Report on Victim Participation at the International Criminal Court 11 (Jul. 2013), available online.

    (expressing concern that “participation is currently not meaningful for victims who are accepted to participate. It appears that, in many instances, victims are not able to access sufficient information regarding the proceedings and to present their views and concerns at appropriate stages.”) ↩

38. 38.

    Data Collection Strategies II: Qualitative Research, Cal. St. U. Long Beach, available online (last visited Jul. 1, 2017); see also Donald E. Polkinghorne, Language and Meaning: Data Collection in Qualitative Research, 52 J. Counseling Psych. 137, 138 (2005), available online.

    (“Qualitative methods are specifically constructed to take account of the particular characteristics of human experience and to facilitate the investigation of experience.”) ↩

39. 39.

    Elisa Hoven, Civil Party Participation in Trials of Mass Crimes: A Qualitative Study at the Extraordinary Chambers in the Courts of Cambodia, 12 J. Int’l Crim. Just. 9 (Jan. 2014), Oxford Academic paywall. ↩

40. 40.

    See Polkinghorne, supra note 38, at 142.

    (“The most widely used approach to the production of qualitative data is interviews with participants.”) ↩

41. 41.

    Catherine Cassell & Gillian Symon Eds., Qualitative Research in Work Contexts, in Qualitative Methods in Organizational Research, A Practical Guide 7 (1994). ↩

42. 42.

    Id. ↩

43. 43.

    Norman K. Denzin & Yvonna S. Lincoln, Introduction: The Discipline and Practice of Qualitative Research, in Handbook of Qualitative Research 3 (2000), available online. ↩

44. 44.

    Id. ↩

45. 45.

    Id.; see also Nancy L. Leech & Anthony J. Onwuegbuzie, An Array of Qualitative Data Analysis Tools: A Call for Data Analysis Triangulation, 22 Sch. Psych. Q. 557, 561 (2007), available online.

    (noting that “[q]ualitative assessment […] could involve the use of techniques such as interviews, focus groups, observations, and documents.”) ↩

46. 46.

    Id. ↩

47. 47.

    Florian Kohlbacher, The Use of Qualitative Content Analysis in Case Study Research, 7 F. Qualitative Soc. Research 21 (Jan. 2006), available online. ↩

48. 48.

    Demetrius Madrigal & Bryan McClain, Strengths and Weaknesses of Quantitative and Qualitative Research, UX Matters (Sep. 3, 2012), available online (last visited Jul. 2, 2017). ↩

49. 49.

    Kohlbacher, supra note 47. ↩

50. 50.

    Leech & Onwuegbuzie, supra note 45, at 384. ↩

51. 51.

    Kohlbacher, supra note 47; see also Jason Hopper, Why Do Qualitative Research?, MethodLogical (Feb. 16, 2011), available online (last visited Jul. 2, 2017).

    (arguing that “qualitative methods are epistemologically very similar to quantitative studies and can often bring important insights not found in quantitative studies. The point here is not that one is better than the other, but we need both.”);

    Madrigal & McClain, supra note 48.

    (arguing that “[w]hile quantitative and qualitative research approaches each have their strengths and weaknesses, they can be extremely effective in combination with one another.”) ↩

52. 52.

    See Lamony, supra note 20.

    (arguing that in order to overcome the “challenges to effective and meaningful victim participation” practitioners should “start with in-depth studies on the impact of victim participation so that processes and practices can be adequately adjusted in order to ensure that victim participation can be meaningful to all involved.”) ↩

53. 53.

    See Stephen Smith Cody et al., supra note 21.

    (recognizing that “Victims’ incorporation into international criminal justice processes is widely noted as an innovation of the ICC, yet few researchers have asked victims about their experiences working with the court.”).

    Kersten, supra note 32.

    (noting that “we still lack in-depth assessments of the impact of victim participation in different cases, with their different judicial approaches and situation country contexts.”) ↩

54. 54.

    See Denzin & Lincoln, supra note 41, at 7.

    (noting that “qualitative researchers are called journalists, or soft scientists, and their work is termed unscientific, or only exploratory, or subjective.”) ↩

55. 55.

    Eric Stover, Mychelle Balthazard, & K. Alexa Koenig, Confronting Duch: Civil Party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia, 93 Int’l Rev. Red Cross 503 (Jun. 2011), available online. ↩

56. 56.

    Id. at 503. ↩

57. 57.

    Id. ↩

58. 58.

    Id. at 504. ↩

59. 59.

    Id. at 507. ↩

60. 60.

    Id. ↩

61. 61.

    Id. ↩

62. 62.

    Id. ↩

63. 63.

    Id. at 507, 516.

    (All the interviews except for one took place in Cambodia. One interview was conducted via telephone with a victim who lived in New Zealand). ↩

64. 64.

    Id. at 516.

    (A majority of the participants were around fifty years old). ↩

65. 65.

    Id. at 507. ↩

66. 66.

    Id. ↩

67. 67.

    Id. ↩

68. 68.

    Id. ↩

69. 69.

    Id. ↩

70. 70.

    Id. ↩

71. 71.

    Hoven, supra note 39, at 9. ↩

72. 72.

    Id. at 9 (emphasis added). ↩

73. 73.

    Id. at 10. ↩

74. 74.

    Id. ↩

75. 75.

    Id. at 9–10. ↩

76. 76.

    Id. at 10. ↩

77. 77.

    Id. ↩

78. 78.

    Id.

    (Hoven was in Cambodia from June to November 2012). ↩

79. 79.

    Id. ↩

80. 80.

    Id. at 26. ↩

81. 81.

    Chris Tenove, International Criminal Justice for Victims? Assessing the International Criminal Court from the Perspective of Victims in Kenya and Uganda, 1 Afr. Portal, 6 (Sep. 2013), available online. ↩

82. 82.

    Id. at 5. ↩

83. 83.

    Id. at 1. ↩

84. 84.

    Id. at 3.

    (“Eight focus groups were conducted in Kenya, six in Uganda.”).

    Id. at 5. ↩

85. 85.

    Id. at 5. ↩

86. 86.

    Id.

    (Specifically, the focus group “[p]articipants had experienced a range of traumas, including: bodily injury; deaths of loved ones; kidnapping; and the destruction of property.”) ↩

87. 87.

    Id. at 6. ↩

88. 88.

    Id. at 6. ↩

89. 89.

    Id. at 5.

    (“Discussions were conducted in Lango, Luo or Swahili, and […] [a]udio recordings were later translated into English and analyzed.”) ↩

90. 90.

    Id. at 3–4. ↩

91. 91.

    Id. at 5. ↩

92. 92.

    Id. at 6. ↩

93. 93.

    Id. ↩

94. 94.

    Id. ↩

95. 95.

    Id. ↩

96. 96.

    Id. ↩

97. 97.

    Id. ↩

98. 98.

    Id. at 5. ↩

99. 99.

    Id. at 4. ↩

100. 100.

     Stephen Smith Cody et al., supra note 21. ↩

101. 101.

     Id. at 8. ↩

102. 102.

     Id. ↩

103. 103.

     Id. ↩

104. 104.

     Id. at 2. ↩

105. 105.

     Id. ↩

106. 106.

     Id. at 9. ↩

107. 107.

     Id. at 2. ↩

108. 108.

     Id. at 9–10. ↩

109. 109.

     Id. at 9. ↩

110. 110.

     Id. at 3. ↩

111. 111.

     Id. at 2, 10.

     (The study “recruited victim participants roughly in proportion to their appearance in the victim population by geography, ethnic affiliation, ICC case affiliation, applicant status, age cohorts, and sex.”) ↩

112. 112.

     Id. ↩

113. 113.

     Id. at 2. ↩

114. 114.

     Polkinghorne, supra note 38, at 142. ↩

115. 115.

     Id. ↩

116. 116.

     Id.

     (Arguing that research must prioritize “establishing a trusting, open relationship with the participant and to focus on the meaning of the participant’s life experiences rather than on the accuracy of his or her recall.”) ↩