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?”
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).
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