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?”
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.
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