Victims before international criminal courts: some views and concerns of an ICC trial judge.

• Author: Van den Wyngaert, Christine
• Position: International Criminal Court - International Law in Crisis

1. INTRODUCTION II. VICTIMS AT THE ICC A. Victim Status in General B. Victims' Participation in Proceedings C. What Participatory Rights do Victims Have ? D. Reparations III. SOME VIEWS AND CONCERNS A. Victims and the Truth Finding Process B. Victims and the Rights of the Accused C. Is the Participatory Regime Meaningful for Victims? D. How Meaningful Can Reparations Be ? E. Equal Access to Justice? F. Is the System Sustainable? IV. FINAL OBSERVATIONS I. INTRODUCTION

   For much of my career as an academic, international criminal justice was a faraway dream. Like most scholars of my generation, I never expected to see international criminal courts emerge in my own lifetime. And then, all of a sudden, they were there: first the ad hoc tribunals, now the International Criminal Court (ICC). And to make it even more exciting, I have had the privilege of serving first at the International Criminal Tribunal for the former Yugoslavia (ICTY) for nearly six years and now at the ICC since 2009. These years have been the most rewarding years in my professional life. It has been a thrilling experience to have belonged to panels of judges who made defining decisions in the field of international criminal law. This was true at the ICTY, and perhaps even more so at the ICC, which, despite the entry into force of the Statute almost ten years ago, is still a fledgling court facing challenges that are multiple and immense. One of those challenges is the role of victims before the Court, which I believe to be one of the most important ones for the years to come. The victims' participation regime at the ICC has indeed been hailed as one of the major achievements of modern day international criminal justice. (1) But it is also only one of the more controversial aspects of the ICC Statute, and it is for this reason that I have chosen it as a topic for this lecture. It is a good moment in time, as the first two trials before the ICC have almost run their course, which allows for a preliminary assessment of how the regime has been implemented in practice. It also allows for a comparison between the objectives of the designers of the victims' participation regime and the results achieved in practice.

   The ICC is said to have marked the shift away from a retributive judicial system to a more restorative, justice-oriented model. (2) Victims did not participate at Nuremberg, nor did they at the two ad hoc Tribunals of the U.N. created in the early 1990s. (3) In fact, the ICC regime for victims can, in part, be traced back to the dissatisfaction, at least in some quarters, over the ICTY system, which does not allow participation of or reparations for victims of serious human rights abuses. (4) Critics of the ICTY system blamed it for failing to sufficiently account for the interests of the victims. (5) Victims testifying at the ICTY, very far away from their homes and from the places where the crimes were committed, were often traumatised by the experience. The French ICTY judge, Claude Jorda, complained that victims were "reduced" to instrumentalised witnesses. (6) Civil lawyers had problems with the fact that victims testifying for the prosecution were subjected to the often painful cross-examination process by the defence. Much of this was captured in the phrase "secondary victimization," meaning that victims of atrocity crimes were victimised for a second time as a result of a judicial process in which they could not fully participate. (7)

   Looking at this from my own experience as an ICTY judge, I understand these criticisms, but I am not sure they are well founded. I saw many courageous victims who were very keen to come and testify and tell their stories. The cross-examination process, although difficult at times, was practiced with restraint and caution by counsel appearing before the tribunal and, if necessary, was controlled by presiding judges. The system had its shortcomings, but whether victims' participation in criminal proceedings was an appropriate remedy against secondary victimisation remains to be seen. In a report presented to the Security Council in 2000, ICTY judges, while emphasizing that victims of crimes coming within the jurisdiction of the court should receive compensation, advised against incorporating a compensation mechanism in the Statute or the Rules, as this would affect the duration of the trials. Rather, they advocated the creation of another body that could operate as an international compensation commission. (8)

   Meanwhile, the drafters of the 1998 ICC Statute had ventured in a different direction. They not only granted victims a fight to reparations, but they also introduced a totally novel participatory regime. Much of the participatory regime for victims was inspired by the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the U.N. (9) This declaration, which was followed up in the 2005 Resolution of the U.N. Commission on Human Rights containing guidelines. (10) is still considered as the foundational text by advocates of extensive victims' rights to participation and reparation. (11) Parts of this declaration were copy-pasted into the Statute.

   Yet, the regime that was introduced in Rome was the result of heated debates. It was mainly France and some civil law countries that insisted on the introduction of a participatory regime that resembled the French partie civile system. While no such full-fledged system was incorporated in the Statute, victims were given the fight to "present their views and concerns" to the Court, and to do so "where their personal interests are affected." (12) This way of drafting illustrates what Philippe Kirsch, chairman of the Committee of the Whole at Rome and the first president of the ICC, used to call "a constructive ambiguity." (13)

   It was left to the Rules and the judges to further explain and develop the victims' participatory regime. In their first decisions on this matter, the judges gave an extremely extensive, teleological interpretation of the regime, often by reference to the jurisprudence of the human rights courts, in particular the decisions of these courts on the right to access to justice. (14)

   In this lecture, I will briefly describe the victims' regime at the ICC, and I will then share some of my observations and concerns with you. Considering my position as a judge and the fact that so many issues are still in the process of being decided, I must limit myself to expressing some general thoughts. Having served on both the ICTY and the ICC, I may be in a position to make some comparisons that could be a useful contribution to the debate. What follows are my personal thoughts, which do not necessarily reflect the views of my colleagues at the ICC.

2. VICTIMS AT THE ICC

   1. Victim Status in General

      All in all, the ICC regime is characterised by its "victim-friendliness," which is certainly to be welcomed as an improvement as compared to the ICTY and ICTR regimes. The Statute requires the Court to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. (15) Various rules and regulations further implement this part of the ICC mandate in great detail. (16)

      In 2009, the Court adopted an overall Strategy in relation to victims that, again, draws upon the two U.N. instruments on Basic Principles of Justice for Victims and the Right to Reparation for Victims. (17)

      A whole infrastructure has been set up to fulfil this part of the mandate. Within Registry, there is a Victims and Witnesses Unit (VWU) which, like its counterpart at ICTY, provides protective measures and security arrangements for victims and witnesses who appear before the Court. (18) In addition, there are two other sections dealing with victims: the Victims Participation and Reparations Section (VPRS), a specialised unit in Registry for dealing with participation and reparations); (19) and the Office of Public Counsel for Victims (OPCV), which provides support to counsel representing victims. (20)

      Victims at the ICC are indeed entitled to legal representation, which is another big difference with the ICTY. Although it is theoretically possible for victims to appear individually, this would be totally impractical in view of the high number of victims, which tends to increase as time goes by and the Court becomes better known. For that reason, victims at the ICC are, in all cases, represented by common legal representatives. For example, there were three groups of legal representatives in the Lubanga case.

      The ICC's draft budget for 2012 envisages at least seven million euros (ten million USD) being earmarked specifically for victim-related tasks. (21) Almost four million euros would be spent on paying the fees and expenses of the lawyers representing the victims. (22) The VPRS budget would be almost 1.9 million euros (over 2.5 million USD), whereas the OPCV would receive close to 1.2 million euros (1.6 million USD). (23) The draft budget is still under discussion with the States Parties, but these figures illustrate the overall order of magnitude involved. (24)

      Alongside the participatory regime, a reparatory mechanism has been created: the Trust Fund for Victims. (25) This Fund may play a role in the process of awarding reparations to victims after a conviction has been reached. Apart from these reparations, the Trust Fund for Victims can also use its resources to benefit victims of crimes that have not given rise to prosecution. (26) Whereas reparations in the narrow sense have not yet been awarded, the Trust Fund for Victims has already started implementing the second branch of its mandate, giving general assistance to victims and their families by means of programs for physical rehabilitation, material and/or psychological rehabilitation in situations where the Court has jurisdiction. (27) For example, although, to date, no accused in the...