Published in UN Chronicle, Issue 4, 1999


By Vahida Nainar

The adoption of the statute of the International Criminal Court (ICC) in July 1998 is historic for many reasons, one of which is its conceptualization of the notion of justice. Justice traditionally was done when the guilty was prosecuted and punished. The ICC statute has embodied a concept of justice that goes beyond punishment of the guilty. It gives victims a voice – a voice not only to testify and tell their story but also to participate in the court proceedings. Such participation is encouraged and sought with a promise of different measures to protect the interests and identity of the victims and witnesses where necessary. Under the statute, the Court also has the mandate to award reparations to the victims in its broad sense. The attempt to expand the objectives and values of a criminal judicial system to include protection of the interests and securing the rights of the victims in a manner as accomplished by the ICC statute is almost unprecedented.

The ICC statute has jurisdiction to prosecute the most egregious of crimes committed on a scale that will most likely be widespread and systematic. Such crimes often leave a whole class of victims and survivors. The success of the ICC and its ability to prosecute cases and hold perpetrators accountable for the crimes they committed depends on victims and witnesses coming forward to testify and tell their stories. Because of the nature of crimes of sexual violence and the societal attitudes around it, testimonies of victims of crimes of sexual violence are most difficult to come by making such crimes difficult to prosecute.

At a panel discussion organized by the Women’s Caucus for Gender Justice during the July-August, 1999 Preparatory Commission meeting on ICC, a potential witness of the Rwanda ad-hoc Tribunal speaking anonymously stated that she was never informed that a case had progressed to trial until she was approached after over one year of initial contact with the investigators. She further stated that she refused to participate in the Tribunal because she had no faith in their protection efforts and the tribunal staff was not qualified to deal with her case sensitively. Another victim from Rwanda speaking at the same panel said that she did not feel justice was “hers”. Experiences of victims of the ad-hoc Tribunals must be taken into account and the shortcoming of the existing systems must be rectified for future. Participation, protection and right information at the right time are important to build faith in the victims and witnesses, particularly of crimes of gender and sexual violence, to come forward and testify. The ICC statute has rightfully recognized the magnitude such crimes have taken in recent times and qualified many articles and provisions with specific reference to crimes of gender and sexual violence.

The victims and survivors come to testify before court and tribunals for a variety of reasons some of which are desire for truth to be known, to speak for the dead, to demand accountability and last but not the least to demand justice. However, justice for most victims does not begin with prosecution of the case and end with the punishment of those responsible for the crimes. For many victims, real justice will be done only when somehow the harm, be they physical, psychological, material or others, caused by the crimes is repaired even if the reparation is symbolic.

There are a number of articles and provisions within articles in the ICC statute that mandates the court to take into account the interests and rights of the victims and provide for reparations. The different provisions of article 68 allow for the victims to have legal representatives. Further, the victims either directly or through their legal representative, have a right to present their views and make submissions when their interests are likely to be affected including in matters of jurisdiction and admissibility (Art. 19(3). Moreover, these views and submissions may be made at all stages of the court proceedings with the only limitation that such views are not prejudicial or inconsistent with the rights of the accused.

In article 54 (1), the Prosecutor has a duty to respect the interests and personal circumstances of victims and witnesses with respect to investigations. Under article 15 (3), victims have the right to make representations to the Pre-Trial chamber with regard to any submission by the Prosecutor to such chamber requesting for authorization of an investigation. Provision 6 of the same article requires the Prosecutor to inform all those who requested investigation of any case of her or his decision to continue or discontinue the investigation.

Article 43 (6) requires the Victims and Witness Unit in consultation with the office of the Prosecutor, to take protective and security measures for victims and witnesses who may be at risk on account of their testimony. It also requires that counseling be provided for victims who may be in trauma. And finally, article 75 deals with the award of reparation to the victims. Reparation is understood in a broad sense to mean and include restitution, compensation and rehabilitation. The Court has a mandate not only to establish principles relating to reparations but also in exceptional circumstances, to determine the scope and extent of any loss or damage to the victims.

The fact that there is no comprehensive precedent on provisions of victims participation and reparation, it must be stated that the implementation of all the above provisions will most certainly pose quite a challenge. As already stated, such broad participation of victims in court proceedings is unheard of in many national judicial systems, both in the civil law and the common law systems. Delegations of different countries in the Preparatory Commission (Prepcom) meetings that have been and will be held this year, in their effort to draft the operative instruments of rules of procedure and evidence are trying hard to grapple with enormous questions of practical significance with regard to the implementation of these articles. Some of these questions are - who can be the legal representative of the victims, who will choose and decide the criteria for being the legal representative of the victims, will each victim have the right to one counsel in which case how will the court deal with situation of hundreds of victims claiming their right to have hundreds of counsels, at what stages should the victims legal counsel have the right to interfere, how will the court decide on reparation, on what basis, where will the funds for reparation come from, is it at all the job of a criminal court to do social work and provide counseling, therapy etc.

While some of the above questions comes out of genuine concern for the practical difficulties the Court may face, others emanate from an obvious reluctance to accept the broadening of the objectives of a criminal justice system from prosecution and punishment to inclusion of an element of social welfare and justice. International humanitarian law has evolved over the past fifty years and the ICC statute is an example of the developments made in this field. The principle enshrined in the statute, the experiences the Court may encounter and the continuing development in the field of international humanitarian and criminal law has scope for solutions for some of the above problems to evolve over a period of time. By keeping victims interests, concerns and rights as among its primary objectives, the ICC statute is all poised to do ‘justice’ with a human face. These values are very important to ensure that victims and witnesses are encouraged to participate in the court proceedings without fear for their lives and inculcate faith in the judicial system on its ability to do real justice. Besides such values will go a long way to help in the healing process and the recovery of the victims which is and ought to be the ultimate goal.