On July 17, 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Rome Statute of the International Criminal Court. This was a historic event not only for the fact that the treaty creates what would be the world’s first permanent international criminal court to try individuals for what are considered among the most egregious of crimes, but also for the numerous advancements and developments in international law reflected in the statute, including a nearly unprecedented level of gender integration as well as a heightened attention to the role victims and witnesses play in the process.

The Preparatory Commission for the ICC is now in the midst of drafting documents needed to implement the Rome Statute -- the Rules of Procedure and Evidence and an Elements Annex, which will further define the crimes within the Court’s jurisdiction. These tasks are scheduled to be completed by June 2000.

As part of this effort, the PrepCom must develop a framework in the Rules of Procedure and Evidence that will give effect to the mandates around victim participation and protection contained in the Rome Statute. Article 68 of the statute is the centerpiece of this mandate. There, it states, inter alia:

1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

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3. Where 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 and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of procedure and Evidence.

Another important achievement in the Rome Statute is that the Court has the ability to award reparations, including compensation, restitution and rehabilitation, in accordance with Article 75. In addition to their ability to present their views and concerns at appropriate stages, there are several places in the statute which specifically allow for victims to make such representations. Also, the Statute, in Article 43 calls for the establishment of a Victim and Witness Unit which must include staff with expertise in trauma, including trauma related to sexual violence. Articles 44 and 36 mandate that the need for legal expertise in violence against women and children must be taken into account in the selection of judges, prosecutors and other staff. And, article 42 states that Prosecutors must appoint advisors with legal expertise in certain areas, including sexual and gender violence.

By giving victims a voice and a place in the process in this way, the body recognized the enormity and personal cost of the victim’s contribution to justice and built in an institutional respect for their interests. The Prepcoms are now grappling with the details of the nature and extent of the role victims in the ICC. The issues relate to notification to victims, methods of participation and representation, the stages during which victims will participate and measures for their physical and psychological security and protection.

To facilitate the negotiations, the Government of France hosted the “International Seminar on Victims Access in the International Criminal Court” from 26-29 April 1999 in Paris. There, experts, delegates and NGO’s came together to discuss these issues and develop draft rules which would be transmitted to the Preparatory Commission for discussion at the July-August 1999 PrepCom. Many of the proposed rules were provisionally adopted in the July-August Prepcom with the expectation that they will be sifted through more carefully at future Prepcoms.

From the standpoint of those concerned about the role and treatment of victims and witnesses, the explicit mandates in the statute are indicative of a broader and more evolved concept of justice. Historically, criminal trials in both civil and common law systems were largely geared to vindicating society’s interest in preventing and punishing crime more than a concern for individual victims and their rights to and need for redress.

While these concepts present some practical challenges in terms of implementation, this is perhaps due more to the fact that traditional thinking has steered clear of addressing these needs moreso than the needs themselves are insurmountable or impossible to address. There are those in the ICC process who have considered the attention to the concerns of victims advanced in the negotiations as “coddling” or, in the words of one of the panelists, as “social work.” However, as the stories of the panelists demonstrate, what advocates are attempting to ensure is far from coddling. Some of the accounts of what victims and witnesses have been expected to endure in the pursuit of justice are appalling.

Traditionally, victims have been the last in line in terms of the weight given to their interests. On the international level, we have seen that often justice is traded for peace, leaving victims of horrendous atrocities without a much needed societal renunciation of the crimes committed against them. In those instances when justice is deemed to not be an undue impediment in a peace process, the form that the justice has taken has often left a lot to be desired from the victim’s point of view. When justice – or ending impunity – is deemed important in a given scenario, the concerns and needs of victims in the process have often been viewed as more of a hindrance than an opportunity to help facilitate the rebuilding of their trust and faith in the world around them.

Thus, when it comes to victims and witnesses, the Court is not simply a replication of many traditional notions of criminal justice which evince little or no concern for the needs of victims and, in the worst of cases, further compound the harm already done. Rather, the creation of the world’s first permanent criminal court presents an opportunity for victims and witnesses to be brought more squarely and actively into the justice process and play more of a role in a justice that would rightfully belong to them as well. In this way, justice would become an even more viable component of a larger healing process for survivor communities.