Victims’ Rights, International Criminal Law, and Proceedings

by

Carla Ferstman

• LAST REVIEWED: 30 September 2013
• LAST MODIFIED: 30 September 2013
• DOI: 10.1093/obo/9780199796953-0106

Introduction

Victims’ rights in international criminal proceedings is a relatively new field. Most international criminal courts and tribunals established since Nuremberg, including the ad hoc criminal tribunals for Rwanda and the former Yugoslavia as well as the Special Court for Sierra Leone, have given only sparse consideration to victims’ concerns and have limited the space for their active engagement with such institutions beyond the role of prosecution witness. However, changes during the late 20th and early 21st centuries have occurred with the strong provisions on victims’ rights set out in the International Criminal Court statute and to an extent, the regulations of the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon. Thus, much of the literature on victims’ rights, international criminal law, and proceedings tends to fall into one of two categories: (1) broad reviews of the progressive development of victims’ rights, drawing on the growth of domestic victimology movements and the development of normative standards on victims’ rights at the international level; (2) technical analyses of the efforts to realize victims’ rights before international criminal courts and tribunals, considering the array of measures that have been put in place to positively engage victims in the criminal justice process. In particular, these analyses tend to focus on victims’ perceptions of international criminal proceedings, victim and witness protection, the ability of victims to participate in proceedings, and new possibilities for victims to claim reparations. Now that there have been several years of court proceedings before the International Criminal Court, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, a number of academics and practitioners have begun to evaluate the impact of these new procedures.

Textbooks and General Overviews

Most of the general overviews relevant to the topic are not specific to victims’ rights, though they tend to have sections devoted to the topic in their broader works. Several excellent overview texts exist that focus on international criminal procedure. These are important to situate procedural aspects of victims’ rights within the broader framework of international criminal procedure, though their coverage of victims’ issues tends to be mainly descriptive. For instance, Cryer, et al. 2010 provides a useful and accessible introduction to international criminal procedure, and different from its first edition, the second edition includes an entire section dedicated to victims’ issues. Similarly, Safferling 2012 has several sections relating to victims’ issues and provides a helpful survey of jurisprudence from a range of different international courts and tribunals as well as certain domestic courts, with an overall emphasis on the International Criminal Court. Sluiter and Vasiliev 2009 contains several chapters relevant to victims, particularly chapters 4 and 5, and Ascensio, et al. 2012 contains an important article that considers the place of the victim in international criminal procedure. Zappalà 2003 differs from the other texts with its main emphasis on human rights protections afforded to the defense; however, it contains an important chapter on victims’ issues that draws out some of the key balances that judges and others have needed to consider between the exercise of victims’ rights and the need to guarantee the rights of the defense and a fair and impartial trial. Other general texts relevant to the topic are focused on a historical review of the negotiation process leading to the adoption of the International Criminal Court statute. Many of the victims’ provisions in the International Criminal Court statute were the subjects of intense debate during the negotiation process, resulting in compromise texts. As there are no official travaux preparatoires to the statute, in many cases these article-by-article reviews of the negotiation process, written by state officials or other participants or observers to the negotiations, are the only insight to the original intent of the drafters. For instance, Triffterer 2008 contains important analyses of Article 68 (victim participation) and Article 75 (reparations) of the International Criminal Court statute, and the earlier text of Lee 1999 contains a review of the negotiations leading to the adoption of the provisions relating to reparations.

• Ascensio, Hervé, Emmanuel Decaux, and Alain Pellet, eds. Droit international pénal. 2d ed. Paris: Pedone, 2012.

  This is the second edition of this key French-language text on international criminal law and procedure, which was first published in 2000. Contains an article on the place of victims in international criminal procedure by a lawyer working on victim participation cases at the International Criminal Court, and several chapters on civil responsibility and reparation.

• Cryer, Robert, Håkan Friman, Darryl Robinson, and Elizabeth Wilmshurst. An Introduction to International Criminal Law and Procedure. 2d ed. New York: Cambridge University Press, 2010.

  DOI: 10.1017/CBO9780511760808

  Second edition to this accessible text provides an entire section on victims and witnesses.

• Lee, Roy S., ed. The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results. The Hague: Kluwer Law International, 1999.

  Provides a review of the key areas of challenge in the adoption of the Rome Statute, with contributions from state delegates to the Rome Conference and others closely involved with the negotiation of the International Criminal Court statute. Chapter 8, section 5 by Christopher Muttukumaru, from the United Kingdom delegation, focuses on the adoption of the provisions relating to reparation for victims (pp. 262–269).

• Safferling, Christoph. International Criminal Procedure. Oxford: Oxford University Press, 2012.

  Contains several sections on issues relating to victims, which are helpfully broken down into narrow subheadings, for example, section 4(d) on victims and witnesses (pp. 164–178); section 6(f) on victims’ participation during the investigation stage (pp. 310–315); section 7(e) on victims’ participation during the confirmation proceedings (pp. 375–377); section 8(g) on victims’ participation at trial (pp. 528–530); section 8(e) on victims’ and witnesses’ protection (pp. 515–521).

• Sluiter, Göran, and Sergey Vasiliev, eds. International Criminal Procedure: Towards a Coherent Body of Law. London: Cameron May, 2009.

  Collection of essays discussing the potential for the development of a uniform international criminal procedure. In the book’s second section, which deals with the role and legal status of the major procedural actors, there is a chapter on the role of victims at both national and international levels and an additional chapter on victim participation before the International Criminal Court.

• Triffterer, Otto, ed. Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article. 2d ed. Munich: C. H. Beck, 2008.

  Provides an article-by-article analysis of the drafting history of the International Criminal Court statute and related texts. Contains articles on the challenges to adopt provisions relating to victim participation and reparations to victims.

• Zappalà, Salvatore. Human Rights in International Criminal Proceedings. Oxford Monographs in International Law. Oxford: Oxford University Press, 2003.

  A monograph on the relevance of human rights to international criminal procedure, focusing primarily on defense rights. Contains important section on victims’ rights, considered from the lens of fair trial standards and the unequivocal rights of the defense.