The statute of the International Criminal Court (ICC), adopted on 17 July 1998, is an historic step towards the recognition of the rights of victims. Despite its innovations in terms of establishing mechanisms for criminal action against individuals accused of the most serious crimes, international criminal law has so far neglected the role, situation and rights of the victim.

From 1948 to 1998, from Nuremberg to the ICC, from the justice of victors to justice for the victims, the demands of international law have constantly evolved, without really taking victims’ interests and rights into account. The second session of the ICC Preparatory Commission at the end of the July will give the States a unique opportunity to engage in a fundamental debate and an unprecedented exchange of views about the rights of victims in international criminal proceedings. The session will negotiate the Proceedural and Evidentiary Regulations for the future Court, which must be approved by 30 June 2000 at the latest.

From victim as witness to victim with rights
The first innovation of the ICC constitution is to consider the victim, not just as a mere witness, but in his or her capacity as a person who has suffered a wrong. However, such a description has not won the unanimous support of governments or even NGOs. Indeed, it is often said that the principal objective of bringing criminal proceedings before an international court is to punish a criminal act against the international public order. However, does such an objective justify the victim being considered just as a witness rather than as a person entitled to reparation for the harm he or she has suffered ? The issue is to acknowledge what the victims have suffered, while concomitantly hearing their accounts, as witnesses, of what they have seen.
Achieving a coherent blend of civil law and «Anglo-Saxon» law
The place accorded to the victim in the criminal process depends essentially on the legal system under which the case is being tried. Under the French criminal system, a civil system par excellence, the victim may apply to join the proceedings as a civil party.

One of the consequences of this arrangement is that the victim acquires the capacity of a party to the criminal process. From this key point in the proceedings, the victim is differentiated from the mere witness. He or she does not need to swear an oath, is involved in the development of the proceedings and can win damages. The «Anglo-Saxon» system, by contrast, does not give the victim the right to join the proceedings as a civil party before a criminal court. Under this system, only civil action will give the victim the right to damages.

Managing the number of victims
The possibility of a very large number of victims appearing at the ICC is an incentive to devise legal mechanisms whereby victims can be treated as parties entitled to payment, and be awarded compensation, without this hampering the efficiency of the Court. While the principle of the victim’s participation at the Court has been acknowledged, the practicalities of such involvement are far from resolved. One of the main difficulties is that the Court will deal with crimes committed on a large scale. Moreover, all the victims will, by definition, have suffered a wrong and have an interest in taking action. This is why the States, which will meet in New York this summer, will have to find a fair balance between the French notion of victims as civil parties and the idea of «class action», as per US law.

From Nuremberg to the ICC : what progress for the victims ?
Although the proceedings of the military court of Nuremberg, set up to judge Nazi war criminals, were among the first steps towards challenging impunity, they did not meet the need for justice for the millions of Holocaust victims.

Subsequently, the creation of the two international criminal courts for ex-Yugoslavia and Rwanda, with rules largely inspired by «Anglo-Saxon» law, did not introduce any major innovations in terms of the participation and protection of the victims. Although special measures were adopted to protect the anonymity of witnesses and victims, they still seem very inadequate. The victims’ safety can in fact only be really guaranteed when they are actually giving oral evidence before the courts. Victims often have good reason to feel threatened and therefore have a legitimate interest in being granted additional protection outside the court, as well as when repatriated or relocated. In addition, the system has often been criticised for exposing witnesses and victims to sometimes gruelling counter-questioning by lawyers representing the accused. Before the ad-hoc courts, the victim is only a witness in the stand: he or she is far from being a full participant in the proceedings.

Because of pressure from the NGOs and in order to correct the shortcomings of the already existing criminal courts, the drafters of the ICC’s constitution were careful to include provisions relating to the rights of the victims. In particular, unlike the above-mentioned ad-hoc courts, the constitution enshrines the victim’s right to be heard, to be protected and to receive compensation.

The ICC’s constitution thus makes a distinction between the status of victim and that of witness. The victims become active participants, «subjects of law» in the international legal system.

The constitution’s provisions relating to victims will need to be made more specific during the negotiations on the Court’s Proceedural and Evidentiary Regulations. Some countries have already set about this task, such as France, which took the initiative of holding an international conference on «victims’ access to the ICC» in Paris, April 1999.
France will present the conclusions of this seminar as a working document for consideration during the negotiations on the PERs [1].

One of the conference’s first objectives was to arrive at an acceptable definition of the notion of the victim. The definition unanimously adopted at the Paris conference derives in part from the definition given in resolution 40/34 by the General Assembly of the UN on 19 November 1985 [2]. The victim is thus defined as «any person or group of persons who, directly or indirectly, individually or collectively, have suffered harm as a result of crimes falling within the Court’s jurisdiction» [3].
The innovation in the Paris conference’s definition is that victims of a crime can now include «indirect» victims of the violation, successors in title, for example. It should be noted that the practical consequences flowing from a wide definition of the concept of victim triggered debate and acute concerns.

The second innovation would enable mandated associations representing the victims to relay their views and concerns to the Court. It is hard to imagine an organisation presenting itself before the Court as a direct victim. Nevertheless, this opens the door to associations and organisations which in their constitutions propose to combat the crimes falling within the Court’s jurisdiction and to exercise the rights accorded to the victims by the Court’s constitution by representing them.

The debate then focused on the procedure for victim participation in ICC proceedings. The issue was to define the specifics for article 68 of the statute, which organises the general law for such participation. According to this article, victims will have access to the Court at any time during the proceedings. This is the premise. However, as an exception to this principle, the Court can rule out intervention by the victims either because their «personal interests» are not involved or because it is not «opportune» or «appropriate» to give them access to the proceedings at a given point in the trial.

There was also talk of creating a Victim Support Division, which would be a specialised body coming under the Court Registry, with the principal task of informing victims of their rights and guaranteeing their safety. It would consist of experts in areas relating to the care of victims, such as psychologists, legal experts, or experts in the area of sexual offences. In addition, the Division would have to ensure fair representation between men and women, between different cultural perspectives on victimisation and between different legal systems. There was a thorough debate around the issue of confidentiality and anonymity for victims [4]. There were two opposing theses. Experts from the «Anglo-Saxon» tradition, fearing that complete anonymity for the victim would violate the principle of equal rights for the defence and the prosecution, refused to accept exceptional protection measures for victims. The opposing thesis supported the need to provide complete anonymity when victims have reason to fear direct or indirect threats if they reveal their identity, though this would naturally be in truly exceptional circumstances.

Finally, the discussions turned to the matter of an effective mechanism for the victim’s rights to compensation. As per article 75 of the constitution, this would empower the Court to grant compensation for harm suffered. It was noted that experts had been unable to agree on the procedures for establishing a fund for victims and it was therefore not possible to identify the source of contributions to finance the fund. However, it was suggested that a proportion of the States’ obligatory contributions to the Court should be diverted to the fund.

As we prepare to celebrate the first anniversary of the approval of the statute of the International Criminal Court, the issues at stake in terms of provisions for victims’ access to the proceedings clearly demonstrate why the FIDH is still mobilised and still alert.

Notes :

1. Proceedural and Evidentiary Regulations. Negotiations on these will continue until 30 June 2000.
2. « Declaration of the fundamental legal principles relating to victims of criminal acts and abuses of power ».
3. Harm is taken to mean « any physical or mental violation, any moral suffering, any material damage or any substantial violation of fundamental rights ».
4. Rule E of the Victim Protection Seminar says : « In exceptional circumstances and at the request of the parties, the victims, the witnesses or their representatives, the Court may order special measures other than those listed above ».

(From La Lettre n°19, 24th June)