International Criminal Law Assignment

I.          Introduction

Victims’ participation in the proceedings of the International Criminal Court (hereinafter referred to as ICC) gives a positive effect of the rights to accuse under international human right law. Victims participating in the ICC proceedings is not only balancing evidences that link to crimes but also ensuring the rights of victims to get justice and participate in fair and public hearing by a competent, independent and impartial tribunal established by law. The victim rights to participate and to get the access to public hearing by a tribunal have been forgotten; although, victims are innocent actors and has a fundamental feeling of great distress because of atrociously international crimes. In contrast to witness positions in the proceedings, a witness position has a direct representation and wider scopes than victims. While a witness can take part at every level at the proceeding, victim participation at proceedings is different from case to case and it depends on the Court’s views. Before ICC was established, victims were voiceless. In many international crimes, victims are the weaker party or passive participance within international crimes.

International tribunals, for instance, the Special Court for Sierra Leone and ICC, have started to endow enforceable rights and standing to victims.[1] This guarantee of the ICC for victim rights is clearly stated in the second preamble paragraph of the ICC Statute.[2] The victim rights are granted by the ICC through the procedures, for instance, submitting victims’ views and concerns to the Court.[3] Moreover, victims’ participations have two possibilities they may make representation and observation.[4] Victims are allowed to participate as long as ‘the manner of victims is not prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial’.[5]    

Victims’ Definition can be natural persons or organizations. As a natural person, a victim should have suffered harm as a result of the commission of any crime within the jurisdiction of the ICC[6] while an organization could be considered as a victim if it has sustained direct harm to any of their properties.[7] In determining victim status at the ICC, whether a victim has a legal standing or not, the ICC has to use four criteria[8]; first, ‘a victim must be a natural person; second, a victim ‘must have suffered harm’; third, ‘the crime from which the harm ensued must fall within the jurisdiction of the Court’; and fourth, there must be a causal link between the crime and the harm suffered.[9]

II.        Regulation

The legal basis of victim participating in the ICC is Article 15 (3), 19 (3), and 68 (3) of the ICC, Rule 89 and 91 of RPE and in accordance with this provision, the legal basis of ruling on the admissibility or relevance of evidences that comes from victims is Article 69 (4) and 64 (9) of the ICC. 

III.      Argumentation

To highlight Article 68 (3) of the ICC assigns authority to the Court to allow victims’ views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court.[10] The Court can determine which proceeding stages can be appropriate for victims to participate. This great significance and advancement of an international criminal procedure enable victims to take part in the proceedings by expounding in the Court victims’ views and concerns.[11] The victims’ views and concerns can be interpreted, in light with good faith in the Article 31 (1) of the Vienna Convention, as victims ‘personal perspective or opinion on an issue’[12] or a case and ‘participating in the case ‘to tender and examine evidence’.[13]  

            To tender and examine evidence can be done if victims are allowed to take part in the investigation level that is conducted by prosecutors.         Victim participating at the investigation stage is important to collaborating evidences that are provided by prosecutors. In this position, victims are prosecutors’ partners to collect evidences and prosecute perpetrators. This position is important because victims know the contexts of the case while prosecutors know about prosecuting perpetrator. Since victims personal interests are affected by crimes, victims’ information about a crime is needed to clarify the fact. Victims participating at the investigation stage, therefore, bring crimes into light and give fair trial for perpetrators to adjudicate in regard with fact.[14] This stage is in accordance with the Article 15 (3) and 19 (3) of the ICC Statute.    

The notion of a fair and impartial trial in Article 68 (3) of the ICC is in accordance with Article 64 (2) of the ICC that the Court assures the right to a fair trial must be balance against other interests.[15] This notion gives great position for victims to participate in the ICC proceedings and to ensure the victims’ rights getting access to justice. However, the right of victims to participate in judicial system is not explicitly laid down in human rights treaties, unlike the ICC Statute. The victim’s right that protects under the ICCPR is only the right of compensation[16]; nonetheless, victims need more than just remedy or compensation, for instance, victims would like to be heard and participate in the judicial system. Contrary to a witness position either as a counter actor or a pro-actor of the perpetrators at the proceedings, witnesses have more acceptable legal standing than a victim. Victims’ participation has not had a fix procedure that can be similarly implemented in every case. At international criminal proceedings the evidentiary system relying on witnesses is largely dependent on[17] availability of a witness to testy the crimes. Through the Court decision at several cases on Victims’ Participation and the ICC provisions, there are the new developments of victim participation at the pre-trial stage, for instance, ‘notification rights; access to transcripts and documents in the case in the form they are made available to the non-proposing party; the right to examine and make submission on the admissibility and value of evidence on which the Prosecution and Defense intend to rely on the confirmation hearing; the right to examine witnesses, attend hearings, make oral motions, responses and submissions, and file written motion, responses and replies’.[18]         

However, every victim has different capability to express her or his though and information in regard with the fact by virtue of that the ICC provides a legal representative for victims to represent their views and concerns at the Court.[19] Victims’ representatives ‘could make opening and closing statements and request leave to intervene during the public sessions of the confirmation hearing’.[20]  Having a legal representative is not only avoiding prejudicial and inconsistent with the rights of the accused but also assuring a fair and impartial trial for the perpetrators.     

  

IV.      Conclusion

In conclusion, allowing victims to participate in the ICC proceedings brings progressive development of evidentiary system and significant effect on international criminal justice. It is not only achieving ‘the objective of reconciliation’ but also decreasing a system that likely creates injustice. Assuring victims to participate enables them ‘to feel that they are part of a mechanism designed to deliver justice’. This process may bring to national levels a positive process on building peace and reconciliation.[21]

            Comprehensive investigation that can find complete evidences shall be provided by prosecutors and victims. In order to get comprehensive investigation, victim role in the proceedings shall not be as prosecutor tools; however, victim role is a one of actors that can participate in the proceedings. The more relevant evidence can be provided by the Court, the more justice and fair trial can be assured by the ICC. The ICC has the great advantages to allow victims involvement actively at the proceedings. One of the great advantages is the provisions that can make the new development of evidentiary system that victims can be participated at the investigation level and can provide evidences. Now, it is in the hand of the ICC to explore more possibility to secure victim rights to participate in the proceedings.       

---

[1] Knoops, Theory and Practice of International and Internationalized Criminal Proceedings, Kluwer law International, 2005, at 198

[2] Lee, The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publisher, 2001, at 456

[3] Calvo-Goller, The Trial Proceedings of the International Criminal Court, Martinus Nijhoff Publishers, 2006, at 244

[4] Article 15 (3) & Article 19 (3) of the ICC Statute.

[5] Article 68 (3) of the ICC

[6] Rule 85 (a) of the ICC RPE

[7] Rule 85 (b) of the ICC RPE

[8] Ryngaert, The Effectiveness of International Criminal Justice, Cost Office, 2009, at 97

[9] Decision on the Applications for Participation in the Proceedings of VPRS 1-VPRS 6, ICC-01/04, 17 January 2006, at 79

[10] Henham, Punishment and Process in International Criminal Trials, Ashgate, 2005, at 73

[11] Cassese, The Statute of The International Criminal Court: Some Preliminary Reflections, European Journal of International Law 10, at 167

[12] See supra note No. 7, at 72

[13] See supra note No. 7, at 92

[14] See supra note No. 6, at 63

[15] See supra note No. 1, at 460

[16] Article 9 (5) of the ICCPR

[17] See supra note No. 1, at 202

[18] See supra note No. 8, at 105-106

[19] Rule 90 RPE ICC

[20] See supra note No. 8, at 106

[21] Zappala S, Human Rights in International Criminal Proceedings, Oxford, 2003, at 232