I.
Introduction
The
global criminal procedure systems are classified into two systems; the
adversarial system is called common law and the inquisitorial system is called
civil law system. The parties at the trial are the prosecutor, defense, and
victim and the parties are adducing their evidence in order to seek the truth.[1]
The International Criminal Court as a global criminal court is likely to choose
the inquisitorial model. It is challenging for the International Criminal Court
to combine the two procedure systems; therefore, victims’ participation in the
proceedings of the International Criminal Court (hereinafter referred to as
‘ICC’) gives a positive effect on the rights of the accuse under international
human right law. Victims participating in the ICC proceedings are not only balancing
evidences and bringing local knowledge to the international views but also
ensuring that the rights of victims to receive justice through participation in
a fair and public hearing by a competent, independent and impartial tribunal.
International
tribunals, for instance, the Special Court for Sierra Leone and ICC, have
started to endow enforceable rights and standing to victims.[2]
This guarantee of the ICC for victim rights is clearly stated in the second
preamble paragraph of the ICC Statute.[3]
The victim rights are granted by the ICC, for instance, submitting victims’
views and concerns to the Court.[4]
Moreover, victims’ participation has two possibilities; they are able to
represent them self or observe the proceedings.[5]
Victims are allowed to participate as long as ‘the manner of the victim is not
prejudicial to or inconsistent with the rights of the accused in line with a
fair and impartial trial’.[6]
By
definition, “victim” 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 while an organization could be
considered as a victim if it has sustained direct harm to any of its
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, ‘… the identity of the applicant as a natural person …; second, ’… a
crime within the jurisdiction of the Court’; third, ‘whether the applicant
claims to have suffered harm’; and fourth, ‘… harm appears … “as a result” of …
a crime within the jurisdiction of the Court.[9]
The definition of victims does not mean that the ICC will minimize their
participation. It is clear through the appeal decision of the Lubanga case that
ICC allows victims to participate at ‘any identified stage of the proceedings’
and they ‘should set out in a discrete written application the nature and the
detail of the proposed intervention’.[10]
II.
Regulation
The
legal basis of victim participating in the ICC is presented in Article 15 (3),
19 (3), and 68 (3) of the ICC, Rule 85 (a) and (b), 89 and 91 of RPE. In accordance
with this provision, the legal basis of ruling on the admissibility or
relevance of evidence presented by victims is contained in Article 69 (4) and
64 (9) of the ICC.
III.
Argumentation
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
appropriate by the Court.[11]
This great significance and advancement of an international criminal procedure
enables victims to take part in the proceedings by expounding in the Court.[12]
The victims’ views and concerns can be interpreted, with good faith in light of
Article 31 (1) of the Vienna Convention, as victims ‘personal perspective or
opinion on an issue’[13]
or a case and ‘participating in the case to present and ‘examine evidence’.[14]
Evidence can be presented and
examined if victim participation is permitted at the investigatory level
conducted by prosecutors. Victim participation at the investigatory stage is
important to collaborate evidence provided by prosecutors. In this position,
victims are partners with the prosecutors in collecting evidence and prosecuting
perpetrators. This position is important because victims know the context of
the case and have local knowledge while prosecutors are experts at prosecuting
the perpetrator. Since victims’ personal interests are affected by crimes,
victim information on a crime is needed to clarify the fact and victims also have
a vested interest in the outcome of the proceedings[15].
Victims participating at the investigation stage, therefore, bring crimes into
light in regard to the fact. Involvement at this stage is in accordance with
the Article 15 (3) and 19 (3) of the ICC Statute. [16]
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 asserts that the right
to a fair trial must be balanced against the other interests of the parties.[17]
This notion gives great scope for victims to participate in the ICC proceedings
and to ensure the victims’ rights getting access to and being part of justice. Another
victim’s right that is protected under the ICCPR is the right to compensation[18];
nonetheless, victims need more than just compensation, for instance, victims
would like to be heard so that they can feel that they are part of the global
justice system and they can participate in the judicial system. Contrary to a
witness position either as a prosecution witness or a defense witness at the
proceedings, while witnesses have direct legal standing victims do not have direct
legal standing. Victims’ participation at every case had not a fix guideline in
which stages they could actively participate. Nevertheless, there have been
recent changes to this that through the Court decision at several cases on
Victims’ Participation and the interpretation of ICC provisions and RPE ICC,
there are the new developments of victim participation at the ICC, for
instance, as indicated below
1. Victims
can access case records, documents and files. where documents are confidential victims
are allowed to access them as long as the ‘material relevance to the personal
interests of participating victims’ and ‘it will not breach other protective
measures’[19];
2. the
victims’ legal representatives are allowed to provide evidence ‘when their
interests are engaged.’[20];
3. victims
have the opportunity to submit ‘written and oral submissions.’[21]
The
notion of bringing local knowledge through victims’ participation to the ICC is
that the ICC, as an international court, has responsibility to close the gap
between local conditions of a crime which are sometimes difficult to be
understood by external parties and international court. To be able to
understand the local condition, the ICC needs the victims to internationalize
the local knowledge through the ICC proceedings.
However,
every victim has different capabilities to express her or his thoughts and
information this being evident by the fact that the ICC provides a legal
representative for victims to represent their views and concerns at the Court.[22]
Victims’ legal representation ‘could make opening and closing statements[23]
and request leave to intervene during the public sessions of the confirmation
hearing’.[24] Having
a legal representative not only avoids prejudicial and inconsistent victim
representation but also assures a fair and impartial trial for the
perpetrators.
IV.
Conclusion
In
conclusion, allowing victims to participate in the ICC proceedings brings
progressive development of an evidentiary system, and significant effect on
international criminal justice. It is not only achieving ‘the objective of reconciliation’
but also preventing a system that likely creates injustice for victims. Allowing
victims to participate enables them ‘to feel that they are part of a mechanism
designed to deliver justice’ through the ICC. This process may bring to
national levels a positive process on building national peace and
reconciliation.[25]
Comprehensive investigation seeking
evidence shall be provided by prosecutors and victims. In order to get
comprehensive investigation, victim role in the proceedings shall not be as a prosecutor’s
tool; however, victim role is one party of the ICC proceedings. The more
relevant the evidence that can be provided by the Court, the more fair just
that can be assured by the ICC. The ICC has the great advantage of allowing
victims active involvement actively at the proceedings. One of the great
advantages is that the provisions can make new development of evidentiary
system that victims can participate at the investigation level and can provide
evidences. This advantage enables victims who are local people, to be part of the
global judicial system.
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[1] Cassese, Gaeta, Jones, The Rome Statute
of The International Criminal Court, A Commentary, Vol. II, Oxford, 2002, at
1440 & 1444.
[2]
Knoops, Theory and Practice of
International and Internationalized Criminal Proceedings, Kluwer law
International, 2005, at 198.
[3]
Lee, The International Criminal
Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational
Publisher, 2001, at 456.
[4]
Calvo-Goller, The Trial Proceedings
of the International Criminal Court, Martinus Nijhoff Publishers, 2006, at 244.
[5]
Article 15 (3) & Article 19 (3)
of the ICC Statute.
[6] Article 68 (3) of the ICC.
[7] Rule 85 (a) & (b) of the ICC RPE.
[8]
Ryngaert, The Effectiveness of
International Criminal Justice, Cost Office, 2009, at 97.
[9]
ICC Decision Trial Chamber I on the
Appeal of Prosecutor v Thomas Lubanga Dyilo of Victims’ Participation,
ICC-01/04-01/06, 18 January 2008, at 14.
[10] See supra note No. 9 at 103.
[11]
Henham, Punishment and Process in
International Criminal Trials, Ashgate, 2005, at 73.
[12] Cassese, The Statute of The
International Criminal Court: Some Preliminary Reflections, European Journal of
International Law 10, at 167.
[13] See supra note No. 8, at 72.
[14] See supra note No. 8, at 92.
[15]
See supra note No. 9, at 97, ‘…
general interest of the victims are very wide ranging and include an interest
in …, an interest in being allowed to express their views and concerns, an
interest in verifying particular facts and establishing the truth, an interest
in protecting their dignity during the trial and ensuring their safety, and an
interest in being recognized as victims in the case, among others…’
[16]
See supra note No. 11, at 63.
[17]
See supra note No. 2, at 460.
[18] Article 9 (5) of the ICCPR.
[19]
See supra note No. 9, at 106.
[20] See supra note No. 9, at 111.
[21]
See supra note No. 9, at 112.
[22]
Rule 90 RPE ICC.
[23] See supra note No. 9, at 117.
[24]
See supra note No. 8, at 106.
[25]
Zappala S, Human Rights in International Criminal Proceedings, Oxford, 2003, at
232.
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