THE ROLE OF VICTIMS IN THE
ICC – Professor Sam Garkawe
• VICTIMS HAVE COME A LONG WAY IN
INTERNATIONAL CRIMINAL JUSTICE!
• THE FIRST INTERNATIONAL CRIMINAL
COURT: THE NUREMBERG
INTERNATIONAL MILITARY TRIBUNAL
• VICTIMS WERE HARDLY A FACTOR!
VICTIMS & PREVIOUS INTER/L
COURTS I
• See Sam Garkawe, ‘The Role and Rights of
Victims at the Nuremberg International Military
Tribunal’ in Reginbogin H & Safferling C (eds),
The Nuremberg Trials: International Criminal
Law Since 1945
, published by KG Saur Verlag,
2006, pp 86-94
• Why victims/survivors played a small role
VICTIMS & PREVIOUS INTER/L
COURTS II
• The Cold War period
• No international courts, but some
prominent domestic cases
•
Eichmann –
role of victims
•
Barbie –
about 40 victims appointed
lawyers to become civil prosecutors
VICTIMS & PREVIOUS INTER/L
COURTS III
• UN Security Council gets involved in
international justice – forms ICTY in1993 & ICTR
in 1994 – similar Statutes re victims
• Establishment of Victim and Witness Units
• Special procedural rules for vulnerable
victims/witnesses
• Meek attempt to facilitate reparation
• A vast improvement – why? (see Sam Garkawe,
'Victims and the International Criminal Court:
ICC I – WHAT CRIMES?
THE ICC CAN PROSECUTE THE
FOLLOWING CRIMES:
1) GENOCIDE (article 6)
2) CRIMES AGAINST HUMANITY (article 7)
3) WAR CRIMES (article 8)
4) Maybe AGGRESSION from 2017 – in
ICC II – CURRENT CASES 1
•
UGANDA
– 5 arrest warrants issued against
leaders of the LRA (1 has died, 4 cases still)
•
DEMOCRATIC REPUBLIC OF THE CONGO
–
1
sttrial of ICC - LUBANGA (child soldiers) is at
the trial stage, as is one other case. 2 other
cases at pre-trial stage (4 suspects in custody)
•
DARFUR, SUDAN
– 4 cases at pre-trial stage, 3
arrest warrants issued (government people,
including the Head of State), 1 person voluntary
before the ICC
ICC II – CURRENT CASES II
•
KENYA
– investigation opened – 6
defendants summoned by Chamber
•
LIBYA
– 3 arrest warrants issued late June
2011 against leader, his son and a key
Minister
ONLY 5 PEOPLE ACTUALLY IN CUSTODY
ICC III – WHICH STATES ARE
PARTIES?
• AS AT 17 JULY 2011 THERE WERE 115 STATE
PARTIES
• 15 FROM ASIA (not Indonesia)
• 18 FROM EASTERN EUROPE
• 25 FROM WESTERN EUROPE AND OTHERS
• 32 FROM AFRICA
• 26 FROM LATIN AMERICA/CARIBBEAN
MAJOR INNOVATIONS OF THE
ICC - VICTIM PERSPECTIVE
• Presumption in favour of measures of protection for certain victims [art 68(2)]
• Possibility of separate representation for victims [art 68(3)]
• Reparation scheme for victims [arts 75/79] • More emphasis on outreach program
• W Schabas, Introduction to the [ICC] (3rd ed, 2007: 327)
‘The attention given to the role and rights of victims by the Rome Statute of the [ICC], and by subsidiary
PROVISIONS OF ICC STATUTE I -
DEFINITION
See Sam Garkawe, `The Victim-Related provisions of the Statute of the [ICC] - A Victimological Analysis' (2001) 8 (3) International Review of Victimology 269
• Definition of ‘victims’: Rule 85 of the Rules of Procedure and Evidence
• (a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;
• (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or
PROVISIONS OF ICC STATUTE II
– PROTECTION MEASURES
• Article 68 (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
PROVISIONS OF ICC STATUTE III
PARTICIPATION OF VICTIMS
• Article 68 (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
PARTICIPATION OF VICTIMS
UNDER ARTILE 68 (3)
• Discretionary decision of a Chamber
• At what point in proceedings?
Situation in the
Democratic Republic of Congo:
Pre-Trial
Chamber I (17 January 2006)
• Pre-trial Proceedings
• Problem of numerous victims
• Degree of involvement of victims’ legal
representative
PROVISIONS OF ICC STATUTE IV
- REPARATION
Article 75 (1) The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.
• (2) The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for
reparations be made through the Trust Fund provided for in article 79.
PROVISIONS OF ICC STATUTE V
INSTITUTIONS ESTABLISHED
• The Trust Fund for Victims [Art 79]
• The Victims and Witnesses Unit (under
the Registry) [established under Art 43 (6);
functions set out in Rule 17 (2) of the
Rules of Evidence and Procedure]
SOME CONCERNS
• ICC STATUTE IS A COMPROMISE
BETWEEN THE MAJOR WESTERN
CRIMINAL JUSTICE SYSTEMS – WHAT
ABOUT NON-WESTERN SYSTEMS?
• WILL THE ICC PRECLUDE NATIONS’
OWN UNIQUE CULTURAL WAYS OF
DEALING WITH ACCOUNTABILITY?
• WILL VICTIM PROCEDURES ADD TO
