ICC Criminal Law

1. Introduction

The ICC has revolutionized international criminal law in many respects, one of which was enhancing the standing platform and participation for victims and witnesses of crimes. The purpose of this paper is to discuss the principal changes in this area introduced by the ICC Statute.

2. Historical approach to victims’ participation

To understand the changes the ICC brings to this area, it is necessary to outline the historic approaches to the role of victims in criminal proceedings. There are some important conceptual differences between the common and civil law traditions. Many civil law jurisdictions allow victims “to participate directly in proceedings”. The approach of common law countries is different and “criminal prosecution is seen as essentially a matter of public policy in which victims have a role that is marginal at the best of times.”

The early approach towards victims under international criminal law followed common law thinking “and had relatively little to say with respect to victims”. The example of this approach was the Nüremberg tribunal, which largely ignored the interests and needs of the victims.

The view towards victims’ participation is different today, influenced by a number of factors: the need to rehabilitate the victims, strengthen their marginal role in the adversarial criminal justice systems and protect the rights of the most vulnerable groups – women and children.

These considerations played an active role in shaping the mandates of the Tribunals for the Former Yugoslavia and Rwanda in the 1990s. These ad hoc bodies introduced a number of significant innovations in relation to the protection of the victims of crimes.

3. The ICC approach

The Rome Statute “builds upon and further enhances the victim measures” introduced by the Former Yugoslavia and Rwanda Tribunals. The role of victims and witnesses in the ICC system is “quite stunning when set aside the very secondary role they have been given historically by international criminal law”.

These innovations aim to alleviate the three main tensions in international criminal law, namely: “the tension between the need to focus narrowly upon the person of the accused, while simultaneously establishing a wider historical record of past events; secondly, the tension between adhering to the structures of the legal process, while attending to the suffering of individual victims; and, finally, the tension between the need to make harrowing past events the focus of the trial, whilst aspiring to contribute to the creation of a more hopeful future.”

Major innovation is introduced by Article 68(3) ICC Statute which allows the victims to present their views and opinions, if necessary through a legal representative at the proceedings. This standing has never been allowed before. As preparation and evidence collection before the trial are the crucial stages in international criminal cases, it was essentially important to allow victims’ participation in pre-trial proceedings and this “is now well established.”

Protection of the victims and witnesses against publicly disclosing their identity is another running theme in the Statute. Article 68(1) provides that the Court must “protect the safety, physical and psychological well-being, dignity and privacy or victims and witnesses.” In performing this task, the Court should pay regard to the factors such as age, gender, the nature of crime, with special attention to the sex crimes and crimes against children.

Although the default rule under Article 67(1) is that the Court hearings are held in public, Article 68(2) allows the Court to conduct the hearings in camera or allow the electronic communications of evidence. Special emphasis is put on victims of sexual crimes and minors who require special protection and are the prime beneficiaries of Article 68(2) exception. Article 68(5) further provides that in cases posing “grave endangerment of the security of a witness or his or her family”, a summary of the evidence may be presented instead of a testimony.

In protecting the witnesses, Article 68 strikes to achieve a balance between the rights of the accused to fair trial under Article 67 and the need for protecting the victims and witnesses of the crimes. This is undoubtedly the main challenge facing the Court’s jurisprudence in this area. Both policies are fundamentally important and it is not an easy task to find a workable balance between the two.

A vivid example of this conflict is the debate around anonymity orders. For example, the Former Yugoslavia Tribunal’s procedural rules allowed “an order for total anonymity – not only from the press and public, but also from the accused and their lawyers.” The Tribunal resolved to this measure in Tadićbecause of the fear and the high risk of retaliation to the witness.

It is interesting to see if the ICC will find any difficulties ordering this measure when appropriate. Garkawe argues that the issue of total anonymity will be preserved as the ICC’s Statute and Rules lay down “a very similar ‘balancing’ process between the right of accused persons to a fair trial and those of victim/witnesses to protection.” On the other hand, anonymity orders significantly undermine the rights of the accused and it is likely that orders for total anonymity of the witnesses will continue to be the ‘live issues’ in the Court’s jurisprudence going ahead.

Anonymity orders are much more appropriate in cases involving children witnesses. The trials following the Yugoslav conflict exemplify the necessity of the enhanced procedural safeguards for witnesses from this vulnerable group. For example, the Serbian court found that in camera hearing will sufficiently protect the only surviving children witnesses who had to face the accused of one of the most cynical killings in the Kosovo war – the massacre of Podujevo. This protective measure, however, was insufficient as children had to endure meeting face to face with alleged killers of their mothers, people who shot at them. Not surprisingly, one child refused to testify and had to be returned to the UK from Belgrade shortly after arriving.

The ICC must learn from these experiences – specific guidelines are necessary for the protection of children witnesses and stricter identity protection orders need to be allowed. At the same time, children are also the risk group in terms of reliability of their testimony. Article 69 provides that each witness shall “give an undertaking as to the truthfulness of the evidence”. Some children, depending on their age, are not in the position to understand the meaning and repercussions of this declaration. Permitting such child to testify may negatively impact the due process and fair trial rights of the accused. This is particularly important in light of the fact that the Former Yugoslavia Tribunal allowed the hearsay evidence, and this procedural legacy might be inherited by the ICC. Again, this is a challenge for the ICC going forward and some common approach needs to be developed in this field.

Finally, the ICC also needs to address the issue of rehabilitation of victims. So far, international military tribunals largely concentrated on the witnessing role of the victims doing very little to help them recover from the psychological traumas suffered. The judicial forum is the least likely place for the victims’ psychological recovery as “story-telling can only take form of giving legal evidence. It is constrained by the judicial endeavour to establish a legally authoritative account of ‘what happened’. In pursuit of justice, legal requirements may bypass the individuality of the victims, including their needs as traumatized persons.” The ICC clearly needs to address this aspect and the adoption of the Victims’ Trust Fund discussed below may offer solution to this.

4. Reparation and compensation

Another substantial innovation of the Court is “the power to order an individual to pay reparation to another individual”. Article 75(1) ICC Statute provides that the Court shall lay down provisions for “restitution, compensation and rehabilitation” of victims. Article 75(2) also allows the Court to make the reparation order through the Victims Trust Fund set up under Article 79.The ICC has an option of authorizing “individual or collective reparation, concerning a whole group of victims or a community, or both.”

The Victims’ Fund’s aim is “to help survivors regain their dignity, rebuild their families and communities, and regain their place as fully contributing members of their societies.” The Fund’s tasks include “advocate[ing] for victims, mobiliz[ing] people and resources, and fund[ing] or implement[ing] innovative projects.” The principal paradigm of the Fund’s approach is that it does “not give charity” but instead supplies “the tools for victims to help themselves.”

The ICC’s compensation system and the Victims’ Fund are subject to controversy. First, the legislators again have adopted the traditional civil law approach in allowing victims to claim compensation from the accused.

Secondly, and much more importantly, is the issue of funding the Victims’ Fund and the ensuring the victims are compensated. It is clear that ordering compensation to what may be hundreds and thousands of victims by the accused will not be practically possible. Under Article 79(2), the Court may order that the fines and forfeited property from the convicted is allocated to the Trust Fund. This transfer of the assets might contribute to the solution but is unlikely to solve all the financial needs of the Fund. Another solution may be “funding from the UN budget or from voluntary contributions from States. However, such funding would no doubt result in concomitant reductions to the Tribunal’s other activities and, in any event, would be unlikely to provide more than token funding for compensation.” The ICC States need to address this issue and find a workable solution because without the properly functioning Victims’ Fund the achievement of the rehabilitative function of the victim protection measures under the ICC is not possible.

5. Conclusion

Does the ICC procedure solve all the problems associated with protection of the victims? Of course, not. As recently as a couple of months ago, the former Yugoslavia Tribunal could not proceed with criminal charges against one of the KLA leaders, Ramush Haradinaj – the prosecution’s chief witnesses were either murdered or refused to testify fearing for their lives. Numerous witnesses had to hide their identity, subpoenaed to testify or blatantly refused to testify even in court. Cases like this vividly show how important it is to protect the witnesses and victims of crimes. Likewise, it is equally important to protect the rights of the accused and the ICC’s main challenge will be to ensure the right balance between the two conflicting policies. In addition, the ICC needs to address the rehabilitative function of victim protection measures and implement important policies to this effect.

Bibliography

1. William A. Schabas, An Introduction to the International Criminal Court, (2007), 3^rd ed., Caambridge: Cambridge University Press

2. Sam Garkawe, ‘Victims and the International Criminal Court: Three major issues’, (2003) International Criminal Law Review 3, 345

3. Marie-Benedicte Dembour and Emily Haslam, ‘Silencing Hearings? Victim-Witnesses at War Crimes Trials’, European Journal of International Law, (2004), Vol. 15, No. 1, 151

4. International Criminal Court, ‘Reparation for victims’, at http://www.icc-cpi.int/victimsissues/victimsreparation.html

5. Victims Trust Fund, ‘Who We Are’, at http://www.icc-cpi.int/vtf.html

6. Marlise Simons, ‘Former Leader in Kosovo Acquitted of War Crimes’, 4 April 2008, The New York Times, at

7. Matthew Price, ‘Children Testify in Kosovo Trial’, BBC News, 9 July 2003, at http://news.bbc.co.uk/1/hi/world/europe/3051919.stm

8. Christopher Muttukumaru, ‘Reparation to Victims, in Roy S. Lee, ed., The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results, The Hague: Kluwer Law International, 1999

9. Stuart Beresford, ‘Children’s Issues’, 14 Eyes on the ICC, Vol. 1, No. 1 (2004)

10. Kai Ambos, ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’, International Criminal Law Review, (2003), 3, 1

11. Victims’ Compensation and Participation, Judges’ Report, 13 September 2000, at http://www.un.org/icty/pressreal/tolb-e.htm

Table of Cases

1. Tadić, IT-94-1-T, Protective Measures for Victims and Witnesses, 10 August 1995, and Decision on Defence Motion on Hearsay, 5 August 1996

2. Situation in the Democratic Republic of Congo (ICC-01/04-101-t), 17 January 2006