On 3 November 2017, the Centre for Criminology at the University of Oxford held a seminar titled 'Victim Participation in International Criminal Justice: Real Power or Empty Rhetoric?'. 

The seminar offered a platform for engaging and critical discussion through a range of theoretical and practical perspectives on the role, content and implications of victim participation in international criminal justice.The panellists, Prof Ruti Teitel, Dr Sara Kendall, Saranda Bogujevci, and Jens Dieckmann provided thought-provoking and incisive observations and insights, followed by an engaging and lively Q & A session on the role and scope of victim participation.

Traditionally, the role of the victim was thought to be limited to that of witness and/or complainant. There has, however, been a clear trend towards greater participation in international criminal justice, spearheaded in large part by the International Criminal Court (ICC). As Fatou Bensouda, the ICC Prosecutor remarked in her speech at the Oxford Global Justice Lecture on 12 October 2017, ‘the ICC was established as a judicial institution with the interest of victims as a bedrock.’ Her words pay tribute to the great need that victims of gross violations of human rights very often feel, to be an essential part of a justice process established to address some of the most serious and egregious crimes in war-torn societies. Such a moral imperative is a common theme, shared with victims of mass atrocities across many post-conflict societies, that recognition of the rights and needs of those victims represents a crucial driveof international criminal justice. Victim participation offers victims procedural rights during the proceedings themselves, as well as substantive rights to reparations. Nonetheless, victim participation is a novelty in international criminal justice, and its application in practice has often being quite fluid, vague and contradictory. This has been particularly prevalent at the ICC, which operates in a much more diverse environment than other ad-hoc or hybrid courts, with each separate pre-trial and trial chamber having to demarcate the boundaries of victim participation according to the requirements of each case.

Characterising victim’s role in transitional justice

Prof. Ruti Teitel highlighted the importance of the role of victims in the broader context of transitional justice, where victims have often been seen as drivers of the justice process. As such, practices of victim involvement are not easily confined to one state or one legal tradition. We can observe from a genealogical and historical perspective the inclusion of victims in different forms in transitional justice processes, such as the case of the Mothers of the Disappeared in Argentina (The Mothers of the Plaza de Mayo) or the case of Stephen Biko in South Africa.

Saranda Bogujevci, the first child victim to have testified in a war crime trial, gave a very moving and powerful account ofher personal experience as a victim-witness in the trials held in Belgrade in 2003 and 2008, and in The Hague in 2008. She reflected on the importance of the support system for victims of mass atrocities, including by their own governments as well as by the international community, which in her view is closely linked with victim empowerment. However, what she has witnessed in her native Kosovo as well as other conflict-affected communities in the Balkans, has shown that other victims who have gone through similar experiences, but who have not had the kind of support system available to her and her family, have had their voices considerably undermined. She emphasised how important it was for her and her family to have had an opportunity to tell their story of unbearable pain and loss and for there to have been a record of their testimonies in the trial. She further added that ‘whatever the outcome of the trial, we knew that we did all we could as a family.  When I think of it now, you know I do not have the same memory as I did then, when I was a lot younger. I do not have the same energy and strength to go through the process and for me it is so important that there are documents that exist that tell my story and my family story.It is really important for me and my family but it is also important for Kosovo and Serbia to have records of these testimonies.’

Victim Participation at the ICC: A Reality Check

There has been a significant shift on the domestic and international planes where the focus is no longer solely on retribution or the utility of punishment, but also on restorative principles. This development has led to enhanced services and procedural rights for victims, and to greater recognition of the harm they suffered. As Prof Teitel noted, we have seen the judicialisation and legalisation of the discourse of victim participation, which has been reflected in the pronounced trend towards its enhancementat the international level. Such a developmenthas found expression in the efforts made by the ICC, which became the first international criminal tribunal to endorse active victim participation by recognising victims as ‘participants’.However, the significantly diffuse and at times divergent applicationof victim participation as a legal mechanism at the ICC and other tribunals that have followed has shown that we are not far along in that development.

Jens Dieckmann, the Common Legal Representative of Victims in the ICC Banda Case elaborated on the legal and procedural framework at the ICC in which victims are seen as actors and stakeholders in proceedings and not just passive subjects of the law. As he put it, ‘victim participation is in this context the link between The Hague and the world of the victim.’ However, there is a disconnect, as Dieckmann argued, between the reality on the ground and rhetoric, specifically with regard to two areas: the legal representation of victims and the reparation process. The Rome Statute of the ICC provides for the participation of victims in proceedings where their personal interests are affected, in a manner which is not inconsistent with the rights of the accused to a fair and expeditious trial (Article 68 Para 3). Their views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate (Rule 90 of the Rules of Procedure and Evidence). However, the jurisprudential development at the ICC has revealed a considerable disparity regarding the role and rights afforded to victims,whereby each individual pre-trial and trial chamber has delineated the parameters of victim participation according to the requirements of each case and situation. The trials at the ICC have thus appeared more as ‘experimenting laboratories’ than as processes guided by sound normative and jurisprudential standards. The manner in which victim participation has been crafted and interpreted in the trials before the ICC has raised some important issues and questions regarding its role and impact with respect to the functionality of court proceedings, the rights of the accused, and the rights of victims themselves.

Whilst it can be argued that victims have taken advantage of their procedural rights at the ICC, their role remains largely symbolic and they have yet in full to realise their substantive rights, especially with regard to reparations. Dr Sara Kendall highlighted that the ICC practices of victim participation operate what is called a form of legal humanitarianism, which seeks to alleviate conflict-affected suffering and assert rights claims through international criminal law. She argued that, from the standpoint of conflict-affected communities, ‘these legal definitions to determine one’s qualification as a victim may seem arbitrary at best and quite possibly manifesting an institutional indifference to suffering.’ Thus the question arises as to what kinds of principles are followedin order to quantify harm and suffering. She further pointed out that we could think of what is happening at the ICC as somewhere between these two poles, real power on the one hand and empty rhetoric on the other; and think of the ICC practice as aspirational, in light of the inadequacies of institutional structures and logic.

With regard to reparations, there have been differences in the way the Court has determined reparation schemes. This has resulted in disparity between different situations, and depending on which trial chamber is hearing the case within the same situation, you may be receiving a differentoutcome. As Dr Kendall argued, ‘one could understand that by the prospective of the Court, but if seen by the perspective of victim-affected communities this may seem rather arbitrary.’ The experimental stage of the reparation mandate is but one instance of victim participation at the ICC being at a crossroads. The upshot of this seminar was that there is a critical need for well-developed common standards, at both a legal and normative level, as well as common standards of practice to guide the application of victim participation at the ICC as well as other tribunals.

Rudina Jasini is an ESRC GCRF Postdoctoral Fellow at the Centre for Criminology.She is an attorney and researcher specialising in international criminal law and human rights law. Her ESRC research project aims to contribute to the scholarly debate, policy discussion and policymaking on victim participation. She can be contacted at: rudina.jasini@law.ox.ac.uk; Twitter @DinaJasini