the 2011 role of victims in the international criminal sam garkawe
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!
– not mentioned in founding London
Agreement & few survivors testified
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
• What more could have been done to include
victims/survivors
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
• Domestic cases need to be treated with
caution
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:
Three Major Issues' (2003) 3 (4) International
Criminal Law Review 347, 349-351)
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
June 2010 the State Parties agreed on a
definition, but delayed its introduction.
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 –
1st trial 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
• CENTRAL AFRICAN REPUBLIC – BEMBA at
trial stage (he is in custody)
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
NO CONVICTIONS AS YET – ICC IN
EXISTANCE SINCE JULY 2002
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
• ONLY THE UK AND FRANCE FROM THE ‘BIG
5’ POWERS
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
instruments such as the Rules of Procedure and
Evidence, is quite stunning when set aside the very
secondary role they have been given historically by
international criminal law and ... humanitarian law’
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
charitable purposes, and to their historic monuments,
hospitals and other places and objects for humanitarian
purposes.
PROVISIONS OF ICC STATUTE II
– PROTECTION MEASURES
• Article 68 (1): The Court shall take appropriate measures
to protect the safety, physical and psychological wellbeing, 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
Prosecutor shall take such measures particularly during
the investigation and prosecution of such crimes. These
measures shall not be prejudicial to or inconsistent with
the rights of the accused and a fair and impartial trial.
• See also Rules of Evidence & Procedure 87 (3)
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
appropriate …
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
• See Sam Garkawe, 'Victims and the International Criminal Court: Three Major
Issues' (2003) 3 (4) International Criminal Law Review pp 347-369
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.
• See also Rule 97 of the Rules of Evidence and Procedure
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]
• The Office of Public Counsel for Victims –
no precedent for this; independent of other
institutions of the court
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
DELAYS? [YES, BUT IS IT JUSTIFIED?]
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!
– not mentioned in founding London
Agreement & few survivors testified
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
• What more could have been done to include
victims/survivors
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
• Domestic cases need to be treated with
caution
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:
Three Major Issues' (2003) 3 (4) International
Criminal Law Review 347, 349-351)
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
June 2010 the State Parties agreed on a
definition, but delayed its introduction.
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 –
1st trial 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
• CENTRAL AFRICAN REPUBLIC – BEMBA at
trial stage (he is in custody)
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
NO CONVICTIONS AS YET – ICC IN
EXISTANCE SINCE JULY 2002
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
• ONLY THE UK AND FRANCE FROM THE ‘BIG
5’ POWERS
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
instruments such as the Rules of Procedure and
Evidence, is quite stunning when set aside the very
secondary role they have been given historically by
international criminal law and ... humanitarian law’
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
charitable purposes, and to their historic monuments,
hospitals and other places and objects for humanitarian
purposes.
PROVISIONS OF ICC STATUTE II
– PROTECTION MEASURES
• Article 68 (1): The Court shall take appropriate measures
to protect the safety, physical and psychological wellbeing, 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
Prosecutor shall take such measures particularly during
the investigation and prosecution of such crimes. These
measures shall not be prejudicial to or inconsistent with
the rights of the accused and a fair and impartial trial.
• See also Rules of Evidence & Procedure 87 (3)
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
appropriate …
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
• See Sam Garkawe, 'Victims and the International Criminal Court: Three Major
Issues' (2003) 3 (4) International Criminal Law Review pp 347-369
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.
• See also Rule 97 of the Rules of Evidence and Procedure
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]
• The Office of Public Counsel for Victims –
no precedent for this; independent of other
institutions of the court
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
DELAYS? [YES, BUT IS IT JUSTIFIED?]