Since the International Military Tribunal (IMT) at Nuremberg, the first international
tribunal to try individuals for international crimes, the role of victims of international
crimes in international criminal proceedings has been limited to that of witnesses. The
ad hoc international tribunals – the International Criminal Tribunal for the former
Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the
Special Court for Sierra Leone (SCSL) did not change this position. As such, the
International Criminal Court (ICC) is the first international criminal tribunal to provide
for the rights of victims to participate in their own right in criminal proceedings.
Similarly, it is the first such tribunal to provide for the right to reparations.
This thesis focuses on the right of victims to participation and to reparations
under the Rome Statute of the International Criminal Court. It argues that the ICC
offers an opportunity for the entrenchment of the concerns of victims in the
international criminal process. However, it suggests that this depends on what
framework of justice the Court adopts. The thesis further argues that previous
international criminal tribunals – the IMT at Nuremberg and the ad hoc International
Criminal Tribunals (ICTY, ICTR and SCSL) – operated on retributive and utilitarian
theories of criminal justice that are exclusionary of and inimical to specific concerns of
victims of international crimes. The largely retributive and utilitarian objects driving
these systems limited victims to a peripheral status in the process and failed to address
fully the harm occasioned to victims.
This thesis suggests that the ICC should adopt a restorative justice paradigm in
order to give full effect to the rights of victims while protecting the rights of
defendants and meeting the law enforcement functions of the Court. The thesis
reviewed the relevant texts – the Rome Statute, its Rules of Evidence and Procedure
and other instruments – and demonstrated the fact that the ICC framework provides a
basis for such a restorative justice paradigm. In order to suggest a trajectory for the
operationalisation of the ICC victims’ rights regime underpinned by principles of
restorative justice, the thesis attempts a systematic review of the rights of victims in
criminal law processes in select domestic criminal justice systems, international human
rights tribunals and other international courts. At the same time, the thesis reviews the
implementation of reparations in various contexts and made suggestions as to how the
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ICC and the Victim Trust Fund (VTF) should proceed in this regard within the
relevant legal and institutional framework.
In relation to the right to participate, the thesis concludes that Article 68(3) of
the Rome Statute – the general provision on the subject – strikes the right balance
between the right of victims to participate, defence rights to an expeditious trial and
the law enforcement function of the Prosecutor. However, the scope of victim
participation at various stages of the proceedings will depend on, among others, the
paradigm of justice adopted by the Court and, in view of the Prosecutor’s seemingly
knee-jerk opposition to victim participation, the attitude adopted by the Court itself to
this new right of victims to participate. The thesis reviewed relevant texts and
concluded that the Rome Statute’s victims’ rights regime presupposes a restorative
model of justice – understood as values and principles rather than ‘practices’ and
‘methods’ as applied in some national criminal justice systems. Restorative justice
contemplates a central role for victims of crime in relevant proceedings. Henceforth,
the rights of defendants must not only be weighed against the concerns of the
Prosecutor but also the right of victims to participate.
The thesis concluded further that the tests established for victims’ participation
– appropriateness, the requirement for their personal interests to be affected and the
rights of defendants – present serious challenges in view of the fact that ICC crimes for
the most part will involve mass atrocity. The number of victims who may eventually
participate in particular proceedings is thus very small. The thesis notes that while the
provision for legal representation of victims alleviates some of the difficulties
associated with participation by a varied mix of victims in complex proceedings, it
may be considered as diminishing the impact of direct participation. While the scope
and modes of victim participation will vary at various phases of proceedings, current
jurisprudence at the ICC shows that the Court seems to favour a broad presumption of
victim participation. Since full realisation by victims of the right to participate will
depend on the role that the Court will play, it is crucial that the right paradigm of
justice is adopted.
With respect to the right to reparations, the thesis notes that this is perhaps the
greatest innovation in the Rome Statute. The study found that the Rome Statute
establishes two ‘focal points’ for purposes of reparations – the Court and the Victim
Trust Fund (VTF) – in close relationship with each other. Drawing from the
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experience of national criminal justice systems, the thesis acknowledged the practical
difficulties involved in vesting a criminal court with a reparation function will pose
particular challenges for the Court. These include the need to protect the right of a
defendant to a speedy trial, the presumption of innocence and to conduct efficient
proceedings. Having reviewed the texts and relevant jurisprudence, the study
concluded that various mechanisms, including various permissive rules and the
creation of the VTF make it possible to address some of the difficulties associated with
the right to reparations in the ICC.
The thesis further noted that while a reading of the relevant provisions
establishes the possibility of the Court and VTF instituting independent reparations
schemes, it is imperative that the two collaborate in order to give full effect to that
function. In any case, while Regulation 56 of the Court’s Regulations provides for the
possibility of considering reparations issues during the main trial, the fact that a
reparation order against an accused is dependent on finding of guilt of the accused, it
necessarily means that a definitive finding on reparation has to come after that.
Further, the thesis concluded that in context of mass atrocities and the possibility that
numerous victims may prove the requisite links to a case to obtain reparations, holding
joint proceedings would complicate and burden the trial. However, the thesis endorsed
the initial view of the Court that evidence concerning reparations could, at least in part
– where appropriate, and in the interest of efficiency and victims – be considered
during the trial.
The thesis further concluded that the VTF, which presents greater flexibility
than the Court in terms of standards of proof, the requirement for criminal liability and
various other mechanisms should be allowed a more prominent role in the processing
of reparations. A survey of various mass reparation schemes – Holocaust reparations,
South African TRC, the Rwandan Gacaca model and the United Nations
Compensation Commission (UNCC), as well as the Alien Tort Claims Act (ATCA), a
particular mass tort litigation mechanism – offer some useful lessons on a range of
challenging reparation related questions.
The study concluded that while the Rome Statute offers an important
opportunity for victims in terms of reparations, various challenges including shortage
of funds and the large number of victims requires that situation countries – those states
under investigation by the ICC and from which victims are drawn – cannot abandon
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their primary responsibility of providing appropriate remedies for victims. The ICC is
not, and cannot be a panacea for the concerns of victims of international crimes.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:wits/oai:wiredspace.wits.ac.za:10539/7692 |
| Date | 16 March 2010 |
| Creators | Musila, Godfrey |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | application/pdf |
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