When one thinks of the International Criminal Court, perhaps the words justice, accountability, and wrongdoers come to mind. However, the words “victim participation” should also be in the back of one’s mind. The ICC has been in existence for ten years now, and its most “interesting” aspect is the fact that victim’s have the opportunity to be heard there. The ICC Rules of Procedure and Evidence allow for victims to participate in the criminal process, “regardless of whether they are witnesses or not.” Due to the ten year anniversary of the ICC, a conference was held to reflect on its work, and it was established that while victim participation is helpful, it comes with its own set of problems. For one, the manner in which these victims can participate is not designated in the rules, which means that the ICC has generous discretion to decide the impact that victim participation will have in an individual case. This uncertainty, however, has led to “fragmented and inconsistent case law.”
One way to resolve this issue, and perhaps the simplest, is to codify victim’s rights, so that all are “afforded that same rights and modalities of participation.”
A second way to resolve this issue is to follow what Trial Chamber V’s Decision did just a few weeks ago (October 3, 2012). There, because of the large number of potential participating victims, the court decided that the Legal Representative for Victims and the Victims Participation and Reparations Section was to create a “register” of victims:
“those who want to appear before the Court either physically or via video-link will be required to fill out the application form. Incidentally such victims would be forced to relinquish their identity to the defence.”
The judges held that it was “too cumbersome” for them (or the parties) to review the individual application forms. However true that may be, those judges seem to have disregarded “the cathartic value that it may have for some victims to fill in the particulars of the harm suffered.” A third possibility then, which has been used, is allowing collective victim applications.
Is consistency in victim participation in ICC cases something that needs to be regulated? Is there more of a need for this in cases with hundreds or thousands of victims?
Is codification the answer? Is having victims register the answer?
What are the potential downsides of these remedies?