XIX - Understanding Limitations: Victim Participation and the International Criminal Court

Summary

The ICC, at least on paper, is a ‘victim's court’.

Only time will tell if this proves to be a blessing or a curse.

(Stover 2005, 148)

INTRODUCTION

There is little argument that the primary function of international criminal tribunals is to investigate, prosecute and punish those believed to be responsible for the most serious crimes of concern to the international community, namely war crimes, crimes against humanity and genocide. International criminal courts, from the time of the Nuremberg trials to today, have steadfastly attempted to carry out their respective functions through condemnation of the criminal acts in question and of the perpetrators found guilty. In line withtraditional theories of criminal justice, the focus of international criminal courts has unquestioningly been on the seriousness of the crime committed and the role of the offender. Thus, the spotlight of international criminal trials has almost exclusively centred on the crime committed rather than on the harm suff ered. For example, at the ad hoc International Criminal Tribunals for former Yugoslavia (ICTY) and for Rwanda (ICTR) or the Special Court for Sierra Leone (SCSL), if the victims played a part in the trial process it was solely as witnesses called by the parties or by the court but never participating in his or her own right as a victim. When preparing the Statute for the ICTY a proposal for allowing the appointment of separate counsel for victims was rejected (Morris&Scharf 1995). The rejection, mainly by delegates from the United States but also from other states, was out of fear that third-party participation would lead to conflicts withthe prosecution's case (Tochilovsky 1999).

The exclusion of the victim from any role other than a witness at the international level, however, has met withstrong criticism. In almost all domestic legal systems victims are permitted to play a broader role in the process. In general, common law countries tend to allow victims the opportunity to present their views and concerns to the court at the sentencing stage of a criminal process through either oral or written victim-impact statements.