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Published online by Cambridge University Press: 16 September 2022
Drawing a line between victims and non-victims in the context of gross violations of international humanitarian and international human rights law is not an easy task. On the one hand, mass atrocities lead to widespread victimisation of individuals, groups and communities who suffer from various types of harm and damage incurred in the process of their commission. On the other hand, clearly not every person affected by an ongoing conflict and mass criminality should be considered an injured party. This article addresses such conceptual dilemmas by casting light on the function of family relations as grounds of indirect victimhood. To this end, it identifies two theoretical models of victimhood and showcases how they have been put into practice by international and hybrid courts and tribunals in their respective reparative and punitive regimes.
Project funded by the Polish National Agency for Academic Exchange. I am grateful to Joris van Wijk, Barbora Holá, Francesca Anzovino, Lachezar Yanev, Maarten Bolhuis, Marieke de Hoon, Beatriz Mayans Hermida and Gabriele Chlevickaite for their hospitality and various scholarly interactions throughout my stay at the Center for International Criminal Justice, Vrije Universiteit Amsterdam. I would like to thank Barbora Holá and Joris van Wijk, in particular, for their support and encouragement. I was fortunate to present my thoughts on the function of family relations in international criminal law at conferences organised by the Minerva Center for Human Rights (Hebrew University of Jerusalem) and the Criminal Justice Centre (University of Warwick) as well as at a private seminar in Warsaw. Detailed comments from Yaël Ronen and anonymous reviewers were also of great assistance. Thank you.
1 Substantive justice is not the only formula of justice that IHCTs pursue in their daily work. The other is procedural justice, which may also be used to assess the system of international criminal justice through the lens of victims’ interests; see Moffett, Luke, ‘Meaningful and Effective? Considering Victims’ Interests through Participation at the International Criminal Court’ (2015) 26 Criminal Law Forum 255CrossRefGoogle Scholar, 264 (‘Victim-orientated justice would reflect victims’ interests in procedural and substantive justice dimensions, by enabling victims to participate and ensuring that such interests are considered in decision making’); Garbett, Claire, ‘The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice’ (2017) 5 Restorative Justice 198CrossRefGoogle Scholar (offering critical remarks on how victim participation operates in practice). Mirjan Damaška indicates that international criminal tribunals try to pursue numerous objectives of an intrinsically diverse character. In his own words, ‘[i]t does not require much pause to realize that the task of fulfilling all these self-imposed demands is truly gargantuan’: Damaška, Mirjan, ‘What Is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent Law Review 329, 331Google Scholar.
2 To borrow from Michelle Madden Dempsey and Matthew Lister, this article thus engages in ‘conceptual activism’. As pointed out by these authors, ‘the conceptual activist offers arguments regarding the substance and scope of concepts in hopes that the improved understanding of the concepts will ultimately improve policies’: Dempsey, Michelle Madden and Lister, Matthew, ‘Applied Political and Legal Philosophy’ in Lippert-Rasmussen, Kasper, Brownlee, Kimberley and Coady, David (eds), A Companion to Applied Philosophy (Wiley Blackwell 2017) 313, 321Google Scholar.
3 See also Kleinfeld, Joshua, ‘A Theory of Criminal Victimization’ (2013) 65 Stanford Law Review 1087Google Scholar (discussing the concept of victimisation in relation to the vulnerability of individual victims).
4 All the same, what constitutes an international crime – the source of legally relevant victimisation in international criminal law – is still debated; see Heller, Kevin Jon, ‘What Is an International Crime? (A Revisionist History)’ (2017) 58 Harvard International Law Journal 353Google Scholar; and responses from Alejandro Chehtman, Astrid Reisinger Coracini and Mia Swart: Alejandro Chehtman, ‘“What Is an International Crime?”: What Kind of Question Is It and How We Should Answer It’, Harvard International Law Journal, https://harvardilj.org/wp-content/uploads/sites/15/Chehtman-Response-1.pdf; Astrid Reisinger Coracini, ‘“What Is an International Crime?”: A Response to Kevin Jon Heller’, Harvard International Law Journal, https://harvardilj.org/wp-content/uploads/sites/15/Coracini-Response.pdf; Mia Swart, ‘The Legal Foundation for Criminalizing International Crimes: A Response to Kevin Jon Heller’, Harvard International Law Journal, https://harvardilj.org/wp-content/uploads/sites/15/Mia-Swart.pdf.
5 Which, admittedly, raises significant and complex issues in its own right; see Jain, Neha, Perpetrators and Accessories in International Criminal Law: Individual Modes of Responsibility for Collective Crimes (Hart 2005)Google Scholar.
6 See also Sirena, Pietro, ‘The Concepts of Harm in Italian and French Civil Law’ in Borghetti, Jean-Sébastien and Whittaker, Simon (eds), French Civil Liability in Comparative Perspective (Hart 2019) 205, 212Google Scholar (noting three different methods for delimiting the scope of liability: the French model consisting of the use of a ‘general clause’, the German model understood as an infringement of rights enumerated in the provision, and finally the Italian model, which is located somewhere in the middle by introducing the requirement that reparable types of harm must be unlawful first (danno ingiusto)); Dam, Cees van, European Tort Law (2nd edn, Oxford University Press 2013) 168–69Google Scholar.
7 Unless one accepts the claim that there are victimless crimes: see Veneziano, Louis and Veneziano, Carol, ‘Are Victimless Crimes Actually Harmful?’ (1993) 9 Journal of Contemporary Criminal Justice 1CrossRefGoogle Scholar; Alan Wertheimer, ‘Victimless Crimes’ (1977) 87 Ethics 302, 305 (noting various definitions and approaches to the question of what makes a crime victimless).
8 This idea finds application especially in relation to crimes of endangerment as well as inchoate and preparatory acts which precede the actual commission of a crime; see Duff, Antony, ‘Criminalizing Endangerment’ (2005) 65(3) Louisiana Law Review 967Google Scholar; Jérôme de Hemptinne, ‘Attempt’ in Jérôme de Hemptinne, Robert Roth and Elies van Sliedregt (eds), Modes of Liability in International Criminal Law (Cambridge University Press 2019) 340 (‘Another justification that is usually put forward by those advocating the criminalization of attempt in ICL is the danger posed to the international legal order by those individuals who intend to commit international crimes’).
9 Result crimes may be considered graver in abstracto. This is because their function is to provide reasons to avoid bringing about certain results. In Ntaganda, the ICC made this distinction clear when it noted that ‘ordering displacement does not require for displacement as such to actually occur’, and therefore it was justified for the Chamber to consider ‘the crime under Article 8(2)(e)(viii) of the Statute to be in abstracto less serious compared to forcible transfer of population, which requires the actual infliction of harm on the victims’: ICC, Prosecutor v Ntaganda, Sentencing Judgment, ICC-01/04-02/06-2442, Trial Chamber, 7 November 2019, para 163.
10 eg, in Ntaganda, the ICC established that ‘[t]he prohibition of attacks directed against civilians aims to protect lives and to avoid the unnecessary suffering of individuals not taking a direct part in hostilities during an armed conflict. Article 8(2)(e)(i) of the Statute does not require any actual harm to civilians to ensue from the attack and the crime can be committed by its mere launching’: ibid para 53 (emphasis added). In Ongwen, in turn, the Chamber admitted that this is ‘a conduct crime’: ICC, Prosecutor v Ongwen, Sentence, ICC-02/04-01/15-1819-Red, Trial Chamber, 6 May 2021, para 149.
11 In relation to the above excerpt from Ntaganda (n 10), the wrong-based model would attempt to locate those individuals who did not take a direct part in hostilities but who were targeted by an offender; they would be recognised as direct victims. By contrast, the harm-based model would require an applicant to identify types of harm that they have suffered as a result of the commission of this crime irrespective of their status under international humanitarian law (individuals not taking a direct part in hostilities).
12 Ongwen, Sentence (n 10) para 153 (‘the value protected by the incrimination is human life, which is a strong factor of gravity’).
13 Nevertheless, in the case of Ntaganda, the Chamber noted that ‘victims of the attacks, particularly the victims of attempted murder still bear permanent scars with serious consequences, including trauma, psychological harms, and extensive physical scarring’: ICC, Prosecutor v Ntaganda, Reparations Order, ICC-01/04-02/06, Trial Chamber, 8 March 2021, para 146 (emphasis added). They were thus recognised by the ICC as direct victims of an attempted murder.
14 UNGA Res 40/34 (29 November 1985), UN Doc A/RES/40/34. See also M Cherif Bassiouni, ‘International Recognition of Victims’ Rights’ (2006) 6 Human Rights Law Review 203.
15 UNGA Res 60/147 (16 December 2005), UN Doc A/RES/60/147. See also Theo van Boven, ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’ in Carla Ferstman, Mariana Goetz and Alan Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Brill-Nijhoff 2009) 17.
16 For the presentation of an idea that victimisation may consist of the violation of ‘subjective rights’, see Hirsch, Philipp-Alexander, ‘Verletzung in eigenen Rechten – Zur strafrechtsdogmatischen Stellung des Verletzten’ in Abraham, Markus and others (eds), Verletzte im Strafrecht (Nomos 2020) 31Google Scholar. Moreover, it has been argued that ‘rights and wrongs may come apart’: Nicolas Cornell unpacks this argument by claiming that one may be wronged even if it is not their right that has been violated, but somebody else's. Cornell expresses this idea in stating that ‘parties may sometimes be put in a special moral position to complain and seek justification ex post, not by conduct over which they could have asserted any rights claim of their own ex ante, but rather by conduct that was wrong for other reasons, like violating someone else's rights’: Cornell, Nicolas, ‘Wrongs, Rights, and Third Parties’ (2015) 43 Philosophy & Public Affairs 109, 113CrossRefGoogle Scholar.
17 For a comprehensive case law analysis, see Zeccola, Marc, Die Strafzumessung im Völkerstrafrecht unter besonderer Berücksichtigung der Rechtssprechung der Ad-hoc-Tribunale der Vereinten Nationen (Duncker & Humblot 2018)CrossRefGoogle Scholar; Werkmeister, Andreas, Straftheorien im Völkerstrafrecht (Nomos 2015)CrossRefGoogle Scholar; Holá, Barbora, International Sentencing: ‘Game of Russian Roulette’ or Consistent Practice? (BOXPress 2012)Google Scholar; D'Ascoli, Silvia, Sentencing in International Criminal Law: The UN Ad Hoc Tribunals and Future Perspectives for the ICC (Hart 2011)Google Scholar; Cornacchia, Luigi, Funzione della Pena Nello Statuto della Corte Penale Internazionale (Giuffre Editore 2009)Google Scholar.
18 ICC, Prosecutor v Al Mahdi, Judgment and Sentence, ICC-01/12-01/15, Trial Chamber, 27 September 2016, para 76 (in addressing the gravity of the crime committed, the Court considered, among others, the extent of damage caused).
19 ibid para 77.
20 ibid para 72.
21 Ntaganda, Sentencing Judgment (n 9) para 14 (underscoring the distinction between crimes against persons and crimes against property of which the former are less grave from the perspective of potential victims).
22 ‘[T]he gravity is generally measured in abstracto, by assessing the constitutive elements of the crime and the mode of liability in general terms, and in concreto, by assessing the particular circumstances of the case looking at the degree of harm caused by the crime and the culpability of the perpetrator’: ibid para 11 (emphasis added).
23 Ambos, Kai, ‘Punishment Without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law’ (2013) 33 Oxford Journal of Legal Studies 293CrossRefGoogle Scholar (seeking justification in the idea of the supranationality of the world order and the concept of the ‘world citizen law’ (‘Weltbürgerrecht’)); Ambos, Kai, ‘The Overall Function of International Criminal Law: Striking the Right Balance between the Rechtsgut and the Harm Principles’ (2015) 9 Criminal Law and Philosophy 301CrossRefGoogle Scholar; May, Larry, Crimes against Humanity: A Normative Account (Cambridge University Press 2004)CrossRefGoogle Scholar; Duff, Antony, ‘Authority and Responsibility in International Criminal Law’ in Besson, Samantha and Tasioulas, John (eds), The Philosophy of International Law (Oxford University Press 2010) 589, 600Google Scholar.
24 Rules of Procedure and Evidence of the International Criminal Court (entered into force 9 September 2002), ICC-ASP/1/3 (Part II-A), ICC-PIDS-LT-02-002/13_ENG (RPE ICC).
25 Emphasis added.
26 ICTY, Prosecutor v Galić, Judgment and Opinion, IT-98-29-T, Trial Chamber, 5 December 2003, para 758.
27 Sara Kendall, ‘Restorative Justice at the International Criminal Court’ (2018) 70 Revista Española de Derecho Internacional 217.
28 Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (Rev. 9), 16 January 2015 (IR ECCC).
29 Ntaganda, Reparations Order (n 13) para 2.
31 ibid para 4.
32 Kinga Tibori-Szabó and Megan Hirst (eds), Victim Participation in International Criminal Justice. Practitioners’ Guide (Springer 2017); Charles P Trumbull, ‘The Victims of Victim Participation in International Criminal Proceedings’ (2008) 29(4) Michigan Journal of International Law 777.
33 Until entry into force of the ICC Statute (Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90), ‘victims were recognized only in their capacity as witnesses’ in international criminal justice: Mina Rauschenbach and Damien Scalia, ‘Victims and International Criminal Justice: A Vexed Question? (2008) 90 International Review of the Red Cross 441, 444.
34 Brianne McGonigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings (Intersentia 2011).
35 Michaela Lissowsky, Das Menschenrecht auf Reparationen. Theoretische Grundlagen und praktische Umsetzung am Internationalen Strafgerichtshof (Duncker & Humblot 2021).
36 Muzigo-Morrison, Rosette, ‘The Rights of Victims’ in Anne-Marie de Brouwer and Alette Smeulers (eds), The Elgar Companion to the International Criminal Tribunal for Rwanda (Edward Elgar 2016) 385Google Scholar.
37 ICTY, Rules of Procedure and Evidence, UN Doc IT/32/Rev.50, 8 July 2015; ICTR, Rules of Procedure and Evidence, last revised 13 May 2015. In what follows, I mainly invoke the ICTY system to present the framework of ad hoc tribunals.
38 Dixon, Rodney and Khan, Karim AA, Archbol: International Criminal Courts. Practice, Procedure and Evidence (Sweet & Maxwell 2013) 1484Google Scholar; Knust, Nandor, Strafrecht und Gacaca: Entwicklung eines pluralistischen Rechtsmodells am Beispiel des ruandischen Völkermordes (Duncker & Humblot 2013) 238Google Scholar.
39 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (3 May 1993), UN Doc S/25704, adopted by UNSC Res 827 (25 May 1993), UN Doc S/RES/827 (ICTY Statute).
40 Emphasis added.
41 Not only a direct offender could be held responsible, however; see Rule 105(B) RPE ICTY (‘The determination may extend to such property or its proceeds, even in the hands of third parties not otherwise connected with the crime of which the convicted person has been found guilty’).
42 ICTY, Prosecutor v Blaskić, Judgment, IT-95-14-A, Trial Chamber, 29 July 2004, para 683.
43 ICTY, Prosecutor v Mrksić and Slijivancanin, Judgment, IT-95-13/1-A, Appeals Chamber, 5 May 2009, para 412.
44 ICTY, Prosecutor v Mladić, Judgment, IT-09-92-T, Trial Chamber, 22 November 2017, para 5185.
45 ICTY, Prosecutor v Babić, Sentencing Judgment, IT-03-72-S, Trial Chamber, 29 June 2004, para 53 (ruthless crime strongly affecting victims and their relatives).
46 ICTY, Prosecutor v Jelisić, Judgment, IT-95-10-T, Trial Chamber, 14 December 1999, para 132.
47 Mladić, Judgment (n 44) para 5188; ICTR, Prosecutor v Kayishema and Ruzindana, Sentence, ICTR-95-1-T, Trial Chamber, 21 May 1999, para 16.
48 Galić, Judgment and Opinion (n 26) para 758.
49 ICTY, Prosecutor v Obrenović, Sentencing Judgment, IT-02-60/2-S, Trial Chamber, 10 December 2003, para 68.
50 ICTY, Prosecutor v Krajišnik, Judgment, IT-00-39-T, Trial Chamber, 27 September 2006, para 1151.
51 ICTY, Prosecutor v Krnojelac, Judgment, IT-97-25, Trial Chamber, 15 March 2002, para 512.
52 ibid para 512.
53 ibid para 512.
54 ICTY, Prosecutor v Kunarac et al., Judgment, IT-96-23-T and IT-96-23/1-T, Trial Chamber, 22 February 2001, para 852 (emphasis added).
55 ibid para 852.
56 ICTY, Prosecutor v Krnojelac, Appeal Judgment, IT-97-25, Appeals Chamber, 17 September 2003, para 260 (emphasis added); see also ICTY, Prosecutor v Mrda, Sentencing Judgment, IT-02-59-S, Trial Chamber, 31 March 2004, para 39.
57 Confirmed also in ICTY, Prosecutor v Češić, Sentencing Judgment, IT-95-10/1-S, Trial Chamber, 11 March 2004, para 39 (‘The impact on the victims’ relatives and friends is among the factors that are considered when evaluating the inherent gravity of a crime’). Still, the standard applied by the Tribunal for recognition of indirect victimhood as a relevant sentencing factor was not ‘average’ in so far as the Tribunal concluded its examination reflecting on whether ‘victims experienced significantly more suffering than that usually incurred by the violent death of, or the inhumane acts suffered by, beloved ones’ (ibid para 44); ICTY, Prosecutor v Stanišić and Župljanin, Judgment, IT-08-91-T, Trial Chamber, 27 March 2013, para 892.
58 ICTY, Prosecutor v Brdanin, Judgment, IT-99-36-T, Trial Chamber, 1 September 2004, para 1107.
59 There is already voluminous literature presenting the character of victim participation in proceedings before international and hybrid criminal tribunals; see Mikaela Heikkilä, International Criminal Tribunals and Victims of Crime (Abo Akademi University 2004); T. Markus Funk, Victims’ Rights and Advocacy at the International Criminal Court (Oxford University Press 2015); Luke Moffett, Justice for Victims before the International Criminal Court (Routledge 2014); Tatiana Bachvarova, The Standing of Victims in the Procedural Design of the International Criminal Court (Brill-Nijhoff 2017); Ghislain M Mabanga, La victime devant la Cour pénale international (L'Harmattan 2009), Aurélien-Thibault Lemasson, La victime devant la justice pénale internationale: Pour une action civile internationale (Pulim 2011); O Abo Yousef, Die Stellung des Opfers im Völkerstrafrecht unter besonderer Berücksichtigung des ICC-Statuts und der Rechte der Opfer von Völkerstrafrechtsverbrechen in der Schweiz (Schulthess Verlag 2008); Stefanie Bock, Das Opfer vor dem Internationalen Strafgerichtshof (Duncker & Humblot 2010); Juliane Niendorf, Extensive Opferbeteiligung im Verfahren vor dem Internationalen Strafgerichtshof: Eine kritische Betrachtung (Logos Verlag 2017); Esperanza O Calatayud, Las víctimas y la Corte Penal Internacional: Análisis de la participación de las víctimas ante la Corte (Thomson Reuters 2014); Salvador G Palomares, La defensa procesal de las víctimas ante la Corte Penal Internacional (Thomson Reuters 2014).
60 Patryk Gacka, ‘Institutions and Organizations as Victims of International Crimes? A Critical Analysis’ (2018) 89 Revue Internationale de Droit Pénal 83.
61 ICC, Prosecutor v Lubanga, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I's Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06-1432 OA9 OA10, Appeals Chamber, 11 July 2008, para 32.
62 ICC, Prosecutor v Lubanga, Redacted version of Decision on ‘Indirect Victims’, ICC-01/04-01/06, Trial Chamber, 8 April 2009. This decision was analysed in detail by Valentina Spiga, ‘Indirect Victims’ Participation in the Lubanga Trial’ (2010) 8 Journal of International Criminal Justice 183.
63 That is an unlawful conscription of children below the age of 15 into armed forces.
64 Lubanga, Decision on ‘Indirect Victims’ (n 62) para 40 (emphasis added).
65 ibid para 52.
66 ibid.
67 ICC, Prosecutor v Lubanga Dyilo, Decision establishing the Principles and Procedures to be applied to Reparations, ICC-01/04-01/06, Trial Chamber, 7 August 2012, para 195.
68 ibid para 196; Lubanga, Decision on ‘Indirect Victims’ (n 62) para 51.
69 ICC, Prosecutor v Lubanga, Judgment on the Appeals against the ‘Decision establishing the Principles and Procedures to be applied to Reparations’ of 7 August 2012, ICC-01/04-01/06 A 2 A 3, Appeals Chamber, 3 March 2015, para 191(b). See also Lubanga, Decision on ‘Indirect Victims’ (n 62) para 50.
70 ICC, Prosecutor v Lubanga, Judgment on the Appeals against Trial Chamber II's Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable, ICC-01/04-01/06 A7 A8, Appeals Chamber, 18 July 2019, para 39.
71 ICC, Prosecutor v Al Mahdi, Reparations Order, ICC-01/12-01/15, Trial Chamber, 17 August 2017, para 94 (emphasis added).
72 ibid para 95.
73 ibid paras 97–99.
74 ibid para 89. Admittedly, it could be argued that this is a separate form of direct (and not indirect) harm given that these actions could not properly target those already dead. On the other hand, it is hardly disputable that the main reason why these victim applicants suffered from their harm was because of previous attacks against the burial sites of their next of kin.
75 ibid para 104(iii).
76 The concept of family must be understood within the specific social context. It may therefore have ‘many cultural variations’ (Lubanga, Decision establishing the Principles and Procedures (n 67) para 195). Although in Lubanga the Court contended that the way in which the concept of ‘family’ is understood follows the presumption ‘that an individual is succeeded by his or her spouse and children’ (ICC, Prosecutor v Thomas Lubanga Dyilo, Order for Reparations, ICC-01/04-01/06-3129-AnxA, Trial Chamber, 3 March 2015, para 7), in the subsequent case of Katanga it underlined that it will not apply generalised notions of a family but will pay particular attention to the meaning that this concept has been assigned in the Democratic Republic of the Congo and in Ituri, where the case was geographically situated (ICC, Prosecutor v Katanga, Order for Reparations pursuant to Article 75 of the Statute, ICC-01/04-01/07, Trial Chamber, 24 March 2017, para 121). The concept of family may thus absorb different meanings in international criminal law. Further, the ICC's determination clarifies that one may approach the task of defining a family either by way of searching for a universal definition to be applicable across the whole system of law and all cases tried by the Court, or by adopting its more localised definition, thereby avoiding a natural temptation to impose a certain way of perceiving this or that phenomenon in a top-down manner. Moreover, in Katanga the Court also decided to accept a more relaxed standard of assessment as to who may qualify as a family member by stating that ‘it is of little consequence whether the relative was near or distant’. Nevertheless, by emphasising that this understanding has been accepted ‘in the specific circumstances of the attack on Bogoro’, the Court did not set a precedent by adjusting the definition to features of this particular case: ibid para 121.
77 ibid para 106.
78 ibid para 107.
79 ibid para 112.
80 ibid para 113. Note, however, that the Appeals Chamber determined that ‘[t]he definition of “victims” in Rule 85(a) of the Rules … emphasises the requirement of the existence of harm rather than whether the indirect victim was a close or distant family member of the direct victim’: ICC, Prosecutor v Katanga, Judgment on the Appeals against the Order of Trial Chamber II of 24 March 2017 entitled ‘Order for Reparations pursuant to Article 75 of the Statute', ICC-01/04-01/07 A3 A4 A5, Appeals Chamber, 8 March 2018, para 5.
81 Katanga, Order for Reparations (n 76) para 121.
82 ibid para 122.
83 It should be noted that the Court decided to distinguish between types of harm even those of the same character depending on their source. Accordingly, it ruled that ‘where an Applicant alleges psychological harm resulting from the death of a relative and psychological harm connected to the experience of the attack on Bogoro, the Chamber will consider the Applicant to have suffered two distinct types of psychological harm’: ibid para 131.
84 ibid para 174.
85 ibid para 168.
86 ibid para 146.
87 ibid (emphasis added).
88 ibid para 136. The two other types of such sui generis harm were the loss of opportunity and the forced departure. However, given that the alleged types of sui generis harm were assumed to have been caused by an attack more broadly conceived, rather than by the deaths of family members of those applying for reparations, they do not seem to fall within the confines of indirect victimhood.
89 See, eg, Polish Civil Code (1964), art 446(3) (‘The court may also award appropriate compensation to the closest members of the deceased's family if as a result of his death their living standard has deteriorated significantly’). See also Van Dam (n 6) 366 (‘If a person dies as the consequence of an accident for which another person is liable, third parties may also suffer damage, particularly the parents, the partner, the children, and other relatives of the victim. These are what the French call victimes par ricochet: the rebound victims’); WV Horton Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective (Springer 2001).
90 Katanga, Order for Reparations (n 76) para 136.
91 ibid para 139.
92 Katanga, Judgment on the Appeals (n 80) para 113, 126–127 (accepted by the AC) (emphasis added).
93 ibid para 115.
94 Ntaganda, Reparations Order (n 13).
95 ibid para 33.
96 ibid para 34.
97 ibid para 35.
98 ibid para 36.
99 ibid para 39.
100 ibid para 74.
101 ibid para 91.
102 ibid para 126.
103 ibid paras 122, 127, 128.
104 ibid para 183(d).
105 ibid para 232.
106 ICC, Prosecutor v Lubanga, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/04-01/06, Trial Chamber, 10 July 2012, paras 37–38, 44.
107 ICC, Prosecutor v Bemba, Decision on Sentence pursuant to Article 76 of the Statute, ICC-01/05-01/08, Trial Chamber, 21 June 2016, para 29.
108 ibid.
109 ibid.
110 I use the term ‘alleged’ advisedly as Jean-Pierre Bemba was eventually acquitted by the Court: ICC, Prosecutor v Bemba, Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III's ‘Judgment pursuant to Article 74 of the Statute’, ICC-01/05-01/08-3636-Red, Appeals Chamber, 8 June 2018.
111 Bemba (n 107) para 30.
112 ibid para 31.
113 ibid para 32 (emphasis added). Note that according to the phrasing adopted by the TC in this case, indirect victimhood was not exhausted by the normative element of family relations.
114 Al Mahdi, Judgment and Sentence (n 18) para 80.
115 This conclusion may be challenged by the claim that it was in fact the international community as a whole that was directly victimised by these crimes in so far as it is the international community in whose interests lies the protection of international cultural heritage. This perspective is displayed by the global mandate of UNESCO. See also Al Mahdi, Reparations Order (n 71) para 14 (‘The international community has recognized … the human right to cultural life and its physical embodiments’).
116 Al Mahdi, Judgment and Sentence (n 18) para 108.
117 ICC, Prosecutor v Ntaganda, Public Redacted Version of Judgment on the Appeal of Mr Bosco Ntaganda against the Decision of Trial Chamber VI of 7 November 2019 entitled ‘Sentencing judgment’, ICC-01/04-02/06-2667-Red, 30 March 2021; Ntaganda, Sentencing Judgment (n 9); Ongwen, Sentence (n 10).
118 Ntaganda, Sentencing Judgment (n 9) para 44.
119 ibid para 49.
120 ibid para 52.
121 ibid para 102.
122 Ongwen, Sentence (n 10) para 165.
123 ibid para 362 (emphasis added).
124 For a detailed exposition of victim-related issues, see Killean, Rachel, Victims, Atrocity and International Criminal Justice: Lessons from Cambodia (Routledge 2018)CrossRefGoogle Scholar; Elander, Maria, Figuring Victims in International Criminal Justice: The Case of the Khmer Rouge Tribunal (Routledge 2018)CrossRefGoogle Scholar.
125 ECCC, Case against Kaing Guek Eav, Appeal Judgment, 001/18-07-2007-ECCC/SC, Supreme Court Chamber, 3 February 2012, para 410.
126 ibid para 411.
127 ibid para 416 (emphasis added).
128 Internal Rules of the ECCC (IR ECCC), revised 16 January 2015, rule 23 bis (‘In order for Civil Party action to be admissible, the Civil Party applicant shall: a) be clearly identified; and b) demonstrate as a direct consequence of least one of the crimes alleged against the Charged Person, that he or she has in fact suffered physical, material or psychological injury upon which a claim of collective and moral reparation might be based’).
129 Kaing Guek Eay, Appeal Judgment (n 125) para 416 (‘the term ‘direct victim’ [refers] to the category of persons whose rights were violated or endangered by the crime charged; this term is not coterminous with the category of persons who suffered injury as a “direct consequence” of the crime’). Following the Draft Declaration of International Law Principles on Reparation for Victims of Armed Conflict, the Court was also cautious against equating ‘substantial impairment of fundamental rights’ with ‘harm’ (Kaing Guek Eay, ibid fn 875).
130 ibid para 416.
131 ibid para 416.
132 The condition of ‘directness’ notwithstanding, the definition of ‘civil parties’ before the ECCC is similar to the definition of ‘victims’ before the ICC. The definition of victims constructed by the ECCC, in turn, resembles that adopted by the ad hoc tribunals. While the former is premised on a factual (naturalistic) element of harm, the latter is strictly normative.
133 Kaing Guek Eav, Appeal Judgment (n 125) para 416 (‘However, for legal standing as a civil party, it is necessary that such person sustained an injury’). Here, an injury corresponds to the concept of harm in Rule 85 RPE ICC (n 24).
134 ibid para 416 (‘Pursuant to the criterion of injury, the term “civil party” will usually encompass what is commonly designated by the word “victim”, that is, a person whose rights were the object of the criminal attack in the act charged, in other words, “against whom the crimes were committed”’). Note that the definition included in the RPE of ad hoc tribunals also refers to the ‘against whom’ criterion.
135 ibid paras 411, 416. This determination moves the scope of victimhood even further than the idea of ‘right violation’. According to the ECCC, not only the violation but also an endangerment may result in the status of victimhood (see also Section 2.1 above and the correlation between the wrong-based model of victimhood and acts of endangerment examined there).
136 ibid para 417.
137 ibid para 417 (emphasis added).
138 ibid para 417.
139 ibid para 418.
140 ibid para 418 (emphasis added).
141 ibid para 448.
142 ECCC, Case against Nuon Chea and Kieu Samphan, Case 002/01 Judgment, 002-19-09-2007/ECCC/TC, Trial Chamber, 7 August 2014, para 1150.
143 ECCC, Case against Nuon Chea and Khieu Samphan, Case 002/02 Judgment, 002/19-09/2007/ECCC/TC, Trial Chamber, 16 November 2018, para 4369.
144 ibid para 4372.
145 ibid.
146 ibid para 4374.
147 ibid para 4442. See also Chea and Samphan, Case 002/01 Judgment (n 142) paras 1147–50; ECCC, Case against Kaing Guek Eav, Judgment, 001/18-07-2007/ECCC/TC, Trial Chamber, 26 July 2010, para 650 (list of family members who have demonstrated harm sustained as a result of the death of their next of kin).
148 The role of victims in the context of reparative justice has been clarified in the Chambers’ Internal Rules (IR ECCC). According to Rule 23(1)(b), ‘[t]he purpose of Civil Party action before the ECCC is to ... [s]eek collective and moral reparations, as provided in Rule 23 quinquies’. Rule 23(1) quinquies IR ECCC further stipulates that benefits afforded to the Civil Parties ‘shall not take the form of monetary payments’. Rule 113(1) IR ECCC provides that ‘enforcement of reparations granted under Rule 23 quinquies (3)(a) shall be done by appropriate national authorities in accordance with Cambodian law on the initiative of any member of the collective group, unless the verdict specifies that a particular award shall be granted in relation only to a specified group. In such case, any member of the specified group shall instead initiate enforcement of that award. Implementation of reparations described in Rule 23 quinquies (3)(b) does not fall within the scope of this Rule’.
149 Kaing Guek Eav, Appeal Judgment (n 125) paras 375, 380.
150 ibid para 381 (emphasis added).
151 Chea and Samphan, Case 002/01 Judgment (n 142) para 1077; similarly Chea and Samphan, Case 002/02 Judgment (n 143) para 4362 (emphasis added).
152 ICTY, Prosecutor v Nikolić, Sentencing Judgment, IT-02-60/1-S, Trial Chamber, 2 December 2003, paras 112–13 (the Srebrenica syndrome: one of the witnesses underscoring ‘the particular effect of the crimes committed following the fall of Srebrenica on the women’, eg, mothers, wives, sisters of murdered men); ICTY, Prosecutor v Rajić et al., Sentencing Judgment, IT-95-12-S, Trial Chamber, 8 May 2006, para 95 (victims and their relatives).
153 Nikolić, Sentencing Judgment (n 152) para 107.
154 Ntaganda, Sentencing Judgment (n 9) para 102; Bemba, Decision on Sentence (n 107) paras 29–30; ICTY, Prosecutor v Mrksić et al., Judgment, IT-95-13/1-T, Trial Chamber, 27 September 2007, para 685 (‘victims of the offences were all murdered on the day. The consequences for them were absolute. Close family members have been left without their loved ones’).
155 ICTY, Prosecutor v Blagojević and Jokić, Judgment, IT-02-60-T, Trial Chamber, 17 January 2005, para 814 (referring to direct and indirect victims whose calls for justice should be addressed by an appropriate punishment).
156 In this respect it is notable, for example, that only the ICC has defined indirect victimhood by way of identifying four groups of indirect victims. Furthermore, this concept becomes even more homogeneous and less clear once it is viewed from the perspective of other branches of international law, such as human rights law. For instance, family members of a person who is killed (direct victim of a crime) may be considered direct victims of human rights abuses, eg, when the state does not conduct an effective investigation. This does not change the fact that they may also be seen as indirect victims of the said crime.
157 It is questionable, for example, whether transgenerational harm sustained by alleged indirect victims decades after acts of direct victimisation are sufficiently proximate. According to the ICC, this possibility cannot be excluded; see ICC, Prosecutor v Katanga, Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018, ICC-01/04-01/07-3804-Red, Trial Chamber, 19 July 2018, 31 (rejecting applications solely because ‘the Applicants concerned have not established, to the requisite standard of proof, the causal nexus between the psychological harm suffered and the crimes of which Mr Katanga was convicted’, and not as a result of the nature of transgenerational harm as such); Cohen, Miriam, Realizing Reparative Justice for International Crimes: From Theory to Practice (Cambridge University Press 2020) 109CrossRefGoogle Scholar; Provost, René and Denov, Myriam, ‘From Violence to Life: Children Born of War and Constructions of Victimhood’ (2020) 53 New York University Journal of International Law and Politics 1, 56–58Google Scholar; Stahn, Carsten, A Critical Introduction to International Criminal Law (Cambridge University Press 2019) 409Google Scholar.
158 An expression coined by John Donne in his 1624 work, Devotions upon Emergent Occasions.
159 The Court verifies if ‘it was reasonably foreseeable that the acts and conduct underlying the conviction would cause the resulting harm’: Ntaganda, Reparations Order (n 13) para 133. It also notes that ‘causation between an act and its result may be broken by a subsequent event which the person who committed the initial act could not have reasonably foreseen’: ibid para 134.
160 Such as Katanga, Decision on Transgenerational Harm (n 157) (rejection of claims based on transgenerational harm for evidentiary reasons).
161 The need for a broadly conceived Dogmatik in international criminal law was underscored years ago by George P Fletcher, ‘New Court, Old Dogmatik’ (2011) 9 Journal of International Criminal Justice 179 (‘The specific ideas that one needs to support a just system of criminal law are the building blocks of what the Germans call a Dogmatik of the criminal law’).
162 Krnojelac, Judgment (n 51) para 512.
163 In all fairness, that criticism seems justified not just in relation to the place of indirect victimhood within sentencing regimes of IHCTs, but also with regard to other components of international sentencing. The haphazard character of these practices has already been captured by Barbora Holá in the title of her informative book: International Sentencing: ‘Game of Russian Roulette’ or Consistent Practice? (n 17).
164 The latter category of collective victims is particularly controversial as it does not fit easily the definition of ‘direct’ or ‘indirect’ victimhood in international criminal law.
165 Kaing Guek Eav, Appeal Judgment (n 125) para 448; Katanga, Judgment on the Appeals (n 80) para 113.
166 Such a presumption is arguably in use also in sentencing decisions. This is demonstrated by an expression mentioned above: ‘direct victims and their relatives’. The difference lies in the fact that in the sentencing context this presumption has not been spelled out by IHCTs at all, whereas in reparation decisions it has been openly admitted by the ICC and the ECCC.
167 The presumption of victimisation is obviously necessary for the purposes of victim participation in a criminal trial. It is accepted alongside the presumption of innocence on the part of the accused. For instance, Rule 2 RPE ICTY/ICTR defines victims as those persons ‘against whom a crime over which the Tribunal has jurisdiction has allegedly been committed’ (emphasis added). However, the aforementioned presumption relates to the procedural context. On the other hand, one may argue that an analogous presumption of victimisation with regard to substantive decisions (eg, granting reparations to indirect victims) cannot be defended in the same way as it remains far more intrusive from the perspective of the general idea underpinning rights of the accused (despite their conviction). In other words, from the fact that a direct victim has been harmed by a convicted offender, it does not follow that the court should be allowed to presume that family members of a direct victim are indirect victims simply because they are related in a formal sense. This determination should be entered only after proving so following all substantive and evidentiary conditions and criteria. Otherwise, an offender may bear responsibility for some (alleged but unverified) harm sustained by remote relatives of a direct victim. This would be unjust. For this reason, the latter presumption would necessitate an additional and different explanation. Unfortunately, to date, IHCTs have not clarified why their use of this presumption should be accepted as correct.
168 In practice, however, as far as victimhood enshrined in Rule 85(a) RPE ICC is concerned, the Court's decisions point to certain causal limitations, which bring its decisions closer to the second model.
169 Coleman, Jules L, Risks and Wrongs (Oxford University Press 2002) 271CrossRefGoogle Scholar (‘Proximate cause picks out from the set of necessary conditions, or but-for causes, that event that liability can be legitimately grounded on. Determining which activity is the proximate cause of an event's occurrence will depend on considerations of policy and principle’).
170 Many different policies are conceivable in this respect, some of which will be accused-centred; others will be more victim-friendly. In this respect one may note that all IHCTs seem to have adopted the victim-centred approach. This is arguably one of the reasons for their continued acceptance of presumptions of victimisation as well as relaxed criteria of attribution. See also Fletcher, George P, ‘From Rethinking to Internationalizing Criminal Law’ (2004) 39 Tulsa Law Review 979, 992Google Scholar (‘This bias toward victims makes the ICC different from other systems of criminal law that typically begin with a commitment to the rights of the accused and then struggle to accommodate the interests of victim’).
171 For a view advocating the recognition and compensation of transgenerational harm in international criminal law see n 157.
172 To show how this ex post perspective would work in relation to the concept of indirect victimhood, it could be argued that, for instance, psychological harm of indirect victims stemming from material harm sustained by direct victims (eg pillaging) is too remote from the crime in question; in effect, it should be deemed irreparable (reparative justice) and irrelevant (punitive justice) in contrast to material harm sustained by direct victims, which would be material in both spheres of reparative and punitive justice. However, it should be underscored that this suggestion is not merely normative (de lege ferenda) in its nature, for it also finds some support in the case law of IHCTs (de lege lata). As an example, note that in the 2009 Decision on Indirect Victims (discussed at Section 4.1), the ICC made it clear that ‘the person attacked by a child soldier is not an indirect victim … because his or her loss is not linked to the harm inflicted on the child when the offence was committed’: Lubanga, Decision on ‘Indirect Victims’ (n 62) para 52. This absence of a link corresponds with my claim that some types of harm are simply too remote from initial negative effects of direct victimisation to be deemed material for reparative and punitive purposes. Therefore, one cannot claim to be an indirect victim of the war crime of unlawful conscription of child soldiers simply because, as a result of this unlawful action, the victim has sustained harm stemming from the child soldiers’ subsequent actions. It could thus be said that the ICC has adopted analogous reasoning in this case to the one presented above. My claim, however, is that this limiting reasoning should be applied to all crimes falling within the jurisdiction of IHCTs.