Friday, November 5, 2010

My New Book on Victims and the International Criminal Court

My new book, Rethinking International Criminal Law: Restorative Justice and the Rights of Victims in the International Criminal Court (2010) has been published by Lap Lambert Academic Publishers in Germany. It is available at major stores in the US and Europe as well as [see:] and (follow this link (Morebooks offers free shipping worldwide).

More About the Book

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 their right to reparations.

This study 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 study 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 study 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 study reviews the relevant texts – the Rome Statute, its Rules of Evidence and Procedure and other instruments – and demonstrates 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 study attempts a systematic review of the rights of victims in criminal law processes in select domestic criminal justice systems (including the USA, France, United Kingdom), international human rights tribunals and other international courts. At the same time, the study reviews the implementation of reparations in various contexts and makes suggestions as to how the ICC and the Victim Trust Fund of the ICC should proceed in this regard within the relevant legal and institutional framework.

In relation to the right to participate, the study 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, it argues that 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. The study reviews 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 study concludes 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 study 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 favor a broad presumption of victim participation. Since full realization 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 study notes that this is perhaps the greatest innovation in the Rome Statute. The study finds 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 experience of national criminal justice systems, the study acknowledges the practical difficulties involved in vesting a criminal court with a reparation function argues that this will pose particular challenges to 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 concludes that various mechanisms, including various permissive rules and the creation of the Victim Trust Fund make it possible to address some of the difficulties associated with the right to reparations in the ICC.

The study further notes that while a reading of the relevant provisions establish the possibility of the Court and Victim Trust Fund 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 study concludes 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 study endorses 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 study further concludes that the Victim Trust Fund, 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 Truth and Reconciliation Commission, the Rwandan Gacaca model and the United Nations Compensation Commission (UNCC), as well as the United States’ 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 concludes 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 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.

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