Hello, I'm Sergey Vasiliev and I teach international law at Leiden University. In this video, we'll be focusing on the role of victims. We will start by discussing the importance of this actors in international criminal justice. Then we will address the role they play in prosecutions and trials, in particular in the International Criminal Court, and to reflect on the related challenges. Unlike judges, prosecutors and defense counsel, victim participants are no primary players. So why are they important? Why should they be involved in the administration of international criminal justice? Nowadays, victims occupy an important place in international criminal law. It's modern institutions are no longer conceivable without them. Victims are endowed with the rights to protection, participation, legal representation, and reparation in most contemporary international and hybrid criminal tribunals. But their significance extends far beyond. It speaks to the high ideals and aspirations, it shows much about the project of international criminal justice as a whole, our idea of what it should be and why we're even engaging in it. Victims are above all, an important constituency. Caring for international crime victims was the main rationale for setting up international criminal tribunals. The political support necessary for prosecutions was typically mobilized after reports of gross human rights violations and the plight of victims. The tribunals have routinely employed the victim discourse. They have claimed to be dispensing justice for the victims on behalf and in the name of the victims as opposed to the community of states alone. If international criminal justice is to have a direct and positive impact on the lives of persons affected by the crimes, then it's processes should accommodate and empower victims to the extent possible. Otherwise, justice for the victims is only a hollow talk. Therefore, by playing a more active role, victims provide a moral bolster to the penal authority vested in the tribunals by the international community. The activation of victim constituency lends greater legitimacy to the project. Victims are new commerce in the business of international prosecutions and trials. In the post-second World War proceedings and before the United Nations ad hoc tribunals, the role of victims boiled down to that of witnesses, mostly for the prosecution. The prosecutors at the International Criminal Tribunals for the former Yugoslavia and for Rwanda claimed to represent victims. But in practice, their interests as litigants diverged. Victims had no effective means to promote their personal interests due to the lack of standing. This matched well with the common law influenced setup of the proceedings, where a criminal trial is structured as a dialectic clash between the two opposing cases. Adding a third party slants the delicate balance. It is bound to upset the equality of arms between the prosecution and the defense. However, this is different in the International Criminal Court, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. The procedure in those later courts is much more amenable to victim participation. But why is it so? First, this shift was inspired by the developments in soft international law. They spurred the movement towards an increased recognition of victim rights, including the right to remedy, truth, and access to justice. The restorative justice theories have also left their mark. These theories refute the notion that retributive justice, which is solely concerned with punishing the perpetrators, is sufficient to restore and provide redress. This notion was proven flawed by the experience of the ad hoc tribunals. Therefore, it gave a way to a more inclusive, victim friendly justice paradigm. The second reason why victims now enjoy extensive procedural rights is that the more recent tribunals frameworks admit a greater civil law influence. In continental systems, a trial is not a bipartite affair. It is viewed as an impartial quest for an objective truth. A civil law court would be more receptive to a third perspective on the facts and evidence provided by victims. Let us take a closer look at the role of victims in the proceedings before the International Criminal Court. At the International Criminal Court, victims contribute to prosecutions and trials in several ways distinct from testimony. First, they may provide to the prosecutor with information about the crimes during the preliminary stages. On that basis, the prosecutor may request the Pre-Trial Chamber to authorize her to open an investigation proprio motu. Victims can then make representations on such requests to the chamber. Victims are also entitled to make observations on jurisdiction and admissibility of a case. Article 68, paragraph three sets out a general participatory regime. It is one of the most enigmatic and debated provisions in the Rome Statute. It states that, victims shall be permitted to present views and concerns whenever their personal interests are affected. This right can be exercised at the procedural stages determined appropriate. For instance, the confirmation of charges. Furthermore, such participation must be consistent with the rights of the accused as well as a fair and impartial trial. Victims may not challenge the prosecutor's decisions not to investigate or prosecute, but they are entitled to partake in the judicial review of negative prosecutorial decisions whenever such proceedings are triggered by other actors. During the trial, victims participate in a variety of ways. The legal representative may make opening and closing statements, attend and participate in hearings, pose questions to witnesses and experts upon leaf. Victims may also present their views and concerns in person when authorized by the Chamber. This differs from any testimonial contributions. Last but not least, in all cases so far, the ICC Trial Chambers have allowed legal representatives for the victims to present evidence on the guilt or innocence. The ICC statute and rules do not expressly provide for this modality which was grounded on the judicial prerogative to ascertain the truth. But there is a shadow side to it, to the extent that the victim's evidence tends to be inculpatory. The defendant will be confronted with multiple accusers. However, the onus of proving the guilt must always be on the prosecutor. Ultimately, it is the responsibility of the judges to safeguard the rights of the accused and a fair and expeditious trial. Victim participation is a novel and dynamic field of law and practice. As long as it remains unsettled, the scope of victims rights will be subject to contestation and reinterpretation. At the ICC, the judicial approaches have varied widely. There has been much case-by-case experimentation. There is no one size fits all solution, or at least it is yet to be discovered. The previous discussion shows that involving victims in the proceedings may only appear simple. The implementation poses daunting challenges of which several can be mentioned. Conceptually, the very idea of having victims participate continues to raise controversy. Critics contend that international criminal proceedings are already complex and costly enough. Resources spent on participation and representation could instead be given to victims so they can rebuild their lives. International crimes are typically committed on a large scale. They cause mass victimization and inflict severe harm. The extent to which injustices of such magnitude can be remedied should not be overestimated. This is especially true for an international court with limited capacity and funding. Criminal courts may be good for other things but they are poor restorative justice mechanisms. The reach of justice for the victims is further qualified by the strictures of the formal legal process. Individual victims applying for participation in a case must demonstrate the nexus between the direct or indirect harm they have personally suffered and the charges against the accused. The charges may be narrowly framed and many victims will be left out. This can create a hierarchy of victimhood between the case and situation victims, fueling resentment and tensions in the affected communities. Due to a sheer number of applicants running up to several thousand per case at the ICC, the vetting procedures took inordinately a long time in the past. Participation mostly occurs through a common legal representative who acts for large groups. For victims, the nature of such participation may be worth neither the effort of applying nor the risks they expose themselves to by communicating with the court. To conclude, victims play a crucial role in international criminal justice. They are its beneficiaries and actively contribute to the process. For the tribunals, the victim constituency is also a source of legitimacy. The increased involvement by victims is often presented as a major achievement. But the above exposition of the challenges reveals that it is an uncharted moral mine field. The risk of frustrating victims expectations cannot be taken lightly. Their expectations are elevated from the outset and the stakes are very high. A failure to deliver on the promise of justice for the victims might convey the impression that the tribunals are using victims to pursue their institutional goals. If this impression takes hold among the victim constituents, this could seriously undermine the legitimacy of international criminal justice.
