Victim Rights

One of the International Criminal Court's primary goals is to deliver justice to the victims of the world's most horrific crimes. Indeed, the plight of the victims of conflict around the world was a major source of motivation for the delegates who drafted the Rome Statute. As a result, the Rome Statute is sensitive to the needs and rights of victims both as individuals who have suffered traumatic experiences and witnesses who play a crucial role in bringing criminals to justice.


Background

One of the exceptional features of the Rome Statute of the International Criminal Court is its focus on and sensitivity to the rights and interests of victims.

Prior to the 1990s, international human rights and humanitarian law often overlooked the perspectives and needs of the victims of the world's worst crimes. Over the years, courts have rarely succeeded in prosecuting the perpetrators of these crimes a failure that has caused their victims unimaginable pain, sadness and frustration.

The International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) represented important steps forward in terms of the status of victims within the international criminal process. The Rome Statute advances the interests of victims under international criminal law even farther, not only by protecting victims, but by acknowledging their rights and interests and encouraging them to participate in the judicial process.

Redress for Individuals Against Individuals

International law has traditionally been regarded as the "law between States." The Rome Statute reorients this long-standing notion by acting as an international legal instrument that provides victims with redress against the individuals who perpetrated crimes against them.

The Preamble of the Rome Statute declares that States Parties are "determined to put an end to impunity for the perpetrators of ... crimes" under the ICC's jurisdiction. More specifically, Article 25 of the Rome Statute clearly states which individuals are under the jurisdiction of the ICC:

Article 25
Individual criminal responsibility

  1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
  2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute ...
  3. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

This represents a new orientation towards individual criminal responsibility. In addition, Article 13(a) and Article 13(c) of the Rome Statute permit states and the ICC Prosecutor to initiate prosecutions based upon requests and information brought forward by individual victims. Both these advances provide victims with a potential source of empowerment.

Lack of Immunity

Another landmark provision of the Rome Statute specifically states that alleged perpetrators cannot claim immunity from prosecution for crimes under the ICC's jurisdiction:

Article 27
Irrelevance of Official Capacity

  1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

This means the victims of human rights abuses and violations of humanitarian law will no longer see the perpetrators avoid prosecution because of their status as government officials.

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The Victims and Witnesses Unit

Understanding the importance of witnesses and the potentially unique needs of victims as witnesses, the ICC features a Victims and Witnesses Unit that protects victims and witnesses and provides them with counselling services as required. In accordance with the Statute, the Victims and Witnesses Unit is staffed by personnel who are experienced in counselling those who have suffered the trauma of sexual violence:

Article 43
The Registry

  1. The Registrar shall set up a Victims and Witnesses Unit within the Registry. The Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

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Investigations

The Rome Statute is also sensitive to the needs of victims during ICC investigations. The Statute bestows a specific duty on the Prosecutor to "respect the interests and personal circumstances of victims and witnesses" throughout the investigation process:

Article 54
Duties and powers of the Prosecutor with respect to investigations

  1. The Prosecutor shall ...
    1. Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and
    2. Fully respect the rights of persons arising under this Statute.

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Protection at Trial

Not only does the Rome Statute provide for victim-sensitive investigations of alleged ICC crimes; it also addresses the safety of victims at the trial phase in the enumerated functions and powers of the Trial Chamber:

Article 64
Functions and Powers of the Trial Chamber

  1. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

More specifically, the Rome Statute requires the ICC to safeguard the well-being of victims and witnesses in a manner that respects the individual needs of each victim:

Article 68
Protection of the victims and witnesses and their participation in the proceedings

  1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

The Rome Statute also allows the ICC to conduct private hearings in order to protect victims:

Article 68
Protection of the victims and witnesses and their participation in the proceedings

  1. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness ...
  2. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6.
  3. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
  4. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

Victim Participation

A notable quality of the Rome Statute is that it gives victims a voice and the opportunity to be heard at all stages of the proceedings before the Court. They may also file submissions on all matters relating to the competence of the Court or the admissibility of cases.

On January 17, 2006, the Pre-Trial Chamber decided that victims have the right to participate in the proceedings at the investigation stage pursuant to the provisions of article 68(3) of the Rome Statute.

Article 68
Protection of the victims and witnesses and their participation in the proceedings

  1. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

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Reparations

The Rome Statute allows judges to include reparations to victims in the sentences of convicted persons in the form of restitution, compensation and rehabilitation. This means that ICC judges can order convicted criminals to pay reparations to victims based on the amount of damage, loss and injury the victims sustained:

Article 75
Reparations to victims

  1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.
  2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.
    Where appropriate, the Court may order reparations to be made through the ICC Trust Fund described in article 79 of the Rome Statute.
  3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.
  4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.
  5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.
  6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

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Trust Fund

As part of its mandate, the ICC manages a trust fund for the benefit of victims and their families. While no monetary value can be placed on the human suffering the victims may have endured, the Trust Fund provides a measure of monetary relief to victims and their families:

Article 79
Trust Fund

  1. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.
  2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.
  3. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

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Conclusion

The ICC has made significant advances in protecting and recognizing the rights and interests of the victims of the world's worst crimes. The Rome Statute is sensitive to issues that relate to the role of victims as witnesses and as individuals who have experienced extremely traumatic events. In this way, the Rome Statute strengthens the position of the victim under international law and provides victims with much-needed opportunities for empowerment and agency. This represents a crucial step forward for victims of heinous crimes all over the world, who have historically been under-represented, if not forgotten by judicial systems.