60 Victim participation provisions are relatively new in the history of international criminal tribunals. As such, the concept and its application, including with respect to procedural aspects, are evolving. Implementation of victim participation requires creativity and an open-minded approach to the issue. In order to allow for meaningful victim participation, court officials and staff must possess an acute understanding of field dynamics, which can be challenging for tribunals located in a different country or continent than the victim communities.
61 In terms of the advantages of victim participation, commentators often refer to the increased legitimacy of the relevant tribunal (eg Sperfeldt, 2012, 155; Ochoa, 2013, 170–71; see also ASF, 2013, 1). This is the case especially for tribunals that sit in locations distant from the places where crimes were perpetrated, and may enjoy no specific standing or recognition among victim communities. For the tribunal to enjoy such level of legitimacy, it is important that victim participation be genuine and meaningful. Victim participation can also lend increased credibility to the proceedings as victims can make relevant contributions to ascertain the truth of the events under the jurisdiction of the tribunal. The ICC has specifically acknowledged that victims may assist the judges by providing local knowledge and socio-cultural background (ICC-01/04-01/07-1165, 2010, para 82).
62 An undeniable challenge of victim participation is the high numbers of victims who can potentially apply to intervene. While certain tools are in place to manage the large numbers, including for example common legal representation, individual assessment of applications is often time-consuming for the parties and the bench and support staff (Van den Wyngaert, 2012, 493; SáCouto and Cleary, 2008, 102; Pena and Carayon, 2013, 528–29). The ICC made a timid attempt to explore collective applications, which did not prosper (for a critical analysis, see ICC-01/04-02/06-57). In due time, the ICC and other tribunals may want to revisit this matter. International tribunals’ legal texts place importance on the victims’ ‘personal interest’ to mark a difference with a generic or abstract interest. There may be ways to maintain a focus on the personal interests (for example, by ensuring personal consultations with victims) while allowing for certain procedural acts or stages, such as the application process, to be undertaken collectively.
63 Those who oppose the idea of victim participation often question its added value. Some consider that the victims’ interests are sufficiently represented by the prosecution and that having another actor present arguments that could be aligned with those of the prosecution could be duplicative, or even against the rights of the accused (Van den Wyngaert, 2012, 488; see also Zappalà, 2013, 139). However, it is first important to recall that the prosecution does not represent the rights of individual victims, but rather more generally the interests of the international community. It has also been pointed out that the prosecution must take into consideration multiple and often antagonistic imperatives, including the interests of victims, but also cooperation needs, evidence requirements, and protection obligations among other considerations (Pena and Carayon, 2013, 525). Second, there are diverse interpretations as to whether the role of victims is to support the prosecution. For example, Rule 23 (1) (a) ECCC Internal Rules explicitly provides that one of the purposes of civil party intervention is to support the prosecution. The role recognized for victims before the UNMIK Panels involved bringing subsidiary prosecutions (Perizzolo, 2016, 97; PCPCK, 464). The regulations governing the East Timor Special Panels gave victims the right to request that the prosecutors take specific measures to prove the guilt of the suspect, which the prosecutor could accept or reject (UNTAET Reg 2000/30, sec 12 (6)). In contrast, chambers at the ICC have been particularly averse to the notion of victims becoming a secondary prosecutor (ICC-01/04-01/07-T-87-Red-ENG, 2009, 26, 33–34; ICC-02/04-01/15-T-65-Red-ENG, 2017, 55). For example, victims at the ICC are specifically precluded from extending the factual basis of a case (including for the purpose of adding charges), as such a matter is the sole responsibility of the prosecution (ICC-01/04-01/06-2205, 2009, para 94). Third, it is not inconceivable that victims’ interest could align with those of the defence in certain circumstances. Because of their location in the place where crimes were committed, victims often bring a more comprehensive understanding of the cultural and historical context in which the crimes were perpetrated. Such background could favour a defence theory. Finally, rather than aligning themselves with the prosecution, a critical role for victims could be that of questioning the prosecution’s choices, for example on issues that have a critical impact on victims’ interests such as the selection of cases. This is, however, a theoretical possibility, as international tribunals have limited such a potential role.
64 A challenge for international criminal tribunals is to make victim participation as effective as possible. That goal can be attained through different levels of measures, including relatively simple ones such as reducing the administrative burden on victims, but also through actions seeking to ensure that they are genuinely involved. The question of selection and appointment of victims’ lawyers is critical to ensure victim agency; meaningful participation requires effective legal representation practices ensuring that victims are informed and consulted. Consulting victims in counsel selection is one important step; making procedures for review of appointment decisions available (Tibori-Szabó and Hirst, 2017, 151–52) and ensuring legal representatives’ monitoring and disciplinary mechanisms are equally relevant (REDRESS, 2015, 24–27). Overall, ensuring effective and meaningful participation requires taking distance from a paternalistic approach and letting victims speak for themselves (Killean and Moffett, 2017, 732–33), recognizing them as the main beneficiaries of the justice process, and placing them at the centre of judicial proceedings. For populations that have been disempowered through victimization, genuinely considering their views can have empowering effects (Pena and Carayon, 2013, 534). It is also important to understand that the very significant aspects of victim participation take place in the field rather than in the courtroom. By engaging with their legal representatives and providing contributions, victims feel involved and considered.
65 Finally, a question often raised is whether victim participation can slow proceedings down (Van den Wyngaert, 2012, 492–93). Considering submissions by three parties/participants instead of two certainly requires a different level of management. But international criminal proceedings can be delayed for countless reasons, many of which are entirely unrelated to victim participation. An observation of the practice to date does not substantiate the argument that victim participation causes undue delays. Certainly, as discussed above, the application process could be streamlined; that would probably be beneficial to all participants, including victims. Nevertheless, beyond matters related to the application process, no specific delays during pre-trial or trial proceedings can be specifically attributed to victims. If any such delays were to occur, those would need to be balanced against the benefits of victim participation.