1  The notion of victim participation forms part of the victims’ rights discourse and practices that have emerged in the fields of victimology, criminal law, and transitional justice. In international criminal law, it denotes the involvement of victims in proceedings, as ‘actors of international justice rather than its passive subjects’ (Policy Paper on Victims’ Participation, 2010, 1). Participation has been interpreted as ‘direct and autonomous intervention, often (though not necessarily) through legal representation’ (Pena, 2019, para 2). In the criminal law context, it can be exercised through a series of participatory rights that flow from the status of being recognized as a victim, be it as a party to proceedings, partie civile, or in another capacity, including as participants.

2  In parallel, there has been a greater recognition of victims’ rights in international human rights law, particularly their rights to an effective remedy and to reparation (Human Rights, Remedies). The issue of victims’ rights before human rights bodies has been largely framed in terms of victims as subjects of international law and their access to justice (see eg Trindade, 2011).

3  Victims in human rights cases are typically complainants, which entails that they have the procedural rights of a party to proceedings. The term ‘victim participation’ refers in this context to persons or groups who claim that their rights have been violated, in proceedings before a human rights body whose task it is to establish whether the alleged violation has taken place.

4  The notion of victim participation is largely absent in both the literature on human rights bodies and their practice. Exceptions are the complaints procedures under specialized treaties on child protection which make specific reference to participation, drawing on one of the key substantive principles of children’s rights (Children, International Protection; Committee on the Rights of the Child (CRC)). This lack of focus on victim participation can be attributed to an assumption that victims, as parties to proceedings, can participate automatically in complaints procedures (Human Rights, Individual Communications/Complaints). The academic literature on complaints procedures in international human rights law has largely focused on their procedural elements, evolving jurisprudence, and effectiveness (see eg Ulfstein, 2012, 89–115, and contributions in Mégret and Alston, 2020, chapters 9–16), as well as litigation strategies and their impact, including their effectiveness for victims (Duffy, 2018, 3–6). Yet, there has been a lack of scrutiny of victim participation as an autonomous field of inquiry that examines the modalities, adequacy, and effectiveness of extant procedures before human rights bodies.

5  Victim participation before human rights bodies is generally subject to (i) the availability of a complaints procedure under the relevant human rights treaty or its optional protocol; (ii) the State Party having recognised the body’s competence to hear individual complaints; (iii) the individual or legal person or group having standing to bring a case pursuant to the relevant legal instrument; and (iv) effective access.

6  The core United Nations (‘UN’) human rights treaties, and the UN Working Group on Arbitrary Detention, a UN special procedure, provide for individual complaints procedures, the exception being the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990), with the complaints procedure envisaged therein not yet entered into force as the required number of States Parties have not made the pertinent declaration. At the regional level, victims can bring complaints under the African Charter on Human and Peoples’ Rights (1981) (‘ACHPR’), the African Charter on the Rights and Welfare of the Child (‘ACRWC’) (1990), the American Convention on Human Rights (1969) (‘ACHR’), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (1988) provides for a mediated system of complaints, which can be brought by certain national and international organizations of employers and trade unions, and international nongovernmental organizations, but not directly by victims (Art 1) (Collective Complaint Procedure: European Committee of Social Rights). The Arab Charter on Human Rights (2004) and the Association of Southeast Asian Nations (ASEAN) Human Rights Declaration (2012) do not provide victims with access to any complaint procedures.

7  State acceptance of complaints procedures varies considerably. Several of the largest States, including China, India, the United States, Indonesia, and Pakistan, have not accepted any of the UN human rights treaty complaints procedures. Populist political movements and adverse rulings against States have prompted a wider backlash against human rights bodies (Duffy, 2018, 29–31), which increases the likelihood of withdrawals and a lack of willingness to accept complaints procedures.

8  There is no uniform rule on jurisdiction rationae personae. Natural persons who claim that their rights have been violated under the applicable treaty can bring a case under all complaints procedures, either in person or through representatives (see eg Art 1 Optional Protocol to the International Covenant on Civil and Political Rights (1966) (‘OPICCPR’)). Legal persons typically have no standing before UN human rights treaty bodies (General Comment No 31, 2004, para 9). However, an organization may be able to bring a complaint pursuant to provisions that allow groups of individuals to complain, provided it demonstrates that it, by virtue of its activities and the group of individuals it represents, has been directly affected by the conduct in question (TBB-Turkish Union in Berlin/Brandenburg v Germany, 2013, para 11.3).

9  Persons or peoples alleging a violation of their collective rights falling within the jurisdiction of the human rights body concerned can bring cases before the Inter-American Commission on Human Rights (IACommHR) (Art 44 ACHR) and the African Commission on Human and Peoples' Rights (ACommHPR) (Art 56 ACHPR) but not the UN treaty bodies (see eg Art 1 OPICCPR). A group of individuals can complain about an alleged breach of their rights collectively (see Lubicon Lake Band v Canada, 1990, para 32.1).

10  The actio popularis provided for under Article 44 ACHR, Article 56 ACHPR, and Article 44 ACRWC does not require that a complainant or complainants claims a violation of their rights. This form of public interest litigation enhances access to the relevant human rights bodies, particularly by non-governmental organizations bringing cases on behalf of victims (see eg Article 19 v Eritrea, 2007, para 65). It does not however, automatically or necessarily enhance victim participation. On the contrary, victims may not even be aware of, and consequently not take part in, any such proceedings. Actio popularis cases therefore raise profound challenges regarding the representation and participation of victims (Aceves, 2003, 397–401).

11  The different rules on jurisdiction rationae personae entail that there is no coherent system of equal access for all victims of human rights violations before UN and regional human rights bodies. This differential access pre-empts the participation of certain victims, particularly victims of violations of collective rights, from the very outset. The broader standing provided for in the regional human rights treaties does not discriminate amongst victims in respect of accessibility but may, in actio popularis cases, preclude them from becoming active participants in proceedings.

12  Effective participation in proceedings is contingent on victims’ awareness of relevant procedures. International criminal justice and transitional justice mechanisms (Transitional Justice: Institutional Mechanisms and Contextual Dynamics) have established dedicated victim units and outreach programmes and regional and national instruments underscore the need to inform, protect, and support victims (see eg Directive of the European Parliament and of the Council Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and replacing Council Framework Decision 2001/220/JHA (2012)). Human rights bodies have largely confined themselves to providing general information on complaints procedures to the wider public, without utilizing effective outreach strategies (REDRESS, 2013, 22; Çali and Galand, 2020, 4).

13  Victims’ access to and participation in proceedings is hampered by several other factors, particularly the risk of reprisals. In response to threats and attacks faced by complainants, the UN treaty bodies (Human Rights, Treaty Bodies) have taken measures to provide protection to complainants and others cooperating with them (see in particular the UN Guidelines against Intimidation or Reprisals, 2015 (‘San José Guidelines)). The treaty bodies have appointed rapporteurs and focal points tasked with responding to allegations of intimidation and reprisals and coordinating responses amongst treaty bodies (on recent initiatives, UN Human Rights Council, Report of the Secretary-General, Cooperation with the United Nations, its representatives and mechanisms in the field of human rights, para 12). The San José Guidelines also envisage a series of preventive measures, including permitting individuals or groups to provide confidential information and cooperating with all stakeholders. This approach offers victims and their representatives the opportunity to engage with a view to strengthening protection measures and practices. UN treaty bodies have requested States to provide protection in individual cases (see eg Peiris v Sri Lanka, 2012, para 1.2). Regional human rights bodies, particularly the IACommHR, have adopted interim measures to protect victims, their representatives, and human rights defenders seeking to pursue complaints at the national and regional level (eg Committee of Victims of La Saline regarding Haiti, 2019). Notwithstanding these efforts, the lack of effective protection and risk of reprisals in response to taking legal action remains a genuine concern in a number of countries (Concluding Observations on the fifth periodic report of Sri Lanka, 2017, para 17), and may stifle recourse to human rights bodies.

14  Bringing a complaint before a human rights body is free of charge but pursuing a case, including participation in hearings, often entails incurring costs. Human rights bodies typically provide no or limited legal assistance, and do not fully cover the costs of legal representatives. The Rules of the IACommHR on the Legal Assistance Fund of the Inter-American Human Rights System (2011) exceptionally provide for legal assistance ‘to defray the expenses derived from gathering and sending of documentary evidence, as well as the expenses derived from the appearance of the alleged victim, witnesses and experts in hearings held by the Commission and other expenses’ (Art 4). The Rules of Procedure of the ACommHR (2020) also envisage the possibility of facilitating access to free legal representation, ‘including from the Legal Aid Fund of the Human Rights Organs of the African Union’ (Rule 126 (1)). In most cases before human rights bodies, however, victims effectively have to rely on pro bono assistance by lawyers or non-governmental organizations taking up their case, which presupposes that they can effectively access them in relation to their case (see Duffy, 2018, 34–35; Legal Aid).

15  Victims can exercise a series of typical participatory rights by virtue of their status as parties to proceedings. Forms of such participation in human rights complaints procedures consist of requesting interim (provisional) measures of protection; presenting evidence; requesting and participating in hearings where provided for; applying for reparation (Reparations); negotiating and agreeing on friendly settlements where considered appropriate; and being part of the process of implementing decisions. Victims can also intervene indirectly, particularly before regional human rights bodies, by making amicus curiae (Amicus Curiae: Human Rights Bodies) submissions (Viljoen and Abebe, 2014). These rights can be exercised in person, or through representatives authorized to act on behalf of victims at various stages of proceedings, from a request for interim measures, admissibility, merits, reparation, to the implementation of decisions. Following a brief discussion of the use of the term participation in human rights complaints procedures and the challenges that cases involving multiple victims pose, this section will consider the modalities of participation before UN and regional human rights bodies.

16  The relevant treaties and rules of procedures governing complaints before human rights bodies do not explicitly use the terms participation or victims’ views and concerns. Exceptionally, the Rules of Procedure under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (2013) provide that ‘[the Committee] shall ensure that the views of the alleged victim(s) are given due weight in accordance with their age and maturity’ (Rule 19 (1)). The African Committee of Experts on the Rights and Welfare of the Child’s (‘ACERWC’) Revised Guidelines for the Consideration of Communications (2014) (‘Communication Guidelines’) stipulate, in relation to oral hearings, that ‘[t]he Committee shall take measures to ensure the effective and meaningful participation of the child or children concerned by the consideration of the Communications’ (Section XI (6) (i)). This approach is guided by the general principle and substantive right of children to participate (Art 12 Convention on the Rights of the Child (‘UNCRC’); Art 4 (2) ACRWC). It therefore transposes this child-specific right into the bodies’ complaints procedures.

17  The rationale for this right is to ensure that children’s views are heard in an adult-centric world and that they can exercise their rights effectively. It applies to a considerable extent to other victims, particularly members of groups who are marginalized and have encountered difficulties in expressing their views. However, it has not been translated into a more general procedural principle to be applied in proceedings before human rights bodies, which are based on the implied assumption that victims are capable of exercising their rights, be it by themselves or through adequate representation.

18  The exercise of procedural rights represents a particular challenge in cases of massive or systemic human rights violations involving a large number of victims. International human rights bodies, by virtue of their subsidiary control or monitoring function and the nature of quasi-judicial proceedings, are not designed to deal with mass claims (on the advantages of proposed class action litigation in international law, Aceves, 2003, 399–401). Such cases may pose genuine problems for victims in terms of choice of legal representatives, agreement on legal strategy, victim representation in hearings, and ability to furnish evidence (with reference to regional human rights bodies, Oette, 2020). They counsel against treating ‘victims’ as a uniform entity that will be free of tensions in the course of proceedings.

19  One of the foremost participatory rights of victims is to bring claims and support them by providing evidence. The type of evidence considered is largely circumscribed by the procedural rules, guidance or practice of the body in question. UN human rights complaints procedures are primarily confined to written submissions, typically affidavits and documentary evidence (OHCHR, Informal guidance note, 2017). UN bodies do not conduct fact-finding and, with few exceptions, do not provide for hearings. The reliance on written proceedings theoretically makes the procedure cheap and accessible (Callejon and others, 2019, 13). However, it renders proceedings formal and remote, and limits the voice and visibility of victims as participants. It also deprives victims of the opportunity to tell their story in a dedicated forum and to directly challenge the evidence put forward by the respondent State. These aspects of proceedings, in addition to their excessive length and limited State compliance, form part of the long-standing critique of the lack of accessibility and effectiveness of UN human rights treaty bodies (Oette, 2018, 106).

20  The rules of procedures of the Committee on the Elimination of Racial Discrimination, the UN Human Rights Committee and the United Nations Committee against Torture (CAT) envisage the possibility of conducting oral hearings. The Human Rights Committee, in a recent change of its procedures, ‘decided that it would consider, in appropriate cases raising complex issues of fact or domestic law or important questions of interpretation of the Covenant, inviting the parties to provide their comments orally before the Committee’ (Guidelines on making oral comments concerning communications, 2019, para 2). The criteria for identifying cases for oral comments, namely complexity, importance, and appropriateness found in the Annex to the Guidelines indicate that such oral comments are designed to help the Committee to exercise its quasi-judicial role. They are not, at least primarily, meant to provide victims with a forum to express their views and concerns.

21  The practice before regional human rights bodies varies considerably. In addition to written evidence, the bodies have repeatedly conducted fact-finding as part of complaints procedures (Murray, 2019, 676; Pasqualucci, 2013, 101; Mezmur and Kahbila, 2018, 206, 209). The ACommHR’s Rules of Procedure (2020) allow victims to request a hearing (Rule 102) and call independent experts and witnesses (Rule 103). Since their inception in the 1990s, hearings have become commonplace. They provide complainants with an avenue to furnish additional information. However, their potential to give victims a prominent, visible place to engage in proceedings risks being undermined by several factors. These include the ACommHR’s inconsistent practice, the conduct of hearings, and abrupt changes of the agenda leading to the cancellation of hearings (Murray, 2019, 673). Victims have also struggled to attend hearings in person due to the difficulty of obtaining legal aid and the absence of alternative financial support, other than through non-governmental organizations (Murray, 2019, 675).

22  The ACERWC’s Communication Guidelines (Revised Guidelines for the Consideration of Communications, 2014) permit parties to request a hearing, to call for the hearing of witnesses, experts and other persons, and provide for a child friendly process, as well as the protection of persons participating in hearings (Section XI). In its practice, the Committee has conducted hearings, such as in a communication with child victims in the Mauritania case (Minority Rights Group International and SOS-Esclaves on behalf of Ould Salem and Ould Salem v Mauritania, 2017, para 3), and engaged with victims during field visits (Mezmur and Kahbila, 2018, 206).

23  Proceedings before the IACommHR represent the most advanced form of victim participation. Its Rules of Procedure (2009) provide for a broad scope of hearings for victims (Title II, Chapter VI). According to Article 64 (1) thereof, hearings on petitions and cases ‘may refer to any of the following issues: admissibility; the initiation or development of the friendly settlement procedure; the verification of the facts; the merits of the matter; follow-up on recommendations; or any other matter pertinent to the processing of the petition or case’. Hearings are regularly held in public and made available through multimedia (see eg Miskitu Indigenous Community of Tasbapounie; Afro-descendant Community of Monkey Point; Rama Indigenous People; Black Creole Community of Bluef, Nicaragua, 2020). This practice significantly enhances both accessibility and visibility for victims who are provided with an important forum to exercise their procedural rights and express their views (Pasqualucci, 2013, 102–103).

24  Victim participation understood as the active involvement of victims at all stages of proceedings extends to the process of deciding on reparation claims. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005) stipulate that reparation should be victim-oriented (Preamble; see further REDRESS, 2013, 40–42). This principle implies a participatory approach to decision-making pertaining to reparation (Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, 2014, paras 74–80).

25  UN human rights bodies have largely treated reparation as an integral, and formulaic, part of their quasi-judicial decisions on the merits. This practice has provided victims with limited ability to present evidence and make their views on reparation heard before the respective body. The Human Rights Committee has provided some guidance on measures of reparation. It effectively invites parties to indicate the types of reparation sought, albeit without setting out in any detail a procedure beyond the consideration of written submissions (Human Rights Committee, Guidelines on measures of reparation, 2016, para 4).

26  The practice of the African Commission has followed a similar trajectory (REDRESS, 2013, 23–24). In a noteworthy development, according to its recently adopted Rules of Procedure (2020) the Commission ‘may invite the parties … to hold a separate oral hearing’ on reparations (Rule 121).

27  The Inter-American Commission has adopted a practice of recommending reparations as part of its findings on the merits. It uses follow-up procedures that have enabled victims to engage in a dialogue with the respondent State Parties and agree on the specific forms of reparation and modalities of their implementation (see eg Marta Lucía Álvarez Giraldo v Colombia, 2018, paras 233–37).

28  The limited focus of several human rights bodies on reparation reflects the conventional view that the primary function of complaints procedures is to monitor State Parties’ compliance with their treaty obligations, rather than providing a remedy to victims of human rights violations. As regional developments demonstrate, however, there is no intrinsic reason why human rights bodies cannot adopt practices relating to reparation claims that enhance victim participation.

29  Effective follow-up procedures are integral to the effectiveness of human rights complaints procedures, and to victims’ prospects of obtaining adequate protection and reparation. Despite the obvious importance of such procedures, their absence has long been considered a major, systemic weakness. In response, UN human rights treaty bodies have established mechanisms that may request further information from the parties, and act as focal points for any follow-up measures (Sandoval and others, 2020, 74–76). However, their function is frequently reduced to serving as a communication channel for written submissions. This practice commonly does not provide victims with an opportunity either to effectively challenge inadequate implementation or to enter into a genuine dialogue with States Parties’ representatives on effective implementation measures. Successful implementation of decisions has been attributed to proactive complainants and their representatives, and the authorities’ willingness to engage (Principi, 2020, 191).

30  At the regional level, the African Commission has established a follow-up monitoring procedure, in which it compiles information, primarily from the parties, and uses it to take action with a view to bringing the State Party to implement the decision. The Commission can also offer its good offices to the parties with a view to facilitating implementation (Murray, 2019, 681). In practice, the engagement of the Commission with victims to foster their participation and enhance the prospect of compliance has been limited although it has done so in individual instances, such as in the form of an implementation hearing in the Endorois case in 2013 (Murray and Long, 2015, 123–24). The ACERWC has adopted Guidelines for Implementation of Decisions on Communications (2018), which enable it to conduct implementation hearings, in which ‘[a]pplicants shall be given the opportunity to reflect their opinion on the report [of the State Party] presented’ (Section II, 2 (6)). It has conducted both implementation hearings and follow-up country visits in which it engaged with the parties (Mezmur and Kahbila, 2018, 215–18).

31  The IACommHR has adopted a follow-up procedure (Art 48 Rules of Procedures, 2009). It has closely supervised and engaged with States Parties, including by means of implementation hearings, thereby providing an incentive to comply (Sandoval and others, 2020, 76–77, 81). This practice has included negotiating agreements on compliance, which have been credited with ‘taking into account the needs and wishes of the victims’ and with creating ‘conditions [that] support implementation’ (Abi-Mershed, 2020, 174).

32  The recognition of individuals as subjects, and access for victims of human rights violations to complaints procedures, has been rightly hailed as a significant if not revolutionary development in the hitherto almost exclusively State-centric system of international law. Complaints procedures have proved attractive, with numerous cases brought before the various bodies. Yet, somewhat paradoxically, the status of complainants in human rights cases has not translated into a concerted focus on the effectiveness of victims’ procedural rights, particularly for their participation at the various stages of proceedings. Instead, victims’ rights have become largely ossified in a conventional format in which access to human rights bodies has come at the expense of dealing with an under-resourced, slow, bureaucratic, and in many instances ineffectual, quasi-judicial system, particularly in cases of systemic or massive human rights violations. Difficulties of access, the formalistic nature of proceedings, the lack of hearings, and limited resonance if not opposition at the national level have hampered victim participation and undermined confidence in the effectiveness of UN human rights treaty bodies (Oette, 2018, 106). In contrast, a greater emphasis on hearings by regional human rights bodies and innovative practices such as by the IACommHR are promising avenues to enhance victim participation. However, they do not, yet, add up to a coherent approach to, and practice on victim participation.

33  A coherent and inclusive approach would provide avenues for all categories of victims. Human rights bodies can work towards this end by interpreting standing broadly where warranted but ultimately such an approach would require treaty changes. Even in the absence of such changes, however, human rights bodies can take a number of measures to strengthen victim participation throughout proceedings within the existing framework. This includes measures to enhance awareness and accessibility of human rights bodies, particularly by working closely with national counterparts; enhancing protection; providing targeted legal aid to enhance participation; conducting meaningful oral hearings; strengthening the focus on reparation and giving victims a clearer and more effective role in the implementation of decisions (Çalı and Galand, 2020, 4–7).

34  Taking any such measures risks antagonizing States Parties. States can be expected to object that these measures require additional resources and are aimed at transforming a complaints procedure into a victim-focused justice project that undermines the impartiality of proceedings. Such a development might also harden the opposition of some States to accept complaints procedures, which has already been weak in times of a populist backlash against human rights and international institutions. In the context of the ongoing reform debate to make human rights bodies more effective, any efforts to strengthen victim participation will have to be carefully contemplated and developed so as to enhance its legitimacy and effectiveness.

Lutz Oette