Victim Participation in International Criminal Proceedings
- Right to fair trial — International criminal law, victims — International criminal law, conduct of proceedings — Reparations — International criminal courts and tribunals, procedure
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
1 According to the Concise Oxford English Dictionary, to ‘participate’ means to be involved, to take part (see Pena and Carayon, 2013, 531). As such, victim participation can be interpreted broadly to encompass any involvement by victims in criminal proceedings undertaken by a tribunal. For example, such involvement can encompass interaction in the form of witness testimony or as a complainant or amicus curiae.
2 Victim participation can also be interpreted more narrowly to cover victims’ direct and autonomous intervention, often (though not necessarily) through legal representation. This entry will focus primarily on the different forms of this narrower form of autonomous intervention.
3 The Nuremberg or Tokyo tribunals, the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the International Crimes Tribunal in Bangladesh did not have provisions allowing for this narrower form of intervention by victims in their own right. Victims could, however, come before the tribunals and serve the cause of justice by testifying as witnesses. This form of intervention was not ‘autonomous’ because victims would only provide testimony if called by one of the parties or by the tribunal (they were most frequently called by the prosecution). In practice, only those victims whose testimony would contribute to the determination of the case were called to testify (McGonigle Leyh, 2011, 140, 150). Victims who intervened in this capacity had certain rights attached to their role as witnesses—for example they could benefit from protection measures. Appearance as witnesses did not however vest victims with other rights beyond testimony, such as introducing other evidence or claiming reparations before the international tribunal. In theory, victims could also participate as amici curiae before the ICTY and the ICTR, but the chambers were generally reluctant to allow victims to participate in this manner for fear of infringing on the rights of the prosecutor (McGonigle Leyh, 2011, 143). Finally, victims intervened indirectly in the form of impact statements for the purpose of sentencing (McGonigle Leyh, 2011, 143–45).
4 The shortcomings attached to limited victim participation at the ad hoc tribunals prompted the negotiators of the International Criminal Court’s Statute (1998) (‘ICC Statute’ or ‘Rome Statute’) (International Criminal Court (ICC)) to aim for a more restorative type of justice (Moffett, 2015, 283; Ochoa, 2013, 211; McGonigle Leyh, 2011, 147; Restorative Justice). In addition to the ICC, the Statutes of the following tribunals include victim participation provisions: the Special Tribunal for Lebanon (STL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Extraordinary African Chambers in the Senegalese Courts (‘EAC’), the Special Panels for Serious Crimes in the Dili District Court: United Nations Transitional Mission in East Timor (‘East Timor Special Panels’), the United Nations Interim Administration Mission in Kosovo (‘UNMIK’) Panels, and the Kosovo Relocated Specialist Judicial Institution (‘KRSJI’) (comprising the Kosovo Specialist Chambers and the Kosovo Specialist Prosecutor’s Office). The law applicable to the Iraqi Special Tribunal stated that ‘families of victims and Iraqi persons harmed’ could file a ‘civil suit’ before the court for the harm suffered (Art 22 Iraqi High Criminal Court Law (2005)), thus excluding their intervention in the proceedings aiming to adjudicate on the accused’s criminal liability.
B. Definition of Victim Participation
5 Article 68 (3) Rome Statute defines victim participation as follows:
[w]here 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.
This provision was reproduced almost word-for-word in the STL Statute (2007) (‘STL Statute’) (Art 17). The Kosovo Specialist Chambers provides for a similar scheme—its governing law and rules of procedure and evidence, adopted in 2015 and 2017 respectively, appear to have taken into account the practice of other tribunals to set rules regarding, inter alia, the application process and modalities of participation (see below). The ECCC and EAC’s rationale for allowing victim participation as civil parties are linked to Cambodian and Senegalese law respectively, both of which follow the French legal tradition.
6 It is important to distinguish between victims with a right to participate in proceedings in their own right from witnesses. While victims may be called by the parties to testify in proceedings, that sort of intervention serves the interests of either the prosecution or the defence, and does not confer upon victims any rights other than those strictly associated with testimony (eg protection). When victims participate in proceedings, they do so in their own right and are vested with an autonomous role. Some jurisdictions allow victims to participate both as witnesses and as participants in their own right. Victims are then called ‘dual status witnesses’ or ‘dual status victims’ (for more information on victims’ testimony and applicable protection rules, see paras 44–52 below).
C. Main Differences among Various Tribunals
1. Participants vs Civil Parties
7 Victim participation in criminal proceedings can broadly take two different forms. Victims can intervene as participants (ie not as parties) to voice their views and concerns. This model was adopted at the ICC, and reproduced first at the STL, and later the KRSJI. Alternatively, they can be joined as civil parties as per the French civil law tradition. Victims have acted as civil parties at the ECCC and the EAC. The UNMIK Panels and East Timor Special Panels granted victims roles akin to that of civil parties (the term used by the Provisional Criminal Procedure Code of Kosovo (2013) (‘PCPCK’), which was the law regulating the UNMIK Panels, was ‘injured party’) (Art 151 (5) PCPCK; United Nations Transitional Administration in East Timor, Regulation 2000/30 on Transitional Rules of Criminal Procedure (2000, amended 2001), sec 12 (‘UNTAET Reg 2000/30’); McGonigle Leyh, 2011, 152, 158).
8 A relevant difference between participation as ‘participants’ and intervention as ‘civil parties’ lies in the link to reparation claims. At the ICC, participation throughout criminal proceedings is de-linked from reparations proceedings, which only start post-conviction. Victims who wish to claim reparations do not need to participate in proceedings. They can apply for reparations separately, either during the trial or after a conviction (their claims will be treated if and when there is a conviction). The STL does not have jurisdiction to award reparations, although the tribunal can provide a certified copy of the judgment for victims to claim reparations before domestic tribunals or other competent bodies. Kosovo’s Law No 05/L-053 on Specialist Chambers (2015) (‘KRSJI Law’) provides both for the possibility that the tribunal will award reparations, and that it will certify a judgment for victims to seek compensation domestically (Art 22 (8)–(9) KRSJI Law).
9 In contrast, at the ECCC and the EAC, intervention as civil parties also constitutes a civil claim for reparations for the harm suffered. In other words, no separate or additional action or application is generally required when victims join as civil parties. However, before the UNMIK Panels, victims who wished to claim reparations needed to file a complaint (only claims in relation to damage to property were admissible) (Art 80 (1) PCPCK, 108). At the East Timor Special Panels, the criminal judge could award reparations, but victims were also entitled to introduce a civil claim before a competent court (UNTAET Reg 2000/30, sec 50).
10 When participation is allowed in the form of expression of views and concerns (ie when victims are participants, not parties), the relevant provisions often state that the manner of intervention must not be ‘prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’ (Art 68 (3) Rome Statute; Art 17 STL Statute; Art 22 (6) KRSJI Law). Such a caveat is not normally established in systems where victims have a larger role in principle, ie when they are civil parties. Having been created through a merging of legal traditions, provisions in victim participation regimes carry the stamp of the accusatorial system, and the fear that victim participation may negatively impact the balance between the parties. In addition, non-civil party regimes often condition procedural rights upon the victims’ personal interest being affected, thereby assuming that only certain aspects of the trial will affect the interest of victims.
2. Participation at the Situation vs Participation at the Case
11 Generally, victim participation operates within the framework of a case against one or more accused persons. For example, the rules for the STL and the KRSJI clarify that participation is possible after the indictment is confirmed, thus indicating that a case must have been brought against one or more person(s) (Rule 86 (A) STL Rules of Procedure and Evidence (2017) (‘STL RPE’); Rule 113 (1) KRSJI Rules of Procedure and Evidence (2017) (‘KRSJI RPE’)). The ICC, however, has allowed victim participation within the framework of a ‘situation’ (ie an investigation covering potential crimes committed in a certain territory over a specific period of time).
12 In 2005, when the first ever victims who came before the ICC applied to participate in proceedings, there was not yet a case before the Court. The victims then applied to participate in the situation pertaining to the Democratic Republic of Congo (Congo, Democratic Republic of the). An ICC pre-trial chamber ruled at the time that victim participation at the stage of an investigation into a situation was both appropriate and in line with the victims’ personal interests (ICC-01/04-101-tEN-Corr, 19 January 2006, paras 5763). Such participation was contested by both the prosecution and the defence, and the matter was eventually brought before the ICC Appeals Chamber.
13 In 2008, the ICC Appeals Chamber provided a different interpretation that resulted in a restriction for victims to participate in proceedings concerning a situation. The chamber clarified that a prosecutorial investigation as a whole is not a judicial proceeding that lends itself to unrestrictive victim participation. According to the ICC Appeals Chamber, victims could intervene with respect to specific judicial proceedings within the context of a situation. The chamber also noted that victims could pass on information to the prosecutor without being accorded ‘a general right to participate’ (ICC-01/04-556, 19 December 2008, paras 46–59). Participation in situations at the ICC has in practice been defunct since the cited appeals decision.
14 Participation at the investigation stage was also allowed at the East Timor Special Panels (Ochoa, 2013, 2016).
15 There is limited information available with respect to the UNMIK Panels’ practice in relation to victim participation because very few victims exercised their rights. That appears to have been due to a combination of victims’ limited awareness about their rights, and security concerns (Ochoa, 2013, 214–16; McGonigle Leyh, 2011, 158; Perizzolo, 2016, 98–99). Victim participation before the East Timor Special Panels has also been limited. It appears that despite the recognition of extensive rights, victims in practice participated mostly as witnesses. That could allegedly be attributed to the lack of a fully functioning judicial system and a shortage of legal professionals in East Timor at the time, as well as other weaknesses of the Special Panels (including insufficient resources, support, and expertise) (McGonigle Leyh, 2011, 152–54; Ochoa, 2013, 216–17).
16 By contrast, numerous victims have participated before the ICC. While the numbers remained in the hundreds for the first two cases, 5,229 victims participated in the Bemba case (ICC-01/05-01/08-3343, 2016, para 18). At the time of writing, 71 victims were participating before the STL (Prosecutor v Ayyash et al, 2017, para 4), whose jurisdiction is limited to a few incidents.
D. Definition of Victims
17 The laws governing the different international tribunals that allow victim participation define victims in a similar manner; victims are those who have suffered harm as a result of a crime within the jurisdiction of the relevant court (Rule 85 ICC Rules of Procedure and Evidence (2013) (‘ICC RPE’); Art 3 (2) (a) ECCC Practice Direction on Victim Participation (2008); Rule 2 STL RPE). The KRSJI RPE contain a narrower definition—for the purpose of proceedings, victims are those who have suffered harm as a result of ‘a crime alleged in an indictment confirmed by the Pre-Trial Judge’ (Rule 2 KRSJI RPE). The provisions of the UNMIK Panels and the East Timor Special Panels do not link the victims’ status to a case pursued by the tribunal (Art 151 (5) PCPCK; UNTAET Reg 2000/30, sec 1 (x)).
18 Importantly, both direct and indirect victims are commonly covered by the definition applied in most jurisdictions (an exception is the definition of injured parties under the Provisional Criminal Procedure Code of Kosovo, which covers direct victims only; see Art 151 (5) PCPCK; Perizzolo, 2016, 96). Direct victims are those who suffered harm as a result of the crime committed against them. Indirect victims are those who suffered harm as a result of a crime committed against others (ICC-01/04-01/06-1813, paras 47–49), eg family members of deceased or disappeared victims. The ICC has also recognized indirect victims as those who suffered harm when intervening to help direct victims or to prevent the latter suffering harm (ICC-01/04-01/06-1556-Corr-Anx1, para 108). Although the rules for certain jurisdictions make reference to harm that is a ‘direct result’ or ‘direct consequence’ of the crime, the relevant provisions have been interpreted in practice as covering both direct and indirect victims (Tibori-Szabó and Hirst, 59–60).
19 While some courts allow for participation of both natural and legal persons (ICC, ECCC, and EAC), others only recognize participation by natural persons (STL and KRSJI). When participation by a legal person is allowed, rules vary from one jurisdiction to another with respect to the types of organizations that are eligible. For example, at the ICC only ‘organizations and institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes’ (Rule 85 (b) ICC RPE) can be recognized as victims (ie only legal persons that are direct victims can participate). The ECCC Internal Rules (ECCC, Internal Rules (2015) (‘ECCC Internal Rules’)) do not specify the type of harm that legal entities must have suffered (Art 3(2) (a) ECCC Practice Direction on Victim Participation). At the EAC, the legal entities that intervened were victims’ associations (Forum interactif sur les chambres africaines extraordinaires). The ECCC also allows for the intervention of victims’ associations, although not in their own right, but rather on behalf of their members who are civil parties (Rule 23 quater ECCC Internal Rules).
20 Some international tribunals have dealt with the question of the succession of the victim’s action following the concerned victim’s death. At the ICC, different chambers have dealt with the matter in different ways. Some have allowed the resumption of participation by the close relative of a victim who had already been participating and died during the course of proceedings (ICC-01/04-01/07-1737, 2009, para 30; a contrario ICC-01/04-02/12-140, 2013). In contrast to indirect victims, who participate in their own right including for harm suffered as a result of the death of a family member, a person who takes over the action from a deceased close relative participates on their behalf. At the ECCC, when a victim dies, the civil action may be continued by a successor in accordance with Cambodian law (ECCC, Case No 001/18-07-2007/ECCC/TC, 2009, paras 10–12).
E. Application Process
21 Some version of an application process is in place at most of the international criminal tribunals that allow for victim participation; victims who wish to participate in international criminal proceedings must apply to do so (see eg Art 3 (6) ECCC Practice Direction on Victim Participation; Rule 86 (A) STL RPE; Rule 113 (1) KRSJI RPE). At the ICC, victims can participate directly, ie without going through a prior application process, in specific proceedings, namely proceedings related to the authorization to open an investigation (Art 15 (3) ICC Statute), and jurisdiction of the Court or admissibility of a case (Art 19 (3) ICC Statute). However, they must apply and be accepted as ‘participating victims’ in order to intervene throughout criminal proceedings relating to a case (Rule 89 ICC RPE).
1. Submission of Applications
22 In order to facilitate applications by victims, most international criminal tribunals have put in place standard forms that victims must fill out and submit. Victims’ offices within the registry of each tribunal assist in the application process, by administering and receiving application forms, initially reviewing completed forms and supporting documents, and transmitting them to the judges. The forms request essential information to assert that the person is a victim as per the applicable definition. The most common elements include: identity of the victim and contact information; information on the harm suffered as a result of the crime; and details on the event that caused harm (location, date, and description of the crime(s)) (Regulation 86 (2) ICC Regulations of the Court; Art 3 (5) ECCC Practice Direction on Victim Participation; Rule 86 (B) STL RPE; Prosecutor v Ayyash et al, 2012, paras 21–24).
23 Regarding the timeline for submission of applications, in general applications can only be submitted after a case is defined, ie after the charges against the accused are brought and made public. An exception to this rule is the possibility to submit applications at the level of the situation at the ICC, which is in theory still possible (for more information on participation in a situation, see above). When applications are submitted in relation to a case, the charges brought by the prosecution are an essential element to establish whether victims’ applications fall within or outside ‘the scope of the case’—victims must show that they have suffered harm as a result of a crime with which the accused has been charged. In practice, this can severely limit opportunities for the victim population to participate in international criminal proceedings (Pena and Carayon, 2013, 529). Given the extent of criminality in conflicts where international criminal tribunals operate, the complexity of proceedings, and the difficulty obtaining evidence, the prosecution will often make a selection of crimes to charge.
24 In order for victims to submit application forms, they must be informed of their rights. Outreach to victims is normally carried out by the respective tribunal’s victims’ office and/or non-governmental organizations (Tibori-Szabó and Hirst, 2017, 86–93). It has been common practice for international criminal tribunals to set a deadline by which applications need to be submitted (see eg Rule 23 bis (2) ECCC Internal Rules; Prosecutor v Ayyash et al, 2011; ICC-02/11-01/11, 2012, para 37), although some have treated applications on a rolling basis (for example, some chambers at the ICC, see eg ICC-01/05-01/08-3343, 2016, paras 18–21). This aims to facilitate treatment of applications before important procedural landmarks, such as the start of the trial or other relevant moments. Overall, it is important that sufficient time be allowed for victims to be informed of their rights and given an opportunity to make an informed decision about their participation. Considering the number of victims potentially affected by mass crimes, their often remote location and frequent limited access to information, the process of reaching out to victims and collecting application forms is not always swift. At the same time, tribunals must ensure that the application time period does not cause unreasonable delays to the proceedings.
25 The rules governing proceedings at some tribunals require that, once submitted, applications be shared with the prosecution and the defence to allow the parties to make observations on the applications before a ruling by the judges. In certain cases, applications are shared in a redacted form to protect victims (for more information, see sec G below). An exception to the rule that applications must be disclosed to the parties can be found in the KRSJI RPE, which clearly states, ‘[a]pplication forms shall not be disclosed to the Parties’ (Rule 113 (1)). Similarly, at the STL, applications are classified as confidential and ex parte when submitted to the pre-trial judge and are never shared with the prosecution and the defence (Prosecutor v Ayyash et al, 2012, paras 4, 27, 54).
2. Evidentiary Issues
26 Although the rules and practice applicable at each tribunal may somehow differ in relation to the elements that a victim needs to prove to join proceedings, an international criminal court will generally verify that the applicant meets three core criteria: a) the applicant’s identity has been established; b) the applicant suffered harm; and c) there is a causal link between the harm suffered by the applicant and the crimes charged in the case where the application has been filed (Tibori-Szabó and Hirst, 2017, 49–50; see also Regulation 86 (2) ICC Regulations of the Court; ICC-01/04-02-06-449, 2015, para 43; Art 3 (2)–(3) ECCC Practice Direction on Victim Participation; Rules 2 and 86 (B) (i) STL RPE; Prosecutor v Ayyash et al, 2012, para 28; Rule 113 (1) KRSJI RPE).
27 Different tribunals apply different requirements in relation to the documentation supporting an application. For example, at the ICC, applicants are only required to prove their identity (ICC-01/05-01/08-320, 2008, 34–36). At the STL and ECCC victims must produce documentary evidence of the harm they suffered (Prosecutor v Ayyash et al, 2012, para 62; Art 3 (5) (d) ECCC Practice Direction on Victim Participation), although judges at both tribunals have applied different degrees of flexibility in relation to this requirement. The KRSJI rules do not require that victims enclose documentary evidence to their applications.
3. Participation at Subsequent Stages and Appeal
29 Once a victim’s application has been accepted, it is generally valid for all stages of the proceedings (pre-trial, trial, interlocutory, and final appeals, as applicable). However, at the ICC, victims’ applications are re-assessed after significant changes to the scope of the case. Victims who participate in an early stage will have their participation discontinued at a later stage if the events from which they suffered harm are no longer covered by the case, for example, if certain charges are not confirmed or the charges are confirmed for a narrower temporal and/or geographical scope. For example, in the Ruto et al case, more than half of the victims who had initially been accepted for participation at the pre-trial stage dropped out of the scope of the case following the confirmation of charges (ICC-01/09-01/11-661-Anx, 2013, paras 7–8).
30 At the STL, victims’ right to participate in interlocutory appeals lodged by the parties is not automatic; victims must prove that the issue(s) subject to appeal affect their personal interests (Rule 87 (D) STL RPE; Prosecutor v Ayyash et al, 2016, para 4) (for a discussion on victims’ rights to introduce appeals, see below).
31 Victims whose applications are rejected due to insufficient information can normally re-apply (eg Rule 89 (2) ICC RPE) and provide additional information or documentation as needed in order for the judges to reconsider their decisions. In addition, victims can appeal decisions rejecting applications at the STL (Rule 86 (C) (i) STL RPE), the KRSJI (Rule 113 (6) KRSJI RPE), and the ECCC (Rules 23 bis (2) and 74 (4) (b) ECCC Internal Rules), but not at the ICC.
F. Modalities of Participation
32 Modalities of participation are the procedural rights recognized to victims participating in proceedings. While some international tribunals have some or all of those rights established in their respective legal texts, others rely on decisions made by judges to determine either the full scope of victim intervention in relation to specific cases or certain aspects thereof.
33 Before focusing on the rights attached to participation in (pre-trial, trial, and appeal) proceedings, it is worth mentioning other sets of rights conferred upon victims in other instances. In particular, there are two roles that deserve mentioning (although they will not be thoroughly covered in this entry). At the ECCC, in addition to joining as civil parties, victims can intervene as complainants by filing a complaint with the co-prosecutors in order to make them aware of certain crimes (Rule 49 (3) ECCC Internal Rules; Art 2 ECCC Practice Direction on Victim Participation). This intervention does not give victims any procedural rights in proceedings following their complaints (unless they apply to join as civil parties, see above). At the ICC, victims play a specific and different role during reparation proceedings. Most of the criminal courts with a mandate to rule on reparations will make an award together with the judgment or sentence. Instead, at the ICC, a specific new phase of the proceedings opens after a conviction is handed down. Victims, who are mere ‘participants’ during pre-trial and trial proceedings, become ‘parties’ at the reparations stage (ICC-01/04-01/06-2953, 2012, para 67). Different rules apply in terms of admission, evidentiary requirements, and procedural rights.
1. Modalities for Participants and Civil Parties
34 When victims intervene as civil parties, the rights recognized to them are generally broad, because as ‘parties’ to the proceedings, victims are on a relatively equal footing to the prosecution and the defence. In contrast, when victims intervene as ‘participants’, their access to certain procedural acts is subject to either a generic or specific determination that the act in question affects the victims’ interests. There is however no shared or commonly accepted understanding as to which specific acts or aspects of the proceedings affect victims’ interests. Therefore, such an analysis is bound to be case-specific and procedural-act–specific. Some of the ICC chambers have made interpretations of the interests of victims, although those may not be shared by other chambers. Importantly, they have ruled that ‘[t]he participation of victims in the proceedings is not limited to an interest in receiving reparations and their personal interests are self-evidently not limited to reparations issues’ (ICC-01/04-01/06-1119, 2008, para 98). In addition, based on human rights law, they have acknowledged the victims’ right to truth in relation to the crimes and those responsible for them. In that regard, they have upheld their interest in the outcome of the trial, including in relation to the guilt or innocence of the accused (ICC-01/04-01/07-474, 2008, paras 34–39).
35 When modalities of participation are decided on a case-by-case basis, all victims participating in one case will normally have the same rights. An exception to that rule can be found in the early jurisprudence of the ICC. At the ICC, where anonymous participation is permitted (see below), the court’s early jurisprudence made a distinction between modalities of participation for anonymous and non-anonymous victims respectively, with the latter having a more limited set of rights (ICC-01/04-01/07-537, 2008, disposition). In particular, anonymous victims were not allowed to access confidential information and participate in closed hearings, while such rights were available to non-anonymous victims. That distinction became superfluous in practice, because victims belonging to both groups were represented by a common lawyer who exercised rights on behalf of both categories. More recent jurisprudence has done away with that distinction.
36 Most of the rights recognized to victims are exercised by lawyers on their behalf (see sec H below). At most tribunals, victims’ lawyers are allowed to make observations in relation to key procedural moments, such as the opening of the trial, closing arguments, and sentencing (see eg Rules 114, 126, 130, and 135 KRSJI RPE; Rules 87 (C), 143, and 147 STL RPE; Rule 89 (1) ICC RPE; ICC-01/04-01/07-3437, 2014, paras 4–5; at the ECCC only the defence and prosecution are allowed to make opening statements and submissions on sentencing, see Rule 89 bis ECCC Internal Rules; Case No 001/18-07-2007/ECCC/TC, 2009, para 40). They also have a right to participate in hearings, although some tribunals may limit participation in non-public hearings (see eg Rule 114 (2) KRSJI RPE; ICC-01/04-02/06-619, 2015, para 63; Prosecutor v Ayyash et al, 2014, para 19).
37 An important right for victims is access to the case file. Such access is necessary for them to exercise their rights effectively. Several tribunals have made a distinction between access granted to individual participating victims, on the one hand, and to lawyers representing them, on the other hand. As a general rule, individual participating victims or civil parties can only access public documents in the case file, whist their lawyers may be entitled to access confidential material, including evidence (eg Rule 114 (3) KRSJI RPE; Rules 69 (3) and 77 (4) ECCC Internal Rules; ICC-01/04-01/07-1787-tENG, 2010, para 123; Prosecutor v Ayyash, 2012, para 51–53; see also Art 80 (4) PCPCK). At the ICC and the STL, lawyers who wish to share confidential information with their clients must make an application to that effect or obtain the consent of the party who introduced the material (ICC-01/05-01/08-807-Corr, 2010, para 47; Prosecutor v Ayyash, 2012, para 57).
38 The right to access certain documents is also associated with the right to receive related notifications (Art 6 ECCC Practice Direction on Victim Participation; Rule 87 (A) STL RPE). The laws governing the UNMIK Panel and the East Timor Special Panels include specific provisions on notifications to victims (see eg Arts 62, 80 (5) 208 (2), 224 (2), 225 (3), 239 (2), 464, 500 (3) PCPCK; UNTAET Reg 2000/30, sec 12 (6)).
39 Victims’ lawyers can also make oral and written submissions (Rule 114 (4) KRSJI RPE; Rule 87 (B) STL RPE; Art 80 (3) PCPCK). In some cases (for example, before the ICC), the right to make submissions may be contingent upon demonstration that the matter at hand affects the victims’ personal interests (ICC-01/04-01/06-1119, 2008, para 118). Before the East Timor Special Panels, victims who had expressed their wish do to so could participate in hearings on conditional release. They could also apply to be heard at other stages of the criminal process (UNTAET Reg 2000/30, secs 12 (3) and 12 (5)).
2. Evidence and Testimony
40 Different tribunals have different practices with respect to victims’ rights in relation to evidence (introducing evidence, examining witnesses, and challenging the admissibility of evidence tendered by the prosecution and the defence). The ECCC, for example, has a relatively relaxed practice whereby victims can propose witnesses, and examine them as long as questions are conducive to ascertaining the truth (Rules 80 (2), 87 (4), and 91 bis ECCC Internal Rules; Tibori-Szabó and Hirst, 2017, 249). Similarly civil party lawyers before the EAC could question witnesses for both the prosecution and the defence in accordance with the Senegalese Code of Criminal Procedure (HRW 2015, question 19). Injured parties before the UNMIK Panels had the right to propose and submit evidence, and question witnesses and the defendant (Art 80 (2)–(3) PCPCK).
41 The jurisprudence of the ICC has been a bit more restrictive, requiring that victims wishing to examine witnesses file advance written applications, including a list of questions or areas for examination (Rule 91 (3) ICC RPE; see eg ICC-01/04-02/06-619, para 64), although in most recent cases judges have allowed for oral applications instead and have not required advance notice on lines of questioning (ICC-02/11-01/15-498-AnxA, 2016, para 16; ICC-02/04-01/15-497, 2016, para 10); the latter practice resembles the rules applicable at the STL (Rule 87 (B) STL RPE; Tibori-Szabó and Hirst, 2017, 248). The bottom line at the ICC is that victims must demonstrate that the questioning affects their personal interest (eg ICC-01/09-01-11-460, 2012, para 75; ICC-02/11-01/15-498-AnxA, 2016, para 17), but there is little concrete guidance in the jurisprudence as to when such interests are considered to be impacted. Different ICC chambers have expressed different views as to whether examination should relate specifically to the harm suffered by victims or can go beyond such matters (ICC-01/04-01/06-1119, 2008, paras 96 and 108; ICC-01/05-01/08-1729, 2011, para 15; ICC-02/04-01/15-T-65-Red-ENG, 2017, 51–56). The KRSJI rules similarly stipulate that questioning of a witness will be allowed when the victims’ interests are affected (Rule 114 (4) (a) KRSJI RPE). The STL do not prescribe specific restrictions as to the scope of the questioning (Rule 87 (B) STL RPE; Tibori-Szabó and Hirst, 2017, 253). When it comes to participating victims’ introduction of evidence (by calling witnesses or in another form), tribunals such as the ICC and the KRSJI require that victims demonstrate that the evidence to be introduced is supplementary (ie not repetitive) to that tendered by the parties (Rule 114 (5) KRSJI RPE).
42 The rules and practices of different tribunals also differ with respect to the victims’ ability to appear (physically) before the court and provide testimony. Where victims intervene as civil parties, they cannot be called as witnesses: they are parties and therefore have an interest in the case, which makes giving testimony under oath incompatible (see Rule 23 (4) ECCC Internal Rules). However, at the ECCC, victims have been allowed to give unsworn testimonies and to provide statements of suffering (Case No 002/19-09-2007-ECCC/TC, 2014), also known as ‘impact statements’. Before the UNMIK Panels, victims could give testimonies and provide clarifications thereto (Art 80 (3) PCPCK). Where victims intervene as participants, they can be called as witnesses by the parties, their own lawyer, or the chamber (Rule 150 (D) STL RPE; ICC-01/04-01/07-1788-tENG, 2010, para 88). At the ICC, victims are also permitted to appear before the court for the purpose of presenting their views and concerns in person. Such views and concerns are considered submissions, not evidence (ICC-01/04-01/06-2032-Anx, 2009, para 25), and the chamber may request that they focus exclusively on certain matters, such as the harm suffered or the impact of the crimes (ICC-01/05-01/08-T-227-Red, 2012, 21–22).
3. Right to Appeal
43 Special rules also apply to victims’ rights to appeal decisions and to participate in appeal proceedings. Victims’ ability to lodge interlocutory appeals is generally limited to a series of specific decisions, and in particular those that most directly affect the interest of victims. For example, at the STL participating victims can request to appeal decisions on modalities of participation and protective measures for victims (Prosecutor v Ayyash, 2013, para 15). Similarly, the right to make submission in relation to interlocutory appeals lodged by the prosecution or defence may have some restrictions, in particular in tribunals with a regime based on the victims’ personal interest (victims will have to prove that the matter at hand affects their interests in order to be allowed to file submissions) (ICC-02/05-138, 2008, paras 22–26; a contrario ICC-02/11-01/15-172, 2015, paras 15–19). Regarding final appeals, participating victims cannot ordinarily appeal the judgment or sentence, although some tribunals may allow them to participate in such appeal proceedings if initiated by the parties (Rule 105 (1) (c) ECCC Internal Rules; ICC-01/04-01/06-2951, 2012, disposition). When the tribunal orders reparations, the right of victims to appeal awards is uncontested (Art 82 (4) ICC Statute; Rule 105 (1) (c) ECCC Internal Rules).
44 Given the types of crimes involved, high stakes for perpetrators, and the often poor security situation in conflict and post-conflict settings, participation in international criminal proceedings carries risks. The texts governing international criminal tribunals often impose protection obligations. For example, Article 68 (1) Rome Statute states that ‘the Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’. Protection obligations must be interpreted in context and often balanced against other imperatives including the rights of the accused and the public and transparent nature of proceedings.
45 The high numbers of victims potentially involved in these crimes and related proceedings makes direct physical protection unrealistic. In addition, victim participation normally involves a lower level of exposure than witness testimony. While there may be instances in which physical protection is warranted, participating victims’ safety is most often ensured through procedural measures seeking to minimize exposure of the victims’ identity. Such measures include anonymity and the use of pseudonyms, and seek to reduce exposure vis-à-vis the public and/or the accused. These measures are normally applied to protect individual victims. Victims’ associations, whose participation is allowed, can afford more exposure because of their collective and impersonal nature.
1. Protection from the Public
46 Protection from the public is generally uncontested. Most tribunals will keep victims’ identities confidential and use pseudonyms to refer to them in public documents or hearings (for example, anonymity and use of pseudonyms are foreseen as protective measures in the ICC RPE, Rule 87 (3) (a) and (d)). Exceptions to that rule include cases where the victim’s identity is known for other reasons, for example because of long-standing public activism on a cause, or when victims testify in open session. At the ECCC, however, protection is not automatic, but instead subject to a thorough assessment by the relevant chamber based on an evaluation of the specific risk (see eg Case No 001/18-07-2007/ECCC/TC, 2009).
2. Protection from the Parties
47 The question of protection of the victims’ identity vis-à-vis the parties is a more complex one. Different rules may apply during the application phase and after the victims’ application has been accepted. During the application phase, some tribunals apply redactions. At the ICC, the defence receives redacted versions of the applications. Redactions are applied to conceal the identity of the victim; they cover the identity itself as well as other information that, if put together, could help identify the applicant. Some ICC chambers have also ordered transmission of redacted applications to the prosecution, upon the victims’ request and in order to ensure equality of arms (eg ICC-01/05-01/08-699, 2010, para 32). However, most recent jurisprudence has allowed the prosecution to see the applications in full, the rationale being that the prosecution has a duty to protect victims and that application forms may be relevant for investigations (eg ICC-02/04-01/15-205, 2015, para 32). As a rule, anonymity does not normally apply to civil party applications, for example at the ECCC or EAC.
48 Protection of the victims’ identity vis-à-vis the defence after the application has been accepted is somehow more contested. The possibility for victims to enjoy anonymity with respect to the accused and his/her defence team has arisen at the ICC and the STL.
49 The ICC early jurisprudence erred on the side of caution and generously allowed for anonymous victim participation in proceedings (eg ICC-01/04-01/06-462-tEN, 2006, 6–7). The bench normally orders legal representatives to seek confirmation as to whether victims want to disclose their identities to the defence (eg ICC-01/09-01-11-249, 2011, para 121) (the prosecutor generally has access to their identities from the application phase, see above). Victims have overwhelmingly preferred that their identities be kept confidential (eg ICC-01/09-01/11-366, 2011, para 9). Important exceptions to this rule have been dual status victims and victims who appear physically before the court to express their views and concerns (see above). In other words, appearance in court either as a witness or in their participating victims’ capacity triggers disclosure of the victim’s identity and lesser redacted version of the application forms to the defence (see eg ICC-02/04-01/15-471, 2016, paras 13–14). Most recently, some ICC chambers have expanded the number of exceptions. For example, in Prosecutor v Al Mahdi a trial chamber ordered for the first time publication of redacted application forms, which other chambers had always kept confidential (ICC-01/12-01/15-156-Red, 2016, disposition). Further, the trial chamber in Prosecutor v Dominic Ongwen ordered disclosure of the identity and lesser redacted versions of the applications filed by witnesses’ close family members (ICC-02/04-01/15-907, 2017, paras 20–23). The victims’ legal representatives have argued that such type of disclosure should be better regulated (ICC-02/04-01/15-865, 2017).
50 At the STL, victims can apply for protective measures after they are granted victim status. Their identities are not disclosed to the accused during the application phase (see above). But once admitted, their identities must be shared with the defence sufficiently in advance of the trial. According to the tribunal, anonymous participation ‘would amount to anonymous accusation against the accused’, and is therefore ‘generally prejudicial to an inconsistent with the rights of the accused and the fairness of the trial and is not a valid form of victim participation’ (Prosecutor v Ayyash et al, 2013, paras 28, 39).
3. Protection in the Courtroom
52 Victims in the courtroom will enjoy the protective measures that are normally afforded to witnesses, including, if necessary, face or voice distortion and private or closed hearings to ensure non-disclosure of their identity to the public (see eg Rule 87 (3) ICC RPE). Some measures can also be applied to protect the victims’ psycho-social well-being. For example, victims testifying before the UNMIK panels could apply for removal of the defendant from the courtroom, distance testimony, or videotaped examination by the defence (Art 170 PCPCK; Perizzolo, 2016, 98). (For information on execution of protection measures, see Victims Office.)
H. Legal Representation
53 Representation by a lawyer is normally necessary, and sometimes specifically required by the relevant tribunals’ legal texts, in order for victims to exercise their rights. In addition to ‘lawyers’ some tribunals use terms such as ‘counsel’ or ‘legal representatives’ to refer to victims’ attorneys.
54 Self-representation is specifically contemplated at the STL (Rule 86 (C) (ii) STL RPE) (although it has not been exercised in practice) and specifically prohibited at the KRSJI (Art 22 (5) KRSJI Law). Although the ICC legal texts leave the question open, self-representation has been rejected (ICC-01/09-01/11-330, 2011, para 18; ruling on ICC-01/09-01/11-314, 2011, para 27). At the ECCC, self-representation was initially allowed but later ruled out following an amendment of the Internal Rules (Rule 23 ter (1) ECCC Internal Rules). Legal representation was optional before the UNMIK Panels (Art 81 (1) PCPCK) and the East Timor Special Panels (UNTAET Reg 2000/30, sec 12.3).
1. Grouping Victims and Common Representation
55 A relevant matter for international criminal tribunals has been grouping of victim participants under no more than one or two common legal representatives. Given the massive nature of the crimes, it would be impractical to have victims represented individually. It would slow proceedings down and severely harm the rights of the accused to be tried without undue delay. However, there is no uniform practice regarding arrangement of common legal representation, and no consensus as to the level of interventionism that the tribunal should exercise. The tribunals’ intervention to ensure collective representation must balance upholding victims’ rights to choose their own lawyer (or be consulted in that respect) against taking practical steps to ensure the orderly conduct of the trial. Indeed recognizing an unfettered right for victims to appoint counsel could lead to impractical arrangements of multiple attorneys and overlapping submissions. On the other hand, fully omitting victims’ involvement in the process of designation of a common lawyer could be perceived as a top-down practice defeating the type of bottom-up approach that the very idea of victim participation seeks to promote.
56 The ECCC rules have struck that balance by allowing civil parties to choose their own lawyer, but by grouping all civil party lawyers under the so-called ‘Civil Party Lead Co-Lawyers’ (one local, one international). This system was introduced in 2010 after multiple lawyers intervened on behalf of victims in the first ECCC case, which prompted the plenary of judges to identify a ‘need to streamline and consolidate’ representation (ECCC Press Release, 28 January 2010). The Civil Party Lead Co-Lawyers have standing in court, while victim-appointed civil lawyers do not and act as intermediaries between the Lead Co-Lawyers and their respective clients. The Lead Co-Lawyers ensure representation of the civil parties’ specific views by coordinating action among and consulting with individual lawyers (Rule 12 ter ECCC Internal Rules). At the ICC, Rule 90 (1) of the RPE recognizes that ‘a victim shall be free to choose a legal representative’, but the court can ask victims to choose a common legal representative and intervene further if victims fail to agree (Rule 90 (2)–(4) ICC RPE. In such instances, the court should at the very least consult victims on their choice, in order not to impose a lawyer on them. The extent to which ICC chambers have ensured consultations varies from one case to another, but has been generally criticized for being lacking or insufficient (Killean and Moffett, 2017, 726–27; REDRESS 2015, 8–11; HRW 2017, 18–20). The KRSJI Law provides for counsel to be assigned by the registry and does not make any specific reference to victims’ involvement in the selection process (Art 22 (5) KRSJI Law), although in principle nothing bars the KRSJI registry from establishing consultation mechanisms. Such is the system in place at the STL (Art 20 (A) STL Directive on Victims’ Legal Representation (2012)).
57 While a variety of criteria could be identified for grouping victims (eg type of crime, location, age, gender, ethnicity, language spoken, etc), the tendency at various tribunals is to bring victims together into one group unless there is a conflict of interest (Art 22 (4) KRSJI Law; Prosecutor v Ayyash et al, 2012, para 120; ICC-01/04-01/07-1328, 2009, paras 12–13. See also provisions on conflicts of interests: Rule 90 (4) ICC RPE; Rule 86 (D) STL RPE). Victims will inevitably have diverse interests, but those are considered to be in conflict when they are irreconcilable (ICC-01/04-01/07-1328, 2009, para 16) and make devising a joint litigation strategy impossible. For example, the ICC found a conflict of interests, and therefore that grounds existed to assign groups to different lawyers, in cases where victims included child soldiers and victims of attacks in which those children had participated (ICC-01/04-01/07-1328, 2009, paras 12–13; ICC-01/04-02/06-160, 2013, paras 10, 24). The KRSJI Law recognizes that victims of sexual and gender-based violence may have diverse interests warranting grouping under a separate counsel (Art 22 (4) KRSJI Law). The ECCC approach to common legal representation (described above) has been criticized for failing to account for possible conflicts of interests among different groups of civil parties (Killean and Moffett, 2017, 732–33; FIDH, 2012, 35, 60).
2. Lawyers’ Obligations
58 Lawyers’ obligations include keeping clients informed and consulting them regularly on their views and concerns (see eg Art 15 ICC Code of Professional Conduct for counsel (2005); ICC-01/04-01/07-1328, 2009, para 27). Consulting with victims is particularly important to ensure genuine participation. The whole idea of participation is to enable those who suffered from the crimes to take part directly in proceedings (Pena and Carayon, 2013, 531). If they are not consulted and representation is based on an abstract interpretation of their interests, the very goal of victim participation is defeated. As explained above, victims’ lawyers must often prove that the personal interests of their clients are affected by a certain issue in order to make submissions on the matter. For this reason, it is particularly important for lawyers to be kept apprised of their clients’ interests.
59 While the content of the duty to inform and consult clients is similar to ethical obligations for any domestic legal representation arrangement, meeting the obligation may not always be easy in the context of international representation of victims of mass atrocities. Reaching out to large numbers of victims in distant and remote locations can be logistically challenging and resource-intensive. Three tribunals, the ICC, the STL, and the EAC, have (had) legal aid schemes to finance representation of indigent victims (most victims of the types of crimes under the jurisdiction of international criminal tribunals will certainly meet the indigence threshold) (Rule 90 (5) ICC RPE; STL Directive on victims’ legal representation; Art 14 (4) Statut des Chambres africaines extraordinaires au sein des juridictions sénégalaises pour la poursuite des crimes internationaux commis au Tchad durant la période du 7 juin 1982 au 1er décembre 1990 (2012); FIDH 2017, question 6).
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.
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