A/HRC/34/62
2.
Criminal justice
40.
Victim participation in criminal justice procedures is a recent but not entirely new
practice. Additional work is called for in streamlining and integrating lessons learned from
criminal procedure at both the international and national levels. That it is important to
integrate victims into criminal procedures both as a matter of protecting their rights and by
virtue of the contributions they can make to the process is an idea that is taking hold. This
is, of course, progress compared to the traditional notion, according to which victims have
restricted roles in criminal processes, basically as witnesses and sources of testimony.
International Criminal Court
41.
Article 68 (3) of the Rome Statute of the International Criminal Court contains a
relatively vague provision, putting the concrete forms of victim participation at the
discretion of the respective judges. 34 Given the breadth of the provision, different chambers
have adopted different approaches to victim participation in Court proceedings. As a
consequence, a clear and coherent approach to victim participation has thus far been
lacking.35
42.
Differences in approaches relate to the application process and the appointment of
legal representatives, as well as to the scope of victim participation during proceedings and
the modalities employed to give effect to these victims’ rights. 36 At the International
Criminal Court victims can participate in a trial in the following ways: making opening and
closing statements; consulting the record of proceedings; receiving notification of all public
filings and those confidential filings that affect their personal interest; and tendering and
examining evidence if the chamber feels it will assist in determining the truth. Moreover,
legal representatives of victims can attend and participate in proceedings, as well as
question witnesses, experts and the accused, subject to certain controls. 37 Thus, while
participation does not reach the level of victims becoming a party to the proceedings at the
Court, this is far better than locking victims into the role of witnesses and sources of
testimony.
43.
To manage the significant increase in the number of victims intending to participate
in proceedings, some measures have been employed that allow for a more collective
approach. 38 The move towards collective victim participation has raised questions as to
whether treating victims as undifferentiated groups will further their interests. The
collective approach assumes not only homogeneity of victimization, but also of the interests
of victims seeking participation. Grouping victims into general categories, for example
34
35
36
37
38
See also rules 91, 102 and 104 of the Court’s rules of procedures and evidence.
David Taylor, “Victim participation in transitional justice mechanisms: real power or empty ritual?”,
Impunity Watch Discussion Paper, April 2014, p. 11.
Victims’ Rights Working Group, “Making victim participation effective and meaningful”, June 2014,
p. 2.
For an overview, see Luke Moffett, “Meaningful and effective? Considering victims’ interests
through participation at the International Criminal Court”, Criminal Law Forum, vol. 26, No. 2 (June
2015), pp. 255-289
By way of example, 129 victims were authorized to participate in the first trial at the International
Criminal Court (the Lubanga case in the Democratic Republic of the Congo), represented by two
teams of lawyers and the Office of the Public Counsel for Victims. In the subsequent Bemba trial, for
crimes committed in the Central African Republic, over 5,000 victims participated, also in two
groups. Another approach was taken in the Kenya cases, where a distinction was made between
direct, individual participation and indirect participation through a common legal representative, with
only the former requiring the participants to pass through the formal application process.
11
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