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THE ROLE OF VICTIMS IN THE ICC – Professor Sam Garkawe

THE ROLE OF VICTIMS IN THE ICC – Professor Sam Garkawe. VICTIMS HAVE COME A LONG WAY IN INTERNATIONAL CRIMINAL JUSTICE! THE FIRST INTERNATIONAL CRIMINAL COURT: THE NUREMBERG INTERNATIONAL MILITARY TRIBUNAL VICTIMS WERE HARDLY A FACTOR!

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THE ROLE OF VICTIMS IN THE ICC – Professor Sam Garkawe

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  1. THE ROLE OF VICTIMS IN THE ICC – Professor Sam Garkawe • VICTIMS HAVE COME A LONG WAY IN INTERNATIONAL CRIMINAL JUSTICE! • THE FIRST INTERNATIONAL CRIMINAL COURT: THE NUREMBERG INTERNATIONAL MILITARY TRIBUNAL • VICTIMS WERE HARDLY A FACTOR! – not mentioned in founding London Agreement & few survivors testified

  2. VICTIMS & PREVIOUS INTER/L COURTS I • See Sam Garkawe, ‘The Role and Rights of Victims at the Nuremberg International Military Tribunal’ in Reginbogin H & Safferling C (eds), The Nuremberg Trials: International Criminal Law Since 1945 , published by KG Saur Verlag, 2006, pp 86-94 • Why victims/survivors played a small role • What more could have been done to include victims/survivors

  3. VICTIMS & PREVIOUS INTER/L COURTS II • The Cold War period • No international courts, but some prominent domestic cases • Eichmann – role of victims • Barbie – about 40 victims appointed lawyers to become civil prosecutors • Domestic cases need to be treated with caution

  4. VICTIMS & PREVIOUS INTER/L COURTS III • UN Security Council gets involved in international justice – forms ICTY in1993 & ICTR in 1994 – similar Statutes re victims • Establishment of Victim and Witness Units • Special procedural rules for vulnerable victims/witnesses • Meek attempt to facilitate reparation • A vast improvement – why? (see Sam Garkawe, 'Victims and the International Criminal Court: Three Major Issues' (2003) 3 (4) International Criminal Law Review 347, 349-351)

  5. ICC I – WHAT CRIMES? THE ICC CAN PROSECUTE THE FOLLOWING CRIMES: • GENOCIDE (article 6) • CRIMES AGAINST HUMANITY (article 7) • WAR CRIMES (article 8) • Maybe AGGRESSION from 2017 – in June 2010 the State Parties agreed on a definition, but delayed its introduction.

  6. ICC II – CURRENT CASES 1 • UGANDA – 5 arrest warrants issued against leaders of the LRA (1 has died, 4 cases still) • DEMOCRATIC REPUBLIC OF THE CONGO – 1st trial of ICC - LUBANGA (child soldiers) is at the trial stage, as is one other case. 2 other cases at pre-trial stage (4 suspects in custody) • DARFUR, SUDAN – 4 cases at pre-trial stage, 3 arrest warrants issued (government people, including the Head of State), 1 person voluntary before the ICC • CENTRAL AFRICAN REPUBLIC – BEMBA at trial stage (he is in custody)

  7. ICC II – CURRENT CASES II • KENYA – investigation opened – 6 defendants summoned by Chamber • LIBYA – 3 arrest warrants issued late June 2011 against leader, his son and a key Minister ONLY 5 PEOPLE ACTUALLY IN CUSTODY NO CONVICTIONS AS YET – ICC IN EXISTANCE SINCE JULY 2002

  8. ICC III – WHICH STATES ARE PARTIES? • AS AT 17 JULY 2011 THERE WERE 115 STATE PARTIES • 15 FROM ASIA (not Indonesia) • 18 FROM EASTERN EUROPE • 25 FROM WESTERN EUROPE AND OTHERS • 32 FROM AFRICA • 26 FROM LATIN AMERICA/CARIBBEAN • ONLY THE UK AND FRANCE FROM THE ‘BIG 5’ POWERS

  9. MAJOR INNOVATIONS OF THE ICC - VICTIM PERSPECTIVE • Presumption in favour of measures of protection for certain victims [art 68(2)] • Possibility of separate representation for victims [art 68(3)] • Reparation scheme for victims [arts 75/79] • More emphasis on outreach program • W Schabas, Introduction to the [ICC] (3rd ed, 2007: 327) ‘The attention given to the role and rights of victims by the Rome Statute of the [ICC], and by subsidiary instruments such as the Rules of Procedure and Evidence, is quite stunning when set aside the very secondary role they have been given historically by international criminal law and ... humanitarian law’

  10. PROVISIONS OF ICC STATUTE I - DEFINITION See Sam Garkawe, `The Victim-Related provisions of the Statute of the [ICC] - A Victimological Analysis' (2001) 8 (3) International Review of Victimology 269 • Definition of ‘victims’: Rule 85 of the Rules of Procedure and Evidence • (a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; • (b) Victims may include organizations or 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.

  11. PROVISIONS OF ICC STATUTE II – PROTECTION MEASURES • Article 68 (1): The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. • See also Rules of Evidence & Procedure 87 (3)

  12. PROVISIONS OF ICC STATUTE III PARTICIPATION OF VICTIMS • Article 68 (3): Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate …

  13. PARTICIPATION OF VICTIMS UNDER ARTILE 68 (3) • Discretionary decision of a Chamber • At what point in proceedings? Situation in the Democratic Republic of Congo: Pre-Trial Chamber I (17 January 2006) • Pre-trial Proceedings • Problem of numerous victims • Degree of involvement of victims’ legal representative • See Sam Garkawe, 'Victims and the International Criminal Court: Three Major Issues' (2003) 3 (4) International Criminal Law Review pp 347-369

  14. PROVISIONS OF ICC STATUTE IV - REPARATION Article 75 (1) The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. • (2) The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. • See also Rule 97 of the Rules of Evidence and Procedure

  15. PROVISIONS OF ICC STATUTE V INSTITUTIONS ESTABLISHED • The Trust Fund for Victims [Art 79] • The Victims and Witnesses Unit (under the Registry) [established under Art 43 (6); functions set out in Rule 17 (2) of the Rules of Evidence and Procedure] • The Office of Public Counsel for Victims – no precedent for this; independent of other institutions of the court

  16. SOME CONCERNS • ICC STATUTE IS A COMPROMISE BETWEEN THE MAJOR WESTERN CRIMINAL JUSTICE SYSTEMS – WHAT ABOUT NON-WESTERN SYSTEMS? • WILL THE ICC PRECLUDE NATIONS’ OWN UNIQUE CULTURAL WAYS OF DEALING WITH ACCOUNTABILITY? • WILL VICTIM PROCEDURES ADD TO DELAYS? [YES, BUT IS IT JUSTIFIED?]

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