As stated above, one reason for not giving victims a right to participation in both Tribunals was that the Statute and RPE were based on the adversarial system which sees
95 See Judges Report of 13 September 2000; http://www.un.org/icty/pressreal/tolb-e.htm.
96 See for example Aldana-Pindell, R. (2004). "An Emerging Universality of the Justiciable Victims' Rights to the Criminal Process to Curtail Impunity for State-Sponsored Crimes." Human Rights Quarterly 26: 605-686. At page 658; van Boven, T. (1999). The Position of the Victims in the Statute of the International Criminal Court. Reflections on the International Criminal Court, Essays in Honour of Adrian Boos. H. von Hebel, J. G. Lammers and J. Schukking. The Hague, TMS Asser Press: 77-89. At page 80; Mumba, F. (2001). Ensuring a Fair Trial whilst Protecting Victims and Witnesses- Balances of Interests ? Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald. R. May, D. Tolbert, J. Hockinget al. The Hague, Kluwer Law International.; McDonald, A. (2002). The Role of Victims and Witnesses in International Criminal Trials. Treaty Enforcement and International
Cooperation in Criminal Matters with special reference to the Chemical Weapons Convention. R. Yepes- Enriques and L. Tabassi. The Hague, T.M.C. Asser Press: 257-276. At page 262.
97 See for example Donat-Cattin, D. (1999). Art. 68 "Protection of victims and witnesses and their
participation in the proceedings". Commentary on the Rome Statute of the International Criminal Court. Observers´Notes Article by Article. O. Triffterer. Baden-Baden, Nomos Verlagsgesellschaft. At page 870 pointing out that before the Rwandan Tribunal persons after having testified as witnesses went home and were killed; see also Heikkilä, M. (2004). International criminal tribunals and victims of crimes. Turku, Institute for Human Rights, Abo Akademi University. At page 139; Procedural and evidentiary issues for the Yugoslav war crimes Tribunal, Helsinki Watch, Augst 1993 in: Morris, V. and M. P. Scharf (1995). An Insider´s Guide to the International Criminal Tribunal for the Former Yugoslavia. A Documentary History and Analysis. Irvington-on-Hudson, New York, Transnational Publishers.; Bassiouni, M. C. and
P. Manikas (1996). The Law of the International Criminal Tribunal for the Former Yugoslavia.
the victim’s primary role as that of appearing as a witness for one of the parties to the proceedings.98
A further explanation of the situation before both tribunals is that the primary concern of the drafters of the Statutes and RPE was the punishment of those guilty of serious violations of international humanitarian law. The objects and purpose of the ICTY, and hence the Tribunal’s Statute have been identified as threefold: (1) to do justice; (2) to deter further crimes; and (3) to contribute to the restoration and maintenance of peace.
99
Some have further identified rendering justice to victims as a fourth objective.100
One can thus make a distinction between three respectively four objectives. However, it should be enhanced that the wording of Resolution 827 (1993)101 that established the
ICTY and the wording of Resolution 955 (1994)102 that established the ICTR103 show
that, in essence, the tribunals have only one official function, namely to prosecute and punish.104
98 See above at page 19.
This concern has resulted in the prosecution being given broad powers including the task of representing the victims at all stages of the proceedings, while withholding those rights from the victims themselves.
99 See Prosecutor vs. Tadić, Case No. IT-94-1, Decision on the Prosecutor’s motion requestion protective measures for victims and witnesses, 10 August 1995, para. 18.
100 See Heikkilä, M. (2004). International criminal tribunals and victims of crimes. Turku, Institute for Human Rights, Abo Akademi University. At page 9 refering to the webpage of the Tribunal: www.un.org/icty “the ICTY at a Glance→General Information; see also McDonald, A. (2002). The Role of Victims and Witnesses in International Criminal Trials. Treaty Enforcement and International Cooperation in Criminal Matters with special reference to the Chemical Weapons Convention. R. Yepes- Enriques and L. Tabassi. The Hague, T.M.C. Asser Press: 257-276. At page 64.
101 Resolution 827 (1993), adopted 25 May 1993, (S/RES/827(1993)); http://www.un.org/icty/basic/statut/S-
RES-827_93.htm.
102 Resolution 955 (1994), adopted 8 November 1994, (S/RES/955 (1994)); http://documents-dds-
ny.un.org/doc/UNDOC/GEN/N95/140/97/pdf/N9514097.pdf?OpenElement.
103 Stating that the Tribunal was set up “for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law”.
104 Similarly McDonald, A. (2002). The Role of Victims and Witnesses in International Criminal Trials. Treaty Enforcement and International Cooperation in Criminal Matters with special reference to the Chemical Weapons Convention. R. Yepes-Enriques and L. Tabassi. The Hague, T.M.C. Asser Press: 257-276. At page 65.
At the ICTs there has been little attention given to a restorative or reconciliatory role which is often ascribed to international criminal justice105 or the purpose of “giving a
voice to the victims”.106
It has not been taken into account that the victims’ attendance in person at the trial may help in establishing the truth
107 and that, by participating in the proceedings and by
obtaining compensation, a victim may be able to regain his or her dignity, thereby contributing, ultimately to the restoration of peace and security.108
Furthermore, such a conception of international criminal justice is open to criticism since it ignores the fact that the concerns of the Prosecutor do not necessarily coincide with those of the victims. The Prosecutor is not merely a representative of public justice. He or she is an official administering a bureaucracy that serves a variety of objectives, be they investigative, adjudicative, administrative or political. However high-minded he or she may be in exercising the function, her or his roles as advocate and administrator make it difficult for him or her to be genuinely neutral and to weigh impartially the facts, law and equities which have a bearing on the many decisions he or she must take.109
105 See Ibid. At page 259.
Given that the Prosecutor’s actions will most probably be governed by the desire to obtain a successful conviction, it is possible that the victims’ interests and the interests of the Prosecutor will not coincide.
106 In 2004, the ICTY published a list of five successes which it claimed it had accomplished among others “giving a voice to victims”, for more information see:http://www.un.org/icty/glance-e/index.htm. 107 Jorda, C. and J. de Hemptienne (2002). The Status and Role of the Victim. The Rome Statute of the
International Criminal Court, A Commentary. A. Cassese, P. Gaeta and J. R. W. D. Jones. Oxford, Oxford University Press. 2: 1387-1419. At page 1388; Human Rights Watch Commentary to the third Preparatory Commission Meeting on the International Criminal Court, Human Rights Watch (1999). Pp 22 et seq.
108 Jorda, C. and J. de Hemptienne (2002). The Status and Role of the Victim. The Rome Statute of the International Criminal Court, A Commentary. A. Cassese, P. Gaeta and J. R. W. D. Jones. Oxford, Oxford University Press. 2: 1387-1419. Pp 1389 et seq.
109 Goldstein, A. (1982). "Defining the Role of the Victim in Criminal Prosecution." Mississippi Law Journal 52: 515-560. At page 555.
For example, certain criminal acts are not prosecuted not because they have not created victims, but because they are not serious enough to disturb international peace and security. This can occur, for instance, when crimes were committed by persons not holding a sufficiently high rank within the political or military hierarchy. As a result of the plea agreement practice at the Tribunal110
Moreover, the fact that the cases often involve a great number of victims and the Tribunals have limited resources may also have played another decisive role in not providing for victim participation. Arguments based on the limited nature of resources can, however, be a question of what weight is accorded to different factors.
, whereby a deal is made between the prosecution and an accused providing that certain counts will be withdrawn in exchange for a guilty plea on other counts, the victims’ interests are not taken into account; the victim does not have any chance to influence this process.
Another factor may have been the fact that there were no other international criminal Tribunals that had ever considered victims rights, thus there was no experience to draw upon.111
Altogether from the point of view of victims, the work of the ICTs can be considered a disappointment in many ways. For many victims, the Tribunals remained alien and alienating.112
However, even the presence of limited references to victims throughout the ICT’s Statutes can be seen as helpful113
110 See for example, Prosecutor vs. Sikirica et. al. Joint Submission of the Prosecution and the Accused Dragam Kolundzija of a Plea Agreement, Case No. IT-95-8-T. 31 August 2001; Prosecutor vs. Sikirica
et. al., Admitted Facts Relevant to the Plea Agreement for Dragan Kolundzija, Case No. IT-95-8-T, 4
September 2001; Prosecutor vs. Sikirica et. al., Joint submission of the Prosecution and the Accused Dusko Sikirica concerning a Plea Agreement and Admitted Facts, Case No. IT-95-8-T, 7 September 2001.
in the way that this can be seen as a first step of a rising
111 Chinkin, C. (2002). The Protection of Victims and Witnesses. Substantive and Procedural Aspects of International Criminal Law. G. Kirk McDonald and O. Swaak-Goldmann. The Hague, Kluwer Law International. 1: 451-478. At page 452.
112 Similar McDonald, A. (2002). The Role of Victims and Witnesses in International Criminal Trials. Treaty Enforcement and International Cooperation in Criminal Matters with special reference to the Chemical Weapons Convention. R. Yepes-Enriques and L. Tabassi. The Hague, T.M.C. Asser Press: 257-276. At page 260.
awareness of victims’ rights. The ICTs had a role to play in the process that led to the introduction of victim participatory rights before the ICC and maybe also a changing awareness as regards the aims and objectives of international trials.
The absence of any provisions referring to victim participation before the Special Court for Sierra Leone must be seen as a major step backwards from the relatively progressive provisions of the ICC Statute.114
C. Victims’ participation before the Extraordinary Chambers of the Court of