OTRAS PRUEBAS NO ENUNCIADAS, DISCUSIÓN REFERENCIA A LOS MEDIOS ELECTRÓNICOS
1. e) Contrato por cuenta de quien corresponda
include organizations...”. So far only natural persons have been admitted to the proceedings, while the overall number of victims admitted to the proceedings is still very low.
The term “harm” is not defined in either the Statute or in the Rules. Traditionally “harm” is required to be “real”, that is, to have resulted in proven and personal harm – whether the victim is effected directly or indirectly by the wrongful act.369
The definition of “victim” discussed in the Preparatory Commissions included all these kinds of harm
As for the accepted kinds of harm, at first glance it appears that “harm” might be a generic term, comprising all different kinds of harm such as physical and mental injury, emotional suffering, economic loss and substantial impairment of fundamental rights.
370, however no consensus was reached on the exact content of “harm”371
In its first decision, the Pre-Trial Chamber (“ PTC” ) has stated that “ the Chamber must interpret the term harm on a case-by-case basis in the light of Art. 21(3) of the Statute, according to which “[t]he application and interpretation of law pursuant to this so that its precise meaning was left open in the end.
369 Compare similarly Defence, Situation in the Democratic Republic of the Congo in Prosecutor vs.
Thomas Lubanga Dyilo, Defence submissions regarding the applications for participation in the
proceedings of applicants a/0004/06 to a/0052/06 of 4 September 2006, para. 64.
370 See UN Doc. PCNICC/1999/INF/2 and PCNICC/1999/L.5/Add.1n.8; http://documents-dds-
ny.un.org/doc/UNDOC/GEN/N99/224/92/img/N9922492.pdf?OpenElement. 371 See CICC 4th Preparatory Commission Report, March 2000,
http://www.iccnow.org/documents/4thPrepComReportMarch2000.pdf?PHPSESSID=cba4ff8ece8f5f864 fb4a750fbaaf4a7
article must be consistent with internationally recognized human rights”.372 Pre-Trial
Chamber I further noted that the purpose of the decision was not to make a definitive determination on the harm suffered by the victims, as this would be determined subsequently, where appropriate, by the Trial Chamber in the context of a case. PTC I considered, moreover, that the determination of a instance of harm suffered was sufficient, at that stage of the proceedings, to establish a person’s status as victim.373
In terms of context it can be seen that Art. 6(b) of the Statute contains the term “serious bodily or mental harm” so that it can be inferred that these kinds of harm are also contained in the definition of Rule 85.
Thus the precise scope of the term “harm” was not clarified in the decision. This may be because the decision was handed down at a very early stage of the proceedings. The ICC made statements on the categories of possible harm which may be helpful in the future, which, however, were not definitive.
Physical and mental harm have also been acknowledged as harm in the 1985 Victims Declaration374, in the 2005 Principles375, before the Interamerican Court376 and the European Court377
372 See PTC I, Situation in the Democratic Republic of the Congo, Decision on the applications for participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 of 17 January 2006, Case No. ICC-01/04, para. 81; see also Greco, G. "Victims' Rights Overview under the ICC Legal Framework: A Jurisprudential Analysis." International Criminal Law Review 7 (2007): pp. 531-547. At page 536.
, too. There seems, therefore, to be no doubt but that physical and mental harm will be included under the definition of “harm”.
373 See PTC I, Situation in the Democratic Republic of the Congo, Decision on the applications for participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 of 17 January 2006, Case No. ICC-01/04, para. 82.
374 See Art. 1. 375 See Principle 8.
376 See e.g. Velásquez Rodríguez vs. Honduras, judgement of 29 July 1988, Series C No. 4, para. 187, where the Inter-American Court held that prolonged detention in specific circumstances was detrimental to physical and moral integrity, and hence a form of harm.
377 See e.g. judgement in the Selmouni vs. France case of 28 July 1999, Application no. 25803/94, paras. 105 et seq., there the European Court held that torture was an assault on a person’s physical and moral integrity and hence constituted harm.
But what about the other kinds of harm?
Emotional harm was recognized as a form of “harm” in the 1985 Victims Declaration378,
the 2005 Victims Principles379, the jurisprudence of the Inter-American Court of Human
Rights (“ICHR”)380, and the ECHR381 but only in the context of reparations. As for victim
participation there has not yet been any international case law on the issue, therefore, the aforementioned jurisprudence could be applied accordingly. As one single definition has been created for both participation and reparation in Rule 85 it seems that this definitional overlap allows for the application of the aforementioned jurisprudence. Indeed, the text of Art. 75 contains elements applicable for reparations which are not mentioned in Rule 85. Nevertheless it can be assumed that a single definition was intended as Art.75 was adopted prior to Rule 85. The ICC in its decision on victim participation also applies, as regards the notion of victim, jurisdiction that has originally been issued in the context of reparations.382
With regard to the applicability of the Victims Declaration it should be mentioned that it is by no means binding on the ICC.
383
378 Para. 1, para.18 G.A. Resolution 40/34, 19 November 1985, fortieth session, UN Doc. A/RES/40/34.
However, it is interesting to see that it was recognized during the negotiations of the Rome Statute and the ICC’s Rules of Procedure
379 Principle 8 of 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.
380 Aloeboetoe et al. vs. Suriname, Judgement of 10 September 1993, Ser. C, No. 15, para. 20 et seq.;
Blake vs. Guatemala, Judgement of 24, 1998, Ser. C, No. 36, para. 116; Neira Alegria et al. vss. Peru,
judgement of 19 September 1995; Ser. C, No. 20, paras.56, 57.
381 Aksoy vs. Turkey, Judgement of 18 December 1996, Application No.21987/93, para 113; Kenaan v.
United Kingdom, Judgement of 3 April 2001, Application No.27229/25, para.138 (non-pecuniary
damage for the anguish and distress the victim suffered on account of the conditions in which her son had been detained); Olsson vs. Sweden, Judgement of 24 March 1988, Application No.10465/83, para.102; Selmouni vs. France, Judgement of 28 July 1999, Application No.25803/94, para. 123, saying that torture is an assault on a person’s physical and moral integrity and hence consitutes harm. 382 See e.g. PTC I, Situation in the Democratic Republic of the Congo, Decision on the applications for
participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 of 17 January 2006, Case No. ICC-01/04, paras. 116 et seq.
383 See above; see also Bitti, G. and G. González Rivas (2006). The Reparations Provisions for Victims Under the Rome Statute of the International Criminal Court. Redressing Injustice through Mass Claims Processes: Innovative Solutions to Unique Challenges. Oxford: 299-322. At page 303.
that, in light of the adoption of the Declaration by consensus at the UN General Assembly and the wide acceptance of its provisions, it should be a reference point for the participation of victims in proceedings before the Court.384
In one of its decisions, the ICC itself referred to the Basic Principles, the jurisdiction of the Inter-American and European Court of Human Rights and the 2005 Victim Principles, thereby recognizing emotional suffering as harm.
385 In another case “prejudice moral”
was also accepted as harm.386
Further indication is given by the victim booklet
387 where it is stated that “it will be up to
the judges of the ICC to establish what types of harm will qualify, but they are likely to include not only physical harm to a person's body, but also emotional suffering”.388
The Defence in one case has pointed that French case law has restricted the recognition of mental harm.389
384 See Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/Conf./83/2 (1998), U.N. Doc. A/Conf.183/2/Add.1 at page 109;
However, the merits of having recourse to national where international principles are readily available and applicable seems questionable.
http://documents-dds- ny.un.org/doc/UNDOC/GEN/N98/144/11/pdf/N9814411.pdf?OpenElement.
385 See PTC I, Situation in the Democratic Republic of the Congo, Decision on the applications for participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 of 17 January 2006, Case No. ICC-01/04, paras. 115 et seq.
386 See PTC I, Situation en République Démocratique du Congo, Decision sur les demandes de
participation à la procédure a/0001/06, a/0002/06 et a/0003/06 dans le cadre de l’affaire Le Procureur c.
Thomas Lubanga Dyilo et de l’enquête en République démocratique du Congo du 31 juillet 2006, Case
No. ICC-01/04-177, at page 12. 387 Although of course not binding.
388 See victim booklet at page 17; see also page 36 where it is said that “the ICC recognises different types of harm that a victim suffers as a result of crimes that the Court deals with. These crimes can cause physical suffering to a person's body. They can also cause emotional suffering or psychological or mental harm, by which a person's mind is affected because of what she or he has experienced or witnessed.”
389 See Defence, Situation in the Democratic Republic of the Congo in Prosecutor vs. Thomas Lubanga
Dyilo, Defence submissions regarding the applications for participation in the proceedings of applicants
By now, both the Pre-Trial Chambers and the Trial Chamber have concluded that not only physical injury but also economic loss and emotional suffering constitute harm within the meaning of Rule 85.390
Of course it also seems conceivable that the ICC’s restricted capacities could limit such wide recognition of types of harm in the long term, but so far there is no indication that this could be the case.
It seems therefore that the ICC will follow the path delineated above.
With regard to economic loss, Rule 85 (b) protects property and therefore harm to this property. Even if Rule 85 (b) does not protect economic interests in the strict sense391 it
still gives some indication of its application to this issue. Economic loss has been recognized under the 1985 Victims Declaration392 and under the 2005 Principles393 and in
the jurisprudence of the European Court of Human Rights394 and the Inter-American
Court of Human Rights395
The ICC has referred to the Basic Principles, the jurisdiction of the Inter-American and European Court of Human Rights and the 2005 Victim Principles in a case that came before it concerning economic loss and recognized economic loss as harm.
.
396
390 See e.g. PTC I, Situation in the Democratic Republic oft he Congo, Decision on the applications for participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 in the case
The Prosecutor vs. Thomas Lubanga Dyilo of 17 January 2006, Case No. ICC-01/04, para.172 and Trial
Chamber I Situation in the Democratic Republic of the Congo in Prosecutor v. Thomas Lubanga
Dyilo, Decision on victim’s participation of 18 January 2008, Case No ICC-01/ 04-01/ 06, para
92.
Further
391 See Chapter „natural persons“.
392 Para. 1 G.A. Resolution 40/34, 19 November 1985, fortieth session, UN Doc. A/RES/40/34
393 Principle 8 of 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.
394 Ayder and Others vs. Turkey, Judgment of 8 January 2004, Application No. 23656/94, paras. 10 and 141ff.
395 El Amparo v. Venezuela, “Judgement of 14 September 1996, Series C No. 28, paras. 28 to 63. 396 See PTC I, Situation in the Democratic Republic of the Congo, Decision on the applications for
participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 of 17 January 2006, Case No. ICC-01/04, paras. 115 et seq.
indication is given by the victim booklet397 where it is stated that “it will be up to the
judges of the ICC to establish what types of harm will qualify, but they are likely to include not only physical harm to a person's body, but also material loss”398
As for emotional harm it remains to be seen whether the ICC will continue to follow the legal practice as outlined above in the future. However, this seems likely.
, indication is also given by the current jurisdiction.
As to “substantial impairment of fundamental rights”, this term “ is fairly unusual in criminal law. It is designed as a catch-all phrase to cover harm that, while not directly harming the victim personally, prevents him or her from participating as a full member of society.399 The 1985 Victims Declaration and the 2005 Victims Principle both regard
substantial impairment of fundamental rights as “harm”.400 As the term can be interpreted
very broadly it is doubtful that the ICC will apply it. Besides, the term has not yet been mentioned by the ICC in any of its decisions or in the victim booklet. In any case, the victim declaration has been seen as highly relevant thus far by the ICC so that the Court might as well decide to include substantial impairment after also hearing such recommendations by NGOs.401
Thus far it can thus be concluded that the ICC seems to have adopted a wide interpretation of the term “harm”, which corresponds in the main with the Victims Declaration. However, for reasons of legal certainty the Court will not be able to avoid
397 Although of course not binding.
398 See victim booklet at page 17; see also page 36 where it is said that “the ICC recognises different types of harm that a victim suffers as a result of crimes that the Court deals with….There could also be material harm, such as where property is damaged or lost as the result of the crime, including your home or other property.”
399 Joutsen, M. (1987). The Role of the Victim of Crime in European Criminal System: A crossnational study of the role of the victim. Helsinki, Heuni. At page 300.
400 See Para. 1 1985 Victims Declaration and Principle 8 2005 Victims Principles.
401 See e.g. (1999). Human Rights Watch Commentary to the third Preparatory Commission Meeting on the International Criminal Court, Human Rights Watch. At page 23.
further elaboration and a more precise determination of the term harm in the long run, even if it does leave itself the possibility to decide on a case-by-case basis.