Article 21(1)(b) of the Rome Statute indicates that where a provision of the Statute cannot be interpreted by direct reference to its text, the Court may have recourse to “applicable treaties and the principles and rules of international law”. In practice, and as discussed further below, the Court has consulted and applied the provisions of the Vienna Convention as a guide to treaty interpretation. Article 32 of the Vienna Convention provides that where a clear interpretation is not apparent from an examination of the specific text of a provision, recourse might be had to any supplemental materials with direct bearing and relevance to the drafting of the provision in question.
Notably, despite furnishing the legislative roots of Article 68(3), recourse to the UN Declaration as an aid to interpretation and application provides little in the way of guidance to the Court as to how it should implement the provision in practice.
While Article 68(3) of the Rome Statute largely replicates the wording of Article 6(b) of the UN Declaration, there are problems with the wholesale incorporation of the provision into the Statute without any recognition of the characteristics of the nature and scale of international crimes, international criminal law processes or the specifics of the intended forum. Notably, the UN Declaration, as an international human rights law instrument, is intended to be applied primarily within domestic criminal procedures.222 As a result, it employs vague, aspirational language in order to enable a broad application within the multiplicity of domestic criminal mechanisms and legal systems of member states. Significantly, the detailed practical realisation of the principles contained in the UN Declaration are left for individual member states to determine and apply in any national incorporating legislation or instrument, and in light of the specifics and exigencies of their own criminal justice processes. In contrast, however, drafters of the Rome Statute
seemingly failed to anticipate and reflect the realisation of the Declaration’s principles within the specific context of the International Criminal Court, and instead retained language which simply lacks specificity and context.
222
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Moreover, the UN’s own Policy Guide to the Declaration indicates that it has been implemented domestically through the application of a range of differing models,223 none of which it considers to be preferable or otherwise better suited to specific scenarios or judicial contexts,224 and so is also of little help to the Court in this regard.
The wholesale incorporation of the provision without particular reference to the intended forum is particularly problematic in light of the intended beneficiary of the UN
Declaration. As an instrument which was crafted primarily for broad domestic
implementation within the territories of member states, the Declaration is designed for application to cases involving one or otherwise few victims, as opposed to the substantial number of victims of international crimes recognised during the drafting process as likely to have an interest in a case before the International Criminal Court and the potentially complex nature of justice needs of participating victims in the specific context of mass victimisation.225
The delegation of the responsibility to determine a workable process for victim
participation therefore represents a missed opportunity to include targeted and practical measures in the Court’s Rules for the specific achievement of the intended restorative rationale and for the provision of certainty and clarity amongst victim participants. Instead, differing approaches to victim participation have developed on a case-by-case basis, and in the absence of any guiding or overarching restorative aim to serve as a focal point for victim-oriented measures. As such, the victim participation system as a whole lacks clarity and certainty for victims. 226 At the same time, the terminology of the
provision, and in particular, the notion of “views and concerns”, is potentially broad. This,
223
UN Office for Drug Control and Crime Prevention, Guide for Policy Makers on the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1999), available online at
<http://www.unodc.org/pdf/criminal_justice/UNODC_Guide_for_Policy_Makers_Victims_of_Cri me_and_Abuse_of_Power.pdf> accessed 21st June 2014, 20 – 21; see also Raquel Aldana-Pindell, ‘An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes’ (2004) 26 Hum. Rts. Quarterly 605, 656.
224 Matti Jousten, ‘Listening to the Victim: The Victim’s Role in European Criminal Justice
Systems’ (1987-88) 34 Wayne Law Rev. 95, 122.
225 Discussed above, Introduction, Scope and Limitations, and considered in more detail below, at
paras 2.3.1.(iii) and 2.4.3.
226 This problem is also identified in the Report of the Independent Panel of Experts (n 200), para
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combined with an expansive approach to the definition of “victim” contained in Rule 85(a), renders Article 68(3) of theoretically wide-ranging application in the specific context of the ICC, while the inherent ambiguity within the provision risks raising unrealistic expectations amongst victim participants.227
While the legislative basis of Article 68(3) does not therefore present difficulties for the theoretical realisation of restorative benefit in victim participants per se, the failure of drafters to tailor the provision contained in the UN Declaration to the specific intended forum, and with the nature and scale of victimisation in mind, is problematic.
It is therefore appropriate to consider how the provision has been interpreted and applied in practice. The following section begins with an assessment of the extent to which the restorative rationale for the victim participation endeavour has been acknowledged at a practical level in the jurisprudence of the Court and in related academic literature, and is followed by a consideration of the emergence of competing or potentially alternative rationales for the endeavour, together with an assessment of the potential impact of these rationales on the achievement of effective and meaningful victim participation.
1.3.3. Interpretation of Article 68(3) by the Court and commentators: losing sight of the