(i) Introduction
As discussed, restorative justice theory entails the supplanting of the notion of crime as an offence against society by the reconception of crime as an act perpetrated against the victim.203 The victim as beneficiary of restorative action is therefore consistent with restorative approaches. Within the context of international crimes, of course, the
transference of this principle from the domestic to the international level is more complex. In particular, while the focus here is on the individual as intended recipient of the right to participate, it is recognised that in light of the scale of victimisation in crimes considered by the ICC and the varying capacities within which victims experience international crimes, the individual is likely, in turn, to have reparative needs that are both personal and collective in nature.204 The practical application by the Court of the right to participate is considered further below, at section 1.3, and particular challenges posed by the issue of mass victimisation are referred to there in more depth. It is appropriate here to briefly consider the extent to which, as drafted, Article 68(3) provides a theoretical basis for individually-focussed, restorative benefit. Particular reference is made in this regard to the notion of “victim” within the meaning of the Statute, together with the elements of “harm” and “personal interests” contained in the Article.
(ii) A theoretical basis for individually reparative participation: exploring the notions of “victim”, “harm” and “personal interests”
An exploration of the evolution of the definition of “victim” adopted for use in the
proceedings of the International Criminal Court is particularly enlightening in terms of the further evidence it provides of the restorative intent of the drafters, as well as of the specific individual focus they had in mind in enacting the Statute’s victim participation endeavour.
Rule 2 of the Rules of Procedure and Evidence for both of the ad hoc Tribunals defines “victim” as:
203 Para 1.2.1. 204
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“a person against whom a crime over which the Tribunal has jurisdiction has allegedly been committed”.205
Notably, the starting point of the definition is the crime which has allegedly been perpetrated, and hence runs counter to the more victim-centred, restorative approaches which had subsequently gained in prominence, and which focus instead upon the harm inflicted. In addition, the definition does not include indirect victims or dependants. Delegates involved in drafting the Court’s Rules were seemingly keen to move away from the narrow definition adopted by the heavily-criticised ad hoc Tribunals in favour of a more expansive approach which was better aligned with restorative thinking.206 Their attention was drawn to the definition contained in the UN Declaration,207 which provides:
“1. ‘Victims’ means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal law operative within Member States, including those laws proscribing criminal abuse of power.
“2. …The term ‘victim’ also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in
intervening to assist victims in distress or to prevent victimization”.
Notably, delegates recognised that the potentially large numbers of victim participants would entail logistical constraints which might overwhelm the Court.208 In acknowledging
205 Rules of Procedure and Evidence of the International Criminal Tribunal of the Former
Yugoslavia (adopted 11 February, 1994) UN Doc. IT/32/Rev.49; Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (adopted 29th June 1995) UN Doc. ITR/3/REV.1 (as amended) (1995).
206 See, for example, Yvonne McDermott, ‘Some are more Equal than Others: Victim Participation
in the ICC’ (2008 – 2009) Vol.5:1 Eyes on the ICC 23, 25.
207 ‘Report on the International Seminar on Victims’ Access to the International Criminal Court’,
Annex I, R. X (art. 15) n.1, U.N. Doc PCNICC/1999/WGRPE/INF/2 (1999), and see also Fiona McKay, ‘Paris Seminar on Victims’ Access to the ICC’ (16th June 1998) Issue 12 Int’l Crim. Ct.
Monitor 5.
208 Sylvia Gurmendi and Hakan Friman, ‘The Rules of Procedure and Evidence of the International
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the need to produce a realistic system for participation, delegates considered the
possibility of limiting the number of participants through a strict delineation of the notion of “victim”, by restricting the mode of participation, or both.209
Within this context, having rejected the definition employed by the ad hoc Tribunals as being too narrow, delegates were unable to achieve a consensus around the broad definition contained in the UN Declaration, and were subsequently invited to abandon it as a point of reference. In the spirit of compromise, a group of Arab States offered a simple definition, which provided that:
“For the purpose of the Statute and the Rules of Procedure and Evidence: “(a) Victim shall mean any natural person or persons who suffer harm as a result of any crime within the jurisdiction of the Court.
“(b) The Court may, where necessary, regard as [a] victim legal entities which suffer direct material damage”.210
Paragraph (a) of the proposed definition subsequently became the basis of Rule 85(a). A compromise was then reached in relation to paragraph (b) of the definition, which, by inclusion of the word “may”, retained the Court as final arbiter in the case of legal entities seeking to engage with the Court as victims.211 The resulting definition is contained in Rule 85 RPE, and provides:
“(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.”
209
Ibid.
210 Ibid, at 314.
211 Ibid, and see generally Silvia A. Fernández de Gurmendi, ‘Definitions of Victims and General
Principles’, in Roy S Lee (ed), The International Criminal Court: Elements of Crimes and Rules of
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Crimes falling within the jurisdiction of the Court are listed in Article 5 of the Rome Statute, and include genocide, crimes against humanity and war crimes.
Notably, the definition contained in the ICC Rules differs from both those adopted by the
ad hoc Tribunals and the UN Declaration in a number of respects and can, to some extent,
be interpreted in relation to those provisions on the basis of specific points of departure from them.
Firstly, like the UN Declaration, and unlike the definition employed by the ad hoc Tribunals, Rule 85(a) defines “victim” by reference to the harm done rather than to the crime perpetrated. As already noted, this is the starting point of restorative justice, and so it is consistent with restorative justice theory in its focus.
Arguably, the corollary of basing the notion of victim on the harm suffered is effectively to broaden the scope of the definition to encompass indirect as well as direct victims, since the link which must be established is between the criminal act and the harm which arises as a result of it, rather than between the criminal act and the direct victim of it,212 and the inclusion of indirect victims within the definition has since been affirmed by the Court in its early jurisprudence on victim participation.213
Secondly, unlike the UN Declaration, the definition of victim contained in Rule 85(a) makes no reference to harm which has been suffered collectively. In addition, although Rule 85(a) defines victims in the plural, as opposed to reference to the singular in the ad
hoc Tribunal definitions, Rule 85(a) does not make any express reference to the possibility
that the notion of victims might comprise a collective or group.
212
Notably, this argument would assume that the express reference to the inclusion of both direct and indirect victims in paragraph 2 of the definition found in the UN Declaration is superfluous, or otherwise there simply to make explicit what is otherwise implicit in linking victim status to harm suffered. Given that the Declaration was intended for wide domestic implementation, this would seem a plausible explanation.
213 See, for example, the decision of Pre-Trial Chamber I on the participation of victims in Lubanga
(Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case of the Prosecutor v. Thomas Lubanga Dyilo) ICC-01/04-01/06-172-tEN (29 June 2006) 7. The Appeal Chamber, too, observed in the same case that “harm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victims”, see Lubanga (11 July 2008) (n 72) [32], and cited with approval in
Ntaganda (15 January 2014) (n 78) [31] – [32]. See also generally in Friman (Third Party to
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Given that the definition of victim contained in the UN Declaration had been expressly considered by the drafters, the exclusion of any reference to collective harm in Rule 85(a) was clearly a conscious act. While, therefore, crimes such as genocide and crimes against humanity, which fall within the Court’s remit, are crimes of scale and have an inherently collective component, it is the notion of personal harm to the individual, howsoever it arises, which is determinative of the individual’s status as a victim within the meaning of Rule 85(a) and hence decisive for the purpose of participation. In light of this, reference in Rule 85(a) to “victims” and “persons” must surely represent an acknowledgment by the drafters of the likely significant number of potential victim participants in Court
proceedings. As a result, as drafted, at least, the requirement that harm be personal to the victim would theoretically exclude a broad, collective, diaspora-type application or one which might otherwise situate the individual participant in a representative capacity vis-à- vis the affected community.214
Finally, certain legal entities, albeit those with essentially social purposes, are
encompassed by the definition. According to Donat-Cattin, however, “[t]he inclusion of legal entities…within the definition of victim does not detract the focus of [the] Rome Statute system from individual victims, given that the rights enshrined in articles 68 and 75 of the Statute are primarily applicable to natural persons.”215
[emphasis added].
The notion of harm itself is not defined in the Statute or Rules. Notably, however, in allying an individual notion of victimhood to the harm suffered, it is clear that the harm must in turn be personal to the victim, whether as a direct or indirect victim of the crime allegedly perpetrated. In addition, Article 68(3) provides that a victim’s “personal interests” must be engaged before they are able to participate in proceedings. Again, “personal interests” is not defined in the Statute or accompanying materials, although the language of the requirement itself, together with the intention of the drafters to create a role distinct from that of society or the Prosecutor and the individual approach to the interpretation of “victim” all indicate that the interests in question must be specific and personal to the individual victim participant.216
214 On this point, see also McDermott (n 206), 32. 215 Donat-Cattin (Article 68) (n 162), at 1295. 216
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