and should react to this fact in a responsible way.
It is further possible that there is another purpose of punishment, namely a victim-related purpose of punishment that goes beyond of what is achieved by the purposes of “reconciliation” or “truth finding”.
192 See thereto also Osiel, M. (1997). Mass atrocity, collective memory, and the law. New Brunswick, New Jersey, Transaction Publishers. At page 2 who opines that a war crimes trial cannot avoid contributing to the shaping of collective memory.
There are different options which might be considered when looking at the content of such a purpose. Proposals on this issue include “giving a voice to victims”193, “doing
justice for victims”194, “acknowledging the suffering of victims”195 or “restoration and
healing of victims”196
First, it seems conceivable that by “doing justice for victims” for instance or “restoration and healing” what is meant is that a criminal process has the aim of satisfying victims’ individual interests such as individual retribution, reconciliation, healing etc.. Another inherent association could be that the aforementioned general objectives like retribution are pursued explicitly “in the name of victims” or “on behalf of victims” while giving victims limited or no influence on the process. Another interpretation would be that “justice for victims” is seen as a necessary means of accomplishing other aims such as collective reconciliation. It would therefore be a necessary precondition for the main objective of the proceedings rather than an original objective
. These proposals at first view seem to serve a similar purpose but are not clear as to their exact meaning. These catchwords could comprise completely different objectives and cover a wide range of aims.
197
193 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 259.
even if personal interests may be satisfied as a side effect.
194 Bachrach, M. (2000). "The Protection and Rights of Victims." The International Lawyer 34: 7-21. At page 7.
195 Werle, G. (2005). Principles of International Criminal Law. The Hague, TMC Asser Press. At Page 31. see also Heikkilä, M. (2004). International criminal tribunals and victims of crimes. Turku, Institute for Human Rights, Abo Akademi University. At page 68.
196 Möller, C. (2003). Völkerstrafrecht und Internationaler Strafgerichtshof - kriminologische, straftheoretische und rechtspolitische Aspekte. Münster, LIT Verlag. At page 606.
197 See similarly 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 873 who deems any form of positive contribution from victims indispensable for the accomplishment of the Court’s most important function which according to him is the search for truth.
Victims are mentioned in the preamble of the Rome Statute198
However, it is significant that “doing justice for victims” was often mentioned as an objective at the Rome Conference.
, but there is no reference to a victim-related purpose of punishment.
199
In one of its decisions an ICC Chamber has stated that “the Statute grants victims an independent voice and role in the proceedings before the Court”, classifying this as an object and purpose of victim participation but not as a general object of the proceedings.
Furthermore, provisions on victim participation and reparation are also contained in the Statute and Rules.
200
Similarly in the victim information booklet it is said that by presenting their own views and concerns to the judges, victims were given a voice in the proceedings that was independent of the Prosecutor. This would help the judges to obtain a clear picture of what happened to them or how they suffered, which they might decide to take into account at certain stages in the proceedings thus eventually leading to an impact on the way proceedings were conducted and in the outcomes.
201
A victim-related objective has not been mentioned in decisions before the ICTY, only on the website is “rendering justice to victims” mentioned as part of the mission of the ICTY.
202
198 See Preamble, saying “Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”
However, the website does not form part of the official documents of the Tribunal.
199 See, e.g. UN Press Releases L/2881 and L/2883; see also Timm, B. (2001). The Legal Position of Victims in the Rule of Procedure and Evidence. International and National Prosecution of Crimes under International Law. H. Fischer, C. Kreß and S. R. Lüder. Berlin, Berlin Verlag: 289-307. At page 289. 200 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. 50, 51.
201 See Victim booklet at page 12.
Although victim participation has been incorporated into many national criminal law proceedings discussions on the purpose of punishment do not refer to the victim of the crime.203
Thus, we may say that the inclusion of provisions on victim participation in the Statute indicates that any possible victim-related purpose of punishment certainly goes beyond merely punishing on behalf of the victims.204
With regard to the question of whether the individual interests of victims can form part of a punishment purpose, it is first necessary to ascertain whether individual interests can be accommodated in international criminal law at all before examining the relevant legal materials. Whether international criminal law rather protects collective or also individual concerns is being discussed.205
It has been opined that international criminal law has the primary task of (directly) protecting international peace and security but at the same time protects the legal values of individuals.206
The Secretary- General of the UN in an inaugural meeting of the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court declared in his opening speech that the “overriding interest must be that of the victims, and of the international community as a whole.”207
203 See for instance for the German system Hörnle, T. (2006). "Die Rolle des Opfers in der Straftheorie und im materiellen Strafrecht." Juristische Zeitung 19 : 950-958. At page 951.
, thereby on the first view giving the victims interests the first place.
204 See also Heikkilä, M. (2004). International criminal tribunals and victims of crimes. Turku, Institute for Human Rights, Abo Akademi University. At page 68.
205 Werle, G. (2005). Principles of International Criminal Law. The Hague, TMC Asser Press. At page 28. 206 Triffterer, O. (1999). Preliminary Remarks. Commentary on the Rome Statute of the International
Criminal Court. Observers' Note, Article by Article. O. Triffterer. Baden-Baden, Nomos Verlagsgesellschaft: 17-50. At page 26.
There are several arguments for the predication that individual as well as collective interests are being protected. First it can be said that the restoration of the interests of individual victims is a necessary precondition for the “healing“ of a society as a whole.208
One may see from the Statute and Rules that the hardships, needs and the rights of victims of crimes are now on an equal footing to the international community’s interest or right on punishment.209
Others negate the inclusion of legally protected rights of individuals in general.
It has been stated that the crimes contained in the statute did not only protect collective but also individual interests. It could further be argued that individual persons are being accused before the ICC and that therefore on the other side also individual interests are being protected.
210 Thereto
it has been said that the individual is first of all „victim“ in his or her quality as member of the respective group.211
Pertaining to the aspect that the guilt of the perpetrator is being individualized it has been replied that this does not mean that there is also an individualization of victims. International law applied to the entirety of the world community and the aim of international criminal law was to restore the values of international community through punishing a crime against mankind not against an individual or rather only against an individual as part of a collective.212
208 Möller, C. (2003). Völkerstrafrecht und Internationaler Strafgerichtshof - kriminologische,
straftheoretische und rechtspolitische Aspekte. Münster, LIT Verlag. At page 604; Minow, M. (1998). Between Vengeance and Forgiveness. Boston, Beacon Press. At page 117.
Individualizing victims would set aside the predominantly collective character of the crime and would require a selection of
209 Möller, C. (2003). Völkerstrafrecht und Internationaler Strafgerichtshof - kriminologische, straftheoretische und rechtspolitische Aspekte. Münster, LIT Verlag. At page 601.
210 Lagodny, O. (2001). "Legitimation und Bedeutung des Internationalen Strafgerichtshofes." Zeitschrift für die gesamte Strafrechtswissenschaft 113(4): 800-826. At page 803; Safferling, C. J. M. (2003). "Das Opfer völkerrechtlicher Verbrechen." Zeitschrift für die gesamte Strafrechtswissenschaft 115: 352- 384. Pp 369 et seq.
211 Safferling, C. J. M. (2003). "Das Opfer völkerrechtlicher Verbrechen." Zeitschrift für die gesamte Strafrechtswissenschaft 115: 352-384. At page 371.
individual victims from the collective of victims being necessarily arbitrary.213 The crimes
contained in the Rome Statute always embodied a collective element. It was accordingly inappropriate to utilize international criminal procedure for the purpose of rehabilitating individual victims.214
Again others propose that there should be a distinction between the different international crimes in determining whether only collective or also individual interests are protected.
215
It is submitted that it is correct to view the objective goal of international criminal as the defense and restoration of collective interests.216
The Inter-American Court has stated that the fact that a right may take on a collective or general character intended to benefit the public as a whole does not mean that an
This does not mean that individual interests are not protected at all: The fate of individual persons shall by no means be negated or ignored. However, this does not alter the fact that before the ICC their fate will only be regarded within a larger context - the primary goal of the ICC’s procedures is to defend and restore collective interests. The protection or restoration of individual interests will often correspond with the defence or restoration of collective interests. However, it is conceivable that the enforcement of individual interests in the proceedings could indeed conflict with collective interests if the rights of other individuals are neglected leading to an overall undesirable result.
213 Ibid. At page 370.
214 Ibid. At page 370 claims that this is the case in spite of acknowledging that the definiton in Rule 85 RPE refers to invidual victims (natural persons).
215 Werle, G. (2005). Principles of International Criminal Law. The Hague, TMC Asser Press. At page 28. 216 This can be seen for example in the preamble where the interests named as protected by international law
paramountly are such of the international community. It is said that International Criminal Law generally protects “peace, security and the well-being of the world”, refering to the accepted basic, inherent values of the international community. The rights of individuals on the other hand are only mentioned: “Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity”. The crimes punished before the ICC also support this idea: Crimes against humanity and genocide for example are clearly connected to mass victimization or collective victimization, even if the victims of course, are natural persons. As for war crimes Art. 8 names modalities of criminal acts that seem possible to be addressed to individual victims as to a victim collective.
individual may not have a standing to assert that right.217 Furthermore the Statute and
Rules explicitly provide for the rights of individual victims.218
In practice the solution might be that personal interests will be considered for obtaining a superordinate interest but that maybe not
every individual interest can or will be considered.219
As a rule of thumb it can be said that it will always be necessary to weigh up whether considering individual interests also serves and does not conflict with collective interests. Consequently, it is clear, that individual interests will not be the primary focus of proceedings and that such interests may be considered within the overall context but cannot explicitly be part of a punishment purpose. The consideration of individual interests does thus most probably not reach beyond being a possible side-effect of collective interests.
As an example, efforts to the healing of single persons could be seen as useful in the greater context of preparing the grounds for reconciliation. It will probably be necessary to consider the merits of a trade-off between considering certain individual interests more intensely than others thereby neglecting other individual interests or whether it is more desirable and effective to consider as many individual interests as possible but in a less intense manner.
The next question must be whether “doing justice for victims“ will be a purpose of punishment in the sense that the ICC deems it necessary to pursue prosecutions explicitly for the victims and ultimately for the purpose of achieving reconciliation while also giving victims the chance to participate in the proceedings
217 See for example Bámaca Velásquez Case, Judgement of 25 November 2000, Ser. C., No. 70, at page 94 et seq. (concurring opinions of Judges Hérnan Salgado Pesantes and Sergio García Ramírez). 218 See for instance Rule 97 explicitly referring to individual reparations.
219 This thesis is being underlined by the fact that victims do have a right to participation, but not a right that is indeed enforceable: in fact, if an application to participation is rejected, there is no right to review this decisions, see thereto below pages 168 et seq.
As already shown it can be assumed that the ICC will not commit itself only to retributive ideas but will also aim to achieve reconciliation. For that purpose, the Court will therefore most probably see victim participation as a necessary constituent in the process.220
It remains to be seen whether the ICC will consider “doing justice for victims” as an own, independent purpose of punishment or rather as a component of other purposes. Technically, it appears that this is of little significance and what is most important is that “doing justice for victims” will form part of the purposes of punishment in the manner described above. Of course, it may be desirable for victims that there be a purpose of punishment which would make explicit reference to their concerns. However, only if the extent of the purpose were defined and its achievement ensured would such an pronouncement be persuasive or desirable.
10. Conclusion
In conclusion, it can be said that the “classic“ purposes of punishment, retribution and deterrence, will also play their part and be important purposes of punishment before the ICC. Meanwhile other “classic“ purposes of punishment known from national law, that is stigmatization, incapacitation and rehabilitation of the perpetrator will remain as secondary aims.
It seems that purposes of punishment such as norm stabilization, reconciliation and maybe to a certain extent also truth finding and doing justice for victims will become more important in comparison to previous International Criminal Tribunals. 221
220 See pages 51 et seq., see also Stehle, S. (2006). Das Strafverfahren als immaterielle Wiedergutmachung. Frankfurt am Main. At page 40 who deems victim participation a indispensable component for
achieving reconciliation.
How,
The weight given to the norms on victim participation and reparation before the ICC, too, support this contention; compare also Morris, M. (2000). Complementarity and its discontents: states, victims, and the International Criminal Court. International Crimes, Peace, and Human Rights: The Role of the International Court. D. Shelton. Ardsley, New York, Transnational Publishers: 177-201. Pp 180 et seq. 221 As for a similar evaluation see Bottigliero, I. (2004). Redress for Victims of Crimes Under International
Law. Leiden/Boston, Martinus Nijhoff Publishers. At page 37 who describes the the ICC Statute as “based on a compromise approach bringing tighter focus on victims of genocide, crimes against humanity and war crimes, while preserving the essential retributive function of international criminal justice”.
ultimately, the individual purposes will be weighted in comparison to each other remains to be seen like the question as to how potential conflicts between the individual purposes222