Rule 85 does not differentiate between collective and individual victims unlike the Victims Declaration, where collective victims are expressly listed as category of victims473 or the 2005 Victims Principles474
In the context of the ICC earlier drafts at the Preparatory Commissions had expressly described victims as “persons who, individually or collectively, have suffered harm”. Some delegations expressed a desire to clarify the term “collectively”. However, no
which does likewise.
Democratic Republic of the Congo in Prosecutor v. Thomas Lubanga Dyilo, Decision on the Applications for participation in the proceedings submitted by VPRS 1 to VPRS 6 in the Case the Prosecutor v. Thomas Lubanga Dyilo of 29 June 2006, Case No. ICC-01/04-01/06-172-tEN, at page 8. 470 See PTC I, Situation in the Democratic Republic of the Congo in Prosecutor vs. Thomas Lubanga
Dyilo, Décision sur les demandes de participation à la procedure a/0001/06, a/0002/06 et a/0003/06 dans
le cadre de l’affaire le Procureur contre Thomas Lubanga Dyilo et de l`enquête en République démocratique du Congo du 31 juillet 2006, Case No. ICC-01/04-177 01-08-2006, at page 4.
471 See PTC I, Situation in the Democratic Republic of the Congo in Prosecutor v. Thomas Lubanga Dyilo, Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and
a/0003/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of the Congo of 28 July 2006, Case No. ICC-01/04-01/06-228-tEN, at page 3. 472 See victim booklet at page 36.
473 Para. 1 reads :”"Victims" means persons who, individually or collectively, have suffered harm, including …”
consensus could be reached on the issue, therefore the term was simply not included into the text.475
The wording of Rule 85 now speaks of natural persons, using the plural. But a plural of natural persons is not necessarily synonymous with a “collectivity”.
Another indication comes from the context: Rule 90(2) provides for the possibility that the Chamber could request the “victims or particular groups of victims” who are applying to participate in the proceedings to choose a common legal representative. Furthermore, the Court can award reparations on a collective basis were it considers it appropriate.476 It
could therefore be argued that the idea of collectivity is inherent in the Rules themselves477 but it could also be said that the rules only provide for particular solutions
for participation and reparation respectively and that they are not of general application.478 As to the question of whether the terms “group” and “collectivity” are used
in a synonymously, it could be argued that they are different to the extent that while a collective may be defined as “groups or groupings of individuals linked by special bonds, considerations, factors or circumstances”479 groups can be but do not necessarily have to share such characteristics. In general, however, both terms are used in the same way.480
475 See Fernández de Gurmendi, S. A. (2001). Definition of Victims and General Principles. The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence. R. S. Lee. Ardsley, New York, Transnational Publishers Inc.: 427-434. At page 431.
476 See Rule 97(1) RPE.
477 Similarly 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. Pp 303 et seq.
478 Similarly Heikkilä, M. (2004). International criminal tribunals and victims of crimes. Turku, Institute for Human Rights, Abo Akademi University. At page 18.
479 See Bassiouni, M. C. (1988). International Protection of Victims. Toulouse, Edition Eres. At page 183 who however uses these characteristics to make a distinction between individual and collective victims and uses “group” and “collectivity” in a synonymous way.
480 See for instance Rombouts, H. and S. Vandeginste (2000-2003). "Reparation for Victims of Gross and Systematic Human Rights Violations: The Notion of Victim." Third World Legal Studies: 89-114. at page 99 stating that a group of individual persons is more than the sum of individuals and groups have their own characteristics that are not identical with the characteristics of the individuals composing the group.
Under the ECHR, groups of individuals can claim to be the victim of a violation of the Convention.481 Under the Inter-American Convention, “[a]ny person or group of persons
may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party.”482
These findings and the fact that the ICC so far seems to follow the guidance of the Victim Declaration indicate that victims will also be allowed to participate in proceedings “collectively” or as a “group”.
Nonetheless, up to now, the ICC has only provided participation forms for individuals and institutions and not for groups of individuals or collectives. This could be interpreted as meaning that even if victims participate in a group they still can only do so if every single person has submitted an individual application.483 So far, the ICC does not seem to have
considered the possibility that very few persons apply for a group of persons of whom the ICC does not have exact notice. This could also be problematic as regards the rights of the accused.484
In opposition to the argument that individuals do fall under the definition of Rule 85 as collectives, it has also been argued that only collectives are covered by the definition: As victims in international criminal law were not individuals but individuals bound by a collective characteristic, the definition should perceive them as such. Participation would then, for instance, only be allowed by common legal representation. The participation of Still, it should not be forgotten, that the participation of a group of victims automatically may have a symbolic effect on a group or collectivity of persons of whom not all are participating. This may even be necessary and intended in order to achieve the ICC’s goals.
481 Arts. 34 and 41 European Convention. 482 Art. 44.
483 See similarly Boyle, D. (2006). "The Rights of Victims." Journal of International Criminal Justice 4(1): 307-313. At page 310 who states that individual participation is the rule before the ICC; victim participation will occur primarily through various forms of joint legal representation.
484 Similarly as anonymous participation this could violate the right of the accused to know his accusers, thereto see below Chapter participation in the Trial.
individuals would risk reducing the international criminal trial to a simple criminal trial.
485
This reasoning clearly contradicts the practice before the ICC which allows for the participation of individuals as can be seen, for instance, by the nature of participation forms. It may be that the participation of groups will become standard for practical reasons in the long term. Still it should also be possible to let individuals participate. It is rather a question of what better serves the goals of the proceedings, for instance with regard to collective reconciliation. Indeed it seems that the ICC has thus far tended to let many victims participate which may ultimately lead to group participation. Still, if for instance only one person applies, it should be possible to let this person be defined as a “victim”.
XI. Conclusion
In conclusion, it has been shown that the ICC has tended to give a wide interpretation of the definition of victim which seems to be in line with the Victim Declaration. Such an approach on the one hand serves the interests of victims as it facilitates their participation in the proceedings or their receipt of reparations. However, it should not be forgotten that such wide interpretation could also give rise to high expectations that must be managed in a responsible way. The author does, however, not advise to restrict the definition. Instead it is submitted that the necessary restrictions that arise from the admittance of a wide group of victims486
D. Conclusion
will have to be disclosed and explored.
In conclusion we may summarize that victim participation before the ICC will take part with the background of “classic” purposes of punishment as retribution and deterrence
485 Safferling, C. J. M. (2003). "Das Opfer völkerrechtlicher Verbrechen." Zeitschrift für die gesamte Strafrechtswissenschaft 115: 352-384. At page 382.
486 The ICC must ensure that it is not overwhelmed, and that the efficiency and integrity of its proceedings must not be hampered by victim participation, which can for instnace be secured by a flexible
mechanism for victim participation in the Rules that may lead to a restriction on the number of applications admitted.
playing an important part but also with other purposes of punishment such as norm stabilization, reconciliation and maybe to a certain extent also truth finding and doing justice for victims becoming more important. It has been observed, that in its punishment purposes and through victims’ participatory rights, the ICC envisages consideration of victims and their interests but only in a manner ancillary to its primary task which consists of the protection and assertion of collective interests.
The victim definition chosen by the ICC on the first view gives room to a wide interpretation.
These findings will have to be taken into account in interpreting the ICC’s provisions on participation.