Amnesty International - Report - IOR 40/06/99 April 1999 United Nations (UN) The International Criminal Court: Ensuring an Effective Role for Victims - Memorandum for the Paris Seminar, April 1999

         INTRODUCTION

         I. INITIATING AN INVESTIGATION OR PROSECUTION

         II. PARTICIPATION IN THE PROCEEDINGS

         III. PROTECTION OF VICTIMS AND WITNESSES

         IV. RIGHT TO REPARATIONS (COMPENSATION, RESTITUTION AND REHABILITATION)

INTRODUCTION

On 17 July 1998, a diplomatic conference in Rome adopted the Rome Statute of the International Criminal Court (Rome Statute or Statute).See footnote 1 ¹ This success came a century and a quarter after it was first proposed by Gustave Moynier of Switzerland, one of the founders of the International Society of the Red Cross,See footnote 2 ² and half a century after the French government representative on the United Nations (UN) Committee on the Progressive Development of International Law and its Codification, Henri Donnedieu de Vabres, asked the UN to establish a permanent international criminal court.See footnote 3 ³ The Rome Statute will enter into force after 60 states ratify the Statute. As of 23 April 1999, 82 states had taken the first step towards ratification by signing the Statute and two, Senegal and Trinidad and Tobago, have ratified it. Other states, including Belgium, Italy and France, as well as the 12 members of the Caribbean Community (CARICOM) which have not yet ratified the Rome Statute (Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, St. Kitts and Nevis, St. Lucia and St. Vincent and the Grenadines), are expected to ratify it in the near future. Pending the entry of the Rome Statute into force, a Preparatory Commission has been meeting at the UN Headquarters in New York to prepare drafts of documents, including the Rules of Procedure and Evidence, for adoption by the Assembly of States Parties after the Statute enters into force.

     The Paris seminar. At the first session of the Preparatory Commission (16 to 26 February 1999), it was agreed that matters concerning victims should be addressed comprehensively at the second session (26 July to 13 August 1999). The French government decided to organize a seminar, the International Seminar on Victim's Access to the International Criminal Court, in Paris from 26 to 29 April 1999, involving individual experts as participants, as well as observers from governments, intergovernmental organizations and non-governmental organizations, including Amnesty International. The seminar has three objectives:

     The purpose of this memorandum. This memorandum is being provided to the participants and observers at the Paris seminar and is divided into four parts in accordance with the four workshop topics in the seminar. Amnesty International intends to take the discussions and recommendations of the seminar into account in making recommendations on the role of victims in the International Criminal Court (Court) to the Preparatory Commission at its second session in New York, from 26 July to 13 August 1999. The memorandum reviews the provisions in the Statute particularly relevant to victims and makes specific recommendations to guide the Preparatory Commission in the preparation of drafts of documents, such as the Rules of Procedure and Evidence, for adoption by the Assembly of States Parties. It also indicates certain fundamental principles which should guide the Court when establishing “principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” (Article 75 (1)) and in its practice. These recommendations are indicated below in bold type at the end of each section. Amnesty International intends to develop these recommendations and principles in greater detail in papers to be submitted to the Assembly of States Parties and to the various organs of the Court, when they are established.
    This paper takes into account a variety of proposals by governments and non-governmental organizations, including: the draft Rules of Procedure and Evidence prepared by Australia for the Preparatory Commission (Draft Rules),See footnote 4 ⁴ which are based in large part on the Rules of Procedure and Evidence of the International Criminal Tribunals for the former Yugoslavia and Rwanda (Yugoslavia and Rwanda Rules),See footnote 5 ⁵ the proposals submitted by states during the Diplomatic Conference and the first session of the Preparatory Commission, and the recommendations by non-governmental organizations concerning the role of victims.See footnote 6 ⁶

     Relevant international standards. These fundamental principles are based upon widely recognized international standards, including: the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN Victims Declaration),See footnote 7 ⁷ the UN Manual on the use and application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN Victims Declaration Manual),See footnote 8 ⁸ the UN 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,See footnote 9 ⁹ the UN Guidelines on the Role of Prosecutors,See footnote 10 ¹⁰ the UN Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law (Van Boven Principles),See footnote 11 ¹¹ the Report by Mr. Louis Joinet on the question of the impunity of perpetrators of human rights violations (civil and political rights) (Joinet Report), to which are annexed the Set of Principles for the Protection and Promotion of Human Rights through Action to End Impunity (Joinet Principles)See footnote 12 ¹² and the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.See footnote 13 ¹³ The drafters of the Rome Statute intended that the UN Victims Declaration and the Van Boven Principles have a special place in the interpretation of the Statute.See footnote 14 ¹⁴

     Definition of victim. One of the most important matters for the Rules of Procedure and Evidence and the Court with respect to victims will be to ensure that the definition of victim is as broad as that recognized in international standards. Principle 1 of the UN Victims Declaration defines victims as

    “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 laws operative within Member States, including those laws proscribing criminal abuse of power”.

Criminal law operative within UN Member States includes, of course, international criminal law which prohibits conduct amounting to crimes within the jurisdiction of the Court. In any event, Principle 18 of the UN Victims Declaration makes clear that the term “substantial impairment of their fundamental rights” is very broad and includes substantial impairment “through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights”. Principle 2 of the UN Victims Declaration makes clear that “[a] person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim.” This principle further clarifies that the concept of 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”.

    The drafters of the Rome Statute intended that the definition of a victim should be consistent with international standards and include the family of the victim.See footnote 15 ¹⁵ Draft Rule 4 (Definitions) does not contain any definitions and an explanatory note simply states: “Consideration will have to be given to whether an extensive list of definitions needs to be included in the Rules.”See footnote 16 ¹⁶
    
     The central place of the victim in the Statute. The Preamble indicates that ensuring justice for victims lies at the heart of the Rome Statute, by recalling “that during this century millions of children, women and men have been the victims of unimaginable atrocities that deeply shock the conscience of humanity”. Numerous provisions throughout the Rome Statute guarantee an important role for victims and their families at every stage of the proceedings, from the initiation of investigations to post-conviction proceedings, and recognize the right of victims and their families to reparations, including compensation, restitution and rehabilitation. In doing so, the Rome Statute echoes the original proposal of Gustave Moynier, which required persons convicted of breaches of the Geneva Convention of 1864 concerning the treatment of wounded, to pay compensation to victims and, if the convicted persons could not do so, their governments to do so.

The Rules of Procedure and Evidence should include a definition of victim which is as comprehensive as the definitions in Principles 1 and 2 of the UN Victims Declaration.

I. INITIATING AN INVESTIGATION OR PROSECUTION

A. General principles

Some of the most important provisions in the Rome Statute concerning the role of victims are those permitting the victims to submit information to the Prosecutor so that the Prosecutor can initiate investigations on his or her own initiative (proprio motu) (Article 15) and to submit information to the Prosecutor to counter challenges by states, suspects or accused to the Court's jurisdiction or the admissibility of a case (Articles 18 and 19). To a large extent, there is no need to implement these provisions in the Rules of Procedure and Evidence, as the Statute is sufficiently clear for them to be implemented by the Prosecutor or the Pre-Trial Chamber with considerable flexibility to address a wide variety of circumstances. To the extent that the Rules of Procedure and Evidence implement these provisions, it is essential that they ensure that these provisions facilitate the role of victims, without detriment to the rights of suspects or accused or to the effectiveness of the Court, rather than restrict that role.

    As explained below, in addition to the express role for victims provided in the Statute with respect to investigations by the Prosecutor on his or her own initiative, victims have a right to play a role at the preliminary stages of proceedings when the Security Council refers a situation to the Prosecutor under Article 13 (b) or decides to request the Court pursuant to Article 16 to defer an investigation and when a state party refers a situation to the Prosecutor under Article 14. They also have a right to be informed of their rights to play a role during the investigation and of the progress of the investigation. Similarly, victims have a right to be informed of their rights with respect to a decision after completion of the investigation whether to prosecute and of their role during a prosecution.

B. Preliminary examination and investigation

1. Decision by the Prosecutor on whether to investigate, based on information provided by victims

Article 15 (1) provides that “[t]he Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” Such information may come from any source, including victims and their families or non-governmental organizations. This provision is very broad and it is essential that the Rules of Procedure and Evidence do not attempt to restrict the powers of the Prosecutor under this provision.See footnote 17 ¹⁷ This provision does not go as far as international standards, which permit victims and non-governmental organizations to institute criminal proceedings in appropriate circumstances when the prosecutor fails to do so.See footnote 18 ¹⁸

     Analysis by the Prosecutor of the seriousness of the information received. Article 15 (2) expressly assigns the responsibility of analysing the seriousness of the information received concerning crimes to the Prosecutor. The Diplomatic Conference rejected an effort to assign this responsibility to the Assembly of States Parties. Had that proposal been adopted, it would have critically undermined the independence and functions of the Prosecutor, as guaranteed by Article 42 (1) of the Statute and the UN Guidelines on the Role of Prosecutors. Therefore, it is essential that the functions of receiving, recording, acknowledging, analysing and responding to information be performed solely by the Prosecutor and his or her staff, not by any other organ of the Court or any outside body.

    The best method for establishing the internal procedures to deal with such information would be to leave this task to the Prosecutor through internal guidelines adopted by the Office of the Prosecutor after widespread consultation, rather than to rigid Rules of Procedure and Evidence adopted by the Assembly of States Parties before the Court has heard any cases and which may be amended only by a two-thirds majority of the Assembly. This approach would not only preserve the Prosecutor's independence, but also give the Prosecutor sufficient flexibility to modify procedures as the office evolves. It will be difficult before the Court has started to hear cases to anticipate what resources will be needed to handle such information or what the best methods will be to ensure that it is handled effectively.See footnote 19 ¹⁹

    Thus, the Prosecutor will have to develop over the course of time in the light of experience effective ways to acknowledge information received by victims, their families and their representatives. The Prosecutor will also need to develop effective means to keep victims, their families and their representatives informed of steps taken to investigate the crimes based on the information received, as Principle 6 (a) of the UN Victims Declaration provides that victims should be informed of the “timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved”. However, the Prosecutor will have to balance, case by case, the need of victims and their families for information with other considerations, such as the necessity for confidentiality of investigations, especially where sealed indictments are required in order to avoid the accused evading arrest. It should be left largely to the Prosecutor how best to determine this sensitive question in each case.

     Receipt of information other than at The Hague. For the purpose of such an analysis, Article 15 (2) provides that the Prosecutor “may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court”. Although Article 3 (1) provides that the seat of the Court is to be established at The Hague in the Netherlands, Article 3 (3) provides that “[t]he Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute”. Therefore, the seat of the Court is not limited to The Hague, when the Court considers it desirable to sit elsewhere, and it can decide to sit elsewhere in order to carry out the functions of one of its organs, such as permitting the Prosecutor to receive written or oral testimony from reliable sources that he or she deems appropriate. In addition, Article 4 (2) states that “[t]he Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State”.

    It would be helpful if the Rules of Procedure and Evidence clarified that the Prosecutor, in the exercise of his or her functions under Article 15 (2), may receive written or oral testimony from any reliable source he or she deems appropriate concerning crimes within the jurisdiction of the Court at locations other than The Hague and that the Prosecutor may receive oral testimony at The Hague by audio, video or other links from other locations.See footnote 20 ²⁰ Given that the Prosecutor will be responsible for investigating crimes all over the world and that it will be difficult, if not impossible, for victims, their families, witnesses, national non-governmental organizations and other reliable sources to come to The Hague, it is essential for the Prosecutor to have a great deal of flexibility to receive information which could be crucial for the investigation.

     Requests for authorization to investigate. Article 15 (3) states that if the Prosecutor decides that “there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre- Trial Chamber a request for authorization of an investigation, together with any supporting material collected”. The same provision expressly states that “[v]ictims may make representations to the Pre- Trial Chamber, in accordance with the Rules of Procedure and Evidence”. A person can exercise his or her rights effectively only if he or she has notice of those rights and how to exercise them. Principle 13 (d) of the UN Guidelines on the Role of Prosecutors requires prosecutors to “ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”. Article 15 (4) provides that the Pre-Trial Chamber shall authorize the commencement of the investigation if, “upon examination of the request and the supporting material”, it “considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court”. It would be helpful for the Rules of Procedure and Evidence to clarify that the Pre-Trial Chamber must examine the representations of victims in determining whether there is a reasonable basis to proceed, not just on the basis of the Prosecutor's request and supporting material collected, or to treat such representations as part of the supporting material collected. These representations would include those initially made to the Prosecutor and - if it would not endanger the security of the investigation - representations to the Pre-Trial Chamber. The Draft Rules do not require notice to victims of their rights or require the Pre-Trial Chamber to examine representations of victims.See footnote 21 ²¹

     Subsequent requests for authorization to investigate. If the Pre-Trial Chamber refuses to authorize an investigation, Article 15 (5) provides that this refusal does “not preclude the presentation of a subsequent request by the Prosecutor based upon new facts or evidence regarding the same situation”. Since the Prosecutor is under the same obligation to inform victims of their rights to make representations at this stage, the Rules of Procedure and Evidence should clarify that the Prosecutor must provide such notice and that victims have the same rights to make representations as with the initial request. The Draft Rules are silent on these points.See footnote 22 ²²

     Notice to sources of the decision not to investigate. Article 15 (6) provides that if the Prosecutor decides after a preliminary examination proprio moto pursuant to Articles 15 (1) and (2) that “the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information”. The Prosecutor should provide such notice promptly by an effective method which does not endanger the safety of those who provided the information or investigations, should ensure that the reasons for the decision are made clear in a manner which is sensitive to the needs of victims and should inform the sources that they can provide further information to the Prosecutor pursuant to Article 15 (6), which permits the Prosecutor to consider “further information submitted to him or her regarding the same situation in the light of new facts or evidence”. However, any Rules of Procedure and Evidence concerning such notice should leave the Prosecutor some flexibility within these limits, for example, by permitting the Prosecutor to inform counsel for those persons or others acting on their behalf. To the extent that the information was provided to the Prosecutor by victims, such notice would help to satisfy the needs of victims to be informed of “the scope, timing and progress of the proceedings and of the disposition of their cases”.See footnote 23 ²³ Draft Rules 56, 57 and 58 do not address the obligation of the Prosecutor under the Statute to provide notice to sources of information of a decision not to initiate an investigation.See footnote 24 ²⁴

Although Articles 13 (a) and 14 (providing for referrals by states parties of situations to the Prosecutor) and Article 13 (b) (referrals by the Security Council) do not expressly provide that victims should be informed of the action taken by the Prosecutor with respect to such referrals, which in many cases would be public referrals, the Rules of Procedure and Evidence could clarify that the Prosecutor may provide notice to victims of the decision taken by the Prosecutor in a manner which does not endanger investigations of particular cases and is not unduly burdensome, such as a press release or notice to counsel for victims. This would not only keep victims informed of the progress of proceedings, as called for by Principle 6 (a) of the UN Victims Declaration, but also permit victims and others to provide information relevant to a decision to investigate or to reconsider a decision not to do so. The Draft Rules require that the Prosecutor inform the Pre-Trial Chamber of a decision not to investigate after conducting a preliminary examination pursuant to a state or Security Council referral, but they do not require the Prosecutor to inform victims, their families or their representatives.See footnote 25 ²⁵

The Rules of Procedure and Evidence should clarify that the Prosecutor should provide notice to victims of the decision taken by the Prosecutor with respect to state or Security Council referrals in a manner which does not endanger investigation of particular cases and is not unduly burdensome.

3. Resolutions by the Security Council requesting a delay in the investigation

Although Article 16 does not expressly provide that victims should be informed of a resolution by the Security Council adopted under Chapter VII of the UN Charter requesting the Court that “[n]o investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months”, or of a subsequent resolution renewing that original request, the Rules of Procedure and Evidence should require that the Court inform victims of such a request and any renewal of that request. The Rules of Procedure and Evidence should also provide a judicial mechanism for victims and others to object to the Security Council's request or a renewal of that request. This would address the need to allow “the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected”.See footnote 26 ²⁶ It would also ensure that the Security Council, which may not have considered the views of victims, or done so adequately, would have an opportunity to reconsider a decision which would delay or obstruct justice.

    However, to provide the greatest assistance to the Security Council in considering whether to take a decision to prevent the Prosecutor from investigating genocide, crimes against humanity or war crimes, the Court should develop a format for hearing the victims, through oral and written statements, before the Security Council takes such a step. Such a mechanism would not be an investigation, but it would, no doubt, be welcomed by the Security Council, which would not otherwise have such an opportunity for a judicially supervised consideration of the concerns of victims. The Draft Rules do not provide for the views and concerns of victims to be presented and considered at this stage of proceedings.See footnote 27 ²⁷ If the Rules of Procedure and Evidence fail to provide for a judicially supervised hearing at which the views and concerns of victims before or after a Security Council request or renewed request can be heard, then, of course, the Pre-Trial Chamber or the Trial Chamber would have the authority under Article 68 (3) to do so since a Security Council request for a delay would necessarily be a stage of the proceedings. The Court should invite the Security Council to inform it of any plans to invoke Article 16 so that it can promptly facilitate the presentation of the views and concerns of victims and, thus, be of the greatest assistance to the Security Council.

The Rules of Procedure and Evidence, or the Pre-Trial Chamber or the Trial Chamber on either's own initiative, should provide a mechanism for victims and others to present their views before the Security Council requests a delay an investigation or prosecution or a renewal of such a request. That mechanism should permit victims to be heard through oral or written representations so that the Security Council can reach a fully informed decision.

4. Role of victims in challenges to admissibility and to jurisdiction

Preliminary rulings regarding admissibility when the Prosecutor is acting pursuant to a state referral or proprio moto. Victims, their families and their representatives should have notice of all proceedings concerning preliminary rulings regarding admissibility pursuant to Article 18 and an opportunity to present their views at each stage of these proceedings and to have them considered. Article 18 governs challenges by states to admissibility when a situation has been referred to the Court by a state party and the Prosecutor has determined that there would be a reasonable basis to commence an investigation or when the Prosecutor initiates an investigation proprio moto.See footnote 28 ²⁸ Such notice should be provided, not only by the Prosecutor, who has the duty under Guideline 13 (d) of the UN Guidelines on the Role of Prosecutors to inform victims of their rights, but by the Pre-Trial Chamber. Such notice should be provided in a manner calculated to reach the largest number of victims, such as by a press release, or through their representatives, apart from exceptional circumstances and then only to the extent that such notice would endanger the investigation or individuals. The Prosecutor and the Pre-Trial Chamber will find the representations by victims on the question of admissibility invaluable as a supplement to the information gathered by investigators in the Office of the Prosecutor concerning the state's willingness or ability genuinely to investigate or prosecute. The Prosecutor's resources will usually be more limited than those of the state concerned and he or she often will not have the same access to information in each state as victims, their families and their representatives.

    Thus, the Rules of Procedure and Evidence should require that victims receive notice of the following stages of the proceedings, at a minimum, and of the opportunity to make written or oral representations at each stage, to the extent authorized by the Pre-Trial Chamber, pursuant to Article 68 (3):

    * Notification to all states parties and states which would normally be expected to exercise jurisdiction, unless such notice to states is on a confidential basis and notice to victims would endanger the investigation (Article 18 (1)).

    * An application by the Prosecutor to authorize the investigation despite a state's request for a deferral and the Pre-Trial Chamber's decision on the matter (Article 18 (2)).

    * An appeal by the Prosecutor against a ruling by the Pre-Trial Chamber on admissibility to the Appeals Chamber (Article 18 (4)).

    In addition, the Prosecutor should seek the views of victims, their families and their representatives with respect to any review of a deferral, pursuant to Article 18 (3), with respect to information provided by the state concerned in response to a request for periodic reports on the progress of its investigations and any subsequent prosecutions, pursuant to Article 18 (5), with respect to the need at any time to seek authority from the Pre-Trial Chamber pursuant to Article 18 (6) to pursue necessary investigative steps where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available. However, decisions on the nature and extent of contacts with victims concerning these matters probably should be left to the discretion of the Prosecutor, under guidelines developed by the Office of the Prosecutor after widespread consultation, rather than governed by the Rules of Procedure and Evidence.

     Challenges to the jurisdiction of the Court or to the admissibility of a case. Victims, their families and their representatives should have notice of all proceedings concerning challenges to the jurisdiction of the Court or the admissibility of a case pursuant to Article 19. They should also have and an opportunity to present their views at each stage of these proceedings and to have them considered. Article 19 provides for challenges to the admissibility of a case on the grounds referred to in Article 17 (concerning complementarity) by an accused, an investigating or prosecuting state, the state on whose territory the crime occurred or the state of the accused's nationality.See footnote 29 ²⁹

    As with Article 18, such notice should be provided, not only by the Prosecutor, but by the Pre-Trial Chamber. Such notice should be provided in the same manner and under the same conditions. For the same reasons, the input from victims will be invaluable to the Prosecutor and the Pre-Trial Chamber on the question of admissibility, and they will be able to contribute information relevant to some aspects of the question of jurisdiction as well. Moreover, determinations of challenges to admissibility and to jurisdiction are among the most important stages of the proceedings and it is essential for victims to be aware of these challenges and to be able to respond to them.

    * An application by Prosecutor for ruling on admissibility or jurisdiction (Article 19 (3)). The Statute expressly permits victims to “submit observations to the Court” (Article 19 (3)), but fails to require notice to victims.

    * A state challenge to admissibility or to jurisdiction prior to the trial, at the commencement of the trial or at a later stage (Article 19 (4)).

    * A suspension of an investigation pursuant to a state challenge and the time limit for submissions to the Court for it to consider in making a determination on admissibility (Article 19 (7)).

    * A decision by the Pre-Trial Chamber or Trial Chamber that a case is admissible and a request by the Prosecutor for a review of that decision (Article 19 (10)).

     Resolutions by the Security Council seeking a delay in a prosecution. See discussion above in Part I.B.3 of resolutions of the Security Council seeking a delay in an investigation or prosecution.

The Rules of Procedure and Evidence should provide for notice to victims, their families and their representatives concerning challenges to admissibility and to jurisdiction and their opportunities to make oral or written representations on these issues, to the extent permitted by the Statute and the Court.

C. Decision by the Prosecutor after an investigation not to prosecute

If the Prosecutor decides after an investigation not to prosecute, Article 53 expressly requires the Prosecutor to inform the Pre-Trial Chamber of this decision, and the state making the referral or the Security Council, if it referred the situation to the Prosecutor. That article provides that the Prosecutor must give such notice when he or she decides not to prosecute for any one of the following three reasons: (a) the absence of a sufficient factual basis to seek a warrant or summons, (b) the case is inadmissible under Article 17 or (c) “[a] prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of the victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime”. Although the Statute does not expressly require that the Prosecutor provide such notice to victims in the case of referrals by states or the Security Council, or to those who have provided information to the Prosecutor pursuant to Article 15, the Rules of Procedure and Evidence should require the Prosecutor to do so in a manner which is not unduly burdensome. In any event, even if the Rules of Procedure and Evidence do not require the Prosecutor to provide such notice, he or she should do so.

II. PARTICIPATION IN THE PROCEEDINGS

“The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: . . . (a) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused. . .” UN Victims Declaration, Principle 6 (a)

A. General principles

    “Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.”

     The primary role of the Court in deciding when victims' views and concerns can be considered. Article 68 (3) requires the Court, not the Rules of Procedure and Evidence, to determine at which stages of the proceedings it is appropriate for the views and concerns of victims related to their personal interests to be presented and considered. This provision also makes clear that the Court - either in its Regulations or in a particular case - must determine the manner in which such views are to be presented and considered, subject to the fundamental principle that the manner of doing so must not be “prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”. Article 68 (3) also provides that “[s]uch views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.” The Rules of Procedure and Evidence should leave the Court sufficient flexibility to regulate the presentation of the views and concerns of victims through their representatives in the manner most suited to the particular case. The manner in which these views may be most effectively presented in a way which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial will vary, depending on such matters as the complexity of the issues in the case, the number of victims and the number of accused. It would be better for the Rules of Procedure and Evidence to leave determination of these matters to the Court than to try to anticipate in the Rules all the variations which may occur. Draft Rule 92 (Presentation of the views of victims) has not yet been written, but a note states that “[t]he Rules need to elaborate upon article 68, paragraph 3, particularly in relation to the involvement of the legal representatives of victims.”See footnote 31 ³¹

     The responsibilities of the Pre-Trial Chamber and the Prosecutor. The basic principle expressed in Article 64 (2), that “[t]he Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”, applies with equal force during the pre-trial phase to the Pre-Trial Chamber. During the course of an investigation or a prosecution, the Prosecutor must “[t]ake appropriate measures” to ensure that the investigation or prosecution is effective, and, “in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender . . . , and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children” (Article 54 (1) (b)). Such measures should be taken in close cooperation or consultation with the Victims and Witnesses Unit. At the same time, the Prosecutor must “[f]ully respect the rights of persons arising under this Statute” (Article 54 (1) (c)).

The Court should determine the stages of the proceedings it is appropriate for the views and concerns of the victims to be presented and considered. The Rules of Procedure and Evidence should leave the Court with sufficient flexibility to regulate the presentation and consideration of the views and concerns of victims through their representatives in a manner most suited to a particular case.

B. Initial proceedings before the Court

Although there will generally be no need to notify a victim, family of a victim or their representative before an arrest or for the victim to be present at an arrest (apart from assisting in an identification of the accused to facilitate the arrest), victims, their families and their representatives should be notified of the initial proceedings before the Court and their right to participate in these and later stages. Once the victims have been notified of the initial proceedings and have obtained counsel or other representatives, notice to victims at later stages will be simplified. Victims, their families and their representatives should be informed of the following initial proceedings, at a minimum, and of their opportunities to make oral or written submissions, as determined appropriate by the Court:

    * The initial hearing by the Pre-Trial Chamber pursuant to Article 60 (1) upon the surrender of the person arrested or voluntary appearance of a person summoned.

    * The application for interim release pursuant to Article 60 (3) and periodic reviews by the Pre-Trial Chamber of the release or detention of the person arrested or summoned.

    * Conferences, hearings and motions throughout the proceedings.

    * The hearing on confirmation of the charges pursuant to Article 61 (1), which fails to mention the presence of victims at the hearing, and subsequent hearings concerning amendment of or withdrawal of the charges pursuant to Article 61 (9).

Victims, their families and their representatives should be informed of the initial proceedings and of their opportunities to make oral or written submissions, as determined appropriate by the Court.

C. The trial, sentencing and award of reparations

The Rules of Procedure and Evidence should facilitate the ability of victims to present their views and concerns during the trial, at time the sentence is determined and at the stage when the an award of reparations is made. However, it should be largely up to the Trial Chamber, in the light of experience, to determine the scope of participation by victims and how they can best contribute to the determination of guilt or innocence, the appropriate sentence and the amount and manner of reparations.

     National models of participation by victims in criminal proceedings. National courts have been able to develop effective ways to permit representatives of victims to present their views and concerns in criminal cases with large numbers of victims, even when many of the individual victims had separate legal counsel. It may well prove that the best approach is to permit victims to participate at the trial and sentencing in a manner akin to that of parties civiles, able to present evidence, including witnesses, and to question witnesses called by the other parties in the case, provided that such participation does not interfere with an effective prosecution, lead to lengthy proceedings or otherwise undermine the right to a fair trial. The Trial Chamber will have to ensure that if counsel for victims are permitted to question witnesses for the prosecution or the accused, that such questioning is not repetitive. It will also have to ensure that when there are more than one victim, that counsel for victims coordinate their efforts as much as possible.

    Participation of victims as parties civiles has occurred in trials of persons accused of war crimes or crimes against humanity, with some success, but the number of such cases in recent years are limited. For example, in the Priebke trial of an SS officer accused of murdering more than 300 hostages in Italy during the Second World War, the Italian court developed with counsel for the victims a system in which one of the legal counsel for each group of victims with similar interests would represent that group and one lawyer would be able to act on behalf of all of the victims as a whole.See footnote 32 ³² Similarly, in complex civil class actions in countries such as the United States where there are millions of plaintiffs, courts have been able to develop systems of joint representation, such as class actions, by lawyers of groups of similarly situated victims.

    It is essential not to restrict at an this early stage in the Court's development the ability of the Court to experiment with various forms of participation to determine which best ensure the achievement of justice. A too restrictive approach to victim participation in the Rules of Procedure and Evidence could be difficult to undo, whereas it would be possible for the Trial Chamber to prevent any abuses if the Rules left the extent of participation by victims to be decided by the Court. In developing the approach to victim participation, the main principle is set forth in Article 64 (2), that “[t]he Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”.

The same considerations concerning participation during the trial, sentencing and award of reparations apply to post-trial proceedings, including the appeal of a conviction or sentence, review of a conviction or sentence and hearings to decide whether to reduce a sentence pursuant to Article 110 (4) (b) or to select a state of enforcement of a sentence (Article 103). Article 110 (b) (4) provides for the possible reduction of a sentence for convicted persons who assist in locating assets which could be used for victims. They should be able to comment on this ground. In addition, the Statute expressly provides for appeals by a victim of a reparations award pursuant to Article 82 (4), as provided in the Rules of Procedure and Evidence. Draft Rule 124 spells out the requirement to give notice of an appeal against an order of reparations, including appeals by victims, and Draft Rule 125 requires that such appeals be heard expeditiously.See footnote 35 ³⁵

“The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses . . . . These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Rome Statute, Article 68 (1)

A. General principles

Principle 6 (d) of the UN Victims Declaration provides that the judicial system should “take measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation”. Among the other basic principles which must guide the Assembly of States Parties in adopting Rules of Procedure and Evidence and the Court in the protection of victims and witnesses are that any measures for their protection must “be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial” (Article 68 (5)) and that the measures should be effective, not illusory.

B. The need for effective, not illusory, protection for victims and witnesses

Amnesty International believes that if those responsible for genocide, crimes against humanity and serious violations of humanitarian law, particularly in cases of rape, sexual assault and forced prostitution, are to be brought to justice, effective programs to protect victims, their families and witnesses will have to be developed by the Court in cooperation with states, intergovernmental oranizations and non-governmental organizations. The Rules of Procedure and Evidence must facilitate the attendance of victims, their families and witnesses and the court must take effective measures to protect them from reprisals and unnecessary anguish. States parties must assist the Court in protecting victims, their families and witnesses. As Article 68 (1) makes clear, however, such measures must never be at the expense of the right of an accused - who faces possible imprisonment for the rest of his or her life - to a fair trial. The right of the accused, as recognized in Article 14 (3) (e) of the ICCPR, “[t]o examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”, is an essential aspect of the right to a fair trial.

     The need to protect victims and witnesses from unnecessary anguish. The Court must take certain measures to protect victims, their families and witnesses from unnecessary anguish to which they might be exposed in a public trial, such as closing part of the proceedings to the public when strictly necessary in the interests of justice.See footnote 36 ³⁶ Steps consistent with the the rights of the accused should also be taken by the Court at every stage of the proceedings to minimize the considerable anguish of witnesses who have repeatedly to relive horrific events before investigators, prosecutors and judges.See footnote 37 ³⁷ Principle 4 of the UN Victims Declaration emphasizes that “victims should be treated with compassion and respect for their dignity”.

     The need to use effective national witness protection programs as models. In addition to protecting victims and witnesses from unnecessary anguish, the Court, in close cooperation with states parties, must take effective security measures to protect victims, their families and witnesses from reprisals. These measures should encompass protection before, during and after the trial until the security threat ends. In developing an effective protection program, the court and states parties should draw upon the successful witness protection programs in many states, such as Australia, Italy and the United States. The Australian witness protection program permits long-term protection of witnesses who are foreign citizens.See footnote 38 ³⁸ The Italian witness protection program has been successful in protecting witnesses in cases involving organized crime.See footnote 39 ³⁹ The United States Justice Department has a witness protection program which has successfully protected all of the more than 15,000 witnesses, potential witnesses and immediate family members of witnesses and potential witnesses over more than a quarter of a century.See footnote 40 ⁴⁰ To ensure that an international victim, family and witness protection program is effective, all states parties, not just the court and the host state, will have to share the burden of protecting persons in the program by affording temporary residence until the security threat ends. By sharing the burden equally and by affording victims, families and witnesses protection anywhere in the world, the Court could have in place a more effective witness protection program than the programs of the Yugoslavia and Rwanda Tribunals, which are largely limited to protection in the host state and at the tribunals. Preventing the accused from knowing the identity of his or her accuser has proved an illusory method of protecting victims and witnesses in the Tribunals. It was the failure of the Tribunals to provide effective witness protection programs to ensure that witnesses were protected from the first moment of contact with the Tribunals unit their safety and well-being was no longer in danger and the inadvertent disclosure of the names of the accused in public session that led to the murder of several prospective witnesses before the Rwanda Tribunal.

     The need to know one's accuser to conduct an effective defence. The right to examine, or have examined, the witnesses against one is not simply a matter of equality of arms, but a fundamental component of the right to a fair trial. The accused must have an opportunity to conduct an in-depth examination of the background of prosecution witnesses to test the veracity of the testimony of the witness and to identify potential bias. As a leading international human rights organization argued at the Diplomatic Conference, “one of the 'rights of the accused' which must not be compromised in any circumstances, is the right to cross-examination in person”.See footnote 41 ⁴¹ This is particularly important with respect to the grave crimes within the jurisdiction of the Court. In many cases, the objectivity of the prosecution witnesses will have to be thoroughly examined by counsel for the accused in close consultation with the accused, such as former neighbours who may have quarrelled in the past with the accused, members of different ethnic or religious groups or persons now occupying the home of the accused.See footnote 42 ⁴² In such highly charged situations, some may even perjure themselves.See footnote 43 ⁴³ The use of written statements of witnesses as a substitute for live testimony at trial when the defence has not had an opportunity to cross-examine the witness before or during the trial may be inconsistent with this right.See footnote 44 ⁴⁴

     International standards disapprove of the use of secret witnesses. The use of secret witnesses is prohibited by the ICCPR and the American Convention on Human Rights. The Human Rights Committee has stated that the “faceless judges system” in Colombia, in which the names of judges and witnesses in regional public order courts that try cases involving drug trafficking, terrorism, rebellion, rioting and illegal possession of weapons are concealed from the defence, “does not comply with article 14 of the Covenant, particularly paragraph 3 (b) and (e), and the Committee's General Comment 13 (21)”, and it recommended that the regional judicial system be abolished. Similarly, the Inter-American Commission on Human Rights has strongly criticized the “faceless judges system” in Colombia, saying that it was “disturbed that this was still a part of Colombian law”.See footnote 46 ⁴⁶

    The European Court of Human Rights has strictly restricted the use of anonymous witnesses. Recently, in the Van Mechelen case, it found that, under the circumstances, the use of anonymous police witnesses violated Article 6 (1) and (3) (d) of the European Convention on Human Rights, stating that:

    In contrast, although the Trial Chambers of the Yugoslavia Tribunals have usually issued similar protection orders requiring disclosure to the accused prior to the trial, subject to the witness being within the effective protection of the tribunal, in the Tadic case the Trial Chamber issued an order denying the accused the right to know the identity of several witnesses against him.See footnote 49 ⁴⁹ Judge Stephen dissented.See footnote 50 ⁵⁰ However, in the Blaskic case, another Trial Chamber, recognizing the dangers of anonymous witnesses, found that the Prosecutor had failed to demonstrate the necessity of the “extreme measure of the anonymity of the witnesses” under the facts of the case.See footnote 51 ⁵¹ The Trial Chamber explained:

    “The philosophy which imbues the Statute and the Rules of the Tribunal appears clear: the victims and witnesses merit protection, even from the accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media. . . . How can one conceive of the accused being afforded an equitable trial, adequate time for preparation of his defence, and intelligent cross-examination of the Prosecution witnesses if he does not know from where and by whom he is accused?”See footnote 52 ⁵²
    
    The drafters of the Rome Statute expressly rejected proposals which would have, like the Statutes of the Yugoslavia and Rwanda Tribunals, subjected the internationally recognized right of the accused to a fair trial to the interests of victims and witnesses. The two Trial Chamber judges who wrote the majority opinion in the Tadic case noted that the guarantee of the right to “a fair and public hearing” in Article 21 (2) of the Yugoslavia Statute was “subject to article 22 of the Statute” concerning protection of a victim's identity, which they incorrectly interpreted as permitting the Tribunal to deny the accused the right to know his or her accuser, as opposed to permitting it to conceal the identity of the witness from the public.

    In contrast, Article 67 (1) of the Rome Statute contains an unqualified guarantee to a fair hearing, but subjects the right to a public hearing to the other provisions of the Statute. Moreover, each provision in the Rome Statute authorizing protection measures provides that they must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (see, for example, Article 68 (1), (3) and (5)). Therefore, the Rules of Procedure and Evidence may authorize limitations on public access to certain aspects of the trial and concealment of the identity of certain witnesses from the public to ensure their safety, but not deny the accused the right to know his or her accuser and, thus, the ability to mount an effective cross-examination. The note to Draft Rule 89 (Conduct of proceedings in camera and presentation of evidence by electronic or other special means to protect victims and witnesses) indicates that it will have to address the question of disclosure to the public and the media. It does not suggest that it would involve concealing the identity of witnesses from the accused.See footnote 53 ⁵³

The Rules of Procedure and Evidence should encourage states parties to cooperate in developing and implementing on an equitable basis an effective international victim and witness protection and support program. The Rules of Procedure and Evidence should provide effective measures to spare victims and witnesses unnecessary anguish in at all stages of the proceedings, which are not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. The Rules of Procedure and Evidence should ensure that the identity of prosecution witnesses be made known to the accused sufficiently in advance of the trial to permit an effective cross-examination and after effective measures have been taken to protect the safety of witnesses.

C. The role of the Prosecutor in protecting victims

During the course of an investigation or a prosecution, the Prosecutor must “[t]ake appropriate measures” to ensure that the investigation or prosecution is effective, and, “in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender . . . , and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children” (Article 54 (1) (b)). Such measures should be taken in cooperation with the Victims and Witnesses Unit. At the same time, the Prosecutor must “[f]ully respect the rights of persons arising under this Statute” - such persons include suspects and the accused.

    The Statute requires the Prosecutor to ensure, when employing staff, to include persons with legal experience concerning violence against women and children.See footnote 54 ⁵⁴ In particular, Article 42 (9) requires the Prosecutor to “appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children”. The Prosecutor should consult with states, the Yugoslavia and Rwanda Tribunals and other intergovernmental organizations, non-governmental organizations and experts on legal and other issues related to victims when developing clear criteria in the form of internal guidelines for the Office of the Prosecutor for appointments and when making appointments. The Draft Rules do not directly address the criteria for employing staff in the Office of the Prosecutor, but at least two of these Draft Rules could be amended to reflect the need for staff with appropriate experience concerning victims. Draft Rule 39, which defines the requirements of the solemn declaration by interpreters and translators, could be amended to include a pledge to respect the needs of and dignity of traumatized persons.See footnote 55 ⁵⁵ Similarly, Draft Rule 43 could be amended to ensure that government investigators cooperating with the Prosecutor can interview victims and witnesses effectively.See footnote 56 ⁵⁶

The Prosecutor should consult with states, the Yugoslavia and Rwanda Tribunals and other intergovernmental organizations, non-governmental organizations and experts on legal and other issues related to victims when establishing clear criteria in the form of internal guidelines for the Office of the Prosecutor for appointments and when making appointments of staff. Interpreters and translators should pledge to respect the needs and dignity of traumatized persons. The Prosecutor should endeavour to ensure that states provide only investigators who are appropriately trained to deal with trauma victims or to arrange for appropriate training.

D. The role of the Victims and Witnesses Unit in protecting and assisting victims

Article 43 (6) requires the Registrar to “set up a Victims and Witnesses Unit within the Registry”.See footnote 57 ⁵⁷ This paragraph expressly states that the Victims and Witnesses Unit “shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses”. Article 68 (4) provides that this unit “may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counseling and assistance as referred to in article 43, paragraph 6”. The Draft Rules do not address these matters.See footnote 58 ⁵⁸

     Persons who must be protected. It will also be essential for the Court to provide protection to persons other than those who provide oral or written testimony during proceedings, victims who appear before the Court or persons who are at risk on account of testimony by such witnesses. Similarly, it will be essential for the Victims and Witnesses Unit to consider any person who provides information to the Prosecutor or to defence counsel who might be asked to provide oral or written testimony during proceedings, even if that testimony is not used during the proceedings, as a witness within the meaning of Article 43 (3). In addition, any person who cooperates with the Office of the Prosecutor or defence counsel, including a person who provides directions to the house of a suspect in a small village and doctor who assists in carrying out forensic examinations, could, in certain cases, face serious threats to his or her safety. This broad interpretation of the persons whom the Victims and Witnesses Unit must protect is fully consistent with the authority of the entire Court under Article 87 (4) in relation to requests for assistance under Part 9 to “take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families”.

    It would make sense for the Victims and Witnesses Unit, which will have experience in providing protection to witnesses, to assist in providing protection to any such person to ensure that the Court is able to conduct a fair and impartial trial. Although the Statute assigns certain express responsibilities to the Victims and Witnesses Unit, nothing in the Statute precludes the Court, and the Registrar in particular, from assigning other responsibilities to the Unit. Indeed, the Victims and Witnesses Unit's experience and the need to economize scarce resources militate in favour of it performing these responsibilities.

     Article 68 (1) makes clear that the Court as an institution must assume the responsibility for the protection of victims and witnesses. It states: “The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses”. Therefore, to the extent that the Victims and Witnesses Unit does not assume these tasks, they will have to be assumed by the Office of the Prosecutor or by other departments in the Registry, as part of its responsibilities under Article 43 (1) for the “non-judicial aspects of the administration and servicing of the Court”. The Court will have to devote sufficient resources to undertake this duty, in cooperation with states parties and other states. To the extent that the Office of the Prosecutor and organs of the Court other than the Victims and Witnesses Unit assume these responsibilities, they will need to work closely with the Unit in order to ensure that the measures they take are effective. Indeed, Article 68 (4) expressly provides that “[t]he Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance referred to in article 43, paragraph 6”. Such advice, based on the experience of the Victims and Witnesses Unit in working with victims, witnesses and their families, will be necessarily be entitled to great weight.

    The express statutory duties of the Victims and Witnesses Unit, however, are only the minimum required and it will be up to the Registrar, who is the head of the Registry and “the principal administrative officer of the Court” (Article 43 (2)), to ensure that the Victims and Witnesses Unit performs other functions besides those expressly required by the Statute. For example, it has been suggested that the Victims and Witnesses Unit should be involved in assisting the Prosecutor during investigations at the earliest possible stage.See footnote 60 ⁶⁰ The Victims and Witnesses Unit could assist victims in locating counsel and in helping to coordinate representatives of multiple victims in a single case (see discussion above in Part II.A). Some of the responsibility for implementing reparations awards could be assigned to this Unit, such as ensuring that a victim of torture or ill-treatment receives the best possible medical and psychological care. It could also provide training to all Court staff.

     The experience needed in the Victims and Witnesses Unit. The head of the Victims and Witnesses Unit should have extensive experience in working with victims and witnesses.See footnote 61 ⁶¹ Similarly, the Victims and Witnesses Unit will need to develop criteria for selection of its staff in consultation with states, the Yugoslavia and Rwanda Tribunals and other intergovernmental organizations, non-governmental organizations and experts, which ensure the selection of the most experienced and talented staff in accordance with the requirements of the Statute.See footnote 62 ⁶² In particular, the Victims and Witnesses Unit has the obligation under Article 43 (2) to”include staff with expertise in trauma, including trauma related to crimes of sexual violence”. Such staff should include social workers and mental health-care practitioners.See footnote 63 ⁶³ The Registry will need to ensure that experts in other areas are recruited, such as experts on the role of children as witnesses and in protection of victims and witnesses.See footnote 64 ⁶⁴ The Victims and Witnesses Unit should avail itself of the possibility under Article 44 (4) to employ, “in exceptional circumstances”, “the expertise of gratis personnel offered by States Parties, intergovernmental organizations and non-governmental organizations to assist with the work of any of the organs of the Court”. The use of such gratis personnel was one of the reasons for the success of the Yugoslavia and Rwanda Tribunals in their first years. The Draft Rules do not address these matters.See footnote 65 ⁶⁵

The Pre-Trial Chamber has the duty pursuant to Article 57 (3) (c), “[w]here necessary, [to] provide for the protection and privacy of victims and witnesses”. Article 87 (4) authorizes the Court, and, thus, the Pre-Trial Chamber and Trial Chamber, as well as the Prosecutor and the Victims and Witnesses Unit, to take protective measures, “including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their familes”, in relation to requests for assistance by states under Part 9 (International cooperation and judicial assistance). Therefore, the Court has the authority to request states to take such protective measures. Article 93 (1) (j) reinforces this authority and supplements the general duty of states parties to cooperate with the Court by providing that states parties, shall, in accordance with Part 9 and national procedures, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: . . . (j) The protection of victims and witnesses and the preservation of evidence”.

The Court should ensure that requests to states parties to take measures to protect victims, potential witnesses and their families are implemented.

IV. RIGHT TO REPARATIONS (COMPENSATION, RESTITUTION AND REHABILITATION)

“Any human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the State to make reparation and the possibility of for the victim to seek redress from the perpetrator.” Principle 33 of the Joinet Principles

A. The right to reparations

Article 75 (1) requires the Court to “establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation”. These general principles would be applicable in all cases before the Court. In addition, Article 75 (1) provides that, based on these principles, “in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting”. Thus, the development and application of these general principles is a matter for the Court, not the Assembly of States Parties in the Rules of Procedure and Evidence. This provision is a major advance over the Yugoslavia and Rwanda Rules, which require the Tribunals to order restitution and facilitate compensation by national courts, but do not expressly authorize the Tribunals to order compensation, rehabilitation, satisfaction or guarantees of non-repetition.See footnote 66 ⁶⁶

     The right to reparations under international law and standards. In elaborating such general principles, the Court will need to build upon the extensive international standards defining the right of victims to reparations, including restitution, compensation, rehabilitation, satisfaction or non-repetition. The drafters of the Statute intended that the scope of reparations under Article 75 be defined broadly in accordance with international standards and cited the definitions of reparations in the UN Victims Declaration and Principles 12 to 15 of the Van Boven Principles. See footnote 67 ⁶⁷ Among the other relevant international standards recognizing the right of all victims human rights violations to an effective remedy are Article 8 of the Universal Declaration of Human Rights, Article 2 (3) (a) of the ICCPR and Article 9 of the UN Human Rights Defenders Declaration.

    International law and standards also recognize the right of victims of specific human rights violations to reparations, including victims of extrajudicial executions, “disappearances”, torture, racial discrimination and arbitrary detention. Principle 20 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions provides that “the families and dependants of victims of extra-legal, arbitrary or summary executions shall be entitled to fair and adequate compensation within a reasonable time”. A similar right is recognized in Article 19 of the UN Declaration on the Protection of All Persons from Enforced Disappearances for victims of “disappearance” and their families. Article 14 (1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires states to ensure victims of torture obtain redress and have “an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible” and, in the event of the death of the victim as a result of torture, compensation to the dependants”.See footnote 68 ⁶⁸ Victims of racial discriminationSee footnote 69 ⁶⁹ and arbitrary detentionSee footnote 70 ⁷⁰ are also entitled to reparations.

     The types of reparations which may be awarded by the Court. The Court may award any type of reparations against a convicted person which is consistent with due process and the scope of its jurisdiction. Article 75 (2), which provides that “[t]he Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation”, is inclusive, not exclusive. Therefore, the Court may award other forms of reparations against a convicted person. In addition, through the general principles it establishes pursuant to Article 75 (1) or in an individual case under that provision, the Court may influence how other courts, both in states parties and non-states parties, award reparations against state institutions or other persons, such as corporations.

    The scope of the right to reparation is broad and must “cover all injuries suffered by the victim”.See footnote 71 ⁷¹ It must be proportionate to the gravity of the violations and damage suffered.See footnote 72 ⁷² As described below, the five main forms of reparations are: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. The Rules of Procedure and Evidence must not limit the creativity of the Court in developing and implementing the wide variety of forms of reparations which it may award under the Statute. Some forms, such as compensation, can be implemented by a monetary award, and will require state cooperation in tracing and seizing assets; other forms, such as rehabilitation, can, in some cases, be implemented by reimbursement for medical and psychological care, which would also require help from states in tracing and seizing assets; and some forms, such as certain types of satisfaction or non-repetition, can only be implemented by state institutions, including those of non-states parties, or by persons other than the convicted person. As outlined below, internationally recognized standards provide an indication of the scope of each of these forms of reparations, but the jurisprudence and interpretation at the international level is still developing.
     1. Restitution. Restitution seeks to restore victims to their previous state.See footnote 73 ⁷³ Principle 12 of the Van Boven Principles states that “[r]estitution requires, inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.”See footnote 74 ⁷⁴

     2. Compensation. Compensation must “be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as:

    (a) Physical or mental harm, including pain, suffering and emotional distress;

    (b) Lost opportunities including education;

    (c) Material damages and loss of earnings, including loss of earning potential;

    (d) Harm to reputation or dignity;

    (e) Costs required for legal or expert assistance, medicines and medical services.”See footnote 75 ⁷⁵

Compensation for torture must include “the means for as full rehabilitation as possible”.See footnote 76 ⁷⁶

     3. Rehabilitation. Rehabilitation includes “medical and psychological care as well as legal and social services”.See footnote 77 ⁷⁷

     4. Satisfaction. Satisfaction includes the following:

    “(a) Cessation of continuing violations;

     5. Guarantees of non-repetition. Guarantees of non-repetition include:

    “Preventing the recurrence of violations by such means as:

    (i) Ensuring effective civilian control of military and security forces;

    (ii) Restricting the jurisdiction of military tribunals only to specifically military offences committed by members of the armed forces;

    (iii) Strengthening the independence of the judiciary;

    (iv) Protecting persons in the legal profession and human rights defenders; [and]

    (v) Conducting and strengthening, on a priority and continued basis, human rights training to all sectors of society, in particular to military and security forces and to law enforcement officials.”See footnote 80 ⁸⁰

    “(a) Disbandment of parastatal armed groups . . .

    (b) Repeal of all emergency laws, abolition of emergency courts and recognition of the inviolability of habeas corpus; [and]

    (c) Removal from office of senior officials implicated in serious violations.”See footnote 81 ⁸¹     

     Basic principles concerning the different types of reparations under international law. The basic principles concerning the various forms of reparations under international law include the following, which should be incorporated in the general principles concerning reparations established by the Court:

     * The right to be informed of rights to reparation. Principle 8 of the Van Boven Principles requires every state to “make known, through public and private mechanisms . . . the available procedures for reparations”. Principle 6 (a) of the UN Victims Declaration contains a similar provision. In particular, Article 15 of the UN Victims Declaration states that victims “should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them”.

     * Prompt redress. Principle 4 of the UN Victims Declaration states that “victims are entitled to prompt redress” and Principle 6 (a) calls for “[a]voiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.” Principle 7 of the Van Boven Principles provides that “States have the duty to adopt special measures, where necessary, to permit expeditious and fully effective reparation” and Principle 11 requires reparations decisions to “be implemented on a diligent and prompt manner”.

     * Assistance during the reparations proceedings. Principle 6 (c) of the UN Victims Declaration calls for the authorities to provide “proper assistance to victims throughout the legal process”.

     * Fair and adequate reparations. Article 14 of the Convention against Torture requires states to ensure in their legal system that each victim of torture has “an enforceable right to fair and adequate compensation”. The obligation of states parties under the UN Convention against Torture to provide redress extends to victims of other cruel, inhuman or degrading treatment or punishment.See footnote 82 ⁸² Principle 8 of the UN Victims Declaration provides that victims, their families and their dependants should have a right to “fair restitution”, including “the return of property or payment for the harm or loss suffered, reimbursement of expenses occurred as a result of victimization, the provision of services and the restoration of rights”.

     * Reparations by the state when the person responsible is unable to do so. Principle 12 of the UN Victims Declaration states that “[w]hen compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: . . . Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes . . . [and their] family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization”.

     * Necessary assistance as part of the right to rehabilitation. Principle 14 of the UN Victims Declaration provides that “[v]ictims should also receive the necessary material, medical, psychological and social assistance through governmental, voluntary community-based and indigenous means”.

The Rules of Procedure and Evidence must not limit the ability of the Court under Article 75 (1) to develop and apply general principles concerning reparations for victims which are consistent with the Statute and international law and standards. The general principles developed and applied by the Court should address all forms of reparations, including restitution, compensation, rehabilitation, satisfaction and non- repetition. Reparations should cover all injuries suffered by the victim and be proportionate to the gravity of the violations and the damage suffered.

B. Decisions by the Court awarding reparations

The Court itself may award reparations to victims or determine the principles by which the award should be guided in national courts. However, judicial economy would suggest that the awards should usually be made by the Court, which will have heard the relevant evidence. Determining the award in a single proceeding will minimize the burden and trauma for victims and witnesses as well as the cost of locating them. Article 75 (2) expressly provides that “[t]he Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.” In addition, “[w]here appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in Article 79.”
    Although the Statute does not expressly state that the Court may make an award of reparations against persons other than the convicted person, the general principles it establishes, as well as the principles it establishes in an individual case, will guide states in ensuring that victims receive the reparations to which they are entitled under international and national law. In some cases, states will have an obligation under international or national law to ensure that they themselves provide reparations to the victims, either when the convicted person is unable to make reparations or when the state itself is also responsible for the crime. Indeed, the first proposal for an international criminal court in 1872 by Gustave Moynier provided for payment of compensation to victims by the convicted person's government when the convicted person was unable to do so.See footnote 83 ⁸³ Contemporary international standards recognize that states must compensate victims for the crimes committed by their agents when the agents are unable to do so. Principle 12 of the UN Victims Declaration states that “[w]hen compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: . . . Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes . . . [and their] family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization”.

     Awards from the Trust Fund. Article 79 (1) provides that “[a] Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims”. This is consistent with international standards, such as Principle 13 of the UN Victims Declaration, which encourages “[t]he establishment, strengthening and expansion of national funds for compensation to victims”.See footnote 84 ⁸⁴

    The Statute does not limit the sources of funding of the Trust Fund, which, as a trust, would necessarily be independent of the Court's own budget. However, two sources of funding for the trust fund are expressly spelled out in the Statute. Article 79 (2) states that “[t]he Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.” However, the Trust Fund should be able to receive funds from as wide as possible variety of other sources and at least as wide as the Court itself. In addition to funding through assessed contributions by states parties and provided by the UN (Article 115), Article 116 provides that “the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties”. The Statute does not make clear whether the trustees, the Court or the Assembly of States Parties will determine the criteria for accepting such funds, although it would be logical for the Assembly of States Parties to do so as part of its duty under Article 79 (3) to determine the criteria for managing the Trust Fund.

    The Assembly of States Parties should develop both the criteria for accepting contributions to the Trust Fund and for its management in close consultation with the various organs of the Court, the UN Voluntary Fund for Victims of Torture, states, the Yugoslavia and Rwanda Tribunals and other intergovernmental organizations and non-governmental organizations and experts concerned with the rights of victims.See footnote 85 ⁸⁵ It will be essential in developing the criteria governing the sources of funding of the Trust Fund to ensure that such sources do not affect the impartiality of the Court in anyway. For example, the proportion of certain types of sources, such as fines and forfeitures, should be limited to avoid a misperception that the Court has an incentive to convict or to order such fines and forfeitures as a way of increasing the size of the Trust Fund. Similarly, the amount of funding from any one source could be limited, apart from exceptional circumstances, to avoid a suggestion that the independence of the Trust Fund was being compromised in any way.

    Although the Assembly of States Parties has the responsibility for developing the criteria for management of the Trust Fund, the Statute makes clear that the Court will decide the amount of the awards of reparations which are to be made from the Trust Fund. Article 75 (2) provides that, “[w]here appropriate, the Court may order that the award for reparations be made through the Trust Fund”. Although as a practical matter the total amount of money in the Trust Fund will necessarily limit the amount of an award which can be used to satisfy an award at any one time, it will be important for the Court's guidelines to provide that the Court should not limit the amount of the award based on the current level of assets in the Trust Fund.See footnote 86 ⁸⁶ The level will vary and, as awards are made, governments, companies, individuals and others are likely to increase their contributions. Therefore, a system for disbursing funds from the Trust Fund in proportion to the monetary equivalent of individual awards should be established when funds are temporarily insufficient to pay all the awards outstanding at a particular time. Special priorities could be accorded to rehabilitation expenses for children and victims of torture, particularly sexual assault.

     Procedures for determining reparations awards. The Statute provides that the Court shall hear all interested persons before making a reparations award. Article 75 (3) states that, “[b]efore making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States”. This provision does not expressly require that the Court hold a hearing, although the Court should be able to do so in appropriate cases. The Rules of Procedure and Evidence could establish the procedure for such hearings, but, if they do, they should give the Court sufficient flexibility to adapt the procedure in a way which will best serve the interests of justice.

    Although the Statute seems to suggest that it is discretionary for the Court to invite victims and others to make representations, possibly because it might be difficult to locate all victims or their families in cases where there are large numbers of victims, the Court's general principles or the Rules of Procedure and Evidence should provide for some form of public notice which is likely to reach the largest number of victims, or notice through their representatives, of the opportunity to make such representations. As stated above (Part II.C), international standards require the widest possible publicity of procedures for reparations so that victims can exercise their rights to reparations. In the Court's guidelines for making awards, it will be essential to ensure that all victims and their families are treated equally. Thus, the size of the award should not depend on whether the victim or the victim's family is articulate, sympathetic or able to obtain expert counsel - or, indeed, any counsel at all.

As a general rule, in the interests of judicial economy and minimizing the trauma of victims, the Court itself should award reparations in each case. States must provide reparations to victims for the crimes committed by their agents when their agents are unable to implement an award of reparations themselves and states must ensure that reparations which are not included in the Court's award, but which are required to satisfy the general principles and international law, are implemented. The Trust Fund should be able to receive funds and other resources from as wide as possible variety of sources as possible, including voluntary contributions from states, intergovernmental organizations, non-governmental organizations, individuals, corporations and other entities. The criteria for acceptance of funds and other resources by the Trust Fund and its management should be developed in close consultation with the Court, the UN Voluntary Fund for Victims of Torture and non-governmental organizations and experts concerned with the rights of victims. Such criteria should ensure that the sources of funds and other resources should ensure that they are unable to affect the impartiality of the Court in any way, by such methods as limiting the funds and other resources from any one source, apart from exceptional circumstances. The Court's general principles concerning reparations should not limit the amount of the award based on the current level of assets in the Trust Fund. A system for disbursing funds and other resources from the Trust Fund in proportion to the assets in the Trust Fund should be established to address the situation when the funds are temporarily insufficient to satisfy all the awards outstanding at any one time, with special priorities accorded to rehabilitation expenses for children and victims of torture, particularly sexual assault. The Court's general principles or the Rules of Procedure and Evidence should require public notice which is likely to reach large numbers of victims or their representatives of the opportunity to make representations pursuant to Article 75 (3). In appropriate cases, the Court should conduct hearings pursuant to Article 75 (3) in a manner which will best suit the interests of justice in an individual case. All victims and their families should be treated equally.

C. Pre-conviction measures for enforcing fines and forfeitures and reparations awards

     Measures which can be taken before judgment with respect to forfeitures. The Pre-Trial Chamber must take steps to take protective measures to ensure that assets of a suspect are preserved pending a determination of guilt or innocence, if the person is accused, so that they can be forfeited, particularly for the benefit of victims. Article 57 (3) (e) states that when an arrest warrant or summons has been issued, the Pre-Trial Chamber

    “having due regard to the strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to article 93, paragraph 1 (j),See footnote 87 ⁸⁷ to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims”.

    Article 93 requires states parties to comply with Court requests to provide assistance in locating and taking possession of assets with a view to forfeiture. Article 93 (1) (k) provides:

    “1. States Parties shall, in accordance with the provisions of this Part [Part 9] and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

    (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties[.]”

    Therefore, states parties must review their legislation and practice in the context of state cooperation to ensure that the authorities will comply without delay with requests for cooperation. In the light of the ability to move funds electronically from one account to another around the world, a delay of even a few hours by state authorities in complying with a Court request for assistance in identifying, tracing, freezing or seizing assets when a warrant of arrest or a summons to appear is issued could make it difficult or impossible ever to implement a reparations award. The Rules should clarify that states must comply with Court requests for assistance without delay.

    The Statute does not permit states to avoid compliance with requests on the ground of substantive national law.See footnote 88 ⁸⁸ This is fully consistent with the internationally recognized principle that states must introduce safeguards in their national law, both in civil and criminal law, against impunity.See footnote 89 ⁸⁹ In particular, periods of limitations must not apply to civil proceedings by victims for reparationsSee footnote 90 ⁹⁰ and amnesty and clemency measures may not affect the right of victims to reparations.See footnote 91 ⁹¹

D. Enforcing fines and forfeitures and reparations awards against convicted persons

Enforcing fines and forfeitures after a conviction. Article 109 spells out the duties of states to enforce fines and forfeitures awarded against a convicted person:

    “1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.

    2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.

    3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgment of the Court shall be transferred to the Court.”

    Although states have some discretion to give effect to Court fines and forfeitures “in accordance with the procedure of their national law”, they must still give full effect to Court fines and forfeitures regardless what national procedures they use. As stated above, Article 86 requires states parties to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”. Therefore, they must ensure that their authorities comply with Court decisions without delay and will need to review their law and practice so that they do not obstruct the enforcement of reparations awards.

    Article 75 (4) permits the Court to make such requests after a conviction, where necessary. It states that when exercising its power under Article 75, “the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1”.
     Enforcing reparations awards after a conviction. States parties must also give full effect without delay to a Court decision awarding reparations against a convicted person. Article 75 (5) provides that “[a] State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article”.

States parties must ensure that their authorities comply with Court decisions fully and without delay and will need to review their law and practice so that they do not obstruct the enforcement of fines and forfeitures or reparations awards. States parties must give full effect without delay to a Court decision awarding reparations against a convicted person.

     The Yugoslavia and Rwanda Rules adopt a definition of victim which would, in many cases, exclude the victim's family and, thus, be inconsistent with international standards which must guide the Court. Rule 2 of the Yugoslavia Rules defines a victim as “a person against whom a crime over which the Tribunal has jurisdiction has allegedly been committed”. Rule 2 of the Rwanda Rules is identical. Although the crime of enforced disappearances inflicts extreme mental pain and suffering amounting to torture on the family of the “disappeared” person for as long as the case remains unresolved, in most other crimes, the crime is still regarded as being committed only against the person directly suffering the harm, not the person's family. Rule 2 of the ABA Draft Rules, which reproduces the definition in Rule 2 of the Yugoslavia Rules, is similarly flawed.

    “Ad hoc procedures enabling victims to exercise their right to reparation should be given the widest possible publicity by private as well as public communication media. Such dissemination should take place both within and outside the country, including through consular services, particularly in countries to which large numbers of victims have been forced into exile.”

Principle 8 of the Van Boven Principles requires every state to “make known, through public and private mechanisms, [both at home and where necessary abroad,] the available procedures for reparations.” (square brackets in the original).

    “the right to examine or cross-examine an adverse witness cannot be effective without the right to know the identity of adverse witnesses. It is an almost impossible task to cross-examine an adverse witness effectively without knowing that witness's name, background, habitual residence or whereabouts at the time to which he testifies - or, indeed, to prepare to conduct such an examination in a professionally responsible manner.”

Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 Am. J. Int'l L. 235, 236 (1996).

    “(a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

        (I) The representation of the principal legal systems of the world;

        (ii) Equitable geographical representation; and

        (iii) A fair representation of female and male judges.

    (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.”

    “(a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

        (i) The representation of the principal legal systems of the world;

        (ii) Equitable geographical representation; and

        (iii) A fair representation of female and male judges.

    (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.”

In addition, interpreters and translators should pledge to perform their duties with respect for the needs and dignity of traumatized persons (see note XXX above) and be properly trained so that they can fulfil this pledge.

    “Statutes of limitations shall not apply in respect of periods during which no effective remedies exist for violations of human rights or international humanitarian law. Civil claims relating to reparations for gross violations of human rights and international humanitarian law shall not be subject to statutes of limitations.” (emphasis in original).