Amnesty International - Report
- IOR 40/10/99
July 1999 United Nations (UN) The International Criminal Court: Ensuring an Effective Role for Victims |
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 in 1872 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, 83 states had taken the first step towards ratification by signing the Statute and three,
Senegal, Trinidad and Tobago and San Marino, have ratified it. Many other states have committed
themselves to doing so in the near future.See footnote 4
4
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 purpose of this paper. This paper makes recommendations concerning the preparation
of draft Rules of Procedure and Evidence concerning the role of victims in the International Criminal
Court.See footnote 5
5
It takes into account the proposed rules adopted at the Paris seminar (Paris draft Rules)
makes recommendations for amendment of some of these rules or suggests where additional rules
might be necessary.See footnote 6
6
For the convenience of delegates, the paper is divided into four parts in
accordance with the structure of the Paris draft Rules, which reflect the topics addressed by the four
seminar workshops.
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.
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 10
10
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 11
11
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 12
12
the UN Guidelines on the Role of Prosecutors,See footnote 13
13
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 14
14
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 15
15
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 16
16
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 17
17
A. Definition of victim
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 18
18
Unfortunately, although the
drafters in Workshop 1 intended to follow the definition in the UN Victims Declaration, the failure
to use the same wording, subject to the minimal modifications necessary to adapt it to the Statute,
could lead to ambiguity over its scope.See footnote 19
19
It appears that the drafters intended by the concept of
persons who have suffered harm directly or indirectly to be broadly inclusive and to include, as
in Principle 2, 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, as well as others close to the direct victim. However, it might have been better to
make this point clear. The recognition that groups of natural persons, such as organizations or
institutions which have been directly harmed, can be victims is an important contribution to the
effectiveness of representation of interests of victims from some civil law countries which permit
organizations to participate as parties civiles.
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.
B. General principles concerning referral and admissibility proceedings
As explained below, in addition to the express role for victims or their representatives
provided in the Statute with respect to investigations by the Prosecutor on his or her own initiative,
victims or their representatives 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, their
families or their representatives 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.
As explained below, the Paris draft Rules only partially guarantee these rights.See footnote 20
20
In
particular, Paris draft Rule E [Workshop 1] is limited to proceedings pursuant to Articles 15 (3) and
19 (3). Paris draft Rule F [Workshop 1], however, which requires that when the presence of victims
is required, that victims should be informed of the existence, functions and availability of the
Victims and Witnesses Unit, is a positive contribution to ensuring their effective participation in the
proceedings.
The Rules of Procedure should provide for notice to victims, their families or their representatives
of their right to present their views and concerns at all stages of the proceedings pursuant to
Articles 13 to 19, whenever the relevant Chamber considers it appropriate to do so, not simply with
respect to proceedings pursuant to Articles 15 (3) and 19 (3).
1. Decision by the Prosecutor on whether to investigate, based on information provided by
victims
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 23
23
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 or 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, bearing in mind this fundamental principle.
The Paris draft Rules properly leave the functions of receiving, recording, acknowledging,
analysing and responding to information provided by victims and other sources solely to the
Prosecutor and his or her staff, apart from matters relevant to the Victims and Witnesses Unit,
rather than to another organ of the Court or any outside body.
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 24
24
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.
The Paris draft Rules do not clarify this question.
The Rules of Procedure and Evidence should make clear that the Prosecutor, in the exercise of
his or her functions under Article 15 (2), may receive written or oral testimony from any 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.
Paris draft Rule B [Workshop 1] largely satisfies this requirement and should be included in the
Rules of Procedure and Evidence, but should also require that the notice informs the victims or
their families of all their rights under the Statute and the Rules of Procedure and Evidence.
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.See footnote 26
26
Paris draft Rule B [Workshop 1] satisfies this requirement and should be included in the Rules
of Procedure and Evidence.
The procedure set forth in Paris draft Rule C appears to satisfy these requirements and that
approach should be included in the Rules of Procedure and Evidence.
2. Decision by the Prosecutor whether to investigate, based on referrals by states or the
Security Council
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 Paris draft Rules are silent on the question of notice to victims with respect to
referrals by the Security Council or by states.See footnote 29
29
3. Security Council resolutions requesting a delay in the investigation
Although Article 16 does not expressly provide that victims, their families or their representatives
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, their families or their representatives 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 30
30
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 Paris draft Rules do not provide for the views and concerns of victims to be presented
and considered at this stage of proceedings.See footnote 31
31
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.
Preliminary rulings regarding admissibility pursuant to Article 18 when the Prosecutor is acting
pursuant to a state referral or proprio moto. Victims, their families or 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. Indeed, Article 68 (3) provides that when the personal interests of victims are
affected, the Court shall permit their views and concerns to be presented at any stage it determines
to be appropriate in accordance with the Rules of Procedure and Evidence 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 32
32
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 and their families,
or their representatives, receive notice of the following stages of the proceedings, at a minimum,
whenever the Court considers presentation of their views and concerns appropriate, 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)).
* Notification to the Court by a state that it was investigating or had investigated its nationals
or others within its jurisdiction and any request by the state to defer to the state's investigation of
those persons (Article 18 (2))
* 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)).
In addition, the Prosecutor should seek the views of victims, their families or 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.
The Paris draft Rules are silent on the question of notice to victims, their families or their
representatives concerning their role in proceedings pursuant to Article 18 related to preliminary
rulings concerning admissibility.See footnote 33
33
The Rules of Procedure and Evidence should implement Article 68 (3) by including provisions for
notice to victims and their families or their representatives and for their participation in
proceedings pursuant to Article 18 whenever the Pre-Trial Chamber considers that presentation
of the views and concerns of victims would be appropriate.
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.
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 Statute and the Pre-Trial Chamber:
* 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)).
Paris draft Rule D [Workshop 1] provides for notice to victims or their representatives and
for presentation of their views and concerns with respect to requests by the Prosecutor for a ruling
concerning jurisdiction or admissibility, but not with respect to any other proceedings pursuant to
Article 19.See footnote 35
35
The Rules of Procedure and Evidence should provide for notice to victims, their families or their
representatives with respect to proceedings pursuant to all of Article 19's provisions, not just
Article 19 (3), and for presentation of their views and concerns.
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.
D. 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, their families or their representatives 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.
Victims, their families or their representatives should be notified of requests by states or
by the Security Council pursuant to Article 53 (3) (a) which have referred a situation to the
Prosecutor for a review by the Pre-Trial Chamber of a decision by the Prosecutor not to
prosecute for one of the three reasons specified in Article 53 (2). They should also be notified of
a decision by the Pre-Trial Chamber on its own initiative pursuant to Article 53 (3) (b) to review
a decision by the Prosecutor not to prosecute under Article 53 (2) (c) in the interests of justice.
In both situations, such notice would permit victims to present their observations to the Pre-Trial
Chamber and the Rules of Procedure and Evidence or the Court's Regulations could provide a
method for doing so. Such observations will be necessary if the Pre-Trial Chamber is to give
proper consideration of a decision by the Prosecutor not to prosecute in the interests of justice, a
decision which under Article 53 (2) (c) requires consideration of the interests of victims.
The Paris draft Rules do not provide for notice of requests for review by states or the
Security Council of a decision by the Prosecutor not to prosecute or for notice of a decision by
the Pre-Trial Chamber on its own initiative to review of such a decision.See footnote 36
36
Aside from exceptional circumstances, such as danger to other investigations, the Rules of
Procedure and Evidence should provide for prompt notice to victims of a decision by the
Prosecutor after an investigation not to prosecute, by an effective method which does not
endanger the safety of those who provided the information and which is sensitive to their
needs.
Such notice to victims should ensure that the reasons for the decision are made clear and
should inform them that they can provide further information to the Pre-Trial Chamber if a
state or the Security Council challenges the decision pursuant to Article 53 (a) or the Pre-Trial
Chamber decides to review the decision on its own initiative pursuant to Article 53 (3) (b).
II. WORKSHOP 2 - PLACE AND RIGHTS OF VICTIMS 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) |
Paris draft Rule B [Workshop 2] is an effective way to implement the rights of victims or their
families and should be included in the Rules of Procedure and Evidence.
* The view was expressed that the ability of the
victims to question the accused, witnesses and
experts may have to be exercised in consultation with
the Prosecutor.
** It may be necessary to elaborate rules to
provide for the notification of information to victims.
The duty of the Court to ensure that victims can present their views and concerns in a way
which does not prejudice the right to a fair trial or the ability of the Prosecutor to present his or
her case. 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.See footnote 37
37
Paris draft Rule C [Workshop 2] guarantees the right of the legal representative of the
victims to attend and participate in hearings before all Chambers, in accordance with the decisions
of those Chambers and to that extent it is a positive step. However, it does not expressly provide for
the Prosecutor or the accused to object to questioning of the accused, witnesses and experts before
the President of the Chamber concerned rules on an application to do so. It also fails to qualify this
provision on the right of the accused and witnesses to remain silent and not to incriminate
themselves. In addition, the standard for questioning - taking into account the rights of the accused
and the need for a fair and impartial trial - falls short of the strict standard in the Statute. Article
64 (2) requires the Trial Chamber to 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 Rules of Procedure and Evidence should provide that the legal representative of the victims
or their families may attend and participate in all hearings before each of the Chambers, when
the relevant Chamber considers that it is appropriate. However, the Prosecution and the accused
should have an opportunity to be heard before the President of the relevant Chamber gives
permission to the legal representative of the victim to question an accused, witnesses or experts.
Any such questioning must fully respect the rights of the accused, as well as of witnesses and
experts, to a fair and expeditious trial. In particular, the President should not grant permission
to the legal representative to question the accused if the accused has not agreed to testify or make
an unsworn statement pursuant to Article 67 (1) (h).
The responsibilities of the Pre-Trial Chamber and the Prosecutor. It was generally
accepted during the drafting of the Rome Statute that 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)).
* It may be necessary to discuss whether a
specialized structure within the Registry is necessary
to undertake the functions listed in Rule X.
Notice and assistance to victims. The Rules of Procedure and Evidence should facilitate the
location of qualified legal counsel for victims and their families throughout the proceedings, possibly
through a office of legal counsel for victims, to be funded by voluntary contributions from states and
organizations concerned with victims' issues. The Victims and Witnesses Unit could play a role in
establishing such an office and in coordinating its work with victims.
Paris draft Rule C [Workshop 2] is one possible acceptable solution. If, however, it is decided to
create a separate office to undertake the functions listed in Rule X, that separate office should be
linked as closely as possible to the Victims and Witnesses Unit, possibly under the same executive.
Although there will generally be no need to notify victims, their families or their representatives
before an arrest or for the victims to be present at an arrest (apart from assisting in an identification
of the accused to facilitate the arrest), victims, their families or 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 or
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).
Paris draft Rule X [Workshop 2] partly satisfies these requirements, but requires notice only
of key decisions, thus leaving it entirely to the Registry to decide which decisions should be
communicated to the victims, their families or their representatives and does not require notice of
conferences, hearings and motions.
The Rules of Procedure and Evidence should require that victims, their families or their
representatives should be informed of the initial proceedings, as well as of all other public
proceedings, and of their opportunities to make oral or written submissions, as determined
appropriate by the Court.
C. The trial and sentencing
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 an award of
reparations is made (for a discussion of the role of victims in the procedure for determining
reparations, see Part IV below). 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 38
38
Similarly, in complex civil class actions in countries such as the United States where there
are thousands 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 Rules of Procedure and Evidence should permit victims to participate in the trial, sentencing
and hearing to determine the award of reparations, and provide notice to victims of their right to
participate, but leave it to the Trial Chamber to determine the scope of such participation in the
light of experience.
D. Post-trial proceedings, including appeal, sentence reduction hearings, review and release
hearings
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.
The Paris draft Rules do not address these matters.See footnote 39
39
The Rules of Procedure and Evidence should require that victims receive notice of their right to
participate in post-trial proceedings, including appeal, selection of a state of enforcement,
sentence reduction hearings and post-conviction review.
III. WORKSHOP 3 - PROTECTION OF VICTIMS AND WITNESSES
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) |
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
organizations 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.
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. Steps consistent with 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 40
40
Principle 4 of the UN Victims Declaration emphasizes that victims should be treated with
compassion and respect for their dignity.
Negotiations and the eventual signing of such
agreements may remain confidential at the
request of the State or by the Registry on behalf ofthe Court.
In determining a relocation environment, the
Court should endeavour to ensure meaningful
rehabilitation, taking into account the
circumstances of the relocation context.
The need for states to assist in protecting prosecution and defense witnesses. 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 -
both defense and prosecution - from reprisals and threats of reprisal. These measures should
encompass protection before, during and after any proceedings initiated by this Court or the
prosecutor, and should be in place until such time as the security threat ends, as determined by the
Court. To ensure that an international victim, family and witness protection program is effective,
all states parties, not just the court and the host state, must share the burden of protecting persons in
the program.See footnote 41
41
At times, such protection will require affording temporary relocation and support to
such persons until the security threat ends. As experience at the two ad hoc tribunals has shown,
some witnesses do not find it feasible to relocate. In these instances, creative measures, in additional
to traditional ones, must be developed and fully funded.See footnote 42
42
As for confidentiality of communications, the proposed Paris draft Rule D.4, which provides an absolute privilege for all communications between individuals and medical doctors, psychiatrists, psychologists or counsellors, is addressed in Amnesty International's paper, The International Criminal Court: Drafting effective Rules of Procedure and Evidence for the trial, appeal and revision, July 1999 (AI Index: IOR 40/12/99).
The Rules of Procedure and Evidence should make clear that these measures of confidentiality
include persons who have been in contact with the Court or cooperated with the Court, whether
by defining them as witnesses or as others at risk.
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 43
43
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 Paris draft Rules do not address the criteria for employing staff in the Office of the
Prosecutor, although Rules B and C [Workshop 3] provide for training of Office of the Prosecutor
staff.See footnote 44
44
The Paris draft Rules do not address the requirements for translators and interpreters in all
parts of the Court, who should not only receive proper training, but should be required to pledge in
their solemn declaration that they will respect the needs and dignity of traumatized persons.See footnote 45
45
The Rules of Procedure and Evidence should require the Prosecutor to 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.
The Rules of Procedure and Evidence should require interpreters and translators to pledge to
respect the needs and dignity of traumatized persons.
The Rules of Procedure and Evidence should require that the Prosecutor should endeavor to
ensure that states provide only investigators who are appropriately trained to deal with trauma
victims or to arrange for appropriate training for state investigators in consultation with the
Victims and Witnesses Unit.
D. The role of the Victims and Witnesses Unit in protecting and assisting victims
* The provisions adopted in this Rule
should take into account the third rule (rule X)
adopted by workshop 2.
Article 43 (6) requires the Registrar to set up a Victims and Witnesses Unit within the Registry.See footnote 46
46
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.
Paris draft Rules A to F [Workshop 3], which address these matters are discussed below.See footnote 47
47
Protection, counseling and assistance to victims and witnesses. It will be essential for the
Victims and Witnesses Unit to avoid the inadvertent disclosure of the location or identity of victims,
witnesses and their families to others who might harm them. One important step for achieving this
goal is to set up two separate units, with separate personnel, including separate translators and
interpreters, to work with witnesses for the Prosecutor, on the one hand, and with witnesses for the
accused and the Court, on the other. The Victims and Witnesses Units must develop, in consultation
with states parties, other states, the Yugoslavia and Rwanda Tribunals and other intergovernmental
organizations, non-governmental organizations and experts, a comprehensive program of protection
and counseling for victims, witnesses and their families from the moment they come into contact
with the Court until such time as their safety and well-being are no longer in jeopardy. Care will
need to be taken in determining the place and manner for relocating victims and witnesses.See footnote 48
48
However, the burden of such protection should be shared by all states parties. The United
Kingdom and certain other countries have agreed to relocate victims who are witnesses in the
International Criminal Tribunals for the former Yugoslavia and Rwanda and their families to ensure
their safety. This commitment should serve as a model for cooperation by states parties and other
states with the Court.
Paris draft Rule B [Workshop 3] provides that the Victims and Witnesses Unit shall, where
appropriate, cooperate with inter-governmental and non-governmental organizations and Paris draft
Rule C provides for cooperation with states and the Prosecutor in matters of protection. However,
they do not expressly require consultation with states parties, other states, the Yugoslavia and
Rwanda Tribunals and other intergovernmental organizations, non-governmental organizations and
experts in the development of a protection and counseling program. They also do not make clear
that the program should apply to victims, witnesses and their families from the moment they come
into contact with the Court until such time as their safety and well-being are no longer in jeopardy.
These draft Rules do not provide that the burden of protection should be borne by all states parties
or that the Court may request the cooperation of a state party or other state to help protect victims,
witnesses and others at risk.
The Rules of Procedure and Evidence should require the Victims and Witnesses Unit to consider
that any person who provides information to the Prosecutor or to counsel for the accused who
might be asked to provide oral or written testimony during proceedings, even if the person does
not do so, is a witness within the meaning of Article 43 (3). The Rules of Procedure and Evidence
should also state that the Unit provide protection for any person who cooperates with the Office
of the Prosecutor or counsel for the accused.
The Rules of Procedure and Evidence should encourage all states parties to share the
responsibility of such protection on an equitable basis.
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.
Additional functions which should be performed by the Victims and Witnesses Unit. 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 49
49
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.
Paris draft Rules B and C [Workshop 3] provide, in a non-exhaustive list, that the Victims
and Witnesses Unit should perform these and other functions.
Paris draft Rules B and C [Workshop 3] should be incorporated in the Rules of Procedure and
Evidence, subject to the amendments indicated below.
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 50
50
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 51
51
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 52
52
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 53
53
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.
Paris draft Rule A [Workshop 3] should be included in the Rules of Procedure and Evidence,
subject to amendments (1) to require that the head of the Victims and Witnesses Unit have
extensive experience with victims and witnesses, (2) to require that the Victims and Witnesses Unit
develop criteria for employment of staff in consultation with states, the Yugoslavia and Rwanda
Tribunals and other intergovernmental organizations, non-governmental organizations and
experts and (3) to provide for the use of gratis personnel.
E. The role of the Pre-Trial Chamber and Trial Chamber
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 families, 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.
IV. WORKSHOP 4 - REPARATIONS
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 |
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 56
56
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 57
57
Victims of racial discriminationSee footnote 58
58
and arbitrary
detentionSee footnote 59
59
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 60
60
It must be proportionate to the gravity of the violations and damage suffered.See footnote 61
61
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 62
62
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 63
63
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 64
64
Compensation for torture must include the means for as full rehabilitation as possible.See footnote 65
65
3. Rehabilitation. Rehabilitation includes medical and psychological care as well as legal
and social services.See footnote 66
66
4. Satisfaction. Satisfaction includes the following:
(a) Cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth;
(c) An official declaration or a judicial decision restoring the dignity, reputation and legal
rights of the victim and/or of persons closely connected with the victim;
(d) Apology, including public acknowledgment of the facts and acceptance of responsibility;
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 69
69
Other guarantees of non-recurrence include:
(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]
* 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 71
71
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 endeavor 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.
Paris draft Rules A to H [Workshop 4] largely respect the principles outlined above and do
not appear to impinge upon the Court's powers under Article 75, although the terminology used in
these draft Rules is not always consistent.
Paris draft Rules A to H [Workshop 4] should be incorporated with only minor amendments
into the Rules of Procedure and Evidence.
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 72
72
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 endeavor 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.
2. The Court may take steps to notify States
Parties likely to have an interest through the
channels provided for in Article 87. 3. The Court may request that any State takes
steps to publicize the proceedings before the Court
within its territory as widely as possible and by all
possible means, in accordance with Part 9 of the
Statute.*
4. The Court may also seek the assistance of
organs of the United Nations, intergovernmental
or non-governmental organizations.
* Only States Parties are bound by this provision.
RULE G [WORKSHOP 4]: Evidence
1. The Court shall award reparation to, or in
respect of, victims for damage, loss or injury
caused by the convicted person.*
2. The Court may accept representations and
evidence on reparations in writing, through oral
testimony and in electronic form, including video
and audio tapes and computer data.
*In its report, the working group on reparations
suggested adding at the end of the paragraph: on
the balance of probabilities. The aim was to
provide for a lower standard of proof for the
purposes of reparation than the standard of proofrequired to establish criminal responsibility
(article 66, paragraph 3), having regard to the
difficulty likely to be experienced by victims in
gathering evidence. When the report was
introduced, two difficulties were identified: (1)
two distinct issues need to be dealt with, namely
the issue of causation and the issue of standard of
proof, and it was difficult to find a way to address
them both in one short sentence; (2) there is no
provision in the Statute on either of those two
issues. Hence there is a need for further
discussion on the subject.
Presenting views concerning reparations. It goes without saying that the personal interests
of victims are directly affected when the Court determines the amount and form of reparations (for
the concept and scope of reparations, as well as the procedure for determining reparations, see Part
IV below). Therefore, Article 75 (3) not only requires the Court to take into account representations
by victims, but permits it to take the initiative to invite such representations. However, international
standards require victims to be informed of their role in the proceedings and Principle 13 (d) of the
UN Guidelines on the Role of Prosecutor requires the Prosecutor to ensure that victims are
informed of their rights.
See footnote 73
73
The Rules of Procedure and Evidence must ensure that the victims are
notified of their right to make representations to the Court before it makes an order under Article 75
awarding reparations.
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.
Paris draft Rules A to E and G to H [Workshop 4] appear to give victims, their families or
their representatives adequate opportunities to participate in proceedings concerning reparations.See footnote 74
74
The procedures concerning the determination of reparations by the Court which are specified in
Paris draft Rules A to E and G to H [Workshop 4] should be incorporated in the Rules of
Procedure and Evidence.
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.
ADDITIONAL QUESTIONS IDENTIFIED BY
WORKSHOP 4:
1. Regarding the Trust Fund: a) the locus standi of the Trust Fund to appear
before the Court
b) provision of urge[nt] interim relief such as
medical attention, for instance of victims such as
those who contract AIDs or become pregnant as a
result of rape
c) the standard of care afforded to victims and
witnesses when under the protection of the Court
shall be at least that afforded to accused persons.
. . . .
3. In staffing the Trust Fund and the Court, the
experience of the United Nations Compensation
Commission and relevant Tribunals with relevant
experience should be taken into account.
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 75
75
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 76
76
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 misconception 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 77
77
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.
The general approach set out in Paris draft Rule F [Workshop 4] to the Trust Fund should be
incorporated in the Rules of Procedure and Evidence.
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.
All victims and their families should be treated equally.
C. Pre-conviction measures for enforcing fines and forfeitures and reparations awards
RULE H [WORKSHOP 4]: Protective measures
1. In accordance with the Statute, the Pre-Trial
Chamber or the Trial Chamber may, on its own
motion or at the request of the Prosecutor or at
the request of victims who have filed a claim for
reparations or who have given an undertaking to
do so, hold proceedings in order to determine
whether protective measures should be requested
under Article 93.
2. a) The person seeking the measures, or the
Registrar in the case of the Court acting on its
own motion shall give notice of the proceedings to
the person against whom a claim is made or any
interested persons or any interested States.
b) If any such notice is given, the person or
States shall be entitled to make representations.
3. a) In urgent circumstances, proceedings maybe held without giving notice under sub-
paragraph 2.
b) If an order is made without notice, the Court
shall as soon as practicable hold an inter partes
hearing to enable any persons against whom a
claim is made or any interested persons or any
interested States to make representations that the
order should be revoked or otherwise modified.
ADDITIONAL QUESTION IDENTIFIED BY
WORKSHOP 4:
2) Regarding enforcement: a provision that
orders of the Court need to be sent to the
competent national authorities.
Measures to ensure that assets will be available in the event of a reparation award. If the
Court is to be able to make a meaningful award of reparations in the event of a conviction, it will
need to be able to take provisional measures to control assets of the accused as soon as the Court
issues a warrant of arrest or a summons to appear pursuant to Article 58. The Statute clearly
provides for such measures with a view to enforcing fines or forfeitures included in a judgment
against a convicted person pursuant to Article 77 (2) as penalties in addition to imprisonment, which
can be transferred to the Trust Fund for the benefit of victims, and provides that procedures for
enforcing fines and forfeitures apply to enforcing reparation awards against convicted persons.
However, the Statute does not make clear that the Court can use provisional measures between an
warrant of arrest or summons to appear and a judgment for the purpose of ensuring that there will
be sufficient assets available in the event of a conviction to enforce an award of reparations. It will
be essential for the Rules of Procedure and Evidence to clarify that any assets which are frozen or
seized before judgment with a view to enforcing fines or forfeitures as penalties in the event of a
conviction can be used to guarantee that there will be sufficient assets for the payment of reparations
awards under Article 75 directly to the victim, instead of indirectly through the Trust Fund for all
victims.
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 78
78
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[.]
The duty of states to comply with requests. Although Article 93 (1) permits states parties
to use procedures of national law, they must ensure that neither national procedures nor
substantive law delay or frustrate compliance with the Court's request for assistance. Indeed, Article
86 expressly provides that States Parties shall, in accordance with the provisions of this Statute,
cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction
of the Court. In particular, Article 75 (5) requires states parties to give effect to a decision under
this article as if the provisions of article 109 [requiring states parties to enforce Court fines and
forfeitures] were applicable to this article. The provisions of Article 109 are discussed below.
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 79
79
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 80
80
In particular, periods of limitations must not apply to civil proceedings by victims for
reparationsSee footnote 81
81
and amnesty and clemency measures may not affect the right of victims to reparations.See footnote 82
82
The Rules of Procedure and Evidence should clarify that any assets which are frozen or seized
before judgment with a view to enforcing fines or forfeitures as penalties in the event of a
conviction can be used to guarantee that there will be sufficient assets for the payment of
reparations awards under Article 75 directly to the victim, instead of indirectly through the Trust
Fund for all victims.
States parties must review their legislation and practice in the context of state cooperation to
ensure that the authorities will comply without delay to requests by the Court for cooperation.
The Rules should make clear that states parties must comply with Court requests for assistance
without delay.
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.
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.
1. To help in the elaboration of the Rules of Procedure and Evidence of the International Criminal Court by
making further progress in the discussions of the rights of victims. . .
2. To promote the interests of victims in criminal proceedings before the International Criminal Court, in
accordance with the Statute, taking into account the contributions of each legal tradition.
3. To contribute, with the help of the victims' intervention in the proceedings, to ensuring remembrance, justice,
as well as an increased transparency and clearer understanding of the Court's actions by the people.
The Paris seminar was organized in four workshops devoted to the following topics: (1) the role of victims in
referring a situation to the Prosecutor and during challenges to admissibility and jurisdiction; (2) participation of victims
during the proceedings; (3) protection of victims and witnesses; and (4) reparations, including restitution, compensation
and rehabilitation.
For the purposes of interpretation of the terms 'victims' and 'reparations', definitions are contained in the text
of article 44, paragraph 4 of the Statute [now Article 44 (3)], article 68, paragraph 1, and its accompanying
footnote, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General
Assembly resolution 40/34 of 29 November 1985, annex) and the examples in paragraphs 12 to 15 of the revised
draft basic principles and guidelines on the right to reparation for victims of gross violations of human rights
and humanitarian law (E/CN.4/Sub.2/1996/17).
Report of Working Group on Procedural Matters, U.N. Doc. A/CONF.183/C.1/WGPM/L.2/Add.7, 13 July 1998,
Art. 73 (1), note 5.
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.
(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 45 above) and be properly trained so that they can fulfil this pledge.
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.
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).