Victim Participation Revisited: What the ICC is Learning About Itself

Abstract

The chapter highlights the key turns in the ICC jurisprudence and debates of the past half-decade in the area of victim participation. It surveys procedural and practical challenges the Court has been facing in implementing its ambitious and indeterminate legal framework and reflects on the prospects for the future. By reaching its teenage years, the ICC may have hoped to develop the ‘know-how’ of victim participation, including the application process, legal representation, and participation modalities. But as its approaches to these matters have been crafted experimentally and in a piecemeal fashion, they continue to be varied and case-specific. At the level of the institution, the questions of effectiveness and sustainability of the ICC’s victim participation model remain acute. This concerns not only the fairness and efficiency of the court process, but also impinges on the ICC’s relationship with the affected communities and on the Court’s relevance and credibility. The diversity of current policies and persisting problems in their implementation add fuel to the growing insecurities within the ICC system. Victim participation has emerged as a governance issue and a matter of concern for the Assembly of States Parties. This chapter places the strenuous efforts by the Chambers and the Registry in devising effective solutions and the court-wide strategy in the context of the policy pull by the Assembly towards more harmonized practice. Given the tension between the two agendas, it queries to what extent the harmonization approach is timely and realistic and, if it is to be pursued, what it might entail in practical terms. The diversity of situations before the Court—each with unique pattern and character of victimization, security conditions, number of victims in contact with the Court and other ‘unknowns’—only enable ‘soft’ harmonization that leaves room for reasonable flexibility and variation across cases. For victim participation to be workable and sustainable, the axis of harmonization lies along the enhanced pragmatism and rationalization of procedural and administrative practices that promote the ICC’s effectiveness as a criminal justice institution. The ICC should rediscover itself as a ‘retributive’ court rigidly constrained in mandate and resources and free itself from the ‘restorative complex’. The emphasis on collective forms of application, participation, and representation will continue, except where victims wish to participate in person. Since this will be allowed where the victim can provide the Court with relevant evidence and information, meaningful participation essentially means one aligned with the Court’s core mandate and functions of criminal process, notably the determination of truth.

Keywords: victim participation, application process, common legal representative, views and concerns, presentation of evidence, truth, harmonization, governance