Victim Participation at the International Criminal Court: The Dream Overshadowed by Reality

Abstract

Victim participation in international criminal proceedings has only recently been permitted at international criminal law, through the creation of the International Criminal Court (ICC). This paper gives a brief overview of the role of victims throughout history, from the first international criminal tribunals at Nuremberg and Tokyo up until the birth of the ICC. It discusses the rationale for victim participation, firstly considering the concepts of retributive and restorative justice, and then more specifically the motivations for including the victim participation scheme in the Rome Statute and the legitimate claims victims may have for wishing to participate in ICC proceedings. It goes on to describe the role of victims in the two main domestic legal systems; the Civil Law and the Common Law. The ICC applies a hybrid of procedures from the Common Law and the Civil Law, and this paper discusses the danger in haphazardly amalgamating elements from these different legal systems. The Victim Participation regime conferred by the Rome Statute affords judges wide discretion to determine the manner in which victims may participate, and this has led to extensive rights being afforded to victims. This paper critically assesses the issues that victim participation at the International Criminal Court has caused and has potential to cause, including delays in proceedings and the erosion of defendants’ rights. It suggests options for reform of the Victim Participation regime, concluding that if no action is taken to resolve the issues, the Court will be viewed as ineffective, illegitimate and unjust, and will bring the administration of international criminal law into disrepute.