Justice for Victims before the International Criminal Court

Luke Moffett

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415722391
• eBook ISBN: 9781317910817
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Many prosecutors and commentators have praised the victim provisions at the International Criminal Court (ICC) as 'justice for victims', which for the first time include participation, protection and reparations. This book critically examines the role of victims in international criminal justice, drawing from human rights, victimology, and best practices in transitional justice.

Drawing on field research in Northern Uganda, Luke Moffet explores the nature of international crimes and assesses the role of victims in the proceedings of the ICC, paying particular attention to their recognition, participation, reparations and protection. The book argues that because of the criminal nature and structural limitations of the ICC, justice for victims is symbolic, requiring State Parties to complement the work of the Court to address victims' needs.

In advancing an innovative theory of justice for victims, and in offering solutions to current challenges, the book will be of great interest and use to academics, practitioners and students engaged in victimology, the ICC, transitional justice, or reparations.

1 Conceiving justice for victims of international crimes

A Introduction

Justice for victims has often been claimed as a purpose of international criminal justice mechanisms.¹ Yet criticism has been levelled at these mechanisms for not doing enough for victims.² A further difficulty lies in the ambiguity as to what justice for victims means within international criminal justice, beyond the rhetoric to its practical application. In order to rectify this and to provide an analytical foundation for the rest of the book, this chapter will outline a theory of justice for victims and how it can operate within the International Criminal Court.

Beginning with a discussion on international criminal justice, this chapter distinguishes international crimes from domestic crimes, before moving on to examine how the prevailing criminal justice theories have influenced international criminal justice. The following section considers the theoretical basis of who is recognised as a victim. The third section develops a theory of justice for victims by drawing from victimological research of their needs and the development of their rights in national practices and human rights law. The final section incorporates this theory into international criminal justice by exploring the importance of victims, alternative justice theories, and the limitations of the ICC. The main conclusion reached in this chapter is that justice for victims is an expansive concept which is broader than the capacity of a single institution such as the ICC. Nevertheless, the Court can maximise the rights of victims in its proceedings and achieve some form of justice for victims by seeking compliance of states through victim-orientated complementarity to provide remedies to those who suffer as a result of international crimes.

B International criminal justice

International criminal justice is mainly concerned with the prosecution and punishment of individuals responsible for international crimes at an international court. International crimes transcend the suffering of individual victims and the jurisdiction of the state, by violating fundamental interests of the international community, such as international peace and security or widespread violations against human beings.³ These fundamental interests also fall under ‘jus cogens’ (compelling law) norms, which are ‘accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.⁴ Such norms include the prevention of genocide, torture, and grave violations of international humanitarian law.⁵ A violation of a jus cogens norm is deemed ‘objectively illegal’⁶ or ‘intolerable because of the threat it presents to the survival of States, their peoples and the most basic human values’.⁷ Holding individuals criminally responsible for international crimes serves to uphold these fundamental interests of the international community.⁸ Under international law states also have a duty to investigate, prosecute, and punish individuals responsible for international crimes.⁹ Where states are unable or unwilling to do this, recourse can be made to international criminal justice so as to vindicate international law.

1 The distinctive nature of international crimes

In comparison to domestic crimes, international crimes have a more aggravating and serious nature, which often arises in times of conflict, internal strife, or collective violence. Five general characteristics of international crimes can be discerned: (1) mass victimisation; (2) large-scale organised participation; (3) ideologically driven perpetration; (4) state involvement; and (5) the impact of the crimes and impunity on victims.¹⁰

First, international crimes are not normally a single crime committed against one individual, but numerous crimes perpetrated against multiple individuals and groups over a period of time.¹¹ In international criminal law, core international crimes include genocide, crimes against humanity, and war crimes.¹² Genocide is committed against a ‘group’ of victims, crimes against humanity involve a ‘widespread or systematic attack’ directed against a civilian ‘population’, and war crimes entail ‘a plan or policy’ or a ‘large-scale commission’ as part of an armed conflict.¹³

Mass scale of victimisation of international crimes is connected to the second point that these crimes can, but does not always have to, involve highly organised mass participation of individuals and groups, rather than a sole perpetrator acting alone. The clearest example of this would be the genocide in Rwanda which killed up to a million civilians, but also involved the organised mass participation of hundreds of thousands of perpetrators in the government, military, local leaders, the media, and the civilian population.¹⁴ Furthermore, such atrocities can be committed by both state and non-state actors, which can collude with each other. Such actors usually work in organised groups to facilitate the mass scale of such crimes.¹⁵

Third, the perpetration of international crimes can be ideologically driven.¹⁶ Often international crimes target individuals because of their ethnicity, race, religion, political beliefs, or identification as a marginalised group. Such labelling is usually framed in historical, political, or religious narratives to distance perpetrators from victims as ‘others’, or is based on previous victimisation of individuals or groups to justify future violence. As part of this ideology victims are often dehumanised to legitimise violence against them or to glorify the perpetrators, such as the Nazis in the Holocaust depicting Jews as ‘rats’, or in the Rwandan genocide Tutsis being called ‘cockroaches’.¹⁷

The fourth distinguishing element of international crimes is that they usually occur on a widespread or organised scale due to actions or inactions of a state.¹⁸ State involvement in international crimes can either be through direct perpetration through its forces, or collaboration or acquiescence where crimes are committed by non-state actors.¹⁹ The inaction of the state, such as the failure to protect civilians can enable armed groups to commit crimes with impunity, as the state normally has a monopoly on force with its security forces and criminal justice infrastructure to prevent armed groups escalating violence into mass atrocities. Often the infrastructure, organisation, and resources of the state are necessary to carry out crimes on a widespread and systematic scale, such as in the Holocaust. As international criminal justice focuses on the responsibility of the individual rather than the state, it reflects the theoretical aspects of domestic criminal justice, explored further in the next sub-section.²⁰

A final point to note is the impact of the crime on the victim and their family, which goes to the grave nature of these offences.²¹ International crimes can often involve brutal killings and mutilations that cause serious mental trauma and suffering to those who are subjected to such crimes or to those who witness them.²² This is further compounded by age, gender, or vulnerability of the victim as well as effects of impunity, whereby victims are denied recognition by the state or access to justice, examined further below. Together these five inter-related elements, which may not all be present, help to distinguish international crimes from domestic ones. Neverthe...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• List of abbreviations
• Introduction
• 1 Conceiving justice for victims of international crimes
• 2 The development of victims in international criminal justice
• 3 Victims in the proceedings of the International Criminal Court
• 4 Reparations and responsibility under the Rome Statute
• 5 The impact of the International Criminal Court on victims in Northern Uganda
• 6 Victim-orientated complementarity: a wider perspective
• 7 Conclusion
• Bibliography
• Index