This lesson focuses on the ICC's innovative provisions on the participation and protection of victims and witnesses. Without the effective participation of victims and witnesses it is not possible to truly seek justice.

Participation

For the first time in the history of international criminal justice, the Rome Statute gives victims the possibility to present their views and observations before the ICC. Participation before the ICC may occur at various stages of proceedings and may take different forms, although it will be up to the judges to give directions as to the timing and manner of participation. Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted "in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial".?The victim based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC not only to justly punish the criminals, but also to provide redress to the victims.

Retributive justice is the infliction of punishment justified on grounds that the wrongdoing of a criminal has created an imbalance in the social order that must be addressed by action against the criminal. Restorative justice is a response to wrongdoing that emphasizes healing the wounds of victims, offenders and communities affected by the criminal act.

Protection

Experience from the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) has shown that it is crucial to arrange for the protection and assistance of victims and witnesses appearing before the court/tribunal. Unless this is done, it is difficult to ensure that the truth surrounding the gravest of crimes will be revealed.

Accordingly, article 43 (6) of the Rome Statute requires the Registrar to set up a Victims and Witnesses Unit, which in consultation with the Office of the Prosecutor, is to provide counseling and other appropriate assistance for witnesses and victims appearing before the Court, as well as others at risk on account of testimony given by such witnesses. The Unit is also to plan protective measures and security arrangements for these persons. Its staff should include persons with expertise in trauma, including trauma related to crimes of sexual violence. Article 68 (4) of the Statute further notes that this Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counseling and assistance for victims and witnesses as referred to in article 43 (6).

The Rules of Procedure and Evidence provides further details regarding the functions of the Victims and Witnesses Unit. It notes that the Unit shall establish short and long term plans for the protection of all witnesses and victims that appear before the Court. In consultation with the Office of the Prosecutor, the Unit shall draw up a code of conduct emphasizing the importance of security and professional secrecy for investigators of the Court, the defense and for all inter-governmental and non governmental organizations acting on behalf of the Court. The Unit shall also help victims and witnesses to receive medical and psychological care. Finally, the Unit will be in charge of negotiating agreements with states concerning the resettlement of traumatized or threatened persons.

Reparation

Another first in the history of international criminal justice is an international court having the power to order an individual to pay reparation to another individual. Article 75 of the Rome Statute allows the ICC to set out principles for the reparation for victims. Furthermore, the Court is to enter an order against a convicted person stating the appropriate reparation for the victims or their beneficiaries. This reparation may also take the form of restitution, indemnification or rehabilitation.

Other procedures relating to the participation and compensation of victims have been entrusted to the specialized Victims' Participation and Reparations Unit. Prior to the court making an order for reparation, the victims may make representations with the Registrar, which the Court will consider. These representations should contain the elements laid down in Rule 94 of the Rules of Procedure and Evidence. The Victims' Participation and Reparation Unit is currently producing a standard form to make this easier for victims. They may also apply for protective measures for the purposes of confiscating property from the persons prosecuted.

The Court has the option of granting individual or collective reparation, concerning a whole group of victims or a community, or both. As a general rule, individual reparation is to be paid directly to the victims. If the Court decides to order collective reparation, it may order that reparation to be made through the Victims' Trust Fund and the reparation may then be paid to an inter-governmental, international or national organization.

Victims' Trust Fund

Providing justice to the victims of grave crimes is important. Just as important is providing them with assistance and compensation to rebuild their lives, often shattered by war and violence. The Victims Trust Fund aims to do this by channeling money to the victims, among who can be child soldiers--minors pressed into military service--who may have suffered great ordeals as a result of being forced into front line service, rape victims in need of counseling, or villagers in need of resources to rebuild their bombarded village.

The fund was established by the ICC, and is administered by the Registrar, but it is also supervised by an independent board of directors. The money for the fund comes mainly from the compensation imposed upon the convicted persons, as well as from voluntary contributions made by governments, organizations or individuals. However, all voluntary contributions must first be approved by the board of directors.

The fund may make payments directly to victims or to other bodies, such as international or local aid organizations. The money can be allocated either to individuals or to a group. Furthermore, when convicted persons are not able to pay the requisite compensation imposed by the Court, the fund can be used as an alternative (but temporary) source of resources.

Questions For Discussion

1.    How are the ICC's provisions for victims and witnesses different from other international or national provisions that you are aware of?
2.    Does your country have a victim and witness protection legislation and programme? If so, how effective is it?
3.    Discuss how some of these provisions can be integrated into your domestic institutions and laws.