Journal of the International Law Department of the University of Miskolc

Miskolc Journal of International Law

Miskolci Nemzetközi Jogi Közlemények
 

Vol. 4. (2007) No. 1. pp. 95-106.

Apreotesei Ioana-Alina[1]: The Victims of the Crimes under the Jurisdiction of the

International Criminal Court – Some Aspects of Legal Responsibility

1. A short introduction to the ICC 

The International Criminal Court, seated in The Hague, the Netherlands, was established by the Rome Statute which was adopted on July the 17^th 1998 and entered into force on July the 1^st 2002. Currently[2], 102 states have joined the Statute. Mexico was the 100^th state which ratified the act on October the 28^th 2005. ICC became a reality of the third millennium after more than 125 years of legal work. The process was long, hard, with a lot of obstacles. Most of them were political or psychological, but finally the need of an international justice defeated all of them. 

Establishing the ICC was a great step in the history of international law. In the last century we faced the worst violence in the history of humanity. More than 250 conflicts were born and more than 86 million civilians, mostly children, women and old people have died in these conflicts. Over 170 million people were deprived of their own rights[3]. We had to punish the ones responsible for these actions. Until now the national systems have not reacted as they should have done, maybe because they could not or they were afraid to do it.  

The goals of the ICC are to punish the ones responsible for the atrocities committed in the world, to make justice for the victims by repairing the damages, and to prevent the committing of such horrible crimes. The international justice has the highest importance for the international community and we need a permanent Court to make sure that the international peace and security are assured. The creation of the ICC is a historic victory for human rights and international justice. 

 ICC comes to eliminate very critical issues of our time, such as the recruitment and use of child solders, the widespread incidence of crimes of sexual violence, the commission of crimes motivated by racism, the proliferation and widespread use of small arms.

2. Jurisdiction of the ICC 

The Court has international legal personality[4], as it is written in the 4^th article of the Statute[5]. The jurisdiction of the Court is over the persons who commit the gravest crimes, as the genocide, crimes against humanity, war crimes, and, once defined, aggression[6]. The definitions of these crimes are very well explained in the Statute in order to show their gravity. For example, someone is guilty of  genocide if he is killing members of one group, causing serious bodily or mental harm to members of one group, or if he is forcibly transferring children of one group to another.  

The crimes against humanity means murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, apartheid, etc, all of these being committed in some conditions very well explained by the Statute.  The war crimes are the ones explained in the Geneva Convention: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;  compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; taking of hostages, etc,[7]. The crime of aggression is not yet defined. 

The Court has jurisdiction over the crimes committed only after the entry into force of the Rome Statute. What is very important and characteristic for the Court is the principle of complementarity to the national jurisdictions. This means that ICC can exercise its jurisdiction only if the nationals systems do not conduct proceedings, or they do not want are not able to do it.

3. The status of victim under the Rome Statute 

ICC brought a lot of elements of novelty for the international justice system. In the history of international law, the victim was often seen as a witness. The ICC managed to change that fact and for the first time, the victim can participate in a criminal trial in his or her own name. The victim became more than a witness. The reparation regime is something completely new for an international court. Someone has to protect the victims, to offer them the possibility of participating in a trial in their own names in order to obtain compensation. Who are the victims under international law and how can they participate in a trial and most important, who is going to offer them compensation, who is responsible for that? The answers to these questions are taken into account next. 

The United Nations offered the definition of the “victims of crime”, back in 1985, when adopting the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[8]: 

“Victims means 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.A person may be considered a victim, under this Declaration, regardless of weather the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term victim also includes, where appropriate, the immediate family or the dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization”.

         ICC provides a definition of the victim in Rule no. 85[9]:

         “(a) Victims mean natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;

(b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes”.

3.1. Protective regime for the victims

ICC offers a protective regime for the victims and witnesses. Their help can be considerable for finding the truth and making justice. Almost always those persons are very frightened and they don’t have the courage or the will to come forward to help the justice system. They are victims and witnesses of the most horrible crimes, the gravest ones. War crimes, crimes against humanity, genocide, are crimes that you never forget and their effects are marking you for the rest of your life. 

That is why the justice system has to encourage these people to come and help finding the truth and punishing the responsible. ICC has the advantage of being established after ICTY[10] or ICTR[11], so, the experience of the Tribunals[12] helped the Court in improving the system of justice. Article 43 (6) foresees the establishment of a Victims and Witness Unit[13] within the Registry. Article 68[14] of the Rome Statute contains the protective measures that the victims and witnesses can beneficiate of. The rules of procedure and evidence explain in detail how the Victims and Witness Unit will work (rules 16-19)[15] and also, provide some information regarding the protective measures (rules 87 and 88): camera proceedings, anonymity, electronic testimony, usability of means that enable the alteration of picture or voice, videoconferencing, etc. 

The ICC is dealing with four situations: Democratic Republic of the Congo (DRC), Uganda, Darfur (Sudan) and Central African Republic. The situation in DRC offers already examples of using the protective measures with regard to the victims and witnesses. On 4 August 2006[16] the Pre-Trial Chamber I, presided by Single judge Sylvia Steiner ordered  the  Registrar  to  provide  as  soon  as  possible to  the  Prosecution and Defence Counsel a  non‐redacted  copy  of  the  Applications  for  participation, in  which  any  information leading  to  the  identification  of  the  applicants had to be deleted. The judge also ordered all  the  organs  of  the  Court  not  to  contact  the  applicants  directly  and  to  do  so  only,  if  necessary,  via  the  Victims  Participation  and  Reparations  Section[17].  

In order to make possible the disclosure meetings, it was created an E-Court Protocol for the Provision of Evidence, Material and Witness Information in Electronic Version[18]. In this way, if the Counsel of Defence request, the Prosecution can provide a CD containing the related information for the Defence at the occasion of disclosure meetings.  

At the recommendation of the Victims and Witnesses Unit it was created a general framework concerning protective measures for Prosecution and Defence witnesses[19].

 3.2. Participation of the victims 

For the first time in the history of international law, ICC gives the victim the right to participate in a trial not only as a witness, but in his or her own name, too. The experience from ICTY showed that the persons who suffered because of an odious crime are afraid to come to testify, or if they come, they are not satisfied with the position of the witness. Yes, they want to come to help the system of justice in finding the truth, but they would be more interested to come if they could express their personal experiences, their own points of view, and most of all, their needs.  

In the ICTY practice it was formed an assumption that if a person testified, then he or she was the witness of the Prosecution, therefore, the victims who testified for the Prosecution, were in a way protected by the prosecutor. In reality, it was not like this, and the victims were not protected at all. In Rwanda, which is a civil law country, they had the “parte civile” institution[20], but the ICTR did not. As a consequence, the victims stopped cooperate. ICC learned from that. 

The rules of procedure and evidence contain a whole subsection regarding the participation of victims in the proceedings. Rule 89 explains how to make an application in order to participate[21]. The application can be made by the victim him or herself, or by someone else on his or her behalf. The application has to be written and addressed to the Registrar, who will transmit it to the Chamber. A copy will be given to the Prosecutor and the defense. 

The victim can choose a legal representative. Rule 90 foresees that a victim or a group of victims can request a common legal representative or more representatives. The legal adviser can also be chosen by the Court. If the victims don’t have the financial means to pay the legal representative chosen by the Court, they may ask the Registry to offer them financial assistance[22]. On 19 September 2005 it was established The Office of Public Counsel for Victims (OPCV), which provides support and assistance to the legal representatives of victims and to victims participating in the proceedings as well as asking for reparations.  

The Office provides legal research and advice to victims and their legal representatives at all stages of the proceedings in accordance with the Rome Statute, the Rules of Procedure and Evidence, the Regulations of the Court and the Regulations of the Registry. The Office also appears before a Chamber in respect of specific issues, when required[23].  

The victims can ask to participate in every stage of the proceedings. This is a very interesting element of procedural law. In the national systems, a victim can ask to participate in his or her own name in a trial only until a certain stage. For example, in Romanian law there is a difference between the victim who wants to participate in a trial and the victim who doesn’t want. They have different names. The one who wants to participate is called “parte vătămată”[24] and the one who does not want to participate is called “persoană vătămată[25]”. What is very interesting is that, unlike under the ICC, where a victim who participates in the trial can also be a witness, in the Romanian law, the victim who chooses to participate in his or her own trial, can not participate as a witness. Only the victim, who doesn’t participate in the trial as a part, can participate as a witness. On the other hand, the victim, can become a part in the trial, only until a specific moment, which is the confirmation of charges. After this moment, the victim can participate only as a witness and not as a part, not in his or her own name. 

ICC already confronted with some victims applications to participate in the proceedings. On 14 June 2005 six persons asked to participate in the proceedings[26] and on 17 January 2006 the Pre-Trial Chamber I[27] decided that in order to permit the victims to participate in the proceedings, first has to be recognized the quality of victims to those persons[28]. That is why on 28 March 2006, the Chamber gave the possibility to the Office of the Prosecutor and the Counsel of Defence to present their observations regarding the recognition of the quality of victim for the 6 persons[29]. On 7 April 2006 the prosecution requested the Pre-trial Chamber I to deny the applications of VPRS 1 to 6 to participate as victims in the case against Mr. Thomas Lubanga Dyilo[30]. The Prosecution’s base was that the six persons did not provide sufficient evidence that they suffered losses directly linked to the crimes constituted against Mr. Lubanga Dyilo[31]. The Counsel of Defence pronounced in the same way[32]. 

The Legal Representative of the Victims answered to these observations and on 31 May 2006 provided more arguments in favour of the status of victims for the six applicants[33]. As a consequence, with some exceptions, the Prosecution recognized the status of victims for the applicants and requested the Chamber to grant it to them[34]. Even if the Chamber did not allow them to participate[35], it reminded the victims their right to apply again in another stage of the trial, as the Rule 89 (2) provides[36]. Only one month later, the Chamber recognised the status of victim for three persons[37]. The victims asked to be present at the hearings when the confirmation of charges would take place and the Chamber invited their Legal Representative to present the legal methods which they intend to use[38]. 

As we can see the participation of victims became a reality within ICC. The Victims’ Representatives “have requested that they participate in the confirmation hearing, specifically by being entitled to make oral interventions, in particular opening and closing statements, and by being permitted to question the accused. The Victims' Representatives have also stated that they propose submitting documents in response to those filed by the Prosecution and the Defence”[39]. The Chamber decided on this matter on 22 September 2006[40]. 

Victims’ requests to participate in the proceedings were also made by persons who suffered harm in Darfur, Sudan. Raymond M. Brown and Wanda M. Akin-Brown, in conjunction with Darfur Rehabilitation Project, Inc. (DRP), a not-for-profit organization formed by Darfurians in response to the human rights violations in their homeland, submitted the first applications on behalf of victims of the Darfur Crisis to participate in the criminal proceedings before the ICC[41]. 

3.3. The reparation regime for the victims 

ICC is the first international court which can oblige an individual to pay reparation to another individual, as until now this fact was left into the concern of the states and not individuals. As article 75[42] provides, reparation can be provided including restitution, compensation and rehabilitation. Rules 94-99 contain dispositions concerning the reparation to the victims. The reparation can be paid through the Victims’ Fund and can be individual or collective. In this latter case, the reparation can be paid to an inter-governmental, national or international organization. 

The Trust Fund was established by the Assembly of States parties and its aim is to get money for victims. A person found guilty may be in an impossibility of compensating the victims, and that’s why the Trust Fund can help. The funds can come from grants from different governments, individuals or organizations[43]. One of the Court basic principles is the one of the complementarity. In order to succeed, ICC needs the help of the states parties. Rule 217[44] refers to the cooperation and measures for enforcement of fines, forfeiture or reparation orders and rule 219 foresees that national authorities do not have the ability to modify the reparations specified by the Court, the scope or extent of any damage, loss or injury determined by the Court or the principles stated in the order. By establishing such rules, ICC is trying not only to make justice by punishing the criminals, but also by helping victims to get justice for themselves[45]. 

The situation in DRC is the first one to offer examples of such measures which can help in restitution, compensation or rehabilitation. After the Pre-Trial Chamber I issued a warrant of arrest for Mr. Thomas Lubanga Dyilo on February 2006, it was taken the decision of identification, tracing and freezing or seizure of his property and assets[46]. This decision was made by taking also into account the paragraph 15 of United Nations Security Council resolution 1596[47], which states that “ […] all States shall, […] immediately freeze the funds, other financial assets and economic resources which are on their territories from the date of adoption of this resolution, which are owned or controlled, directly or indirectly, by persons designated by the [Sanctions] Committee pursuant to paragraph 13 above, or that are held by entities owned or controlled, directly or indirectly, by any persons acting on their behalf or at their direction […]“. 

For this purpose, the Chamber requested the States Parties to the Statute “to take all necessary measures, in accordance with the procedures provided in their national law, in order to identify, trace, freeze and seize the property and assets of Mr. Thomas Lubanga Dyilo on their territory, including his movable and immovable property, bank accounts or shares, without prejudice to the rights of bona fide third parties”. Mr. Thomas Lubanga Dyilo is charged with enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. Child soldiers is a very sensible issue because most of the times the children are not only victims but perpetrators also[48]. 

4. Legal Responsibility, State Responsibility 

Reparation is as much about the restoration of dignity and the acknowledgement of the harm suffered, as it is about monetary compensation or restitution[49]. While the right has been clearly acknowledged, its practical application has been fraught with difficulties and uncertainties[50]. There are many issues that may still require clarification. 

For example, who is responsible for providing redress – the perpetrator in his or her personal capacity, the state, non-state actors, or some combination of these? What principles should be used in determining the nature and scope of an award for reparation? How would domestic courts deal with cases of mass victimization? How is the measure of damages and compensation to be established in view of significant differences in legal systems and economic standards? Which body would be responsible for the provision of reparation in the form of social or medical services? Would states be required to assume any shortfall if perpetrators are insolvent[51]? How will the reparations provisions play out in practical terms[52]? 

If we also analyze the definition of the victim, it suggests that we have to wait until the end of the trial, for the Court to pronounce a decision. If we have to wait, then we still deal with a “victim” or only with a “witness”? If we do accept that we deal with a victim, than what about the presumption of innocence for the accused? 

Can the state responsibility be taken into account? Generally, the states responsibility refers to the liability of states for conduct in violation of the rules of international law and resulting in injury to other states. Infringement or denial of a right owed to another state creates a duty to redress the violation or to make reparation. So, the right has to be owed to another state, not to an individual. The subjects of law are in this case states and not individuals. 

There are three main conceptions in the international public law doctrine regarding the state responsibility. The first is the theory of the “State act”, which denies state’s responsibility because the state is an entity, a fiction[53]. Another theory sustains that a state can be responsible because it has its own will, different from the will of its members[54]. Vespasian Pella called the state criminality “collective criminality”[55]. The third theory denies the states’ responsibility because the criminal responsibility is an attribute of the human beings[56]. The International Law Commission (ILC) draft articles on state responsibility[57] make the difference between the criminal and the civil responsibility. All unlawful violations of international law are considered to be international delicts or torts. According to the ILC Draft “any internationally wrongful act which is not an international crime…constitutes an international delict”[58]. Article 19(2) of the Draft Articles defines an international crime as “an international wrongful act which results from the breach by a state of an international obligation so essential for the protection of the fundamental interests of the international community that its breach is recognized as a crime by that community as a whole…”. 

It is a little bit unclear if the international crimes are perpetrated by individuals or by states. Brownlie claimed that “the state is only liable for delicts (while)…the individual directly responsible for a crime against peace is liable to trial and punishment”[59]. The actions of a number of states organs, agencies and representatives must be attributed to the state for the purposes of determining international responsibility. So, the state is responsible for the acts of the executive, legislative and judicial branches of the government[60], for any action of the political sub-division of the state[61] or for any action of an organ, state employee or other agent of the government functioning within their official capacity[62]. 

Therefore the state is responsible only if an individual acts in his official capacity. Generally the crimes under the jurisdiction of the ICC are crimes of leadership. So if a crime is committed by a person in his or her official capacity, then the state should be responsible for the crime, and in this case, should compensate the victims. But if that person does not act in his or her official capacity, then the state can not be liable for the crimes committed by that person. Giving the current situations which ICC is dealing with, no state is responsible because the accused acted in their personal capacity. So only the accused should pay the victims, should offer them compensation. But what happens if the criminal does not have founds to offer to the victims? There is always the possibility of the Trust Fund, but what if this is not enough? Should then the state whose national committed the crime compensate the victim? 

The crimes under the jurisdiction of the ICC are the gravest crimes: genocide, crimes against humanity, war crimes and once defined aggression. A universally accepted definition of aggression is very hard to find. A lot of factors are to be taken into account. Who is going to be responsible for aggression? A state, an individual or both? Who is responsible for genocide? A person or a state? Currently the international law is confronting with a very interesting direction. The International Court of Justice[63] is dealing with two pending cases: 1) Bosnia and Herzegovina vs. Serbia and Montenegro and 2) Croatia vs. Serbia and Montenegro. Both have the same dispute: application of the Convention on the Prevention and Punishment of the Crime of Genocide. It will be very interesting to see the solution will ICJ bring in these two cases and its impact on victims.

Conclusions 

The establishment of the ICC was an important step forward for the history of international law. It brings more elements of novelty compared with the International Tribunals. The participation of the victims and their compensation is one of these elements. Still a lot of questions need to be answered: 

What effects would have an amnesty for the victims? Currently in Uganda the authorities are negotiating a conditional amnesty for the five LRA leaders for whom ICC issued warrants of arrest. If there will be an amnesty, who is going to compensate the victims? The five LRA leaders? The Ugandan Government?        

Who is going to compensate the persons who are victims of a “situation” but who are not victims of a “case”? For example, at the beginning, ICC was seized with the situation in Congo. A lot of victims were considered for participation or compensation. After the situation became a case, and Mr. Thomas Lubanga Dyilo was accused, the number of victims to fulfill the criteria requested by the Rome Statute suddenly became lower. Only the persons who suffered harm or loss as a consequence of one or more of the three accusations can submit for participation and compensation. What about the others victims? The ones who suffered harm because of a crime committed by someone else in Congo? What about the persons who suffered harm after a crime committed by Mr. Thomas Lubanga Dyilo, crime which is not under the jurisdiction of the ICC, or even if it would be, there is not enough proof for the Prosecution to charge with? What about these victims? Who is going to offer them reparations? 

The victims are going to be compensated from the Trust Fund, but only at the end of trial. What happens with the victims who need help during the trial? Most of them lost their homes, their family; they need a place to stay. Most of them are ill. They need treatment. Will be the Trust Fund enough? What happens with the indirect victims? The ones who remained on a territory marked by the terrible crimes? The victims of hunger and disease?

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