An Introduction To The International Criminal Court - Institute for ...

172 introduction to the international criminal court
instead of one. 47 Nevertheless, the debate took place in the context of a
growing emphasis on the importance of victims in international human
rights law 48 and in international humanitarian law. 49 Furthermore, there
is an important trend in criminal justice towards what is called ‘restorative
justice’, an approach that is victim-oriented.
Victim-related issues are addressed in various provisions of the Statute.
To further emphasise this matter, the Preparatory Commission drafted a
‘general principle’ as part of the Rules:
A Chamber in making any direction or order, and other organs of the Court
in performing their functions under the Statute or the Rules, shall take into
account the needs of all victims and witnesses in accordance with Article 68,
in particular children, elderly persons, persons with disabilities and victims
of sexual or gender violence. 50
From the standpoint of procedure, victims may participate in the activity
of the International Criminal Court in a number of ways. 51 First, they
may intervene before the Pre-Trial Chamber when the Prosecutor is seeking
authorisation to proceed with an investigation at his or her own initiative. 52
Presumably, victims will tend to support the Prosecutor. To this extent, the
right to participate is not too far removed from the situation of the partie
civile (literally, ‘civil party’, a private complainant) in Romano-Germanic
legal systems, who may attempt to initiate prosecution. In a more general
sense, victims may also participate in the course of challenges to jurisdiction
or admissibility, even in cases that have been initiated by States parties or by
the Security Council. 53 Victims may, however, also find themselves at crosspurposes
with the Prosecutor, when he or she decides not to proceed because
there are ‘substantial reasons to believe that an investigation would not serve
47 Christopher Muttukumaru, ‘Reparation to Victims’, in Lee, The International Criminal Court,
pp. 262–70 at pp. 263–4.
48 ‘Basic Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations
of Human Rights and International Humanitarian Law’, UN Doc. E/CN.4/1997/104. See also
‘Declaration on Basic Principles of Justice for Victims of Crimes and Abuse of Power’, GA Res.
40/34, Annex.
49 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
Personnel Mines and on Their Destruction 1997, (1997) 36 ILM 1507 (the ‘Ottawa Treaty’),
Art. 6(3).
50 Rules of Procedure and Evidence, Rule 86.
51 See generally David Donat-Cattin, ‘The Role of Victims in ICC Proceedings’, in Lattanzi and
Schabas, Essays on the Rome Statute, pp. 251–78.
52 Rome Statute, Art. 15(3). 53 Ibid., Art. 19(3).