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

punishment and the rights of victims 173
the interests of justice’. The Prosecutor is required to take into account ‘the
gravity of the crime and the interests of victims’ in making such a determination.
54 The presence of victims before the Pre-Trial Chamber should
ensure that the Prosecutor does this in a genuine manner.
Even if victims do not participate actively in the trial process, as parties or
interveners, their presence is virtually indispensable as witnesses. Here there
are a number of particular concerns, such as protection of witnesses from
reprisals, and ensuring that the investigation and trial themselves do not
constitute further victimisation of those who have already suffered terribly.
At the investigation stage, the Prosecutor is required to ‘respect the interests
and personal circumstances of victims and witnesses, including age, gender
as defined in Article 7, paragraph 3, and health, and take into account the
nature of the crime, in particular where it involves sexual violence, gender
violence or violence against children’. 55 The Prosecutor is also entitled to
withhold disclosure of evidence if this may lead to the ‘grave endangerment’
of a witness or his or her family. 56 Finally, the Pre-Trial Chamber is to ensure
‘the protection and privacy of victims and witnesses’. 57
Similar responsibilities are imposed upon the Trial Chamber. 58 Specifically,
it is to take ‘appropriate measures to protect the safety, physical and
psychological well-being, dignity and privacy of victims and witnesses’. The
Court is to have regard to all relevant factors, including age, gender, health,
and the nature of the crime, ‘in particular, but not limited to, where the crime
involves sexual or gender violence or violence against children’. 59 With this
in mind, the Court may derogate from the principle of public hearings. 60
It may hold proceedings in camera, or permit evidence to be presented ‘by
electronic means’. Presumably, this refers to testimony where the witness
testifies by video and cannot see the alleged perpetrator, a practice that is
widely used in national justice systems involving children. The views of
the victim or witness are to be canvassed by the Court in making such a
determination. 61
Victims are entitled to intervene at the trial stage, when their ‘personal
interests’ are affected. The ‘views and concerns’ of witnesses may be presented
at any stage of the proceedings, but in a manner which is not prejudicial
to or inconsistent with the rights of the accused and a fair and impartial
54 Ibid., Art. 53(1)(c). See also ibid., Art. 53(2)(c). 55 Ibid., Art. 54(1)(b).
56 Ibid., Art. 68(5). 57 Ibid., Art. 57(3)(c); see also ibid., Art. 57(3)(e).
58 Maryland v. Craig, 497 US 836 (1990); Rome Statute, Art. 64(6)(e).
59 Ibid., Art. 68(1). 60 Ibid., Art. 68(2). See also ibid., Art. 69(1). 61 Ibid., Art. 68(2).