The Victim-Related Provisions of the Statute of the International Criminal Court: A Victimological Analysis#
| Published date | 01 September 2001 |
| Date | 01 September 2001 |
| DOI | 10.1177/026975800100800303 |
International
Review
ofVictimology,
2001,
Vol.
8,
pp.269-289
0269-7580/01
$10
© A B
Academic
Publishers
-Printed
in
Great
Britain
THE
VICTIM-RELATED
PROVISIONS
OF
THE
STATUTE
OF
THE
INTERNATIONAL
CRIMINAL
COURT:
A
VICTIMOLOGICAL
ANALYSIS#
SAMGARKAWE
Senior
Lecturer,
School
of
Law
and
Justice,
Southern
Cross
University,
NSW,
Australia*
ABSTRACT
The
1998
Rome
agreement
to
create
a
permanent
International
Criminal
Court
(the
'ICC')
is
a
significant
psychological
advance
in
the
fight
against
impunity
for
those
who
perpetrate
massive
violations
of
human
rights.
It
has
also
been
said
to
be
an
important
step
forward
in
the
recognition
of
the
suffering
and
the
rights
of
the
victims
and
survivors
of
the
international
crimes
that
are
defined
in
the
Statute
of
the
ICC.
This
article
will
critically
analyse
from
a
victimological
perspective
the
provisions
of
the
Statute
of
the
ICC
that
directly
concern
such
victims.
These
provisions
can
be
grouped
into
those
that
allow
for
victim
participation
into
pre-trial
and
trial
decisions,
victim
support
and
protection,
and
victim
reparation.
The
conclusion
to
the
article
suggests
that
while
the
terms
of
the
Statute
are
clearly
an
advance
for
victims,
there
are
a
number
of
concerns
that
in
practice
may
undermine
the
usefulness
of
the
ICC
from
a
victimological
perspective.
Like
all
measures
that
promise
benefits
for
victims,
they
must
be
carefully
implemented
and
their
use
continually
evaluated
through
proper
scientific
research
on
victims'
experiences.
INTRODUCTION
In
Rome
on
17
July
1998
the
creation
of a permanent International Criminal
Court ('ICC')
was
finally
agreed
after over
50
years
of avoidance, wrangling
and,
at
times,
sheer
stubbornness
by
many
of
the
world's major
powers.
The
promise of
Nuremberg
will
finally
come
into
fruition
with
the establishment of
the
first
truly
international
and
universal
criminal
court.
Once
the
ICC
comes
into
operation, 1,
it
will
have
the
potential
to
place
on
trial
those
who
commit the
international
crimes
of
genocide,
crimes
against
humanity,
war
crimes
and
aggression.2
Naturally,
like
any
major
international
agreement
that
involves
most
ofthe world's nations,
the
Rome
Statute
ofthe
ICC
(the
'ICC Statute')
was
born
as
much
out of political
bargaining
as
it
was
out
of principled decision-making.
In
attempting
to
gain
the
acceptance
of
the
world's
major
powers,
particularly the
•
Email:
sgarkawe@
scu.edu.au.
#This
is
an
updated
version
of a
paper
delivered
by
the
author
to
the
1Oth
International
Symposium
on
Victimology,
'Beyond
Boundaries:
Research
and
Action
for
the
Third
Millennium',
Montreal,
6-11
August
2000.
The
conference
attendance
was
made
possible
by
a
grant
under
the
NSW
Law
Foundation
Legal
Scholarship
Support
Fund.
270
USA,
many
compromises
were
reached
which
have
compromised
the
effective-
ness,
independence
and
universality of
the
ICC
(Robertson,
1999).
One
of
the
main
features
of
the
ICC
Statute
that
did,
however,
find
a
high
degree of consensus
amongst
the
nations
at
Rome,
were
the
many
provisions
concerning the
role
and
rights of
the
victims
and
survivors of the international
crimes that
can
be
the
subject of
prosecutions
by
the
ICC.
The
number
and
content of
these
provisions
are
a
testimony
to
the
development
and
influence of
modem
victimology.
Given
that
the
ICC
is
likely
to
be
a significant future
institution of international
society,
and
that despite
its
shortcomings it
will
have
considerable symbolic, normative
and
educational
importance,
it
would
be
re-
miss
of victimologists not
to
take a
strong
interest
in
its
development
and
future
work.
With
these considerations
in
mind,
Part
II
of
this
article
will
examine
some
significant normative questions
for
the
discipline of
victimology
that
the
study
of
victims of international
crimes
creates.
this
part
will
also
include reference
to
the
important question of
whether
the creation of
an
ICC
will
prevent or reduce
the
global
amount
of victimisation.
Part
III
places
the
Statute's victim-related
provisions
into
their historical context
by
providing
a brief history of the position
of victims
in
international criminal
courts.
Part
IV
comprises
the
main
section
of
the
article,
describing
and
critically
analysing
from
a victimological perspective
the
victim-related provisions of
the
ICC
Statute.
These
provisions
can
be
grouped
into
those
that
allow
for
victim
participation into pre-trial
and
trial
decisions,
victim
support
and
protection,
and
victim reparation. Part V
will
conclude
by
evaluating
the
extent
to
which
the
ICC
will
be
a 'victim-friendly' court.
While
the
terms
of
the
ICC
Statute
are
clearly
an
advance
for
victims
of international
crimes,
three
major
concerns
will
be
discussed.
It
is
recommended
that
caution
needs
to
be
exercised
in
assessing
the
prospects
for
victims
of international
crimes
who
appear
before
the
ICC.
Like
all
measures that promise benefits
for
victims,
their
use
should
be
continually
monitored
and
evaluated
through
proper scientific
research
on
victims' experien-
ces,
and
adjustments
to
their implementation
be
made
accordingly.
SOME
NORMATIVE CONSIDERATIONS
FOR
VICTIMOLOGY AND
THE
POTENTIAL
ROLE
OF
THE
INTERNATIONAL CRIMINAL COURT IN
TERMS
OF
THE
PREVENTION
OF
VICTIMISATION
A Convergence of Disciplines
There
are
two
important
normative
considerations
that
an
examination of
the
position
and
needs
of victims of international
crimes
creates
for
the
discipline of
victimology.
The
first
is
that
such
a
study
should
bring closer together
the
disciplines of
human
rights, international
criminal
law
and
victimology,
breaking
down
some
of
the
artificial barriers
that
exist
between
them.
These
barriers exist
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