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January 2, 2005

International Criminal Court

Shield for victims and witnesses….

Sultana Razia

In the struggle towards International justice participation of the victims in the criminal proceedings is a very innovative approach and it breaks the age-old tradition of judicial process. It makes the justice more accessible and at the same time victims have a control over the whole process and undoubtedly participation of the victims strengthens the cases.

Rome Statute deals with delicacy regarding victims and witnesses protection as the previous experience of International Criminal Tribunals for Rwanda ("ICTR") and the former Yugoslavia ("ICTY") showed that victims faced lack of security and challenges including physical and psychological and witnesses were refused to take part on the court's proceedings for the fear of reprisals.

Rome Statute can be treated as the most effective mechanism that acknowledges the right of the victims and treated victims not only a witness of the crimes within the jurisdiction but it also as a person who has a valid interest in the outcome.

Who are the victims?
Victims before the ICC may be individual persons or organisations or institutions, and the harm that a victim suffers may take different forms. It can be
*physical harm to a person's body or
*psychological harm, by which a person's mind is affected because of what she or he has had to do or see: or
*material harm, by which goods or property has been damaged or lost as the result of crime.

A person can also be a victim though s/he has not suffered directly. S/he can be a member of a victim's family who has been killed or suffered harm as a result of crime.

Victims will be able to participate in stages of the Court's proceedings determined to be appropriate by the court and in a manner, which is not prejudicial or inconsistent with either the rights of the accused on a fair and impartial trail.

A legal representative may also present the views and concerns of the victim at stages where the court considers it appropriate. The ICC may provide financial assistance to assist victims in securing legal representation if necessary.

Victims and Witnesses Unit
The Victims Participation and Reparation Unit (VPRU) and the Victims and Witness Unit (VWU) of the court deal primarily with victims' rights where a person will be considered to be a victim by the court when her or his personal interests have been affected because of the commission of a crime falling within the jurisdiction of the ICC.

The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence. This unit also informs victims about court appearances and the limits of confidentiality.

Functions of the Unit
The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate

(a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances:

(i) Providing them with adequate protective and security measures

(ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures;

(iii) Assisting them in obtaining medical, psychological and other appropriate assistance;

(iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality;

(v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasising the vital nature of security and confidentiality for investigators of the Court;

(vi) Co-operating with States, where necessary, in providing any of the measures stipulated in this rule;

(b) With respect to witnesses:
(i) Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony;
(ii) Assisting them when they are called to testify before the Court;
(iii) Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings.

Article 68 of the Rome Statute is the main article laying out the procedural provisions relating to victims and witnesses. Along with that article some other provisions found elsewhere in the Statute require or allow the organs of the Court to take appropriate measures to protect victims and witnesses.
These measures may include:
*In camera proceedings or any other means to present evidence by using electronic or other techniques;
*Participation of victims at appropriate stages of the proceedings; &
*Withholding of evidence or information that would gravely endanger the security of a witness.

The Statute also includes a provision enabling the Court to award reparations to or for victims.

Under the Rome Statute and the ICC Rules, victims have the opportunity to participate in criminal proceedings at the Court in a number of ways.
*The participation and Reparation Unit's work will specifically encompass responsibilities concerning outreach, the processing of applications for participation, legal representatives, and NGOs in relation to victim participants, all of which involve significant protection issues.

Additionally, victims' legal representatives are entitled to attend and participate in hearings and, at the discretion of the Chambers, may question the accused, a witness, or an expert.

Victim participants and their legal representatives may consult the trial record and, where possible, be present for announcements of decisions on admissibility, jurisdiction, criminal responsibility, sentencing, and reparations.

Responsibilities of the Unit
For the efficient and effective performance of its work, the Victims and Witnesses Unit shall: ensure that the staff in the Unit maintain confidentiality at all times and recognising the specific interests of the Office of the Prosecutor, the defence and the witnesses, respect the interests of the witness, including, where necessary, by maintaining an appropriate separation of the services provided to the prosecution and defence witnesses, and act impartially when cooperating with all parties and in accordance with the rulings and decisions of the Chambers.

Reparation under ICC
A victim may also apply to receive reparations from the ICC. Reparation means that a victim may be entitled to receive compensation, rehabilitation and /or restitution for the harm suffered as a result of the crime which was committed against her or him. Thus, while it is impossible to place a price on how much victim has suffered, the ICC may give victim money to compensate for what the victim has lost as a result of a crime, and to compensate for her or his suffering. The ICC can order that the person convicted of a crime against victim pay the victim these reparations. A Trust Fund has also been established to gather funds that will be used to provide victims with reparations.

Restitution involves returning to a victim her or his property where it was illegally taken away, while rehabilitation is intended to allow the victim to continue his or her life as normally as is possible. This can take the form of money to pay for legal, medical, psychological and other care, and can even include apologies from perpetrators of crimes to the victims.

In a nutshell ICC provides following provisions for the victims and witnesses:
*Victims and witnesses of sexual violence may testify in closed hearings or through special means to protect their privacy.
*They can also have a special helper (such as a psychologist or family member) present while giving testimony.
*Victims of sexual violence will not be "put on trial" when they give testimony, and their privacy will be protected.
*The confidentiality of victims and witnesses will be protected
*The definition of "consent" in cases of sexual violence is strictly limited to protect victims.
*Judges must prevent the harassment or intimidation of victims and witnesses during questioning, particularly in cases of sexual violence.

To strengthen the evocative participation of the victims and witnesses they must receive adequate protection and at the same time from the initial interaction their physical and emotional protection must be addressed carefully.

It may be started from the investigation stage through trial and post-trial. And for that the capacity of the court should be extended because without that victim's co-operation cannot be achieved and Their active participation is not possible in the whole proceedings.

Being optimist only then we can treat International Criminal Court as a shield to protect victims and witnesses to uphold human rights.

This is the shorten version of the paper which was presented in the "Advocacy workshop on the International Criminal Court", organised by Odhikar.

The author is a Law Desk Assistant of The Daily Star.