A Victim’s Right to a Fair Trial at the International Criminal Court?

Abstract

This article offers critical reflection on the scope of the fair trial notion in Article 68(3) of the Statute of the International Criminal Court (ICC). The ICC Statute — perhaps more clearly than any other international procedural regime — is committed to the general idea of fairness, including for victims as an overarching principle of international criminal justice. However, the article challenges claims that the fair trial notion in Article 68(3) contains any fair trial guarantee for victims participating in proceedings before the ICC. The analysis of the relevant ICC jurisprudence shows that victims’ rights to participate are ultimately reducible to mere privileges, because their scope of participation is entirely dependent on discretionary judicial decisions. The Court’s response to the difficult task of making a criminal trial with thousands of participants work is common legal representation. This collective approach to participation might be pragmatic but leaves no scope for any claims regarding individual fair trial rights for victims. The general trend towards increasingly treating victims as a collective, rather than individuals, is also inconsistent with the idea of an overarching, general component of fairness for all parties and participants. To achieve such a general component of procedural fairness attached to the proceedings more widely speaking, it is argued that the ICC will need to rethink its approach to victim participation. Only a clear-cut, minimum set of participatory rights guaranteed in the legal framework of the Court, spelled out for example in the Rules of Procedure and Evidence, would allow the definition of a breach to any general component of fairness. Till then, the ‘right to a fair trial’ or a ‘fair trial guarantee’ continues to be reserved for the accused.