Easier Said than Done: Victim Participation at the ICC The Double Implementation Gap between the Substantive Right to Participate and its Procedural and Jurisprudential Limitations

Abstract

The Rome Statute of the International Criminal Court (ICC) establishes for the first time in the history of international criminal law the participation of victims in criminal proceedings. Specifically, Article 68 (3) of the Rome Statute (RS) establishes the general terms of the victim participatory scheme at the ICC. From such a provision, it can be deduced that there are two modes of victim participation: direct and indirect participation. Nonetheless, following a teleological interpretation, vicarious participation through a legal representative seems to be an ad latere option to the main, individual, direct participation. Article 68 (3) of the Statute also establishes three principal limitations to the participation of victims in ICC proceedings: (1) first, the personal interests of the victims must be affected for them to be able to participate in the proceedings; (2) secondly, the participation of victims must be considered appropriate by the Court; (3) and, finally, victim participation must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. However, the Rules of Procedure and Evidence (RPE), in developing the procedural aspects of victims’ participation rights, focus solely on the rights of the legal representative for victims (LRV) and impose conditions that might be seen as limiting the scope of victim participation. Further, the application and varying interpretation of these rules by the different Chambers has resulted in a confusing participatory scheme which heavily relies in the discretionary criteria of the Judge or Chamber who is knowing of the case. The current piece will aim to identify whether there is in effect a gap between the substantive right of victims to participation at the ICC set in Article 68 (3) RS and its procedural development through the Rules of Procedure and Evidence. Furthermore, by examining the practice of the different Chambers, the present study also attempts to establish the existence of a jurisprudential implementation gap. And if such a gap does indeed exist, would not it be in contravention of Article 21 of the Rome Statute which enshrines the principle of legality, the principle of hierarchy of norms and the interpretation of the Statute in accordance with internationally recognised human rights? More importantly, does this double implementation gap –procedural and jurisprudential – curtail the right of those whom the Court pledged to protect – the victims of the most serious crimes of international concern - to the extent of making them more symbolic than real?