The Rights of Victims v. the Rights of the Accused

Abstract

For too long victims have been neglected in international criminal law; with the adoption of the International Criminal Court (ICC) Statute they have, however, been granted a set of procedural rights that entitles them to some form of participation in international criminal proceedings. Arguably there is nothing prejudicial per se to the rights of the accused in allowing victims to participate in international criminal proceedings. Unfortunately, however, the ambiguities of the ICC Statute, the lack of clarity as to the procedural model, and the absence of clear cut provisions in the ICC Rules of Procedure and Evidence (RPE) have created a legal framework which is flawed with regard to the principle of legal certainty and, at least in this respect, clearly amounts to a violation of the rights of the accused. Against this background, the judges are solely responsible for finding the appropriate way to enable some measure of victim participation consistent with the rights of the accused. According to the Statute, any balancing between these two competing interests must be premised on the primacy of the rights of the accused. The practice of ICC Chambers, however, suggests that the judges are hesitant explicitly to recognize the primacy of such rights. This reluctance may lead in some instances (e.g. the broad definition of victims; permission for the presentation of evidence by victims; the acceptance of the double status as victim and as witness; and so on) to weaken the protection of the rights of the accused due to a mistaken interpretation of the right of victims to obtain justice.