Victim Participation and Reparations for Environmental Harm at the International Criminal Court

Although victims have the right to limited participation in trials and to seek reparations after sentencing, the legal structure of the International Criminal Court (ICC) prioritizes retributive justice over restorative justice and punishment over reparations. Thus, currently, although the perpetrators can be tried through the ICC, it is still difficult to obtain reasonable compensation for the damages suffered by the victims. On the one hand, the ICC’s reparation system may be restricted by the identity of the victim, ICC internal factors, and so on. The current structure of the ICC compensation system allows for hierarchical relationships between victims, while at the same time, there is tension between individual and collective types of compensation. These factors have led to a disconnect and gap between the protection of rights at the theoretical level and actual reparation. This dichotomy between the theoretical protection of the rights of victims and the real protection of victims in practice exists in the ICC. Victims are isolated from the field of vision due to potential repercussions. The idealistic illusion of justice is completed when the ICC stands on the stage and accepts the audience’s praise. However, for compensation in criminal courts, people are paying increasing attention to the legal process and content. In practice, the proportion of victims of international crimes is not low, and in some cases, victims are widespread. It can be seen that criminal compensation for victims is an issue that spans a vast range of people and regions. Nonetheless, there are still research gaps regarding reparation and other ideas of justice according to the ICC, how the ICC provides multifaceted safeguards for victims, and the limitations and influence of the mechanism of the ICC on the compensation of victims. Considering the above problems, this paper aims to analyze the International Criminal Court indemnity cases. This paper wishes to analyze reparations and other ideas of justice under the ICC, examining the approach of the ICC toward compensation for victims, where the ICC is heading regarding reparations for victims, how the reparations system works, and the advantages and disadvantages of the reparations system, as well as what are the potential problems of ICC related to reparations. What guarantees do the ICC’s mechanisms provide for victims to be able to receive reparations? How does the structure of the ICC reparations system conflict with victims’ reparations in practical terms? What are the potential obstacles and gaps between criminal trial reparations and victims? The first chapter wants to analyze the early Nuremberg tribunal, Tokyo tribunal, ICTY, and the ICTR by analyzing whether international criminal justice under these military tribunals was restorative justice or reparation justice and interspersed with analyses of reparation to victims under these tribunals. Then, it analyses it further about justice and reparation of the ICC, and it talks about the compensation for the victim and how the idea of compensation under the ICC has evolved. Using these arguments to analyze reparation and other different ideas of justice under the paly of ICC. The second chapter of the article analyzes the “participatate in trial for compensation”, “The limits of participating in trial”, “Safety protection for victims” to demonstrate the current protection and progress of the ICC system on the issue of victims’ compensation, this is because victims’ participation in the trial will bring a lot of help to the issue of compensation. The article analyses the significance and shortcomings of participation in a trial for compensation, which is necessary and meaningful to the issue of compensation because “participation in trial” and compensation are related and complementary to each other, as participation of the victims will bring a lot of help to the issue of compensation. The article analyses the section “Protection of the financial situation of victims: A possible alternative methods of reparation” because, to some extent, it can be seen as an alternative method of ICC compensation. The third chapter of the article hopes that by analyzing “Little compensation”, “The silence court put on victims’ rights of compensation”, “The ICC’s model of judicial administration remains optional” to argue and analyze how the structure of the ICC reparations system conflict with victim reparations in practical terms. Because the silence the court put on victims’ rights of compensation and the ICC’s model of judicial administration remains optional, both directly impact the issue of compensation. Chapter IV mainly aims to analyze some of the potential negative impacts of the ICC on victim reparations, specifically “The victim’s social death”, “Restrictions on “expression” between the victim and the court”, “Does the ICC hope to improve its attitude to victims?” to specifically analyze and argue these aspects of its potential negative impact on victim reparations. On this basis, this paper analyzes the gap between criminal trial reparations and victims to identify what negatives exist between the two.

Although the academic literature has examined victim participation at the International Criminal Court (ICC), victim participation during the sentencing stage has remained a virtually unexplored topic. Thus, this article assesses the law and, in particular, the practice of the ICC on victim participation during sentencing in light of domestic/international criminal law and human rights law standards. Victim participation during the ICC sentencing stage, i.e. mainly written observations and sentencing hearing participation, is overall consistent with international and domestic criminal law standards, particularly with certain common law jurisdictions and with the Special Tribunal for Lebanon where the trial and sentencing stages are also divided. Additionally, victim participation during the ICC sentencing stage may arguably be justified under international human rights law, especially human rights case law. Importantly, the ICC has introduced some limitations to victim participation to safeguard the convicted person’s rights and procedural efficiency.

The International Criminal Court (ICC) is primarily mandated to punish persons bearing the greatest responsibility for the worst crimes known to mankind. Additionally, its victim reparations are contingent on conviction; because of this, the Rome Statute’s retributive goal is compounded with the inquisitorial function of seeking the truth by realising the victim’s entitlement to participate at appropriate stages throughout the proceedings. However, the suspect’s due process rights must remain protected. While the Court balances these procedural functions, victims’ representatives determine which victims are members of the appropriate constituency. This paper’s theoretical framework shows how victims are vulnerable to their representative’s claims. Therefore, the question arises as to whether external or internal legal representation will be more effective for victims. This determines how victims’ voices may best be elicited. Some victimologists contend that the exclusion of an external Common Legal Representative (CLR) in the search of mass atrocity solutions promotes merely symbolic, rather than meaningful, victim participation in ICC proceedings. The Court insists on external CLRs because of their local knowledge. Others emphasise the proximity of the Office of the Public Counsel for Victims (OPCV) to judges as providing access to justice at The Hague. Crucially, by requiring the OPCV to interface between the external CLR and the Chamber in day-to-day proceedings, the ‘Kenyan trial approach’ has made victims’ participation more meaningful. Yet, following the Ruto and Sang case, the ICC faces challenges when confronted with diverse modalities of implementing reparations for multiple victims. In the Palestine situation, claims seeking to promote victims’ interests required victim empowerment, including strengthening appropriate victim constituencies through outreach to enable them to articulate disagreements with their representatives. In the Ongwen case, a broad interpretation gave victims’ voices enhanced agency over the defence. Recently, in Ntaganda’s case, the Court directed the Registry to liaise not only with the CLRs but also with the Trust Fund for Victims for appropriate outreach and communication with victims.

In the field of international criminal justice, the international criminal court (ICC) has been lauded for its integration of victim participants into its legal proceedings. In particular, the ICC’s framework of victim participation has been understood to figure as a balance between retributive and restorative justice as it enables the actual voices of the victims to be heard. However, there has been little research that considers how victim participation works in practice as a form of truth-telling. In order to begin to address this gap, the integration of the ‘voices of the victims’ into the proceedings and outcome of The Prosecutor v. Thomas Lubanga Dyilo is explored. The forms of harms and experiences that comprise the truth of the events under adjudication put forward by the victim participants are considered, and then how the truth-telling functions of the ICC represent these states of injury. While the ICC’s legal proceedings enable victims to speak of their harms and experiences, their ‘voices’ are largely absent from its judgment. To address this issue, the ICC needs to develop and maintain a level of ‘restorative justice coherence’ to manage victims’ expectations of its justice approaches.

Scholars have examined victim participation and reparations at the ICC. Nevertheless, no academic study focuses on victim participants and victims as parties (reparations claimants) in ICC appeals under international human rights law (IHRL) standards. This article seeks to: determine how victims’ roles as victim participants and parties (reparations claimants) take place in ICC appeals; and evaluate ICC’s law/practice on victims’ procedural roles/rights in appeals under IHRL. Victims at the ICC exercise procedural rights to: voice their views and concerns in appeals against final and interlocutory decisions (victim participants); and appeal reparations orders (parties). ICC’s law/practice on victims in appeals is generally consistent with IHRL. However, such law/practice present some important deficits under IHRL, including scope of victims’ procedural rights in ICC appeals and how these rights are exercised. Such deficits should be addressed to better realise victims’ procedural roles/procedural rights in ICC appeals.

Globalization has brought with it not only new types of victimization, it has also introduced new, international criminal law and international criminal justice institutions such as the permanent International Criminal Court (ICC) in The Hague, the Netherlands. A unique characteristic of the ICC is its recognition of victims’ rights through victim participation and reparation. These rights are inspired in part by international instruments, such as the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. However, the UN Declaration is largely based on the needs of victims of conventional crime. In contrast to conventional criminal courts, the ICC deals with mass victimizations such as genocide

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?

Providing justice to victims is one of the most important justifications for international criminal justice. At the International Criminal Court, states have sought to respond to victims’ justice interests in a number of ways, including by allowing victim participation in criminal proceedings. However, while victim participation in domestic criminal courts has evolved to include an accountability function enabling victims to challenge decisions not to prosecute, victims are limited in the extent to which they can perform this same accountability function in relation to decisions not to open an investigation at the International Criminal Court. Empowering victims to request review of a decision not to open an investigation not only enhances procedural justice but enables victims to contribute towards the administration of justice more broadly. This article considers how victims could be provided with a strengthened ability to request review of a decision not to open an investigation at the International Criminal Court. The article suggests amending Article 53 of the Rome Statute to enable victims to request judicial review of a decision not to open an investigation and clarifying the process through which victims can seek internal review of a decision not to open an investigation through the Office of the Prosecutor. Doing so would demonstrate the commitment of states, the Prosecutor and the Court to procedural justice for victims, as well as their support for transparent and accountable decision-making processes.

The International Criminal Court (ICC) pioneered a set of new victim-centred features in its normative framework that are unprecedented by the ICC’s predecessors. All internationalized ad hoc criminal courts and tribunals established subsequent to the ICC’s creation include legal regimes on victim participation and, to some degree, reparations. It would thus appear that such a victim participation/reparations component has become a core feature of any modern international criminal justice mechanism. Yet such victim participation and reparations regimes are not without their challenges. These range from capacity/budgetary constraints to the general question of meaningfulness and impact on victims and affected communities. While the ICC promises to be well equipped to face these problems due to its permanent nature and rather secure capacity and funding, this appears less likely in some respects for regional ad hoc solutions exercising international criminal justice. A number of key challenges can be identified which may be decisive over the success or failure of meaningful victim participation in criminal proceedings and reparations at the end of the criminal process. Future lawmakers may want to consider how comprehensive a victim regime they want to introduce into future hybrid courts to avoid setting it up for failure.

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

The Statute of the International Criminal Court (ICC) has gone further than those of other international tribunals in incorporating processes that positively affirm victims' dignity, including their right to be kept informed about legal proceedings, special measures of protection and support, the ability of victims to participate in legal proceedings independent from any role they may have as prosecution witnesses, and their right to claim reparations before the ICC for the harm they suffered. This chapter considers the issues and challenges relating to the operationalisation of the Court's reparations mandate. It assesses the provisions in the Statute governing reparations and analyses the early jurisprudence of the Court with a view to considering the impact this may have on giving practical effect to the reparations mandate. Keywords: International criminal court (ICC); jurisprudence; victim participation and reparations section (VPRS)

The International Criminal Court (ICC) is the world's first standing criminal court, and is an independent entity with its own international legal personality. This chapter talks about the ICC and its structure, jurisdiction, and the issues of admissibility, complementarity and applicable law. An important feature of the criminal justice system established by the Rome Statute is the obligation of States Parties to cooperate fully in the investigation and prosecution of crimes within the Court's jurisdiction. The chapter also discusses the issues of witness and victim participation. Victim participation typically occurs through a legal representative. Victims are free to choose their legal representative, who must be a person with extensive experience as a criminal lawyer, judge, or prosecutor, and fluent in one of the Court's working languages (English or French). The chapter ends with a review on the pending situations. Keywords:International Criminal Court (ICC); criminal law; Rome Statute; victim participation; witness

When the Statute of the International Criminal Court was adopted on a beautiful Roman summers day in 1998, probably few could have guessed that by July 2002, the International Criminal Court (ICC) would commence work. This chapter considers some of the challenges facing the ICC with respect to victims participation and reparations. It points out how the ICCs referral system may complicate victims access to the Court. The chapter discusses the strengths and weaknesses of the newly adopted Trust Funds Regulations and finally looks at the ICCs first procedural decision on victims participation, as an early indicator of the Courts approach towards victims redress. One of the key questions before negotiators in Rome was whether or not to provide victims with some degree of access to the Courts judicial proceedings. Keywords: International Criminal Court (ICC); Rome; victims participation; victims redress

La participacion de las victimas se suele celebrar como una de las principales innovaciones del sistema de la Corte Penal Internacional (CPI). Ha sido regulado con gran detalle por los redactores del Estatuto de Roma y las Reglas de Procedimiento y Prueba de la CPI en relacion con los procedimientos judiciales. Sin embargo, se han dedicado pocas reflexiones a la cuestion de como se tratan los problemas de las victimas antes del comienzo del juicio. Esta contribucion busca cerrar esta brecha. Argumenta que las victimas tienen un papel que desempenar en el proceso de la CPI desde el comienzo mismo de los procedimientos. Ademas, busca aclarar como se pueden abordar en la practica algunos de los derechos de participacion de las victimas.

Before the existence of the International Criminal Court, other international criminal tribunals did not provide victims with significant rights of participation and were mainly concerned with bringing criminals to justice. The main provision on victim participation at the International Criminal Court is Article 68(3) of Rome Statute with the Regulations of the Court and Rules of Evidence and Procedure put in place to bring it into life. The adoption of provisions recognising participatory rights has caused much dissension amongst jurists. The arguments regarding to victims participation in proceedings are numerous. Many argue that the recognition of participatory rights represents a great victory in international criminal justice. Others fear that victim participation in proceedings may conflict with the accused's right to a fair trial. This paper seeks to dissect the right of victims' participation at the ICC as weighed against the rights of the accused and the concept of fair trial.