Do Victims Have a Role at the Review Conference?

“Victims” have been ubiquitous at the Review Conference this week. Several actual victims of conflict have attended the conference, as a part of the Women’s Initiative for Gender Justice and other NGOs. But victims have appeared more often in oration than in the flesh. State representatives declaim the importance of victims and their pursuit of justice. Side-panels have addressed victims’ issues, and Wednesday saw a formal stocktaking session on Victims and Affected Communities in the plenary hall. So what, exactly, is the role of victims at the Review Conference?

Before addressing the function or contribution of victims here, let me first sketch out the role of victims in the International Criminal Court in general. As many speakers have pointed out this week, the ICC includes a more extensive legal role for victims than other international criminal trials. (With the possible exception of the Extraordinary Chambers in the Courts of Cambodia, and the inclusion of victims as civil parties.) For an elaboration of that role, here are resources from the ICC, the Coalition for the ICC, and the International Federation for Human Rights.

In brief, victims are to be made aware of the work of the ICC by its outreach programs, they can apply to participate in different Court proceedings from pre-trial investigations to the trials, and they may receive individual or collective reparations as a result of judgments (or, in some cases before judgments, through the work of the Trust Fund for Victims). The contrast with common law criminal trials is striking. Canadian courts, for instance, do not mount media campaigns and hold townhall meetings; Attorneys General do not consult with victims about the crimes they should prosecute; and judges in criminal trials do not order reparations or restitutions for the victims.

Why do victims have this expanded role at the ICC? There are, I would suggest, four reasons.

• International criminal justice is a part of the post-WW2 international human rights movement. The ICC is not only a means to prosecute perpetrators, but also to assist in the provision of those individual human rights enumerated in the UN human rights covenants and elsewhere.
• Victim participation in criminal trials is familiar in the civil law systems of continental Europe, and has even begun to appear in common law countries through mechanisms like victim impact statements.
• The ICC is partly a creation of the transitional justice social movement, which promotes numerous mechanisms to address conflict and massive human rights abuses, such as truth commissions, memorializations, psycho-social health initiatives, and so on. There has been continual pressure to fold as many of these mechanisms as possible into the ICC. That tendency has been fought by those who wish the ICC to focus more purely on criminal justice, and those concerned about a ballooning budget.
• Victims and their solidarity organizations demanded it. (I hope to expand on this part of the story in a later post.)

So what might victims, or those who represent them, contribute to the Review Conference. Let me suggest four contributions.

First, the Conference is a good audience for meeting and speaking to program officers from the ICC and many NGOs. I have overheard victims’ representatives (though not victims themselves) make inquiries of these program officers about access to funding and services.

Second, several side-panels have been quite informative on topics like post-conflict trauma, tribunal outreach, and relationships between grassroots organizations and the ICC. I also thought that Eric Stover, of the Berkeley Human Rights Center, organized a very solid stocktaking panel on Victims and Affected Communities. These contribute to the proliferation of best practices for victim-related programs.

Third, when it comes to the amendment of the Rome Statute itself, victims and their representatives can motivate state delegates and serve as figures for their ethical orientation. At this beautiful resort, teeming with well-educated, proud, and competitive diplomats, it would be easy to forget the urgency of the problems the ICC seeks to address. Perhaps reminders of the past and continuing suffering of victims might goad diplomats into vigorous and victim-focused action.

Fourth, and perhaps most contentious, is the possibility that the substantive deliberations might be informed by arguments made from the perspective of victims. Here I will turn to a favourite democratic theorist, Iris Marion Young. Young argues that those who are most-affected by a decision should be included in the processes of deliberation and decision-making. Because meaningful discussion and decision-making is impossible among thousands of people, let alone millions, Young sees “inclusion” as realized through the representation in dialogue of the perspectives, opinions, and interests of those affected. Particular attention must be paid to those who are disadvantaged or dominated under a regime of governance, who are often excluded from decision-making. A diversity of perspectives that includes the disadvantaged is not only fair, she claims, but it also makes for greater social objectivity. (For more on this, see Young’s Inclusion and Democarcy.)

So, does this mean that victims of conflict should be writing and negotiating amendments to the Rome Statute? No. They may not have the necessary training or background information to participate. Moreover, the proposed amendments in theory affect the entire global population (as we may all, one day, be victims – or perpetrators – aggression and the other Rome Statute crimes). It is right that representatives of elected governments, specialized in international law and diplomacy, be at the negotiating table. But victims’ perspective can reveal the impact of past decisions, and problems that will fall through the gaps in current or proposed regimes. For these reasons they must be continually consulted. Exactly how to do that is, well, a central project of my (future) dissertation.

In the second week of the Review Conference, I will post a few Q&A’s with survivors of conflict. Two Canadian law professors, Joanna Harrington and Darryl Robinson, argued that the official stocktaking panels achieve little. Their posts at EJIL-TALK are here and here. These comments are not on the side-events, which I found more productive, and which I hope to post about in the future.