Victims as a Third Party

International Criminal ◽

Criminal Court ◽

Humanitarian Assistance ◽

Third Party ◽

Criminal Courts ◽

Criminal Trials ◽

Legal Principle ◽

The Individual ◽

This chapter explores and challenges the promise of victim participation before the International Criminal Court (ICC). Victims are a key reason for international criminal trials. Indeed, trials are said to be held because of the great numbers of victims the crimes have created. Perpetrators are prosecuted so victims can see justice being done. Yet when it comes to victims who want to claim their own rights before international criminal courts, the picture is less clear. International courts have struggled with how to deal with victims. Responses to victims’ participation in criminal trials have ranged from outright opposition, to reluctant acceptance, to apparent embrace. Even when there seems to be embrace, though, under the surface victims struggle to have their suffering and damage recognized. Victims are merely third-parties in the criminal trial. The charges are not their charges; they may not fit their damage. What is more, courts deal with victims collectively, denying them the individual attention their claims may demand. To make things worse, rather than applying the legal principle of accountability to victims' claims for damage, courts have a tendency to address victims' damage as a humanitarian problem that can be solved through humanitarian assistance.

Judicial Lawmaking, Discourse Theory, and the ICTY on Belligerent Reprisals

German Law Journal ◽

10.1017/s2071832200017296 ◽

2011 ◽

Vol 12 (5) ◽

pp. 1261-1278 ◽

Cited By ~ 2

Author(s):

Milan Kuhli ◽

Klaus Günther

Keyword(s):

International Criminal ◽

International Criminal Tribunal ◽

Individual Case ◽

Criminal Court ◽

Discourse Theory ◽

Criminal Courts ◽

Normative Expectations ◽

Judicial Lawmaking ◽

The Individual

Without presenting a full definition, it can be said that the notion of judicial lawmaking implies the idea that courts create normative expectations beyond the individual case. That is, our question is whether courts' normative declarations have an effect which is abstract and general. Our purpose here is to ask about judicial lawmaking in this sense with respect to international criminal courts and tribunals. In particular, we will focus on the International Criminal Tribunal for the Former Yugoslavia (ICTY). No other international criminal court or tribunal has issued so many judgments as the ICTY, so it seems a particularly useful focus for examining the creation of normative expectations.

Trial and (Potential) Error: Conflicting Visions on Reparations Within the ICC System

International Criminal Justice Review ◽

10.1177/1057567718807542 ◽

2018 ◽

Vol 29 (3) ◽

pp. 221-248 ◽

Cited By ~ 1

Author(s):

Alina Balta ◽

Manon Bax ◽

Rianne Letschert

Keyword(s):

Criminal Justice ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

International Criminal Justice ◽

Court Decisions ◽

Criminal Trials ◽

Conflict Situations ◽

Twenty years ago, the International Criminal Court (hereinafter ICC or the Court) was established holding the aim of placing victims at the heart of international criminal justice proceedings and delivering justice to them through, among others, reparations. Article 75 of the Rome Statute lays out the reparations regime, and, in practice, court-ordered reparations are a means of delivering such justice. Focusing on Court decisions on reparations, our analysis takes stock of all developments before the ICC and attempts to highlight the mismatch between characteristics inherent to the objectives of international criminal trials such as providing accountability and punishment of the accused and delivering justice for victims of mass crimes—the so-called procedural challenges. We also submit that the Court is facing conceptual challenges, related to an apparent misunderstanding of the various concepts at stake: reparations as such and the various modalities and channels of enforcing them. We conclude that although the ICC’s reparation regime may not be the best reparative response to provide justice to victims in conflict situations affected by mass victimization, we suggest that improving the ICC’s approach includes, at a minimum, tackling these challenges.

Dealing with the Principle of Proportionality in Armed Conflict in Retrospect: The Application of the Principle in International Criminal Trials

Israel Law Review ◽

10.1017/s0021223713000083 ◽

2013 ◽

Vol 46 (2) ◽

pp. 271-315 ◽

Cited By ~ 7

Author(s):

Rogier Bartels

Keyword(s):

Rome Statute ◽

International Criminal ◽

International Criminal Tribunal ◽

Criminal Court ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Criminal Trials ◽

Principle Of Proportionality ◽

The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recentGotovinacase. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.

Aspects of victim participation in the proceedings of the International Criminal Court

International Review of the Red Cross ◽

10.1017/s1816383108000386 ◽

2008 ◽

Vol 90 (870) ◽

pp. 409-440 ◽

Cited By ~ 24

Author(s):

Elisabeth Baumgartner

Keyword(s):

International Criminal ◽

Criminal Court ◽

International Humanitarian Law ◽

Humanitarian Law ◽

Criminal Proceedings ◽

Criminal Trials ◽

Effective Instrument ◽

Victim Participation ◽

AbstractThe participation of victims in criminal proceedings is generally a rather new phenomenon. While there is a certain tradition of victim participation as “partie civile” in the criminal proceedings of some national jurisdictions, it is a novelty in international criminal trials. The drafters of the International Criminal Court (ICC) Statute chose to design a rather broad victim participation scheme. Although it is hailed as an important and effective instrument for giving victims of gross violations of human rights and international humanitarian law a voice, the procedural and substantive details are far from being settled. Some of the most significant issues are discussed in this article, including the question whether and how victim participation may influence sentencing and punishment.

Defence Counsel Ethics, the icc Code of Conduct and Establishing a Bar Association for icc List Counsel

International Criminal Law Review ◽

10.1163/15718123-01606008 ◽

2016 ◽

Vol 16 (6) ◽

pp. 1048-1116

Author(s):

Michael G. Karnavas

Keyword(s):

International Criminal ◽

Code Of Conduct ◽

Criminal Court ◽

Professional Association ◽

Criminal Courts ◽

Defence Counsel ◽

Bar Association

Defence counsel are ethically bound to zealously represent their clients. So what exactly does it mean to ‘zealously represent’ a client before any of the international criminal courts or tribunals? How unproblematic is it for defence counsel to meet their ethical duties? Would an International Criminal Court (icc) Bar or professional association for icc List Counsel and their assistants be of any significance to that end? This contribution concludes that the only way forward out of the prevailing and persistent morass List Counsel currently find themselves in at the icc, is through the establishment of a Bar Association for List Counsel and their assistants.

Good intentions and bad consequences: The general assistance mandate of the Trust Fund for Victims of the ICC

Leiden Journal of International Law ◽

10.1017/s0922156520000527 ◽

2020 ◽

pp. 1-20

Author(s):

Regina E. Rauxloh

Keyword(s):

International Criminal ◽

Negative Impact ◽

National Court ◽

Criminal Court ◽

Humanitarian Assistance ◽

Presumption Of Innocence ◽

Trust Fund ◽

General Assistance ◽

Court Proceedings

Abstract Recognizing the needs of victims in international criminal justice, the International Criminal Court (ICC or the Court) has introduced an innovative reparation scheme including the establishment of the Trust Fund for Victims. Besides the Fund’s role to implement reparation orders, a second mandate has been developed to provide immediate help to victims independent from a criminal conviction: the general assistance mandate. Surprisingly, this mandate has to date attracted little attention from scholars and remains vastly under-researched. By exploring in detail the work of the general assistance mandate, this article exposes its structural weaknesses as well as the negative impact it has on the procedures of the Court as a whole. It will demonstrate how the general assistance mandate weakens the legitimacy of the ICC as it undermines the presumption of innocence, risks compromising international and national Court proceedings, and masks the weaknesses of the Court. While there is no doubt that humanitarian assistance is urgently needed in situations that are investigated by the ICC, the mechanism chosen, namely the Trust Fund’s general assistance mandate is not an adequate solution. This article argues that general assistance has no place in an international criminal court and should, therefore, be completely separated from the ICC.

Part 10 Enforcement: Exécution, Art.107 Transfer of the person upon completion of sentence/Transfèrement du condamné qui a accompli sa peine

10.1093/law/9780198739777.003.0112 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

The State ◽

Person Following ◽

The Individual ◽

To Receive

This chapter comments on Article 107 of the Rome Statute of the International Criminal Court. Article 107 governs the transfer of the person following completion of the sentence. When a released prisoner is not a national of the State of enforcement, and is not authorized to remain there, two possible scenarios arise: transfer to a State ‘which is obliged to receive him or her’ and transfer to a State ‘which agrees to receive him or her’. Transfer of a released person to a third State upon completion of sentence will invariably require agreement. Absent such agreement, the individual will remain in the State of enforcement. In deciding upon transfer, the wishes of the released prisoner are to be taken into account.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.101 Rule of speciality/Règle de la spécialité

10.1093/law/9780198739777.003.0106 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

The State ◽

Customary Law ◽

State Sovereignty ◽

Coopération Internationale ◽

The Individual ◽

Judicial Assistance

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 101 sets out the principle of speciality, which is part of the customary law governing extradition between States. The rationale for the principle of speciality ‘is to protect State sovereignty’. For this reason, the rule is limited to the scenarios in which the person is arrested and is surrendered as a result of a request submitted by the Court to the State. It is inapplicable if the suspect has appeared voluntarily. The State that surrenders the individual to the Court may be asked to waive the rule of speciality if the Court seeks to proceed with respect to crimes that were not part of the original request for surrender.

Part 7 Penalties: Les Peines, Art.77 Applicable penalties/Peines applicables

10.1093/law/9780198739777.003.0081 ◽

2016 ◽

Cited By ~ 1

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Third Parties ◽

Life Imprisonment ◽

Rules Of Procedure ◽

Bona Fide ◽

The Individual

This chapter comments on Article 77 of the Rome Statute of the International Criminal Court. Article 77 sets out the penalties the Court may impose on a person convicted of a crime. These include imprisonment for a specified number of years, which may not exceed a maximum of 30 years; a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person; a fine under the criteria provided for in the Rules of Procedure and Evidence; and a forfeiture of proceeds, property, and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

Part 6 The Trial: Le Procès, Art.76 Sentencing/Prononcé de la peine

10.1093/law/9780198739777.003.0080 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Form Part ◽

The Individual ◽

Individual Role

This chapter comments on Article 76 of the Rome Statute of the International Criminal Court. Article 76 governs the imposition of sentence in the event of a conviction. If the accused is convicted, the Trial Chamber is required to establish the ‘appropriate sentence’. In so doing, the Statute instructs it to consider the evidence presented and submissions made during the trial that are relevant to the sentence. Mitigating and aggravating factors relating to the commission of the crime itself, such as the individual role of the offender and of the treatment of the victims, will form part of the evidence germane to guilt or innocence and thus appear as part of the record of the trial.