ISTSS Supports International Criminal Court, UN

Yael Danieli, PhD., ISTSS Representative to the United Nations

On July 17, 1998, in Rome, 160 nations decided to establish a permanent International Criminal Court (ICC) to try individuals for the most serious offenses of global concern: genocide, war crimes and crimes against humanity. The Rome Statute will enter into force, and the ICC will be formally established, after 60 countries ratify it. As of Aug. 11, 84 countries -- indicating intent to ratify -- signed the statute, and four have already fully ratified it.

The United Nations General Assembly first recognized the need for a permanent mechanism to prosecute mass murders and war criminals in 1948, following the Nuremberg and Tokyo trials after World War II. To be headquartered at The Hague in the Netherlands, the ICC will be a permanent institution not constrained by the time and place limitations of the two ad hoc Tribunals for the former Yugoslavia and Rwanda. It will be able to act more quickly and, as a permanent entity, its very existence will be a deterrent, sending a strong warning to would-be perpetrators. It will also encourage states to investigate and prosecute egregious crimes committed in their territories or by their nationals, for if they do not, the ICC will be there to exercise its jurisdiction.

Non-Governmental Organizations' (NGO) participation in the process of establishing the ICC has been coordinated by the NGO Coalition for an International Criminal Court (CICC), with more than 800 organizations around the world. Having been consistently active in developing, adopting and implementing all UN instruments on behalf of victims since the early 1980s, ISTSS joined the CICC at its inception in 1995. ISTSS co-formed its Working Group on Victims' Rights, whose general objective has been to lobby governments and others (e.g., the press, other NGOs and the public) in all relevant material to ensure that the statute and the rules adequately provide for the victims' rights. In addition, the working group also wanted to see that the victims' needs and concerns be taken into account throughout the judicial process of the ICC, trusting that the Court will render not only retributive, but also restitutive justice that will aim, inter alia, to prevent revictimizing, perpetuation and fueling of cycles of violence and war, incurring long-term high health, economic and sociopolitical costs.

Most of the victims' issues and much of the material on victims in the draft statute going into Rome, and later, appeared to be controversial. But an ongoing process throughout the drafting has continued in which governments and NGOs have been intimately involved in developing positions. ISTSS issued numerous position and background papers, participated in all meetings and proposed text for the drafts of the statute and rules, most of which was adopted.

At the conceptual level, efforts to address these questions relied on two very significant existing UN instruments, the 1985 General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power ("Victims Declaration" GA/Res/40/34) and the Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law ("van Boven Principles" E/CN.4/Sub. 2/1996/17). As the international community has recommended that states include such principles in their domestic legal systems, it should also be prepared to apply them on the international plane. At the practical or operational level, most of the protection and assistance issues faced by victims as witnesses have relied on those addressed in the statutes and rules of the ad hoc Tribunals for former Yugoslavia and Rwanda. Thus, the ICC had a sound theoretical basis as well as a reservior of practical experience on which to build appropriate mechanisms for the protection of witnesses and to provide assistance to them during the sometimes difficult appearances they will make before the ICC.

Thus, to help victims and witnesses face the judicial process -- without being retraumatized by it -- the ICC will have a Victims and Witnesses Unit to provide protective measures and security arrangements, counseling and other assistance for witnesses, while fully respecting the rights of the accused. The court must also take appropriate measures to protect the privacy, dignity, physical and psychological well being, and the security of witnesses, especially when the crimes involve sexual or gender violence.

The court will establish principles for reparations to victims, including restitution, compensation and rehabilitation. The court is empowered to determine the scope and extent of any damage, loss and injury to victims and to order a convicted person to make specific reparation. A trust fund will be established for the benefit of victims and their families whose sources will include money and other property collected through fines and forfeiture imposed by the court.

During the meetings of the Preparatory Commission, which began work in early 1999 to give concrete content to the provisions of the ICC Statute adopted in Rome, considerable progress has been made, despite some continued controversy, in drafting many of the Rules of Procedure and Evidence. The rules, which flesh out many of the details that were of necessity left general by the statute, describe the protection, participation of and reparations of to victims.

It is clear that, because of the Victims Declaration, the van Boven Principles and then energetic work of NGOs, the terms of the debate have been changed. The position of victims has moved from the margins to a central part of any discussion of the creation of an international criminal court or tribunal.

Detailed analysis of the development of the provisions related to victims in the Rome Statute can be found in Report of the Victims' Rights Working Group (Danieli, Y. 1999) in the forthcoming publication of the Coalition for an International Criminal Court on the Diplomatic Conference on the Establishment of an International Criminal Court (Rome, United Nations/FAO, June 15-July 17 1998).