Giving Victims a Voice.

Justice traditionally implies prosecution and punishment of the guilty. The July 1998 Rome Statute of the International Criminal Court (ICC) has embodied a concept of justice that goes beyond this; it gives victims a voice--a voice not only to testify and tell their story, but also to participate in court proceedings, with measures to protect their interests and identity. The Court also can award reparations to the victims; this is almost unprecedented. It will be able to prosecute crimes committed on a widespread and systematic scale, which often leave a whole class of victims and survivors who can come forward to tell their stories. They would do so for a variety of reasons: the desire for the truth to be known, to speak for the dead, to demand accountability and to demand justice. For many, real justice will be done only when somehow the harm, be it physical, psychological, material or other, caused by the crimes is repaired even if the reparation is symbolic. Testimonies of victims of sexual violence are most difficult to come by, making such crimes difficult to prosecute. Such broad participation of victims in court proceedings is unheard of in many national judicial systems, both in civil and common law.

Enormous questions of practical significance on the implementation of certain articles arise. Some do emanate from reluctance to accept the broadening of the objectives of a criminal justice system with inclusion of principles of social welfare and justice. Who can be the legal representative of the victims? What if hundreds of victims claim the right to have hundreds of counsels? How will the court decide on reparation, and on what basis? Where will the funds for reparation come from? Should a criminal court provide counselling and therapy? Preparatory Committee meetings for the Court will continue to draft the operative instruments of rules of procedure and evidence which will be vital for the interpretation and implementation of these articles.

The ICC Statute reflects how international humanitarian law has evolved. The principles it enshrines, the experiences the Court may encounter and the continuing development in the field of international humanitarian and criminal law have scope for solutions for some of the above problems to evolve over a period of time. By keeping victims' interests, concerns and rights among its primary objectives, the ICC Statute is poised to do "justice" with a human face and help in the healing process and the recovery of the victims, which is and ought to be the ultimate goal.

Vahida Nainar Director, UN Coordination Women's Caucus for Gender Justice

Articles and Provisions

Provisions of Article 68 of the ICC Statute allow for the victims to have legal representatives, and of Article 19 (3), the right to present their views and make submissions when their interests are likely to be affected at all stages of the court proceedings, as long as these are not inconsistent with the rights of the accused. Under Article 54 (1), the Prosecutor is bound to respect the interests and personal circumstances of victims and witnesses with respect to investigations. Under Article 15, victims have the right to make representations to the pre-Trial Chamber with regard to any submission by the Prosecutor requesting authorization of an investigation. It requires the Prosecutor to inform all those who requested investigation of any case of her or his decision to continue or discontinue the investigation. Article 43 (6) provides for protective and security measures for victims and witnesses who may be at risk on account of their testimony, and provides counselling for those in trauma. Article 75 dea ls with the award of reparation to the victims, to mean include restitution, compensation and rehabilitation. The Court's mandate is not only to establish principles relating to reparations, but also in exceptional circumstances to determine the scope and extent of any loss or damage to the victims.

'Justice is Not Mine'

At a panel discussion organized by the Women's Caucus for Gender Justice, a potential witness at the Rwanda ad-hoc Tribunal, speaking anonymously, stated that she was never informed that a case had progressed to trial until she was approached over a year after the initial contact with the investigators. She further stated that she refused to participate in the Tribunal because she had no faith in their protection efforts, and the Tribunal staff was not qualified to deal with her case sensitively. Another victim from Rwanda, speaking at the same panel, said tat she did not feel justice was "hers". Experiences of victims at the ad-hoc Tribunals must be taken into account and the shortcomings of the existing systems must be rectified. Participation, protection and right information at the right time are important to build faith in the victims and witnesses, particularly of crimes of gender and sexual violence, to come forward and testify. The ICC Statute has rightfully recognized the magnitude that such crimes h ave taken in recent times and qualified many articles and provisions with specific reference to crimes of gender and sexual violence.