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A comprehensive literature survey on the rights of victims under international law, focusing on the international criminal court (icc) and comparing the victim-friendly nature of common law and civil law systems. It discusses the definition of victims, their rights in both systems, and the un instruments that have been relied upon, such as the statutes of ictr, icty, and the un declaration of basic principles for victims of crime. The document also examines the role of the icc in providing remedies and reparations for victims of gross violations of international human rights law.
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I, Maurice Kouadio N’dri, declare that the work presented in this dissertation is original. It has never been presented to any other University or institution. Where other people’s works have been used, references have been provided, and in some cases, quotations made. It is in this regard that I declare this work as originally mine. It is hereby presented in partial fulfilment of the requirements for the award of the LL.M Degree in Human Rights and Democratisation in Africa.
Signed………………………………………….
Date…………………………………………….
Supervisor: Dr. Raymond Koen
Signature……………………………………….
Date……………………………………………..
I am grateful to the Centre for Human Rights, University of Pretoria, for affording me the opportunity to be part of this amazing experience and for the unswerving support I received for the duration of the study and for making me feel more than just another student. Gratitude is due to my teachers Prof Heyns, Prof Viljoen, Prof Michelo Hansungule for their guidance. My sincere appreciation also goes to Norman Taku, Martin Nsibirwa, Jeremie Munyabarame, Warukugu, Tarisai, Mianko and Magnus Killander for their selfless assistance during the program.
I would also like to express my heartfelt and lifelong gratefulness to the members of the Community Law Centre of the Faculty of Law at the University of the Western Cape. I thank especially Prof Nico Steyler, Julia Sloth-Nielsen for helping me deepen my knowledge in law. I am also very grateful to my supervisor Dr Raymond Koen for the incisive comments, support and encouragement. I owe a tremendous respect and appreciation to Trudy Fortuin and Jill Claassen for the generous guidance and tireless and unreserved support especially during the ‘dark days’ of my grief as a result of the untimely passing away of my mother.
My special gratitude also goes to various other people whose contribution was instrumental in various ways during my study: to my grief-stricken family, my friends who across the distance quietly urged me on; to the Ministry of Justice of the Republic of Côte d’Ivoire that gave me the permission to take part in this enriching programme.
Lastly to the lovely guys and ladies of the LLM class of 2006, for the unforgettable unique experience of a continent-wide family, and to the LLM family of the Western Cape.
ACHPR African Charter on Human and Peoples’ Rights
AU African Union
CEDAW Convention on the Elimination of Discrimination Against Women
CERD Convention on the Elimination of All Forms of Racial Discrimination
CRC Convention on the Rights of the Child
ECC Extraordinary Chambers in the Courts of Cambodia
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
NGOs Non Governmental Organisations
RPE Rules of Procedure and Evidence
SCSL Special Court of Sierra Leone
SPSC Special Panels for Serious Crimes in East Timor
UDHR Universal Declaration of Human Rights
UN United Nations
USA United States of America
The dissertation explores the development and state of victims’ rights in international criminal law.
Firstly, the study will first trace international law provisions dealing with victims’ rights. Secondly, it will criticise the blindness of the ad hoc tribunals to victims’ rights. In this regard, it will attempt to explore if the statutes of these tribunals can still be amended so as to include therein provisions safeguarding victims’ rights. Finally, it will give a brief overview of the establishment of the ICC. It will analyse and address the provisions of the Rome Statute dealing with victims’ rights.
The purpose of this study is to propose avenues for promoting respect for victims’ rights. It will, accordingly, examine the rationale of the victims’ reparation, its evolution, its denial and its rebirth. It will canvass victims’ rights in domestic law especially in the civil law in comparison with international law. It will also propose means whereby the international community may better address the issue of victims’ rights.
1.4 Hypothesis and research questions
The study will aim to answer the following pertinent questions in respect of victims’ rights by the international criminal justice: Does the international criminal justice regime adequately deal with victims’ rights? Is the ICC really a hope for victims?
1.5 Literature survey
Only few books were written on the subject of victim under international law. The most relevant for this study are the books of Ilaria Bottigliero^3 , Mikaela Heikkilä.^4
(^3) I Bottigliero Redress for victims for crimes under international law (2004) 249. (^4) M Heikkilä International criminal tribunals and victims of crime (2004) 4.
Bottigliero’s book focuses on the evolution of victims’ rights throughout human history. She focuses on the collapse and the rebirth of these rights. She analyses the ICC reparation regime and tries to assess whether this court is truly a hope for victims of ongoing conflicts and violations.
Heikkilä’s book is aimed at elaborating what the establishment of international criminal tribunals means for the victims of crime. Her study focuses on the ICTY, the ICTR and the SCSL, which have been established to prosecute crimes committed during specific armed conflicts and the permanent ICC. He aims at elucidating the role granted to victims and at identifying factors influencing this role.
A number of journal articles will also be useful for this study. There are, among others, the articles of Katzenstein^5 , Boyle^6 , and Bachrach^7. All these articles focus on different aspects of victims’ rights. They also give relevant information on the ECC and the SPSC, two instruments that are not well documented.
A number of UN instruments such as the statutes of ICTR, ICTY, Nuremberg Tribunal, ICC and the Special Court of Sierra Leone, the Extraordinary Chambers of Cambodia (ECC), the UN Declaration of Basic Principles for Victims of Crime and Abuse of Power (1985), the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of Humanitarian Law (1999) will be relied upon.
Websites such as those of the ICC,^8 the ICTY,^9 ICTR,^10 the Victims’ Rights Working Group,^11 the Coalition for the ICC (CICC),^12 the London-based ONG Redress,^13 will be accessed for.
(^5) S Katzenstein ‘Hybrid Tribunals: Searching for Justice in East Timor’ (2003) 16 Harvard Law Journal 245-278. (^6) D Boyle’ The rights of victims: participation, representation, protection, reparation’ (2006) 4 Journal of international criminal justice 307-313. (^7) M Bachrach the protection and rights of victims under international criminal law (2000) 34 International Law 7-20. (^8) www.icc-cpi.int. (^9) www.un.org/icty.
allowance for victims to be heard and compensated. Chapter five will consist of a summary of the entire presentation and the conclusions drawn from the study. It will make some recommendations for the adequate protection of victims’ rights.
The goal of this chapter is threefold. It will first introduce key terms and concepts with a view to clarifying the scope and direction of this study. It will assess redress for victims in the domestic sphere. It will further discuss the provisions relating to redress and effective remedy in major human rights instruments.
The concept of victim is used in a great variety of senses, sometimes confusedly or abusively. It is not uncommon to notice that often the alleged perpetrator refers to himself as the victim. For the purpose of this study, it is therefore necessary to define this concept properly.
The Oxford Advanced Learner’s dictionary defines the term victim as a ‘person who has been attacked, injured or killed as the result of a crime, a disease, an accident.’^14 The concept of victim cannot properly be defined without reference to victimology, that is, the ‘study of the victim, the offender and the society’^15 or study of why certain people are victims of crime and how lifestyles affect the chances that a certain person will fall victim to a crime.^16 In his article, ‘victimology today: major issues in research and public policy’, Viano defines victim as:
(^14) Oxford Advanced Learner’s Dictionary International Student’s Edition 7th (^) edition 1640. (^15) Rika Snyman ‘Overview of and concepts in victimology’ in L Davis & R Synman (eds) Victimology in South Africa (2005) 7. (^16) http://en.wikipedia.org/wiki/Victimology (accessed on 12 August 2006).
Against this background, a victim may be defined as a person who has been wronged, injured or killed by another person as the result of a crime. The dependants of a direct victim (ascendants and descendents) shall be considered as indirect victims in some circumstances especially when the latter is deceased. Friends and other relatives may also be considered as victims if they prove that they have also been prejudiced by the wrongful act inflicted upon the direct victim.
A witness may be defined as a person who provides or is due to provide testimony before a Trial Chamber as a result of being called by the parties, or summoned by the Chamber to give testimony by deposition or video-conference link.^20 The Council of the European Union defines the term ‘witness’ as any person, whatever his or her legal status, who possesses intelligence or information regarded by the competent authority as being material to the criminal proceedings.^21 The regulation establishing the Commission for Reception, Truth and Reconciliation in East Timor provides that a witness means a person who has knowledge of criminal acts or omissions or the effect of such acts or omissions and includes a person who appears before the commission to provide information or testimony.^22 Different categorisation of witnesses can be done depending on their relationship to the offence, offender and victim: eyewitnesses, victim witnesses, co-perpetrators etc.^23
The Cambridge International Dictionary of English defines eyewitness as a ‘person who saw something happen, for example, a crime or an accident.’^24 In other words, it is a person who was the direct spectator of a crime. A co-perpetrator is a witness who was involved in the perpetration of the crime. Most of the time, he becomes a witness for the prosecution as a result of a plea bargain or after pleading guilty and gives special
(^20) ICTY Doc. IT/200 Directive on allowance for witnesses and expert witnesses, Article 2. (^21) EU Doc OJ C 327, 7/12/1995. (^22) UN Doc. UNTAET/REG/2001/10, Section 1 (p). http://www.un.org/peace/etimor/untaetR/Reg10e.pdf (accessed on 19/08/2006). (^23) A Rydberg The protection of the interests of witnesses: the ICTY in comparison to the future ICC (1999) 456. (^24) Cambridge International Dictionary of English (1995) 490.
information pertaining to the offence and to his fellow offenders. A victim witness is a victim required or called upon to describe her or his victimisation especially in court proceedings. Only victim witnesses who are sometimes described as survivors will be covered by this study.
The concept victims’ rights should here be understood as encompassing all the entitlements a victim can claim. It has within its scope concepts as redress, remedy, compensation, restitution, recovery, rehabilitation and the like.
Black’s Law Dictionary defines redress as ‘satisfaction for an injury or damages sustained…. damages or equitable relief.^25 ’ The Oxford Advanced Learner’s Dictionary defines it as ‘payment etc…that you should get for something wrong that has happened to you or harm that you have suffered’ and then mentions compensation as synonym.^26 Compensation, in turn, means ‘something especially money that somebody gives you because they have hurt you, or damaged something that you own; the act of giving this to somebody.’^27
There are many different legal families throughout the world. Heikkilä distinguishes four families: the common law tradition, the civil law tradition, the Islamic law tradition and the socialist law tradition.^28 However, only the common law and the civil law tradition will be discussed here.^29
(^25) Black Law Dictionary, fifth edition (1979). (^26) Oxford Advanced Learner’s Dictionary International Student’s Edition 7th (^) edition 1221. (^27) n 26 above 294. (^28) Heikkilä (n 4 above) 43. (^29) In fact, they are the ones that really inspire the drafters of the statutes of the international criminal tribunals.
significant part in the proceedings and ask for damages. The civil law reparation mechanism is the one that has inspired the drafters of the ICC Rome Statute.^38
The right to an effective remedy or the right for a victim to be granted the suitable redress for the injury or harm that he or she suffered is enshrined in the major international and regional human rights instruments. This right will be assessed in the UN system before evaluating it in various regional instruments.
According to article 8 of the UDHR, ‘everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’
Although the UDHR is, as its name suggests, not a directly legally binding treaty, its importance should not underestimated.^39 Most of its provisions constitute customary international law,^40 and it has paved the way for further developments in international human rights treaties law.^41 In sum, the mother of most of the human rights instruments recognises that victims have the right to be compensated.
As with the UDHR, the ICCPR expressly provides for an individual right to a remedy in cases of violation of its provisions ‘irrespective as to their magnitude or seriousness.’ Under its article 2 (3), states parties undertake: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other (^38) Bottigliero (n 3 above) 214. (^39) Office of the United Nations High Commissioner for Human Rights The UN Human Rights Treaty System: An introduction to the core human rights treaties and the treaty bodies Fact sheet No 30 5. (^40) M Nowark Introduction to the international human rights regime (2003) 77. (^41) Bottigliero (n 3 as above) 113.
competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
The Human Rights Committee’s (HRC) views on individual complaints for the breaches of the ICCP provisions such as torture and disappearances, have substantially contributed to the gradual expansion and better definition of the victims’ rights to redress under international law.^42
Bottigliero mentions three pillars of the rights to redress for victims of serious human rights violations. The first pillar is the duty to investigate that was decided in the landmark decision Rodriguez v Uruguay. In this communication, the HRC held that ‘the responsibility to investigate falls under the state’s party obligation to grant an effective remedy.’^43 The second pillar is the duty to prosecute and punish those responsible. This obligation was expressed by the HRC in the case Bautista v Colombia relating to the disappearance of a Colombian citizen and activist. The HRC argued that the duty of Colombia was to Investigate thoroughly alleged violations of human rights, and in particular forced disappearances of persons and violations of the right to life, and to prosecute criminally, try and punish those held responsible for such violations.^44
The third pillar is the incompatibility between amnesty laws and the right to a remedy. In the case Rodriguez v Uruguay , the HRC objected to amnesty laws that it viewed as opposing the duty of states to provide victims with a remedy under article 2(3) of the ICCPR. These views were actually broadly expressed in General Comment No 20 referred to in the concluding observations relating to this communication, as follows Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not
(^42) The Human Rights Committee is the UN treaty-based body whose task is to supervise and monitor the implementation of the ICCPR. It has maim functions: issuing General Comments, receiving and examining states reports and receiving and considering individual complaints and state complaints. (^43) Rodriguez v Uruguay (Communication 322/1988 para 12.3. (^44) Bautista v. Colombia (Communication 563/93) para 8.
