INTERNATIONAL CRIMINAL LAW

KLAW 322

WHAT IS THE PLACE OF VICTIMS IN INTERNATIONAL CRIMINAL LAW?

DISCUSS HOW THE ICC TREATS VICTIMS DURING THE CRIMINAL
PROCEEDINGS

SUBMISSION IN THE COMPLETION OF DISCUSSION QUESTIONS ISSUED BY

JULIE I. LUGULU LL.M (UNIVERSITY OF CAPE TOWN); LL. B (MOI); DIP KSL

GROUP MEMBERS
1. BOAZ MRIMA -LAW/M/1772/09/22
2. ELVIS SOITA SHITANDA-LAW/M/1692/09/22
3. MUTHOMI PURITY MUKAMI-LAW/M/1463/09/22
4. IAN DANCAN EKISA-LAW/M/2742/09/22
5. OINDO MELISSA MURIEL-LAW/MG/1372/09/22
6. MUNGA REDEMPTA MBEYU-LAW/MG/2424/09/22
7. TABUKA BIFWOLI THOMAS-LAW/M/3637/09/22
8. ANGELA WABWIRE-LAW/M/1229/09/21
9. PETER MOGENI-LAW/M/3838/09/22

INTRODUCTION
The recognition of victims' rights in international criminal proceedings has evolved
significantly, shifting from a focus solely on prosecution and punishment to ensuring justice,
reparations, and participation for those affected.

The Evolution of Victims' Role in International Criminal Law

1. Historical Context

Traditionally, International Criminal Law focused on holding perpetrators accountable for

crimes such as GENOCIDE, WAR CRIMES, AND CRIMES AGAINST HUMANITY.
Victims were often relegated to the role of witnesses, with limited rights to participate in
proceedings or seek redress. The Nuremberg and Tokyo Tribunals, established after World
War II, prioritized the prosecution of high-ranking officials but did not provide a formal role
for victims beyond testifying. The ad hoc tribunals (ICTY and ICTR) made some progress by
recognizing the importance of victim testimony and establishing witness protection programs.
However, victims were still not granted participatory rights or access to reparations.

2. The Rome Statute and the ICC

The adoption of the Rome Statute in 1998 marked a paradigm shift in international criminal
law. The ICC, which came into force in 2002, was designed to address the shortcomings of
earlier tribunals by incorporating victims' rights into its foundational legal framework. The
Rome Statute explicitly recognizes the rights of victims to participate in proceedings, seek
reparations, and receive protection. This represents a significant departure from the
retributive justice model, emphasizing restorative and reparative justice.

Rights of victims in the ICC

Right to Participate: Article 68(3) of the Rome Statute grants victims the right to participate
in proceedings by presenting their views and concerns. This participation is subject to the
discretion of the Court and must not prejudice the rights of the accused or the fairness of the
trial.

Right to Protection: The ICC is mandated to take appropriate measures to protect the safety,
physical and psychological well-being, dignity, and privacy of victims and witnesses (Article
68(1)).
Right to Reparations: Article 75 of the Rome Statute empowers the ICC to order reparations
to victims, including restitution, compensation, and rehabilitation. These reparations can be
awarded on an individual or collective basis.

Definition of victims

The ICC Rules include a general definition of ‘victims’, which is influenced by the 1985 UN
Victims Declaration and intended for all purposes (protection, participation and
reparations)1.It distinguishes between ‘natural persons’ and ‘organizations or institutions.

According to Rule 85 of the ICC Rules of Procedure and Evidence, victims are: "Natural
persons who have suffered harm as a result of the commission of any crime within the
jurisdiction of the Court."

Additionally, legal entities such as organizations and institutions that have suffered harm may
also be recognized as victims ICC, Rule 85(b)but the definition requires that they have
sustained direct harm and that this relates to certain property such as a hospital or a school.
The United Nations Basic Principles on the Right to a Remedy and Reparation (2005) further
defines victims as Persons who individually or collectively suffered harm, including physical
or mental injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights." It further includes immediate family members or dependents of direct
victims and those who have suffered harm while assisting victims or preventing
victimization.2

The ICTR in Akayesu case recognized that acts of sexual violence constituted acts of
genocide when committed with the intent to destroy, in whole or in part, a targeted group.
The tribunal acknowledged that victims of such acts suffered serious bodily or mental harm,
aligning with the definition of victims under international law. ‘Harm’ to natural persons
denotes hurt, injury and damage and the definition covers material, physical and
psychological or emotional harm, but only insofar as the harm is suffered personally by the
victim ‘personal harm’3.Although the harm must be suffered personally, not only ‘direct
victims’ but also ‘indirect victims’, such as family members of someone killed or of a child

1
Rule 85 of the ICC RPE.
2
UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law, 2006), Principle 8.
3
Lubanga Dyilo ICC A. Ch. 11.7.2008 para. 31–2.
soldier, are covered by the definition. 4 The harm must relate to a crime within the
jurisdiction of the Court in substantive, territorial and temporal terms; the question of nexus
between the ‘harm’ and a crime actually investigated or prosecuted by the Court is addressed
below in relation to participation. What evidence may be sufficient will be determined on a
case-by-case basis.

Children as Victims

The ICC adopts child-sensitive approaches during investigations and trials, such as using age-
appropriate language and minimizing direct confrontation with the accused.

The ICC has prosecuted cases involving the recruitment and use of child soldiers, such as in
Prosecutor v. Thomas Lubanga Dyilo, which highlighted the grave impact of conscripting
children into armed conflict and set a precedent for holding perpetrators accountable 5.
Children, particularly girls, are often victims of sexual violence in conflict zones. The ICC
ensures that such crimes are investigated and prosecuted, providing justice for these heinous
acts.

Prosecutor v. Dominic Ongwen, which involved charges of sexual slavery and the
conscription of child soldiers, highlighting the ICC’s commitment to addressing crimes
affecting children.

Protection of Victims and Witnesses

Protecting victims and witnesses is a challenging and complex responsibility in any criminal
justice system, especially within international criminal jurisdictions. Given the heavy
dependence on live testimony, the nature of the crimes, and the international and highly
publicized nature of these tribunals, it became necessary to establish comprehensive victim
and witness protection measures. The protection of victims and witnesses is regulated in the
Statutes and Rules6 and a rich jurisprudence has developed. While the granting of protective
measures is primarily a responsibility of the Chambers at the Tribunals, the Prosecutor and

4
Lubanga Dyilo ICCT. Ch. I18.1.2008 para.91.
5
Situation in the Democratic Republic of the Congo, in the case of the Prosecutor v. Thomas Lubanga Dyilo,
ICC-01/04-01/06, International Criminal Court (ICC), 14 March 2012, accessed 13 March 2025.
6
Arts.20(1) and 22 of the ICTY Statute, Arts.19(1) and 21 of the ICTR, and rr.87–8of
the ICC RPE
the Chambers, and also the Registrar and Registry, share the responsibility at the ICC; the
Pre-Trial Chambers have been particularly active, including during the investigation. 7

Special units for victim and witness issues, including protective measures and security
arrangements, are also established in the respective Registries. 8 In order to avoid ‘secondary
victimization’, specialized Registry units also provide support measures that are similar to
social welfare services.9 Factors such as the victim’s age, gender, health, and the nature of the
crime, particularly sexual crimes, may add to his or her vulnerability and thus require
protective measures.10

The protection may be motivated by security or privacy reasons.34 Protective measures

which are to be enforced out of court are possible only to a limited extent; witness protection
programs, including relocation, require assistance by States and others and must be used
sparingly Protection programs must be available to both the prosecution and the defense and
be perceived as neutral. Hence, the responsibility for these matters, including relocation, is
placed upon special units with the Registry. The ICC Appeals Chamber rejected the
Prosecutor’s attempt to ‘preventively relocate’ witnesses unilaterally and concluded that the
relevant Chamber was the final arbiter in case of disagreement between the Prosecutor and
the Registry unit.11

. Each court places great importance on providing protective measures in appropriate

circumstances. Such measures include:

 The non-disclosure of identity until necessary for the adequate preparation of the
defense;
 Protection from the public and media;
 Protection from confrontation with the accused; and
 Special measures for victims of sexual violence.

Victim Participation in the ICC criminal proceedings

Victim participation in ICC proceedings varies across different stages and is subject to
judicial discretion. Victims may provide information to the prosecutor for investigations, but
this does not automatically trigger an investigation. They can participate in the Pre-Trial
7
HåkanFriman,‘Protection of victims and witnesses
8
Arts. 43(6) and 68(4) of the ICC Statute, and Rule 16–19 of the ICC RPE.
9
Stover, The Witnesses,79–91.
10
Art. 60(1) of the ICC Statute.
11
Katanga and Ngudjolo Chui ICC A. Ch. 26.11.2008
Chamber’s authorization process and apply for a review of a decision not to investigate under
Article 53(3), though they cannot initiate such reviews.12
Pursuant to Article 68(3) of the Rome Statute, during judicial proceedings, victims have the
right to present their views and concerns directly to the ICC Judges through legal
representatives. Victims may exercise their participatory rights throughout all instances of
judicial proceedings, including appeals. They have the right to make observations to the ICC
on specific topics even before the commencement of the trial stage such as on questions of
the jurisdiction of the court.
In order to participate in ICC proceedings, victims have to apply in writing. To facilitate this
process, the Court has developed application form which the victim completes and send to
the Victim Participation and Reparation Section (VPRS) through the outlined methods.13 The
judges of the ICC will examine and determine whether or not the applicant is entitled to
participate in the proceedings.14
The judges follow the following criteria so as to determine who is authorized or not.
 Harm
The judges should establish what type of harm will qualify depending on the specific case
and the same is not limited to physical ha but also emotional suffering and material loss
 Relationship between the harm and the crime committed and jurisdiction of the court.
The victim must have suffered at least from international crimes such as genocide, crimes
against humanity or war crimes committed after 1st July ,2002 and in cases of crime of
Aggression 17th July 2018.
 Clear causal link between the crime and the harm suffered.
It must be clear that the harm suffered as a result of the crime.
Once a victim is allowed as a participant, he or she is entitled to the following rights;
1. Victims can present their views and concerns to the Court, at stages of proceedings
considered appropriate by the judges, where their personal interests are affected.
2. The right to information -Court must keep him/her informed about developments in
the proceedings.
3. The right to have a legal representative.
4. The right to ask the Court to take all possible measures to respect their safety, well‐
being, dignity and privacy in the course of their participation in the proceedings i.e.

12
Rule 92(2) of the ICC RPE.
13
Victims before the International Criminal Court; A guide for the participation of victims in
the proceedings of the ICC,18
14
Ibid ,19
 request the judges to withhold some information in the application from the
prosecution or defense.
The ICC judges decide when and how victims will be able to exercise the rights, while
making sure that the participation of victims does not interfere with the rights of the accused
to a fair and impartial trial.
It is also possible for a victim to apply for reparations which will only be ordered by the
Court at the end of a trial and only in relation to crimes for which an accused is convicted.
The judges have to decide whether a victim should participate at that stage of proceedings
which they have applied. In doing this, they can rely on the following criteria;
-Is the person a victim of the case that is being dealt with by the Chamber.
- Are the victim’s personal interests affected at that point in the proceedings.
- Is it appropriate for the victim to present his or her views and concerns at that particular
point in the proceedings.
Victims may participate through their legal representative in the following ways: 15
● Present their views to the judges when the Pre-Trial Chamber is considering what charges
will be admitted against the accused person in subsequent trial proceedings;
● Attend hearings before the Chamber;
● Make statements at the beginning and end of a stage of trial proceedings before the
Chamber
● Ask questions to a witness or expert who is giving evidence before the Court, or the
accused;
● Make written submissions on issues where the personal interests of victims are affected;
● Present witnesses at trial to give evidence on topics impacting on the personal interests of
the victims.

 Reparations to Victims
The provisions within the Rome Statute of the International Criminal Court (ICC) represent a
significant advancement in the affirmation of the rights of victims of serious violations in
international law, particularly concerning reparations. Unlike previous international criminal
tribunals, the ICC is explicitly empowered to award reparations either directly to, or in
respect of, victims.16 Article 75 of the Rome Statute grants the Court the authority to establish

15
Ibid,18
16
Art.75 of the ICC Statute.
principles relating to reparations for victims, including restitution, compensation, and
rehabilitation. The Court may issue orders directly against a convicted person specifying the
reparations. Where deemed appropriate, the Court can order that the reparations be made
through the Trust Fund for Victims provided for in Article 79. The TFV operates
independently from the court and is managed by the assembly of state parties. While the
Statute primarily indicates that the Fund may receive money and property collected through
fines and forfeiture, the Assembly of States Parties has also defined that it can receive
voluntary contributions.17Rule 98 of the Rules of Evidence and Procedure outlines how the
Court may utilize the Trust Fund, including ordering awards against convicted persons to be
deposited through the Fund for individual victims, or resorting to the Fund for collective
awards when the number of victims and scope of reparations make it more appropriate.
Forms of reparations
 Restitution aims to restore the victim to the situation prior to the crime, potentially
through the return of property. However, its practical application has been limited in
international criminal tribunals.
 Compensation seeks to make good the economically assessable damage suffered by
victims, typically through monetary means.
 Rehabilitation involves measures to assist victims in their physical, psychological,
and social reintegration. The ICC may award this on a collective basis.

Reparations are subject to separate proceedings including appeals. 18 In order to secure future
reparations, the court may request states to freeze assets. 19 The Pre-Trial Chambers have
regularly, and on their own motion, made such requests when issuing arrest warrants.20

17
Bitti and Gonzalez Rivas, pp. 315–316.
18
Arts.76(3) and 82(4) of the ICC Statute.
19
Art. 57(3)(e) of the ICC Statute.
20
Lubanga Dyilo ICC PT. Ch. I 10.2.2006 paras. 130–41.