International
Criminal Court
Shield
for victims and witnesses….
Sultana
Razia
In
the struggle towards International justice participation of the victims
in the criminal proceedings is a very innovative approach and it breaks
the age-old tradition of judicial process. It makes the justice more
accessible and at the same time victims have a control over the whole
process and undoubtedly participation of the victims strengthens the
cases.
Rome Statute deals
with delicacy regarding victims and witnesses protection as the previous
experience of International Criminal Tribunals for Rwanda ("ICTR")
and the former Yugoslavia ("ICTY") showed that victims faced
lack of security and challenges including physical and psychological
and witnesses were refused to take part on the court's proceedings for
the fear of reprisals.
Rome Statute can
be treated as the most effective mechanism that acknowledges the right
of the victims and treated victims not only a witness of the crimes
within the jurisdiction but it also as a person who has a valid interest
in the outcome.
Who
are the victims?
Victims before the ICC may be individual persons or organisations or
institutions, and the harm that a victim suffers may take different
forms. It can be
*physical harm to a person's body or
*psychological harm, by which a person's mind is affected because of
what she or he has had to do or see: or
*material harm, by which goods or property has been damaged or lost
as the result of crime.
A person can also
be a victim though s/he has not suffered directly. S/he can be a member
of a victim's family who has been killed or suffered harm as a result
of crime.
Victims will be
able to participate in stages of the Court's proceedings determined
to be appropriate by the court and in a manner, which is not prejudicial
or inconsistent with either the rights of the accused on a fair and
impartial trail.
A legal representative
may also present the views and concerns of the victim at stages where
the court considers it appropriate. The ICC may provide financial assistance
to assist victims in securing legal representation if necessary.
Victims
and Witnesses Unit
The Victims Participation and Reparation Unit (VPRU) and the Victims
and Witness Unit (VWU) of the court deal primarily with victims' rights
where a person will be considered to be a victim by the court when her
or his personal interests have been affected because of the commission
of a crime falling within the jurisdiction of the ICC.
The Unit shall include
staff with expertise in trauma, including trauma related to crimes of
sexual violence. This unit also informs victims about court appearances
and the limits of confidentiality.
Functions
of the Unit
The Victims and Witnesses Unit shall, inter alia, perform the following
functions, in accordance with the Statute and the Rules, and in consultation
with the Chamber, the Prosecutor and the defence, as appropriate
(a) With respect
to all witnesses, victims who appear before the Court, and others who
are at risk on account of testimony given by such witnesses, in accordance
with their particular needs and circumstances:
(i) Providing them
with adequate protective and security measures
(ii) Recommending
to the organs of the Court the adoption of protection measures and also
advising relevant States of such measures;
(iii) Assisting
them in obtaining medical, psychological and other appropriate assistance;
(iv) Making available
to the Court and the parties training in issues of trauma, sexual violence,
security and confidentiality;
(v) Recommending,
in consultation with the Office of the Prosecutor, the elaboration of
a code of conduct, emphasising the vital nature of security and confidentiality
for investigators of the Court;
(vi) Co-operating
with States, where necessary, in providing any of the measures stipulated
in this rule;
(b) With respect
to witnesses:
(i) Advising them where to obtain legal advice for the purpose of protecting
their rights, in particular in relation to their testimony;
(ii) Assisting them when they are called to testify before the Court;
(iii) Taking gender-sensitive measures to facilitate the testimony of
victims of sexual violence at all stages of the proceedings.
Article
68 of the Rome Statute is the main article laying out the procedural
provisions relating to victims and witnesses. Along with that article
some other provisions found elsewhere in the Statute require or allow
the organs of the Court to take appropriate measures to protect victims
and witnesses.
These measures may include:
*In camera proceedings or any other means to present evidence by using
electronic or other techniques;
*Participation of victims at appropriate stages of the proceedings;
&
*Withholding of evidence or information that would gravely endanger
the security of a witness.
The Statute also
includes a provision enabling the Court to award reparations to or for
victims.
Under the Rome Statute
and the ICC Rules, victims have the opportunity to participate in criminal
proceedings at the Court in a number of ways.
*The participation and Reparation Unit's work will specifically encompass
responsibilities concerning outreach, the processing of applications
for participation, legal representatives, and NGOs in relation to victim
participants, all of which involve significant protection issues.
Additionally, victims'
legal representatives are entitled to attend and participate in hearings
and, at the discretion of the Chambers, may question the accused, a
witness, or an expert.
Victim participants
and their legal representatives may consult the trial record and, where
possible, be present for announcements of decisions on admissibility,
jurisdiction, criminal responsibility, sentencing, and reparations.
Responsibilities
of the Unit
For the efficient and effective performance of its work, the Victims
and Witnesses Unit shall: ensure that the staff in the Unit maintain
confidentiality at all times and recognising the specific interests
of the Office of the Prosecutor, the defence and the witnesses, respect
the interests of the witness, including, where necessary, by maintaining
an appropriate separation of the services provided to the prosecution
and defence witnesses, and act impartially when cooperating with all
parties and in accordance with the rulings and decisions of the Chambers.
Reparation
under ICC
A victim may also apply to receive reparations from the ICC. Reparation
means that a victim may be entitled to receive compensation, rehabilitation
and /or restitution for the harm suffered as a result of the crime which
was committed against her or him. Thus, while it is impossible to place
a price on how much victim has suffered, the ICC may give victim money
to compensate for what the victim has lost as a result of a crime, and
to compensate for her or his suffering. The ICC can order that the person
convicted of a crime against victim pay the victim these reparations.
A Trust Fund has also been established to gather funds that will be
used to provide victims with reparations.
Restitution involves
returning to a victim her or his property where it was illegally taken
away, while rehabilitation is intended to allow the victim to continue
his or her life as normally as is possible. This can take the form of
money to pay for legal, medical, psychological and other care, and can
even include apologies from perpetrators of crimes to the victims.
In a nutshell ICC
provides following provisions for the victims and witnesses:
*Victims and witnesses of sexual violence may testify in closed hearings
or through special means to protect their privacy.
*They can also have a special helper (such as a psychologist or family
member) present while giving testimony.
*Victims of sexual violence will not be "put on trial" when
they give testimony, and their privacy will be protected.
*The confidentiality of victims and witnesses will be protected
*The definition of "consent" in cases of sexual violence is
strictly limited to protect victims.
*Judges must prevent the harassment or intimidation of victims and witnesses
during questioning, particularly in cases of sexual violence.
To strengthen the
evocative participation of the victims and witnesses they must receive
adequate protection and at the same time from the initial interaction
their physical and emotional protection must be addressed carefully.
It may be started
from the investigation stage through trial and post-trial. And for that
the capacity of the court should be extended because without that victim's
co-operation cannot be achieved and Their active participation is not
possible in the whole proceedings.
Being optimist only
then we can treat International Criminal Court as a shield to protect
victims and witnesses to uphold human rights.
This
is the shorten version of the paper which was presented in the "Advocacy
workshop on the International Criminal Court", organised by Odhikar.
The
author is a Law Desk Assistant of The Daily Star.