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  This module is a resource for lecturers  

 

Topic eight: Victims of crime and international law

 

Victims and international human rights law

 

State responsibility for human rights violations

Protection and redress for victims of crime and protection and redress for victims of human rights violations are two distinct, but also clearly related issues:

In national criminal law the responsibility for the crime lies with the offender. Governments are not, in principle, responsible for the illegal conduct involved.

International law traditionally deals with responsibility of States to one another. In international human rights law, the individual claims a violation against the State.

However, this distinction is not always as clear cut. Victims of crime and human rights violations share many of the same needs and interests, such as the need for redress for physical and mental harm, the need for protection and assistance and the need for redress for financial loss. Moreover, there are specific cases and circumstances, in which the States can be responsible for the acts of private individuals because States have a positive obligation to ensure that perpetrators of acts that amount to serious human rights violations are effectively brought to justice. For instance, the relatives of someone who disappeared or was arbitrarily killed have a right to know the truth what happened to their loved one, and the State has the duty to launch a criminal investigation into such acts. Moreover, international and regional human rights law contains provisions on civil and political rights, such as the right to a fair trial, that are applicable not only to persons accused of crimes but also to their victims. Indeed, many of the principles developed in the context of human rights violations and for victims of crime mutually reinforce each other. In addition, the United Nations Declaration also relates to victims of "abuse of power" which, in many cases, may amount to human rights violations.

Human rights mechanisms 

There are a wide range of human rights convention and treaties, dealing with rights in general, such as civil and political rights or social and economic rights; or the rights of a particular group, such as the rights of children or the rights of women or the rights of persons with a disability; or the rights not to be subject to a particular violation, such as the right of freedom from torture. At the global level, a range of United Nations Committees have been established to monitor State compliance with these key international human rights treaties, including, for instance, the International Covenant on Civil and Political Rights (the ICCPR) (GA Resolution 2200A (XXI)) which is monitored by the Human Rights Committee, the United Nations Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment (GA Resolution 39/46) which is monitored by the Committee against Torture, or The Convention on the Elimination of All Forms of Discrimination against Women (1979), which is monitored by the Committee on the Elimination of  All Forms of Discrimination against Women. These so-called "Treaty Monitoring Bodies" enable individual victims of human rights violations to present their individual complaints against States parties to the Treaty before the respective Committees which then issue an opinion.

At the regional level, there are also strong mechanisms safeguarding the protection of human rights. Human Rights Commissions and Courts can receive individual complaints against States, including the European Court of Human Rights that adjudicates violations of the European Convention on Human Rights; the Inter-American Commission on Human Rights and the Inter-American Court for Human Rights which together make up the human rights protection system of the Organization of American States; and the African Court on Human and People's Rights which complements and reinforces the functions of the African Commission on Human and Peoples' Rights.

These mechanisms are mechanisms of international and not of domestic law, and they deal with State responsibility. Accordingly, complaints can only be brought against the State or State bodies but not against individuals. If for instance a victim has been tortured by a police officer, he or she can go to the human rights tribunal to launch a complaint against the State which the police officer worked for (and for example allege, that the police officer had orders to torture or that the State had a positive obligation to stop him/her from torturing the complainant), but the human rights body will not hear the complaint against the police officer him or herself.

Moreover, there are strict admissibility requirements for human rights complaints: Individuals who allege to have suffered violations of rights contained within an international and/or regional human rights convention can submit complaints, provided that the object of the complaint is not pending before another international jurisdiction and that they have exhausted all available domestic remedies.

The requirement of exhausting domestic remedies has been interpreted with a view to the objective of that provision: to open up an avenue that allows individuals to seek redress from the State for a wrong that constitutes a human rights violation, when national remedies have failed to provide such redress.

Accordingly, in situations of internal or international armed conflict, or where the domestic legislation of the State concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated, the requirement might be lifted. Furthermore, human rights jurisprudence has clarified that victims do not need to show that they have sought to pursue remedies which are de facto inaccessible and only theoretically available, including remedies that do not provide any reasonable chances of success. According to the jurisprudence of the Inter-American Court of Human Rights ( OC-11/90, Advisory Opinion by the Court requested by the Inter-American Commission on Human Rights, 10 August 1990 ) domestic remedies have also been presumed to be unavailable where victims who are lacking the financial means to pursue their claims do not have access to legal aid; or in cases where there is a "general fear" in the legal community to represent the victim that prohibits the victim from exercising their right.

Regional human rights courts and their jurisprudence on rights of victims of crime

Human Rights Law contains specific provisions that are directly relevant to victims of crime such as the right to a fair trial or the prohibition of discrimination. In addition, the jurisprudence of human rights courts has further substantially strengthened the rights of crime victims in many ways, as illustrated by some examples in the following.

The jurisprudence of human rights tribunals has clarified that States may have a positive obligation to secure the enjoyment of fundamental human rights and that this may entail that the State proactively takes measures to protect victims of crime against crime

Article 2(1) of the International Covenant on Civil and Political Rights (GA Resolution 2200A (XXI)), obliges each State party "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant".

In interpreting Article 2, the Human Rights Committee considers it necessary "to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights" (General Comment No. 3 on Article 2).

In particular, this finding implies that States parties may be required effectively to investigate, prosecute and punish violations of individual rights and freedoms ( OHCHR, 2003).

Under the corresponding provisions in the European Convention on Human Rights (1950) there is a corresponding framework. Fundamental human rights provided for in the Convention, such as the right to life, the right to freedom of torture or the right to one's family life, also involve a primary duty on the State to secure the enjoyment of these rights. This requires States parties of the European Convention to take effective measures of prevention, investigation, suppression and punishment of violations of these rights.

The jurisprudence of the European Court of Human Rights has clarified that the State's duty to secure rights at issue may also entail the legal duty of a State to ensure respect for those rights and freedoms between private citizens.

For instance, the European Court on Human Rights in the Case of X and Y v. the Netherlands (1985), held that the Dutch Government had a positive legal duty to ensure an effective right to respect for the private life of a mentally handicapped girl who had been raped but who was legally unable to institute criminal proceedings against the alleged perpetrator of the crime and that this gap in domestic law constituted a violation of the child's right to family life as provided for in Article 8 of the European Convention (1950). In addition to finding a violation of the girl's right to family life, it ordered the Government of the Netherlands to pay a compensation to the girl.

The jurisprudence of human rights tribunals has clarified that the obligation of States to prosecute serious crimes is also a private right that is owed to victims of such crimes

A State's duty to prosecute serious crimes has traditionally been understood as an obligation to the public, not as a private right that could be enforced by individual victims. However, case law by the Inter-American Court of Human Rights (IACHR) in the 1988 Velasquez-Rodriguez v. Honduras case , a case about the enforced disappearance of a Honduran university student who was seized without arrest warrant in broad daylight by a group of heavily armed men in civilian attire, changed this understanding. The IACHR found that:

"The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation."

In later cases, such as the case of Manuel Garcia Franco v. Ecuador (1997), another case about an enforced disappearance, the IACHR clarified that such prosecutions must be conducted within "a reasonable time" by a competent, independent, and impartial tribunal.  

In this case, the IACHR held that "the State of Ecuador failed to honor its obligation to provide simple, swift and effective legal recourse to the Garcia family, so that they could know the full truth about what happened to Manuel, including the circumstances of his torture and death" (1997, para. 73). The court added that "this right to know the truth about what happened is also based on the need for information to vindicate another right. In the case of a disappearance, family members have the right to know the exact fate of the victim, not only for the purpose of learning exactly how his or her rights were violated, but also in order to enforce their own right to compensation from the State" (1997, para. 74).

The right to effective criminal investigations has also been upheld by human rights jurisprudence in other contexts. In a case against Romania, before the European Court of Human Rights (ECtHR) the claimant's brother was killed in suspicious circumstances. Despite evidence of an attack, the authorities did very little to investigate the crime for the next 12 years. The ECtHR ruled that their efforts had been totally insufficient. This case had an impact beyond the judgment itself in that it influenced reforms to improve the effectiveness of criminal investigations in Romania ( Case of Trufin vs. Romania, 2010 ).

The jurisprudence of human rights tribunals has clarified that victims have a right to access to justice and that this may require that they can receive free legal aid.

In a case against Ireland, the claimant wanted to be legally separated from her husband, who was allegedly a violent alcoholic. However, she could not afford the lawyer's fees and there was no legal aid scheme that she could apply to. The ECtHR ruled that the lack of legal aid effectively denied Mrs. Airey access to a court, breaching her rights to access to justice. The case also led to change at the systemic level: legal aid for such cases was introduced in Ireland in the following year ( Case of Airey v. Ireland, 1979 ).

The international legal framework on reparations

In parallel to the strengthening of rights of crime victims in the jurisprudence of human rights bodies and tribunals to a right to investigation and prosecution and participation in trial, there has also been an evolution in the right to effective redress and remedy for victims of gross violations of human rights law and international humanitarian law, such as war crimes. 

One milestone in that context was the adoption, in 2005, by the United Nations General Assembly of the 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 .

The Basic Principles and Guidelines call on States to provide victims of gross violations of international human rights law and serious violations of international humanitarian law with remedies and reparations.

In the development of the basic principles and guidelines, the issue of responsibility of non-State actors was also raised in the discussions and negotiations, including in as far as movements or groups exercising effective control over a certain territory and people in that territory were concerned, as well as with regards to business enterprises exercising economic power. According to one of the main drafters, there was a general agreement that "non-State actors are to be held responsible for their policies and practices, allowing victims to seek redress and reparation on the basis of legal liability and human solidarity, and not on the basis of State responsibility" ( van Boven, 2010 ). Moreover, the United Nations Principles and Guidelines provide for equal and effective access to justice, "irrespective of who may ultimately be the bearer of responsibility for the violation" (2005, Principle 3c). In this connection reference is also made to the following provision: "In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim" (2005, Principle 15).

A core component of the United Nations Principles and Guidelines is laid out in the principles describing the various forms of reparation. They may be summarized as follows (van Boven, 2010):

Restitution

refers to measures which "restore the victim to the original situation before the gross violations of international human rights law and serious violations of international humanitarian law occurred" (2005, Principle 19). Examples of restitution include: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.

Compensation

"should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case" (2005, Principle 20). The damage giving rise to compensation may result from physical or mental harm; lost opportunities, including employment, education and social benefits; moral damage; costs required for legal or expert assistance, medicine and medical services, and psychological and social services.

Rehabilitation

includes medical and psychological care, as well as legal and social services (2005, Principle 21).

Satisfaction

includes a broad range of measures, from those aiming at cessation of violations to truth seeking, the search for the disappeared, the recovery and the burial of remains, public apologies, judicial and administrative sanctions, commemoration, and human rights training (2005, Principle 22).

Guarantees of non-repetition

comprise broad structural measures of a policy nature such as institutional reforms aiming at civilian control over military and security forces, strengthening judicial independence, the protection of human rights defenders, the promotion of human rights standards in public service, law enforcement, the media, industry and psychological and social services (2005, Principle 23).

Since their adoption, the United Nations Basic Principles and Guidelines have influenced and informed domestic and international jurisprudence on a right to reparation and remedy. Having evolved in parallel to the Rome Statute, they have for instance influenced the understanding of the rights to reparations before the International Criminal Court.

 

Victims in the context of international criminal justice

 

Victims and early international criminal justice mechanisms

As with national courts, the role of victims in the context of international criminal justice mechanisms has evolved over time. Both the Nuremberg Tribunal and the Tokyo Tribunal, which operated in the 1940, focused on cases against perpetrators. In the early 1990s, the Security Council established two ad hoc tribunals: after the beginning of the war in Bosnia and Herzegovina, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and, after the genocide in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) in 1994. In proceedings before both tribunals, the case against the perpetrators was again the primary focus of attention: victims had a limited role and could only appear as witnesses. Practitioners, academics, and victims' advocates criticized the ICTY and the ICTR for this approach. They claimed that the tribunals had failed those that they were envisioned to serve, the victims of the atrocities ( Worldwide Movement for Human Rights, 2002).

Victims and the International Criminal Court

With the adoption on 17 July 1998 of the Rome Statute, the legal framework guiding the International Criminal Court, the first permanent international criminal tribunal, the growing attention paid to victims in the framework of criminal proceedings in national criminal justice systems also reached the international criminal justice regime. The preamble to the Rome Statute of the International Criminal Court (ICC) reminds us that "during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity." This emphasis on victims and human suffering in the preamble is intentional, and a reflection of the intention to create a 'victims court', a court that would give survivors of mass atrocities a significant voice in the administration of justice (Stover et al., 2010).

In fact, and in part arguably as a response to the criticisms against the ICTY and ICTR, the ICC pioneered a set of new victim-centred features in its normative and procedural framework (Trumbull, 2008). In particular, the ICC grants victims the right to participation in trial and the right to reparations. Victims' legal representatives ensure that at all stages of the proceedings, their views and concerns are heard on matters where their personal interests are affected. Victims may attend hearings and, subject to rulings by the Court, make oral and written submissions, or be allowed to question witnesses. Throughout this participation in trial, the identities of victims are protected by a pseudonym attributed to them (for example: a/0001/18) A special section of the ICC, the Victims Participation and Reparation Section, facilitates interactions with the court and has registered thousands of victims as participants in the two decades of the ICC's existence. The Office of the Public Counsel for Victims (OPCV) provides legal representation to victims throughout proceedings, and supports external lawyers appointed by victims. Yet another section within the Court deals with facilitating victims and witness protection, as required.

Moreover, the Rome Statue created a Trust Fund for Victims with a dual mandate, (i) to implement Court-ordered reparations (reparations mandate) and (ii) to provide physical and psychosocial rehabilitation or material support to victims of crimes that fall within the jurisdiction of the ICC (assistance mandate). For instance, the Trust Fund undertakes, in collaboration with local partners, medical rehabilitation programmes for victims injured as a result of war crimes, or micro credits schemes that benefit survivors of conflict related sexual and gender-based violence crimes in ICC situation countries.

A strengthening of victims' rights following the adoption of the Rome Statute

The internationalized ad hoc tribunals that were established subsequent to the ICC's creation include different forms of victim participation and reparation regimes. In particular, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon, the Kosovo Specialist Chambers, the African Union-sponsored Chambres africaines éxtraordinaires (established to bring to justice the former Chadian dictator Hissène Habré), and the Cour pénale spéciale Centrafricaine in the Central African Republic, all contain specific provisions allowing victims to participate in proceedings and, to a varying degree, to seek reparations in case of a conviction.

Accordingly, it seems that a more-or-less comprehensive victim participation regime has become an integral component of modern international criminal justice mechanisms. This shift towards embracing victims as vital stakeholders of the international criminal justice process reflects the modern understanding that for achieving a long-term positive impact on affected communities and society as a whole, the traditional model of retributive justice has to be complemented with elements of restorative and reparative justice.

Challenges

Victim participation and reparations regimes of international criminal justice mechanisms may be constraint by procedural, budgetary, as well as fundamental limitations inherent to the difficult task of making criminal proceedings meaningful to the potentially large numbers of victims and affected communities that have experienced "unimaginable atrocities". For instance, a study by the University of California at Berkeley School of Law, interviewing more than 600 participating victims before the ICC, found that many of them were frustrated with the slow progress of proceedings and in fact often only have a rudimentary understanding of the ICC and its mandate (The Human Rights Center, 2015).

Some key challenges include:

a. Legal Representation during Proceedings: For the ICC, Rule 90(1) of the Rules of Procedure and Evidence (2005) sets out as the general principle that "[a] victim shall be free to choose a legal representative." In reality, however, in almost all cases before the ICC, victims are organized into groups and assigned common legal representatives, paid through legal aid funds. Subsequent international and internationalized courts and tribunals have copied this system, and the use of common victim legal representation is increasingly standard practice. Such common representation can, however, only be meaningful if the victims' legal representatives attend to the victims' concerns and establish a relationship of trust with all of their clients at an individual level. This in turn can be challenging if one legal representative represents hundreds, or even thousands, of victims.

b. Modalities of Participation in the Proceedings: The modalities of victim participation in trial in cases of international crimes can be very complex and may give rise to litigation, delay the trial, create additional costs, and most importantly, be a burden on the defence and the accused.

c. Meaningful Reparations: Crimes before international criminal mechanisms affect, by definition, in almost all cases, a very large number of victims in very serious ways. Accordingly, it is unsurprising that the experience before international criminal tribunals has shown that persons convicted of international crimes will generally not have the necessary financial resources to pay for adequate reparations to those victims -and even if they do, it is often very hard for international(ized)courts and tribunals to trace and get access to them. However, where the number of victims surpasses the assets available for their relief, a sound strategy of managing expectations aimed at minimizing frustration and disappointment will be important. In particular, victims should be informed from the onset of proceedings about what they can expect from the applicable reparations regime, and importantly, what they cannot expect. For instance, the legal framework of the ECCC foresees only collective and moral reparations but does not allow for individual reparations.

 
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