Published in July 2018.
This module is a resource for lecturers
Recognition of the victim within the judicial process
While in the context of criminal justice the rights of those charged with an offence have traditionally been the focus of human rights law, it is now well established that the human rights of victims of crime and witnesses also require attention which, historically, has not been the case.
This recognition arises within the broader context of a growing momentum surrounding the recognition of victims' needs, rights and status within national and international judicial processes, and has its roots in the emergence of the restorative justice and victims' rights movements which began to gain traction in the 1980s. The shift in emphasis, particularly in the context of criminal investigation and prosecution, comes in the wake of a greater understanding of the rehabilitative possibilities in the aftermath of gross human rights violations internationally (Garkawe, 2003, p. 350), as well as a more victim-centred approach to the search for justice in the field of international human rights law. Against this backdrop, the ad hoc International Criminal Tribunals for the former Republic of Yugoslavia (ICTY) and Rwanda (ICTR) respectively, were criticized for not having sufficiently recognized the interests of victims in the cases before them or to provide any role for victims in the proceedings beyond that of witness (Jorda and Hemptinne, 2002, p. 1389; Donant-Cattin, 1999, p. 1281), while their purely retributive focus meant that they became viewed by some as not only geographically removed but also conceptually isolated from the affected communities and the harms suffered, and therefore of limited relevance to a society in transition (Redress, 2012). At the same time, in situations where international criminal justice mechanisms might otherwise have been employed, States began to resort instead to transitional justice mechanisms such as Truth Commissions, which were perceived as being a more victim-friendly means of addressing widespread and gross human rights violations and serious breaches of humanitarian law (Garkawe, 2003, p. 351; Karstedt, 2010, p. 10).
Victim dissatisfaction with international justice processes therefore threatened the continued support for judicial institutions from within affected communities, and hence jeopardised the perceived legitimacy of institutions themselves, together with any measure of justice they might seek to administer, while active victim disengagement from criminal justice mechanisms was recognized to affect the success of investigative and prosecutorial work both domestically and internationally (Wemmers, 1996). The incorporation of more victim-focussed measures within justice processes, both domestically and internationally, is therefore arguably of benefit not only to victims but also to the State and/or judicial mechanism concerned.
Against this backdrop, the important role to be played by victims of terrorism, as well as their needs as victims, has received momentum through their inclusion within the United Nations Counter-Terrorism Strategy (General Assembly resolution 60/288) and subsequent biennial resolutions adopted by the General Assembly. This reflects an important shift from the initial period following the 9/11 terrorist attacks which focussed principally on measures relating to the prevention, prosecution and so forth of terrorist activities. In addition to issues relating to the securing of justice for victims, another important explanation for this shift was the recognition of the link between the "dehumanization of victims of terrorism" and the spread of violent extremism (General Assembly, Human Rights Council report 24/47, para. 55). During the 2016 review of the UN Counter-Terrorism Strategy, the General Assembly once again deeply deplored the suffering caused by terrorism in all its forms and manifestations to the victims and to their families. It expressed its profound solidarity with them and encouraged Member States to provide them with proper support and assistance while taking into account, inter alia, when appropriate, considerations regarding remembrance, dignity, respect justice and truth, in accordance with international law (General Assembly resolution 70/291, para. 24; General Assembly, Human Rights Council A/HRC/35/L.27, paras. 6-7).
The UN Global Counter-Terrorism Strategy directly addresses the issue of victims of terrorist acts in the preamble and under Pillar I, Pillar II and Pillar IV. It lists measures to address the conditions conducive to the spread of terrorism, including measures to counter the "dehumanization of victims of terrorism in all its forms and manifestations". (Pillar I, preamble). The Strategy encourages the creation of national systems of assistance, which would "promote the needs of victims of terrorism and their families and facilitate the normalization of their lives". (Para. 8).
Further energy has been injected by the international community into examining and addressing the needs of victims more generally through other global initiatives and recognition. For example, various working groups consider victim related issues, such as the Global Counterterrorism Forum, Criminal Justice Sector/Rule of Law Working Group, and the Working Group on Supporting and Highlighting Victims of Terrorism of the Counter-Terrorism Implementation Task Force/ United Nations Counter-Terrorism Centre. There have also been a series of global and regional conferences organized, such as the United Nations Conference on Human Rights of Victims of Terrorism in 2016. A key focus of such working groups and initiatives has been to encourage States to establish national systems of assistance to promote the needs of victims of terrorism and their families, stressing that victims of terrorism who have suffered violations of their rights are entitled to material, legal and psychological assistance.
A broad range of regional efforts also exist. For example, the European Union (EU) has adopted several instruments regarding victims of terrorism (see Section on International and regional human rights instruments) and established a European Network of Associations of Victims of Terrorism, which aims "to stimulate trans-national cooperation between associations of victims of terrorism and enhance the representation of victims' interests at the EU-level" (see further European Commission, Migration and Home Affairs, 2018). There have also been initiatives such as the Stockholm Programme aimed at strengthening key tools such as cooperation, trust, implementation of legislation including in relation to victims (see further The Stockholm Programme).