Bringing Justice to the Victims

This century has seen the worst violence in the history of mankind. In the past fifty years more than 250 conflicts have erupted around the world. In addition to the victims who lost their lives, over 170 million people were stripped of their rights, their property and their dignity. Few have been awarded any reparation. These victims were simply forgotten. The international community now has a unique opportunity to correct this situation in the future -- to help end impunity for the most serious crimes committed by individuals. The holding, in Rome, of a United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (15 June-17 July 1998) affords such an opportunity. It is hoped that the International Criminal Court will serve as a key channel to provide justice for victims by giving them rights in the new judicial system and facilitating their access to various forms of reparation.

Media coverage of the killing fields in Cambodia, genocide in Rwanda and ethnic cleansing in the former Yugoslavia has focussed the world's attention on the fate of victims. Reports describing the horrifying and unimaginable acts of cruelty endured by an increasing number of people in internal conflicts have generated international concern. The needs of victims must now be addressed in the context of international criminal justice.

The draft statute of the International Criminal Court includes provisions that will guarantee the protection of war victims and their rights, as well as those of the accused.

"The very reason that certain armed conflicts occur, entailing crimes against international humanitarian law, is, in my view, that the international community has so far been unable to demonstrate that those responsible would be brought to justice -- sooner or later. Until the day when the international community can demonstrate that those who ultimately bear the responsibility for violations of the most fundamental rules for the protection of the human being are brought to justice, history will repeat itself."

-- Hans Corell, United Nations Under-Secretary-General for Legal Affairs

The rights of victims and witnesses
Article 68 of the draft statute of the International Criminal Court addresses several aspects of the rights of victims. Under the draft statute, the Court is required to take adequate measures to protect victims and witnesses. This is essential. Since victims often fear retaliation if they testify against the accused, the draft statute provides that their physical protection should be guaranteed by the Court through the provision of adequate privacy and security.

The draft statute also states that the identities of victims and witnesses should not be disclosed, especially when a fear of reprisal exists. To this end, the Court could conduct closed proceedings or allow the presentation of evidence by electronic or other special means. An accused who was a minor at the time of the perpetration of the acts or a victim of sexual violence could request in camera hearings.

Although testifying can be extremely difficult for victims, the draft statute recommends that they participate in the judicial process. It is widely acknowledged that speaking about the experience, however painful, is part of a rehabilitation and healing process. This therapeutic process allows the victims to hear directly why the offence was committed and to relate their personal suffering.

Victims and Witnesses Unit
To help victims and witnesses face the judicial process, the draft statute envisages the establishment of a Victims and Witnesses Unit to provide counselling and other assistance. The Unit would provide legal advice as well as trauma counselling and medical attention. It would also advise the Prosecutor and the Court on appropriate measures of protection and other matters affecting the rights of victims and witnesses.

Violence against children and women
The draft statute states that the Court should take appropriate measures to protect the privacy, the dignity, the physical and psychological well-being, and the security of victims and witnesses, especially when the crime involves sexual or gender violence. Expertise would therefore be needed in the types of trauma that are related to crimes of sexual violence. Therefore, investigative teams should include women, because experience shows that women who have been sexually assaulted feel more confident and less inhibited when talking to other women. Research also shows that the physical and psychological injuries suffered by victims of gender-based violations, as well as by child soldiers, are exacerbated because the victims feel isolated and are rejected by the society in which they live.

"In the course of the last decade 2 million children have been killed in conflict; more than 4.5 million have been disabled or permanently injured; more than 30 million uprooted from their homes; more than 10 million have been gravely traumatized at the psychlogical level; more than one million have been made orphans or lost all contact with their parents; not to speak of the young women who are being subjected to sexual abuse".

-- Olara Otunnu, Special Representative
of the United Nations Secretary-General on the Impact
of Armed Conflict on Children

Special cases involving children
According to a paper by UNICEF on the establishment of an international criminal court, "children are increasingly the target of barbarous acts, both as victims of horrendous crimes and as objects in the hands of adults who instrumentalise them to commit atrocities. They need to be protected against all forms of violence and the violation of their fundamental rights."

"The establishment of the International Criminal Court will in fact ensure that a clear signal is given that atrocities committed against children will not go unpunished and that those responsible for acts of torture, rape, murder and the disappearance of children will be brought to justice".

-- Carol Bellamy
Executive Director, UNICEF

It is agreed that children who come before the Court as victims, witnesses or accused should be treated appropriately. The report of Graça Machel on the Impact of Armed Conflict on Children, released in 1996, describes the traumatic experiences endured by children who have been abducted,detained in military camps and forced to kill. According to the report, such children "may suffer from anxiety about being separated from their families, or they may have nightmares or trouble sleeping. They may cease playing and laughing, lose their appetites and withdraw from contact." The report also states that, "Younger children may have difficulty concentrating in school. Older children and adolescents may become anxious or depressed, feel hopeless about the future or develop aggressive behaviour."

Special cases involving gender-related violations
In Rwanda and the former Yugoslavia, rape and gender-based violations were widely used as weapons to inflict terror and to humiliate and degrade not only the women of a particular ethnic group but the entire community to which they belong. In cases of rape and other gender-based violations, which carry a social stigma in most countries, the victims usually prefer not to come forward with their stories because they are afraid that the process will not help and may, in fact, victimize them again.

Various United Nations documents acknowledge the need for punishing the perpetrators of gender-based violence. These include the 1993 Declaration on the Elimination of Violence against Women, the Vienna Declaration and Programme of Action, which was adopted at the Vienna Human Rights Conference in 1993 and the Beijing Platform for Action, which was adopted at the Fourth World Conference on Women in 1995.

"Absence of prosecutions of sexual violence against women during conflict, as well as the problematic definition of such crimes in international humanitarian law, led many to conclude that these crimes were perceived as inevitable, merely one of war's unfortunate by-products, rather than the horrifying military strategy that the recent conflicts in the Former Yugoslavia and Rwanda have shown such crimes to be".

-- Angela King
Special Adviser to the United Nations Secretary-General
on Gender Issues

It is hoped that an international procedure which condemns genocide and which holds the perpetrators accountable will send a message that impunity for such crimes will not be tolerated by the international community and will ensure that justice is attainable.

Right to compensation, restitution and rehabilitation
Article 75 of the draft statute deals with penalties. In addition to the penalties, it also provides for forfeiture of proceeds, property and assets obtained by criminal conduct. Some delegations would prefer that the issue of forfeiture be included as a mechanism which the Court would request States to use with regard to execution of an order for reparations.

Article 73 of the draft statute of the International Criminal Court also addresses the issue of reparations to victims. It has been proposed that a guilty person should be ordered to make reparation, including restitution, compensation and rehabilitation to victims of violations, in which case, the Court may, upon request, determine the scope and the extent of any damage, loss and injury to the victims. In the case of reparation to be made by a State, several options are put forward. Some delegations feel that it is the duty of the Court to order Governments involved in perpetrating crimes to make reparation, while other delegations would prefer the Court to only make recommendations.

The issue of reparation to victims has been addressed in several United Nations human rights instruments, including the Universal Declaration of Human Rights, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and the revised draft Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law. The revised draft Basic Principles and Guidelines states that "reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition". The Convention against Torture also sets out in detail the right to reparation for survivors of torture, and payments have been made through a United Nations voluntary fund for victims of torture.

Rights of the suspect and the accused
Although the Court is required to have due regard for the protection of victims and witnesses, this must not interfere with full respect for the right of the accused to a fair trial. Article 67 of the draft statute states that the accused shall be entitled to a fair hearing by an independent and impartial tribunal and should be informed promptly and in detail of the nature, cause and content of the charge. The accused has the right to communicate freely and in confidence with a counsel of his/her choice and have adequate time and facilities to prepare for his/her defence. He/she has the right to conduct his/her defence in person or through legal assistance. He/she also has the right to examine or have examined the prosecution witnesses and to obtain the attendance and examination of witnesses for the defence under the same conditions as witnesses for the prosecution. The accused should be present at the trial but cannot be forced to testify or to confess guilt. He/she has the right to remain silent, and such silence should not be considered in the determination of his/her guilt or innocence.

"This Court is about providing justice for the victims of crimes against humanity and war crimes. There are times when victims' search for justice is frustrated by the inability or unwillingness of a national justice system to take up their case --- an International Criminal Court must be a safe and effective recourse for the victims of the most serious violations. Of course, it must also be fair and impartial -- the court will fail if it does not ensure due process for the accused."

-- Mary Robinson
United Nations High Commissioner for Human Rights

One issue which remains to be settled is the compensation of suspects wrongfully arrested and accused. Article 84 of the draft statute states that a person who has been convicted of a criminal offence and later found not to be guilty of the charges brought against him/her should be compensated. Some delegations also stressed that compensation should be awarded to people who have been held in detention, based on the prejudice caused to them by such detention. Types of compensation have not yet been agreed upon.

"The potential Pol Pots of this world -- yes, the planners and not just the perpetrators -- must be deterred by the prospect of criminal justice. And is it fair and realistic to expect the survivors to forgive and to cooperate if there is no justice? In the absence of justice, private revenge may prevail, which will spread fear and undermine the possibility of reconciliation."

-- Sadako Ogata
United Nations High Commissioner for Refugees

Ensuring the end of impunity for the perpetrators of serious violations of human rights and guaranteeing that the rights of the victims are not overlooked are some of the challenges faced by the Conference in Rome.

Prepared by the United Nations Department of Public Information
May 1998