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478 Pages·2010·4.39 MB·English
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Victims’ Rights and Advocacy at the International Criminal Court This page intentionally left blank Victims’ Rights and Advocacy at the International Criminal Court t. markus funk 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2010 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. ____________________________________________ Library of Congress Cataloging-in-Publication Data Funk, T. Markus. Victims’ rights and advocacy at the International Criminal Court / T. Markus Funk. p. cm. Includes bibliographical references and index. ISBN 978-0-19-973747-5 (hardback : alk. paper) 1. International Criminal Court—Rules and practice. 2. War victims—Legal status, laws, etc. I. Title. KZ6311.F858 2010 341.6'7—dc22 2009047948 ____________________________________________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers Th is publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confi rm that the information has not been aff ected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com We must establish incredible events by credible evidence. — Nuremberg Trial United States Chief Prosecutor, United States Supreme Court Justice Robert Jackson, June 7, 1945 Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial . . . . — Rome Statute of the International Criminal Court, Article 68(3) This page intentionally left blank Contents Foreword xv About the Author xix PART I. Introduction 1 PART II. A Legacy of Abuse and Suff ering Leads to the Birth of the ICC 7 PART III. Tracing the Development of Victims’ Rights Under International Law 19 A. Victim-Centric Justice of the 1400s—Customary Law As Exemplifi ed By the Code of Leke Dukagjini 21 B. Centralized State Power in the 1700s and 1800s, the Scientifi cation of Criminal Law, and the Decline of Victims’ Rights Under Domestic Law 24 1. Th e Classical School of Criminology 26 2. Th e Positivist School of Criminology and Beyond 27 C. Twentieth-Century Resurgence of Victims’ Rights Under Domestic Law 29 D. Victims’ Rights Recognized as Part of International Law 32 1. International Law’s Recognition of Individual Rights 33 2 . Victims’ Rights Under International Law 35 PART IV. Primer on the ICC 43 A. Breaking New Ground for Victims’ Rights 43 B. Th e ICC’s Operation 44 C. Th e ICC’s Limited Subject-Matter Jurisdiction 46 1. Th e Crime of Genocide 47 vii viii contents 2. Crimes Against Humanity 48 3. War Crimes 48 4. Th e Crime of Aggression 49 D. Territorial and Personal Jurisdiction Requirements 50 E. Th e ICC’s Limited Temporal Jurisdiction 52 F. Th e ICC’s Due Process Guarantees 53 G. Th e “Complementarity” Firewall: Understanding the ICC’s Key Admissibility Test 53 H. Case Initiation 58 1. State Party Initiation or Security Council Referral 59 2. Th e Prosecutor’s Initiation of a Case 60 3. Prosecutorial Guidelines: Determining the “Gravity” of a Case 62 I. A New Paradigm: Th e ICC’s Hybrid System of Advocacy 63 J. Reconciling the ICC’s Sweeping Promises to Victims with the Realities on the Ground 66 1. Understanding ICC Judge’s Background, Habits, and Competence 72 2. Th e Offi ce of the Prosecutor 76 PART V. Th e Rome Statute’s Groundbreaking (and Expansive) Recognition of Victims’ Rights 7 9 A. Victims’ Rights Enshrined in the ICC’s Rome Statute 81 B. Summary of the ICC’s Victim-Related Rules of Procedure and Evidence 82 C. Exploring the Role of Victims as “Participants” in ICC Proceedings 85 D. Th e Modality and Extent of Victim Participation Remain Unsettled 88 PART VI. Qualifying as Legal Counsel for Victims 93 A. Becoming a Formally Recognized ICC “Victim Representative” 93 B. An Alternative Mode of Legal Representation: “Assistant to Counsel” 95 contents ix PART VII. Steps to Formal Recognition as a “Victim” 97 A. Th e Long Road to Formal Recognition as a “Victim” 98 B. Victims as Witnesses 103 PART VIII. Preparing for Complex Group Representation 105 A. Promises and Potential Pitfalls of Group Representation—Th e Class Action Model 105 B. Th e Victim Representative’s Duty of Loyalty to Clients 112 PART IX. Understanding Victims’ Interests and Recognizing the Importance of Managing and Guiding Expectations 119 A. Promises Collide With Reality 119 B. Managing Expectations 1 22 C. Ensuring Victims’ Safety 123 PART X. Holding a Pre-Trial Evidentiary Hearing to Establish the Historic Record 127 A. Litigation Aimed at Creating Present and Future Individual (and Group) Accountability 127 B. Convening a Pre-Trial Evidentiary Hearing to Develop the Common Factual Backdrop of the Case 132 P ART XI. Compiling a “Victimization Dossier” as a Permanent Historic Record of Abuse 137 A. Th e Carefully Tailored Dossier as a Useful Tool for Victim Representatives 137 B. Devising Standard Procedures for Compiling Evidence 139 C. Developing Interview Protocols 139 D. Submitting the Dossier to the Court 1 40 1. Th e Most Promising Submission Options 140 2. Other Submission Alternatives 140 E. Submitting the Dossier to the Offi ce of the Prosecutor 1 41

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Victims' Rights and Advocacy at the International Criminal Court is the first detailed analysis of the newly-recognized right of victims to participate in the trials of their accused abusers. Author T. Markus Funk draws on his extensive background in international criminal law and litigation to walk
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