Victims' Rights and Advocacy at the International Criminal Court

478 Pages·2010·4.39 MB·English

by  T. Markus Funk

Victims’ Rights and
Advocacy at the International
Criminal Court
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Victims’ Rights and
Advocacy at the International
Criminal Court
t. markus funk
1
1

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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
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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)
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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