Victim Participation in International Criminal Courts: A Critical Victimological Perspective

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Rachel Killean (rkillean01@qub.ac.uk)

Victim Participation in International Criminal Courts: An Introduction

Since World War Two vividly highlighted the extreme suffering inflicted on civilians during times of conflict, there has been an impetus to prosecute such activities as international crimes.  Yet while international criminal courts have often been declared as bringing ‘justice’ to victims, their procedures and outcomes historically showed little reflection of the needs and interests of victims themselves.  This situation has changed significantly over the last sixty years both nationally and internationally.  The inclusion of victim-centric provisions at the Extraordinary Chambers in the Courts of Cambodia (ECCC), as well as the permanent International Criminal Court and the Special Tribunal for Lebanon,  are indicators of a shift towards a more ‘victim-orientated justice.’  Victims are increasingly acknowledged as having various ‘rights,’ including the rights to protection, participation and reparation.  Support from the victim population is often held up as crucial to a court’s success, while ‘the victims’ need for justice has been frequently deployed as a means of justifying the establishment of international criminal trials.

Despite this pro-victim rhetoric, one strong critique which has emerged in the transitional justice literature is that too often international crimes have been viewed as being first and foremost a breach of an abstract legal order, with the wrong committed against particular individuals being of secondary importance.  Indeed, courts and tribunals have found their procedures and outcomes subject to criticism from victim populations.  Thus, while the symbolic victim has developed as a key figure in legitimating practices, the ability of international criminal courts to deliver ‘justice to victims’ remains contested, and the purpose and feasibility of victim participation remains subject to rigorous debate amongst practitioners and academics alike. This post seeks to contribute a critical victimological perspective to this debate, focusing on the justice delivered to victims by the ECCC. It will proceed by introducing its critical victimological approach, before turning to an analysis of the ECCC.

A Critical Victimological Perspective

Two dominant approaches towards victims’ rights scholarship exist. At one end of the spectrum, there are legal scholars who assess victims’ rights through a legal positivist lens, analysing responses to victimisation in light of laws, legal procedures and the official judgments of courts.  This approach fails to acknowledge the specific contexts and actors which shape such laws, procedures and judgments. At the other end of the spectrum, criminologists’ (particularly those with a focus on state crime) and radical victimologists examine power relations and theoretical explorations of crime and victimhood; yet lack a pragmatic engagement with legal structures and remedies.

I would argue that critical victimology provides a way to bridge this gap. Critical victimology acknowledges that concepts such as ‘victim’ and ‘victimization’ are contested and, being specific to certain times and events, far from universal.  Indeed, such concepts are open to manipulation in the pursuit of other political or legal goals. They therefore consider what processes contribute to the crime and victims that we see as opposed to that which we do not see. An application of critical victimology to the ECCC’s civil party participation mechanism thus requires a consideration of the ECCC’s historical and political context, and an analysis of the extent to which the ‘justice’ delivered to victims of the Khmer Rouge within the ECCC are influenced by a myriad of heterogeneous actors pursuing (not necessarily aligned) goals.

A Politicized Jurisdiction

The ECCC is a hybrid Court established through negotiations between the UN and the Royal Government of Cambodia. Its mandate is to try senior leaders of the Khmer Rouge and those most responsible for domestic and international crimes committed during the period from 17 April 1975 to 6 January 1979.

There is no doubt that the Khmer Rouge era constituted a particularly violent time within Cambodia; approximately 1.7 individuals were killed, whether directly as a result of the Khmer Rouge’s attempt to exterminate ‘enemies’ or indirectly as a result of the widespread starvation and illness that resulted from their ill-contrived attempt to produce an agrarian communist revolution. Yet the limitations placed on the Court’s jurisdiction exclude consideration of, for example, the widespread bombing campaign pursued by the United States in the 1970s, or crimes perpetrated during the many years of civil war that followed.  These limitations are a reflection of the way in which the ECCC was created: through negotiation. Few states have been so subjected to the machinations of Cold War politics as Cambodia, and many of the world’s most powerful states, including the former Soviet Union, the US and China, undoubtedly contributed in some way to the atrocities experienced by Cambodian citizens.  Similarly, the current Cambodian government is composed of many former Khmer Rouge, who would have little interest in seeing themselves or their colleagues on trial. The resulting limited jurisdiction means that only certain victims will see their harms reflected in the practice of the Court. Indeed, ongoing resistance from the Cambodian government suggests that only two trials will ever be completed at the ECCC.

Moulding Victim Participation

For those victims whose harms are covered by the Court’s jurisdiction, the ECCC offers a unique opportunity to participate in its work, through its civil party participation mechanism. That victims are able to participate as civil parties is attributable to a number of factors.  First, confusion and concerns surrounding Cambodian laws of criminal procedure resulted in an act of judicial policy-making through the creation of the Court’s Internal Rules. Second, these Rules draw from Cambodian criminal procedure, a civil law system which is accustomed to having victims as a third party in its criminal proceedings. Third, the international growth in victims’ rights advocacy provided additional motivation to adopt an expansive approach, and fourth, it is likely that the Judges’ own personal attitudes and legal backgrounds assisted in shaping the form of participation.

The resulting Rules initially contained some of the broadest victim participatory rights granted within an international criminal court. Victims were able to participate as parties to the trial with their own legal representative, and were able to pursue ‘moral and collective’ reparations. Yet the civil party system has been one of continuous change and uncertainty, as the Judges have struggled to balance the right to a fair trial, the rights of victims to participate, and the real practical challenges posed by the two often competing principles. The Internal Rules have been repeatedly revised, and victims have seen their representation in the courtroom changed from individual to collective, their ability to address the Court directly curtailed, and the circumstances in which they can question witnesses restricted. With regards to reparations, the award in the Courts first case were limited to almost nothing by the indigence of the accused, the lack of any ICC type Trust Fund, and the unwillingness of the Court to make any awards against the Cambodian government. Subsequent changes to the Rules have allowed externally funded measures to be introduced, placing greater onus on civil society to provide what the Court cannot.

The Role of Civil Society

Responding to the gap left by an initially absent, then under-resourced Victim Support Services, civil society actors have developed a strong cooperative relationship with the Court, ensuring civil parties are able to access, participate in, and receive information about the Court’s proceedings. Their engagement has extended beyond the courtroom, and many NGOs are also involved in the planning, funding, and implementation of reparations and non-judicial measures, thus further enhancing the potential benefit the ECCC may bring to victim communities. Civil society actors have further contributed to the delivery of justice, as demonstrated through the campaign to see sexual and gender based crimes (SGBV) acknowledged within the Court’s caseload. By confronting the Court with its weaknesses, civil society have facilitated a shift in approach – albeit a small one – within the ECCC. Victims of SGBV, particularly forced marriage, now have the chance to participate, have their interests represented, and potentially access reparations. Thus, it is clear that the work of civil society has increased the visibility of some of those whose experiences and interests may have gone overlooked. However, the work of NGOs is necessarily dependent on donor funding, raising issues as to who is driving the work of civil society. With investors driving the agenda of such processes, rather than the needs and wishes of the victims, particular narratives that suit those agendas are likely to acquire dominance, leading to the potential silencing of those whose narratives do not fit with the official line.

Conclusion: A (Brief) Critical Victimological Approach to the ECCC.

These examples have been utilised to illustrate the importance of context in determining the ‘victims’ worthy of recognition and response. In the case of the ECCC, the victims who receive acknowledgment and are able to access their rights to participation and reparation are demarcated by the political realities within which the Court was created. Once the Court was created, the ability of victims to access participation was dependent on the approach of judicial actors, whose initially inclusive approach to victim participation developed into a more restrictive approach in light of the challenges posed by involving victims in an international trial. With regards to victims’ ability to access reparations, financial and political constraints have again played a role, with much of the responsibility for delivering reparations now placed on the head of civil society actors. These actors have played a crucial role in the implementation of victim participation and reparations, yet in turn find themselves limited by financial constraint and the whims of donors. Thus, the myriad of actors engaged in the work of the ECCC continue to shape the ability of victims to access justice through the Court.