The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations : The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations [1 ed.] 9789004212169, 9789004212152

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The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations

Graduate Institute of International and Development Studies

VOLUME 12

The titles published in this series are listed at brill.com/giis

The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations By

Juan Carlos Ochoa

LEIDEN • BOSTON 2013

Cover illustration: The “Fresco for Peace” painted by Hans Erni at the main front door of the Palais des Nations in Geneva. Photo by Marc Galvin with the courtesy of the artist. Library of Congress Cataloging-in-Publication Data Ochoa, Juan Carlos.  The rights of victims in criminal justice proceedings for serious human rights violations / by Juan Carlos Ochoa.   pages cm. -- (Graduate institute of international and development studies ; volume 12)  Based on the author’s dissertation (doctoral)- - University of Geneva, 2010.  Includes bibliographical references and index.  ISBN 978-90-04-21215-2 (hardback) -- ISBN 978-90-04-21216-9 (e-book) 1. Human rights. 2. Victims of crimes--Legal status, laws, etc. 3. Criminal justice, Administration of. I. Title.  K3240.O24 2013  345’.05046--dc23                             2012042165

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 1572-5618 ISBN 978-90-04-21215-2 (hardback) ISBN 978-90-04-21216-9 (e-book) Postdoctoral Research Fellow, University of Oslo, Faculty of Law. Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

To my parents and siblings

CONTENTS

Acknowledgments.................................................................................................................................xiii Note on the Method of Citation.......................................................................................................xvii List of Abbreviations.............................................................................................................................xix Introduction......................................................................................................................................1    I. Addressing Some Critical Conceptual and Methodological Issues............................... 6  A. Defining the Rights of Victims in Criminal Procedures Analysed in this Work............................................................................................................................. 6  B. Delineating my Approach to This Matter....................................................................... 8  C. Identifying and Discussing the Legal Frameworks Used in This Work.................10    II. The State of Customary International Law on This Subject..........................................11 III. Why the Current State of Customary International Law on This Matter is Inadequate...............................................................................................................................12  A. Legal Bases and Rationales for Victim Access to and Participation in Criminal Procedures......................................................................................................12    i. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters.............................................................12     ii. Internationally Recognised Human Rights and Principles..............................14   iii. Other Rationales..........................................................................................................16  B. Observance of the Principles that Inform the Enforcement of Criminal Law in Democratic States...........................................................................19  C. Other Reasons Why the Current State of Customary International Law on This Subject is Inadequate.................................................................................20  D. Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Serious Human Rights Violations..........................................21 IV. Assessing the Significance of Victim Access to and Participation in Criminal Procedures������������������������������������������������������������������������������������������������������������22 Chapter I Conceptual Framework............................................................................................23    I. The Concept of Serious Human Rights Violations...........................................................23    II. The Concept of Victim.............................................................................................................25 III. The Legal Status of the Decisions of Human Rights Treaty Monitoring Bodies in Individual Cases.......................................................................................................27

viii

table of contents  A. Practice of the UN Human Rights Committee............................................................28  B. Approaches by Scholars.....................................................................................................30  C. Approach Adopted in This Work.....................................................................................33

Chapter II Procedural Obligations of States in the Field of Criminal Justice  When Faced with Serious Human Rights Violations............................................................37    I. Features of States’ Procedural Obligations When Faced with Serious Human Rights Violations Generally......................................................................................38  A. Legal Sources and Rationales...........................................................................................38   i. Case Law of United Nations and Regional Human Rights Treaty Monitoring Bodies.........................................................................................................40   B. The Nature of States’ Obligation to Investigate...........................................................55  C. Content of States’ Procedural Obligations...................................................................58  D. The Objectives of Criminal Procedures for Serious Human Rights Violations...............................................................................................................................60   E. Scope Ratione Personae......................................................................................................62   i. United Nations Human Rights Instruments and Bodies.....................................62       ii. Case Law of Regional Human Rights Treaty Monitoring Bodies.......................65   iii. Conclusion........................................................................................................................69    F. Conclusions of this Section..............................................................................................70    II. States’ Procedural Obligations in Situations of Mass Serious Human Rights Violations.........................................................................................................................71  A. The State of Customary International Law..................................................................72   B. Assessing States’ Compliance with Their Obligations under General Human Rights Treaties and Certain Subject Specific International Conventions..........................................................................................................................79     i. Why Balance the Goal of Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations with Other Objectives of Societies in Transition?...............................................79      ii. Conditions to be Met in Order that a State Can Refrain from Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations............................................................................84   iii. Legal Grounds that a State May Invoke for Adopting a Conditional Amnesty Scheme...............................................................................86      iv. Requirements that Prosecutions Should Fulfil....................................................93      v. The Need for Non-Prosecution Measures to Supplement Prosecutions..................................................................................................................93  C. Conclusions of this Section..............................................................................................95 III. General Conclusions.................................................................................................................95 Chapter III The Status Under International Law of the Rights of Access to  and Participation in Criminal Proceedings Before Domestic Courts for Victims of Serious Human Rights Violations..........................................................................99    I. The Approach of United Nations Instruments and Monitoring Bodies.................. 101

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ix

 A. The Approach of United Nations Treaties and Their Monitoring Bodies......... 101    i. The International Covenant on Civil and Political Rights............................. 101      ii. The UN Convention against Torture.................................................................... 103   iii. International Instruments Proscribing Forced Disappearance.................... 104      iv. Other International Conventions......................................................................... 105    B. United Nations Instruments Other Than Treaties.................................................. 106    i. The UN Declaration for Victims of Crime.......................................................... 106      ii. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims..................................................................................... 107   iii. The Set of Principles on Combating Impunity................................................. 109  C. Conclusions........................................................................................................................ 110   II. Case Law of Regional Human Rights Treaty Monitoring Bodies............................... 111  A. The Inter-American System for the Protection of Human Rights...................... 112    i. Victims’ Right to Resort to the Administration of Justice to Obtain an Investigation and, if Warranted, that Those Responsible are Prosecuted and Punished.......................................................................................112     ii. Victims’ Right to Participate in Criminal Proceedings.................................... 117   iii. Discussion................................................................................................................... 118      iv. Conclusions................................................................................................................ 121    B. The European System for the Protection of Human Rights................................. 122    i. Victims’ Rights in Criminal Proceedings Recognised by the ECtHR When Assessing Compliance with the State’s Procedural Obligations When Faced with Serious Human Rights Violations....................................... 122      ii. Do Victims of Serious Human Rights Violations Enjoy the Right to a Fair Hearing in Criminal Proceedings?....................................................... 127   iii. The Implementation of States’ Procedural Obligations When Faced with Serious Human Rights Violations............................................................... 129      iv. Conclusions................................................................................................................ 130  C. The African System for the Protection of Human Rights...................................... 131    i. The Right to an Effective Remedy......................................................................... 132      ii. The Right to a Fair Hearing..................................................................................... 132   iii. Conclusions................................................................................................................ 133 III. The Divide between the Common Law and the Civil Law Traditions...................... 134  A. The Premises and Features of the Common Law Tradition................................. 134    B. The Premises and Features of the Civil Law Tradition.......................................... 135  C. Features of Current Approaches in Common Law and Civil Law Jurisdictions....................................................................................................................... 137  D. Conclusions....................................................................................................................... 141  IV. General Conclusions.............................................................................................................. 142 Chapter IV Reappraising Access to and Participation in Criminal Proceedings for Victims of Serious Human Rights Violations...................................................................... 147    I. The Legal Bases and Rationales for Access to and Participation in Criminal Procedures for Victims of Serious Human Rights Violations..................................... 148

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table of contents  A. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters................................................................. 148    B. The Right to an Effective Remedy............................................................................... 149   C. The Right to a Fair Hearing............................................................................................ 152  D. Contribution to Effective Human Rights Protection and to Reaffirmation of the Principle of the Rule of Law.................................................. 159    II. Other Rationales for Victim Access to and Participation in Criminal Procedures............................................................................................................... 161  A. Recognising Several Legitimate Interests of Victims in the Criminal Procedures for Serious Human Rights Violations................................. 162    i. Delimiting the Legitimate Interests of Victims in Criminal Procedures for Serious Human Rights Violations............................................ 166    B. Contribution to Victim Perception of the Fairness and Legitimacy of Criminal Procedures............................................................................. 170 III. Addressing the Arguments Against Victim Access to and Participation in Criminal Procedures................................................................................ 171  A. Observance of the Public Interest Criteria that Inform Decision-Making in Criminal Procedures in Democratic States......................... 171    B. Victim Access to and Participation in Criminal Procedures Reaffirm the Objectives of Criminal Tribunals........................................................ 172   C. Victim Participatory Rights in Criminal Procedures Can be Reconciled with a Criminal Justice System Based on Retribution..................... 173  D. Victim Participation in Criminal Procedures is Consistent with the Presumption of Innocence of the Defendant.......................................................... 174    E. Psychological Effects of Victim Access to and Participation in Criminal Procedures Pursuant to the Rights Identified in this Monograph......................................................................................................................... 175    IV. Implementing Victim Access to and Participation in Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations................... 190  A. The Investigation Phase.................................................................................................. 190    B. The Trial Phase.................................................................................................................. 194    i. The Right to be Heard.............................................................................................. 194      ii. The Rights to Offer, Examine and Challenge Evidence at the Trial............. 200     V. Conclusions.............................................................................................................................. 202

Chapter V Victim Access to and Participation in Criminal Proceedings  Conducted in Situations of Mass Atrocity............................................................................. 207    I. Victims in the Proceedings before International and Hybrid Criminal Tribunals.................................................................................................................. 208  A. Victims in the Proceedings before the ad hoc International Criminal Tribunals........................................................................................................... 208    B. Victims in the Proceedings before the International Criminal Court............... 210   C. Victims in the Proceedings before the Hybrid Criminal Tribunals.................... 212    i. The Hybrid Courts in Kosovo................................................................................. 213      ii. The Special Panels in East Timor.......................................................................... 216

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xi

  iii. The Special Court of Sierra Leone........................................................................ 217      iv. The Special Chamber in the State Court of Bosnia and Herzegovina........ 217      v. The Extraordinary Chambers in the Courts of Cambodia............................. 220    vi. The Special Tribunal for Lebanon........................................................................ 223   D. Conclusions....................................................................................................................... 224     II. Why Allow Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity?..................................................................... 225 III.  Addressing the Arguments against Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity........................ 229    IV. Implementing Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity............................................... 233   A. Should Victim Participation in Criminal Proceedings Carried out in Situations of Mass Atrocity Take Place Only through a Legal Representative?................................................................................................................. 233    B. Content of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity........................................ 238    i. Victim Rights at the Investigation Phase............................................................ 238    ii. Victim Rights at the Trial Phase............................................................................ 249      iii. Steps Needed for the Recognition of these Victim Rights.............................. 252  C. The Scope of Victims’ Legitimate Interests in Criminal Proceedings Conducted in Situations of Mass Atrocity................................................................. 252  D. Need for Additional Measures for the Effective Implementation of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity................................................................. 256     V. Conclusions.............................................................................................................................. 259 Chapter VI General Conclusions.................................................................................................. 263    I. The Main Findings and Submissions of This Work....................................................... 263  A. The State of Customary International Law on This Matter.................................. 263  B. Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations From the International Law and Normative Perspectives.................................................................................................. 264  C. Implementing Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations................................................... 268    i. Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations........................................................................................ 268     ii. Criminal Procedures Conducted in Situations of Mass Atrocity................. 269  D. The Significance of Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations................................................... 270    II. The Implications of the Findings of this Work............................................................... 271 Bibliography..................................................................................................................................... 275 Index................................................................................................................................................... 307

ACKNOWLEDGMENTS

This book is the result of seven years of research in several leading universities and work experience in a number of international organizations and other institutions around the world. I am grateful to several people and institutions that supported and encouraged me throughout these years. First of all, I would like to convey my gratitude to the Graduate Institute of International and Development Studies/University of Geneva, where I found a very stimulating academic environment, characterised by research and teaching across disciplines and covering both theory and international practice. At the Institute, in addition to its Director, Professor Philippe Burrin, I would like to thank Professor Andrew Clapham for his advice and support during my research in Geneva; Professor Andrea Bianchi and Professor Robert Roth for their precious comments and suggestions on an earlier version of the research presented here; Professor Marcelo Kohen, Professor André Liebich and Professor Joost Pauwelyn for their encouragement; and Professor Keith Krause, for having given me the opportunity to work nearly two years as a Researcher on a project under his leadership. I am also grateful to Yves Corpataux, the head of the Library of the Institute, for all his help. This work has also benefited from my research stay in the United States of America for the 2008–2009 academic year. I would like to express my gratitude to Professor Diane Orentlicher at the American University-Washington College of Law for her advice and support during this year. I also had the opportunity to be a Visiting Researcher at Harvard Law School (HLS) for the spring semester of the academic year 2008–2009. At HLS, I would like to thank Professor Martha Minow for sharing her thoughts on several matters dealt with in this study. I would also like to thank Professor Ryan Goodman for his valuable comments on an earlier version of Chapter IV. I also had the opportunity to conduct research at Columbia University, Law School during the fall semester of academic year 2008–2009. I would like to thank Professor Sarah Cleveland for her helpful comments on the general structure of this work. I would also like to thank Professor José Alvarez. This work has also benefited from my postdoctoral research stay for a year at the Raoul Wallenberg Institute of Human Rights and International Humanitarian Law (RWI) at Lund University in Sweden. At RWI, I would like to thank Christina Johnsson, Karol Nowak, Rolf Ring, Rebecca Stern, Lee Swepston, Timothy Maldoon, Johanna Sjöwall, Alejandro Fuentes and Helena Olsson for their support and assistance.

xiv

acknowledgments

I would also like to thank Eduardo Valencia Ospina for his encouragement and support. I am also grateful to Professor Steven Ratner, at the University of Michigan, for his valuable comments on my initial research proposal. I would also like to convey my gratitude to Professor William Schabas, Professor Mark Drumbl and Professor M. Cherif Bassiouni for their valuable comments and suggestions on an earlier version of this work. I would also like to thank Marc Galvin, the head of the Publication Department of the Graduate Institute in Geneva, for his support and assistance in the completion of this project. I would also like to thank Marie Sheldon at Brill/ Martinus Nijhoff for her assistance in the publication of this book. Several institutions made possible the completion of this work. First and foremost, the Graduate Institute of International and Development Studies/University of Geneva, which provided financial and additional support for my work. This book is a substantively revised and expanded version of my Ph.D. dissertation, which I completed at the Institute/ University of Geneva in June 2010. I would also like to thank the Swiss National Science Foundation for its generous funding of my research residence in the United States of America for the 2008–2009 academic year. I am also indebted to the Swedish Institute, which provided the funding for my research stay at the University of Lund for the academic year 2010–2011. I would also like to convey my gratitude to Colfuturo in Bogotá, Colombia. I would also like to thank the FERIS Foundation of America and the Schmidheiny Foundation in Geneva for their generous financial support for this research. At the FERIS Foundation, I would like to convey my gratitude to Professor Allen C. Lynch. Special thanks also to Columbia Law School, Harvard Law School and American University-Washington College of Law for having facilitated my research. The research presented in this book has also significantly benefited from my internships at the UN Office of the High Commissioner for Human Rights (OHCHR), the Office of the Prosecutor of the International Criminal Court (ICC), and at the International Labour Organization (ILO). I would like to thank my former colleagues at the OHCHR: Markus Schmidt, Anita Trimaylova, Ana Batalla and Ivaylo Petrov; and at the ICC, Morten Bergsmo, Gilbert Bitti, Enrique Carnero and Julieta Solano. At the ILO, I had the opportunity to work on questions at the intersection of socioeconomic and legal matters, from which this work has also greatly benefited. My heart­ felt  thanks to Emily Sims, Ricarda McFalls and Githa Roelans for having given me this opportunity. I would also like to convey my gratitude to Daniel Rees, Tita Prada, Mario Berrios, Natan Elkin and Maria Luz Vega. I would also like to thank the following persons who I had the opportunity to inter­ view  for this project: Professor Robert Goldman, Christina Cerna, Priscilla Hayner, Claudia Martin, Susana SáCouto, Graeme Simpson, Diego Rodriguez-Pinzon and Marieke Wierda. I would also like to convey my gratitude to several people at the University of Oslo, Faculty of Law. Professor Jo Stigen, Professor Vibe Ulfbeck (University of Copenhagen) and Professor Per Cramer (University of Göteborg) and Professor Inger Johanne Sand for having given me the opportunity to complete this research and continue developing my research agenda at the Faculty. I would also like to thank Nils Butenschøn, Beate Sjåfjell, Ole K. Fauchald, Bård A. Andreassen, Geir Ulfstein, Andreas Føllesdal, and Malcolm

acknowledgmentsxv Langford for having facilitated my integration into the Faculty. I am also indebted to Jemima García-Godos for her valuable comments on an earlier version of the introduction. I would also like to thank Christian Boe Astrup and Cheryl Lorens for their suggestions on some sections of this work and assistance; Kim Kristiansen for his extremely helpful assistance on IT-related matters; and the staff of the library and the administrative personnel of the Norwegian Centre for Human Rights for their assistance. Special thanks also to Matthew W. Saul (Durham University) for having assisted me to clarify some terminology. I am also indebted to Piedad Gomez and her family for their support and assistance. I would also like to thank Humberto Sierra for his encouragement, and Zenith, Patricia and Ignacia Moreno for their support and assistance. I would also like to convey my gratitude to Miriam Estrada and Alejandro Valencia for their support. Special thanks also to Clara Sandoval for her significant guidance during my undergraduate and Master studies. I would also like to thank Karen Costa, Lloyd Chilvers and Ling Perrelet for having read the entire monograph and for their suggestions and corrections. My heartfelt thanks also to my colleagues and closest friends who shared with me the moments of frustration and happiness. I would like to thank Cristiano, Ana Maria, Sébastien, Willem and John. I dedicate this work to my family (Raquel, Osvaldo, Tatiana, Fabian and Juan Camilo) for their support, love and encouragement throughout this project. They have been my greatest source of inspiration and support throughout these years. Juan Carlos Ochoa Oslo, Norway October 2012

NOTE ON THE METHOD OF CITATION

I. Literature The full reference of the books, academic articles and reports of think tanks and nongovernmental organizations cited in this book is provided in the Bibliography. They are listed in alphabetical order of the author’s (editor’s) family names. Several books, articles or reports of the same author are listed in chronological order. In the footnotes, full reference of these sources is only provided the first time the particular source is cited. Thereafter, short references are used as follows: For books, the short reference consist of the author’s last name (year), the title of the book in italics, relevant page(s) (e.g. Clapham (2006), Human Rights Obligations of Non-State Actors, at 3–18). For articles published in books, the short reference consists of the author’s last name (year), the title of the article enclosed in double quotation marks, relevant page(s) (e.g. Simma (2005), “Commissions and Treaty Bodies of the UN System,” at 582). For articles published in journals, the short reference consists of the author’s last name (year), the title of the article enclosed in double quotation marks, relevant page’(s’) (e.g. McKay (2008), “Victim Participation in Proceedings before the International Criminal Court,” at 2). For reports of think tanks and non-governmental organizations, the short reference consists of the name of the organization (year), the title of the report in italics, relevant page(s) (e.g. International Center for Transitional Justice and Ivannišević (2008), The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court, at 11). II. International and Domestic Case Law International and domestic case law is always cited in full. III. Documents from Intergovernmental Organizations The full reference of the documents from intergovernmental organizations cited in this book is provided in the Bibliography. In the footnotes, full reference of these documents is only provided the first time the particular document is cited. Thereafter, short references are used. For example, UN HR Committee, General Comment No. 20:

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note on the method of citation

Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment of Punishment), para. 5. IV. Treaties and other International Agreements Treaties and other international agreements are cited as follows: Name of the agreement, subdivision cited, date of signing, international treaty source. The date on which a treaty entered into force may be added parenthetically at the end of the citation if it is of particular importance. For example, American Convention on Human Rights, Arts. 67–68, 22 November 1969, 1144 U.N.T.S. 123.

LIST OF ABBREVIATIONS

ACHPR African Commission on Human and Peoples’ Rights ACHR American Convention on Human Rights AJIL American Journal of International Law BiH Bosnia and Herzegovina CAT UN Convention against Torture CAT Committee UN Committee against Torture CEDAW Committee UN Committee on the Elimination of All Forms of Discrimination against Women CERD Committee UN Committee on the Elimination of Racial Discrimination Doc. Document ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) ECtHR European Court of Human Rights ECommHR European Commission of Human Rights ECCC Extraordinary Chambers in the Courts of Cambodia e.g. for example HR Committee UN Human Rights Committee IACtHR Inter-American Court of Human Rights IACommHR Inter-American Commission on Human Rights ICC International Criminal Court ICJ International Court of Justice ICCPR International Covenant of Civil and Political Rights ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia i.e. that is ILA International Law Association ILC UN International Law Commission No. number OHCHR Office of the UN High Commissioner for Human Rights OSCE Organization for Security and Co-operation in Europe para. paragraph Res. Resolution

xx SCSL TC UN UNMIK UNTAET VCLT VIS

list of abbreviations Special Court for Sierra Leone truth commission United Nations United Nations Interim Administration Mission in Kosovo United Nations Transitional Administration in East Timor Vienna Convention on the Law of Treaties Victim Impact Statement

INTRODUCTION

International treaties and human rights bodies have for a long time affirmed the significant role of judicial remedial mechanisms generally, and of criminal justice procedures in particular, in addressing serious human rights violations. Several treaties require States to conduct an effective investigation into, and to prosecute those allegedly responsible for, these infringements.1 Additionally, human rights treaty monitoring bodies have for decades interpreted general human rights treaties to demand that States, in the event of a serious human rights violation, conduct an effective investigation and, if warranted, prosecute those responsible.2 These bodies have put forward several rationales for this. In the first instance, they have noted that criminal justice procedures make it possible for a thorough and independent investigation to be carried out and for the criminal responsibility of those involved to be established. In addition, these bodies have stressed the special status of the rights infringed in serious human rights violations. In the light of these arguments, these bodies have maintained that criminal justice procedures fulfil an important expressivist function in the event of any of these infringements. Specifically, these bodies have stated that because of these features of criminal procedures, such procedures contribute significantly to reaffirming the importance the concerned society attaches to the infringed rights and, more generally, the authority of the law.3 The question is, then, whether to recognise, in parallel to the well-established State’s obligations to investigate and prosecute serious human rights violations, the rights of victims of these infringements of access to and participation in criminal procedures.4 1   See e.g. the Convention on the Prevention and Punishment of the Crime of Genocide, Arts. IV and VI, 9 December 1948, 78 U.N.T.S. 277 (hereinafter “the Genocide Convention”); the International Convention on the Suppression and Punishment of the Crime of Apartheid, Arts. IV and V, 30 November 1973, 1015 U.N.T.S. 243; the International Convention for the Protection of All Persons from Enforced Disappearance, Arts. 3, 4, 6, 7, 9, 10 and 11, 20 December 2006, UN Doc. A/RES/61/177 (23 December 2010) (hereinafter “the International Convention for the Protection of All Persons from Enforced Disappearance”). For further analysis of this matter, see below Chapter II, Section I, Subsection A. 2 For a lengthy discussion of this matter, see below Chapter II. For the definition of the concept of ‘serious human rights violations’, see below Chapter I, Section I. 3 See below Chapter II, Section I, Subsection A. 4 It is worth clarifying that the term ‘criminal procedures’ as used in this monograph includes the investigation phase, and that the expression ‘victim access to and participation in criminal procedures’ will be used as a shorthand for ‘access to and participation in criminal procedures for victims of serious human rights violations’. Equally, I should note that the terms ‘criminal procedures’ and ‘criminal proceedings’ will be used interchangeably throughout this book.

2

introduction

In recent years, this question has been the subject of intense debate in intergovernmental meetings, courtrooms, academia and directly affected societies. On the one hand, based on the rights to an effective remedy and to a fair hearing, widely recognised under international human rights instruments, proponents of these rights have put forward a series of rationales for their recognition under international law. To begin with, they maintain that victims of serious human rights violations have several legitimate interests in the criminal procedures for these infringements, and that victim access to and participation in these procedures are necessary means to protect such interests. Both the European Court of Human Rights and the Inter-American Court of Human Rights (hereinafter “the ECtHR” and “the IACtHR”, respectively) have explicitly referred to the legitimate interests of victims, as a rationale for their access to and participation in criminal proceedings. According to the ECtHR, the legitimate interests of victims in criminal proceedings for serious human rights violations are based on “their close and personal concern with the subject matter of the inquiry.”5 Likewise, the IACtHR has recognised various legitimate interests of victims in the criminal proceedings for these infringements. In particular, the IACtHR has stated that by exercising the right to resort to the administration of justice to obtain an investigation into an alleged human rights violation, victims seek not only the benefit of society as a whole, but also their own benefit.6 The IACtHR has supplemented this with its view that victim participation in criminal proceedings has a twofold rationale: to enable him or her to contribute to clarification of the facts and the punishment of those responsible; and to allow him or her to seek adequate reparation.7 Additionally, proponents maintain that access to and participation in criminal procedures for victims of serious human rights violations serve to counter the recurrent unwillingness of State authorities to investigate and prosecute these infringements. Specifically, it has been argued that by serving as a voice for rigorous review, victims can, through their access and participation, help ensure that these violations are effectively investigated and potentially prosecuted.8 On the same basis, proponents have also stated that victim access 5 ECtHR, Paul and Audrey Edwards v. The United Kingdom, Judgment of 14 March 2002, Application No. 46477/99, para. 84. More generally, see ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 98. For a thorough discussion of this subject, see below Chapter III, Section II, Subsection B.i. 6 See e.g. IACtHR, the Caracazo v. Venezuela, Reparations, Judgment of 29 August 2002, Series C No. 95, para. 115; IACtHR, Case of Serrano-Cruz Sisters v. El Salvador, Merits, Reparations and Costs, Judgment of 1 March 2005, Series C No. 120, para. 64. 7 IACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63, para. 227. See also IACtHR, Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90, para. 59; IACtHR, Durand and Ugarte v. Peru, Merits, Judgment of 16 August 2000, Series C No. 68, para. 129. For a complete analysis of this subject, see below Chapter III, Section II, Subsection A. 8 Raquel Aldana-Pindell (2004), “An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes,” 26 Human Rights Quarterly 605, at 613, 669. See also Luc Walleyn (2009), “The Prosecution of International Crimes and the Role of Victims’ Lawyers,” in Carla Ferstman, Mariana Goetz, and Alan Stephens (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity 353 (Leiden: Martinus Nijhoff), at 354. For a lengthy discussion of this matter, see below Chapter IV, Section I, Subsection B.

introduction3 to and participation in criminal procedures serve to reaffirm the principle of the rule of law.9 More generally, the increasing recognition of the rights of access to and participation in criminal proceedings for victims of serious human rights violations has been the result of the high visibility that victims of these infringements have gained at the international level during the last two decades. For instance, the Statute of the International Criminal Court (hereinafter “the ICC”), which grants victims the right to participate independently from the defence and the prosecution in the procedures, includes in its Preamble as one of the rationales for the adoption of the Statute by the State Parties, the observation that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”10 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereinafter “the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims”), adopted by the UN General Assembly in December 2005, are another manifestation of the high visibility that victims of serious human rights violations have gained at the international level.11 While whether these Principles provide victims with the rights of access to and participation in criminal proceedings for these violations will be analysed at length below,12 it is worth noting here that this international instrument grants a victim of a gross violation of international human rights law a number of rights, including the right of “equal access to an effective judicial remedy.”13 Following this line of reasoning, several human rights treaty monitoring bodies – particularly regional ones – and the statutes of a number of international and hybrid criminal tribunals recognise a series of rights in criminal procedures for victims. These rights include a victim’s right to have his or her case promptly and impartially examined by State authorities, to know the reasons for a prosecutor’s decision not to prosecute an alleged perpetrator of a serious human rights violation, to be heard in criminal proceedings, and to have access to the case files during the proceedings.14 On the other hand, access to and participation in criminal proceedings for crime victims generally have been opposed, especially in the common law tradition, based on the grounds that they would undermine the principles that inform the enforcement of   9 See e.g. IACtHR, Loayza Tamayo v. Peru, Reparations, Judgment of 27 November 1998, Series C No. 42, para. 169. See also IACtHR, Castillo Páez v. Peru, Reparations and Costs, Judgment of 27 November 1998, Series C No. 43, para. 106. For a thorough discussion of this argument, see Chapter III, Section II, Subsection A; and Chapter IV, Section I, Subsection D. 10 The Rome Statute of the International Criminal Court, Preamble, para. 2, 12 July 1998, U.N. Doc. A/CONF.183.9 (hereinafter the “Statute of the ICC”). 11 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly, Res. 60/147, 16 December 2005, UN Doc. A/ RES/60/147 (hereinafter “the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims”). 12 See Chapter III, Section I, Subsection B.ii. 13 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principles 11(a) and 12. 14 See below Chapter III, Sections I and II, and Chapter V, Section I.

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criminal law in democratic States. Specifically, it has been maintained that access to and participation in criminal procedures for crime victims would violate the presumption of innocence of the defendant, obstruct the ability of decision-makers to make reasoned judgment, and undermine the public interest criteria informing decision-making in these procedures.15 As a result of this view, which has historically been prevalent in common law jurisdictions, several United Nations non-conventional instruments leave victim access to and participation in criminal proceedings before local courts to the domestic law of States or remain silent as to whether a victim’s right to an effective remedy encompasses the rights of access to and participation in criminal proceedings.16 Similarly, the UN Human Rights Committee continues to take the view that the International Covenant of Civil and Political Rights (hereinafter “the ICCPR”) grants no rights to victims of serious human rights violations in the investigation into, and subsequent criminal proceedings for, these infringements.17 To complicate the analysis, victim access to and participation in criminal procedures conducted in situations of mass serious human rights violations involve some distinct matters, particularly the large number of victims commonly involved in these situations. Additional arguments in favour of and against victim access to and participation in criminal proceedings carried out in these situations have therefore been put forward. On the one hand, proponents maintain that by promoting a sense of involvement of directly victimised populations in the proceedings, victim access to and participation in criminal proceedings conducted in these situations can make such proceedings more meaningful to these communities and, ultimately, strengthen the ability of these proceedings to achieve several of their purported objectives – e.g. the promotion of the rule of law.18 The ICC Strategy in Relation to Victims identifies this among the rationales for the recognition of the victim’s right to participate in the proceedings before the ICC.19 On the other hand, the judges of the ad hoc international criminal tribunals and a number of scholars oppose victim access to and participation in criminal procedures conducted in situations of mass atrocity on the grounds that they would significantly and unduly increase the complexity and length of these procedures. In particular, they maintain that applications and participation by a large number of victims, as would typically be the case in these situations, would impose an unreasonable burden on both the defence and the tribunal.20 The analysis of this matter is complicated further by the fact that the provisions of the statutes of international and hybrid criminal tribunals regarding the position of the victim in the proceedings differ widely and provide no logical guideline. While the Statutes of the ad hoc international criminal tribunals consider victims to be mere witnesses, the 15 See below Chapter IV, Section III. 16 See below Chapter III, Section I. 17 See below Chapter III, Section I, Subsection A.i. 18 See below Chapter V, Section II. 19 See ICC, Report of the Court on the Strategy in Relation to Victims, 10 November 2009, ICCASP/8/45, para. 44. See also below Chapter V, Section II. 20 See below Chapter V, Section III.

introduction5 Statute of the ICC recognises a victim’s right to participate in the proceedings before the Court. Nevertheless, the Statute of the ICC largely leaves to the ICC Chambers the determination of what participatory rights in the proceedings entail and of the stages of the proceedings in which these rights can be exercised. For its part, the approach of the judges of the Extraordinary Chambers in the Courts of Cambodia to this matter have substantially changed over the years. The broad participatory rights in the proceedings before these Chambers that victims initially enjoyed were substantially limited in September 2010, when an extensive restructuring of victim participation before these Chambers was introduced.21 For their part, the Special Chamber in the State Court of Bosnia and Herzegovina and the Special Tribunal for Lebanon, established for dealing with crimes committed in a civil law jurisdiction, grant victims more limited rights than those usually recognised under this legal tradition.22 As the preceding introduction outlines, the issue of access to and participation in criminal proceedings for victims of serious human rights violations is a multi-dimensional question in need of critical discussion. This is all the more so because of the lack of a thorough examination of this subject from the international law, normative and comparative perspectives. Current literature on this topic, by and large, limits itself to examining, mostly from a positivistic perspective, victim access to and participation in international criminal procedures, particularly before the ICC, or before domestic courts covering only common law jurisdictions.23 Those few studies covering international law beyond the ICC Statute remain very general.24 As a study of the Office of the UN High Commissioner for Human Rights of 2007 found, there is a need to analyse in detail relevant international standards and national and international practices on the role of victims of human rights violations in criminal proceedings.25 This monograph fills the various gaps that exist in the current literature on the topic. It analyses victim access to and participation in criminal procedures before domestic, international and hybrid tribunals from a range of perspectives, including international law, comparative domestic law, broader normative considerations, and empirical evidence. This work does so by addressing questions at three levels of analysis, namely the legal positive, the normative, and the empirical, and by taking into account a host of international human rights instruments and case-law, the principles that inform the enforcement of criminal law in democratic States, comparative criminal law, the theory, law and practice of international and hybrid criminal tribunals and many theoretical and empirical 21 See below Chapter V, Section I, Subsection C.v. 22 See below Chapter V, Section I, Subsections C and D. 23 See e.g. T. Markus Funk (2010), Victims’ Rights and Advocacy at the International Criminal Court (Oxford: Oxford University Press). 24 See e.g. Jonathan Doak (2008), Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Oxford: Hart). For one of the very few exceptions, see Brianne McGonigle Leyh (2011), Procedural Justice? Victim Participation in International Criminal Proceedings (Cambridge: Intersentia). 25 See Office of the UN High Commissioner for Human Rights (2007), Right to the Truth: Report of the Office of the High Commissioner for Human Rights, 7 June 2007, UN Doc. A/HRC/5/7, paras. 89, 91–92.

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studies conducted in nearly all the regions of the world and in three major languages, namely English, French and Spanish. Specifically, the objectives of this work can be grouped into three categories according to the level of analysis used to meet the concerned goal. First, at the legal positive level this study aims to examine in a systematic manner the current state of, and emerging trends in, international law on this question – covering criminal procedures conducted in situations of both isolated and mass serious human rights violations – and to analyse the approach to the subject under the main legal traditions – i.e. the common law and the Romano-Germanic legal systems. Second, at the legal positive, normative and empirical levels, this monograph seeks to reflect on the legal bases, and legal and policy rationales for, victim access to and participation in these procedures, and to address the main legal and policy arguments against such access and participation. Also from the legal positive, normative and empirical perspectives this work aims to assess the contribution of victim access to and participation in criminal procedures, and more generally prosecutions, to addressing the needs of both victims of serious human rights violations and of directly concerned societies. Lastly, at the legal positive and normative levels, but specifically concerning implementation, this study seeks to suggest some objective principles to inform victim access to and participation in criminal procedures, and to propose a set of victim rights in such procedures. In the remaining sections of this introduction, I outline my findings and submissions regarding most of these questions, covering the three levels of analysis and providing an overview of the content of the book. As a preliminary matter, I deal with some key conceptual and methodological issues, namely the definition of the various types of victim rights in criminal proceedings discussed throughout this study, the nature of my approach to this matter and the legal frameworks used.

I. Addressing Some Critical Conceptual and Methodological Issues This section addresses a number of critical conceptual and methodological issues related to this work. It should be mentioned that Chapter I supplements this section, as it defines other terms commonly used in this book and examines the legal status of the most frequently used authorities throughout this monograph. A. Defining the Rights of Victims in Criminal Procedures Analysed in this Work My study covers three categories of victim rights in criminal proceedings, which I identify drawing on international and domestic practices: those related to access, those concerning information, and participatory rights. While the primary focus is on the last category, I also discuss the first two because, as the practice of human rights treaty monitoring bodies has demonstrated, these types of rights are prerequisites for the exercise of participatory rights. For instance, in several cases, the ECtHR has found that a State Party to the European Convention on Human Rights (hereinafter “the ECHR”) has failed to fulfil its obligations under this Convention on the grounds that the victim’s lack of information or

introduction7 of access to the investigation or subsequent proceedings deprived him or her of the opportunity to exercise his or her other rights in such proceedings.26 This monograph identifies two main rights related to access to criminal proceedings for victims of serious human rights violations: the right to submit a complaint to the authorities regarding any such violations, and the right to have an effective and impartial investigation carried out with reasonable expedition. Additionally, and with respect to information, I identify a victim’s right to be informed of the conduct of criminal procedures for any such infringements and of major decisions taken in these procedures. Furthermore, this work discusses five main participatory rights in criminal procedures for victims of serious human rights violations: first, the right to be present at the trial and the sentencing phase; second, the right to be heard throughout criminal procedures and, in particular, at the key stages of these procedures; third and fourth, the rights to offer and examine evidence pertaining to the guilt or innocence of the accused; and last, the right to challenge the admissibility or relevance of evidence. Additionally, it is worth clarifying the nature and scope of victim participation pursuant to the rights identified in this monograph. Victim participation according to the rights identified in this work allows the victim to directly address the court or other competent State authority, independently from the defence and the prosecution. In this respect, it is worth quoting the following statement of Senator Kyl, one of the sponsors of the U.S. Crime Victims’ Rights Act of 2004, during the passage of this bill: This provision is intended to allow victims to directly address the court in person. It is not necessary for the victim to obtain the permission of either party to do so. The right is a right independent of the government or the defendant that allows the victim to address the court. To the extent the victim has the right to independently address the court, the victim acts as an independent participant in the proceedings.27

On this basis, victim participation pursuant to the rights identified in this study needs to be distinguished from other instances in which a victim is involved in criminal procedures, notably (i) when serving as a mere witness, and (ii) when submitting a Victim Impact Statement (hereinafter “VIS”). The contrast with the former is clear as, when victims participate in criminal proceedings pursuant to the participatory rights identified in this monograph, they have an independent initiative to participate in these proceedings and, once they decide to do so, they have far more rights. Notably pursuant to the right to 26 See e.g. ECtHR, Öğur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93, para. 92; ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 117; ECtHR, Orhan v. Turkey, Judgment of 18 June 2002, Application No. 25656/94, paras. 346, 348. For further analysis of this matter, see below Chapter III, Section II, Subsection B.i. 27 150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). See also ICC, Situation of the Democratic Republic of Congo, Decision on the Application for Participation in the Proceedings by VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-Trial Chamber I, 17 January 2006, ICC-01/04-101-tEn-Corr, para. 51. For observers’ commentaries, see Fiona McKay (2008), “Victim Participation in Proceedings before the International Criminal Court,” 15 Human Rights Brief 2, at 2; Brianne N. McGonigle (2009), “Bridging the Divides in International Criminal Proceedings,” 21 Florida Journal of International Law 93, at 110.

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be heard, victims can not only give their version of events, but also their views on the clarification of the facts, the identification and prosecution of those responsible, and the compensation due.28 In contrast, when victim involvement in criminal proceedings is limited to serving as a witness, he or she is unable to take the initiative to speak and, if he or she speaks, he or she is limited to answering the questions put forth by the parties and the judge.29 Victim participation in criminal proceedings according to the rights identified in this work should also be distinguished from the victim’s involvement in these proceedings through the submission of a VIS. While the submission of a VIS is usually a victim’s prerogative, independent of the will of the parties in the proceedings, in most of the jurisdictions that authorise these statements the content of the VIS is limited – i.e. to providing information regarding the extent of the harm resulting from the offence.30 The effects on victims of these various forms of victim involvement in criminal procedures will be ana­ lysed in Chapter IV.31 B. Delineating my Approach to This Matter As mentioned earlier, this work goes beyond a purely legal positive perspective by discussing, in addition to the current state of international law, various normative issues arising from the question of victim access to and participation in criminal procedures for serious human rights violations. Specifically, this study identifies and discusses a series of legal bases, and legal and policy rationales, for victim access to and participation in criminal procedures conducted in situations of both isolated and mass serious human rights violations; addresses the main legal and policy arguments against victim access to and participation in these procedures; proposes several objective principles to inform victim access to and participation in such procedures; and suggests a series of victim rights in these procedures. I analyse relevant normative issues, as, in my view, international law is more than a mere body of rules; it is a normative social system. Therefore, for its making, interpretation and application it is crucial to consider the objectives it seeks to meet and the political, economic and social factors that affect it. In this respect, I build on the New Haven School of international law, which in turn builds on the American Legal Realist School of jurisprudence.32

28 For a lengthy discussion of this matter, see below Chapter IV, Section II, Subsection A. 29 For a scholarly account of this distinction, see e.g. Alexander Zahar and Göran Sluiter (2008), International Criminal Law: A Critical Introduction (Oxford: Oxford University Press), at 71. See also below Chapter IV, Section III, Subsection E. 30 See e.g. Ian Edwards (2004), “An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making,” 44 British Journal of Criminology 967, at 977; Edna Erez, Leigh Roeger and Frank Morgan (1997), “Victim Harm, Impact Statements and Victim Satisfaction with Justice: An Australian Experience,” 5 International Review of Victimology 37, at 55. 31   See below Chapter IV, Section III, Subsection E. 32  See e.g. Iain Scobbie (2010), “Wicked Heresies or Legitimate Perspectives? Theory and International Law,” in Malcolm Evans (ed.), International Law 58 (Oxford: Oxford University Press, 3rd edn), at 69, 72. See also Anne-Marie Slaughter and Steven R. Ratner (2004), “The Method is the Message,” in Steven R. Ratner and Anne-Marie Slaughter (eds.), The Methods of

introduction9 My approach to access to and participation in criminal proceedings for victims of serious human rights violations is mainly foundational – that is, general. There are several reasons for this. The first relates to the foundational nature of many of the arguments against victim access to and participation in criminal proceedings. As will be discussed below, many of these arguments question the very acceptance of victim access to and participation in these proceedings. Another factor that explains the general nature of my approach is that I seek to propose principles guiding treaty interpretation and law-making for establishing international standards on this matter, to be applied in the various criminal legal systems that currently exist. Because of the differences that exist between these legal systems, international standards on this subject should focus on its most critical aspects. Despite the foundational nature of my approach, I specify the victim’s rights to be recognised in criminal proceedings carried out in situations of both isolated and mass serious human rights violations. In order to determine which specific victim rights arise from victim access to and participation in criminal proceedings as understood in this work, in my view it is necessary to distinguish between those proceedings conducted in situations of isolated serious human rights violations and those proceedings carried out in situations of mass atrocity. There are objective differences between these situations. Unlike situations of isolated serious human rights violations, situations of mass atrocity involve a large number of victims, and governments often have scarce financial and human resources available to satisfy the multiple societal needs that exist in these situations. These factors, together with the requirement that criminal proceedings be conducted expeditiously, explain why I suggest a more limited set of victim rights in criminal proceedings conducted in these situations than those identified in proceedings carried out in situations of isolated serious human violations. It is therefore clear that in identifying victim rights in criminal proceedings, I am not proposing a one-size-fits-all solution. Additionally, I acknowledge that differences in cultural traditions and values among communities can have some effect on certain matters discussed in this work, such as the psychological effect of storytelling in public settings and the impact of emotions on reasoned judgment. I have, however, made my best effort to reflect the potential effects of these cultural differences in my work by analysing many theoretical and empirical studies conducted in nearly all the regions of the world, including Africa, North and Latin America, Asia, Australia and Europe. Unlike most of the current literature on this topic, which limits itself to analysing victim access to and participation in criminal procedures before international courts, particularly the ICC, my study also discusses victim access to and participation in criminal procedures before domestic courts. There are two main reasons for this. First, domestic tribunals usually have primary jurisdiction over serious human rights violations. Accordingly, the role of international criminal tribunals generally is subsidiary.33 Therefore, it is clear that most criminal proceedings for these violations are carried out

   International Law 239, Studies in transnational legal policy No. 36 (Washington, D.C.: American Society of International Law), at 241, 262. 33 See e.g. the Statute of the ICC, Arts. 17–18.

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before domestic courts. Second, the historical divide between common law and civil law jurisdictions regarding the position of the victim in criminal procedures before domestic courts has in many ways influenced the debate on this topic that has arisen when discussing the adoption of international standards on this subject, particularly in the context of international criminal tribunals. Then, if one wants to understand and address many of the arguments raised with respect to victim access to and participation in criminal proceedings generally and, particularly, before international tribunals, one needs to examine the divergent approaches that historically the common law and the civil law traditions have taken with respect to the position of the victim in criminal procedures before domestic courts. While recognising that there are legal traditions other than the common law and the civil law which have addressed the rights of crime victims, my analysis focuses on the common law and the civil law traditions, as they have dominated the negotiation and adoption of international standards on this subject.34 These other legal traditions include the Islamic tradition and African tribal systems.35 C. Identifying and Discussing the Legal Frameworks Used in This Work For the purposes of analysing access to and participation in criminal proceedings for victims of serious human rights violations, I use four legal frameworks: international human rights law; the principles informing the enforcement of criminal law in democratic States; comparative criminal law; and the law and practice of international and hybrid criminal tribunals. I use these legal frameworks as they are all relevant for analysing access to and participation in criminal proceedings for victims of these infringements. It is worth explaining why these legal frameworks are relevant and how I use them. There are several reasons for using international human rights law as a legal framework in my analysis. The first relates to the very focus of this monograph, i.e. victims of serious human rights violations. It is this field of international law that defines these violations and provides for the victim’s right to an effective remedy and, more generally, for the right to a fair hearing. Second, human rights instruments and bodies have dealt extensively with several closely related matters, such as remedies for serious human rights violations, the State’s obligations to investigate and prosecute these infringements, and the rights of victims of such violations in non-criminal proceedings. Third, international human rights law instruments include numerous provisions dealing with criminal proceedings. Last, international human rights law provides common standards for the various criminal legal systems that currently exist. In order to present an accurate picture of international practice, and because of the reasons to be discussed in Chapter I,36 I take into consideration the practice of United Nations (hereinafter “UN”) and regional human rights treaty monitoring bodies for interpreting international human rights norms. When determining the

34 See e.g. Salvatore Zappalà (2003), Human Rights in International Criminal Proceedings (Oxford: Oxford University Press), at 17. 35 Regarding the Islamic tradition, see Farhad Malekian (1994), The Concept of Islamic International Criminal Law: A Comparative Study (London: Graham and Trotman). 36 See below Chapter I, Section III.

introduction11 content and scope of internationally recognised human rights and principles, I analyse exclusively this legal framework.37 As regards other issues discussed in this work, I use international human rights law together with other legal frameworks. I also use as a legal framework throughout this monograph the principles informing the enforcement of criminal law in democratic States, such as the right of the defendant to due process, and the principle that decision-making in criminal proceedings should be in the hands of public officials and be informed by public interest considerations. These principles are a key benchmark for assessing any proposed victim right in criminal proceedings. Comparative criminal law is another legal framework used in this study. I use it for various purposes: first, to identify and analyse the premises and features of the common law and the civil law traditions, as well as the effect these premises and features have had with respect to the position of the victim in criminal procedures conducted according to such traditions; second, to ground the sets of rights I propose for victims in criminal proceedings conducted in situations of both isolated and mass serious human rights violations; and, last, to address several matters related to victim access to and participation in criminal procedures with respect to which international law rules and practice are non-existent or scarce. The law and practice of international and hybrid criminal tribunals are other legal frameworks I use in this monograph. I use them mainly for discussing victim access to and participation in criminal proceedings conducted in situations of mass atrocity, as all but one of these tribunals deal or have dealt with situations of mass atrocity.38 Additionally, I refer to these legal frameworks when discussing the rationales for, and the arguments against, victim access to and participation in criminal proceedings generally.39 II. The State of Customary International Law on This Subject In Chapter III, I conclude that customary international law does not yet recognise the rights of access to and participation in criminal proceedings for victims of serious human rights violations.40 As mentioned above, the approach of most United Nations instruments and bodies differs from that of regional human rights courts. In addition, the

37 See e.g. Chapter IV, Section I, Subsections B and C. 38 See below Chapter V. 39 See below Chapter IV, Sections I and II. 40 The Statute of the International Court of Justice (hereinafter ‘ICJ’) defines custom as “a general practice accepted as law.” See the Statute of the ICJ, Art. 38(1)(b), available at http://www.icj-cij .org/documents/index.php?p1=4&p2=2&p3=0. Accessed on 15 May 2012. Similarly, the Restatement (Third) of the Foreign Relations Law of the United States, § 102 (2), states as follows: “Customary international law results from a general and consistent practice of States followed by them from a sense of legal obligation.” See American Law Institute (1987), Restatement of the Law. Third, The Foreign Relations Law of the United States (St. Paul: American Law Institute Publishers), § 102 (2). For a thorough discussion of the elements that make up customary international law, see below Chapter II, Section II, Subsection A.

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approach of the statutes of international, and particularly, hybrid, criminal tribunals to the position of the victim in the proceedings is inconsistent. As indicated earlier, the main reason for this state of affairs, particularly regarding victim access to and participation in criminal proceedings before domestic courts, is the traditional opposition of common law jurisdictions to an active role for crime victims in criminal proceedings. The grounds for this opposition can be grouped into two main categories. The first consists of those grounds used for maintaining that crime victims’ access to and participation in criminal proceedings would undermine the principles that inform the system of public prosecution of criminal offences in democratic States. Specifically, this category encompasses the arguments that victim access to and participation in these proceedings would infringe on the rights of the defendant, obstruct the ability of decision-makers in these proceedings to make reasoned judgment and, more generally, undermine the public interest criteria that inform decision-making in such proceedings in democratic States. The second category of grounds for opposing crime victims’ access to and participation in criminal proceedings is based on an enduring premise of the common law tradition, namely the conception of criminal law as the exclusive province of the State and thus tort law as the only avenue open to crime victims for seeking redress. As noted earlier, these arguments against crime victims’ access to and participation in criminal proceedings, which include legal and policy ones, are of a foundational nature. They challenge the very acceptance of victim access to and participation in these proceedings. Additionally, and in particular regarding victim access to and participation in criminal procedures conducted in situations of mass atrocity, it has been maintained that such access and participation would significantly and unduly increase the complexity and length of these procedures, because of the large number of victims usually involved in these situations. III. Why the Current State of Customary International Law on This Matter is Inadequate My main thesis is that the current state of customary international law on the question of access to and participation in criminal procedures for victims of serious human rights violations is inadequate, because such access and participation are well-grounded in legal positive and normative terms. I outline below the main arguments supporting my thesis. A. Legal Bases and Rationales for Victim Access to and Participation in Criminal Procedures i. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters For a number of decades, international human rights treaty monitoring bodies have been addressing several matters closely related to victim access to and participation in criminal procedures, such as States’ obligations to investigate and prosecute serious human rights violations, remedies in the event of any of these infringements, and the rights of victims of these violations in non-criminal proceedings. For instance, and as will be analysed in Chapter II, when putting forward the rationales for States’ procedural obligations when

introduction13 faced with a serious human rights violation, these bodies have consistently stressed the features of criminal procedures – i.e. they make it possible for a thorough and independent investigation to be carried out and for the criminal responsibility of those involved to be established. On this basis, as mentioned earlier, these bodies have maintained that, in the event of a serious human rights violation, criminal procedures serve to reaffirm the importance that the concerned society attaches to the infringed rights. More generally, these bodies have for a long time held that, in the event of any of these violations, judicial remedial mechanisms play a critical role in the proper operation of democracy and, in particular, of the principle of the rule of law.41 The special status of the rights infringed in serious human rights violations is another rationale that human rights treaty monitoring bodies have put forward for the development of States’ procedural obligations when faced with these infringements.42 This rationale is relevant in several respects regarding victim access to and participation in criminal procedures. First, by stressing the special status of the rights infringed in these violations, these bodies have recognised that these infringements harm not only the public order, but also fundamental rights of individuals. As will be discussed below, this indicates the special nature of these violations. Additionally, the recognition of the special status of the rights infringed in serious human rights violations is an important basis for the applicability of the right to a fair hearing in criminal procedures with respect to victims of these infringements. As will be analysed below in this introduction and in Chapter IV, there is a strand of human rights treaty monitoring bodies’ case law according to which States are bound to ensure the right to a fair hearing in those instances in which the determination of an internationally recognised human right is at issue. Furthermore, and as Chapter II will show, human rights treaty monitoring bodies have consistently identified the victim’s right to an effective remedy as a major legal basis of States’ obligations to investigate and prosecute serious human rights violations. Similarly, several UN instruments and the UN Human Rights Committee take the view that, in the event of any of these infringements, the conduct of an investigation and if warranted, criminal prosecution and sanctions, are components of the reparation due to the victim.43 These two developments signal that these bodies and instruments view criminal procedures as providing victims of these violations with an important means for seeking redress. 41 See below Chapter IV, Section I, Subsection D. 42 See below Chapter II, Section I, Subsection A. 43 See e.g. the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 22(f). See also UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, paras. 8, 16, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 237. Regarding the case law of the IACtHR, see e.g. IACtHR, the Ituango Massacre case v. Colombia, Preliminary Objec­ tions,  Merits, Reparations and Costs, Judgment of 1 July 2006, Series C No. 148, paras. 339– 344; IACtHR, The Miguel Castro-Castro Prison, Merits, Reparations and Costs, Judgment of 25 November 2006, Series C No. 160, para. 441. With respect to the African Commission on Human and Peoples’ Rights (hereinafter “the ACHPR”), see Communication 245/2002, Zimba­ bwe Human Rights NGO Forum v. Zimbabwe, paras. 200, 212, in Twenty-First Activity Report 2007, Annex III.

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My argument is then that the logic and rationales that human rights treaty monitoring bodies and a number of UN instruments have adopted when addressing these closely related matters also hold for the recognition of the rights of access to and participation in criminal proceedings for victims of serious human rights violations. These rights are therefore logical extensions of the approach of these bodies and instruments to these closely related matters. ii. Internationally Recognised Human Rights and Principles Current customary international law on victim access to and participation in criminal proceedings is based on the premise that internationally recognised human rights and principles are irrelevant for the purposes of addressing this question. My submission is that far from this being the case, the widely recognised rights to an effective remedy and to a fair hearing, and the principle of the rule of law, provide the legal bases for victim access to and participation in criminal proceedings. Regarding the right to an effective remedy, my argument is twofold. First, criminal procedures provide victims of serious human rights violations with an important means for seeking redress because of the features of such procedures, the nature of these infringements, and the context in which these violations are often perpetrated. As just mentioned, human rights treaty monitoring bodies have consistently stressed that these procedures make it possible for a thorough and independent investigation to be conducted, and for the criminal responsibility of those involved to be established. The official and public nature of criminal procedures are also of critical importance for victims of serious human rights violations not only because State authorities are the representatives of the society, but also because of the nature of these infringements and the context in which such violations are often committed. As noted earlier, human rights treaty monitoring bodies have consistently maintained that these violations infringe upon fundamental rights of individuals. In addition, these infringements are often perpetrated with the active involvement of State officials and surrounded by official denials and cover-ups.44 Therefore, as Brandon Hamber maintains, these violations, particularly when they are widespread, do not merely harm individuals, but also destroy social relations. They affect a victim’s sense of being part of society.45 Because of the official and public nature of criminal proceedings, these proceedings not only help to uncover the truth, but also are an important means for public acknowledgment of what happened.46 By facilitating entry to, and active involvement of victims in, criminal proceedings, victim access and participation can also contribute to affirming victims’ dignity and their membership of and status in the concerned society.47 44 See e.g. Stanley Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” 20 Law and Society Inquiry 7, at 18–19. For many empirical studies confirming this, see Chapter IV, Section II, Subsection A.i, and Section III, Subsection E; and Chapter V, Section IV, Subsection A. 45 Brandon Hamber (2009), Transforming Societies After Political Violence: Truth, Reconciliation, and Mental Health (Dordrecht: Springer), at 22, 25. 46 See below Chapter IV, Section I, Subsection B; Section II, Subsection A; and Section III, Subsection E. 47 See below Chapter IV, Section II, Subsection A, and Section III, Subsection E. See also below Chapter V, Section IV, Subsection A.

introduction15 Second, by helping to ensure that serious human rights violations are investigated and prosecuted, victim access to and participation in criminal proceedings can serve to corrode the impunity that often surrounds the perpetration of these infringements. This is important because international human rights instruments and bodies demand that remedies for these violations must not only exist in theory, but must also be effective in practice.48 Both the IACtHR and the ECtHR have viewed the rights of the victim in criminal procedures as an important means to counter impunity for these violations. As will be examined in Chapter III, the Inter-American bodies for the protection of human rights have since their establishment faced situations of impunity with respect to these infringements in various countries. The recognition of victim rights has been seen by these bodies as an important means to corrode such impunity. In recent years, the IACtHR has made explicit the link between victim rights in criminal proceedings and the objective of countering impunity. In particular, it has stated in several cases that the victim’s right to resort to the administration of justice to obtain a judicial investigation into an alleged human rights violation requires that domestic criminal proceedings are carried out in such a way as to avoid undue delays that lead to impunity,49 and that every necessary step be taken to determine the truth and punish those responsible for the events.50 The practice of the ECtHR also provides support for this view, as many of the leading cases of this Court on victims’ rights in criminal procedures have concerned situations characterised by the unwillingness of State authorities to investigate serious human rights violations, and to prosecute and try those responsible – e.g. those in Southeast Turkey and Northern Ireland during the 1990’s, and in Chechnya in the late 1990’s and early 2000’s.51 A systematic and teleological interpretation of the right to a fair hearing also provides support for the recognition of the rights of access to and participation in criminal procedures for victims of serious human rights violations. To begin with, the applicability of the right to a fair hearing in criminal proceedings with respect to victims of these violations is based on a systematic interpretation of this right and the right to an effective remedy. In particular, in interpreting the right to a fair hearing, the approach taken by human rights treaty supervisory bodies that, in the event of a serious human rights violation, the 48 See ICCPR, Art. 2, para. 3(a); ECHR, Art. 13; and ACHR, Art. 25, para. 1. See also IACtHR, Velasquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 63, 66–68. 49 IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162, para. 150. See also IACtHR, Case of Myrna Mack Chang, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 209. 50 IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162, para. 149. For previous cases, see IACtHR, Case of Myrna Mack Chang, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 209; IACtHR, Case of the 19 Tradesmen v. Colombia, Merits, Reparations and Costs, Judgment of 5 July 2004, Series C No. 109, para. 188; IACtHR, Case of the Serrano-Cruz Sisters v. El Salvador, Judgment of 1 March 2005, Series C No. 120, para. 66; and IACtHR, Case of the “Mapiripán Massacre” v. Colombia, Merits, Reparations and Costs, Judgment of 15 September 2005, Series C No. 134, para. 216. 51 For Turkish cases, see e.g. ECtHR, Aksoy v. Turkey, Judgment of 18 December 1996, Application No. 21987/93; Gülec v. Turkey, Judgment of 27 July 1998, Application No. 21593/93; Ögur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93. For cases in Northern Ireland, see e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001; Hugh Jordan v. The

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victim’s right to an effective remedy requires that criminal procedures be conducted, needs to be taken into consideration. Furthermore, a systematic and teleological interpretation of the right to a fair hearing requires States to ensure the observance of this right in criminal procedures with respect to victims of serious human rights violations, because of the special status of the rights infringed in these violations. As discussed above, human rights treaty monitoring bodies have recognised the special status of the rights infringed in these violations when elaborating on the rationales for States’ obligations to investigate and prosecute these infringements.52 While, as will be discussed in Chapter IV, most human rights treaty monitoring bodies have, under their predominant case law, failed to follow through on the logic of this case law when determining the situations in which the right to a fair hearing has to be ensured, there is a strand of these bodies’ case law according to which States are bound to ensure the right to a fair hearing in those instances in which the determination of an internationally recognised human right is at issue.53 By helping to ensure that serious human rights violations are investigated and prosecuted, victim access to and participation in criminal procedures also contribute significantly to reaffirming the importance the concerned society attaches to the infringed rights and, ultimately, to the reaffirmation of the principle of the rule of law. As mentioned earlier, human rights treaty supervisory bodies have consistently maintained that, in the event of any such violations, criminal procedures serve to reaffirm the importance the concerned society attaches to the infringed rights and, more generally, the authority of the law, because of the above-mentioned special characteristics of these procedures.54 Victim access to and participation in criminal procedures contribute to these expressivist goals of criminal procedures because, as will be analysed below, such access and participation include the rights of victims to have an effective and impartial investigation carried out with reasonable expedition; to know the reasons for, and increasingly to ask for judicial review of, a public prosecutor’s decision not to prosecute any alleged such infringements; and to be present, to be heard, and to offer, examine and challenge evidence at the trial phase. iii. Other Rationales I put forward three other rationales for access to and participation in criminal procedures for victims of serious human rights violations: first, such access and participation are a necessary means to protect the legitimate interests of victims in the criminal procedures for these infringements; second, victim access to and participation in criminal procedures can, according to the theory of procedural justice, improve victim perception  of the fairness and legitimacy of these procedures; and last, victim access to and      United Kingdom, Judgment of 4 May 2001, Application No. 24746/94. For cases which occurred in Chechnya, see e.g. ECtHR, Isayeva v. Russia, Judgment of 24 February 2005, Application No. 57950/00. 52 See below Chapter II, Section I, Subsection A.i. 53 See below Chapter IV, Section I, Subsection C. 54 See below Chapter II, Section I, Subsection A.

introduction17 participation in criminal procedures can contribute to affirming victims’ dignity, and their membership of and status in the concerned society. International and domestic practices increasingly recognise that victims of serious human rights violations have several legitimate interests in the criminal proceedings for these infringements, because of the special status of the rights infringed in such violations, the personal harm they suffered as a result of the violation and the abovementioned features of these proceedings. While international and domestic practices recognising these interests are not uniform as to the scope of such interests, most of them take the view that these interests encompass seeking clarification of the facts, the identification and prosecution of those responsible, and due compensation. As mentioned earlier and will be discussed further in Chapters III and IV, both the ECtHR and the IACtHR have explicitly recognised that victims have several legitimate interests in the criminal procedures for these violations. Furthermore, the UN Convention against Torture (hereinafter “the CAT”) recognises implicitly victims’ legitimate interests in criminal proceedings when providing for the victim’s right to have his or her case promptly and impartially examined by State authorities. Article 13 of the CAT providing for this right, read together with Articles 12 and 14 therein, makes clear that such a right covers criminal proceedings.55 Domestic practice in civil law jurisdictions and, to a lesser extent, in common law jurisdictions also lends support to this proposition. Besides the implicit recognition of these legitimate interests many of the civil law jurisdictions which will be studied in Chapter III have made by conferring on victims participatory rights in criminal procedures,56 domestic courts in some of these States have explicitly recognised various legitimate interests of crime victims in these procedures. The Colombian Constitutional Court has stated that the legitimate interests of victims in criminal procedures for serious human rights violations include seeking clarification of the facts, the identification and prosecution of those responsible, and due compensation.57 Likewise, the French Cour de Cassation has, since its decision in the case of Thirion-Place of 1906, held that the interests of crime victims participating in criminal proceedings as a partie civile encompass the clarification of the facts, as well as the identification and prosecution of those responsible.58 While most common law jurisdictions do not recognise victims’ participatory rights in criminal proceedings,59 increasingly domestic legislation and case law in these jurisdictions acknowledge several legitimate interests of crime victims in criminal investigations and proceedings. For example, the United Kingdom Code for Crown Prosecutors requires prosecutors to take into consideration the interests and views of victims in prosecutorial

55 See below Chapter III, Section I, Subsection A.ii. 56 See below Chapter III, Section III, Subsections B and C. 57 See e.g. Colombian Constitutional Court, Judgment C-228/02, 3 April 2002, Section VI, Subsections 6.3 and 6.4. 58 See e.g. French Cour de cassation, the case of Thirion-Place, Cass. crim., 8 December 1906, Recueil Dalloz, 1907.I.207, at 213. 59 See below Chapter III, Section III, Subsections A and C.

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decision-making at critical stages of the proceedings – e.g. when deciding whether to prosecute or not a case, or whether to accept a plea offered.60 The House of Lords has extended the duty to take into account the victim’s interests in decision-making to criminal judges.61 The recognition of these legitimate interests of victims in the criminal procedures for serious human rights violations is a major rationale for the recognition of the victim’s rights of access to and participation in these procedures, as these rights can be considered as necessary means to protect such legitimate interests. Additionally, victim access to and participation in criminal procedures pursuant to the rights identified in this monograph can improve victim perception of the fairness and legitimacy of these procedures. The theory of procedural justice provides the basis for this argument. According to this theory, procedural justice aspects, particularly people’s right ‘to state their case,’ confirm an individual’s membership and status in the group and thus play a critical role in people’s perception of the fairness of legal procedures.62 This theory is grounded in a number of studies that have demonstrated that people’s perception of the fairness and legitimacy of legal proceedings is determined not only by the outcome, but also by whether they are granted the opportunity to present their views. As mentioned earlier and will be discussed below, victim access to and participation in criminal procedures as understood in this work include the rights of victims to have an effective and impartial investigation carried out with reasonable expedition; to know the reasons for a public prosecutor’s decision not to prosecute any alleged such infringements; and to be present, to be heard, and to offer, examine and challenge evidence at the trial phase. The importance of procedural justice is reaffirmed by the wide international and domestic recognition of the rights to a fair hearing and to an effective remedy. I will discuss many empirical studies related to the theory of procedural justice below.63 Victim access to and participation in criminal procedures can also serve to affirm victims’ dignity, and their membership of and status in the concerned society. In order to understand this rationale, it is worth recalling the nature of serious human rights violations, the features of criminal procedures, and the context in which these infringements often take place. Although measures should be taken to minimise the negative effects the element of public storytelling may have on victims, the fact that pursuant to the rights identified in this monograph victims can have access to and actively participate in these official and public procedures aimed at the establishment of the truth and the identification of those responsible for these violations provide the basis for this argument.

60 See the Crown Prosecution Service (2004), The Code for Crown Prosecutors (London: the Crown Prosecution Service), paras. 5.12, 10.2, and 11.1. See below Chapter III, Section III, Subsection C. 61 See e.g. Attorney General’s Reference No. 3 of 1999 (2001) 2 AC 91, at 118 per Lord Steyn. 62 Tom R. Tyler (2006), Why People Obey the Law (Princeton: Princeton University Press), at 117, 137, 175–176. See more generally, Zappalà (2003), Human Rights in International Criminal Proceedings, at 232. 63 See below Chapter IV, Section III, Subsection E.

introduction19 B. Observance of the Principles that Inform the Enforcement of Criminal Law in Democratic States As mentioned earlier, access to and participation in criminal proceedings for crime victims generally have been opposed, especially in the common law tradition, based on the grounds that they would undermine the principles that inform the enforcement of criminal law in democratic States. Specifically, it has been maintained that access to and participation in criminal procedures for crime victims would violate the presumption of innocence of the defendant, obstruct the ability of decision-makers to make reasoned judgment, and undermine the public interest criteria informing decision-making in such procedures.64 This book will address these arguments against victim access to and participation in criminal proceedings, examining both international and domestic practices. Specifically, it will demonstrate that victim access to and participation in criminal procedures are consistent with these principles. While Chapter IV will deal with each of these arguments, it is worth outlining here my response. To begin with, it is worth noting that participatory rights in criminal procedures do not confer on crime victims decisionmaking or veto power in such procedures. Decision-making power in these procedures remains in the hands of public officials and continues to be informed by public interest considerations. In addition, and as various international instruments and consistent practice in many civil law jurisdictions make clear, the determination of the victim’s status for the purpose of his or her participation in criminal procedures is independent of the decision on the criminal responsibility of the defendant. Furthermore, victim access to and participation in criminal procedures complement, rather than undermine, the objective of criminal tribunals of determining in a fair and expeditious manner the responsibility of those brought before them. As discussed earlier, victims of these violations share the interest of criminal tribunals in the clarification of the events, and the identification and punishment of those responsible. As will be analysed in Chapter III, the practice of both the IACtHR and the ECtHR demonstrates that victim access to and participation in criminal procedures are consistent with the principles that govern the system of public prosecution of criminal offences in democratic States. Therefore, what is required is that victim access to and participation in criminal procedures be implemented in a manner such that all legitimate interests involved in these procedures are taken into account. In identifying victim rights in criminal procedures conducted in situations of isolated serious human rights violations, Chapter IV adopts an approach that takes into consideration both victims’ legitimate interests at key stages of these procedures and the principles governing the enforcement of criminal law in democratic States. Likewise, several measures adopted in common law jurisdictions in the last two decades intended to enhance the protection of victims’ interests in criminal proceedings are of considerable importance at the conceptual level, as they challenge various of the

64 See below Chapter IV, Section III.

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long-standing premises of the common law tradition in respect of the nature of these proceedings and, in particular, the position of the victim in such proceedings. Specifically, the conferral on criminal judges of the power to order an offender to pay compensation to the victim challenges the strict divide between crime and tort that traditionally existed in this tradition; and the recognition of the right of the victim to challenge some key decisions of public prosecutors in England has proven that this right does not undermine the work of the latter.65 C. Other Reasons Why the Current State of Customary International Law on This Subject is Inadequate By leaving the regulation of victim access to and participation in criminal proceedings to the domestic law of States or to international lawmakers on ad hoc basis, international law also endangers the guarantee of equal treatment, a basic element of the due process guarantees. Given the very different approaches common law and civil law jurisdictions usually take on this matter, victims are treated very differently according to the tradition the concerned State or international lawmaker adopts regarding criminal justice proceedings. As criminal proceedings for serious human rights violations concern the protection of fundamental rights, the unfettered discretion of States and of international lawmakers on this matter is considered inadequate. For example, when a State whose domestic law is based on the civil law tradition switches to a criminal justice system based on the common law tradition, it may consequently deny victims of serious human rights violations any right in criminal proceedings. This is of practical relevance as, for example, during the last decade many countries in Latin America have switched from civil law to common law criminal justice system models.66 International practice on this matter is not only inconsistent, but in most cases there is also a failure to explain why a certain view is taken. Some human rights treaty monitoring bodies use very short formulas that provide no reasons for the view taken on this subject. For instance, in nearly all cases the UN Human Rights Committee has rejected claims by victims of serious human rights violations that the right to a fair hearing, enshrined in Article 14, paragraph 1, of the ICCPR, has been violated in criminal investigations into these infringements, merely stating that “the ICCPR does not provide a right for individuals to require that the State criminally prosecute another person.”67 The documents related to the negotiation and adoption of the statutes of most international and hybrid criminal tribunals also fail to explain why a given approach is adopted.68

65 See below Chapter III, Section III, Subsections A and C. 66 See generally, Máximo Langer (2007), “Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery,” 55 American Journal of Comparative Law 617, at 618–619; Julio B.J. Maier, Kai Ambos and Jan Woischnik (eds.) (2000), Las reformas procesales penales en América Latina 509 (Buenos Aires: Ad-Hoc). 67 See e.g. UN HR Committee, S.E. v. Argentina, Communication No. 275/1988, Views of 26 March 1990, para. 5.5. See below Chapter III, Section I, Subsection A.i. 68 See below Chapter V, Section I.

introduction21 D. Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Serious Human Rights Violations As mentioned earlier, victim access to and participation in criminal procedures conducted in situations of mass serious human rights violations involve some distinct issues, particularly the large number of victims commonly involved in these situations. Additional arguments against victim access to and participation in criminal proceedings carried out in these situations have therefore been put forth. The judges of the ad hoc international criminal tribunals and some scholars oppose victim access to and participation in criminal procedures conducted in these situations on the grounds that they would considerably and unduly increase the complexity and length of these procedures, because of the large number of victims usually involved in such situations. As mentioned earlier, the fact that the provisions of the statutes of international and hybrid criminal tribunals regarding the position of the victim in the proceedings are inconsistent makes things more difficult. While recognising that the large number of victims typically involved in situations of mass atrocity poses difficulties for the implementation of victim access to and participation in criminal procedures conducted in these situations, I submit that victim access and participation can be reconciled with the requirement that these procedures be conducted expeditiously, and the other legal and public interest considerations involved in such procedures. In order to do so, in identifying victim rights in criminal procedures conducted in these situations, I suggest an approach that, while fulfilling the core of victims’ need for access to and participation in criminal proceedings, pays due consideration to the limited human and financial resources available in such situations and the requirement that these proceedings be conducted expeditiously. I also put forward a series of rationales for victim access and participation specifically applicable to criminal proceedings conducted in situations of mass atrocity. I argue that victim access to and participation in criminal proceedings carried out in these situations can strengthen the ability of these proceedings to achieve several of their purported objectives, particularly expressivist ones. They do so by promoting a sense of involvement in, and ownership of, the proceedings by directly victimised populations. Such access and participation ease entry to, and give members of these populations a voice in, these procedures. In addition, victim access to and participation in criminal procedures conducted in these situations can help to ensure the observance by prosecutors of some minimum principles in the exercise of their discretion regarding the commencement and discontinuance of investigations and prosecutions, and the charges brought against a defendant in this type of situation. In order to provide the basis for these rationales, I draw on international human rights law, comparative criminal law, and the theory, law and practice of international and hybrid criminal courts – all but one dealing with situations of mass atrocity.69 69 The exception being the Special Tribunal for Lebanon, which was established by an agreement between the United Nations and the Lebanese Republic pursuant to Resolution 1664 (2006) of the UN Security Council. Article 1 of the Special Tribunal’s Statute defines its jurisdiction as follows: “The Special Tribunal shall have jurisdiction over persons responsible for the attack of

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IV. Assessing the Significance of Victim Access to and Participation in Criminal Procedures Another objective of this work is to assess the significance of victim access to and participation in criminal procedures for addressing the needs of victims of serious human rights violations and of directly concerned societies. In order to do so, in addition to analysing the contribution that such access and participation make to countering the impunity that often surrounds these infringements and to reaffirming the importance that the concerned society attaches to the infringed rights and, ultimately, to the reaffirmation of the principle of the rule of law, I examine the function of criminal procedures, the nature of serious human rights violations and many empirical studies identifying the needs of victims of these violations and of directly affected societies in several mass atrocity situations around the world. Based on my analysis of these matters, while maintaining that victim access to and participation in criminal procedures are important as they contribute to the expressivist goals of these procedures, I recognise that their ability to satisfy the needs of victims of these infringements, particularly in situations of mass atrocity, is limited. As will be discussed below, these procedures focus on the determination of the individual responsibility of particular perpetrators, while victims of these violations and directly concerned societies often have many needs beyond criminal justice.70 Furthermore, and specifically regarding criminal proceedings conducted in situations of mass atrocity, the requirement for victim participation at the trial phase that there be a link between the harm suffered by the victim and the charges brought against an accused, together with the limited scope of prosecution initiatives in these situations, makes clear that few from the pool of victims in any of these situations will be allowed to participate at this stage of criminal proceedings.71 Therefore, while stressing the importance of victim access to and participation in criminal procedures, this work acknowledges that, even if such access and participation are permitted, various additional measures are required to fulfil the needs of victims and of directly concerned societies, particularly in situations of mass atrocity.72 Lastly, and based on the findings of many empirical studies carried out in a number of mass atrocity situations around the world identifying which needs are usually ranked high by victims of these violations and other members of directly concerned communities, this work proposes a series of measures to supplement prosecutions in these situations.      14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. If the Tribunal finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks. This connection includes but is not limited to a combination of the following elements: criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.” See Statute of the Special Tribunal for Lebanon, attached to UN Security Council, Res. 1757, 30 May 2007, UN Doc. S/RES/1757, at 12. 70 See below Chapter II, Section II, Subsection B.v. 71 See below Chapter V. 72 See below Chapter IV, Section V; and Chapter V, Section V.

chapter one

CONCEPTUAL FRAMEWORK

While concepts such as ‘victim’ and ‘serious human rights violations’ have for a long time been part of the human rights vocabulary, it is important to provide a definition of them as historically there has been a lack of uniformity in the terminology used by the various authorities analysed in this monograph. This chapter therefore defines these terms. Furthermore, it analyses the legal status of some of the most commonly used sources throughout this work, namely the decisions of human rights treaty supervisory bodies in individual cases. I. The Concept of Serious Human Rights Violations The term ‘serious human rights violations’ as used throughout this study refers to the violation of those rights considered as essential to the human person and to human dignity. As will be analysed in the next chapter, in order to identify these rights international human rights treaty monitoring bodies look at the values these rights protect and the absence of provisions allowing for their limitation or derogation.1 Accordingly, the term ‘serious human rights violations’ as used in this monograph and reflected in the practice of several human rights treaty monitoring bodies includes summary or arbitrary executions; torture and cruel, inhuman or degrading treatment or punishment; slavery and forced labour; enforced disappearance; and arbitrary and prolonged detention.2 Clearly, this list is not exhaustive. The term ‘serious human rights violations’ as used throughout this work is a synonym of the concept of ‘gross human rights violations’, which is employed in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereinafter “the Basic Principles and Guidelines on the Right to a Remedy and 1 See below Chapter II, Section I, Subsection A.i. 2 See below Chapter II, Section I, Subsection A.i. For a scholar who uses the term ‘serious human rights violations’ in a similar fashion with respect to States’ obligations to investigate and prosecute these infringements, see Anja Seibert-Fohr (2009), Prosecuting Serious Human Rights Violations (Oxford: Oxford University Press).

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Reparation for Victims” or “the Principles”).3 Paragraph 6 of the Preamble of this international instrument states that gross human rights violations by “their very grave nature, constitute an affront to human dignity.”4 The French text of this paragraph confirms this interpretation.5 The drafting history of this international instrument also provides support to this interpretation. The Report of the Chairperson-Rapporteur, Mr. Alejandro Salinas, on the second consultative meeting held on 20, 21 and 23 October 2003 in Geneva regarding these Principles states that the concept of ‘gross violations of human rights’ refers to “those violations which involve the protection of the right to life, physical integrity and other matters essential to the human person and to human dignity.”6 Similarly, in the definition of ‘gross violations of international law’ proposed by the Chairperson-Rapporteur and the independent experts on this subject following these consultations, the type of right at stake was the criterion for identifying this kind of violation.7 The UN Human Rights Committee has also adopted this definition of the term ‘gross human rights violations’. In its Comments on Argentina’s second periodic report under Article 40 of the International Covenant on Civil and Political Rights (hereinafter “the ICCPR”), the Committee expressed concern regarding the fact that amnesties and 3 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly, Res. 60/147, 16 December 2005, UN Doc. A/RES/60/147 (hereinafter “the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims”). 4 See id. See also e.g. M. Cherif Bassiouni (2010), “Victims’ Rights,” in M. Cherif Bassiouni (ed.), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and PostConflict Justice (Antwerpen: Intersentia), Vol. I, at 625; Redress (2006), Implementing Victims’ Rights: A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation (London: The Redress Trust), at 13. 5 The French text of this preambular paragraph reads as follows: “Affirmant que les Principes fondamentaux et directives énoncés ci-après visent les violations flagrantes du droit international des droits de l’homme et les violations graves du droit international humanitaire, qui, en raison de leur gravité, constituent un affront à la dignité humaine.” 6 Chairperson-Rapporteur, Ambassador Alejandro Salinas (Chile), “Report of the Second Con­sultative Meeting on the Basic Principles and Guidelines on the Right to a Remedy and Rep­aration for Victims of Violations of International Human Rights and Humanitarian Law (Geneva, 20, 21 and 23 October)”, in the UN High Commissioner for Human Rights, The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law: Note by the High Commissioner for Human Rights, 10 November 2003, UN Doc. E/CN.4/2004/57, Annex, at 26. 7 Id. at. 29. The definition of ‘gross violations of international law’ included in this document reads as follows: “For purposes of this document gross violations of international law means unlawful deprivation of the right to life, torture, or other cruel, inhuman treatment or punishment, enforced disappearance, slavery, slave trade and related practices, deprivation of the rights of persons before the law and similar serious violations of fundamental rights and freedoms and norms guaranteed under applicable international law.” See also Commission on Human Rights, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report Submitted by Mr. Theo van Boven, Special Rapporteur, 2 July 1993, UN Doc. E/CN.4/Sub.2/1993/8, at 7 (hereinafter “1993 van Boven’s Draft, UN Doc. E/CN.4/Sub.2/1993/8”).

conceptual framework25 pardons have been applied in cases where there existed substantial evidence of gross human rights violations, such as unlawful disappearances and detention of persons.8 I use the term ‘serious human rights violations’ to refer to the violations covered by this monograph because, despite the above authorities, several commentators still equate the concept of ‘gross human rights violations’ with those infringements committed on a massive scale. This misunderstanding stems from the fact that in the past, the term ‘gross human rights violations’ was understood in two senses: first, it was used to describe a specific type of situation involving human rights violations – i.e. those involving violations on a massive scale and/or as a result of a systematic practice, while the second understanding referred to the violation of a particular category of human rights, i.e. those considered as essential to the human person.9 To avoid any misunderstanding with respect to the scope of this work, I use the term ‘serious human rights violations’. II. The Concept of Victim Although there is no single definition of the concept of ‘victim’ at the international level,10 the most widely accepted is that provided for in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (hereinafter “the UN Declaration for Victims of Crime”),11 which reads as follows: Victims means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. … The term ‘victim’ also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.12

The substantive scope of this provision is supplemented by paragraph 18 of this Declaration, which includes as victims: 8 See e.g. Human Rights Committee, Concluding Observations: Argentina, 1995, UN Doc. CCPR/C/79/Add.46, para. 10. As regards reports of non-governmental organisations, see Redress (2006), Implementing Victims’ Rights: A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation, at 13. For a scholarly account, see M. Cherif Bassiouni (2006), “International Recognition of Victims’ Rights,” 6 Human Rights Law Review 203, at 251. 9 See M. Cherif Bassiouni, Report of the Independent Expert on the Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, Mr. M. Cherif Bassiouni, Submitted Pursuant to Commission on Human Rights Resolution 1998/43, 8 February 1999, UN Doc. E/CN.4/1999/65, paras. 72 and 85 (hereinafter “the 1999 Bassiouni Report, UN Doc. E/CN.4/1999/65”). For a scholarly account, see Dinah Shelton (2005), Remedies in International Human Rights Law (Oxford: Oxford University Press), at 151, 389. 10 See e.g. Rules of Procedure and Evidence of the International Criminal Court, Rule 85, 9 September 2002, Doc. ICC-ASP/1/3 (hereinafter “the ICC Rules”); Rules of the International Criminal Tribunal for the Former Yugoslavia, Rev. 46, Rule 2(A), 20 October 2011, IT/32/Rev. 46. 11 The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN General Assembly, Res. 40/34, 29 November 1985, UN Doc. A/RES/40/34. 12 Id. paras. 1–2.

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chapter one [P]ersons who have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.

The authority of this definition was recognised during the Preparatory Commission of the International Criminal Court, where a large majority of delegations were in favour of adopting a definition of victim based on the UN Declaration for Victims of Crime.13 More importantly, the concept of victim included in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of 2005 reproduces almost exactly the wording used in the UN Declaration for Victims of Crime, the only difference being the substantive scope of the former, which refers to both “gross violations of international human rights law and serious violations of international humanitarian law.”14 The present study adopts the following working definition of victim: Victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering … or substantial impairment of their fundamental rights, through acts or omissions that constitute [serious] violations of international human rights law …. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.15

This definition is based on that included in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of 2005 and covers both direct and indirect victims. Direct victims are those who have suffered ‘directly’ from a serious human rights violation, while indirect victims are “the immediate family or dependants of the direct victim.” The inclusion of these two types of victims is warranted as they have been recognised by various international legal instruments,16 and the IACtHR and the ECtHR have extended the rights they have identified in criminal proceedings to both kinds of victim.17 Unlike the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, my working definition excludes those who suffered only economic loss. On this basis and because this study limits itself to analysing serious human rights violations, I also exclude legal persons from my definition of victim. This view is consistent with the

13 Silvia A. Fernandéz de Gurmendi (2001), “Definition of Victims and General Principle,” in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 427 (Ardsley, NY: Transnational Publishers), at 430- 431. 14 See the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 8. 15 Id. 16 See e.g. UN Declaration for Victims of Crime, paras. 1–2; the ICC Rules, Rule 85, and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 8. For scholars in favour of the inclusion of these two groups within the concept of victim under international law, see Heidy Rombouts, Pietro Sardaro and Stef Vandeginste (2005), “The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights,” in K. De Feyter, S. Parmentier, M. Bossuyt and P. Lemmens (eds.), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations 345 (Antwerpen: Intersentia), at 467. 17 See below Chapter III, Section II, Subsections A and B.

conceptual framework27 approach of most international instruments, which include only human beings within the definition of victim.18 Additionally, while victims of serious human rights violations do not constitute a uniform group, they share some common characteristics. Victims of these infringements can differ because of personal or cultural differences. Regarding the latter, it should be acknowledged that differences in cultural traditions and values among victims can have some effect on the perceptions and needs of victims. Notwithstanding this, many theoretical and empirical studies conducted in nearly all the regions of the world analysed in this work indicate that victims of these violations share some common features: to begin with, they want to be treated with due respect by criminal justice system actors.19 They also want information about criminal proceedings and major decisions taken therein.20 Additionally, they want to present facts they know to ensure the right outcome of criminal procedures and to learn facts of which they are not aware.21 More generally, they are interested in the uncovering of the truth through official mechanisms.22 Furthermore, they want their views and needs to be taken into consideration by decision-makers in criminal procedures.23 I will elaborate on these common features of victims of these violations throughout this monograph. I will also address the issues relating to large-scale victimisation arising out of an armed conflict, civil strife or repression in Chapters II, IV and V. III. The Legal Status of the Decisions of Human Rights Treaty Monitoring Bodies in Individual Cases Among the various authorities analysed in this study, the decisions of human rights treaty monitoring bodies in individual cases are one of the most widely used. It is thus important to discuss the legal status of these decisions before embarking on the analysis of their content. A distinction should be made in this respect between the decisions in individ­ ual  cases of the European and the Inter-American courts of human rights on the one hand, and those of the UN Human Rights Committee and other United Nations human rights treaty monitoring bodies empowered to examine individual complaints, on

18 See e.g. UN Declaration for Victims of Crime, paras. 1–2; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 8. See also Chairperson-Rapporteur, Ambassador Alejandro Salinas (Chile), Report of the Consultative Meeting on the Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, 27 December 2002, UN Doc. E/ CN.4/2003/63, at 26, Annex I, para. 77. An exception to this trend is Rule 85 of the ICC Rules, according to which organisations or institutions may be considered as victims when they have sustained direct harm to any of their property used for humanitarian purposes. See Fernandéz de Gurmendi (2001), “Definition of Victims and General Principle,” at 433. 19 See below Chapter IV, Section III, Subsection E. 20 See above general introduction, Section I, Subsection A. 21 See below Chapter IV, Section II, Subsection A.i. 22 See id. and Chapter IV, Section III, Subsection E. 23 See below Chapter IV, Section III, Subsection E.

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the other.24 This distinction is justified because, while it is clear that the decisions of the former two are binding pursuant to their constitutive instruments,25 the legal status of the decisions of the latter is less clear. The [First] Optional Protocol to the ICCPR (hereinafter “the [First] Optional Protocol”)26 and the UN Convention against Torture use the term ‘views’ when referring to the output of the Human Rights Committee and the Committee against Torture regarding individual complaints.27 The question arises, therefore, as to the exact meaning of the term ‘views’ and, thus, regarding the legal status of the decisions of these committees on individual complaints. The objective of the following subsection is, therefore, to deal with this matter. With this aim, it first analyses the practice of the UN Human Rights Committee on the subject. Subsequently, it examines the approaches taken by scholars to this topic. Lastly, it presents the approach adopted in this work. It should be clarified that although the discussion below focuses on the legal status of the decisions of the UN Human Rights Committee on individual complaints, similar considerations apply as regards the decisions of other United Nations human rights treaty monitoring bodies empowered to examine individual complaints. A. Practice of the UN Human Rights Committee In its early practice, the UN Human Rights Committee was of the opinion that its decisions on the merits of an individual complaint were non-binding recommendations. For example, in its 1988 Annual Report, the UN Human Rights Committee referred in these terms to such decisions, noting the word ‘views’ used in Article 5, paragraph 4, of the [First] Optional Protocol.28 This approach was reiterated in the introduction of 24 As of December 2011, in addition to the HR Committee, there are other five United Nations human rights treaty monitoring bodies which have been empowered to examine individual complaints: the Committee against Torture, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Com­mittee on the Rights of Persons with Disabilities, and the Committee on Migrant Workers. For more information, see Office of the UN High Commissioner for Human Rights, Human Rights Bodies – Complaints Procedures, available at http://www2.ohchr.org/english/bodies/ petitions/index.htm#communcications. Accessed on 12 December 2011. 25 American Convention on Human Rights, Arts. 67–68, 22 November 1969, 1144 U.N.T.S. 123 (entered into force on 18 July 1978) (hereinafter “ACHR”). European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 46, 4 November 1950, 213 U.N.T.S. 222 (entered into force on 3 September 1953, as amended by Protocols Nos. 3, 5, 8, 11 and 14, which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, 1 November 1998 and 1 June 2010 respectively) (hereinafter “ECHR”). 26 Optional Protocol to the International Covenant on Civil and Political Rights, Art. 1, 16 December 1966, 999 U.N.T.S. 302 (entered into force on 23 March 1976) (hereinafter “the [First] Optional Pro­tocol to the ICCPR”). I put the word ‘first’ in square brackets because the official designation of this treaty does not include it, but there is a need to distinguish this treaty from the Second Optional Pro­tocol to the ICCPR, adopted by the UN General Assembly through Res. 44/128 of 15 December 1989. 27 See the [First] Optional Protocol to the ICCPR, Art. 5, para. 4; and the UN Convention against Torture, Art. 22, para. 7. 28 HR Committee, Report of the Human Rights Committee, 28 September 1988, UN Doc. No. A/43/40, at 151, para. 645.

conceptual framework29 Volume II of the publication of the UN Human Rights Committee entitled Selected Decisions of the Human Rights Committee and published in 1991.29 However, in its subsequent practice the UN Human Rights Committee abandoned this approach and has sought to strengthen the binding nature of its decisions on individual complaints. In its General Comment No. 33, the Committee puts forth its position and arguments on this question, stating as follows: 11. While the function of the Human Rights Committee in considering individual communications is not, as such, that of a judicial body, the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions. … 13. The views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument. These views derive their character, and the importance which attaches to them, from the integral role of the Committee under both the Covenant and the Optional Protocol. 14. Under article 2, paragraph 3 of the Covenant, each State party undertakes “to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by a person acting in an official capacity.” … 15. The character of the views of the Committee is further determined by the obligation of States parties to act in good faith, both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself.30

While I will discuss in the next two subsections each of the arguments put forward by the UN Human Rights Committee, it is worth noting here that, according to this Committee, the duty of States Parties to provide an effective remedy under Article 2, paragraph 3, of the ICCPR needs to be interpreted together with its power under the [First] Optional Protocol to determine whether there has been a violation of the ICCPR or not, and States Parties’ obligation ‘to ensure’ the rights recognised in the ICCPR under Article 2, paragraph 1, thereof. In the light of these arguments, the UN Human Rights Committee has, since its 1994 decision in Koné v. Senegal, added a paragraph to all decisions in which a violation of the ICCPR has been found requesting the State Party concerned to provide it with information about the measures taken to give effect to its views.31

29 Nations Unies, Sélection de décisions du Comité des Droits de L’Homme Prises en Vertu du Protocol Facultatif, Vol. II, 1991, UN Doc. CCPR/C/OP/2, at 2. 30 UN HR Committee, General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, 5 November 2008, UN Doc. CCPR/C/GC/33, paras. 11, 13, 14, 15. 31 UN HR Committee, Koné v. Senegal, Communication No. 386/1989, Views of 21 October 1994. See also UN HR Committee, General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, para. 14. See also Markus G. Schmidt (2000), “Follow-up Mechanisms Before UN Human Rights Treaty Bodies and the UN Mechanisms Beyond,” in Anne F. Bayefsky (ed.), The UN Human Rights Treaty System in the 21st Century 233 (The Hague: Kluwer Law International), at 240.

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The follow-up activities undertaken by the UN Human Rights Committee and, in particular, the establishment in July 1990 of the Special Rapporteur on Follow-Up on Views – who seeks information from States Parties on this matter and whose findings are pub­lished in the Annual Report of the Committee – also appear to be aimed at strengthening the degree of authority of the decisions of the Committee on individual complaints.32 Additionally, the UN Human Rights Committee has, in certain cases, gone as far as to expressly maintain that its decisions on individual complaints have full legal binding force for States Parties to the [First] Optional Protocol. According to the Committee, the support for this position is twofold: the obligation of States Parties to the ICCPR to comply with the provisions of this treaty; and the competence of the Committee, pursuant to the [First] Optional Protocol, to receive and consider individual complaints. In Bradshaw v. Barbados, the Committee held as follows in this respect: By ratifying the Covenant and the Optional Protocol, Barbados has undertaken to fulfil its obligations thereunder and has recognized the Committee’s competence to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by the State party of any of the rights set forth in the Covenant. While the Covenant is not part of the domestic law of Barbados which can be applied directly by the courts, the State party has nevertheless accepted the legal obligation to make the provisions of the Covenant effective. To this extent, it is an obligation for the State party to adopt appropriate measures to give legal effect to the views of the Committee as to the interpretation and application of the Covenant in particular cases arising under the Optional Protocol.33

The text of General Comment No. 33 of the UN Human Rights Committee suggests that this is no longer the position of the Committee. In sum, the current approach of the UN Human Rights Committee is that its decisions on the merits of an individual complaint are more than mere recommendations and, thus, States Parties to the Optional Protocol must take concrete measures to give effect to them.34 B. Approaches by Scholars Two main approaches exist among scholars to the legal status of the decisions of the UN Human Rights Committee on individual complaints. On the one hand, a minority of legal scholars submit that the decisions of the Committee on individual complaints are mere recommendations and thus lack of legal value under international law.35 On the other 32 Kirsten A. Young (2003), The Law and Process of the U.N. Human Rights Committee (Ardsley, New York: Transnational Publishers), at 180. See also P.R. Ghandhi (1998), The Human Rights Committee and the Right of Individual Communication: Law and Practice (Aldershot: Ashgate Dartmouth), at 353. 33 UN HR Committee, Bradshaw v. Barbados, Communication No. 489/1992, Views of 19 July 1994, para. 5.3. See also UN HR Committee, Roberts v. Barbados, Communication No. 504/1992, Views of 10 August 1994, para. 6.3; UN HR Committee, Pinto v. Trinidad and Tobago, Communication No. 512/1992, Views of 16 July 1996, para. 12. 34 See UN HR Committee, General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, paras. 11, 13, 15 and, particularly, 14. 35 Nisuke Ando (2002), “The Follow-up Procedure of the Human Rights Committee’s Views,” in Nisuke Ando et al. (eds.), Liber amicorum Judge Shigeru Oda 1437 (The Hague: Kluwer Law International), at 1437.

conceptual framework31 hand, most authors maintain that although the decisions of the Committee on individual complaints are not legally binding, they do have some normative value and a high degree of authority.36 Three main arguments have been put forward for supporting the view that the decisions of the UN Human Rights Committee on individual complaints are mere recommendations: first, the absence of a provision in the [First] Optional Protocol providing for the binding nature of these decisions; second, the use of the term ‘views’ in Article 5, paragraph 4, of the [First] Optional Protocol; and, last, the fact that the Committee is a nonjudicial body.37 In contrast, the view according to which the decisions of the UN Human Rights Committee on individual complaints have normative value is generally grounded on the proposition accepted by the International Court of Justice (hereinafter “the ICJ”) that certain acts of international bodies, even if they are not binding, may have normative value. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ stated that “[UN] General Assembly resolutions, even if they are not binding, may sometimes have normative value.”38 According to the ICJ, these resolutions can, among others, provide evidence for establishing the existence of a rule or the emergence of an opinio juris. Accordingly, scholars who take the view that the decisions of the UN Human Rights Committee on individual complaints have normative value maintain that there are several categories in between the poles of legally binding and non-legally binding norms in international law.39 More specifically, the following arguments have been put forward for supporting this view: to begin with, it has been maintained that the UN Human Rights Committee is the authoritative interpreter of the ICCPR,40 as it has exclusively been empowered by States 36 See e.g. Thomas Buergenthal (2001), “The U.N. Human Rights Committee,” 5 Max Planck Yearbook of United Nations Law 341, at 397; Bruno Simma (2005), “Commissions and Treaty Bodies of the UN System,” in Rüdiger Wolfrum and Volker Röben (eds.), Developments of International Law in Treaty Making 581 (Berlin: Springer), at 582, 585; Christian Tomuschat (2008), Human Rights: Between Idealism and Realism (Oxford: Oxford University Press, 2nd edn), at 220–221; Eckart Klein (2005), “Impact of Treaty Bodies on the International Legal Order: Comment,” in Rüdiger Wolfrum and Volker Röben (eds.), Developments of International Law in Treaty Making (Berlin: Springer), at 571–579. 37 Young (2003), The Law and Process of the U.N. Human Rights Committee, at 181. See also Fausto Pocar (1991), “La valeur juridique des constatations du Comité des droits de l’homme,” 1991– 1992 Canadian Human Rights Yearbook 129, at 129 (mentioning these arguments, but adopting the second approach); Thomas Buergenthal (2001), “The U.N. Human Rights Committee,” at 397 (noting these arguments, but endorsing the second approach). 38 See the ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 1996 I.C.J. Reports 226, para. 70. For an earlier elaboration on the concept of normative value in an ICJ decision, see Separate opinion of Judge Lauterpacht in the ICJ, South-West Africa-Voting Procedure, Advisory Opinion of 7 June 1955, 1955 I.C.J. Reports 67, at 118 (although a recommendation of the General Assembly addressed to the Members of the UN “is not legally binding upon them in the sense that full effect must be given to them,” it creates “some legal obligation” and hence, the State concerned “is bound to give it due consideration in good faith”). 39 Simma (2005), “Commissions and Treaty Bodies of the UN System,” at 585. 40 International Law Association (2004), “Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies”, 71 International Law Association Report Conference 621, Part II: International Human Rights Law and Practice (London: International Law Association),

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Parties to the [First] Optional Protocol for examining individual complaints to determine whether or not a State has violated a right enshrined in the ICCPR.41 States Parties’ obligation under Article 2, paragraph 3, of the ICCPR to provide an effective remedy to alleged victims of ICCPR’s rights has also been seen as providing support for this view.42 In this regard, it has been maintained that the finding of a violation by the UN Human Rights Committee triggers States Parties’ obligation under this Article.43 The principle of good faith has been another legal basis for this view. In this respect, it has been maintained that this principle, together with the fact that the ICCPR is in itself binding on States Parties, requires States Parties to the [First] Optional Protocol to confer significant weight to the decisions of the Committee on individual complaints.44 In addition, it has been argued that States Parties to the [First] Optional Protocol have the implied obligation to cooperate with the UN Human Rights Committee. This obligation would extend to the observance of the decisions of the Committee on individual complaints.45 Furthermore, it has been maintained that the decisions of the Committee have some normative value because they are based on rules of international law.46 The last legal basis

at 691. See also Martin Scheinin (2004), “The Human Rights Committee’s Pronouncements on the Right to an Effective Remedy: an Illustration of the Legal Nature of the Committee’s Work under the Optional Protocol,” in Nisuke Ando (ed.), Towards Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee 101 (Leiden: Martinus Nijhoff Publishers), at 105–106; Scott Davidson, “Introduction,” in Alex Conte, Scott Davidson, and Richard Burchill (eds.) (2004), Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee 1 (Aldershot: Ashgate), at 1, 6; Office of the UN High Commissioner for Human Rights (2005), Civil and Political Rights: The Human Rights Committee, Fact Sheet No. 15 (rev. 1) (Geneva: United Nations), at 30. 41 See e.g. Buergenthal (2001), “The U.N. Human Rights Committee,” at 397; Simma (2005), “Commissions and Treaty Bodies of the UN System,” at 582, 585; Tomuschat (2008), Human Rights: Between Idealism and Realism, at 220. 42 Buergenthal (2001), “The U.N. Human Rights Committee,” at 397. See also Scheinin (2004), “The Human Rights Committee’s Pronouncements on the Right to an Effective Remedy: an Illustration of the Legal Nature of the Committee’s Work under the Optional Protocol,” at 105–106. 43 Pocar (1991), “La valeur juridique des constatations du Comité des droits de l’homme,” at 130. 44 Simma (2005), “Commissions and Treaty Bodies of the UN System,” at 585. See also Sarah Joseph, Katie Mitchell, Linda Gyorki and Carin Benninger-Budel (2006), Seeking Remedies for Torture Victims: a Handbook on the Individual Complaints Procedures of the UN Treaty Bodies, World Organisation against Torture handbook series, vol. 4 (Geneva: World Organisation Against Torture), at 93; Office of the UN High Commissioner for Human Rights (2005), Civil and Political Rights: The Human Rights Committee, at 30; Scheinin (2004), “The Human Rights Com­ mittee’s Pronouncements on the Right to an Effective Remedy: an Illustration of the Legal Nature of the Committee’s Work under the Optional Protocol,” at 105–106. 45 Pocar (1991), “La valeur juridique des constatations du Comité des droits de l’homme,” at 130. 46 Abdelfattah Amor (2004), “Le Comité des droits de l’homme des Nations-Unies: aux confins d’une juridiction internationale des droits de l’homme,” in Nisuke Ando (ed.), Towards Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee 41 (Leiden: Martinus Nijhoff Publishers), at 56–57.

conceptual framework33 for this view is Article 4, paragraph 2, of the [First] Optional Protocol,47 which provides as follows: Within six months [of an individual complaint had been brought by the Committee to the attention of a State party, this State] shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

Alongside the latter approach, it has been argued that the decisions of the UN Human Rights Committee on individual complaints have a high degree of authority because of the diverse composition and independence of this international body.48 On this basis, some scholars maintain that the Committee’s interpretation of the ICCPR is likely to be more objective than that made by individual States.49 C. Approach Adopted in This Work While recognising that the decisions of the UN Human Rights Committee on individual complaints are not per se legally binding, I share the view that these decisions have some normative value and that they are thus an important source for determining the content and scope of the rights enshrined in the ICCPR. I find the following two arguments particularly persuasive: first, as maintained by several scholars and accepted even by certain States, the UN Human Rights Committee is the only body to which States Parties to the [First] Optional Protocol have conferred the power to examine individual complaints to determine whether a State has violated or not a right enshrined in the ICCPR.50 Additionally, a systematic and teleological interpretation of the [First] Optional Protocol, together with the principle of good faith, demands States Parties to this treaty to give significant weight to the decisions of the Committee on individual complaints. Furthermore, many international and national courts, as well as domestic govern­ mental institutions of a non-judicial nature have recognised the normative value of the decisions of the UN treaty monitoring bodies on individual complaints. The Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies conducted by the International Law Association (hereinafter “the ILA’s Report”) found that international and regional courts, such as the ICJ, the International Criminal Tribunal for

47 Pocar (1991), “La valeur juridique des constatations du Comité des droits de l’homme,” at 131. See also Elizabeth Evatt (2002), “The Impact of International Human Rights on Domestic Law?” in Grant Huscroft and Paul Rishworth (eds.), Litigating Rights: Perspectives from Domestic and International Law 281 (Oxford: Hart Publishing), at 300. 48 Manfred Nowak (2005), U.N. Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel: Kehl), at 894. See also Evatt (2002), “The Impact of International Human Rights on Domestic Law?” at 300. 49 See e.g. Simma (2005), “Commissions and Treaty Bodies of the UN System,” at 582, 585; Nowak (2005), U.N. Covenant on Civil and Political Rights: CCPR Commentary, at 894. 50 International Law Association (2004), “Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies,” at 627 (citing Norwegian Ministry of Foreign Affairs, Report No. 21 to the Storting (1999–2000): Focus on Human Dignity - A Plan of Action for Human Rights, Chapter 4, Box 4.2).

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the former Yugoslavia, the ECtHR and the IACtHR, have made reference to the decisions of UN treaty monitoring bodies empowered to examine individual complaints.51 Additionally, according to the same report, many domestic courts have recognised that “the [UN] treaty bodies’ interpretation deserves to be given considerable weight in determining the meaning of a relevant right and the existence of a violation.”52 Equally, the ILA’s Report notes the use of UN human rights treaty monitoring bodies’ output by domestic governmental institutions of a non-judicial nature in various countries.53 In addition, several countries have introduced legislation and constitutional amendments aimed at complying with the decisions of the UN human rights treaty monitoring bodies on individual complaints.54 Other States have even gone as far as to adopt a formal procedure by legislation for giving full effect to UN human rights treaty supervisory bodies’ decisions in individual cases where a remedy cannot be provided by executive or administrative means.55 It is also worth stressing that despite some common criticisms of the proceedings regarding individual complaints before the UN human rights treaty monitoring bodies,56 51 International Law Association (2004), “Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies,” at 662–675. But see European Court of Justice, Grant v. South-West Trains Ltd., Communication 249/1996, Judgment of 17 February 1998, para. 46. 52 International Law Association (2004), “Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies,” at 683–684. See also Raad van Beroep te Rotterdam (Council of Appeal of Rotterdam), 1984/447, 11 June 1987, (1987) 12–6 NJCM-Bulletin, at 470, cited in Yvonne Klerk (2000), “The Character of the Views of the Human Rights Committee,” in Fons Coomans et al (eds), Rendering Justice to the Vulnerable: Liber Amicorum in Honour of Theo van Boven 149 (The Hague: Kluwer Law International), at 150–151. 53 International Law Association (2004), “Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies,” at 675–683. 54 Id. at 635-637 (citing as examples Spain and Hungary). See also Gudmundur Alfredsson (2005), “Human Rights Commissions and Treaty Bodies in the UN-system,” in Rüdiger Wolfrum and Volker Röben (eds.), Developments of International Law in Treaty Making 559 (Berlin: Springer), at 566 (stating that HR Committee’s views in the Lovelace case (UN HR Committee, Lovelace v. Canada, Communication No. 024/1977, Views of 30 July 1981) “prompted the Canadian Government to amend the Indian Act in 1985”). 55 International Law Association (2004), “Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies,” at 632 (citing e.g. the case of Colombia, Law No. 288 of 1996; and the Czech Republic, Act No. 517/2002). See also Schmidt (2000), “Follow-up Mechanisms Before UN Human Rights Treaty Bodies and the UN Mechanisms Beyond,” at 233– 249 (referring to Peruvian Law No. 23.506 (1985), Arts. 39 and 40, pursuant to which Peru undertakes to cooperate with the HR Committee and to implement its recommendations). For the importance of this type of legislation, see Alfred De Zayas (2001), “Petitioning the United Nations,” 95 American Society of International Law Proceedings 84, at 85. 56 With respect to the UN Human Rights Committee, these common criticisms are the following. First, the facts that membership of the Committee is only part-time and that the election of the Committee’s members is subject to policy considerations. Second, the insufficient human resources available to the Committee for dealing with individual complaints. Lastly, the fact that the decisions of the Committee are adopted only on the basis of the parties’ written submissions and thus there is not hearing of evidence. See e.g. Don MacKay (1999), “The UN Covenants and the Human Rights Committee,” 29.1 Victoria University of Wellington Law Review 11, at 16–17; Klerk (2000), “The Character of the Views of the Human Rights Committee,” at 157–158.

conceptual framework35 these bodies follow a procedure which is very close to a judicial one and thus offer sufficient procedural guarantees to both the authors of the complaints and States involved in these proceedings.57 Additionally, I endorse the above-mentioned argument that because of their diverse composition, the interpretation by UN human rights treaty monitoring bodies of their respective treaties is likely to be more objective than that made by individual States.58 In conclusion, while the decisions of the UN Human Rights Committee on individual complaints are not per se legally binding, a systematic and teleological interpretation of the [First] Optional Protocol to the ICCPR, together with the principle of good faith and the practice of several international and domestic courts, provides ample support to the view that these decisions are an important source for determining the content and scope of the rights enshrined in the ICCPR.

57 See e.g. Scheinin (2004), “The Human Rights Committee’s Pronouncements on the Right to an Effective Remedy: an Illustration of the Legal Nature of the Committee’s Work under the Optional Protocol,” at 104. 58 Simma (2005), “Commissions and Treaty Bodies of the UN System,” at 582, 585; Nowak (2005), U.N. Covenant on Civil and Political Rights: CCPR Commentary, at 894.

chapter two

PROCEDURAL OBLIGATIONS OF STATES IN THE FIELD OF CRIMINAL JUSTICE WHEN FACED WITH SERIOUS HUMAN RIGHTS VIOLATIONS

As mentioned in the introduction, international treaties and human rights bodies have for a long time affirmed the important role of judicial remedial mechanisms generally, and of criminal justice procedures in particular, in addressing serious human rights violations. Various treaties demand that States carry out an effective investigation into, and prosecute those allegedly responsible for, these infringements.1 Furthermore, human rights treaty monitoring bodies have for decades interpreted general human rights treaties to require States in the event of any of these violations, to conduct an effective investigation and, if warranted, prosecute those responsible. The main objective of this chapter is to analyse the legal bases and rationales, particularly those put forward by human rights treaty monitoring bodies, for the development of States’ procedural obligations when faced with serious human rights violations generally. Additionally, this chapter examines the main characteristics of these procedural obligations of States, such as their content, nature and scope ratione personae. Furthermore, section II of this chapter discusses whether or not these procedural obligations of States apply integrally in situations of mass serious human rights violations. These aspects of States’ procedural obligations when faced with serious human rights violations are relevant for analysing victim access to and participation in criminal procedures. First of all, I submit that the logic and rationales that human rights treaty monitoring bodies have adopted for the development of these obligations of States also hold for the recognition of the rights of access to and participation in criminal proceedings

1 See e.g. Convention on the Prevention and Punishment of the Crime of Genocide, Arts. IV and VI, 9 December 1948, 78 U.N.T.S. 277 (hereinafter “the Genocide Convention”); the International Convention on the Suppression and Punishment of the Crime of Apartheid, Arts. IV and V, 30 November 1973, 1015 U.N.T.S. 243; the International Convention for the Protection of All Persons from Enforced Disappearance, Arts. 3, 4, 6, 7, 9, 10 and 11, 20 December 2006, UN Doc. A/ RES/61/177 (23 December 2010) (hereinafter “the International Convention for the Protection of All Persons from Enforced Disappearance”).

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for victims of these infringements. I elaborate on this matter in this chapter and in Chapter IV. Other aspects of these obligations of States discussed in this chapter are also relevant for examining victim access to and participation in criminal procedures. These aspects include the nature and the scope ratione personae of the obligation of States to investigate these infringements, and the discussion of States’ procedural obligations when faced with serious human rights violations perpetrated in a situation of mass atrocity. For instance, my analysis of the scope ratione personae of States’ obligation to investigate these infringements in this chapter makes clear that victims of such violations can seek access to and participation in criminal proceedings conducted into acts perpetrated by both State officials and private individuals that impair the enjoyment of core human rights. Equally, the discussion in this chapter of States’ procedural obligations when faced with serious human rights violations perpetrated in a situation of mass atrocity is closely linked to my analysis of victim access to and participation in criminal proceedings conducted in this type of situation.2 I. Features of States’ Procedural Obligations When Faced with Serious Human Rights Violations Generally3 A. Legal Sources and Rationales As noted earlier, there are two main legal sources of States’ procedural obligations to enact criminal law provisions and to apply them in practice through effective investigation and prosecution with respect to serious human rights violations. First, there are numerous treaties that require States to prosecute those allegedly responsible for the conducts they proscribe. Some treaties expressly do so. For instance, the Genocide Convention requires States to try and punish persons charged with genocide or any of the acts enumerated in Article III of the Convention.4 The International Convention for the Protection of All Persons from Enforced Disappearance and the International Convention on the Suppression and Punishment of the Crime of Apartheid do likewise.5 Furthermore, States Parties to the Statute of the ICC have the obligation to incorporate the crimes within the jurisdiction of this Court – i.e. genocide, crimes against humanity and war crimes – into their domestic law.6

2 For my analysis of victim access to and participation in criminal proceedings conducted in situations of mass atrocity, see Chapter V. 3 It is worth clarifying that this section refers to serious human rights violations generally because, as the next section submits, the approach is different with respect to these violations when committed in situations of mass atrocity. 4 See the Genocide Convention, Arts. VI and IV, respectively. 5 See the International Convention for the Protection of All Persons from Enforced Disappearance, Arts. 3, 4, 6, 7, 9, 10 and 11; the International Convention on the Suppression and Punishment of the Crime of Apartheid, Arts. IV and V, 30 November 1973, 1015 U.N.T.S. 243. 6 See the Rome Statute of the International Criminal Court, Preamble and Arts. 17 and 19, 12 July 1998, U.N. Doc. A/CONF.183.9 (hereinafter the “Statute of the ICC”).

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Several other international conventions also require States to criminalise specific heinous acts. For instance, the ICCPR requires States to criminalise hate speech.7 Likewise, the Convention on the Elimination of Racial Discrimination demands the criminalisation of hate speech, as well as “all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof[.]”8 Numerous regional human rights treaties also impose express procedural obligations on States Parties.9 Other treaties demand implicitly that States prosecute those allegedly responsible for the acts they proscribe. For instance, this obligation can be derived from a systematic and teleological interpretation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “the UN Convention against Torture”).10 This Convention requires States to make torture an offence under their criminal law,11 and for territorial States it demands they carry out “a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed.”12 Additionally, Article 7, paragraph 1, of this Convention requires States Parties to “submit the case to its competent authorities for the purpose of prosecution,” unless it extradites a suspected torturer.13 While the wording of this provision appears to retain the discretion of prosecutorial authorities, paragraph 2 of the same Article qualifies this discretion when providing that “[t]hese authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.”14 7  See International Covenant on Civil and Political Rights, Art. 20, para. 2, 16 December 1966, 999 U.N.T.S. 171 (entered into force on 23 March 1976). 8 See International Convention on the Elimination of All Forms of Racial Discrimination, Art. 4 (a), 21 December 1965, 660 U.N.T.S. 195. For other international conventions that require States to criminalise specific heinous acts, see Slavery Convention, Art. 6, 25 September 1926, 212 U.N.T.S. 17; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Art. 3(1), 7 September 1956, 266 U.N.T.S. 40. For an in-depth analysis of this matter, see Seibert-Fohr (2009), Prosecuting Serious Human Rights Violations, at 153–187. 9 See e.g., at the Inter-American level, Inter-American Convention to Prevent and Punish Torture, Arts. 1, 6, 8, 9 December 1985, 25 I.L.M. 519 (1986); and Inter-American Convention on Forced Disappearance of Persons, Arts. I, IV, 9 June 1994, 33 I.L.M. 1429 (1994). 10 A similar conclusion can be made with respect to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, Arts. 3, 4(3), and 5(5), UN G.A. Res. 54/263, 25 May 2000, U.N. Doc. A/54/49 (entered into force on 18 January 2002). 11  The UN Convention against Torture, Art. 4. 12 Id. Art. 12. 13 Id. Art. 7. The wording of Art. 7 of this Convention was borrowed from Art. 7 of the Convention for The Suppression of Unlawful Seizure of Aircraft. See Convention for the Suppression of Unlawful Seizure of Aircraft, 14 November 1970, 860 U.N.T.S. 105. See Claire Mitchell (2009), Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in International Law, Collection ePapers (Graduate Institute of International and Development Studies: Geneva), at 67, available at http://iheid.revues.org/299. Accessed on 15 December 2011. 14 The UN Convention against Torture, Art. 7, para. 2. See Manfred Nowak and Elizabeth MacArthur (2008), The United Nations Convention against Torture: A Commentary (Oxford: Oxford University Press), at 361.

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The CAT Committee has confirmed that the discretion of State authorities on this matter is limited. The Committee has held that States Parties are required, under the UN Convention against Torture, to prosecute those responsible for alleged acts of torture, unless they can show that there is not sufficient evidence to do so.15 General human rights treaties, both United Nations and regional ones, are the other source of States’ procedural obligations when faced with serious human rights violations. While these treaties do not expressly provide for States’ obligations to enact criminal law provisions, investigate these violations and prosecute those responsible, they proscribe the underlying violations and provide for States’ obligation ‘to ensure’ human rights and for the victim’s right to an effective remedy.16 On this basis, human rights treaty monitoring bodies have for a long time interpreted these treaties to require a criminal investigation and prosecution in the event of a serious human rights violation. Because of the implied nature of these obligations of States under general human rights treaties, human rights treaty monitoring bodies have developed a rich body of case law on the legal bases and rationales of such duties of States. The objective of the following subsection is to analyse this case law. i. Case Law of United Nations and Regional Human Rights Treaty Monitoring Bodies This subsection identifies the legal bases and rationales for the development of States’ procedural obligations in the field of criminal justice when faced with serious human rights violations, put forth by the UN Human Rights Committee and regional human rights treaty monitoring bodies. a) The Approach of the UN Human Rights Committee The UN Human Rights Committee has interpreted the ICCPR to require States Parties to conduct an effective investigation and to prosecute and try those responsible for serious human rights violations. This Committee has identified two main legal bases for these obligations of States: States’ general obligation ‘to ensure’ the rights enshrined in the ICCPR under Article 2, paragraph 1, thereof; and the victim’s right to an effective remedy set forth in Article 2, paragraph 3, of the ICCPR. Likewise, this Committee has referred to the importance of the rights infringed in serious human rights violations as the main rationale for the development of these procedural obligations of States. The UN Human Rights Committee has affirmed these legal bases in both its General Comments and its decisions on individual cases. In its General Comment No. 31, the 15 See e.g. Committee against Torture, Suleymane Guengueng et al. v. Senegal, Communication No. 181/2001, Views of 17 May 2006, para. 9.8. 16 See e.g. ICCPR, Arts. 1(1), 2(3), 6–27; ECHR, Art. 1(1), 2–14; ACHR, Art. 1(1), 3–25. With respect to scholarly works and reports of intergovernmental organisations, see Naomi Roht-Arriaza (2005), Transitional Justice and Peace Agreements, working paper commissioned by the International Council on Human Rights Policy (Geneva: International Council on Human Rights Policy), at 10; Shelton (2005), Remedies in International Human Rights Law, at 395; Office of the United Nations High Commissioner for Human Rights (2006), Rule-of-Law Tools for PostConflict States: Prosecution Initiatives (New York and Geneva: United Nations), at 21; Diane F. Orentlicher (1991), “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” 100 Yale Law Journal 2537, at 2551–2552.

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Committee makes this clear, by maintaining that States shall investigate and bring to justice those responsible for violations recognised as criminal under domestic or international law, such as torture and similar cruel, inhuman and degrading treatment, summary and arbitrary killing, and enforced disappearance, based on States’ obligations ‘to ensure’ the rights enshrined in the ICCPR and to provide for an effective remedy to victims of violations of these rights.17 Similarly, the UN Human Rights Committee has, in its case law, stated that in the event of serious human rights violations, such as breaches of the right to life,18 arbitrary detention,19 torture and other forms of ill-treatment,20 as well as enforced disappearance,21 the 17 UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, paras. 8, 15, 18, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 233. In previous General Comments, while the HR Committee required States Parties to prevent, criminalise, investigate and punish serious human rights violations, it did not elaborate on the legal basis for these States’ obligations. See UN HR Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment of Punishment), 10 March 1992, paras. 8, 13, 15, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 190; UN HR Committee, General Comment No. 6: Article 6 (Right to Life), 30 April 1982, para. 4, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/ REV.8, at 166. 18 See e.g. UN HR Committee, Bleier Lewenhoff and Valino de Bleier v. Uruguay, Communication No. 30/1978, Views of 29 March 1982, paras. 14, 15; UN HR Committee, Dermit Barbato v. Uruguay, Communication No. 084/1981, Views of 21 October 1982, para. 11; UN HR Committee, Khemraadi B. et al. v. Suriname, Communication Nos. 146/1983 and 148–154/1983, Views of 4 April 1985, para. 16; UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, paras. 8.6, 10; UN HR Committee, Vicente et al. v. Colombia, Communication No. 612/1995, Views of 19 August 1997, para. 8.8; UN HR Committee, Telitsin v. Russian Federation, Communication No. 888/1999, Views of 29 March 2004, para. 7.6. 19 See e.g. UN HR Committee, Rodriguez v. Uruguay, Communication No. 322/1988, Views of 9 August 1994, para. 12.3; UN HR Committee, Zelaya et al. v. Uruguay, Communication No. 328/1988, Views of 18 August 1994, para. 10.6; UN HR Committee, Chongwe v. Zambia, Communication No. 821/1998, Views of 25 October 2000, para. 5.3; UN HR Committee, Medjnoune v. Algeria, Communication No. 1297/2004, Views of 14 July 2006, para. 10. 20 See e.g. UN HR Committee, Santullo Valcada v. Uruguay, Communication No. 9/1977, Views of 26 October 1979, para. 12; UN HR Committee, Quinteros Almeida v. Uruguay, Communication No. 107/1981, Views of 21 July 1983, paras. 11, 15, 16; UN HR Committee, Tshitenge Muteba v. Zaire, Communication No. 124/1982, Views of 24 July 1984, paras. 12, 13; UN HR Committee, Rodriguez v. Uruguay, Communication No. 322/1988, Views of 9 August 1994, para. 12.3; UN HR Committee, Zelaya et al. v. Uruguay, Communication No. 328/1988, Views of 18 August 1994, para. 10.6; UN HR Committee, Mulezi v. Democratic Republic of the Congo, Communication No. 962/2001, Views of 8 July 2004, para. 7; UN HR Committee, Zheikov v. Russian Federation, Communication No. 889/1999, Views of 17 March 2006, para. 9; UN HR Committee, Ruzmetov v. Uzbekistan, Communication No. 915/200, Views of 30 March 2006, paras. 7.2, 7.8. 21 See e.g. UN HR Committee, Quinteros Almeida v. Uruguay, Communication No. 107/1981, Views of 21 July 1983, paras. 11, 15, 16; UN HR Committee, Barbarín Mojica v. Dominican Republic, Communication No. 449/1991, Views of 15 July 1994, para. 5.5; UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, paras. 8.6, 10; UN HR Committee, Celis Laureano v. Peru, Communication No. 540/1993, Views of 25 March 1996,

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right to an effective remedy set forth in Article 2, paragraph 3, of the ICCPR requires the conduct of a criminal investigation and the prosecution, trial and punishment of those responsible for such infringements. Accordingly, the Committee has considered that disciplinary and administrative measures are insufficient in respect of these human rights violations.22 Additionally, the Committee has, in certain cases, inferred these obligations of States from the ICCPR provisions enshrining the substantive rights infringed in these violations.23 A careful reading of the General Comments and case law of the UN Human Rights Committee demonstrates that the importance of the rights infringed in serious human rights violations is, according to this Committee, the main rationale for these procedural obligations of States. For instance, in Bautista de Arellana v. Colombia, in rejecting the view of the State Party that disciplinary and administrative remedies were adequate remedies pursuant to Article 2, paragraph 3, of the ICCPR, the Committee stressed the seriousness of the violation and the importance of the right violated – i.e. the right to life.24 Similarly, in its General Comment No. 31, the Committee states as follows in this respect: Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6).25

b) The European System for the Protection of Human Rights The ECtHR has interpreted the ECHR to require States Parties to this Convention to enact criminal law provisions and to apply them in practice through an effective investigation in the event of any violation of the right to life, the prohibitions of ill-treatment, slavery and forced labour, as well as for any instance of forced disappearance and rape. This subsection analyses the rationales and legal bases the ECtHR has put forward for the development of these duties of States.

paras. 8.3, 9, 10; UN HR Committee, Vicente et al. v. Colombia, Communication No. 612/1995, Views of 19 August 1997, para. 8.8; UN HR Committee, Bousroual v. Algeria, Communication No. 992/2001, Views of 30 March 2006, paras. 9.12, 11; UN HR Committee, Boucherf v. Algeria, Communication No. 1196/2003, Views of 30 March 2006, paras. 9.9, 11. 22 See e.g. UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, para. 8.2. See also Diane Orentlicher, “Report of the Independent Expert to Update the Set of Principles to Combat Impunity,” in Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 18 February 2005, UN Doc. E/ CN.4/2005/102, at 16, para. 58. 23 See e.g. UN HR Committee, Ruzmetov v. Uzbekistan, Communication No. 915/2000, Views of 30 March 2006, paras. 7.2, 7.8. 24 See UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, para. 8.2. 25 UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 18.

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i) Rationales The ECtHR has put forward two main rationales for the development of States’ procedural obligations in the field of criminal justice when faced with serious human rights violations: first, the special status, within the ECHR, of the rights infringed in these violations; and second, the principle of effectiveness, which posits that the ECHR protects rights and freedoms that are ‘practical and effective.’ The ECtHR has developed States’ procedural obligations in the field of criminal justice with respect to those human rights violations that involve the infringement of those rights considered as having a special status within the ECHR, because of the values they protect and the absence of provisions allowing for their limitation or derogation. The ECtHR has stressed this rationale when deriving States’ procedural obligations from the victim’s right to an effective remedy under Article 13 of the ECHR with respect to alleged breaches of the right to life and the prohibitions of ill-treatment, slavery and forced labour, as well as for heinous acts such as rape. For instance, in Aksoy v. Turkey, the ECtHR held that the State’s obligation to carry out an effective investigation into allegations of ill-treatment is implicit in the notion of an effective remedy under Article 13 of the ECHR, based notably on the importance of the prohibition of torture.26 Likewise, in Kaya v. Turkey, the ECtHR extended this principle to cases concerning alleged violations of the right to life,27 stressing, inter alia, the special status of this right.28 Similarly, in Siliadin v. France, which concerned the lack of criminal sanction against two persons who had subjected a minor to forced labour and held her in servitude,29 the ECtHR grounded the State’s duty to adopt criminal law provisions proscribing slavery and forced labour and to effectively prosecute any such act in the special status of Article 4 of the ECHR. In this respect, the ECtHR held that this Article of the ECHR “enshrines one of the basic values of the democratic societies making up the Council of Europe” and noted that no exception or derogation from it is allowed under Article 15, paragraph 2, of the ECHR.30 The ECtHR has used the same foundation for developing States’ procedural obligations in the field of criminal justice with respect to any alleged rape. Since its judgment in X and Y v. The Netherlands, which concerned the failure of Dutch authorities to investigate the alleged rape of a mentally handicapped person based on the impossibility of her being able to meet the requirement under domestic law at the relevant time that the complaint must be submitted by the victim, the ECtHR has held that criminal provisions are necessary with respect to acts such as rape in which “fundamental values and essential aspects of private life are at stake.”31 26 ECtHR, Aksoy v. Turkey, Judgment of 18 December 1996, Application No. 21987/93, para. 98. 27 ECtHR, Kaya v. Turkey, Judgment of 19 February 1998, Application No. 22729/93, paras. 105, 107. 28 Id. para. 107. See also ECtHR, Mikheyev v. Russia, Judgment of 26 January 2006, Application No. 77617/01, para. 141. 29 ECtHR, Siliadin v. France, Judgment of 26 July 2005, Application No. 73316/01, paras. 110, 20, 129. 30 Id. paras. 82, 112, 148. 31 ECtHR, X and Y v. The Netherlands, Judgment of 26 March 1985, Application No. 8978/80, para. 27. See also ECtHR, M.C. v. Bulgaria, Judgment of 4 December 2003, Application No. 39272/98, para. 150.

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The principle of effectiveness has been another rationale the ECtHR has put forward for the development of States’ procedural obligations when faced with serious human rights violations. For instance, in the above-mentioned X and Y v. The Netherlands the ECtHR referred to the principle of effectiveness as a rationale for deriving, from Article 8 of the ECHR, States’ procedural obligations in the field of criminal justice with respect to any alleged instance of rape, when holding as follows: The Court recalls that although the object of Article 8 [of the ECHR] is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life … These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.32

That the principle of effectiveness has been an important jurisprudential foundation for the development of States’ procedural obligations in the field of criminal justice when faced with serious human rights violations is not surprising. The ECtHR has, since its 1975 judgment in Golder v. The United Kingdom,33 used this principle as a central tool for the interpretation of the ECHR in cases concerning both actions and omissions by State authorities leading to violations of the ECHR rights.34 As regards omissions, it is worth stressing that this principle has been a major foundation for the development of positive obligations by the ECtHR. These obligations, although not defined by the ECtHR, are commonly understood as those imposing on States the duty ‘to take action.’ In his dissenting opinion in Gül v Switzerland, Judge Martens defined them in these terms when stating that they require “member States to … take action” whereas “negative obligations require member States to refrain from action.”35 Similarly, Alastair R. Mowbray states that “[t]he key characteristic of [positive obligations] is the duty upon States to undertake specific affirmative tasks.”36 In the case of Marckx v. Belgium, 32 ECtHR, X and Y v. The Netherlands, Judgment of 26 March 1985, Application No. 8978/80, para. 23 (italics added). For cases involving alleged violations of the right to life, see ECtHR, McCann and others v. UK, Judgment of 27 September 1995, Application No. 18984/91, para. 161; Ilhan v. Turkey, Judgment of 27 May 2000, Application No. 22277/93, para. 91; Kelly and others v. UK, Judgment of 4 May 2001, Application No. 30054/96, para. 94. For cases involving alleged infringement of the prohibition of ill-treatment, see e.g. ECtHR, Assenov and others v Bulgaria, Judgment of 28 October 1998, Application No. 24760/94, para. 102. 33 ECtHR, Golder v. The United Kingdom, Judgment of 21 February 1975, Application No. 4451/70, para. 35. See also ECtHR, Marckx v. Belgium, Judgment of 13 June 1979, Application No. 6833/74, para. 31. 34 For cases concerning actions by State authorities leading to violations of the ECHR rights and in which this principle has been applied, see e.g. ECtHR, Podkolzina v. Latvia, Judgment of 9 April 2002, Application No. 46726/99, para. 35. With respect to express positive obligations in the ECHR, see e.g. ECtHR, Artico v. Italy, Judgment of 13 May 1980, Application No. 6694/74, para. 33. 35 Dissenting Opinion of Judge Martens in ECtHR, Gül v. Switzerland, Judgment of 19 February 1996, Application No. 23218/94, para. 7, at 165. 36 See Alastair R. Mowbray (2004), The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing), at 2. As to the proposition that the principle of effectiveness has been used by the ECtHR as a major justification for developing positive obligations in the ECHR, see id. at 29. See also

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in which, for the first time, the ECtHR implied positive obligations from a provision of the ECHR – i.e. Article 8, this Court did so based on the principle of effectiveness when holding as follows: [Article 8] does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life.37

The ECtHR has, in its subsequent case law, affirmed this view.38 ii) Legal Bases The ECtHR has identified two main legal bases for States’ procedural obligations in the field of criminal justice when faced with serious human rights violations: first, States’ obligation ‘to secure’ the rights and freedoms enshrined in the ECHR under Article 1 thereof; and second, the victim’s right to an effective remedy set forth in Article 13 of the same Convention. With respect to rape, the ECtHR has held, since the above-mentioned case of X and Y v. The Netherlands, that the State’s obligation ‘to secure’ respect for private life demands the adoption of criminal measures with respect to acts such as rape in which “fundamental values and essential aspects of private life are at stake.”39 Similarly, the ECtHR has, since McCann and Others v. The United Kingdom, expressly mentioned the State’s obligation ‘to secure’ the rights and freedoms enshrined in the ECHR under Article 1, together with the right to life, as a legal basis for the State’s procedural obligations in the field of criminal justice when faced with infringements of the right to life.40 In Assenov and others v. Bulgaria, the ECtHR extended these procedural obligations to cases where an individual Alastair Mowbray (2005), “The Creativity of the European Court of Human Rights,” 5 Human Rights Law Review 57, at 72; Keir Starmer (2000), “Positive Obligations Under the Convention,” in J. Jowell & J. Cooper (eds.), Understanding Human Rights Principles 139 (Oxford: Hart Publishing), at 146; Silvia Borelli (2006), “Positive Obligations of States and the Protection of Human Rights,” 15 Interights Bulletin 101, at 102; Pieter van Dijk (1998), “Positive obligations’ Implied in the European Convention on Human Rights: Are the States Still the ‘Masters’ of the Convention?”, in Monique Castermans-Holleman, Fried van Hoof and Jaqueline Smith (eds.), The Role of the Nation-state in the 21st Century: Human Rights, International Organisations and Foreign Policy: Essays in Honour of Peter Baehr 17 (The Hague: Kluwer Law International), at 19, 22. 37 ECtHR, Marckx v. Belgium, Judgment of 13 June 1979, Application No. 6833/74, para. 31 (italics added). 38 See e.g. ECtHR, Airey v. Ireland, Judgment of 9 October 1979, Application No. 6289/73, paras. 24–25; ECtHR, Platform “Ärtze für das Leben” v. Austria, Judgment of 21 June 1988, Application No. 10126/82, para. 32. For an analysis of other positive obligations arising under Article 2 of the ECHR, see Mowbray (2004), The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Ch. 2. See also Andrew Clapham (2006), Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press), at 358–372. 39 ECtHR, X and Y v. The Netherlands, Judgment of 26 March 1985, Application No. 8978/80, para. 27. 40 ECtHR, McCann and Others v. UK, Judgment of 27 September 1995, Application No. 18984/91, para. 161. See also e.g. ECtHR, Kaya v. Turkey, Judgment of 19 February 1998, Application No. 22729/93, para. 86.

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raises an arguable claim that he or she has been seriously ill-treated in breach of Article 3 of the ECHR.41 Subsequently, the ECtHR has held that these obligations also need to be fulfilled with respect to any alleged instance of slavery, forced labour, and forced disappearance.42 The victim’s right to an effective remedy provided for in Article 13 of the ECHR has been another legal basis for States’ procedural obligations when faced with serious human rights violations the ECtHR has referred to. In particular, the ECtHR has held that this right encompasses, in addition to the payment of compensation, the State’s obligation to conduct an effective investigation into an alleged serious human rights violation. In Mikheyev v. Russia, the ECtHR summarised its case law in this respect as follows: [I]n cases of suspicious death or ill-treatment, given the fundamental importance of the rights protected by Articles 2 and 3, Article 13 requires (in addition to the payment of compensation where appropriate) a thorough and effective investigation capable of leading to the identification and punishment of those responsible ….43

In Orhan v. Turkey, the ECtHR expressly extended this obligation to claims of forced disappearance of persons.44 It should, however, be noted that the ECtHR has not developed clear criteria as to the circumstances in which States’ procedural obligations when faced with serious human rights violations are based on either States’ obligation ‘to secure’ the rights and freedoms enshrined in the ECHR together with the provisions providing for the substantive infringed rights, or the victim’s right to an effective remedy, or both. In several cases, the ECtHR has found a violation of both the procedural aspect of the protection of the right to life under Article 2 and the right to an effective remedy set forth in 13 of the ECHR, because of the failure of the authorities to carry out an effective investigation into complaints of unlawful killing. Moreover, in a number of such cases, in supporting its conclusion with respect to the violation of the latter, the ECtHR has referred back to its findings with respect to the procedural aspect of the protection of the right to life under Article 2 of the ECHR.45 In some subsequent cases, the ECtHR has held, though, that a State’s failure to 41 ECtHR, Assenov and others v Bulgaria, Judgment of 28 October 1998, Application No. 24760/94, para. 102. 42 For forced disappearance, see e.g. ECtHR, Cyprus v. Turkey, Judgment of 10 May 2001, Application No. 25781/94, para. 132. For slavery and forced labour, see e.g. ECtHR, Siliadin v. France, Judgment of 26 July 2005, Application No. 73316/01, para. 89. For a subsequent case regarding rape, see e.g. ECtHR, M.C. v. Bulgaria, Judgment of 4 December 2003, Application No. 39272/98, para. 153. 43 See ECtHR, Mikheyev v. Russia, Judgment of 26 January 2006, Application No. 77617/01, para. 141. See also e.g. ECtHR, Aksoy v. Turkey, Judgment of 18 December 1996, Application No. 21987/93, para. 98; Kaya v. Turkey, Judgment of 19 February 1998, Application No. 22729/93, para. 107; D.P. & J.C. v. UK, Judgment of 10 October 2003, Application No. 38719/97, para. 135; and Murat Demir v. Turkey, Judgment of 2 March 2006, Application No. 43579/98, para. 43. 44 ECtHR, Orhan v. Turkey, Judgment of 18 June 2002, Application No. 25656/94, para. 384. 45 See e.g. ECtHR, Khashiyev and Akayeva v. Russia, Judgment of 24 February 2005, Application nos. 57942/00 and 57945/00, para. 185; Kiliç v. Turkey, Judgment of 28 March 2000, Application No. 22492/93, para. 93. In these cases, the only significant difference between the scope of the procedural obligation under Articles 2 and 3 of the ECHR and the right to an effective remedy was the inclusion under the latter of the expectation of the payment of compensation.

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carry out an effective investigation pursuant to the procedural aspect of the protection of the right to life under Article 2 of the ECHR does not necessarily amount to a violation of the right to an effective remedy set forth in Article 13 of the same instrument.46 The case law of the ECtHR in respect of the interplay between the obligation ‘to secure’ and the right to an effective remedy as legal bases for States’ procedural obligations when faced with infringements of the prohibition of ill-treatment is even less consistent. Subse­ quently to the above-mentioned case of Assenov and others v. Bulgaria, the ECtHR Grand Chamber held in Ilhan v. Turkey that a State’s failure to carry out an effective investigation into a claim of an individual ill-treatment would generally only amount to a violation of the victim’s right to an effective remedy set forth in Article 13 of the ECHR, and thus it will be only in exceptional cases that such a failure would also constitute a violation of Article 3 of the ECHR.47 In the view of the ECtHR, this would be the case when the failure of the authorities to carry out an effective investigation into the alleged ill-treatment prevents this Court from making conclusive findings as to whether the applicant’s injuries had been caused by State agents, because of the lack of necessary factual elements.48 However, these principles elaborated in Ilhan v. Turkey regarding the relationship between States’ obligation to conduct an effective investigation under Article 3 and the similar obligation under the victim’s right to an effective remedy set forth in Article 13 of the ECHR, have not been consistently applied in subsequent judgments. In certain cases, the ECtHR has found a violation of both the substantive and procedural aspects of Article 3 of the ECHR, as well as a breach of the State’s obligation to conduct an effective investigation under Article 13 of the ECHR.49 In other cases, the ECtHR has considered the lack of an effective investigation into complaints of an individual ill-treatment solely under the procedural aspect of Article 3 of the ECHR without elaborating on the reasons for such an approach.50 In certain cases, the ECtHR has drawn a distinction between the procedural aspect of Article 3 and the right to an effective remedy under Article 13 of the ECHR, stating that whilst the former requires an investigation, the latter concerns mainly the possibility of obtaining compensation.51 There have also been cases in which the ECtHR has adopted a somewhat middle ground with respect to the principle elaborated in Ilhan v. Turkey on the relationship between the procedural aspect of Article 3 and Article 13 of the ECHR. For example, in Murat Demir v. Turkey, the ECtHR found “a violation of Article 13 of the ECHR, taken together with Article 3 of the ECHR” on account of the fact that there was a lack of an effective remedy with respect to these complaints.52 46 ECtHR, Öneryildiz v. Turkey, Judgment of 30 November 2004, Grand Chamber, Application No. 48939/99, para. 148. 47 ECtHR, Ilhan v Turkey, Judgment of 27 June 2000, Application No. 22277/93, para. 92. 48 Id. para. 90. 49 See e.g. ECtHR, Mikheyev v. Russia, Judgment of 26 January 2006, Application No. 77617/01, paras. 121, 142–143. 50 See e.g. ECtHR, Bekos and Koutropolos v. Greece, Judgment of 13 December 2005, Application No. 15250/02, paras. 53, 57. 51 See e.g. ECtHR, Corsacov v. Moldova, Judgment of 4 April 2006, Application No. 18944/02, paras. 68, 81–82. 52 See e.g. ECtHR, Murat Demir v. Turkey, Judgment of 2 March 2006, Application No. 43579/98, paras. 43–44.

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It should, however, be stressed that this lack of consistency relates to the specific article of the ECHR that in a particular case serves as the legal basis for States’ procedural obligations in the field of criminal justice when faced with serious human rights violations, not to the recognition of these obligations as such by the ECtHR.53 In sum, the ECtHR has identified two legal bases for States’ procedural obligations when faced with alleged violations of the right to life, the prohibitions of ill-treatment, slavery and forced labour, and any alleged instance of forced disappearance and rape: first, States’ obligation ‘to secure’ the rights and freedoms enshrined in the ECHR under Article 1, taken together with the provisions of this Convention providing for the substantive infringed rights; and second, the victim’s right to an effective remedy set forth in Article 13 of the ECHR. While the ECtHR has been consistent in affirming States’ procedural obligations when faced with serious human rights violations, it has not adopted clear criteria with respect to the circumstances in which these duties arise either from States’ obligation ‘to secure’ the rights and freedoms enshrined in the ECHR taken together with the articles providing for the substantive infringed rights, or the victim’s right to an effective remedy set forth in Article 13 of this Convention. c) The Inter-American System for the Protection of Human Rights Since its judgments in its first contentious cases, the Inter-American Court of Human Rights (hereinafter “the IACtHR”) has held that States Parties to the American Convention on Human Rights (hereinafter “the ACHR”) have the obligations to prevent and to investigate any violation of the rights recognised in this Convention, to identify those responsible and to impose appropriate punishment, as well as to provide compensation.54 The IACtHR has derived these obligations from States’ general duty ‘to ensure’ human rights under Article 1, paragraph 1, of the ACHR. In the Velásquez Rodriguez case, the IACtHR stated as follows in this respect: As a consequence of [the obligation to ensure the free and full exercise of human rights], States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.55

53 See Clare Ovey and Robin White (2006), Jacobs and White, The European Convention on Human Rights (Oxford: Oxford University Press, 4th edn), at 84. 54 See e.g. IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 166, 174. See also IACtHR, Godinez Cruz case, Merits, Judgment of 20 January 1989, Series C No. 5, para. 175; IACtHR, Trujillo-Oroza v. Bolivia, Reparations, Judgment of 27 February 2002, Series C No. 92, para. 99; IACtHR, the Caracazo v.Venezuela, Reparations, Judgment of 29 August 2002, Series C No. 95, para. 115; IACtHR, Case of Las Palmeras v. Colombia, Reparations, Judgment of 26 November 2002, Series C No. 96, para. 66; IACtHR, Case of Almonacid-Arellano et al v. Chile, Preliminary Objections, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No. 154, para. 110. 55 IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 166, 177. See also IACtHR, Mynra Mack Chang v. Guatemala, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 156; IACtHR, Case of Heliodoro Portugal v. Panamá, Preliminary Exceptions, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186, para. 143.

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Additionally, the IACtHR has stressed the importance of these procedural obligations of States in the event of a serious human rights violation. In this respect, in its 2006 judgment in La Cantuta v. Peru, the IACtHR stated as follows: [T]he duty to investigate and eventually conduct trials and impose sanctions, becomes particularly compelling and important [in cases of crimes against humanity and forced disappearance] in view of the seriousness of the crimes committed and the nature of the rights wronged.56

In addition, several treaties adopted under the umbrella of the Inter-American system for the protection of human rights expressly provide for the obligation of State Parties to investigate and punish perpetrators of human rights violations.57 The remaining sections of this chapter will analyse the approach of the Inter-American human rights bodies to several other aspects of States’ obligations to investigate and prosecute serious human rights violations. d) The African System for the Protection of Human Rights The African Charter on Human and Peoples’ Rights (hereinafter “the African Charter”) is the most important instrument governing the protection of human rights in Africa.58 This regional instrument includes civil and political rights, as well as economic, social and cultural rights.59 There are two bodies in charge of the supervision of the observance of the rights enshrined in the African Charter: the African Commission and the African Court on Human and Peoples’ Rights (hereinafter “the African Commission” and “the African Court”, respectively). While the African Commission is a quasi-judicial body,60 the African Court is a judicial one. The mandate of the African Commission is to promote and protect human and peoples’ rights, and to interpret the African Charter.61 The African Court, established by a Protocol to the African Charter adopted on 9 June 1998 and which entered into force in January 2004, supplements the Commission’s mandate of examining individual and inter-State communications. It does not replace the

56 IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162, para. 157. 57 See the Inter-American Convention to Prevent and Punish Torture, Arts. 1, 6, 9 December 1985, 25 I.L.M. 519 (1986). See also the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Art. 7, 9 June 1994, 33 I.L.M. 1534 (1994); the InterAmerican Convention on Forced Disappearance, Arts. I and IV, 9 June 1994, 33 I.L.M. 1429 (1994). 58 Frans Viljoen and Chidi Odinkalu (2006), The Prohibition of Torture and Ill-Treatment in the African Human Rights System: A Handbook for Victims and their Advocates (Geneva: World Organisation against Torture), at 24. 59 The African Charter on Human and Peoples’ Rights, 27 June 1981, 21 I.L.M. 58 (entered into force on 21 October1986) (hereinafter the “African Charter on Human and Peoples’ Rights”). Examples of economic, social and cultural rights enshrined in this instrument are the right to work, the right to health and the right to education, which are set forth in Arts. 15, 16 and 17, respectively. 60 See Dandi Gnamou-Petauton (2008), “Les Mécanismes Régionaux Africains de Protection des Droits de L’Homme,” in Paul Tavernier (ed.), Regards sur les droits de l’Homme en Afrique 254 (Paris: L’Harmattan), at 254–375. See also Viljoen and Odinkalu (2006), Prohibition of Torture and Ill-Treatment in the African Human Rights System: A Handbook for Victims and their Advocates, at 28. 61 African Charter on Human and Peoples’ Rights, Art. 45.

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Commission.62 The effective establishment of the Court was delayed because of the decision of the African Union Assembly to merge the African Human Rights Court and the Court of Justice of the African Union.63 The African Human Rights Court is already operational.64 The African Commission has for a long time interpreted the African Charter to require States to investigate and prosecute any violation of the rights enshrined in this regional instrument, including economic, social and cultural rights. The African Commission has done so in several decisions on individual communications, and resolutions on thematic areas and individual countries. In Communication No. 155/96, the African Commission required Nigeria to carry out an investigation into, and prosecute those responsible for, violations of the right to a healthy environment, the right to housing, and the right to food, all of which are economic and social rights.65 While the African Commission did not elaborate on this matter, it maintained that the concerned violations had devastating effects for the environment and the health and life of the members of the populations directly affected,66 or involved violent acts.67 62 Gnamou-Petauton (2008), “Les Mécanismes Régionaux Africains de Protection des Droits de L’Homme,” at 274. See also Viljoen and Odinkalu (2006), The Prohibition of Torture and IllTreatment in the African Human Rights System: A Handbook for Victims and their Advocates, at 31. 63 See e.g. Viljoen and Odinkalu (2006), The Prohibition of Torture and Ill-Treatment in the African Human Rights System: A Handbook for Victims and their Advocates, at 28; Gnamou-Petauton (2008), “Les Mécanismes Régionaux Africains de Protection des Droits de L’Homme,” at 258–259. 64 The first judges of the African Court on Human and Peoples’ Rights were elected on 22 January 2006 and took the oath of office on 2 July 2006. For more information, see the website of the African Court on Human and Peoples’ Rights, available at http://www.african-court.org. Accessed on 21 January 2012. 65 ACHPR, Communication 155/96, The Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria, para. 44, in Fifteenth Activity Report 2001–2002, Annex V, at 44. For ACHPR’s decisions on individual complaints affirming the State’s obligations to investigate and prosecute violations of the rights enshrined in the African Charter, see generally ACHPR, Communication No. 204/97, Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso (recommending Burkina Faso to identify and take to court those responsible for violations of the right to life, the prohibition of ill-treatment and cases of forced disappearance, and to accelerate the judicial process of the cases pending before the domestic Courts); ACHPR, Communications 54/91, 61/91, 98/93, 164/97-196/97 and 210/98, Malawi African Association; Amnesty International; Ms Sarr Diop; Union Interafricaine des Droits de l’Homme and Raddho; Collectif des Veuves et Ayants-Droits; Association Mauritanienne des Droits de l’Homme v. Mauritania, in Thirteenth Activity Report 1999–2000, Addendum, at 161 (recommending the State to conduct an independent investigation and to prosecute those responsible for arbitrary detentions and instances of ill-treatment); ACHPR, Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal Conference of East Africa v. Sudan, paras. 51, 56, in Thirteenth Activity Report 1999–2000 (affirming States’ obligations to investigate and punish alleged violations of the right to life and the prohibition of torture); ACHPR, Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, para. 22, in Ninth Activity Report 1995–1996 (affirming States’ obligation to investigate alleged violations of the right to life). 66 ACHPR, Communication 155/96, The Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria, para. 44, in Fifteenth Activity Report 2001–2002, Annex V. 67 Id. paras. 62–63.

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The African Commission has also reiterated the State’s obligations to investigate and prosecute violations of the rights enshrined in the African Charter in several thematic resolutions. For example, the African Commission’s Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, adopted in October 2002, require States to “ensure that those responsible for acts of torture or ill-treatment are subject to legal process”,68 and to combat impunity for those who commit acts of ill-treatment.69 The ACHPR has done likewise in several resolutions on individual countries.70 In sum, the African Commission has required States to investigate and prosecute violations of any of the rights enshrined in the African Charter, including economic and social rights. e) Discussion As analysed above, human rights treaty monitoring bodies have identified the special status of the rights infringed in serious human rights violations and the principle of effectiveness as the main rationales for States’ procedural obligations when faced with any of these infringements. This view is reasonable. Regarding the special status of the rights infringed in these violations, the ECtHR has stressed the values these rights protect and the absence of provisions allowing for their limitation or derogation. As discussed earlier, serious human rights violations concern rights considered as essential to the human person and to human dignity.71 Furthermore, the proposition that non-derogability clauses in human rights instruments are a reliable indicator of those human rights considered as core is well accepted.72 In this respect, it is worth noting that the ICCPR, the ACHR and the ECHR recognise as non-derogable the right to life, and the prohibitions of ill-treatment and slavery.

68 ACHPR, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), October 2002, Part I.E, para. 16(a), available at http://www1.umn.edu/humanrts/achpr/tortguidelines.html. Accessed on 23 March 2012. From the title of this Section and other provisions of this Section, it is clear that this Article refers to criminal procedures. 69 Id. Part IE, para. 16 (a)-(e). 70 See Resolution on Nigeria, ACHPR, Res.70(XXXV)04, 4 June 2004 (urging the Nigerian government “to bring the perpetrators of any human rights violation [perpetrated during the ethnic and religious violence that took place in the Northern States of Nigeria in May 2004] to justice”); Resolution on Côte d’Ivoire, ACHPR, Res.67(XXXV)04, 4 June 2004; Resolution on the Recent Violence in Kabyla, Algeria (ACHPR, Res.57(XXIX)01, 7 May 2001 (demanding that those responsible for human rights violations related to the upsurge of violence in the Kabylia region of north-east Algeria in April 2001 are brought to justice). 71   See above Chapter I, Section I. 72 See e.g. UN HR Committee, General Comment No. 29: Article 4: Derogations During a State of Emergency, 24 July 2001, para. 11, in Compilation of General Comments and General Recom­ mendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 228; IACommHR, Domingues v. United States, Case 12.285, Report No. 62/02, OEA/SER.L/V/ II.117, doc. 1, rev. 1 (2003). For a scholarly account, see e.g. Dinah Shelton (2006), “Are There Differentiations Among Human Rights? Jus Cogens, Core Human Rights, Obligations Erga Omnes And Non-Derogability,” in European Commission for Democracy through Law (ed.), The Status of International Treaties on Human Rights 159 (Strasbourg: Council of Europe), at 185.

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On this matter, it should be mentioned the judgment of the ECtHR in Streletz, Kessler and Krenz v. Germany.73 This case concerned the conviction by German courts of three men who held senior positions in the State apparatus of the German Democratic Republic (hereinafter “GDR”) on the grounds that they shared responsibility for the deaths of a number of people who had attempted to leave the GDR between 1971 and 1989 by crossing the border between the two German States. Specifically, the three men’s criminal responsibility was based on their membership of the State bodies that had adopted the orders authorising the use of force in such circumstances.74 In rejecting the applicants’ claim that the acts for which they were convicted did not constitute offences at the time when they were committed, either under the law of the GDR or international law, the ECtHR stressed the pre-eminence of the right to life in international instruments for the protection of human rights.75 In this respect, the ECtHR went on to state that the Universal Declaration of Human Rights of 10 December 1948, the ICCPR and the ECHR “indicate that the right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights.”76 Interestingly, when extending the State’s obligations to investigate and prosecute to violations of several economic and social rights, the African Commission stressed the particularly serious effects the infringements at issue – i.e. violations of the rights to a healthy environment, housing, and food – had on the environment, health and life of the communities directly affected.77 By doing so, the African Commission not only emphasised the interconnectedness that exists between civil and political rights and economic and social rights, but also the critical importance economic and social rights have in themselves. This development is welcome as the evolution of international human rights law during the last three decades has demonstrated that economic, social and cultural rights are as important as civil and political rights. In this respect, it is worth noting that while some progress has recently been made with respect to the protection of economic, social and cultural rights under international law, for several decades attention at the international level has focused on the protection of civil and political rights.78 Likewise, that the principle of effectiveness is a foundation of States’ procedural obligations in the field of criminal justice when faced with a serious human rights violation is 73 ECtHR, Streletz, Kessler and Krenz v. Germany, Judgment of 22 March 2001, Applications Nos. 34044/96, 35532/97 and 44801/98. 74 Id. para. 70. 75 Id. paras. 85, 87, 92–94. 76 Id. para. 94 (emphasis added). As regards the primacy of the right to life, see also UN HR Commit­ tee, Guerrero v. Colombia, Communication No. 45/1979, Views of 5 February 1979, para. 13.1 (“The right to life is the supreme right of the human being.”); IACtHR, Mynra Mack Chang v. Guatemala, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 152. 77 ACHPR, Communication 155/96, The Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria, para. 44, in Fifteenth Activity Report 2001–2002, Annex V. 78 A recent positive development regarding the protection of economic, social and cultural rights is the adoption by the UN General Assembly of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights granting victims of violations of these rights the right to individual complaint before the UN Committee on Economic, Social and Cultural Rights. See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 10 December 2008, UN Doc. A/Res/63/117 (not yet in force).

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considered warranted. To begin with, and as mentioned earlier, in supporting their view that criminal procedures are necessary in the event of any of these infringements, human rights treaty monitoring bodies have stressed the particular characteristics of such procedures. In particular, these bodies have maintained that criminal procedures make it possible for a thorough and independent investigation to be conducted and for the criminal responsibility of those involved to be established. In this respect, it is worth discussing the judgment of the ECtHR in Isayeva v. Russia, which concerned the killing or serious injury of several civilians as a result of the assault carried out by Russian armed forces of the village of Katyr-Yurt from 4 to 7 February 2000 using bombs and other non-guided heavy combat weapons in order to put an end to the seizure of this village by about 1,000 Chechen rebels.79 In this case, the ECtHR rejected the Russian government’s preliminary objection based on the non-exhaustion of civil remedies by the applicant, stating that despite the fact that a Russian civil court in a similar case had made an award of damages, this civil court neither conducted an independent investigation nor was capable of making a finding regarding the identity and responsibility of those involved in the assaults. In particular, the ECtHR held as follows: As regards the case of Mr Khashiyev, who had brought a complaint to the Court (no. 57942/00), to which the Government refers, it is true that, after receiving the Government’s claim that a civil remedy existed, he brought an action before the Nazran District Court in Ingushetia. That court was not able to, and did not, pursue any independent investigation as to the person or persons responsible for the fatal assaults, but it did make an award of damages to Mr. Khashiyev on the basis of the common knowledge of the military superiority of the Russian federal forces in the district in question at the relevant time and the State’s general liability for the military’s actions. The Court does not consider that that decision affects the effectiveness of a civil action as regards exhaustion of domestic remedies. Despite a positive outcome for Mr Khashiyev in the form of a financial award, it confirms that, without the benefit of the conclusions of a criminal investigation, a civil action is not capable of making any findings as to the identity of the perpetrators of fatal assaults, and still less of establishing their responsibility. Furthermore, a Contracting State’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under those Articles, an applicant would be required to exhaust an action leading only to an award of damages ….80 79 ECtHR, Isayeva v Russia, Judgment of 24 February 2005, Application No 57950/00. 80 Id. paras. 156–157 (italics added). See also ECtHR, Yaşa v. Turkey, Judgment of 2 September 1998, Application No. 22495/93, para. 74; ECtHR, Isayeva, Yusupova and Bazayeva v. Russia, Judgment of 24 February 2005, Applications Nos. 57947/00, 57948/00 and 57949/00, paras. 148–149. For scholarly accounts, see Steven R. Ratner, Jason S. Abrams and James L. Bischoff (2009), Accountability for Human Rights Atrocities in International Law (Oxford: Oxford University Press, 3rd ed), at 259 (identifying as an advantage of criminal procedures the fact that they “provide a rigorous determination of, and a serious punishment for an individual’s culpability”); Mark Freeman (2006), Truth Commissions and Procedural Fairness (Cambridge: Cambridge University Press), at 76 (recognising that the investigations carry out by Truth Commissions do not have the same depth as those carried out in criminal procedures); Carlos Santiago Nino (1996), Radical Evil on Trial (New Haven: Yale University Press), at 146; Rodrigo Uprimmy and Maria Paula Saffon (2007), “Verdad Judicial y Verdades Extrajudiciales: la Búsqueda de una Complementariedad dinámica,” in Guillermo Hoyos V. (ed.), Las Víctimas Frente a la Búsqueda de la Verdad y la Reparación en Colombia 151 (Bogotá: Pontificia Universidad Javeriana), at 172– 173; Diane F. Orentlicher (2007), “Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,” 1 International Journal of Transitional Justice 10, at 15.

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Additionally, the view that the principle of effectiveness is a foundation of States’ procedural obligations when faced with a serious human rights violation is consistent with the customary international law rule according to which a treaty shall be interpreted in the light of its object and purpose.81 In this regard, it is worth noting the special character human rights treaties have as instruments aimed at the protection of individual human beings and because of the nature of the obligations arising from them.82 In this latter respect, in Ireland v. The United Kingdom the ECtHR stated as follows: Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘collective enforcement’.83

The ECtHR has, since its judgment in McCann and others v. The United Kingdom, endorsed the view that the principle of effectiveness is fully consistent with this customary international law rule on treaty interpretation, when holding that such a principle is mandated by the object and purpose of the ECHR.84 Similarly, the view of human rights treaty monitoring bodies that the legal bases for States’ procedural obligations when faced with serious human rights violations are the 81 This rule is enunciated in Art. 31, para 1, of the Vienna Convention on the Law of Treaties. With respect to the customary nature of the rules on treaty interpretation included in Articles 31 to 33 of this Convention, see e.g. ICJ, Arbitral Award of 31 July 1989 (Guinea-Bisau v. Senegal), Judgment of 12 November 1991, 1991 I.C.J. Reports 53, at 70, para. 48; Avena and other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, 2004 I.C.J. Reports 12, at 37–38, para. 83; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment of 17 December 2002, 2002 I.C.J. Reports 625, at 23–24, para 37; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, 2004 I.C.J. Reports 136, at 38, para. 94. For judgments of the ECtHR in this respect, see Golder v. UK, Judgment of 21 February 1975, Application No. 4451/70, para. 29; Loizidou v. Turkey, Preliminary Objections, Judgment of 23 March 1995, Application No. 15318/89, paras. 75, 77, 89; Loizidou v. Turkey, Merits, Judgment of 18 December 1996, Application No. 15318/89, paras. 43–45; Al-Adsani v. UK, Judgment of 21 November 2001, Application No. 35763/97, para. 55; Bankovic v. Belgium and 16 other Contracting States, Decision of 12 December 2001, Application No. 52207/99, para. 55. For a scholarly account, see Mark E. Villiger (2005), “Articles 31 and 32 of the Vienna Convention on the Law of Treaties in the case-law of the European Court of Human Rights,” in Jürgen Bröhmer et al (eds.), Internationale Gemeinschaft und Menschenrechte: Festschrift für Georg Ress zum 70. Geburtstag am 21. Januar 2005 at 317 (Dordrecht: Martinus Nijhoff Publishers), at 330. As to the rules on the interpretation of the ECHR in general, see F. Ost (1992), “The Original Canons of Interpretation of the European Court of Human Rights,” in M. Delmas-Marty (ed.), The European Convention for the Protection of Human Rights: Inter­ national Protection versus National Restrictions 283 (Dordrecht: Martinus Nijhoff Publishers), at 294; Mowbray (2005), “The Creativity of the European Court of Human Rights,” at 59. 82 As to the object and purpose of the ECHR, see e.g. ECtHR, Loizidou v. Turkey, Judgment of 23 March 1995, Preliminary Objections, Application No. 15318/89, para. 75. 83 ECtHR, Ireland v. The United Kingdom, Judgment of 18 January 1978, Application No. 5310/71, para. 239. See also ECtHR, Loizidou v. Turkey, Preliminary Objections, Judgment of 23 March 1995, Application No. 15318/89, para. 70. 84 ECtHR, McCann and others, Judgment of 27 September 1995, Application No. 18984/91, para. 146. See also e.g. Ilhan v Turkey, Judgment of 27 June 2000, Application No. 22277/93, para. 73; Isayeva v Russia, Judgment of 24 February 2005, Application No 57950/00, para. 172.

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State’s duty ‘to ensure’ the rights and freedoms enshrined in general human rights treaties and the victim’s right to an effective remedy is considered warranted. This is because of the above-discussed special characteristics of criminal procedures. Lastly, the view of these bodies as regards the rationales and legal bases for States’ procedural obligations when faced with serious human rights violations is of significant importance at the conceptual level, as it makes clear that criminal procedures serve not only to reaffirm the importance the concerned society attaches to the infringed rights, but also provide victims of these violations with an important means for seeking redress. I will elaborate on this important matter in Chapter IV. B. The Nature of States’ Obligation to Investigate An important issue related to the interplay between the State’s obligation to investigate, and that to prosecute those responsible for, serious human rights violations is the nature of the former, namely whether the State’s duty to investigate these infringements is an obligation of means or one of results. This matter is crucial as the State’s obligation to investigate these violations precedes the State’s duty to prosecute. Human rights treaty monitoring bodies have consistently held that the State’s obligation to investigate serious human rights violations is an obligation of means. In its General Comment No. 2, the UN Committee against Torture demands that States exercise due diligence to investigate, prosecute and punish acts of torture or ill-treatment committed by private actors.85 In its General Recommendation No. 19, the Committee on the Elimination of Discrimination against Women takes a similar view.86 The UN Office of the High Commissioner for Human Rights (hereinafter “the OHCHR”) also endorses this view.87 The African Commission, the ECtHR and the IACtHR have also taken the view that the State’s obligation to conduct an effective investigation into an alleged serious human rights violation is an obligation of means. In Mikheyev v. Russia, which con­cerned  the alleged lack of investigation into complaints of ill-treatment, the ECtHR held that “the lack of conclusions of any given investigation, does not, by itself, mean that it was ineffective.”88 Additionally, the ECtHR has held that prosecutions and convictions should only take place if warranted by the findings of the investigation or trial respectively.89 85 Committee against Torture, General Comment No. 02: Implementation of Article 2 by State Parties, para. 18, 27 November 2007, UN Doc. CAT/C/GC/2/CRP.1/Rev.4. 86 Committee on the Elimination of Discrimination against Women, General Recommendation No. 19: Violence against Women, 29 January 1992, paras. 9, 24(a), 24(r), and 24(t), in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 302. 87 Office of the High Commissioner for Human Rights, in cooperation with the International Bar Association (2003), Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (New York: United Nations), at 800. 88 ECtHR, Mikheyev v. Russia, Judgment of 26 January 2006, Application No. 77617/01, para. 107. See also ECtHR, Paul and Audrey Edwards v. UK, Judgment of 14 March 2002, Application No. 46477/99, para. 71; ECtHR, Shanaghan v. UK, Judgment of 4 May 2001, Application No. 37715/97, para. 90. 89 ECtHR, Öneryildiz v. Turkey, Judgment of 30 November 2004, Application No. 48939/99, paras. 94, 96. With respect to the State’s obligation to investigate complaints of ill-treatment, see ECtHR, Mikheyev v. Russia, Judgment of 26 January 2006, Application No. 77617/01, para. 107.

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Similarly, the IACtHR has, since its 1988 judgment in the Velásquez Rodriguez case, expressly recognised that the State’s obligation to investigate human rights violations is one of means.90 The African Commission has also taken the view that the State’s obligation to investigate human rights violations is an obligation of means. In this respect, the African Commission has stated that what is critical for assessing compliance with this obligation is whether the State “undertakes its duties seriously.”91 Regarding the distinction between obligations of means and obligations of result, it should first be noted that the Draft Articles on State Responsibility provisionally adopted by the International Law Commission (hereinafter “the ILC”) on first reading in 1996 expressly referred to this distinction.92 Specifically, Article 20 of the Draft defined obligations of means as those requiring a State “to adopt a particular course of conduct” and stated that there would be a breach of that type of obligation when “the conduct of the State is not in conformity with that required of it by that obligation.” On the other hand, Article 21 of the Draft defined obligations of result as those requiring a State “to achieve, by means of its own choice, a specified result,” and provided that there would be a breach of this kind of obligation if “the State does not achieve the result required of it by that obligation.” However, this classification of States’ international obligations was deleted in the final Draft Articles on State Responsibility adopted by the ILC in 2001. Despite this, such a classification remains important in order to ascertain the content of a State’s obligation in a given field. Specifically, the fact that the State’s obligation to conduct an effective investigation is an obligation of means indicates that prosecution is not necessarily required, and it should only take place if justified by the findings of the investigation. It should, however, be stressed that this does not mean that States have unfettered discretion with respect to the fulfilment of their obligation to investigate any alleged serious human rights violation. International instruments and supervisory bodies have made this clear, by identifying a series of requirements that States must meet when complying with this obligation: investigations shall be carried out promptly, thoroughly and effectively by independent and impartial bodies.93 The IACtHR has elaborated further on the thoroughness requirement when stating that States must use all means at their disposal to 90 IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, para. 177. 91 ACHPR, Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, in Twenty-First Activity Report 2007, Annex III, para. 158. 92 International Law Commission, Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, UN Doc. A/51/10, at 60. 93 See e.g. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 3(b); UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 15; UN HR Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment of Punishment), para. 14. Regarding decisions of the UN HR Committee, see Ruzmetov v. Uzbekistan, Communication No. 915/200, Views of 19 April 2006, para. 8.2; Lalith Rajapakse v. Sri Lanka, Communication No. 1250/2004, Views of 5 September 2006, para. 9.5. See also the UN High Commissioner for Human Rights, The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law: Note by the High Commissioner for Human Rights, 10 November 2003, UN Doc. E/CN.4/2004/57, at 6, para. 20. With respect to decisions of the ECtHR, see Kelly and others v. The United Kingdom, Judgment of 4 May 2001,

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conduct the investigation.94 Additionally, the African Commission, the ECtHR and the IACtHR have made clear that the investigation must be started by the authorities on their own initiative, once the matter has come to their attention.95 Furthermore, the African Commission, the ECtHR and Philip Alston, in his former position of UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, have emphasised the need for transparency when States fulfil their obligation to investigate serious human rights violations. The ECtHR has expressly held that there must be a sufficient element of public scrutiny of the investigation and its results.96 Likewise, the African Commission and Philip Alston, in his above-mentioned former position, have demanded that States publish the findings of the investigation conducted.97 Alston specifically urged States to provide information concerning how and by whom the investigation was carried out, the findings, and any prosecution subsequently undertaken.98

Application No. 30054/96, paras. 94–98; Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, para. 32; Khashiyev and Akayeva v. Russia, Judgment of 24 February 2005, Application Nos. 57942 and 57945/00, paras. 153–155. Regarding decisions of the IACtHR, see e.g. Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, para. 180; Genie Lacayo v. Nicaragua, Merits, Reparations and Costs, Judgment of 29 January 1997, Series C No. 30, paras. 77, 79, 97; Case of Heliodoro Portugal v. Panamá, Preliminary Exceptions, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186, para. 144. With respect to the African system for the protection of human rights, see ACHPR, Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal Conference of East Africa v. Sudan, para. 51; ACHPR, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), Part I.F, para. 19. 94 See e.g. IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, para. 177; IACtHR, Case of Heliodoro Portugal v. Panamá, Preliminary Exceptions, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186, para. 144. 95 With respect to decisions of the IACtHR, see Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, para. 177; Case of Heliodoro Portugal v. Panamá, Preliminary Exceptions, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186, para. 144. Regarding decisions of the ECtHR, see Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, paras. 94–98; Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, para. 32; Khashiyev and Akayeva v. Russia, Judgment of 24 February 2005, Application Nos. 57942/00 and 57945/00, paras. 153–155. In respect of decisions of the ACHPR, see Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal Conference of East Africa v. Sudan, para. 51. 96 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, paras. 94–98; ECtHR, Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, para. 32; ECtHR, Khashiyev and Akayeva v. Russia, Judgment of 24 February 2005, Application Nos. 57942 and 57945/00, paras. 153–155. 97 For the African system for the protection of human rights, see ACHPR, Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal Conference of East Africa v. Sudan, para. 51. 98 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Mr. Philip Alston, 22 December 2004, UN Doc. E/CN.4/2005/7, at 17.

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In addition, the ECtHR has held that in all cases, the next of kin of the victim must be involved in the procedure. This requirement will be analysed at length in the next chapter. Lastly, the ECtHR has ruled that these requirements apply beyond the stage of the official investigation. In particular, it has stated that where proceedings in the national courts have been instituted, the proceedings as a whole, including the trial stage, must satisfy these requirements.99 C. Content of States’ Procedural Obligations While the State’s obligations to conduct an effective investigation into, and to prosecute those responsible for, serious human rights violations have for a long time been recognised, the question arises as to whether there is also a State’s obligation to punish those responsible for such infringements. Although few treaties expressly require effective punishment,100 increasingly both non-conventional instruments and human rights treaty monitoring bodies demand so. In its General Comment No. 20, the UN Human Rights Committee expressly requires States to punish acts of torture.101 In some individual decisions, the UN Human Rights Committee has also taken this view.102 Likewise, in its General Comment No. 2, the UN Committee against Torture demands that States investigate, prosecute and punish acts of torture or ill-treatment.103 Principle 19, read together with Principle 22, of the Set of Principles on Combating Impunity also endorses the view that States’ procedural obligations encompass the duty of duly punishing those responsible for serious crimes under international law.104 Philip Alston, in his former position of UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, also took this view.105 The African Commission, the IACtHR and the ECtHR have also endorsed the view that States’ procedural obligations when faced with serious human rights violations include, at least in those situations in which it is warranted, the obligation to punish such violations. The African Commission has, in several thematic resolutions and decisions on individual complaints, stated that amnesties for human rights violations are inconsistent with States’ obligations under the African Charter.106 In addition, the African Commission has 99 See ECtHR, Öneryildiz v. Turkey, Judgment of 30 November 2004, Application No. 48939/99, para. 95. 100 Notably, the UN Convention against Torture, Art. 4(2), and the Genocide Convention, Art. V. 101 UN HR Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment of Punishment), paras. 8 and 13. 102 See e.g. UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, para. 8.2. 103 Committee against Torture, General Comment No. 02: Implementation of Article 2 by State Parties, 27 November 2007, UN Doc. CAT/C/GC/2/CRP.1/Rev.4, para. 18 (emphasis added). 104 Diane Orentlicher, “Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, Addendum, 8 February 2005, UN Doc. E/ CN.4/2005/102.Add.1. 105 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Mr. Philip Alston, 8 March 2006, UN Doc. E/CN.4/2006/53, at 15–16. 106 For thematic resolutions, see e.g. ACHPR, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, Part I.E.

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maintained that legislative measures granting pardon to those responsible for human rights violations constitute a violation of the victim’s right to judicial protection and to have his or her cause heard under Article 7, paragraph 1, of the African Charter.107 In Zimbabwe Human Rights NGO Forum v. Zimbabwe, in supporting its conclusion in this respect, the African Commission maintained that the concerned Act “prevented victims of … alleged human rights violations from seeking effective remedy and compensation.”108 The IACtHR has, since its first contentious cases, also adopted this view, when maintaining that States Parties to the ACHR have the obligation to investigate any violation of the rights recognised in this Convention, to identify those responsible and to impose appropriate punishment.109 Recently, the IACtHR elaborated further on the State’s obligation to punish those responsible for serious human rights violations, holding that the punishment of those persons should be proportionate to the nature and gravity of the crime punished.110 While the ECtHR continues to maintain that the State’s obligation in the event of a serious human rights violation entails the carrying out of an effective official investigation, it has added that such an investigation must be “capable of leading to the identification and punishment of those responsible.” More importantly, the ECtHR has, in a judgment of

para. 16(b) (encouraging States to “ensure that there is no immunity from prosecution for nationals suspected of torture”); ACHPR, The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Section C(b)(4)(a), DOC/OS(XXX)24, May 2003, available at http://www.achpr.org/instruments/principles-guidelines-right-fair-trial/. Accessed on 2 June 2012 (“The granting of amnesty to absolve perpetrators of human rights violations from accountability violates the right of victims to an effective remedy”); ACHPR, The Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa, para. 6 (providing that amnesties for perpetrators of human rights violations constitute a violation of the right to remedy). This declaration was adopted by the ACHPR on 15 November 1999 through Res. 41(XXVI)99: Resolution on the Right to Fair Trial and Legal Aid in Africa. For decisions on individual complaints, see Communications 54/91, 61/91, 98/93, 164/97-196/97 and 210/98, Malawi African Association; Amnesty International; Ms Sarr Diop; Union Interafricaine des Droits de l’Homme and Raddho; Collectif des Veuves et Ayants-Droits; Association Mauritanienne des Droits de l’Homme v. Mauritania, para. 83. 107 ACHPR, Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, para. 212. 108 Id. paras. 200, 212. 109 See e.g. IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 166, 174 (emphasis added). See also IACtHR, Godinez Cruz case, Judgment of 20 January 1989, Series C No. 5, para. 175; IACtHR, Trujillo-Oroza v. Bolivia, Reparations, Judgment of 27 February 2002, Series C No. 92, para. 99; IACtHR, the Caracazo v.Venezuela, Reparations, Judgment of 29 August 2002, Series C No. 95, para. 115; Case of Las Palmeras v. Colombia, Reparations, Judgment of 26 November 2002, Series C No. 96, para. 66; Case of AlmonacidArellano et al v. Chile, Preliminary Objections, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No. 154, para. 110; Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006, Series C No. 153, para. 119; Case of Heliodoro Portugal v. Panamá, Preliminary Exceptions, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186, para. 144. 110 IACtHR, Case of Heliodoro Portugal v. Panamá, Judgment of 12 August 2008, Preliminary Exceptions, Merits, Reparations and Costs, Series C No. 186, para. 203. See also Vargas-Areco v.

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2004, explicitly required prosecution and punishment in those cases in which they appear to be warranted. In Abdülsamet Yaman v. Turkey, which concerned the ill-treatment of an individual while in police custody and the alleged lack of an effective investigation into his complaints, the ECtHR stated as follows: [W]here a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance for the purposes of an ‘effective remedy’ that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible.111

D. The Objectives of Criminal Procedures for Serious Human Rights Violations In my view, the most attainable objectives of criminal procedures for serious human rights violations are expressivist ones, namely the messaging value of such procedures to reaffirm the importance the concerned society attaches to the infringed rights and, more generally, the authority of the law.112 While there is no definitive empirical data,113 criminal procedures for these infringements are likely to attain these objectives because of the features of such procedures. To begin with, and as discussed above, these procedures make it possible for a thorough and independent investigation to be conducted and for the criminal responsibility of those involved to be established. As analysed earlier, in supporting their view that criminal procedures play a critical role in the event of a serious human rights violation, human rights treaty monitoring bodies have emphasised these special characteristics of such procedures.114 As will be discussed in Chapter IV, the public and official nature of criminal procedures also facilitate the attainment of their expressivist objectives. Human rights treaty monitoring bodies have also expressly noted the messaging value of criminal procedures to reaffirm the importance the concerned society attaches to the infringed rights and to the prohibition of certain conducts. For instance, in the case of Paraguay, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No 156, para. 108; Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, Judgment of 11 May 2007, Series C No. 163. 111 ECtHR, Abdülsamet Yaman v. Turkey, Judgment of 2 November 2004, Application No. 32446/96, para. 55. 112 See e.g. Drumbl (2007), Atrocity, Punishment, and International Law (Cambridge: Cambridge University Press), at 12, 17; Lara J. Nettelfield (2010), Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State (Cambridge: Cambridge University Press), at 11. 113 Oskar N.T. Thoms, James Ron, and Roland Paris (2010), “State-Level Effects of Transitional Justice: What Do We Know?”, 4.3 International Journal of Transitional Justice 355, at 358. 114 See e.g. ECtHR, Isayeva v Russia, Judgment of 24 February 2005, Application No. 57950/00. See also ECtHR, Yaşa v. Turkey, Judgment of 2 September 1998, Application No. 22495/93, para. 74; and ECtHR, Isayeva, Yusupova and Bazayeva v. Russia, Judgment of 24 February 2005, Application Nos. 57947/00, 57948/00 and 57949/00, paras. 148–149. For a scholarly account, see Ratner et al. (2009), Accountability for Human Rights Atrocities in International Law, at 259; Freeman (2006), Truth Commissions and Procedural Fairness, at 76; Nino (1996), Radical Evil on Trial, at 146; Uprimmy and Saffon (2007), “Verdad Judicial y Verdades Extrajudiciales: la Búsqueda de una Complementariedad dinámica,” at 172–173; Orentlicher (2007), “Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,” at 15.

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Menson and others v. The United Kingdom, which concerned the death of a black man as a result of being set on fire by four white youths in a racist attack, the ECtHR expressly stated that an effective official investigation in the event of a racially motivated attack serves to reassert “society’s condemnation of racism ….”115 There are also some empirical studies supporting this view. In her study on the impact of the ICTY in Bosnia and Herzegovina, Lara Nettelfield concludes that by advancing the processes of democratization of such country in several ways, the ICTY has partially contributed to various aspects of expressivism as a rationale for criminal trials.116 She maintains that the ICTY has contributed to the processes of democratization of Bosnia and Herzegovina in the following ways: first, by establishing a space for accountability and a strong fact base, it facilitated the mobilization of social movements that demanded accountability, legislative changes, and financial redress,117 and promoted democratic engagement, particularly for victims’ relatives.118 Second, the ICTY provided the inspirational and empirical basis for further action by victims and NGOs.119 In this respect, Nettelfield states that “the [ICTY] findings provided the empirical material that enabled victims and NGOs to make claims of accountability and mobilize on behalf of their missing relatives.”120 Third, it “promoted the development of domestic institutional capacity to try war crimes.121 Fourth, it “changed attitudes about accountability.”122 Last, while recognising that the support of the ICTY by the elites was mostly rhetorical, Nettelfield maintains that their public attitude and other factors contributed to the internalisation of human rights norms, modelled by the tribunal.123 Likewise, in her study on the impact of the ICTY in Bosnia, Diane Orentlicher finds that: Bosniaks attach considerable value to the Tribunal’s ability to establish through the rigors of an impartial judicial process the fundamental facts of what was done to them, who was responsible, and the nature of the crimes committed.124

The study by Orentlicher adds that victims stress this, because of the denials they often face from large parts of the population.125 In order to achieve these expressivist objectives, some minimum conditions should, however, be met: there should be clear and objective criteria for case selection, and procedures should be conducted observing due process requirements. 115   ECtHR, Menson and others v. The United Kingdom, Decision of admissibility of 6 May 2003, Application No. 47916/99, at 13–14. 116   Nettelfield (2010), Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State, at 278. 117    Id. at 3, 5, 15, 273. 118   Id. at 15, 21, 143, 273. 119   Id. at 21, 101. 120  Id. at 21, 273. 121   Id. at 3, 5, 17. 122 Id. at 3, 5. 123 Id. at 274. 124 Diane F. Orentlicher (2010), That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia (New York: Open Society Justice Initiative and International Center for Transitional Justice), at 42. 125 Id. at 99.

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Other rationales of criminal procedures for ordinary crimes such as retribution and deterrence appear to have much less impact regarding procedures for serious human violations, particularly in situations of mass atrocity. The widespread nature of violence in these situations is a major challenge for the premises of these rationales of ordinary criminal procedures.126 E. Scope Ratione Personae A question that often arises in the context of international human rights law is whether States have the procedural obligations discussed in this section with respect to acts perpetrated by private individuals that impair the enjoyment of core human rights. This question arises because of the traditional conception of international human rights law as a set of rules aimed at regulating the actions of States exclusively. The objective of this subsection is to analyse this matter. With this aim, it first examines the approach of United Nations instruments and supervisory bodies. Subsequently, it discusses the case law of regional human rights treaty monitoring bodies. Thereafter, it analyses procedural obligations under specific international instruments. Lastly, it presents the approach adopted in this work. It should be noted that this section uses the expression ‘acts perpetrated by private individuals that impair the enjoyment of core human rights’ to indicate that while the act originating a particular human rights violation may be perpetrated both by State officials and private individuals, in order that one of these violations exists there must be an action or inaction of the concerned State from which arises its responsibility. i. United Nations Human Rights Instruments and Bodies United Nations human rights instruments and bodies widely recognise that States’ obligations to investigate and prosecute exist with respect to acts perpetrated by private individuals that impair the enjoyment of core human rights. The main legal basis for this approach has been States’ obligation ‘to ensure’ human rights under various international instruments. In its General Comments and decisions on individual cases, the UN Human Rights Committee has taken the view that States Parties to the ICCPR shall take appropriate measures to investigate and punish acts perpetrated by private individuals that impair the enjoyment of core human rights.127 The legal basis for such a duty is, in the view of the UN Human Rights Committee, States’ obligation ‘to ensure’ the rights recognised in the ICCPR under Article 2 of this Treaty. Additionally, the Committee has required States Parties to the ICCPR to report in relation to torture on the provisions of their criminal law with

126 Drumbl (2007), Atrocity, Punishment, and International Law, chapters 3, 6. See also Nettelfield (2010), Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State, at 10–11. 127 UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 8.

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respect to acts committed by public officials or persons acting on behalf of the State, as well as by private persons.128 In its decisions in individual cases, the UN Human Rights Committee has also affirmed States’ procedural obligations with respect to acts perpetrated by private individuals that impair the enjoyment of core human rights. In Delgado Páez v. Colombia, which concerned the failure of Colombian authorities to adequately respond to death threats and an attack against a school teacher by unknown authors, the Committee held that States shall take reasonable and appropriate measures – including the conduct of an effective investigation – to protect the right to security of individuals, even if they are not detained, when there are objective circumstances warranting the adoption of these measures.129 The facts in this case make clear the view of the Committee that acts by private individuals may constitute objective circumstances warranting this type of measure. According to the Committee, the legal bases for this State’s duty is the obligation ‘to ensure’ the rights recognised in the ICCPR under Article 2, paragraph 1, and the principle of effectiveness governing the interpretation of human rights treaties.130 Other UN human rights treaty monitoring bodies have also taken the view that States shall investigate and prosecute acts committed by private individuals that impair the enjoyment of core human rights. For instance, in its General Recommendation No. 19, the Committee on the Elimination of Discrimination against Women (hereinafter “the CEDAW Committee”) expressly requires States to investigate and punish acts of violence against women perpetrated by both State agents and private individuals.131 In its decisions in individual cases, the CEDAW Committee has affirmed this view. For example, in Ms. A.T. v. Hungary, the CEDAW Committee found that Hungary had failed to guarantee several of the rights provided for in the CEDAW, based on Hungary’s failure to take effective measures to investigate and guarantee the physical and mental integrity of a woman who had been subjected to recurring ill-treatment by her former partner.132 In its General Comment No. 8, the Committee on the Rights of the Child also takes the view that Sates shall proscribe corporal punishment and other cruel or degrading forms of punishment against children whoever the perpetrator is.133 Similarly, the Committee on the Elimination of Racial Discrimination (hereinafter “the CERD Committee”) has, in its decisions in individual cases, affirmed States’ obligation to investigate with due diligence

128 UN HR Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment of Punishment), paras 2, 13. See also UN HR Committee, General Comment No. 6: Article 6 (Right to Life), para. 3. 129 UN HR Committee, Delgado Páez v. Colombia, Communication No. 195/1985, Views of 12 July 1990, paras. 5.5, 5.6. 130 Id. para. 5.5. 131   Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence against Women, paras. 9, 24(a), 24(r), and 24(t). 132 CEDAW Committee, Ms. A. T. v. Hungary, Communication No. 2/2003, Views of 26 January 2005, paras. 9.3–9.4. 133 Committee on the Rights of the Child, General Comment No. 8 (2006): The Right of the Child to Protection From Corporal Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19; 28, para. 2; and 37, inter alia), 2 March 2007, UN Doc. CRC/C/GC/8*, paras. 35 and 40.

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and expedition threats of racial violence made by private individuals.134 Likewise, in its General Recommendation No. 27, the CERD Committee demands that States investigate and punish acts of violence against Roma perpetrated by both public officials and private individuals.135 Additionally, several UN instruments expressly impose procedural obligations on States with respect to impairments of the rights they enshrine or the international crimes they proscribe committed by both State agents and private individuals. For instance, the Genocide Convention provides that persons responsible for genocide or any of the acts prohibited in this Convention shall be punished “whether they are constitutionally rulers, public officials or private individuals.”136 The International Convention for the Protection of All Persons from Enforced Disappearance also expressly requires States to take appropriate measures to investigate, and to bring to justice those responsible for, acts equivalent to those of forced disappearance perpetrated by private individuals acting without the authorisation, support or acquiescence of the State.137 Likewise, the UN Declaration on the Elimination of Violence against Women requires States to investigate and punish acts of violence against women perpetrated by both State agents and private individuals.138 Regarding the UN Convention against Torture, it should be noted that while the definition of torture included in this Convention requires the involvement of a State official, the Committee against Torture has held that this involvement could be derived from the failure of a State agent to take effective measures to investigate, prosecute and punish torture or ill-treatment perpetrated by private actors.139 It is therefore clear that in the view of the CAT Committee, States also have the obligations to investigate, prosecute and punish torture or ill-treatment committed by private actors. Both the Office of the UN High Commissioner for Human Rights140 and Philip Alston, in his former capacity of UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,141 have also taken the view that States’ procedural obligations with respect to serious human rights violations extend to acts perpetrated by private individuals that impair the enjoyment of core human rights. 134 See e.g. Committee on the Elimination of Racial Discrimination, L.K. v. The Netherlands, Communication No. 4/1991, Views of 16 March 1993, para. 6.6. 135 Committee on the Elimination of Racial Discrimination, General Recommendation XXVII on Discrimination against Roma, 16 August 2000, para. 12, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 259. 136 The Genocide Convention, Art. IV. 137 International Convention for the Protection of All Persons from Enforced Disappearance, Art. 3. 138 The UN Declaration on the Elimination of Violence against Women, Art. 4 (c), 20 December 1993, in Human Rights: A Compilation of International Instruments, Vol. II: Regional Instruments), UN Doc. ST/HR/1/Rev.5 (Vol. II), at 177. 139 Committee against Torture, General Comment No. 02: Implementation of Article 2 by State Parties, 27 November 2007, UN Doc. CAT/C/GC/2/CRP.1/Rev.4, para. 18. 140 Office of the High Commissioner for Human Rights, in cooperation with the International Bar Association (2003), Human Rights in The Administration of Justice: A Manual on Human Rights For Judges, Prosecutors and Lawyers, at 807. 141 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Mr. Philip Alston, 22 December 2004, UN Doc. E/CN.4/2005/7, at 20.

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ii. Case Law of Regional Human Rights Treaty Monitoring Bodies With respect to regional systems for the protection of human rights, this subsection analyses the approach of the supervisory bodies within the African, European and InterAmerican systems. a) The European System for the Protection of Human Rights The ECtHR has, since its 1995 judgment in McCann and others, predominantly taken the view that States’ obligation to conduct an effective investigation exists with respect to acts perpetrated by both State agents and private individuals that impair the enjoyment of core human rights. In McCann and others, the ECtHR held that “there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.”142 The expression inter alios suggests that the ECtHR was prepared to accept that this State’s obligation also exists with respect to killings perpetrated by private individuals. In the subsequent case of Ergi v. Turkey, the ECtHR expressly dealt with this matter. This case concerned the killing of an individual as a result of an armed incident involving Turkish forces in a Turkish village. The facts in the case were disputed. While the applicant claimed that the Turkish security forces shot indiscriminately at civilian houses causing the death of his sister, the government denied the applicant’s allegations of indiscriminate firing by its forces and submitted that given the location of its troops they could not have fired the shot which killed the applicant’s sister. Under Article 2 of the ECHR, the applicant claimed that his sister had been killed by Turkish security forces in violation of Article 2 of the ECHR and that there had not been an effective investigation into the killing. For its part, the government, in addition to insisting on its very different version of the facts of the case, submitted that the ECommHR had wrongly applied to the present case the principles enunciated by the ECtHR in McCann and Others v. The United Kingdom as in its view in contrast to the present case, in the latter it had been proved that the persons concerned had been killed by the security forces.143 In Ergi v. Turkey, and after having found that there was insufficient evidentiary basis to conclude that the applicant’s sister had been intentionally killed by the security forces, the ECtHR held that “[State’s] obligation [to carry out an effective official investigation when individuals have been killed] is not confined to cases where it has been established that the killing was caused by an agent of the State.”144 Although the ECtHR did not expressly limit the scope of this principle, the factual circumstances of the case militate against a broad interpretation of it, because even the government admitted that its forces had been “engaged in an armed clash with the PKK at a point to the south-east of the village” where the killing took place at the relevant time.145 However, the ECtHR removed in its subsequent case law any State agent’s requirement with respect to States’ obligation to carry out an effective investigation into any alleged

142 ECtHR, McCann and Others v. The United Kingdom, Judgment of 27 September 1995, Application No. 18984/91, para. 161. 143 ECtHR, Ergi v.Turkey, Judgment of 28 July 1998, Application No. 23818/94, para 75. 144 Id. para. 82. 145 Id. para. 16.

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violation of the right to life. Notably, in Yaşa v. Turkey, which concerned the killing of an individual, the ECtHR reaffirmed its view that “[State’s] obligation [to carry out an effective official investigation when individuals have been killed] is not confined to cases where it has been established that the killing was caused by an agent of the State,”146 even though, and in sharp contrast to Ergi v. Turkey, in that case it had not been established that Turkish security forces were involved in any manner in the circumstances that resulted in the killing.147 This was emphasised by the Turkish government which submitted that “there was no evidence that State agents had been implicated in the commission of the alleged acts” and that “the applicant had at no stage made any explicit accusation to that effect.”148 In Menson and others v. The United Kingdom, the ECtHR removed any remaining doubt on this matter. This case concerned the death of a black man as a result of being set on fire by four white youths in a racist attack. As expressly recognised by the ECtHR, in this case the applicants did not claim that the State had actively caused the death, or that the authorities knew, or ought to have known, that he was at risk of violence.149 The ECtHR ruled, however, that the absence of any direct State responsibility for the death of Michael Menson did not exclude the applicability of Article 2 of the ECHR.150 In this respect, the ECtHR went on to say that: [State’s] obligation [to take steps to safeguard the lives of those within its jurisdiction under Article 2(1) of the ECHR] requires by implication that there should be some form of effective official investigation [capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment] where there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances.151

The ECtHR added that such a State’s obligation has even greater importance where the attack is racially motivated since it serves to reassert “society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.”152 The ECtHR has taken the same view with respect to State’s obligation to conduct an effective investigation under Article 13 of the ECHR, when holding that States must carry out an investigation with respect to any violent killing, regardless of the official or private character of the perpetrator. In this respect, in Tanrikulu v. Turkey, the ECtHR, held that “[i]t is not in dispute that the applicant’s husband was the victim of an unlawful killing

146 ECtHR, Yaşa v. Turkey, Judgment of 2 September 1998, Application No. 22495/93, para. 100. See also e.g. ECtHR, Tanrikulu v. Turkey, Judgment of 8 July 1999, Application No. 23763/94, para. 103; Akkoç v. Turkey, Judgment of 10 October 2000, Application Nos. 22947/93, 22948/93, paras. 96, 97; Güngör v. Turkey, Judgment of 22 March 2005, Application No. 28290/95, paras. 3, 73, 79, 89. 147 ECtHR, Yaşa v. Turkey, Judgment of 2 September 1998, Application No. 22495/93, para. 97. 148 Id. para. 9. 149 ECtHR, Menson and others v. The United Kingdom, Decision of admissibility of 6 May 2003, Application No. 47916/99, at 12. 150 Id. at 12. 151   Id. at 12–13. 152  Id. at 13–14.

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and she may therefore be considered to have an ‘arguable claim’ [under Article 13 of the ECHR].”153 As regards the scope of the State’s obligation to conduct an effective investigation into complaints of violations of the prohibition of ill-treatment under Article 3 of the ECHR, it should be noted that while in some cases the ECtHR has solely referred to illtreatment allegedly perpetrated by States agents,154 this Court has extended such obligation to complaints concerning ill-treatment allegedly perpetrated by private individuals. In this respect, it is relevant to mention the case of M.C. v. Bulgaria, which concerned the dismissal by Bulgarian authorities of the applicant’s complaint that she had been raped by two private individuals on the grounds that she did not show during the proceedings that she had actively opposed such a sexual attack.155 After reaffirming the principle elaborated in A v. The United Kingdom and Z and others v. The United Kingdom that States must “take measures designated to ensure individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals,”156 the ECtHR expressly held that States’ obligation to carry out an effective official investigation “cannot be considered in principle to be limited solely to cases of ill-treatment by state agents.”157 Furthermore, the ECtHR applied this general principle in the circumstances of the case when concluding as follows: In sum, the Court, without expressing an opinion on the guilt of P. and A., finds that the investigation of the applicant’s case and, in particular, the approach taken by the investigator and the prosecutors in the case fell short of the requirements inherent in the States’ positive obligations – viewed in the light of the relevant modern standards in comparative and international law – to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse.158

However, it should be mentioned that the case law of the ECtHR with respect to the State’s obligation to conduct an effective investigation under Article 13 of the ECHR regarding complaints of ill-treatment perpetrated by private individuals is less straightforward. Although the ECtHR has adopted the view that what is required under Article 13 of the ECHR is to have an arguable claim of ill-treatment, it has added that such ill-treatment must have, at least, been allegedly perpetrated by a State agent.159

153 ECtHR, Tanrikulu v. Turkey, Judgment of 8 July 1999, Application No. 23763/94, para. 118. See also e.g. ECtHR, Kiliç v. Turkey, Judgment of 28 March 2000, Application No. 22492/93, para. 92. 154 See e.g. the following cases of the ECtHR: Assenov and others v Bulgaria, Judgment of 28 October 1998, Application No. 24760/94 para. 102; Satik and others v. Turkey, Judgment of 10 October 2000, Application No. 31866/96, para. 62; Bekos and Koutropolos v. Greece, Judgment of 13 December 2005, Application No. 15250/02, para. 53; Corsacov v. Moldova, Judgment of 4 April 2006, Application No. 18944/02, para. 68. 155 ECtHR, M.C. v. Bulgaria, Judgment of 4 December 2003, Application No. 39272/98, para. 109. 156 ECtHR, A v. The United Kingdom, Judgment of 23 September 1998, Application No. 11932/86, para. 22; and ECtHR, Z and others v. The United Kingdom, Judgment of 10 May 2001, Application No. 29392/95, paras. 73–75. 157 ECtHR, MC v. Bulgaria, Judgment of 4 December 2003, Application No. 39272/98, para. 151. 158 Id. para. 185. 159 ECtHR, Assenov and others v Bulgaria, Judgment of 28 October 1998, Application No. 24760/94, para. 118.

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In conclusion, the proposition that States have an obligation to carry out an effective investigation into complaints of acts perpetrated by both State agents and private individuals that allegedly impair the enjoyment of core human rights is well-supported by the case law of the ECtHR.160 The main legal basis for this approach has been States’ general obligation ‘to secure’ the rights recognised in the ECHR under Article 1 of this Convention.161 b) The Inter-American System for the Protection of Human Rights The IACtHR has, since its 1988 judgment in the Velasquez Rodriguez case, expressly held that the State’s duty to investigate human rights violations, and to identify and punish those responsible, exist with respect to acts perpetrated by both State agents and private individuals that impair the enjoyment of human rights.162 Specifically, in the Velasquez Rodriguez case the IACtHR stated as follows: An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.163

According to the IACtHR, the legal basis for these duties is the State’s general obligation ‘to ensure’ human rights under Article 1, paragraph 1, of the ACHR.164 c) The African System for the Protection of Human Rights The African Commission has also affirmed the State’s obligations to investigate and prosecute acts perpetrated by private individuals that impair the enjoyment of human rights. In Zimbabwe Human Rights NGO Forum v. Zimbabwe, the Commission derived these

160 As to infringements of the right to life, in addition to the cases analysed above, see e.g. ECtHR, Güngör v. Turkey, Judgment of 22 March 2005, Application No. 28290/05, paras. 3, 99–102. This approach has also been expressly accepted by certain respondent States before the ECtHR, i.e. Turkey in Akkoç v. Turkey. See Akkoç v. Turkey, Judgment of 10 October 2000, Application Nos. 22947/93, 22948/93, para. 96. 161 See e.g. ECtHR, X and Y v. The Netherlands, Judgment of 26 March 1985, Application No. 8978/80; ECtHR, Platform “Ärtze für das Leben” v. Austria, Judgment of 21 June 1988, Application No. 10126/82. For scholarly accounts, see Clapham (2006), Human Rights Obligations of NonState Actors, at 366; Uğur Erdal and Hasan Bakirci (2006), Article 3 of the European Convention on Human Rights: A Practitioner’s Handbook (Geneva: World Organisation Against Torture), at 225. But see Mowbray (2004), The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, at 59, 64 (limiting the State’s obligation to investigate into complaints of ill-treatment to those allegedly committed by State agents). 162 IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 172–176. 163 Id. para. 172. 164 See e.g. IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 166, 177; IACtHR, Godinez-Cruz v. Honduras, Merits, Judgment of 20 January 1989, Series C No. 5, paras. 182–4, 188; IACtHR, Mynra Mack-Chang v. Guatemala, Judgment of 25 November 2003, Series C No. 101, para. 156.

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obligations from Article 1 of the African Charter, which places on States the obligations to recognise, to promote and to ensure the rights enshrined in this regional instrument, and to take measures to give effect to these rights.165 iii. Conclusion As mentioned above, the question of the scope ratione personae of States’ procedural obligations when faced with serious human rights violations has arisen because of the traditional conception of international human rights law as a set of rules aimed at regulating the actions of States exclusively. However, this area of law has undergone an important evolution on this matter. Notably, as the above discussion demonstrates, the proposition that States’ obligation ‘to ensure’ human rights encompasses a duty to take measures to protect against interference of human rights by private individuals is well-accepted in international practice. In particular, there has been a realisation that effective enjoyment of internationally recognised human rights requires protection not only against impairments of these rights by State agents, but also by private individuals.166 There are also practical reasons warranting States’ obligations to investigate and prosecute acts perpetrated by private individuals that impair the enjoyment of core human rights. First of all, actions by private actors increasingly have a significant impact on the enjoyment of human rights. As pointed out by Andrew Clapham, there have been three main factors contributing to this: firstly, the process of globalisation, notably in the economic and technological sectors. Secondly, the growing responsibilities of intergovernmental organisations, ranging from the security sector to the administration of criminal justice. Lastly, the increasing involvement of transnational and other non-state armed groups in contemporary warfare.167 Another practical reason for requiring States to conduct an effective investigation into acts that allegedly impair the enjoyment of core human rights regardless of the status of the perpetrator is the fact that very often there is certainty about the perpetration of one of such acts, but whether the author is a State agent or otherwise affiliated to the State is unknown. The International Convention for the Protection of All Persons from Enforced 165 ACHPR, Zimbabwe Human Rights NGO Forum v. Zimbabwe, Communication 245/2002, in Twenty-First Activity Report 2007, Annex III, paras. 143, 146. 166 For scholarly accounts, see Thomas Buergenthal (1981), “To Respect and To Ensure: States Obligations and Permissible Derogations,” in Louis Henkin (ed.), The International Bill of Human Rights: The Covenant on Civil and Political Rights 72 (New York: Columbia University Press), at 77; Andrew Clapham (1993), Human Rights in the Private Sphere (Oxford: Clarendon Press), at 107–112; Eckart Klein (2000), “The Duty to Protect and to Ensure Human Rights Under the International Covenant on Civil and Political Rights,” in Eckart Klein (ed.), The Duty to Protect and to Ensure Human Rights 295 (Berlin: Verlag), at 302; Nowak (2005), U.N. Covenant on Civil and Political Rights: CCPR Commentary, at 39; Sarah Joseph, Jenny Schultz, and Melissa Castan (2004), The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford: Oxford University Press), at 38. 167 See Clapham (2006), Human Rights Obligations of Non-State Actors, at 3–18. See also Henry J. Steiner et al. (2008), International Human Rights in Context (Oxford: Oxford University Press, 3rd edn), at 1385; Klein (2000), “The Duty to Protect and to Ensure Human Rights Under the International Covenant on Civil and Political Rights,” at 301.

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Disappearance reflects this as, while it requires State’s involvement for an act of forced disappearance to take place, it expressly extends States’ procedural obligations in the field of criminal justice to identical acts perpetrated by private individuals acting without the authorisation, support or acquiescence of the State.168 F. Conclusions of this Section As noted in the introduction, the evolution of international human rights law during recent decades has shown the interdependence that exists between the protection of substantive human rights and the existence and availability of procedural means to uphold such rights. State’s obligations to investigate and prosecute serious human rights violations were two initial manifestations of this interdependence. In addition to the various treaties that include these obligations, human rights treaty monitoring bodies have extended such duties to all serious human rights violations. This section has analysed the most important aspects of these procedural obligations of States when faced with serious human rights violations. While the last section of this chapter will present the findings with respect to most of these aspects, here it suffices to state that the case law of human rights treaty monitoring bodies on the content and scope of these obligations has significantly evolved. Currently, it is well-accepted that an investigation shall be carried out promptly, thoroughly and effectively by independent and impartial bodies. Additionally, States should ensure transparency when fulfilling these procedural obligations.169 Likewise, international practice is now well-established with respect to the proposition that State’s procedural obligations exist regarding acts perpetrated by both State agents and private individuals that allegedly impair the enjoyment of core human rights. I believe that these developments in international practice as regards State’s proce­ dural  obligations when faced with serious human rights violations have enhanced the protection afforded to victims of such infringements, because of the interdepen­ dence that exists between effective human rights protection and the availability of procedural means to uphold such rights. Equally, I hold the view that in the context of isolated serious human rights violations, these developments have imposed on States a reasonable burden taking into account their duty under various international instruments ‘to ensure’ the human rights and freedoms enshrined in such instruments. Despite the intrinsic difficulties faced by human rights treaty monitoring bodies when delimiting the content and scope of these procedural obligations,170 these bodies have in general shown reasonableness when doing so with respect to isolated serious human rights violations.

168 International Convention for the Protection of All Persons from Enforced Disappearance, Arts. 2 and 3. 169 See above in this Section, Subsections B and C. 170 Philip Leach (2006), “Positive Obligations from Strasbourg – Where do the Boundaries Lie?,” 15 Interights Bulletin 123, at 123, 126. See also Borelli (2006), “Positive Obligations of States and the Protection of Human Rights,” at 101–103. More generally, see J.G. Merrills (1993), The Development of International Law by the European Court of Human Rights (Manchester: Manchester University Press), at 250–251.

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II. States’ Procedural Obligations in Situations of Mass Serious Human Rights Violations During the last three decades, human rights treaty monitoring bodies, advocates and policy makers have faced the question of how to confront serious human rights violations committed in a widespread manner in situations of armed conflict, civil strife or repression.171 In particular, the question of whether or not the above-analysed States’ procedural obligations apply integrally in this type of situation has often been raised, as it poses several challenges, including the fact that the government of the countries facing these situations often have scarce financial and human resources available to deal with them.172 More importantly, societies dealing with this type of situation often possess competing legitimate objectives. Thus while there is broad consensus on the need for accountability in situations of mass atrocity,173 scholars and authorities differ as to what this principle specifically requires in these situations, particularly whether prosecutions should always be part of the response. While this subject involves many legal, political and moral considerations,174 this section focuses on those most relevant. It proceeds as follows: first, it discusses whether or 171  I adopt the following working definition of the term ‘society in transition’: a country emerging from an armed conflict, civil strife or repression. I will use it in this sense throughout this book. 172 See e.g. Office of the United Nations High Commissioner for Human Rights (2006), Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives. See also Shelton (2005), Remedies in International Human Rights Law, at 151. 173 Here the concept of ‘accountability’ is understood broadly as encompassing not only criminal procedures, but also mechanisms of other natures. See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 17. 174 There is a considerable amount of legal and non-legal literature on this matter, commonly known as ‘transitional justice’. As to UN reports, see notably Diane Orentlicher, “Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 27 February 2004, UN Doc. E/ CN.4/2004/88, annex; Diane Orentlicher, “Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, Addendum, 8 February 2005, UN Doc. E/CN.4/2005/102.Add.1; UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies: Report, 23 August 2004, UN Doc. S/2004/616 (hereinafter “UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Postconflict Societies: Report, 23 August 2004”). As to scholarly writings, see e.g. Neil J. Kritz (ed.) (1994), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington D.C.: United States Institute of Peace Press), Vols. I-III; M. Cherif Bassiouni (2002), Post-Conflict Justice (Ardsley: Transnational Publishers); Helena Cobban (2007), Amnesty After Atrocity? Healing Nations after Genocide and War Crimes (Boulder: Paradigm); Jon Elster (2004), Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press); Priscilla B. Hayner (2011), Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New York: Routledge, 2nd edn); Edel Hughes, William A. Schabas and Ramesh Thakur (eds.) (2007), Atrocities and International Accountability: Beyond Transitional Justice (Tokyo: United Nations University Press); Martha Minow (1998), Between Vengeance and Forgiveness (Boston: Beacon Press); Andrew Rigby (2001), Justice and Reconciliation: After the Violence (Boulder: Lynne Rienner); Naomi Roht-Arriaza and Javier Mariezcurrena (eds.) (2006), Transitional Justice in the Twenty-First Century: Beyond Truth

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not States have, under customary international law, an obligation to prosecute and punish international crimes and serious human rights violations perpetrated in situations of mass atrocity. Subsequently, it analyses several issues that arise in situations of transition with respect to States’ implementation of their obligations under general human rights treaties and certain subject specific international conventions in the event of a serious human right violation. In particular, it discusses the rationales and legal grounds that may be invoked, and the conditions to be satisfied, in order that a State may adopt a conditional amnesty scheme with respect to these infringements. Lastly, this section draws several conclusions. A. The State of Customary International Law This subsection analyses whether there is a customary international law rule requiring the prosecution and punishment of international crimes and serious human rights violations which have occurred in a situation of mass atrocity.175 Despite the long-standing approach of human rights treaty monitoring bodies,176 and the view of the UN Secretary-General177 and some State practice and opinio juris requiring the prosecution of those responsible for international crimes and serious human rights violations generally, even when committed in situations of mass atrocity, an analysis of State practice on this matter demonstrates that a rule of customary international law imposing this duty does not yet exist. State practice shows that States have adopted various approaches for dealing with human rights abuses committed in situations of mass atrocity.178 More specifically, State practice, even since the United Nations disclaimer to the Lomé Accord in July 1999,179 demonstrates that States continue to introduce and support amnesties for international crimes and serious human rights violations which have occurred in situations of mass atrocity. Based on her empirical study on amnesties covering several decades, Louise Mallinder reports that State practice from July 1999 to December 2007 does not rule out amnesty for international crimes. Specifically, Mallinder states that: From [7 July 1999 to December 2007] 34 amnesty laws excluded some form of crimes under international law; [while] during the same period, 28 amnesty laws granted immunity to perpetrators of crimes under international law.180 Versus Justice (Cambridge: Cambridge University Press); Angelika Schlunck (2000), Amnesty Versus Accountability (Berlin: Berlin Verlag). 175  For the nature of the proscription of specific international crimes, see above in this chapter, Section I, Subsection A. 176  See above in this chapter, Section I, Subsection A.i. 177   See e.g. UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and PostConflict Societies: Report, 23 August 2004, paras. 10, 54, 64(c). 178   See e.g. José E. Alvarez (2009), “Alternatives to International Criminal Justice,” in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice 25 (Oxford: Oxford University Press), at 34; Martti Koskenniemi (2002), “Between Impunity and Show Trials,” 6 Max Plank Yearbook of United Nations Law 1, at 10. 179   Most authors consider that this marked a change in the UN approach towards amnesty laws. See e.g. Louise Mallinder (2008), Amnesty, Human Rights and Political Transitions (Oxford: Hart Publishing). 180 Louise Mallinder (2009), “Exploring the Practice of States in Introducing Amnesties,” in Kai Ambos et al. (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace

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Additionally, in her book-long study of this matter, Mallinder concludes that an analysis of State practice from 1995 to December 2007 shows that States continued to adopt amnesties covering international crimes at almost the same level as in the previous decade.181 In her empirical study, Mallinder also finds that third States – i.e. States other than those where the crimes took place – have since the UN disclaimer to the Lomé Accord in July 1999 continued to support in large numbers peace negotiations and peace agreements granting amnesty to combatants covering international crimes.182 According to Mallinder, only the number of amnesties supported by intergovernmental institutions has declined considerably since that point in time.183 It should, however, be noted that recently some State practice and opinio juris have emerged requiring the prosecution of those responsible for international crimes and serious human rights violations, even when committed in situations of mass atrocity. Several States have decided to abrogate amnesties covering these heinous acts or to

and Development 127 (Berlin: Springer-Verlag), at 153. See also Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 122; Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” 87 Georgetown Law Journal 707, at 722; Office of the United Nations High Commissioner for Human Rights (2006), Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives, at 1; Commission on Human Rights, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report Submitted by Mr. Theo van Boven, Special Rapporteur, 2 July 1993, UN Doc. E/CN.4/Sub.2/1993/8, at 449, para. 124; The Azanian People’s organization (AZAPO) and others v. The President of the Republic of South Africa and others, 1996 (4) SA 671 (CC), para. 22 (the majority’s opinion written by judge Mahomed DP); Gabrielle Della Morte (2007), “Les Amnisties en Droit International,” in Hélène Ruiz Fabri et al. (eds.), La clémence saisie par le droit: amnistie, prescription et grâce en droit international et comparé 39 (Paris: Société de législation comparée), at 53–54, 76; Charles P. Trumbull (2007), “Giving Amnesties a Second Chance,” 25 Berkeley Journal of International Law 283, at 291, 293, 297; Michael P. Scharf (2006), “From the eXile Files: An Essay on Trading Justice for Peace,” 63 Washington and Lee Law Review 339, at 342, 361; Michael Scharf (1997), “The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes,” 59 Law and Contemporary Problems 42, at 42, 57; Ronald C. Slye (2002), “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law,” 43 Virginia Journal of International Law 173, at 175–176, 180; Alvarez (2009), “Alternatives to International Criminal Justice,” at 34–35. 181 Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 122. See also Louise Mallinder (2009), “Exploring the Practice of States in Introducing Amnesties,” at 129 (“States have continued to amnesty crimes under international law despite the growth of the human rights movement and the change in the UN’s approach to amnesties following the signing of the Lomé Accords on July 1999”). See also Andreas O’Shea (2002), Amnesty for Crimes in International Law and Practice (The Hague: Kluwer Law International), at 264 (maintaining that the practice of providing for amnesties in peace treaties has for a long time been recognised); Trumbull (2007), “Giving Amnesties a Second Chance,” at 291, 293, 297. 182 Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 330 (specifically finding that 43 per cent of the instances of third party’s support to peace negotiations and peace agreements granting amnesty to combatants covering international crimes have occurred following the UN disclaimer to the Lomé Accord in July 1999). See also Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” at 724 (noting third States’ failure to condemn amnesties). 183 Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 330–331.

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restrict their application – e.g. Argentina, Peru and Chile.184 There has also been an increase in the number of prosecutions based on universal jurisdiction. Additionally, some opinio juris in this respect can be gleaned from the adoption of several Resolutions by the UN General Assembly recognising States’ procedural obligations in the field of criminal justice when faced with serious human rights violations. In this regard, it is worth noting, in addition to this body’s Resolutions specifically affirming States’ procedural obligations in cases of enforced disappearance185 and violence against women,186 its adoption in December 2005 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereinafter “the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims” or “the Principles”).187 The latter impose procedural obligations in the field of criminal justice on States without distinguishing between serious human rights violations which have occurred in isolated instances and those perpetrated in situations of widespread abuses.188 The negotiation history of these Principles makes clear that they do apply to the latter type of situation. While initially these Principles were envisaged for addressing this type of situation only,189 later in the negotiating process it was agreed to broaden their scope ratione materiae by adopting the term ‘gross violations of human rights’, which as analysed above refers to the violation of certain rights considered as essential to the human person and to human dignity.190

184 For Argentina, see Corte Suprema de Justicia, 14 June 2005, Julio Héctor Simón, (2005-3282056). For Chile, see Corte Suprema de Chile, Miguel Angel Sandoval Rodriguez, 17 November 2004. See also Diane Orentlicher, “Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 27 February 2004, UN Doc. E/CN.4/2004/88, annex, at 12, para. 30; Lisa J. Laplante (2009), “Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes,” 49 Virginia Journal of International Law 915, at 975. 185 Declaration on the Protection of All Persons From Enforced Disappearance, UN GA, Res. 47/133, 18 December 1992, Art. 13, in Human Rights: A Compilation of International Instruments, Vol. I (First Part), UN Doc. ST/HR/1/Rev.6 (Vol. I/Part 1), at 427. 186 Declaration on the Elimination of Violence against Women, UN GA, Res. 48/104, 20 December 1993, Art. 4 (c) and 4 (d), in Human Rights: A Compilation of International Instruments, Vol. I (First Part), UN Doc. ST/HR/1/Rev.6 (Vol. I/Part 1), at 175. 187 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly, Res. 60/147, 16 December 2005, UN Doc. A/ RES/60/147 (hereinafter “the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims”). 188 Id. Principle 4. 189 See M. Cherif Bassiouni, Report of the Independent Expert on the Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, Mr. M. Cherif Bassiouni, Submitted Pursuant to Commission on Human Rights Resolution 1998/43, 8 February 1999, UN Doc. E/CN.4/1999/65, para. 85. See also Shelton (2005), Remedies in International Human Rights Law, at 151, 389. 190 See above Chapter I, Section I.

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These developments serve to strengthen the long-standing approach of human rights treaty monitoring bodies requiring the prosecution of those responsible for international crimes and serious human rights violations, particularly high level perpetrators, even when such infringements are committed in situations of mass atrocity. While the fact that human rights treaty monitoring bodies charged with dealing with individual complaints address only those cases brought before them makes difficult to ascertain general principles in this respect, it appears that these bodies have endorsed the view that States’ obligation to prosecute serious human rights violations should be observed fully in situations of mass atrocity.191 The UN Human Rights Committee has handed down many of its landmark decisions regarding States’ procedural obligations in the field of criminal justice in cases which occurred in armed conflict situations involving mass atrocity. For example, the case of Bautista de Arellana v. Colombia, in which the Committee held that in the event of serious human rights violations, Article 2, paragraph 3, of the ICCPR requires the conduct of a criminal investigation and the prosecution, trial and punishment of those held responsible, concerned the disappearance and ill-treatment of a member of a non-state armed group, the 19 April Movement (“M-19”), which at that time was a party to a noninternational armed conflict in Colombia.192 The IACtHR has, in its case law, also affirmed States’ obligations to investigate violations of the rights recognised in the ACHR and to punish those responsible, even when committed in situations of mass atrocity. For instance, in the case of Almonacid-Arellano et al., the IACtHR affirmed Chile’s obligations to investigate, prosecute and punish those responsible for Mr Almonacid’s death, even if it deemed as proven fact that such a death took place in a period in which systematic and mass serious human rights violations were perpetrated by State agents as part of a policy of widespread repression.193 The IACtHR has reiterated these States’ obligations in cases which occurred in situations of mass atrocity taking place in the context of an armed conflict. In Bámaca-Velásquez v. Guatemala, the IACtHR reaffirmed the State’s obligation to investigate any violation of the rights enshrined in the ACHR, even if it deemed as proven fact that there was a non-international armed conflict at the time when the facts relating to the case took place.194 The ECtHR has, in its case law, also affirmed the existence of State’s obligation to carry out an effective investigation into complaints concerning infringements of the right of life

191   See Orentlicher (1991), “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2599; Douglass Cassel (2007), “The Inter-American Court of Human Rights,” in Due Process of Law Foundation (ed.), Victims Unsilenced: The Inter-American Human Rights System and Transitional Justice in Latin America 151 (Washington DC: Due Process of Law Foundation), at 162. 192 See UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, paras. 2.1, 8.2. 193 IACtHR, Case of Almonacid-Arellano et al., Preliminary Objections, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No. 154, paras. 82(3)-82(4), 149–150. 194 IACtHR, Bámaca-Velásquez v. Guatemala, Merits, Judgment of 25 November 2000, Series C No. 70, paras. 121 (b), 211. See also IACtHR, Mynra Mack Chang v. Guatemala, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, paras. 134.8, 156.

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and the prohibition of ill-treatment, even when such violations have occurred in the context of large scale military operations or intense hostilities involving State agents.195 It should also be noted that the UN Secretary-General,196 the Security Council197 and the former Commission on Human Rights198 have also required the prosecution and punishment of those responsible for international crimes. Similarly, the 1996 Draft Code of Crimes against the Peace and Security of Mankind prepared by the UN International Law Commission requires States “to take such measures as may be necessary to establish its jurisdiction over the crimes [covered by the Draft except for aggression].”199 This wording suggests that, in the ILC view, States have mandatory jurisdiction over these crimes.200 Additionally, the Draft provides for States’ obligation to extradite or prosecute those individuals alleged to have committed a crime covered by the Draft, except for aggression.201 The creation of the ICC, the ad hoc international criminal tribunals, and hybrid tribunals in several countries of the world can also been seen as supporting a trend towards a requirement for the prosecution and punishment of those responsible for

195    See e.g. ECtHR, Cyprus v. Turkey, Judgment of 10 May 2001, Application No. 25781/94, paras. 132–136; ECtHR, Isayeva, Yusupova and Bazayeva v. Russia, Judgment of 24 February 2005, Application Nos. 57947/00, 57948/00 and 57949/00, para. 224. 196    UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report, 23 August 2004, para. 54 (asserting that States’ obligations in situations of widespread human rights violations encompass their duties to act against the perpetrators). See also id. paras. 10, 64(c) (recommending that peace agreements, Security Council’s resolutions and mandates “reject any endorsement of amnesty for genocide, war crimes, crimes against humanity [or gross violations of human rights]”). 197    The UN Security Council has, in several instances, recalled the responsibility of States to prosecute those responsible for genocide, crimes against humanity and serious violations of humanitarian law. See e.g. UN Security Council, Statement by the President of the Security Council, 20 December 2002, UN Doc. S/PRST/2002/41, at 1. See also UN Security Council, Res. 1820, 19 June 2008, UN Doc. S/Res/1820 (2008), at 3, para. 4 (calling upon UN Member States to comply with their obligations to prosecute persons responsible for sexual violence crimes). 198    The former UN Commission on Human Rights issued various resolutions reminding States of their obligation to carry out a criminal investigation into, and to bring to justice those responsible for, violations of human rights and international humanitarian law that constitute international crimes. See e.g. UN Commission on Human Rights, Res. 2004/72: Impunity, 21 April 2004, paras. 1, 3, in UN Commission on Human Rights, Report of the Sixtieth Session, Part I, 23 April 2004, UN Doc. E/CN.4/2004/127 (Part I), at 271; UN Commission on Human Rights, Res. 2005/81: Impunity, 21 April 2005, paras. 1, 3, in UN Commission on Human Rights, Report of the Sixty-First Session, 22 April 2005, UN Doc. E/CN.4/2005/135, at 311. 199    See Draft Code of Crimes against the Peace and Security of Mankind, Art. 18, in International Law Commission (1996), Yearbook of the International Law Commission (New York and Geneva: United Nations), Vol. II (Part II), at 47 (hereinafter “1996 Yearbook of the International Law Commission”). According to Part II of the Draft, it covers crimes against humanity, genocide, war crimes, crimes against United Nations and associated personnel, as well as aggression. 200 See Draft Code of Crimes against the Peace and Security of Mankind, commentary of Art. 18, in id. at 47. See also Orentlicher (1991), “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2593. 201    See Draft Code of Crimes against the Peace and Security of Mankind, Art. 9, in 1996 Yearbook of the International Law Commission, at 30.

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interna­ tional crimes and serious human rights violations, particularly high level perpetrators.202 While these developments signal the emergence of a customary international law rule requiring the prosecution of those responsible for international crimes and serious human rights violations, particularly high level perpetrators,203 State practice on this matter is not yet sufficiently widespread and consistent for the establishment of a rule of this kind.204 As the Statute of the International Court of Justice (hereinafter “the ICJ”) indicates, customary international law is made up of two elements: State practice and opinio juris sive necessitates.205 The former requires a widespread and consistent State practice. In this respect, in the Colombian-Peruvian asylum case, the ICJ stated that there must exist “a constant and uniform usage practised by the states in question.”206 Similarly, in the North Sea Continental Shelf cases, the ICJ affirmed that State practice has to be “both extensive and virtually uniform in the sense of the provision invoked.”207 Even if one applies the test adopted by the ICJ in Military and Paramilitary Activities in and against 202 See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 168, 370. 203 See e.g. Naomi Roht-Arriaza (ed.) (1995), Impunity and Human Rights in International Law and Practice (Oxford: Oxford University Press), at 40; Orentlicher (1991), “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2585. 204 See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 168, 170–171. See also Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 135, 150–151; Kai Ambos (2009), “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC,” in Kai Ambos et al. (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development 19 (Berlin: Springer-Verlag), at 30; O’Shea (2002), Amnesty for Crimes in International Law and Practice, at 260; Trumbull (2007), “Giving Amnesties a Second Chance,” at 291; Antje du Bois-Pedain (2007), Transitional Amnesty in South Africa (Cambridge: Cambridge University Press), at 341; Mallinder (2009), “Exploring the Practice of States in Introducing Amnesties,” at 153; Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” at 725–727, 729; Scharf (2006), “From the eXile Files: An Essay on Trading Justice for Peace,” at 342, 361; Scharf (1997), “The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes,” at 42, 57; Alvarez (2009), “Alternatives to International Criminal Justice,” at 34–35; Ben Chigara (2002), Amnesty in International Law (Harlow: Longman), at 123; Koskenniemi (2002), “Between Impunity and Show Trials,” at 10. Cf. Orentlicher, “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2585, 2599. 205 As noted earlier, the Statute of the International Court of Justice (hereinafter “the ICJ”) defines custom as “a general practice accepted as law.” See the Statute of the ICJ, Art. 38(1)(b), available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0. Accessed on 15 May 2012. Similarly, the Restatement (Third) of the Foreign Relations Law of the United States, § 102 (2), states as follows: “Customary international law results from a general and consistent practice of States followed by them from a sense of legal obligation.” See American Law Institute (1987), Restatement of the Law. Third, The Foreign Relations Law of the United States, § 102 (2). 206 See ICJ, Colombian-Peruvian asylum case (Colombia v. Peru), Judgment of 20 November 1950, 1950 I.C.J. Reports 266, at 276. 207 See ICJ, North Sea Continental Shelf cases (Federal Republic of Germany /Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, 1969 I.C.J. Reports 3, at 43, para. 74. See also Hugh Thirlway (2006), “The Sources of International Law,” in Malcolm D. Evans, International Law 115 (Oxford: Oxford University Press, 2nd ed.), at 124.

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Nicaragua case, this element is not satisfied by the proposed customary international law rule requiring the prosecution of those responsible for international crimes and serious human rights violations perpetrated in a situation of mass atrocity, because the numerous instances in which amnesties have been granted or supported by States put in doubt the very existence of a general practice on this matter.208 This does not mean, however, that States have unfettered discretion on how to respond to international crimes and serious human rights violations committed in situations of mass atrocity. International practice provides support for a customary international law rule outlawing lack of accountability of those responsible for these heinous acts perpetrated in situations of mass atrocity.209 Specifically, international practice supports a customary international law rule requiring States to undertake some process of individual accountability for dealing with this type of abuse.210 While no comprehensive empirical data on State practice on this matter is available,211 measures taken by many countries – including in Africa, Eastern Europe and South America – to conduct an inquiry through a truth commission, to disqualify certain persons from public office, and administratively to sanction heinous acts provide support for such a customary international law rule.212 The practice of United Nations and regional human rights treaty monitoring bodies213 and other United Nations bodies,214 which have been particularly critical of blanket amnesties

208 See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, Merits, 1986 I.C.J. Reports 14, para. 186 (stating that it was not necessary that the concerned practice had to be “in absolutely rigorous conformity” with the purported rule. It suffices that “the conduct of the States should, in general, be consistent with such rules, and that the instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule”). 209 As mentioned earlier, I adopt a broad concept of accountability as encompassing not only criminal procedures, but also mechanisms of other natures. See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 17. 210   See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 171; Yasmin Naqvi (2003), “Amnesty for War Crimes: Defining the Limits of International Recognition,” 85 International Review of the Red Cross 583, at 624; Della Morte (2007), “Les Amnisties en Droit International,” at 76; Trumbull (2007), “Giving Amnesties a Second Chance,” at 302; Slye (2002), “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law,” at 191. 211     For the little empirical information available in this respect, see Mallinder (2008), “Exploring the Practice of States in Introducing Amnesties,” at 159–162. 212     See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 171; Trumbull (2007), “Giving Amnesties a Second Chance,” at 302–304. 213    For example, in its General Comment No. 20, the Human Rights Committee states that amnesties are generally incompatible with States’ duty to investigate acts of torture. See UN HR Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment of Punishment), para. 15 (emphasis added). For a strong condemnation of a blanket amnesty by the IACtHR, see particularly Barrios Altos Case v. Peru, Merits, Judgment of 14 March 2001, Series C No. 75. 214    See e.g. Office of the United Nations High Commissioner for Human Rights (2006), Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives, at 23 (while stating that “blanket amnesties for genocide, war crimes, crimes against humanity and other serious violations of human rights are generally deemed impermissible under international law and need not be respected

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regarding international crimes and serious human rights violations, also provides support for this view. B. Assessing States’ Compliance with Their Obligations under General Human Rights Treaties and Certain Subject Specific International Conventions Despite most human rights treaty monitoring bodies’ and some international instruments’ lack of flexibility in the application of States’ obligations to investigate and prosecute serious human rights violations and specific international crimes in situations of mass atrocity,215 in my view, in deciding which mechanisms of accountability should be put in place in a given situation of mass atrocity, there is a need to balance the consequences of prosecuting those responsible for international crimes and serious human rights violations with other legitimate objectives of societies in this type of situation. However, States can only refrain from prosecuting and imposing criminal punishment regarding these atrocious acts when several strict conditions are met. The objective of this subsection is to elaborate on these matters. This subsection proceeds as follows: first, it puts forward several arguments supporting my view that in deciding which mechanisms of accountability should be put in place in a given situation of mass atrocity, there is a need to balance the consequences of prosecuting those responsible for international crimes and serious human rights violations with other legitimate objectives of societies in this type of situation. Second, it identifies a series of conditions that need to be fulfilled in order that a State can adopt a conditional amnesty scheme with respect to those responsible for international crimes and serious human rights violations perpetrated in situations of mass atrocity. Third, it discusses the legal grounds that a State may invoke for adopting a conditional amnesty scheme based on its competing objectives in situations of mass atrocity. Fourth, it identifies a series of requirements prosecution initiatives should meet in situations of mass atrocity in order to attain their objectives. Last, it explains why there is a need for non-prosecution measures to supplement prosecution initiatives in situations of mass atrocity. i. Why Balance the Goal of Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations with Other Objectives of Societies in Transition? There are two main arguments supporting my view that in deciding which mechanisms of accountability should be put in place in a given situation of mass atrocity, there is a need by the international community,” it leaves unanswered the question of whether conditional amnesties are permissible under international law). For doctrine maintaining that blanket amnesties for international crimes are widely deemed as impermissible under international law, see e.g. International Council on Human Rights Policy (2006), Negotiating Justice? Human Rights and Peace Agreements (Versoix: International Council on Human Rights Policy), at 82–84; Ambos (2009), “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC,” at 61–62; Roht-Arriaza (2005), Transitional Justice and Peace Agreements, at 13. 215 For the approach of human rights treaty monitoring bodies, see the previous subsection. Some international instruments require States to prosecute, regardless of whether the proscribed crime takes place in a situation of mass atrocity. See Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” at 738–739.

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to balance the consequences of prosecuting those responsible for international crimes and serious human rights violations with other legitimate objectives of societies in this type of situation: first, societies in transition often possess several competing objectives; and second, refraining from prosecutions should not necessarily be equated with lack of accountability. a) Societies in Transition Often Possess Several Competing Legitimate Objectives Societies in transition possess various legitimate objectives, ranging from reaching a peace agreement and sustaining it once obtained to achieving economic rehabilitation, to affirming the rule of law, to integrating segments of the population into the new political arrangement.216 While these objectives are not necessarily in opposition, societies in transition, given their particular circumstances, often have to make choices as to which of these objectives should prevail at least in the period subsequent to the transition. These choices determine the mechanism of transitional justice to be established to deal with international crimes and serious human rights violations in each situation, as these mechanisms differ in the degree in which they contribute to attain these objectives.217 More specifically, while prosecutions serve to attain certain of these objectives, they can disrupt others, such as reaching a peace agreement, preventing a return to arms by the belligerents, integrating old enemies into the new social and political arrangement.218 There have been many instances involving situations of mass atrocity where conflicts have arisen between the potential conduct of criminal proceedings and the need to reach a peaceful agreement. In addition to the well-known case of post-apartheid South Africa, numerous cases are mentioned in this respect. Rama Mani refers to the cases of El Salvador, Guatemala and Haiti;219 Helena Cobban mentions Mozambique;220 and Ruti G. Teitel points to the debates at the end of World War II over the establishment of the Nuremberg tribunal and the negotiations for putting an end to the conflict in the former Yugoslavia.221

216    See e.g. UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report, 23 August 2004, para. 32 (recognising that well-crafted amnesties can serve some legitimate objectives of societies in transition, e.g. the return and reintegration of displaced civilians and former combatants). See also Ambos (2009), “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC,” at 26–27. 217    See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 18, 19, 171. 218    See e.g. id. at 371; International Council on Human Rights Policy (2006), Negotiating Justice? Human Rights and Peace Agreements, at 75; Chandra Lekha Sriram (2004), “Globalising Justice: From Universal Jurisdiction to Mixed Tribunals,” 22 Netherlands Quarterly of Human Rights 7, at 13–14; Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 34; Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” at 745–748. 219    Rama Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity), at 91. 220 Cobban (2007), Amnesty After Atrocity? Healing Nations after Genocide and War Crimes, at 207. 221    Ruti G. Teitel (2000), Transitional Justice (Oxford: Oxford University Press), at 51.

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There have also been several cases in which prosecutions have been in conflict with the objective of preventing a return to arms by the belligerents.222 In the Azanian People’s Organization (AZAPO) and others case, the South African Constitutional Court endorsed this argument when maintaining that there was a need to take into consideration legitimate objectives other than those directly pursued by prosecutions, e.g. ensuring peace and consolidating the transition to a democratic State.223 The lack of prosecutions in some countries in South America, where the forces of the old regime retained considerable power – notably in the military, has been justified on similar grounds.224 Related to this, history shows that prosecutions in situations of transition may, in the short term at least, and especially when covering large numbers of perpetrators, increase social divides and hostility in these societies, often characterised by ethnic or social divisions.225 Although calls for peace, reconciliation and amnesties as governments’ justifications for abstaining from undertaking prosecutions with respect to serious human rights violations in situations of mass atrocity need to be carefully scrutinised as they can be self-serving, at times they can be responses to legitimate objectives of societies in these situations.226 In addition, societies emerging from conflict, civil strife or repression often face competing economic goals – e.g. the demand for economic rehabilitation, which are particularly appealing given their often limited human, material and financial resources.227 While irreconcilable conflicts between prosecution initiatives and the economic objectives of societies in transition should not be assumed, it is clear that such economic goals would impose limitations upon prosecution initiatives undertaken in these societies, particularly by limiting the number of perpetrators to be prosecuted.228 History shows that prosecution of large segments of the population in situations of transition can run counter to what has been viewed in several instances as a main economic objective of these societies – i.e. the attainment of economic rehabilitation. Jon Elster gives several examples of societies which, when facing the dilemma between post-conflict reconstruction on the one hand, and sanctioning – criminally or otherwise – the totality of those involved in

222 Id. at 8. See also Nino (1996), Radical Evil on Trial, at 147, 187–189; Chandra Lekha Sriram (2004), Confronting Past Human Rights Violations (London: Frank Cass), at 10; Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 173. 223 The Azanian People’s organization (AZAPO) and others v. The President of the Republic of South Africa and others, 1996 (4) SA 671 (CC), paras. 17, 19, 31 (The majority’s opinion written by judge Mahomed DP). 224 Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 90. 225 See e.g. Minow (1998), Between Vengeance and Forgiveness, at 8, 26, 58. See also Nino (1996), Radical Evil on Trial, at 147. 226 Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 36. See also Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 173–174. 227  Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 8. 228 See e.g. Cobban (2007), Amnesty After Atrocity? Healing Nations after Genocide and War Crimes, at 211, 239.

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the perpetration of international crimes in situations of mass atrocity, on the other hand, chose the former.229 Less developed societies emerging from situations of mass atrocity also face logistical and legal constraints when deciding whether to conduct criminal proceedings against perpetrators of human rights violations. These constraints commonly result from the collapse or inability to function of the administration of criminal justice that often occurs in these societies, which may prevent the conduct of criminal trials altogether. In other cases, while the concerned society has a functioning administration of criminal justice, it becomes impossible to prosecute all perpetrators of international crimes and serious human rights violations in these situations because of the limited financial and human resources available for dealing with these acts and the fact that very often those crimes involve a large number of perpetrators.230 Additionally, in those cases in which all these hurdles are overcome, there is often no guarantee prosecutions would fulfil minimum due process requirements.231 Lastly, these societies often face cumbersome evidentiary difficulties given the circumstances and the context of secrecy in which abuses in these situations often take place.232 In conclusion, the competing objectives that societies in transition often possess is a first reason for the need to balance the goal of prosecuting those responsible for international crimes and serious human rights violations with other legitimate objectives of such societies.233 b) Refraining from Prosecutions Should Not Necessarily Be Equated with Lack of Accountability Another argument for the need to balance the goal of prosecuting those responsible for international crimes and serious human rights violations with other fundamental objectives of societies in transition is that refraining from prosecutions in these societies should not necessarily be equated with lack of accountability. As experiences in transitional

229 Elster (2004), Closing the Books: Transitional Justice in Historical Perspective, at 190 (referring in this respect to Austria, Belgium, France and Holland after World War II). 230 See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 174, 371; Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 8, 94; Shelton (2005), Remedies in International Human Rights Law, at 151; Minow (1998), Between Vengeance and Forgiveness, at 50, 122. 231    Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 8, 94. 232 The Azanian People’s organization (AZAPO) and others v. The President of the Republic of South Africa and others, 1996 (4) SA 671 (CC), para. 17 (The majority’s opinion written by judge Mahomed DP). 233 See e.g. Ambos (2009), “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC,” at 49–50 (stating that the admissibility of States’ decisions to refrain from criminal prosecution depends on a balance of the conflicting interests at stake – i.e. peace and justice, particularly on a threefold test: first, whether the amnesty or the proposed measure is appropriate to achieve the alleged objective; second, the measures sought should be indispensable to achieve the said objective, i.e. there must not exist other measures less intrusive than criminal prosecutions; and last, all the different elements favouring either peace or justice should be balanced); Della Morte (2007), “Les Amnisties en Droit International,” at 42, 73; Sriram (2004), “Globalising Justice: From Universal Jurisdiction to Mixed Tribunals,” at 13–14, 31–32.

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societies during the last fifteen years have demonstrated, certain non-prosecution mechanisms can serve, under some conditions, to attain several of the instrumental objectives of prosecutions, particularly some degree of accountability.234 While the issue of which conditions should be met in order that a State can refrain from prosecuting those responsible for international crimes and serious human rights violations which occurred in situations of mass atrocity are discussed below in this section, some words in this respect are necessary here. Conditional amnesty schemes, such as the one adopted in post-apartheid South Africa, ensure some degree of accountability since amnesty applicants are required to disclose fully the facts and to demonstrate that their conduct was “associated with a political objective and committed in the course of the conflicts of the past.”235 As Antje du BoisPedain points out, by doing so this scheme not only individualised responsibility for the concerned crime, but also satisfied the first element of accountability, a ‘call to account,’ a call to give an explanation of the conduct of the perpetrator.236 The recognition by amnesty applicants of the wrongfulness of their acts is another element that can contribute significantly to the ability of these schemes to provide accountability.237 Furthermore, full and accurate information about the type of abuses which occurred, what institutions or mechanisms facilitated them, and which individual perpetrated them provided in public hearings can satisfy some of the societal and victims’ needs in transitional settings.238 Lastly, recidivism by amnesty beneficiaries can be prevented through measures other than prosecution, such as the dismantlement of the institutional structures that made possible the perpetration of the abuses.239 c) Conclusion Based on the above, I argue that in deciding which mechanisms of accountability should be put in place in a given situation of mass atrocity, there is a need to balance the

234 See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 175 (arguing that accountability can be obtained for mechanisms other than prosecutions and that “a formal determination of individual responsibility for … an investigatory commission constitutes a type of sanction”); Naqvi (2003), “Amnesty for War Crimes: Defining the Limits of International Recognition,” at 617 (adopting the view that accountability mechanisms go beyond prosecutions, to include particularly truth commissions and lustration); International Council on Human Rights Policy (2006), Negotiating Justice? Human Rights and Peace Agreements, at 85. 235  Promotion of National Unity and Reconciliation Act 34 of 1995, § 20(1) (hereinafter “TRC Act”); The Azanian People’s organization (AZAPO) and others v. The President of the Republic of South Africa and others, 1996 (4) SA 671 (CC), para. 32 (the majority’s opinion written by judge Mahomed DP). 236 du Bois-Pedain (2007), Transitional Amnesty in South Africa, at 264, 293–294, 343. See also Slye (2002), “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law,” at 187. 237  du Bois-Pedain (2007), Transitional Amnesty in South Africa, at 259, 269, 271, 298. 238 International Council on Human Rights Policy (2006), Negotiating Justice? Human Rights and Peace Agreements, at 85. See also Trumbull (2007), “Giving Amnesties a Second Chance,” at 313; du Bois-Pedain (2007), Transitional Amnesty in South Africa, at 338, 341; Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 175. 239  Trumbull (2007), “Giving Amnesties a Second Chance,” at 311.

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consequences of prosecuting those responsible for international crimes and serious human rights violations with other fundamental objectives of the directly concerned society.240 In weighing these factors, the needs, capacities, culture, history and political realities, as well as the legal system of the concerned society, should be taken into consideration.241 The question then arises as to which conditions should be fulfilled in order that a State can refrain from prosecuting those responsible for international crimes and serious human rights violations perpetrated in situations of mass atrocity. The objective of the following subsection is to address this question. ii. Conditions to be Met in Order that a State Can Refrain from Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations Drawing on international practice, I identify four conditions that should be met in order that a State can refrain from prosecuting those responsible for international crimes and serious human rights violations which occurred in a situation of mass atrocity. The first of these is that the concerned country should demonstrate that there are compelling reasons to believe a conditional amnesty scheme is indispensable for achieving a fundamental objective of the concerned society, such as reaching a peace agreement or preventing a return to arms by the belligerents.242 This requirement is necessary since prosecutions in societies emerging from a situation of mass atrocity serve various important purposes. First, as recognised by human rights treaty monitoring bodies, criminal procedures play a significant role in the event of serious human rights violations because of the features of such procedures. Specifically, these bodies have for long held that criminal procedures

240 See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 171–176; Luc Huyse (2005), “Justice,” in David Bloomfield, Teresa Barnes and Luc Huyse, Reconciliation After Violent Conflict: A Handbook 97 (Stockholm: International Institute for Democracy and Electoral Assistance), at 106; David Bloomfield, “Conclusion,” in id. at 167; Mark A. Drumbl (2002), “Restorative Justice and Collective Responsibility: Lessons for and from the Rwandan Genocide,” 5 Contemporary Justice Review 5, at 13; Sriram (2004), “Globalising Justice: From Universal Jurisdiction to Mixed Tribunals,” at 13-1, 31–32; Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” at 745–748. 241   See e.g. Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 175; Minow (1998), Between Vengeance and Forgiveness, at 4, 132; Drumbl (2002), “Restorative Justice and Collective Responsibility: Lessons for and from the Rwandan Genocide,” at 7, 18. 242 I adopt the definition of Kai Ambos of the concept of ‘conditional amnesty’: “[A]mnesty that does not automatically exempt from punishment for acts committed during a certain period of time but makes the benefit of an amnesty conditional on certain acts or concessions by the [beneficiary].” See Ambos (2009), “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC,” at 62. For scholarly works identifying this requirement, see Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 123– 124, 197. See also Ambos (2009), “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC,” at 62; Naqvi (2003), “Amnesty for War Crimes: Defining the Limits of International Recognition,” at 616- 617; Luc Huyse (2005), “Justice,” at 110; Trumbull (2007), “Giving Amnesties a Second Chance,” at 320. See, generally, the Azanian Peo­ple’s organization (AZAPO) and others v. The President of the Republic of South

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and sanctions serve to reaffirm the importance the concerned community attaches to the infringed rights.243 Second, prosecutions contribute to the reaffirmation of the rule of law in transitional settings in various ways. In the first instance, prosecutions affirm the authority of the law.244 Seen against the backdrop of lawlessness that characterises situations of mass atrocity, this contribution from prosecutions is of the utmost importance. As pointed out by Ruti G. Teitel, prosecutions in situations of transition have a strong expressive function since they lay the basis for a new democratic political order, they “instantiate and reinforce a normative change [in the principles informing and legitimising the exercise of state power].”245 Another way in which prosecutions contribute to the reaffirmation of the rule of law is affirming the equality of all citizens before the law.246 Moreover, the fact that criminal responsibility is established in democratic States observing certain substantive and procedural rules such as fair trial guarantees also explains the contribution that prosecutions make to the affirmation of the rule of law.247 Last, prosecution constitutes a measure for the acknowledgment of the experiences of violence during the conflict both towards individual victims and the society as a whole.248 The second condition to be fulfilled in order that a State can refrain from prosecuting those responsible for serious human rights violations committed in a situation of mass atrocity is the adoption of reasonable measures for attaining the instrumental objectives of prosecutions, particularly some degree of accountability.249 Specifically, the granting of the amnesty should be subject to the following three conditions: first, it should be conditional upon the disclosure of the truth concerning the type of abuses that occurred, which institutions or mechanisms facilitated them, and which individuals perpetrated

Africa and others, 1996 (4) SA 671 (CC), paras. 24, 31 (the majority’s opinion written by judge Mahomed DP). 243 See e.g. ECtHR, Menson and other v. UK, Decision of Admissibility of 6 May 2003, Application No. 47916/99, at 13–14; UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 18 (identifying impunity as an important contributing factor in the recurrence of serious human rights violations). See also Orentlicher (1991), “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2542, 2568, 2575; Orentlicher (2007), “Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,” at 15; Scharf (2006), “From the eXile Files: An Essay on Trading Justice for Peace,” at 348. 244 Orentlicher (1991), “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2542. 245  Teitel (2000), Transitional Justice, at 28–29, 67, 213, 220. 246  Minow (1998), Between Vengeance and Forgiveness, at 25. See also Orentlicher, “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2543. 247  Minow (1998), Between Vengeance and Forgiveness, at 25. See also Nino (1996), Radical Evil on Trial, at 146. 248 International Council on Human Rights Policy (2006), Negotiating Justice? Human Rights and Peace Agreements, at 76–77. See also Bassiouni (2006), “International Recognition of Victims’ Rights,” at 264–265. 249  See e.g. Naqvi (2003), “Amnesty for War Crimes: Defining the Limits of International Recognition,” at 616-617. See also International Council on Human Rights Policy (2006), Negotiating Justice? Human Rights and Peace Agreements, at 85.

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them.250 Second, amnesty applicants should be required to recognise the wrongfulness of their acts. In this respect, Antje Du Bois-Pedain rightly maintains that the fact that the scheme of the South African Truth Commission did not require the amnesty applicants to recognise the wrongfulness of their past behaviour, nor did the Amnesty Committee demand that applicants address that, affected the ability of the scheme to provide accountability.251 Third, amnesty applicants should demonstrate that there is a sufficient link between their acts and the conflict or the policies of the past regime.252 As mentioned earlier, through these three requirements, not only is responsibility individualised for the concerned crime, but also an important degree of accountability is provided since the perpetrator is called to give an explanation of his or her conduct and, more importantly, to recognise its wrongfulness.253 The third condition to be met relates to the adoption of reasonable measures to prevent amnesty beneficiaries from committing similar crimes in the future.254 For instance, effective measures should be taken for the dismantlement of the institutional structures that made possible the commission of the abuses.255 The last condition to be fulfilled is the establishment by the concerned country of other transitional mechanisms aimed at satisfying victims’ and societal needs.256 An important related issue is whether or not conditional amnesties should cover highlevel perpetrators. My view is that they can do so, subject to all the conditions already mentioned. The basis for this is merely pragmatic, namely the fact that often peace negotiations depend on the will of the leadership.257 In sum, in order to ensure that its conduct conforms to its duties under international law, the concerned State should meet all these requirements when refraining from prosecuting those responsible for international crimes and serious human rights violations perpetrated in a situation of mass atrocity.258 iii. Legal Grounds that a State May Invoke for Adopting a Conditional Amnesty Scheme For the purposes of discussing the legal grounds that a State may invoke for adopting a conditional amnesty scheme in a situation of mass atrocity, it is necessary to distinguish 250 See e.g. Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 41. 251  du Bois-Pedain (2007), Transitional Amnesty in South Africa, at 259, 269, 271, 298. 252 For a similar requirement, see South Africa TRC Act, § 20(1). 253 du Bois-Pedain (2007), Transitional Amnesty in South Africa, at 264, 293–294, 343. See also Slye (2002), “The Legitimacy of Amnesties under International Law and General Principles of Anglo-American Law,” at 187. 254 See e.g. Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” at 730, 746–748; Trumbull (2007), “Giving Amnesties a Second Chance,” at 320. 255 Trumbull (2007), “Giving Amnesties a Second Chance,” at 311. 256 Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 123–124, 197. See also below in this Section, Subsection B.v. 257 See e.g. Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 103. 258 Mallinder (2008), Amnesty, Human Rights and Political Transitions, at 123–124, 197. See also Ratner (1999), “New Democracies, Old Atrocities: An Inquiry in International Law,” at 730,

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between States’ implied obligation under general human rights treaties to prosecute serious human rights violations, on the one hand, and States’ duty under certain treaties to prosecute specific international crimes, on the other hand. This distinction is needed because of the different nature of the obligation to prosecute under these treaties: while in the former this obligation has been implied from the terms of these treaties, in the latter such obligation is expressly included. a) Legal Defences Available Regarding State’s Obligation under General Human Rights Treaties to Prosecute Serious Human Rights Violations First of all, it is worth reiterating that the State’s obligation under general human rights treaties to prosecute serious human rights violations has been derived from the State’s duty ‘to ensure’ the human rights enshrined in these treaties.259 Then, as Anja SeibertFohr maintains, prosecution is “not required for its own sake, but as a means of achieving the purpose of human rights protection.”260 Where an amnesty is necessary to put an end to a conflict, it is reasonable to argue that it serves to create the necessary conditions for unimpeded enjoyment of the rights recognised in general human rights treaties and to prevent more atrocities. In these circumstances, it may be argued that a State’s obligation ‘to ensure’ human rights is better fulfilled by the adoption of a conditional amnesty. International human rights bodies and instruments have recognised that the State’s obligation ‘to ensure’ internationally recognised human rights requires not only repressive measures against violations which have already occurred, but also “preventive measures and steps to ensure the necessary conditions for unimpeded enjoyment of [these] rights.”261 In its General Comment No. 31, the UN Human Rights Committee maintains that States’ obligation to take measures to prevent a recurrence of a violation of the Covenant is implied in Article 2 of the ICCPR and necessary for the attainment of the purpose of this treaty.262 In the same General Comment, the Committee recalls States’ duty to exercise due diligence to prevent violations of internationally recognised human rights by private persons or entities.263 Regional human rights courts have also affirmed States’ obligation to prevent human rights violations. In the Velásquez Rodriguez case, the IACtHR stated as follows in this respect:

746–748; Trumbull (2007), “Giving Amnesties a Second Chance,” at 320; du Bois-Pedain (2007), Transitional Amnesty in South Africa, at 338, 341, 343. 259 See above in this chapter, Section I, Subsection A. 260 Seibert-Fohr (2009), Prosecuting Serious Human Rights Violations, at 203. 261   Nowak (2005), U.N. Covenant on Civil and Political Rights: CCPR Commentary, at 60. See also Oscar Schachter (1981), “The Obligation to Implement the Covenant in Domestic Law,” in Louis Henkin (ed.), The International Bill of Human Rights: The Covenant on Civil and Political Rights 311 (New York: Columbia University Press), at 319–320. 262  See UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 17 (emphasis added). See also UN HR Committee, General Comment No. 6: Article 6 (Right to Life), para. 3. 263  U  N HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 8. See also UN HR Committee, General Comment No. 2: Reporting Guidelines, para. 3, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, at 164; UN HR Committee, General

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Similarly, in Osman v. The United Kingdom, the ECtHR affirmed that States Parties to the ECHR have an obligation to prevent acts perpetrated by private individuals that would impair the enjoyment of human rights.265 Additionally, certain international instruments specifically provide for the State’s duty to prevent. The UN Convention against Torture requires States to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”266 While international human rights instruments and bodies have not specifically addressed the issue of whether the State’s obligation to prevent human rights violations encompasses a duty to actively seek to put an end to a situation causing serious human rights violations such as an armed conflict, this appears to be a reasonable interpretation. For instance, Mark Freeman maintains that in certain transitional justice contexts an amnesty can constitute a means for preventing human rights violations.267 Similarly, Anja Seibert-Fohr states that the test for assessing whether an amnesty is justified under the State’s obligations pursuant to general human rights treaties is whether it is necessary in order to respect and ensure human rights in a particular set of circumstances.268 Likewise, Andreas O’Shea submits that it is an implied term in general human rights treaties that “the rights and obligations enshrined therein may be limited for preservation of the democratic order that forms the basis of the political and civil rights of all individuals within a society”,269 and thus the legal test is whether the amnesty concerned is “proportional to the legitimate aim of preserving the democratic order.”270 In addition, as the previous subsection demonstrates, conditional amnesties can help to attain several of the instrumental objectives of prosecutions, specifically some degree of accountability. Furthermore, as discussed above, in societies emerging from a situation of mass atrocity there is often no guarantee that prosecutions would comply with minimum due process requirements because of the state of the administration of justice. Comment No. 20: Article 7 (Prohibition of Torture, or other Cruel, Inhuman or Degrading Treatment or Punishment), paras. 8 and 11. 264 IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Merits, Series C No. 4, paras. 174–175. 265 See ECtHR, Osman v. UK, Judgment of 28 October 1998, Application No. 23452/94, paras. 115–116. See also Rudolf Bernhardt (2000), “The Duty to Protect and to Ensure Human Rights Under the European Convention on Human Rights,” in Eckart Klein (ed.), The Duty to Protect and to Ensure Human Rights 207 (Berlin: Verlag), at 207. 266 Article 2, para. 1, of the Convention against Torture reads as follows: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” See also Committee against Torture, General Comment No. 2, 23 November 2007, CAT/C/GC/2. 267 See Mark Freeman (2009), Necessary Evils: Amnesties and the Search for Justice (Cambridge: Cambridge University Press), at 56–59, 61. See also Anthony D’Amato (1994), “Peace vs. Accountability in Bosnia,” 88 The American Journal of International Law 500, at 502. 268 See Seibert-Fohr (2009), Prosecuting Serious Human Rights Violations, at 215–216. 269 O’Shea (2002), Amnesty for Crime in International Law and Practice, at 181, 184, 196. 270 Id. at 183.

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In these circumstances, a call for generalised prosecution can lead to procedures conducted in violation of international standards on fair trial.271 b) Legal Defences Available Regarding State’s Obligation to Prosecute Certain International Crimes Under Subject-Matter Specific International Conventions As analysed earlier, several international conventions require the prosecution of specific international crimes, such as genocide and torture.272 A first question that arises with respect to the State’s obligation to prosecute under these treaties is whether in a situation of mass atrocity this duty would require prosecution of all those involved in the perpetration of such crimes. The answer is in the negative, as currently it is accepted that exemplary trials do suffice for the fulfilment of State’s obligations under these treaties. The UN OHCHR has acknowledged that, given the scant financial and human resources available in this type of situation, only a limited number of people can be prosecuted.273 Accordingly, the UN OHCHR has proposed the adoption of a strategic prosecutorial policy focus on the prosecution of ‘system crimes’ – i.e. genocide, crimes against humanity and war crimes if committed on a large scale – and on high-level perpetrators.274 In his August 2004 Report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, the UN Secretary-General took a similar view as he stressed the need for adopting “a strategic prosecutorial policy, based on clear criteria” in post-conflict settings given the practical impossibility that exists in these situations for trying all those involved in the commission of serious human rights violations.275 Several experts on this matter take a similar approach. For instance, according to Yasmin Q. Naqvi, State’s obligations under these treaties can be complied with through selective prosecution, “which takes into account the public interest and balances the concerns of victims with societal expectations and which is subject to (judicial) review ….”276 Therefore, exemplary trials constitute a first means to reconcile the competing objectives of societies in transition with their duties under these treaties. Additionally, if in the above circumstances a State adopts a conditional amnesty for all those responsible for core international crimes, it could invoke necessity as an international law defence – technically known as a circumstance precluding wrongfulness. There are six conditions for this legal defence under customary international law,277 as reflected

271   Seibert-Fohr (2009), Prosecuting Serious Human Rights Violations, at 219. 272 See above in this chapter, Section I, Subsection A. 273 Office of the United Nations High Commissioner for Human Rights (2006), Rule-of-Law Tools for Post-Conflict States: Prosecutions Initiatives, at 5. 274 Id. at 7–8, 11. 275 UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report, 23 August 2004, para. 46. 276 Yasmin Q. Naqvi (2010), Impediments to Exercising Jurisdiction over International Crimes (The Hague: T.M.C. Asser Press), at 123. See also International Council on Human Rights Policy (2006), Negotiating Justice? Human Rights and Peace Agreements, at 87–88; Roht-Arriaza (2005), Transitional Justice and Peace Agreements, at 16; Orentlicher (1991), “Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime,” at 2601–2603. 277 For the existence of necessity as a circumstance precluding wrongfulness under customary international law, see ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25

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in Article 25 of the International Law Commission’s Draft Articles on State Responsibility of 2001: first, the interest to be safeguarded by the course of action needs to be essential; second, there must be a grave and imminent peril against this essential interest; third, the course of action taken by the State must be the ‘only way’ to safeguard this interest; fourth, the course of action by the State must “not seriously impair an essential interest of the States or States towards which the obligation exists, or of the international community as a whole;” fifth, the international obligation concerned must not exclude the possibility of invoking necessity; and, last, the State which is the author of the act must not have “contributed to the situation of necessity.” These conditions, which coincide largely with those identified in the previous subsection, may be met in several transitional settings.278 As Article 25 of the ILC 2001 Draft Articles on State Responsibility acknowledges, today it is well-accepted that what is required in order that the defence of necessity be invoked is that there be an ‘essential’ interest of the State in peril, and that such a concept should not be reduced to matters concerning the ‘existence of the State’.279 In its Commentary on the 2001 Draft Articles on State Responsibility, the ILC states as follows in this respect: [Necessity] has been invoked to protect a wide variety of interests, including safeguarding the environment … or ensuring the safety of a civilian population. … The extent to which a given interest is ‘essential’ depends on all the circumstances, and cannot be prejudged. It extends to particular interests of the State and its people, as well as of the international community as a whole.280

September 1997, 1997 I.C.J. Reports 7, para. 51; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, 2004 I.C.J. Reports 136, para. 140; James Crawford (ed.) (2002), The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries (Cambridge: Cambridge University Press), at 183. For the customary international law status of the conditions set in the ILC’s 2001 Draft on State Responsibility with respect to necessity as a circumstance precluding wrongfulness, see ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, 1997 I.C.J. Reports 7, para. 52; ICSID (W. Bank), CMS Gas Transmission Co. v. Argentina, Case No. ARB/01/8 (May 12, 2005), para. 315. But see Daniel Bodansky and John R. Crook (2002), “Symposium: The ILC’s State Responsibility Articles: Introduction and Overview,” 96 American Journal of International Law 773, at 788. 278  See e.g. Freeman (2009), Necessary Evils: Amnesties and the Search for Justice, at 68. See generally, Orentlicher (1991), “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” at 2607–2612. 279  ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, 1997 I.C.J. Reports 7, para. 53. See also Crawford (ed.) (2002), The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries, at 178 and 183; Addendum to the Eighth Report on State Responsibility by Mr. Roberto Ago, Special Rapporteur, UN Doc. A/ CN.4/318/Add.5–7, paras. 8, 12, reprinted in International Law Commission (1980), Yearbook of the International Law Commission (New York and Geneva: United Nations), Vol. II, part 1, UN Doc. A/CN.4/Ser.A/1980/Add.1 (Part 1) (hereinafter “Ago Report”). For a scholarly account, see Roman Boed (2000), “State of Necessity as a Justification for Internationally Wrongful Conduct,” 3 Yale Human Rights & Development Law Journal 1, at 1. 280 Crawford (ed.) (2002), The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries, at 183.

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As the ILC Commentary on the 2001 Draft Articles on State Responsibility states, international bodies recognise that the defence of necessity can be invoked to protect a wide array of interests such as safeguarding the environment,281 responding to a severe economic crisis,282 and ensuring the safety of the civilian population.283 With respect to the latter, it is worth noting that in its 1980 Report, the ILC mentioned “the keeping of [the State’s] peace and the maintenance of conditions in which [the State’s] essential service can function” as examples of ‘essential’ interests with respect to which the defence of necessity may be invoked.284 In this respect, it should be reiterated that peace is a necessary condition for unimpeded enjoyment of internationally recognised human rights.285 However, some scholars maintain that the defence of necessity cannot be invoked with respect to core international crimes because of the jus cogens nature of the prohibition of such crimes.286 While I recognise that increasingly international bodies ground the illegality, under international law, of amnesties for these crimes on the jus cogens character of such crimes,287 I disagree with this view. The chief reason for this is that one should distinguish between the prohibition of international crimes such as genocide and torture, which is jus cogens, and other obligations of States with respect to such crimes, particularly the obligation to prosecute them.288 In addition, and in view of the state of customary

281   ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, 1997 I.C.J. Reports 7, para. 53; International Law Commission (1980), Yearbook of the International Law Commission (New York and Geneva: United Nations), Vol. II, Part 2, UN Doc. A/CN.4/Ser.A/1980/Add.1 (Part 2), at 35, para. 3. For a scholarly account, see e.g. Alan Boyle and James Harrison (2008), “Environmental Accidents,” in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, online edition, [www. mpepil.com], para. 7. Accessed on 15 June 2010. 282 See ICSID (W. Bank), CMS Gas Transmission Co. v. Argentina, Case No. ARB/01/8 (12 May 2005), para. 319. See also ICSID (W. Bank), LG&E Energy Corp. v. Argentina, Decision on Liability, Case No. ARB/02/1 (3 Oct. 2006), para 238. 283 Crawford (ed.) (2002), The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries, at 183. 284 See International Law Commission (1980), Yearbook of the International Law Commission (New York and Geneva: United Nations), Vol. II, Part 2, UN Doc. A/CN.4/Ser.A/1980/Add.1 (Part 2), at 35, para. 3. 285 For a similar reasoning, see ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, 1997 I.C.J. Reports 7, para. 53 (in explaining its view that safeguarding the natural environment may be an ‘essential interest’ of a State for the purposes of the invocation of the defense of necessity, the ICJ affirmed that “the environment … represents the living space, the quality of life and the very health of human beings ….”). 286 In this respect, it is worth noting the text of Article 26 of the ILC Draft on State responsibility, which provides as follows: “Nothing in this Chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.” 287  See ICTY, Prosecutor v. Furundžija, Trial Chamber II, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 155; SCSL, Prosecutor v. Kallon and Kamara, Appeals Chamber Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, Case No. SCSL-2004-15AR72(E), para. 71. 288 See e.g. Naqvi (2010), Impediments to Exercising Jurisdiction over International Crimes, at 139; Freeman (2009), Necessary Evils: Amnesties and the Search for Justice, at 51.

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international law on this subject, it is difficult to maintain that the required level of agreement among States on the absolute character of the obligation to prosecute core international crimes perpetrated in a situation of mass atrocity for the formation of a jus cogens norm has ever been reached. Even if one accepts that something less than unanimity suffices for the establishment of a jus cogens rule,289 the above analysis of State practice on this matter demonstrates that this proposed rule has never reached the level of acceptance required for the formation of a jus cogens norm.290 The view that the jus cogens character of the obligation to prosecute core international crimes can be derived from a teleological interpretation of the rule prohibiting these crimes is also unpersuasive.291 This view equates the concept of amnesty to that of blanket amnesty and thus assumes that amnesty amounts to a complete lack of accountability. The previous two subsections of this section have demonstrated that this assumption is unwarranted as a conditional amnesty scheme can serve to attain several of the instrumental objectives of prosecutions, in particular some degree of accountability. On similar grounds, I reject the view taken by some human rights treaty monitoring bodies that the State’s obligation to prosecute violations of non-derogable human rights is absolute because of the nature of these rights.292 While I agree that non-derogable human rights require enhanced protection, it is necessary to distinguish between the substantive right and the procedural duties that exist with respect to it. In Dujardin and others v. France, the ECommHR endorsed this view as it distinguished between the substantive right and its procedural protection, and thus recognised that measures for refraining to prosecute can be introduced even with respect to non-derogable rights.293 289 Article 53 of the VCLT reads as follows: “For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (emphasis added). For a discussion in another context of the phrase ‘the international community of States as whole’ by the ILC, see International Law Commission, ILC Report 1976, UN Doc. A/31/10, para. 61, at 119. For scholarly analyses of this requirement, see e.g. A.J.J. de Hoogh (1991), “The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective,” 42 Austrian Journal of Public and International Law 183, at 187; Levan A. Alexidze (1981), “The Legal Nature of Jus Cogens in Contemporary International Law,” 172 Recueil des Cours 219, at 256–257. 290 See above in this chapter, Section II, Subsection A. But see Alexander Orakhelashvili (2006), Peremptory Norms in International Law (Oxford: Oxford University Press), at 225. 291  For an authority taking this view, see ICTY, Prosecutor v. Furundžija, Trial Chamber II, Judgment, 10 December 1998, Case No. IT-95-17/1-T, paras. 155–156. 292 On this basis, these bodies have held that an amnesty with respect to violations of these rights is illegal under international law. See IACtHR, Barrios Altos case, Merits, Judgment of 14 March 2001, Series C No. 75, para. 41. See also Committee against Torture, General Comment No. 2, para. 5. 293 See ECommHR, Dujardin and others v. France, Admissibility Decision, 2 September 1991, Application No. 16734/90, at 4 (“The State is justified in adopting, in the context of its criminal policy, any amnesty laws it might consider necessary, with the proviso, however, that a balance is maintained between the legitimate interests of the State and the interests of individual members of the public in having the right to life protected by law”). For a scholarly account, see e.g. Seibert-Fohr (2009), Prosecuting Serious Human Rights Violations, at 226.

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iv. Requirements that Prosecutions Should Fulfil A lesson learned from experiences all over the world during the last three decades is that in order for prosecutions to achieve their desired objectives in transitional societies, they should respect due process guarantees – e.g. they should be conducted by independent and impartial authorities, and should, as a general rule, be even-handed, meaning that acts investigated should cover crimes perpetrated by all parties.294 v. The Need for Non-Prosecution Measures to Supplement Prosecutions Past experiences in most regions of the world have also shown that while prosecutions of high-level perpetrators play an important role in the transition process towards democracy in societies emerging from an armed conflict, civil strife or repression, they only satisfy some of the needs of victims and of directly concerned communities.295 Prosecutions focus on the determination of the individual responsibility of particular perpetrators – most often only a small proportion of those involved in criminal acts in a given situation of mass atrocity – regarding the specific charges brought by the prosecution. On the other hand, victims of serious human rights violations and directly concerned populations, particularly in situations of mass atrocity, usually have numerous needs beyond the determination of the individual responsibility of specific individuals. Many studies conducted in nearly all regions of the world have found that economic, social and political issues are usually ranked high among the concerns of inhabitants in societies in transition generally and of victims of these violations specifically. In particular, these studies have confirmed the need for measures to address the political and socioeconomic conditions that underlay the conflict or repression and to satisfy the economic and social needs of victims. For instance, several empirical studies on the work of the South African Truth Commission have shown that most victims who provided a statement or participated in public hearings of the Commission gave considerable importance to obtaining financial compensation and in general to measures addressing social and economic inequalities.296

294 Ratner, Abrams and James (2009), Accountability for Human Rights Atrocities in International Law, at 173–174. See also Elster (2004), Closing the Books: Transitional Justice in Historical Perspective, at 121–122; Nino (1996), Radical Evil on Trial, at 113; Tina Rosenberg (1995), The Haunted Land: Facing Europe’s Ghosts After Communism (New York: Random House), at 405. 295 Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 101. See also Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 176; Nettelfield (2010), Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State, at 6–8, 13; Clara Ramírez-Barat (2011), Making an Impact: Guidelines on Designing and Implementing Outreach Programs for Transitional Justice (New York: International Center for Transitional Justice), at 24; David Backer (2010), “Watching a Bargain Unravel? A Panel Study of Victims’ Attitudes about Transitional Justice in Cape Town, South Africa,” 4.3 International Journal of Transitional Justice 445, at 445; Orentlicher (2007), “Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,” at 16; Minow (1998), Between Vengeance and Forgiveness, at 89. 296 In his study drawn from quantitative data from focus groups with direct and indirect victims of offences within the mandate of the South African Truth Commission, Backer found that

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Therefore, the failure of the South African government to provide full reparations to victims of these violations and in general to deal with social and economic inequalities is viewed by most of these empirical studies as a major factor that affected negatively victims’ overall perceptions of the work of the Truth Commission, particularly those victims who testified in public hearings of the Commission.297 Similarly, a 2010 population-based survey of attitudes about various themes in Northern Uganda found that the fulfilment of basic needs and provision of services were, according to the respondents, the most important priorities for the district and central government in order to achieve peace.298 To hold accountable those responsible for serious human rights violations was ranked much lower by the respondents. Additionally, the report recognised the need for a holistic approach to peacebuilding, as it recommended that the government of Uganda and the international community design and implement a “multipronged strategy that promotes peace-building, socioeconomic development, justice and poverty-reduction in the north [of Uganda].”299 Likewise, in her study on the impact of the ICTY in Bosnia, which draws on various sources, including qualitative interviews with a wide cross-section of individuals from each major ethnic group in Bosnia and Herzegovina, Diane Orentlicher recognises that “while many in Bosnia consider the ICTY’s mission to be profoundly important,” victims of war crimes in this country have many needs beyond criminal justice and that for many victims “[criminal justice] is not the most important [concern].”300 Similarly, Rama Mani notes the desire of Rwandan people for the political and socio-economic inequalities that underlay the conflict to be addressed.301 Equally, Helena Cobban maintains that in order almost all participants wanted financial contributions (98%) and special priority for jobs, housing and education (91%). See David Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” in Muna Ndulo (ed.), Security, Reconstruction, and Reconciliation: When the Wars End 165 (London: University College London Press), at 179. See also Timothy Sizwe Phakathi and Hugo van der Merwe (2008), “The Impact of the TRC’s Amnesty Process on Survivors of Human Rights Violations,” in Audrey R. Chapman and Hugo van der Merwe (eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver? 116 (Philadelphia: University of Pennsylvania Press), at 123; Ruth Picker (2005), Victims’ Perspectives about the Human Rights Violations Hearings, Report written for the Centre for the Study of Violence and Reconciliation (Johannesburg: South Africa), at 5. 297 Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” at 190–191. See also Picker (2005), Victims’ Perspectives about the Human Rights Violations Hearings, at 5, 6, 18; Debra Kaminer, Dan J. Stein, Irene Mbanga and Nompumelelo ZunguDirwayi (2001), “The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness among Survivors of Human Rights Abuses,” 178 British Journal of Psychology 373, at 375–376. More generally, see Phakathi and van der Merwe (2008), “The Impact of the TRC’s Amnesty Process on Survivors of Human Rights Violations,” at 122, 124–125, 127, 132, 140; Hugo van der Merwe and Audrey R. Chapman (2008), “Did the TRC Deliver?,” in Audrey R. Chapman and Hugo van der Merwe (eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver? 241 (Philadelphia: University of Pennsylvania Press), at 277. 298 Phuong Pham and Patrick Vinck (2010), Transitioning to Peace: A Population-Based Survey on Attitudes about Social Reconstruction and Justice in Northern Uganda (Berkeley: Human Rights Center University of California, Berkeley, School of Law), at 19. 299 Id. at 47. 300 Orentlicher (2010), That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia, at 46. 301   Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 9–10.

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for prosecutions to contribute to peacebuilding, they should be part of a broader project of social and political rehabilitation in the concerned society.302 The unravelling of the causes of the conflict and patterns of violence is also usually important to victims and directly affected societies.303 These studies provide concrete evidence that in order to fulfil the needs of societies in transition and victims, peacebuilding efforts should consist not only of prosecu­tions, but also of measures to address the political and socio-economic conditions that underlay the conflict or repression, and to meet the economic and social needs of victims.304 C. Conclusions of this Section While I will discuss the conclusions of this section further in the conclusions of this chapter and in Chapters V and VI, I would like to focus here on my finding on the state of customary international law with respect to State’s procedural obligations when faced with serious human rights violations and international crimes which occurred in a situation of mass atrocity. I found that while a customary international law rule requiring the prosecution and punishment of those responsible for international crimes and serious human rights violations committed in these situations is emerging, it has not yet been consolidated. State practice on this matter is not yet sufficiently widespread and consistent for the establishment of a customary international law rule. There is, however, considerable support for a customary international law rule demanding States to undertake some process of individual accountability for dealing with these abuses. III. General Conclusions Several conclusions can be drawn from this chapter. First, the emphasis of various treaties and international monitoring bodies on State’s obligations to investigate and prosecute serious human rights violations has affirmed the important role criminal procedures play in addressing these infringements. Human rights treaty monitoring bodies have put forward several rationales for this. First, these bodies have stressed the special status of the rights infringed in these violations. Second, they have emphasised the features of criminal procedures, namely they make it possible for a thorough and independent investigation to be carried out and for the criminal responsibility of those involved to be established. In the light of these arguments, these bodies have maintained that criminal procedures fulfil a significant expressivist function in the event of any of these infringements. Specifically, these bodies have submitted that because of the special characteristics of criminal procedures, they contribute significantly to reaffirming the importance the society attaches to the infringed rights and, more generally, the authority of the law. 302 Cobban (2007), Amnesty After Atrocity? Healing Nations after Genocide and War Crimes, at 209, 211, 239. 303 Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 100. 304 See e.g. Mani (2002), Beyond Retribution: Seeking Justice in the Shadows of War, at 116–118, 185. See also Ratner et al. (2009), Accountability for Human Rights Atrocities in International Law, at 176; Orentlicher, (2007), “Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,” at 16; Minow (1998), Between Vengeance and Forgiveness, at 89.

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These bodies have also consistently identified the victim’s right to an effective remedy as a main legal basis for the State’s duties to investigate and prosecute these violations. My argument is, then, that the logic and rationales that human rights treaty monitoring bodies have adopted for the development of State’s procedural obligations when faced with serious human rights violations equally hold with respect to victim access to and participation in criminal procedures. The above-mentioned features of criminal procedures and the special status of the rights infringed in these violations equally explain why access to and participation in such procedures are so important for victims of these violations. As I will elaborate in Chapter IV, the special status of the rights infringed in these violations denotes the particular nature of such infringements. For their part, the abovementioned special characteristics of criminal procedures, together with their official and public nature and the nature of these violations, explain why such procedures provide victims with a significant means for seeking redress. The fact that these bodies have consistently referred to the victim’s right to an effective remedy as a main legal basis for these procedural duties of States also provides support for this view, because it signals that these bodies conceive criminal procedures as offering victims of serious human rights violations an important venue for seeking redress. Based on these arguments, and as will be analysed at length in Chapter IV,305 I submit that victim access to and participation in criminal procedures are logical extensions of the approach of international human rights treaty monitoring bodies to States’ procedural duties when faced with serious human rights violations. Lastly, while recognising that prosecutions serve important objectives in situations of both isolated and mass serious human rights violations, this chapter has maintained that it is necessary to distinguish between these two types of situations. I agree with international instruments and bodies that in the former, States’ obligations to investigate and prosecute apply rigorously. In contrast, in situations of mass atrocity international rules should take into consideration the competing principles involved in this matter. In particular, and unlike most human rights treaty monitoring bodies, I argue that international rules in this area should strike a fair balance between the need of societies in transition to weigh their competing legitimate objectives, on the one hand, and the requirement that the important objectives prosecutions pursue are affirmed, on the other hand. Therefore, while retaining the possibility of carefully considering their competing aims according to their capacities, culture, history, political realities, and their legal system, these societies should fulfil some strict criteria for refraining from prosecuting, and imposing criminal punishment to, those responsible for these infringements. This chapter has also forced us to consider that while prosecution of serious human rights violations is an important mechanism to address these infringements, its role and significance are limited, particularly in situations of mass violations. This mechanism meets only some of the needs of victims and of directly concerned societies.306 Therefore, it needs to be supplemented by other measures, particularly measures to meet the economic

305 See below Chapter IV, Section I, Subsection A. 306 See above in this chapter, Section II, Subsection B.v.

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and social needs of victims and, in situations of mass atrocity, measures to address the political and socio-economic conditions that underlay the conflict or repression. Peacebuilding efforts should, therefore, take a holistic approach. This finding is very relevant because, for several decades, legal components of international and domestic efforts to deal with mass serious human rights violations in societies in transition have dealt almost exclusively with prosecutions and truth-telling. Most legal scholarship did likewise. I will discuss this further in the following chapters.

chapter three

THE STATUS UNDER INTERNATIONAL LAW OF THE RIGHTS OF ACCESS TO AND PARTICIPATION IN CRIMINAL PROCEEDINGS BEFORE DOMESTIC COURTS FOR VICTIMS OF SERIOUS HUMAN RIGHTS VIOLATIONS

In the last two decades, there have been several initiatives aimed at enhancing the rights of victims of serious human rights violations. One of these initiatives has been to recognise, in parallel to the well-established State’s obligations to investigate and prosecute these infringements, a series of rights for victims of such violations and, in particular, their right of access to justice. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims are an expression of this trend as, in addition to reaffirming the State’s obligations to investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law, they provide for the right of victims of these infringements to “equal access to an effective judicial remedy.”1 While few would doubt that this right covers access to civil procedures, whether it includes access to criminal procedures is less obvious given the traditional divide that has existed between the civil law and the common law traditions with respect to the position of crime victims in criminal procedures, as well as the conventional view in common law jurisdictions that criminal law is aimed solely at protecting the public interest, not the interests of the victim of the offence.2 The objective of this chapter is therefore twofold. First, to determine whether customary international law recognises the rights of access to and participation in criminal procedures before domestic courts for victims of serious human rights violations and, second, 1 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Principle 12, UN General Assembly, Res. 60/147, 16 December 2005, UN Doc. A/RES/60/147. 2 See Andrew Ashworth (1998), The Criminal Process: an Evaluative Process (Oxford: Oxford University Press), at 34–35. See also A.P. Simester and G.R. Sullivan (2000), Criminal Law: Theory and Doctrine (Oxford: Hart Publishing), at 3–4; Tyrone Kirchengast (2006), The Victim in Criminal Law and Justice (Macmillan: Palgrave), at 210; Marc Groenhuijsen (2004), “Victims’ Rights and Restorative Justice: Piecemeal Reform of the Criminal Justice or a Change of Paradigm?,” in Hendrik Kaptein and M. Malsch (eds.), Crime, Victims and Justice: Essays on Principles and Practice 63 (Aldershot: Ashgate), at 66.

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to identify emerging trends in this matter. In analysing these questions, this chapter examines United Nations and regional human rights instruments, both conventional and non-conventional, as well as the case law of monitoring bodies. It is worth clarifying that I discuss the case law of human rights treaty monitoring bodies for various purposes. First, to determine the current state of, and emerging trends in, international law on this subject. In addition, to demonstrate that these bodies have in some respects failed to follow through on the logic of their own case law on several closely related matters, such as remedies in the event of serious human rights violations, States’ duties to investigate and prosecute these infringements, and the rights of victims of such violations in non-criminal procedures. My objective is to put forward a more coherent approach based on a systematic and teleological interpretation of general human rights treaties and developments taking place in both international and comparative law. I will elaborate on this throughout this monograph. With this aim, this chapter proceeds as follows. Section I examines the approach of United Nations instruments and supervisory bodies to access to and participation in criminal procedures before domestic courts for victims of serious human rights violations. Subsequently, Section II discusses the approach of regional instruments and monitoring bodies to this matter. Thereafter, Section III analyses the divide between the common law and the civil law traditions with respect to crime victims’ participation in criminal procedures. As mentioned earlier, while acknowledging that there are legal traditions other than the common law and the civil law which have dealt with the rights of crime victims, my analysis focuses on the common law and the civil law traditions, as they have dominated the negotiation and adoption of international standards on this matter.3 These other traditions of criminal law procedure encompass the Islamic tradition and African tribal systems.4 The study of the common law and the civil law traditions is also important for the following reasons. First and foremost, this analysis is relevant for my examination of the state of customary international law on victim access to and participation in criminal procedures before domestic courts because the very different approaches these traditions have traditionally taken to this subject is a major explanation as to why until recently international law largely left this matter to the domestic law of States. Second, as noted in the general introduction, the discussion of this divide is important in order to understand and address many of the arguments made against victim access to and participation in criminal proceedings generally, and particularly before international tribunals. Specifically, many of the grounds for the historical opposition of common law jurisdictions to victim access to and participation in criminal proceedings are also raised when discussing the adoption of international standards on such matters, particularly in the context of international criminal tribunals.5 Last, in-depth analyses of the common law/ civil law divide with respect to victim access to and participation in criminal proceedings and of current practice in several jurisdictions covering both traditions are very rare. Lastly, Section IV draws some conclusions on this subject. 3 See Zappalà (2003), Human Rights in International Criminal Proceedings, at 17. 4 As mentioned earlier, regarding the Islamic tradition, see e.g. Malekian (1994), The Concept of Islamic International Criminal Law: A Comparative Study. 5 See in this chapter, Section III, Subsection A, and Section IV; and Chapter IV, Section III.

the status under international law101 I. The Approach of United Nations Instruments and Monitoring Bodies This section has three parts: the first analyses the provisions of United Nations treaties and the practice of their monitoring bodies; the second part examines several United Nations non-conventional instruments dealing specifically with the rights of victims of human rights violations; and the last part draws several conclusions. A. The Approach of United Nations Treaties and Their Monitoring Bodies This subsection examines the provisions of the International Covenant on Civil and Political Rights (hereinafter “the ICCPR”), the UN Convention against Torture, the International Convention for the Protection of All Persons from Enforced Disappearance and other relevant international conventions, as well as the case law of the UN Human Rights Committee and the Committee against Torture. i. The International Covenant on Civil and Political Rights The UN Human Rights Committee (hereinafter “the UN Human Rights Committee” or “the Committee”), the body charged with the supervision of the ICCPR, has in most cases declined to recognise any right to victims in the criminal investigations and subsequent proceedings for serious human rights violations conducted in domestic settings. In particular, the UN Human Rights Committee has in numerous cases rejected claims by victims of these infringements that the fair hearing requirement set forth in Article 14, paragraph 1, of the ICCPR has been breached in criminal investigations into these violations, merely stating that “the ICCPR does not provide a right for individuals to require that the State criminally prosecute another person.”6 For instance, in H.C.M.A. v. The Netherlands the Committee rejected the claim by the petitioner that his right to a fair hearing under Article 14, paragraph 1, of the ICCPR had been violated because his allegations of ill-treatment by members of the Dutch police had not been dealt with by an independent judicial authority either in first instance or appeal, stating that “the ICCPR does not provide for the right to see another person criminally prosecuted.”7 Likewise, in Bautista de Arellana v. Colombia, the Committee rejected on the same grounds the claim by the petitioners that there had been a violation of Article 14, paragraph 3(c), of the ICCPR because of the unreasonable delays in the criminal investigation into the death of the direct victim.8 It should, however, be noted that in at least one case the UN Human Rights Committee has recognised that Article 14, paragraph 1, of the ICCPR grants the right of access to a court to victims of human rights violations. In Bahamonde v. Equatorial Guinea, which 6 See e.g. UN HR Committee, S.E. v. Argentina, Communication No. 275/1988, Views of 26 March 1990, para. 5.5. 7 UN HR Committee, H.C.M.A. v. The Netherlands, Communication No. 213/1986, Views of 3 April 1989, para. 11.6. 8 UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, para. 8.6. See also e.g. UN HR Committee, Villafane et al. v. Colombia, Communication No. 612/1995, Views of 19 August 1997, para. 8.8; UN HR Committee, Lalith Rajapakse v. Sri Lanka, Communication No. 1250/2004, Views of 5 September 2006, para. 9.3.

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concerned the illegal arrest and intimidation of, and threats against, the plaintiff by members of the government of Equatorial Guinea, the lack of proper investigation of these claims by the authorities, as well as the confiscation of several of the petitioner’s properties without compensation, the Committee found a violation of the first sentence of Article 14, paragraph 1, of the ICCPR, which enshrines the guarantee of equality before courts, stating as follows: The author has contended that despite several attempts to obtain judicial redress before the courts of Equatorial Guinea, all of his démarches have been unsuccessful. […] The Committee observes that the notion of equality before the courts and tribunals encompasses the very access to the courts, and that a situation in which an individual’s attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1.9

However, in this case the UN Human Rights Committee did not specify whether this principle applies only to civil disputes or also regarding criminal cases. Nor do the circumstances of the case shed light in this respect since they concerned issues of both a criminal and civil nature. Additionally, the Committee expressly qualified the denial of justice as systematic when finding a violation of the first sentence of Article 14, paragraph 1, of the ICCPR. In effect, this qualification of the denial of justice is the only distinguishing feature of this case. While it is difficult to reconcile the findings in this case with the other decisions of the UN Human Rights Committee on this subject, the view of the Committee on this matter appears to be that as a general rule victims’ access to and participation in criminal investigations into, and subsequent proceedings for, serious human rights violations do not fall within the scope of the fair hearing requirement set forth in Article 14, paragraph 1, of the ICCPR. However, when the denial of justice faced by a victim of one of these violations is systematic, the very guarantee of equality before the courts enshrined in the first sentence of Article 14, paragraph 1, of the ICCPR is infringed. Although I recognise that the scope of the right to a fair hearing in situations other than that of the defendant in criminal proceedings, under Article 14, paragraph 1, of the ICCPR, is not well-defined, I argue that a systematic and teleological interpretation of this right provides support for the recognition of the rights of access to and participation in criminal proceedings for victims of serious human rights violations. The following chapter will elaborate on this matter.10 Here it suffices to note that the view of the UN Human Rights Committee on this subject is troublesome in various respects. First, it is inaccurate to state, as the Committee does, that the applicability of the fair hearing requirement in criminal investigations into human rights violations with respect to victims of these infringements would grant them an absolute right to require that the State criminally prosecute another person. Rather, the applicability of this provision would only confer on victims of these infringements the right to have a domestic investigation to be carried out 9 UN HR Committee, Angel N. Olo Bahamonde v. Equatorial Guinea, Communication No. 468/1991, Views of 10 November 1993, para. 9.4. See also UN HR Committee, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 23 August 2007, UN Doc. CCPR/C/GC/32, para. 9. 10 See below Chapter IV, Section I, Subsection C.

the status under international law103 by independent authorities within a reasonable period of time and other procedural rights which will be discussed in the next chapter. In this respect, it is worth reiterating the finding of the previous chapter that the State’s duty to investigate human rights violations is an obligation of means and thus, although investigations must be carried out in a genuine and serious manner, prosecution and trial must only take place if warranted by the findings of the investigation.11 Second, as will be analysed at length in the following chapter,12 the right of victims of serious human rights violations to resort to the authorities to require compliance with the State’s duties to investigate and prosecute these violations, as well as other victims’ rights in criminal proceedings, are logical extensions of the approach of the UN Human Rights Committee to two closely related matters analysed in the previous chapter: its wellestablished approach to the legal bases and rationales of State obligations to investigate and prosecute these violations, particularly its view that the victim’s right to an effective remedy is a legal basis of these duties of States;13 and the recognition in its General Comment No. 31 and case law that in the event of a serious human rights violation, bringing to justice those responsible is a component of the reparation due to the victim.14 Third, the distinction between systematic and non-systematic violations of the right of the victim of access to domestic courts introduced by the UN Human Rights Committee in Bahamonde v. Equatorial Guinea is problematic, because there are no reasonable criteria to support it. Lastly, the Committee’s scarce reasoning provides little guidance as to the legal bases and rationales for its view. It should, nevertheless, be noted that, as discussed in the previous chapter, the UN Human Rights Committee has, in its case law and General Comments, consistently reiterated the duties of States Parties to the ICCPR to investigate thoroughly any alleged serious human rights violation and to prosecute, try and punish those responsible.15 ii. The UN Convention against Torture Unlike earlier human rights treaties such as the ICCPR, the UN Convention against Torture (hereinafter “the CAT”) specifically provides for both the State’s obligation to conduct a prompt and impartial investigation into any instance of torture, and for the victim’s right to complain about any such act and to have his or her case promptly and impartially examined by State authorities. Specifically, Article 13 of the CAT, which provides for the latter, reads as follows: Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities.

11  See above Chapter II, Section I, Subsection B. 12 See below Chapter IV, Section I, Subsection A. 13 See above Chapter II, Section I, Subsection A. See also Mandfred Nowak (1996), “Monitoring Disappearances – The Difficult Path from Clarifying Past Cases to Effectively Preventing Ones,” 1996 European Human Rights Law Review 348, at 355. 14 See e.g. UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, paras. 16, 18. 15 See above Chapter II, Section I, Subsection A.i.

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The text of Article 13 of the CAT, read together with other provisions therein, particularly Articles 12 and 14, makes clear that these rights of victims cover criminal procedures. Article 12 of the CAT, interpreted by the Committee against Torture and several authors as complementary to the victim’s rights under Article 13,16 requires States Parties to conduct “a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” For its part, Article 14 of the CAT enshrines the victim’s right to obtain redress and to fair and adequate compensation. Therefore, the narrow wording of Article 14 of the CAT referring to the victim’s right to ‘compensation’, when compared with the broader wording of Article 13 therein, makes clear that the latter covers criminal procedures. This conclusion is also supported by the travaux préparatoires of Article 13 of the CAT. This article has its origins in the Declaration against Torture of 1975, which provides for the right of torture victims to “complain to, and to have [their] case impartially examined by, the competent authorities of the State concerned.”17 The Committee against Torture has also adopted the view that Article 13 of the CAT covers criminal procedures. In several cases, it has stated that the conduct of a prompt criminal investigation into an alleged act of torture is not only a State’s obligation, but also a victim’s right under Article 13 of the CAT.18 In conclusion, Article 13 of the CAT recognises two rights of victims of torture in the field of criminal justice: the rights to complain to, and to have their case promptly and impartially examined by, State authorities. By doing so, this Convention acknowledges implicitly that victims of torture have legitimate interests in the criminal investigations into, and subsequent proceedings for, any alleged act of torture. I will discuss at length this proposition in subsequent subsections and in the next chapter. iii. International Instruments Proscribing Forced Disappearance The International Convention for the Protection of All Persons from Enforced Disappear­ ance enshrines the victim’s right to report any instance of enforced disappearance and “to

16 See e.g. UN Committee against Torture, Baraket v. Tunisia, Communication No. 60/96, Views of 10 November 1999, paras. 11.1–11.10, 12; UN Committee against Torture, Dimitrov v. Serbia and Montenegro, Communication No. 171/2000, Views of 3 May 2005, para. 7.2; UN Committee against Torture, Dragan Dimitrijevic v. Serbia and Montenegro, Communication No. 207/2002, Views of 29 November 2004, para. 5.4. For scholarly accounts, see J. Herman Burgers and Hans Danelius (1988), The United Nations Convention against Torture (Dordrecht: Martinus Nijhoff), at 145–146; Nowak and MacArthur (2008), The United Nations Convention against Torture: A Commentary, at 439. 17 Declaration against Torture, UN General Assembly, Res. 3452 (XXX), 9 December 1975, U.N. Doc. A/10034, Art. 8. 18 See e.g. UN Committee against Torture, Dimitrov v. Serbia and Montenegro, Communication No. 171/2000, Views of 3 May 2005, para. 7.2. See also UN Committee against Torture, Dragan Dimitrijevic v. Serbia and Montenegro, Communication No 207/2002, Views of 29 November 2004, para. 5.4. For scholarly works in favour of this view, see Nowak and MacArthur (2008), The United Nations Convention against Torture: A Commentary, at 439–440, 444–450; Burgers and Danelius (1988), The United Nations Convention against Torture, at 145–146.

the status under international law105 know the progress and results of the investigation.”19 Similarly, the UN Declaration on the same subject grants victims the right to complain about any instance of enforced disappearance and to have their case promptly, thoroughly and impartially examined by State authorities.20 Additionally, this international instrument provides that the findings of an investigation into a forced disappearance shall, as a general rule, be made available upon request to all persons concerned.21 iv. Other International Conventions Additionally, human rights treaty monitoring bodies have derived several victims’ rights in criminal proceedings before domestic courts from the victim’s right to an effective remedy, enshrined in many international conventions. For instance, in its General Recommendation No. XXXI of 2005, the CERD Committee, based on the victim’s right to an effective remedy set forth in Article 6 of the International Convention on the Elimination of Racial Discrimination,22 encourages States Parties to ensure that their system of justice, inter alia: Grants a proper place to victims and their families, as well as witnesses, throughout the proceedings, by enabling complainants to be heard by the judges during the examination proceedings and the court hearing, to have access to information, to confront hostile witnesses, to challenge evidence and to be informed of the progress of proceedings.23

The applicability of this General Recommendation to criminal proceedings is confirmed by its subject matter as reflected in its title – i.e. General Recommendation No. XXXI on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, and the text of other of its paragraphs that expressly refer to victims’ rights in criminal proceedings.24 Likewise, in its General Recommendation No. 19 on Violence against Women of 1992, the CEDAW Committee recommends that States provide “effective complaints procedures and remedies, including compensation.”25 That these complaints procedures include criminal ones is confirmed by other paragraphs of this General Recommendation. In

19   See International Convention for the Protection of All Persons from Enforced Disappearance, Arts. 12 and 24, para. 2. 20 Declaration on the Protection of All Persons from Enforced Disappearance, Art. 13, UN General Assembly, Res. 47/133, 18 December 1992, UN Doc. A/RES/47/133. 21   Id. Art. 13. 22 Committee on the Elimination of Racial Discrimination, General Recommendation XXXI on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, 2005, para. 6, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 282. 23 Id. para. 19.a). 24 Id. paras. 15, 17.a). 25 Committee on the Elimination of Discrimination against Women, General Recommendation No. 19: Violence against Women, 1992, para. 24(i), in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/ REV.8, at 304.

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particular, it is worth noting that Paragraph 24(r) therein includes criminal penalties among the “[m]easures that are necessary to overcome family violence.”26 B. United Nations Instruments Other Than Treaties Alongside the treaties analysed above, several United Nations non-conventional instruments have been adopted with respect to the rights of victims. The focus in this subsection is on the following three instruments: the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985 (hereinafter “the UN Declaration for Victims of Crime”);27 the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims;28 and the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity of 2005 (hereinafter “the Set of Principles on Combating Impunity”).29 Although these international instruments are not legally binding as such, they deserve consideration since they specifically address the rights of victims of human rights violations and two of them were adopted by consensus or by large majorities at the UN General Assembly: the UN Declaration for Victims of Crime was adopted by consensus by the UN General Assembly on 29 November 1985, and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims were adopted without vote by the same body in December 2005.30 i. The UN Declaration for Victims of Crime Being the first international instrument addressing the subject of victims of crime and abuse of power,31 it is not surprising that the UN Declaration for Victims of Crime of 1985 is rather modest in its provisions on access to justice for victims. Although this Declaration refers to victims’ access to justice and to their active involvement in criminal proceedings, any victim right in this area is subjected to the domestic law of States. For instance, 26 Id. para. 24(r)(i). 27 The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN General Assembly, Res. 40/34, 29 November 1985, UN Doc. A/RES/40/34. 28 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly, Res. 60/147, 16 December 2005, UN Doc. A/ RES/60/147. 29 Diane Orentlicher, “Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, Addendum, 8 February 2005, UN Doc. E/ CN.4/2005/102.Add.1 (hereinafter “Updated Set of Principles on Combating Impunity”). 30 Regarding the UN Declaration for Victims of Crime, see UN General Assembly, Res. 40/34, 29 November 1985, UN Doc. A/RES/40/34. Regarding the adoption of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, see information under the heading “Resolutions adopted by the General Assembly at its 60th session,” available at the website of the UN Headquarters’ library, http://www.un.org/Depts/dhl/resguide/r60.htm. Accessed on 2 February 2011. 31 Office of the High Commissioner for Human Rights, in cooperation with the International Bar Association (2003), Human Rights in The Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, at 753.

the status under international law107 paragraph 4 of this Declaration provides that victims “are entitled to access to the mechanisms of justice and prompt redress, as provided for by the national legislation ….” By the same token, paragraph 6 (b) of this Declaration provides that victims should have the opportunity to present their “views and concerns at appropriate stages of the proceedings where their personal interests are affected … consistent with the relevant national criminal justice system.” It is, therefore, evident that while this Declaration does recommend victims’ active involvement in criminal proceedings before domestic courts, it does not set any international standard on this matter. ii. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims After more than a decade and a half of intensive work in the former UN Commission on Human Rights, including several studies and reports by the two independent experts appointed by this body, M. Cherif Bassiouni and Theo van Boven, and three consultative meetings held in Geneva on the topic, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims were adopted without vote by the UN General Assembly in December 2005.32 However, it should be noted that when the Principles were adopted by the former UN Commission on Human Rights on 19 April 2005, while no State voted against, there were 13 abstentions.33 This international instrument is the first one to address in a comprehensive manner the rights of victims of human rights and international humanitarian law violations. While several provisions of the Principles refer to victims’ access to justice,34 it is Principle 12 that specifically provides for the right of a victim of a gross violation of international human rights law or of a serious violation of international humanitarian law to “equal access to an effective judicial remedy.” However, Principle 12 adds a caveat when stating that victims shall have such a right “as provided for under international law.” In effect, and although the drafting history of this instrument does not shed light on the precise meaning of this expression,35 it is clear that such an expression is a renvoi to other norms of international law and thus victims’ right of access to justice is recognised under the 32 See information under the heading “Resolutions adopted by the General Assembly at its 60th session,” available at the website of the UN Headquarters’ library, http://www.un.org/Depts/dhl/ resguide/r60.htm. Accessed on 2 February 2011. 33 UN Commission on Human Rights, Res. 2005/35 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 19 April 2005, E/CN.4/RES/2005/35. 34 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 2(b) (requiring States to adopt appropriate measures for providing access to justice); Principle 3(c) (recalling that State obligations to respect, ensure respect for and implement international human rights law and international humanitarian law require States to provide victims with access to justice “as described below”); and Principle 11(a) (providing that remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to effective access to justice “as provided for under international law”). 35 It appears that this expression was included in both Principles 11 and 12 during the third consultative meeting on the Basic Principles and Guidelines on the Right to a Remedy and Reparation

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Principles as far as it is already so under existing international law. In order to ascertain the precise content of such a right under this international instrument, one has therefore to look not only at its remaining provisions, but also at other norms of international law.36 While these other norms of international law are analysed in the remaining sections of this chapter, here the provisions of the Principles other than Principle 12 are examined with the objective of determining whether victims’ right of access to justice encompasses the rights of access to and participation in criminal proceedings. In this respect, it should first be noted that despite some proposals made during the preparation of the Principles to include express provisions granting victims access to criminal investigations and subsequent proceedings,37 this international instrument does not expressly state whether victims’ right of access to an effective judicial remedy encompasses the rights of access to and participation criminal proceedings. Nor can a firm conclusion be drawn from a systematic analysis of the provisions of the Principles. Principle 3(c) provides that the State’s obligations to respect, ensure respect for and implement international human rights law and international humanitarian law include the duty to “provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below ….”38 The inclusion of the latter expression makes clear that this Principle makes a renvoi to Principle 12. Additionally, Principle 22(f) provides that satisfaction for victims of these violations includes “[j]udicial and administrative sanctions against persons liable for the violations.” While this Principle is a recognition of the proposition that an impartial and thorough investigation and, if warranted, criminal prosecution and sanctions are components of the reparation due to victims of serious human rights violations, it does not grant victims specific entitlements in the criminal proceedings for such infringements. In sum, while the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims specifically provide for the right of “access to an effective judicial for Victims held on 29 September and 1st October 2004. See the UN High Commissioner for Human Rights, The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law: Note by the High Commissioner for Human Rights, 21 December 2004, UN Doc. E/CN.4/2005/59, at 9, para. 38. 36 See Gabriela Echeverría (2006), “Codifying the Rights of Victims in International Law: Remedies and Reparation,” in the International Bureau of the Permanent Court of Arbitration (ed.), Redressing Injustices Through Mass Claims Processes: Innovative Responses to Unique Challenges 286 (New York: Oxford University Press), at 292; and author’s interview with Diane Orentlicher, Professor at American University-Washington College of Law, Washington D.C., 11 November 2008. 37 During the first consultative meeting on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims held from 30 September to 1 October 2002, the representative of the ECtHR “encouraged inclusion of guarantees for access by victims to investigative machinery.” See Chairperson-Rapporteur, Ambassador Alejandro Salinas (Chile), Report of the Consultative Meeting on the Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, 27 December 2002, UN Doc. E/CN.4/2003/63, at 21, Annex I, para. 21. Certain NGOs participating in this Consultative Meeting also proposed a reference to victims’ participation to be added to Principle 25 (b). See Id. at 34, Annex I, para. 143. 38 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 3(c) (emphasis added).

the status under international law109 remedy” for victims of gross violations of international human rights law and serious violations of international humanitarian law, this international instrument leaves to customary international law whether such a right encompasses the victim’s rights of access to and participation in criminal proceedings before domestic courts. iii. The Set of Principles on Combating Impunity Another international instrument dealing with the rights of victims of human rights violations is the Set of Principles on Combating Impunity of 2005, updated by Diane Orentlicher, then UN independent expert on this subject, pursuant to Resolution 2004/72 of the former UN Commission on Human Rights. It is worth noting that in 2005 the former UN Commission on Human Rights, by Resolution 2005/81, “[took] note with appreciation of these principles and encouraged States to consider them in developing and implementing effective measures to combat impunity ….”39 Two provisions of this international instrument are particularly relevant for determining whether victims of human rights violations have the rights of access to and participation in criminal proceedings before domestic courts. The first of these is Principle 19, which in addition to affirming the State’s obligation to conduct an effective investigation into any human rights violation and to prosecute, try and duly punish those responsible for serious crimes under international law, encourages States to allow victims to institute and to participate in criminal proceedings. However, the latter recommendation is expressly limited to those States whose domestic law grants victims these opportunities.40 Despite this, this international instrument encourages broad victims’ participation in criminal proceedings before domestic courts in those States whose domestic law allows such participation. Diane Orentlicher makes this point clear when stating in her commentary on Principle 19 that victims’ participation should be allowed at all “appropriate stages of the criminal proceedings”, always ensuring that such a participation is exercised in a manner that is consistent with the rights of the accused and with a fair and impartial trial.41 39 UN Commission on Human Rights, Res. 2005/81: Impunity, 21 April 2005, paras. 20, 21, in UN Commission on Human Rights, Report of the Sixty-First Session, UN Doc. E/CN.4/2005/135, at 311. 40 Paragraph 2 of Principle 19 of the Updated Set of Principles on Combating Impunity reads as follows: “Although the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures. States should guarantee broad legal standing in the judicial process to any wronged party and to any person or nongovernmental organization having a legitimate interest therein.” See Updated Set of Principles on Combating Impunity, E/CN.4/2005/102/Add.1, at 12 (emphasis added). See also Diane Orentlicher, “Report of the Independent Expert to Update the Set of Principles to Combat Impunity,” in Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 18 February 2005, UN Doc. E/CN.4/2005/102, at 12, para. 36 (the text of the Set of Principles “accommodate[s] diverse legal systems”). 41 Diane Orentlicher, “Report of the Independent Expert to Update the Set of Principles to Combat Impunity,” in Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 18 February 2005, UN Doc. E/CN.4/2005/102, at 12, para. 37.

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Additionally, according to Principle 32 (1) and the commentary of the independent expert, criminal proceedings may be required as an effective remedy for victims in the event of a serious human rights violation.42 In sum, while the Set of Principles on Combating Impunity explicitly encourages broad access to and participation in criminal proceedings before domestic courts for victims of human rights violations, this is only done with respect to those States whose domestic law allows such access and participation. This caveat makes clear that this international instrument also leaves victims’ access to and participation in criminal proceedings before local courts to the domestic law of States. C. Conclusions In conclusion, despite the increasing recognition of the right of access to justice for victims of serious human rights violations in recent United Nations instruments – notably in Principle 12 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, it is doubtful whether at present this right encompasses the rights of access to and participation in criminal proceedings before domestic courts. Recent United Nations non-conventional instruments recognising a victim’s right of access to justice either remain silent as to whether such a right includes the rights of access to and participation in criminal proceedings before domestic courts or subject any entitlement in this area to the domestic law of States. Likewise, the UN Human Rights Committee has consistently rejected claims for victims’ rights in criminal investigations into, and subsequent proceedings for, serious human rights violations. The chief explanations of the approach of these instruments and bodies appear to be the divide between the common law and the civil law traditions with respect to the role of victims in criminal proceedings,43 as well as the fear that granting rights to victims in these proceedings would undermine the principles governing the enforcement of criminal law in democratic States.44 While these explanations will be analysed at length in the following chapter, three comments should be made here. First, a close look at the approach of United Nations instruments and monitoring bodies shows that there has been some evolution over time on this subject. Increasingly, these instruments and bodies recognise a number of victims’ rights in criminal investigations into, and subsequent proceedings for, serious human rights violations. In comparison to earlier treaties such as the ICCPR, the CAT recognises explicitly some rights of victims in the field of criminal justice.45 Similarly, the CERD Committee’s General Recommendation No. XXXI of 2005 recommends that States grant wide rights in criminal proceedings to victims of racial discrimination. Increasingly, 42 Id. at 16, para. 58. 43 See e.g. id. at 12, para. 36. 44 See paragraph 2 of Principle 19 of the Updated Set of Principles on Combating Impunity. See also e.g. UN HR Committee, Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995, para. 8.6; UN HR Committee, Villafane et al. v. Colombia, Communication No. 612/1995, Views of 19 August 1997, para. 8.8; UN HR Committee, Lalith Rajapakse v. Sri Lanka, Communication No. 1250/2004, Views of 5 September 2006, para. 9.3. 45 The CAT was adopted and opened for signature, ratification and accession by UN General Assembly Res. 39/46 of 10 December 1984.

the status under international law111 United Nations instruments and monitoring bodies also view the investigation and prosecution of serious human rights violations as components of the reparation due to a victim of any such infringement.46 Second, these two developments are of particular importance at the conceptual level as they affirm the proposition that the investigation and prosecution of serious human rights violations are not the exclusive province of the State, but also matters that directly concern victims of these infringements. In other words, these developments provide support for the proposition, which will be discussed at length in the following chapter, that victims of these violations have several legitimate interests in the investigation into, and subsequent criminal proceedings for, these infringements. Last, the submission of victims’ rights in criminal investigations and subsequent proceedings to the domestic law of States by a number of United Nations instruments is considered extreme. Although the divide between the common law and the civil law traditions on the role of victims in criminal proceedings is a factor that needs to be taken into consideration when regulating this subject, it is clear that the observance of international legal standards in this area, which concerns the protection of fundamental rights, cannot be at the mercy of the domestic law of States.47 In this respect, it is worth noting the following paragraph of the UN Human Rights Committee’s General Comment No. 32 on Article 14 of the ICCPR, which enshrines the rights to a fair hearing and to a fair trial: Article 14 contains guarantees that States parties must respect, regardless of their legal traditions and their domestic law. While they should report on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees.48

I will discuss at length the question of the applicability of the right to a fair hearing to victims in the criminal proceedings for serious human rights violations in the following chapter. II. Case Law of Regional Human Rights Treaty Monitoring Bodies With respect to regional systems for the protection of human rights, this section analyses the approach of the supervisory bodies in the African, European and Inter-American systems. 46 See e.g. the Basic Principles and Guidelines on the Right to a Remedy and to Reparation for Victims, Principle 22(f); UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, paras. 16, 18; Committee against Torture, Guridi v. Spain, Communication No. 212/2002, Views of 24 May 2005, para. 6.7; IACtHR, the Ituango Massacre case v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 1 July 2006, Series C No. 148, paras. 339–344. For scholarly accounts, see e.g. Nowak and MacArthur (2008), The United Nations Convention against Torture: A Commentary, at 483; Bassiouni (2006), “International Recognition of Victims’ Rights,” at 263. 47 For the special status of the rights infringed in serious human rights violations, see above Chapter II. 48 UN HR Committee, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 23 August 2007, UN Doc. CCPR/C/GC/32, para. 4.

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A. The Inter-American System for the Protection of Human Rights The fight against impunity has been a constant concern in the practice of the InterAmerican bodies for the protection of human rights.49 As analysed in the previous chapter, the IACtHR has, since its first decisions in contentious cases, interpreted the ACHR to require States to conduct an effective investigation into any human rights violation and to prosecute those responsible. In the last decade, there has, however, been an impor­tant conceptual evolution of the approach of the IACtHR to this matter: the investiga­tion and prosecution of human rights violations are no longer seen as merely giving rise to States’ obligations – as initially was the case,50 but also to several rights of victims. Specifically, the IACtHR has recognised the following two rights of victims of human rights violations in criminal investigations and proceedings. Firstly, the right to resort to the administration of justice to obtain an investigation by a competent, independent and impartial authority within a reasonable time and, if warranted in the light of evidentiary and other objective requirements, that those responsible are prosecuted and punished.51 Secondly, the right to participate in criminal proceedings with the aim of contributing to the clarification of the facts, the identification, prosecution and punishment of the perpetrators, and seeking due reparation. According to the IACtHR, the latter specifically demands that victims “have substantial possibilities of being heard and acting in the criminal proceedings [for these violations]”.52 i. Victims’ Right to Resort to the Administration of Justice to Obtain an Investigation and, if Warranted, that Those Responsible are Prosecuted and Punished The IACtHR has identified three main legal bases for the right of victims of human rights violations to resort to the administration of justice to obtain an investigation and, if warranted in the light of objective requirements, that those responsible are prosecuted and punished: first, the fair hearing requirement set forth in Article 8, paragraph 1, of the ACHR; second, the right to judicial protection enshrined in Article 25 of the ACHR; and last, the victim’s right to the truth. The IACtHR has based its view that accusing parties in criminal proceedings for human rights violations are beneficiaries of the fair hearing requirement, set forth in Article 8, paragraph 1, of the ACHR, on the letter and the spirit of this provision, as well as the wording of Article 29(c) of the ACHR. In Blake v. Guatemala, the IACtHR stated as follows in this respect: 49 See e.g. Cassel (2007), “The Inter-American Court of Human Rights,” at 151. 50 See e.g. IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 166, 174, 176, and 177. 51 See e.g. IACtHR, Case of the “White Van” (Paniagua-Morales et al.) v. Guatemala, Merits, Judgment of 8 March 1998, Series C No. 37, paras. 151–155; IACtHR, Genie Lacayo v. Nicaragua, Merits, Reparations and Costs, Judgment of 29 January 1997, Series C No. 30, paras. 74, 75, 77, 79, and 97. See also IACommHR, Martin de Mejía v. Peru, case 10.970, Report No. 5/96, 1 March 1996, at 22. 52 IACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63, para. 227. See below in this Section, Subsection ii.

the status under international law113 This Tribunal considers that Article 8(1) of the Convention must be given a broad interpretation based on both the letter and the spirit of this provision, and must be appreciated in accordance with Article 29 (c) of the Convention.53

Additionally, the IACtHR stressed the fact that forced disappearance, the human rights violation involved in the case, “places the victim outside the protection of the law and causes grave suffering to him and to his family.”54 It is worth mentioning that it was in its 1997 judgment in the case of Genie Lacayo that for the first time the IACtHR stated that accusing parties in criminal proceedings for human rights violations are beneficiaries of the fair hearing requirement.55 In the circumstances of the case, the IACtHR found that the right of the direct victim’s relatives to have criminal proceedings conducted into the human rights violations allegedly occurred in the case within a reasonable period of time had not been complied with.56 However, the IACtHR did not elaborate on the bases and rationales for this interpretation. In judgments handed down after Blake v. Guatemala, while the IACtHR has affirmed this view in the context of cases involving human rights violations other than forced disappearance, it has failed to explain further why the fair hearing requirement set forth in Article 8, paragraph 1, of the ACHR covers victims of human rights violations participating in criminal proceedings as accusing parties.57 The right to judicial protection, enshrined in Article 25 of the ACHR, has been another legal basis for a victim’s right to resort to the administration of justice to obtain an investigation into an alleged human rights violation and, if warranted, that those responsible are prosecuted and punished, the IACtHR has identified. The IACtHR has referred to the right to judicial protection as a legal basis for this victim right since its 1998 judgment in LoayzaTamayo v. Peru, in which it stated as follows: Article 25 in relation to Article 1(1) of the American Convention obliges the State to guarantee to every individual access to the administration of justice and, in particular, to simple and

53 IACtHR, Blake v. Guatemala, Merits, Judgment of 24 January 1998, Series C No. 36, para. 96. Article 29 of the ACHR reads as follows: “No provision of this Convention shall be interpreted as: … c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government.” 54 See IACtHR, Blake v. Guatemala, Merits, Judgment of 24 January 1998, Series C No. 36, para. 97. 55 See IACtHR, Genie Lacayo v. Nicaragua, Merits, Reparations and Costs, Judgment of 29 January 1997, Series C No. 30, para. 75. For a more general statement in previous cases, see IACtHR, Velásquez Rodríguez v. Honduras, Preliminary Objections, Judgment of 26 June 1987, Series C No. 1, para. 91; IACtHR, Fairén Garbi and Solís Corrales v. Honduras, Preliminary Objections, Judgment of 26 June 1987, Series C No. 2, para. 90; IACtHR, Godínez Cruz v. Honduras, Preliminary Objections, Judgment of 26 June 1987, Series C No. 3, para. 93. 56 IACtHR, Genie Lacayo v. Nicaragua, Merits, Reparations and Costs, Judgment of 29 January 1997, Series C No. 30, para. 80. 57 IACtHR, Durand and Ugarte v. Peru, Merits, Judgment of 16 August 2000, Series C No. 68, paras. 128, 130; IACtHR, Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90, paras. 58, 65; IACtHR, Case of the 19 Tradesmen, Merits, Reparations and Costs, Judgment of 5 July 2004, Series C No. 109, paras. 185, 187.

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chapter three prompt recourse, so that, inter alia, those responsible for human rights violations may be prosecuted and reparations obtained for the damages suffered… Article 25 is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention.58

Additionally, the IACtHR has made clear that the right of victims to resort to the administration of justice to obtain an investigation into an alleged human rights violation pursuant to the right to judicial protection requires more than the mere opportunity to request the start of domestic proceedings. In particular, the IACtHR has required that judicial proceedings are conducted within a reasonable period of time,59 and that every necessary step is taken to determine the truth and punish those responsible for the events. In its 2006 judgment in La Cantuta v. Peru, the IACtHR affirmed this view by stating as follows: The right to justice is not limited to the formal institution of domestic proceedings, but it also involves the assurance within reasonable time of the right of alleged victims or their relatives to have every necessary step taken to know the truth and punish those responsible for the events.60

58 IACtHR, Loayza Tamayo v. Peru, Reparations, Judgment of 27 November 1998, Series C No. 42, para. 169. See also IACtHR, Castillo Páez v. Peru, Reparations and Costs, Judgment of 27 November 1998, Series C No. 43, para. 106. 59 IACtHR, Bulacio v. Argentina, Merits, Reparations and Costs, Judgment of 18 September 2003, Series C No. 100, paras. 114–5. 60 IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162, para. 149. For previous cases, see IACtHR, Case of Myrna Mack Chang, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 209; IACtHR, Case of the 19 Tradesmen v. Colombia, Merits, Reparations and Costs, Judgment of 5 July 2004, Series C No. 109, para. 188; IACtHR, Case of the Serrano-Cruz Sisters v. El Salvador, Merits, Reparations and Costs, Judgment of 1 March 2005, Series C No. 120, para. 66; and IACtHR, Case of the “Mapiripán Massacre” v. Colombia, Merits, Reparations and Costs, Judgment of 15 September 2005, Series C No. 134, para. 216. More generally, the IACtHR has held that Article 25 of the ACHR requires not only that remedies exist formally, but also that they are effective. See e.g. IACtHR, Baldeón Garcia case, Merits, Reparations and Costs, Judgment of 6 April 2006, Series C No. 147, para. 144; IACtHR, Case of Acevedo Jaramillo et al. v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment of 7 February 2006, Series C No. 144, para. 213; IACtHR, Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment of 19 September 2006, Series C No. 151, para. 131; IACtHR, Case of Ximenes Lopes, Merits, Reparations and Costs, Judgment of 4 July 2006, Series C No. 149, para. 192. Effectiveness, that according to this Court, means that “the recourse must be appropriate to contest the violation, and that its implementation by the competent authority must be effective.” See e.g. IACtHR, Case of Acosta Calderón, Merits, Reparations and Costs, Judgment of 24 June 2005, Series C No. 129, para. 93; IACtHR, Case of López Álvarez, Merits, Reparations and Costs. Judgment of 1 February 2006, Series C No. 141, para. 139; IACtHR, Case of Palamara Iribarne, Merits, Reparations and Costs, Judgment of 22 November 2005, Series C No. 135, para. 184; IACtHR, Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment of 19 September 2006, Series C No. 151, para. 131.

the status under international law115 According to the IACtHR, this right specifically imposes on judges the obligation to control the proceedings in such a way as to avoid undue delays that lead to impunity.61 The IACtHR has also expressly ruled that the right to judicial protection requires the decision on the complaint or suit to be duly justified,62 as well as a ruling on the merits.63 The IACommHR has adopted a similar view. In Carranza v. Argentina, concerning the in limine rejection by Argentina’s courts of the suit brought by an individual against his dismissal as a judge on grounds that such an act was ‘non-justiciable’, the IACommHR held that the right to judicial protection not only requires free access to a judicial remedy, but also that the competent judicial body reaches “a reasoned decision on the claim’s merits.”64 The IACtHR has also noted that the right of the victim to resort to the administration of justice to obtain an investigation into an alleged human rights violation and, if warranted, that those responsible are prosecuted and punished, exists in parallel to the State’s obligations to investigate, prosecute and punish. In its 2002 judgment in the case of the Caracazo v. Venezuela, which concerned the killing of at least 276 individuals and the wounding and disappearance of several others as a result of the disproportionate use of force by Venezuelan security bodies when putting an end to a series of disturbances which occurred in Caracas in February and March of 1989, as well as the lack of an effective investigation into these events, the IACtHR held as follows: All the States party to the American Convention have the duty to investigate human rights violations and to punish the perpetrators and accessories after the fact in said violations. And any person who considers himself or herself to be a victim of such violations has the right to resort to the system of justice to attain compliance with this duty by the State, for his or her benefit and that of society as a whole.65

This means that although seeking the same objective, this right of the victim and the State’s obligations in this field remain independent. This independence means, inter alia, that the inaction of the victim does not discharge the State from its obliga­tions to investigate a serious human rights violation and to prosecute and punish those responsible. According to the IACtHR, the right of victims to learn the truth about what happened is another legal basis of their right to resort to the administration of justice to obtain an investigation into an alleged human rights violation and, if warranted, that those responsible are prosecuted and punished.66 In this respect, it should be mentioned that 61 IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, para. 150. See also IACtHR, Case of Myrna Mack Chang, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 209. 62 IACtHR, Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment of 19 September 2006, Series C No. 151, para. 136. 63 Id. para. 139. 64 IACommHR, Carranza v. Argentina, Case 10.087, Report No. 30/97, 30 September 1997, paras. 71, 77. 65 IACtHR, the Caracazo v. Venezuela, Reparations, Judgment of 29 August 2002, Series C No. 95, para. 115 (emphasis added). See also IACtHR, Case of Serrano-Cruz Sisters v. El Salvador, Merits, Reparations and Costs, Judgment of 1 March 2005, Series C No. 120, para. 64; IACtHR, Case of Heliodoro Portugal v. Panamá, Preliminary Objections, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186, para. 146. 66 See IACtHR, Case of the 19 Tradesmen v. Colombia, Merits, Reparations and Costs, Judgment of 5 July 2004, Series C No. 109, para. 187. See also IACtHR, Case of Serrano-Cruz Sisters v. El Salvador,

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the IACtHR has consistently maintained that the truth must necessarily be obtained through criminal proceedings.67 The IACommHR has also stated that States do not fulfil their procedural obligations under the ACHR by establishing truth commissions.68 Additionally, the IACtHR has taken the view that access to justice for victims of serious human rights violations is a peremptory norm of international law and creates an erga omnes obligation for States to adopt all such measures as are necessary to ensure investigation of these violations and prosecution of those responsible. In its 2006 judgment in the Case of Goiburú et al. v. Paraguay, which concerned the illegal arrest, arbitrary detention, ill-treatment and forced disappearance of several individuals, as well the partial impunity of these facts, the IACtHR for the first time stated this to be so, maintaining as follows: Access to justice is a peremptory norm of international law and, as such, gives rise to obligations erga omnes for the States to adopt all necessary measures to ensure that such violations do not remain unpunished, either by exercising their jurisdiction to apply their domestic law and international law to prosecute and, when applicable, punish those responsible, or by collaborating with other States that do so or attempt to do so.69

Although the IACtHR did not limit the substantive scope of this dicta, judge Cançado Trindade in his individual opinion in this case clarified that in this Court’s view, the victim’s right of access to justice only has the status of a peremptory norm of international law when redress is sought with respect to those human rights violations whose prohibition also has this status.70

Merits, Reparations and Costs, Judgment of 1 March 2005, Series C No. 120, para. 62; and IACtHR, Case of Heliodoro Portugal v. Panamá, Preliminary Objections, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186, para. 146. For prior cases with a moregeneral statement in this respect, see IACtHR, Case of Myrna Mack Chang, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 209; IACtHR, Case of Bulacio v. Argentina, Merits, Reparations and Costs, Judgment of 18 September 2003, Series C No. 100, para. 114; and IACtHR, Case of Hilaire, Constantine and Benjamin et al., Judgment of 21 June 2002, Series C No. 94, paras. 142–145. 67 See e.g. IACtHR, Case of Almonacid-Arellano et al v. Chile, Preliminary Objections, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No. 154, para. 150; IACtHR, Case of Gómez-Palomino v. Peru, Merits, Reparations and Costs, Judgment of 22 November 2005, Series C No. 136, paras. 78–79. 68 See IACommHR, Parada Cea et al. v. El Salvador, Case 10.480, Report No. 1/99, 27 January 1999, para. 155. For a scholarly account, see Hélène Tigroudja and Ioannis K. Panoussis (2003), La Cour interaméricaine des droits de l’homme: analyse de la jurisprudence consultative et contentieuse (Bruxelles: Bruylant), at 275. 69 IACtHR, Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006, Series C No. 153, para. 131. See also IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162, para. 160. In the latter, the IACtHR made this statement after finding that at the time when the facts of the case took place there was a practice of forced disappearance at the instance of the top leadership of the then Peruvian government and noting that criminal procedings against former President Fujimori were unsuccessful because he enjoyed asylum in Japan. 70 Separate Opinion of Judge Antônio A. Cançado Trindade, paras. 64, 67 in IACtHR, Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006, Series C No. 153 (stating that this is a reasonable leap forward of the IACtHR in view of its

the status under international law117 It is also worth mentioning that the IACtHR has consistently ruled that integral reparation for the violation of the rights enshrined in the ACHR cannot be reduced to the payment of compensation to the victim. In the view of this Court, reparation with respect to this type of violation should include an impartial and thorough investigation, and if warranted, criminal prosecution and sanctions.71 ii. Victims’ Right to Participate in Criminal Proceedings The IACtHR has also recognised the right of victims to participate in criminal procedures based on the right to a fair hearing set forth in Article 8, paragraph 1, of the ACHR,72 and having a twofold rationale: to enable them to contribute to clarification of the facts and the punishment of those responsible, and to allow them to seek adequate reparation. In its 1999 judgment in the “Street Children” case, the IACtHR stated as follows in this respect: Moreover, it is evident from Article 8 of the Convention that the victims of human rights violations or their next of kin should have substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek due reparation.73

In the above-mentioned the Caracazo v. Venezuela case, while the IACtHR affirmed and expanded its view on this matter, it failed to elaborate further as to the legal bases and rationales of this right of victims. In addressing the allegation by the IACommHR that there had been a violation of the fair hearing requirement and the right to judicial protection, consistent case law holding that certain serious human rights violations constitute jus cogens breaches, involving States’ obligation to investigate and prosecute those responsible). Cf. Hélène Tigroudja (2006), “La Cour Interaméricaine des Droits de l’Homme au service de ‘L’Humanisation du Droit International Public’ propos autour des récents arrêts et avis,” in 52 Annuaire français de droit international 617, at 629 (criticising the IACtHR’s finding in Goiburu v. Paraguay that access to justice for victims is a peremptory norm of international law because of this Court’s failure to put arguments for supporting this finding). 71 See e.g. IACtHR, the Ituango Massacre case v. Colombia, Judgment of 1 July 2006, Series C No. 148, paras. 339–344; IACtHR, The Miguel Castro Castro Prison v. Peru, Merits, Reparations and Costs, Judgment of 25 November 2006, Series C No. 160, para. 441. For scholarly accounts, see Jo M. Pasqualucci (2003), The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge: Cambridge University Press), at 242–243; Antônio A. Cançado (2006), “The InterAmerican System of Protection of Human Rights: the Developing Case-Law of the Inter-American Court of Human Rights (1982–2005),” in Felipe Gómez and Koen De Feyter (eds.), International Protection of Human Rights: Achievements and Challenges 475 (Bilbao: Universidad de Deusto), at 485–487; Arturo J. Carrillo (2006), “Justice in Context: the Relevance of Inter-American Human Rights Law and Practice to Repairing the Past,” in Pablo De Greiff (ed.), The Handbook of Reparations 504 (Oxford: Oxford University Press), at 526. 72 This article provides as follows: “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal, or any other nature.” 73 IACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63, para. 227. See also IACtHR, Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90, para. 59; IACtHR, Durand and Ugarte v. Peru, Judgment of 16 August 2000, Series C No. 68, para. 129.

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set forth in Article 8, paragraph 1, and Article 25 of the ACHR respectively,74 based on the lack of access to the case files by the surviving victims and their relatives due to the existence of procedural provisions setting the secrecy of the preliminary stage of the investigations, the IACtHR ordered as follows in its judgment on reparations in this case: [T]hat the next of kin of the victims and the surviving victims must have full access and the power to act at all stages and in all proceedings during said investigations, in accordance with domestic legislation and the provisions of the American Convention on Human Rights, and that the results of those investigations must be made known to the public.75

While the reference to both domestic legislation and the ACHR as the legal sources of this right of victims is ambiguous, it appears from the wording used by the IACtHR, and in particular the reference to the ACHR, that, in the view of this Court, victims’ rights of access to and participation in criminal proceedings are directly based on the provisions of the ACHR. The IACtHR uses the term ‘must’ and states that victims’ participation extends to “all stages and in all proceedings during [criminal] investigations [into violations of the rights enshrined in the ACHR].” Although the IACtHR has affirmed this right in subsequent cases,76 it has provided no further reasoning for inferring such a right from the provisions of the ACHR. iii. Discussion From the above it is clear that according to the IACtHR, there are three main legal bases for the victim’s rights in criminal proceedings that it has recognised: first, the right to a fair hearing set forth in Article 8, paragraph 1, of the ACHR; second, the right to judicial protection provided for in Article 25 of the same Convention; and, third, the victim’s right to the truth. It is worth analysing whether the rights of victims the IACtHR has recognised in its case law can reasonably be inferred from these sources. Firstly, the view of the IACtHR that the right to judicial protection, set forth in Article 25, paragraph 1, of the ACHR, is a legal basis for the right of the victim to resort to the administration of justice to obtain an investigation into an alleged human rights violation, and for his or her right to participate in criminal proceedings, is considered warranted by this author. A textual, systematic and teleological interpretation of the right to judicial

74 IACtHR, the Caracazo Case v. Venezuela, Merits, Judgment of 11 November 1999, Series C No. 58, para. 2. 75 IACtHR, the Caracazo Case v. Venezuela, Reparations and Costs, Judgment of 29 August 2002, Series C No. 95, paras. 118 and 143.1. 76 See e.g. IACtHR, Case of Juan Humberto Sánchez v. Honduras, Preliminary Objections, Merits, Reparations and Costs, Judgment of 7 June 2003, Series C No. 99, para. 186; IACtHR, Case of Baldeón-García, Merits, Reparations and Costs, Judgment of 6 April 2006, Series C No. 147, para. 199; IACtHR, Case of Montero-Aranguren and others (Detention Center of Catia) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of 5 July 2006, Series C No. 150, para. 139; IACtHR, Case of Vargas-Areco v. Uruguay, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No. 155, para. 155 (“The relatives of [the direct victim] or their representatives must have full access and capacity to act at all stages and instances of the corresponding proceedings, pursuant to domestic legislation and the American Convention ….”).

the status under international law119 protection provides support for this view. To begin with, it is reasonable to submit that the right of the victim to resort to domestic courts to obtain an effective investigation into an alleged human rights violation and some other rights of the victim in criminal investigations and proceedings fall within the scope of the right to judicial protection. According to the text of Article 25, paragraph 1, of the ACHR, the scope of this provision is wide. This article reads as follows: Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.77

It is worth noting, in particular, that this provision refers to ‘any other effective recourse’, in addition to ‘simple and prompt recourse’, aimed at the protection against violations of fundamental rights recognised by the constitution or laws of the State concerned or by the ACHR.78 The travaux préparatoires of this provision show that the expression ‘any other effective recourse’ was added with the very objective of covering remedies that may be ‘effective’ for protecting fundamental rights, though not ‘simple and prompt’.79 Additionally, this article provides that these remedies should be dealt with by a ‘competent court or tribunal’. Based on the text of this provision, it is reasonable to maintain that, as accepted by the case law of the IACtHR, criminal proceedings for alleged serious human rights violations, although not ‘simple and prompt’, fall within the scope of the right to judicial protection enshrined in Article 25, paragraph 1, of the ACHR. More importantly, as will be discussed at length in the following chapter, a systematic and teleological interpretation of the right to an effective remedy also provides support for the recognition of the rights of access to and participation in criminal procedures for victims of serious human rights violations.80 It should, however, be mentioned that there are some who interpret restrictively the right to judicial protection enshrined in Article 25, paragraph 1, of the ACHR, maintaining that this provision covers only a special type of remedy aimed at the protection of fundamental rights, namely those that are simple, prompt and effective. Therefore, those who adopt this view posit that only the remedy known as amparo and the writ of habeas corpus fall within the scope of the right to judicial protection. Judge Cecilia Medina Quiroga 77 Article 25, paragraph 2, reads as follows: “The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted.” 78 Partial Dissenting Opinion of Judge Cecilia Medina Quiroga, in IACtHR, Case of Salvador Chiriboga v. Ecuador, Preliminary Objections and Merits, Judgment of 6 May 2008, Series C No. 179, para. 3. 79 Id. para. 3 (citing Specialized Inter-American Conference on Human Rights, Proceedings and Documents, San José, Costa Rica, November 7/22, 1969 (OEA/Ser.K/XVI/1.2), at 22, 66). See also Cecilia Medina Quiroga (2005), La convención americana: teoría y jurisprudencia: vida, integridad personal, libertad personal, debido proceso y recurso judicial (Santiago: Universidad de Chile), at 369. 80 See below Chapter IV, Section I, Subsection B.

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has adopted this approach in Individual Opinions in several cases.81 The majority of the IACtHR also endorsed this view in most of its judgments until 1997.82 It is, however, difficult to reconcile this view with the very text of Article 25, paragraph 1, of the ACHR. By maintaining that in order to fall within the scope of this provision a remedy must be simple, prompt and effective, the supporters of this view deprive of any meaning the expression “any other effective recourse” included therein. As mentioned earlier, the travaux préparatoires confirm the importance of the inclusion of this expression. The view of the IACtHR that the fair hearing requirement, provided for in Article 8, paragraph 1, of the ACHR, is another legal basis for the right of the victim to resort to the administration of justice to obtain an investigation into an alleged human rights violation, and of his or her right to participate in these proceedings, is also considered reasonable. First, the broad scope of Article 8, paragraph 1, of the ACHR in situations other than that of the defendant in criminal proceedings provides support for this view. This provision requires the observance of the fair hearing requirement in “the 81 See e.g. Partly Dissenting Opinion of Judge Cecilia Medina in IACtHR, Case of the 19 Tradesmen v. Colombia, Merits, Reparations and Costs, Judgment of July 5, 2004, Series C No. 109, para. 1 (“The possible access to justice granted by Article 25 would only cover prompt, simple and effective remedies; namely, only the remedy of amparo”). See also Partly Dissenting Opinion of Judge Cecilia Medina in IACtHR, Case of the Gómez-Paquiyauri Brothers v. Peru, Merits, Reparations and Costs, Judgment of July 8, 2004, Series C No. 110, para. 1; Medina Quiroga (2005), La convención americana: teoría y jurisprudencia: vida, integridad personal, libertad personal, debido proceso y recurso judicial, at 361 (stating that Article 25(1) only enshrines the writs of amparo and habeas corpus). Id. at 365 (maintaining that the objective of Art. 25 is to provide for a right to a simple, effective and prompt recourse; not any judicial resource). But see Partial Dissenting Opinion of Judge Cecilia Medina Quiroga, in IACtHR, Case of Salvador Chiriboga v. Ecuador, Preliminary Objections and Merits, Judgment of 6 May 2008, Series C No. 179, para. 3. For scholars adopting this view, see Paola A. Acosta (2007), El derecho de acceso a la justicia en la jurisprudencia interamericana (Bogotá: Universidad Externado de Colombia), at 32, 36–37, 53, 61, 79 (maintaining that Article 25 does not enshrine a wide right to judicial protection covering remedies protecting any type of right; only those remedies seeking to protect fundamental rights and which are effective, simple and prompt). 82 IACtHR, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87 of 30 January 1987, Series A No. 8, para 32 (Article 25, para. 1, enshrines the recourse known as amparo, “which is a simple and prompt remedy designed for the protection of all the fundamental rights”). See also IACtHR, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-9/87 of 6 October 1987, Series A No. 9, para. 23; IACtHR, Suárez-Rosero v. Ecuador, Merits, Judgment of 12 November 1997, Series C No. 35, para. 66 (holding that the recourse under Art. 25 must be simple, effective and prompt.) Id. paras. 64–66 (holding that Article 25, para. 1, also covers the writ of habeas corpus); IACtHR, Caballero-Delgado and Santana v. Colombia, Merits, Judgment of 8 December 1995, Series C No. 22, para. 66; IACtHR, Castillo-Páez v. Peru, Merits, Judgment of 3 November 1997, Series C No. 34, para. 84; IACtHR, Genie Lacayo v. Nicaragua, Merits, Reparations and Costs, Judgment of 29 January 1997, Series C No. 30, para. 89 (rejecting the IACommHR claim that there had been a violation of Art. 25 on grounds that it had not been proven that the relative’s victim exercised the type of recourse envisaged in this provision – i.e. habeas corpus or amparo). But see IACtHR, Velásquez-Rodríguez v. Honduras, Preliminary Objections, Judgment of 26 June 1987, Series C No. 1, para 91 (“States Parties have an obligation to provide effective judicial remedies to victims of human rights violations [under] Article 25”).

the status under international law121 determination of [everyone’s] rights and obligations of a civil, labour, fiscal, or any other nature.83 The broad scope of this provision is confirmed by the travaux préparatoires. The narrower expression “in the determination of [everyone’s] civil rights and obligations,” included in the Draft Inter-American Convention on the Protection of Human Rights prepared by the Secretariat of the IACommHR two months before the adoption of the ACHR, was replaced by the current broader wording.84 As will be analysed in the next chapter, a systematic and teleological interpretation of the right to a fair hearing also lends support to this view. iv. Conclusions In conclusion, the struggle against impunity has marked the practice of both the IACtHR and the IACommHR since their creation.85 However, there has been a significant evolution in the view of these bodies on this subject over time. Specifically, the initial view conceiving the investigation and prosecution of human rights violations as mere States’ obligations has been replaced by an approach that recognises, in parallel to these duties of States, a series of victims’ rights in criminal proceedings before domestic courts. In particular, the Inter-American bodies have recognised two rights in criminal proceedings for victims of human rights violations. First, the right to resort to the administration of justice to obtain an investigation by a competent, independent and impartial authority within a reasonable time and if warranted, the prosecution and punishment of those responsible.86 Second, the right to actively participate in criminal proceedings, which demands that victims are afforded “substantial possibilities of being heard and acting in such proceedings”.87 Despite the limited explanation the IACtHR has given regarding the legal bases and rationales for its approach to this subject, I agree with this Court that the fair hearing requirement provided for in Article 8, paragraph 1, of the ACHR and the right to judicial protection enshrined in Article 25, paragraph 1, of the same Convention provide support for these rights of victims in criminal proceedings. As discussed above and will be ana­ lysed further in the following chapter, this view conforms to the text, object and purpose of the ACHR interpreted in the light of the developments that have taken place in international law. 83 ACHR, Art. 8, para. 1 (emphasis added). 84 Draft of the Inter-American Convention on Human Rights, doc. 13, 22 September 1969, in Thomas Buergenthal and Rober E. Norris (eds.) (1982), Human Rights: The Inter-American System (Dobbs Ferry: Oceana), booklet 14, vol. 3. 85 See e.g. Cassel (2007), “The Inter-American Court of Human Rights,” at 151. 86 See e.g. IACtHR, Case of the “White Van” (Paniagua-Morales et al.) v. Guatemala, Merits, Judgment of 8 March 1998, Series C No. 37, Merits, paras. 151–155; IACtHR, Genie Lacayo v. Nicaragua, Merits, Reparations and Costs, Judgment of 29 January 1997, Series C No. 30, paras. 74, 75, 77, 79, and 97. See also IACommHR, Martin de Mejía v. Peru, case 10.970, Report No. 5/96, 1 March 1996, at 22. 87 IACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63, para. 227. See also IACtHR, Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90, para. 59; IACtHR, Durand and Ugarte v. Peru, Merits, Judgment of 16 August 2000, Series C No. 68, para. 129.

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B. The European System for the Protection of Human Rights According to the case law of the ECtHR, States should involve victims in criminal investigations into, and proceedings for, any infringement of the right to life and the prohibitions of ill-treatment, slavery and forced labour. Specifically, when assessing State compliance with the obligation to carry out an effective investigation into any alleged instance of these violations, the ECtHR has recognised implicitly a series of victims’ rights in criminal investigations into, and procedures for, these infringements. These rights include the right to be informed that the proceedings are progressing and of the decisions made therein; the right to be heard and the right to have access to the case files. This subsection will examine the case law of the ECtHR recognising these rights. Additionally, it will analyse the view of the ECtHR as to whether victims enjoy the right to a fair hearing, provided for in Article 6, paragraph 1, of the ECHR, in the context of criminal proceedings for serious human rights violations. i. Victims’ Rights in Criminal Proceedings Recognised by the ECtHR When Assessing Compliance with the State’s Procedural Obligations When Faced with Serious Human Rights Violations Since its first judgments recognising the State’s obligation to investigate allegations of infringements of the right to life and the prohibition of ill-treatment based on the victim’s right to an effective remedy, the ECtHR has required effective access for the complain­ ant to the investigatory procedure. For instance, in Aksoy v. Turkey, concerning the illtreatment of an individual by Turkish security forces while in detention, the ECtHR held as follows when examining the complaint by the applicant that his right to an effective remedy set forth in Article 13 of the ECHR has been violated: Accordingly, as regards Article 13, where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an ‘effective remedy’ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure.88

In addition, the ECtHR has, in many cases, found a breach of the victim’s right to an effective remedy and/or the procedural aspect of the State’s obligation to protect the right to life under Articles 13 and 2 of the ECHR respectively, based on the lack of effective access for the complainant to the investigatory procedure. Concerning the requirement of victims’ involvement in criminal investigations under the procedural aspect of the State’s obligation to protect the right to life pursuant to Article 2 of the ECHR, it is first worth mentioning the case of Güleç v. Turkey, which concerned the killing of the applicant’s son by Turkish authorities when using force to disperse those participating in an authorised 88 ECtHR, Aksoy v. Turkey, Judgment of 18 December 1996, Application No. 21987/93, para. 98 (emphasis added). See also the following judgments of the ECtHR: Aydin v. Turkey, Judgment of 25 September 1997, Application No. 23178/94, para. 103; Kaya v. Turkey, Judgment of 19 February 1998, Application No. 22729/93, para. 107; Kiliç v. Turkey, Judgment of 28 March 2000, Application No. 22492/93, para. 91; Abdülsamet Yaman v. Turkey, Judgment of 2 November 2004, Application No. 32446/96, para. 53.

the status under international law123 demonstration in a province in Southeast Turkey on 4 March 1991.89 In this case, the ECtHR found that there had been a lack of an effective investigation into the circumstances of the death of the applicant’s son in breach of the State’s obligation to protect the right to life under Article 2 of the ECHR based, inter alia, on the fact that the investigation into this incident was conducted without the participation of the victim’s relatives.90 In particular, the ECtHR stressed the failure of Turkish authorities to inform the victim’s relatives about the orders made discontinuing the investigation.91 Similarly, in Oğur v. Turkey, which concerned the killing of a mining company’s guard by members of Turkish security forces in circumstances disputed by the parties,92 the ECtHR upheld the claim by the applicants on the lack of an effective investigation into the killing in violation of the State’s obligation to protect the right to life under Article 2 of the ECHR based, inter alia, on the lack of access by the victim’s close relatives to the case file during most of the investigation phase,93 as well as the failure to notify their lawyer of the prosecution authority’s decision discontinuing the proceedings against the members of the security forces who had taken part in the operation in which the claimants’ relative had died.94 In this latter respect, the ECtHR stressed that this failure had deprived the applicants of the possibility of appealing against this decision.95 The case of Kelly and others v. The United Kingdom, which concerned the killing of nine men during a security force operation in Loughgall in Northern Ireland on 8 May 1987, is also relevant with respect to the requirement of victims’ involvement in the investigatory procedure pursuant to the procedural aspect of the State’s obligation to protect the right to life under Article 2 of the ECHR.96 In examining the complaint by the applicants that there had been a lack of an effective investigation into the circumstances of the deaths, the ECtHR listed a number of requirements States must observe when complying with their obligation to carry out an effective investigation into an alleged violation of the right to life.97 The ECtHR expressly mentioned among these requirements the involvement of the victim’s relatives in the investigatory procedure. In this respect, the ECtHR stated as follows: For [maintaining public confidence in the authorities’ adherence to the rule of law and preventing any appearance of collusion in or tolerance of unlawful acts], there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victims must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.98 89 ECtHR, Güleç v. Turkey, Judgment of 27 July 1998, Application No. 21593/93. 90 Id. paras. 82–83. 91 Id. paras. 11, 12, 82. 92 ECtHR, Öğur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93, paras. 1, 61, 71. 93 Id. paras. 89, 90, 92–93. 94 Id. para. 92. 95 Id. para. 92. 96 ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96. 97 Id. paras. 95–98. 98 Id. para. 98 (emphasis added). See also the following judgments of the ECtHR: Hugh Jordan v. The United Kingdom, Judgment of 4 May 2001, Application No. 24746/94, para. 109; McKerr v.

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The importance of this judgment is threefold. First, the ECtHR made clear that the involvement of the vic­tim’s relatives in the investigation of an alleged violation of the right to life is a general requirement under the procedural aspect of the State’s obligation to protect the right to life under Article 2 of the ECHR. Second, the ECtHR referred to the legitimate interests of victims - in this case vic­tim’s relatives - as a rationale for their involvement in criminal proceedings for a violation of the right to life. While the ECtHR implicitly maintained that these interests were limited, this statement is of considerable importance because, according to my research, it was the first time that the Court expressly recognised that victims have legitimate interests in the criminal proceedings for serious human rights violations. Given the importance of this matter for the subject of my study, I will analyse it at length in the following chapter.99 Last, the fact that the defendant in this case was a State with a criminal justice system based on the common law tradition is worth emphasising, as the previous cases had been against States with criminal justice systems grounded in the civil law tradition and mainly against Turkey.100 Therefore, this fact supports the proposition that the requirement of victim involvement in investigatory and subsequent criminal proceedings is applicable in respect of States Parties to the ECHR adopting both civil law and common law criminal justice system models. Subsequent judgements of the ECtHR have reaffirmed this conclusion.101 Additionally, in Kelly and others v. The United Kingdom, the ECtHR applied the victim’s involvement requirement when examining several aspects of the allegation by the applicants that there had been a lack of an effective investigation into the circumstances of the deaths of their relatives. Firstly, the ECtHR stated that disclosure or publication of police reports and investigative materials cannot be regarded as an automatic requirement under Article 2 of the ECHR, as they “may involve sensitive issues with possible prejudicial effects to private individuals or other investigations”102 and that “[t]he requisite access of … the victim’s relatives may be provided for in other stages of the available procedures.”103 In other words, the ECtHR considered that the introduction of limitations to victims’ access to investigative materials during the investigation phase can be legitimate. Secondly, the ECtHR examined the fact that the prosecutor in the case did not give reasons for his decision not to prosecute. In this respect, the ECtHR stated that “[the lack of reasons for such a decision] denies the family of the victim access to information about a matter of crucial importance to them and prevents any legal challenge of the decision.”104 The United Kingdom, Judgment of 4 May 2001, Application No. 28883/95, para. 115; Shanaghan v. The United Kingdom, Judgment of 4 May 2001, Application No. 37715/97, para. 92.   99 See below Chapter IV, Section II. 100 See e.g. ECtHR, Öğur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93, para. 92; Gül v. Turkey, Judgment of 14 December 2000, Application No. 22676/93, para. 98.  101 ECtHR, Ahmet Özkan and others v. Turkey, Judgment of 6 April 2004, Application No. 21689/93, para. 314; Paul and Audrey Edwards v. The United Kingdom, Judgment of 14 March 2002, Application No. 46477/99, para. 73. 102   ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 115. 103 Id. para. 115. 104 Id. para. 117.

the status under international law125 The ECtHR added “the killing of nine men, one of whom was unconnected with the IRA and two others at least unarmed, is a situation that ‘cries out for an explanation’.”105 Therefore, the ECtHR concluded that the lack of a reasoned decision by the prosecutor cannot generally be considered as conforming with the State’s obligation to protect the right to life under Article 2 of the ECHR.106 Lastly, the ECtHR found that the non-disclosure of witness statements prior to the appearance of witnesses at the inquest prejudiced the ability of the direct victims’ relatives to participate in such procedure.107 In particular, the ECtHR held that “[t]he inability of the families to have access to witness statements before the appearance of the witness must be regarded as having placed them at a disadvantage in terms of preparation and ability to participate in questioning.”108 It should, however, be noted that the procedure of inquiry to which the ECtHR was referring did not have a criminal nature.109 Based on these and other shortcomings in the proceedings aimed at investigating the use of lethal force by British security forces in this case, the ECtHR concluded that that there was a failure by the State Party to comply with the procedural aspect of its obligation to protect the right to life pursuant to Article 2 of the ECHR.110 In Paul and Audrey Edwards v. The United Kingdom, in examining whether the inquiry carried out by British authorities into the killing of a man while held in prison on remand by another prisoner was effective as required by the procedural aspect of the State’s obligation to protect the right to life under Article 2 of the ECHR, the ECtHR elaborated further on the rationales for victims’ involvement in criminal proceedings for serious human rights violations.111 In this respect, the ECtHR held that the legitimate interests of victims in the criminal proceedings for these infringements are based on “their close and personal concern with the subject matter of the inquiry.”112 Additionally, in the circumstances of the case the ECtHR applied the requirement of victims’ involvement in criminal proceedings, as it found a violation of the procedural aspect of the State’s obligation to protect the right to life under Article 2 of the ECHR based, inter alia, on the fact that the applicants were excluded from these proceedings, save when they were giving evidence.113 Similarly, in Slimani v. France, which concerned the death of a man suffering mental problems while detained in an administrative detention centre in view of his definitive expulsion from French territory, the ECtHR concluded that there was a violation of the procedural aspect of the State’s obligation to protect the right to life under Article 2 of the ECHR, based on the impossibility that the victim’s partner had to take part in the proceedings aimed at establishing the cause of the victim’s death or to gain access to the 105 Id. para. 118. 106 Id. para. 118. 107 Id. para. 136. 108 Id. para. 128. 109 Id. paras. 48–60, 119–134. 110 Id. paras. 136, 139. 111 ECtHR, Paul and Audrey Edwards v. The United Kingdom, Judgment of 14 March 2002, Application No. 46477/99, paras. 46, 75. 112 Id. para. 84. 113 Id. para. 87.

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information thereby obtained.114 In particular, the ECtHR held that victims’ next of kin should be involved in the investigatory procedure once an investigation has been opened, without need of having filed a complaint and joined the proceedings as a partie civile.115 This case is very relevant in the context of those domestic criminal law systems based on the civil law tradition because it makes clear that victims should be involved in the investigatory procedure, regardless of whether or not they have joined the proceedings as a partie civile. In addition, the ECtHR has found, in at least two cases, a breach of both the right to an effective remedy and the procedural aspect of the State’s obligation to protect the right to life under Articles 13 and 2 of the ECHR respectively, based on the lack of victims’ involvement in the investigatory procedure. In Gül v. Turkey, which concerned the alleged unlawful killing of a man by the Turkish police officers who opened fire on the door of his flat, the ECtHR found that Turkish authorities had failed to conduct an effective investigation into the circumstances of the death in violation of both the right to an effective remedy and the procedural aspect of the State’s obligation to protect the right to life,116 based on several shortcomings in the investigation into, and criminal proceedings for, this incident, including the lack of information made available to the direct victim’s relatives about the conduct of criminal proceedings against three Turkish officers for the death, and the denial to them of the opportunity to tell the concerned criminal court their version of events.117 Equally, in Orhan v. Turkey, which concerned the disappearance of an individual in Southeast Turkey in May 1994, the ECtHR found that there had been a lack of an effective investigation under both the right to an effective remedy and the procedural aspect of the State’s obligation to protect the right to life, based on the failure of the Turkish authorities to inform the victim’s relatives of the progress of, and the decisions taken in, the investigation carried out with respect to the incident.118 Lastly, it should be noted that in Rantsev v. Cyprus and Russia, the ECtHR reaffirmed the State’s duties to adopt criminal law provisions proscribing slavery and forced labour and to effectively investigate any such conducts, which were first recognised in the abovediscussed Siliadin v. France case.119 More importantly, the ECtHR held that in fulfilling their obligation to investigate these acts, States must ensure the involvement of the victim in the investigatory procedure.120

 114 ECtHR, Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, paras. 44, 47–49.  115 Id. para. 47.  116 ECtHR, Gül v. Turkey, Judgment of 14 December 2000, Application No. 22676/93, paras. 95, 102.  117 Id. para. 93.  118 ECtHR, Orhan v. Turkey, Judgment of 18 June 2002, Application No. 25656/94, paras. 346, 348, 387, 396.  119 ECtHR, Rantsev v. Cyprus and Russia, Judgment of 7 January 2010, Application No. 25965/04, para. 288. See also ECtHR, Siliadin v. France, Judgment of 26 July 2005, Application No. 73316/01, paras. 82, 112, 148. 120 ECtHR, Rantsev v. Cyprus and Russia, Judgment of 7 January 2010, Application No. 25965/04, para. 288.

the status under international law127 ii. Do Victims of Serious Human Rights Violations Enjoy the Right to a Fair Hearing in Criminal Proceedings? Despite the developments discussed above, the ECtHR has held that the fair hearing requirement set forth in Article 6, paragraph 1, of the ECHR does not entitle victims either to request the commencement of a criminal prosecution,121 or to participate in criminal proceedings once such proceedings have been initiated. Additionally, the ECtHR has ruled that in those States allowing for victims’ participation in criminal proceedings through the institution of the partie civile, victims taking part in these proceedings enjoy the fair hearing requirement only if such proceedings are decisive for the compensation for damages they suffered as a result of the offence.122 The view of the ECtHR on this matter is mainly due to the restrictive interpretation, under the predominant strand of this Court’s case law, of the concept of ‘civil rights’ included in Article 6, paragraph 1, of the ECHR for delimiting the scope of the fair hearing requirement in situations other than that of the defendant in criminal proceedings. According to this strand of the case law of the ECtHR, the fair hearing requirement set forth in Article 6, paragraph 1, of the ECHR covers only those rights that are of a private nature, which in turn have generally been characterised by their pecuniary content.123 I disagree with the view of the ECtHR on this matter. While the next chapter will elaborate on my submission that the right to a fair hearing is a legal basis for victim access to and participation in criminal proceedings generally,124 here it is worth explaining why victims of serious human rights violations taking part in these proceedings as a partie civile should enjoy the right to a fair hearing, even if such proceedings are not decisive for the compensation for damages they suffered as a result of the offence. First, this proposition is fully consistent with the above-discussed view of the ECtHR that victim involvement in criminal proceedings is a requisite of States’ procedural obligations when faced with a serious human rights violation, regardless of whether or not the victim is seeking compensation for damages. The ECtHR made this clear in the above-mentioned case of Slimani v. France, in which it held that victims’ next of kin must be involved in the investigatory 121 See ECtHR, Helmers v. Sweden, Judgment of 29 October 1991, Application No. 11826/85. For a scholarly account, see Pieter van Dijk and Marc Viering (2006), “Right to a Fair and Public Hearing (Article 6),” in Pieter van Dijk et al (eds.) Theory and Practice of the European Convention on Human Rights 551 (Antwerpen: Intersentia, 4th edn), at 559. See also Ovey and White (2006), Jacobs and White, The European Convention on Human Rights, at 173; Richard Clayton and Hugh Tomlinson (2002), The Law of Human Rights (Oxford: Oxford University Press), para. 11.186. 122 See e.g. ECtHR, Tomasi v. France, Judgment of 27 August 1992, Application No. 12850/87, para. 121; Aït-Mouhoub v. France, Judgment of 28 October 1998, Application No. 22924/93, para. 44–46; Perez v. France, Judgment of 12 February 2004, Application No. 47287/99, para. 70; Antunes Rocha v. Portugal, Judgment of 31 May 2005, Application No. 64330/01, para. 43. 123 See e.g. ECtHR, Ringeisen v. Austria, Judgment of 16 July 1971, Application No. 2614/65, para. 94; Airey v. Ireland, Judgment of 9 October 1979, Application No. 6289/73, para. 21; Benthem v. The Netherlands, Judgment of 23 October 1985, Application No. 8848/80, para. 36; Case of Editions Periscope v. France, Judgment of 26 March 1992, Application No. 11760/85, paras. 9–13, 33, 40. 124 I say ‘generally’ to indicate victim access to and participation in criminal procedures, regardless of the model or tradition the concerned State adopts in its criminal justice system. See below Chapter IV, Section I, Subsection C.

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procedure once an investigation has been opened, without need of having filed a complaint and joined the proceedings as a partie civile – i.e. without request for being an adherent in view of seeking compensation for damages.125 Additionally, my submission is consistent with the above-analysed view of the ECtHR that victims have several legitimate interests in the criminal proceedings for serious human rights violations,126 and that these interests are based on “their close and personal concern with the subject matter of the inquiry.”127 This wording indicates that, in the view of the ECtHR, victims’ interests in criminal proceedings for these infringements go well beyond seeking compensation for the damages suffered. As will be discussed at length in the following chapter, a systematic interpretation of the rights to a fair hearing and to an effective remedy also provides support for the proposition that victims of serious human rights violations taking part in criminal proceedings as a partie civile should enjoy the right to a fair hearing, even if they are not seeking compensation for damages.128 Furthermore, there is a strand of the ECtHR’s case law that requires States to comply with the fair hearing requirement in any instance in which the determination of a right enshrined in the ECHR – at least those not regarded as political ones – is at issue, even if the concerned right does not have a pecuniary content. While I will elaborate at length on this matter in the following chapter,129 here it is worth noting that the ECtHR has expressly recognised that most, if not all, the rights enshrined in the ECHR are ‘civil rights’ in terms of Article 6, paragraph 1, of this Convention. In Golder v. The United Kingdom, the ECtHR for the first time recognised that there is some overlapping between the term ‘civil rights and obligations’ included in Article 6, paragraph 1, of the ECHR and the notion of ‘rights and freedoms as set for this Convention’ in Article 13 of the same instrument.130 Additionally, the ECtHR held that both the right to enjoy a good reputation and the right to liberty are ‘civil rights’ in terms of Article 6, paragraph 1, of the ECHR.131 Similarly, in Fayed v. The United Kingdom, both the responding government and the ECtHR accepted that the right to enjoy a good reputation was a ‘civil right’ under Article 6, paragraph 1, of the ECHR, even if it had not been shown that such a right had a pecuniary element.132 Likewise, in the case of W v. The United Kingdom, which concerned the 125 ECtHR, Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, para. 47. 126 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 98. 127 ECtHR, Paul and Audrey Edwards v. The United Kingdom, Judgment of 14 March 2002, Application No. 46477/99, para. 84. 128 See below Chapter IV, Section I. 129 See below Chapter IV, Section I, Subsection C. 130 ECtHR, Golder v. The United Kingdom, Judgment of 21 February 1975, Application No. 4451/70, para. 33 (“The concept of ‘civil rights and obligations’ is not co-extensive with that of ‘rights and freedoms as set forth in this Convention’, even if there may be some overlapping”) (italics added). 131 Id. paras. 27 and 33. See also Aerts v. Belgium, Judgment of 30 July 1998, Application No. 25357/94, Report 1998-V, para. 59. 132 ECtHR, Fayed v. The United Kingdom, Judgment of 21 September 1994, Application No. 17101, paras. 58, 61, 82–83. See also the Concurring Opinion on Judge Martens in this case, stating that “there [can] be [no] doubt as to the right to reputation being a ‘civil’ right within the autonomous meaning of this notion under Article 6, paragraph 1.” Id. at 35.

the status under international law129 decision of British administrative authorities to place a child with foster parents on a long-term basis and to deny his natural parents access to him due to the alcoholism of the mother’s child and serious marital problems faced by the couple,133 the ECtHR held as a ratio that parents’ access to their children is a ‘civil right’ under Article 6, paragraph 1, of the ECHR, because it is an integral part of the right to a family life,134 even if such right did not have a pecuniary element. After carrying out a thorough review of the case law of the ECtHR on this matter, Pieter van Dijk and Marc Viering found that, in addition to the already mentioned rights to liberty, to a good reputation and to respect of family life, the ECtHR has recognised the rights to physical integrity, to not to be discriminated on grounds of religious belief or political opinion, to freedom of association, and several aspects of the right to the peaceful enjoyment of possessions as ‘civil rights’ in terms of Article 6, paragraph 1, of the ECHR.135 Lastly, and notwithstanding the differences that exist in the nature of the proceedings before the ECtHR and criminal proceedings before national courts, the predominant strand of the ECtHR’s case law that identify the pecuniary element as a crucial criterion for determining whether the concerned right is a ‘civil right’ under Article 6, paragraph 1, of the ECHR is in stark contrast to this Court’s own case law with respect to the right to compensation under Article 41 of the ECHR. With respect to the latter, the ECtHR has often held that a judgment finding a violation of the ECHR constitutes in itself just satisfaction.136 Based on the above, I argue that in those States allowing for victim participation in criminal proceedings through the institution of the partie civile, victims of serious human rights violations taking part in these proceedings in such capacity should enjoy the right to a fair hearing, regardless of whether or not they are seeking compensation for damages. iii. The Implementation of States’ Procedural Obligations When Faced with Serious Human Rights Violations In Opuz v. Turkey, the ECtHR reaffirmed that decision-making power in criminal procedures for serious human rights violations rests with State authorities and should be guided by public interest criteria.137 The issue before the ECtHR in this case was whether the Turkish authorities had failed to protect the applicant and her mother from domestic violence because these authorities had discontinued criminal proceedings against the man responsible for such violence based on the applicant’s and her mother’s withdrawals of their complaints. The ECtHR ruled that with respect to particularly serious crimes – i.e. 133 ECtHR, W. v. UK, Judgment of 8 July 1987, Application No. 9749/82, paras. 8, 14, 16, 20, 21. 134 Id. paras. 77, 78. 135 van Dijk and Viering (2006), “Right to a Fair and Public Hearing (Article 6),” at 535–537. 136 See dissenting opinion of Judge Marten, in ECtHR, Hamer v. France, Judgment of 7 August 1996, Application No. 19953/92, paras. 11–13. See also concurring opinion of Judge De Meyer, in Aït-Mouhoub v. France, Judgment of 28 October 1998, Application No. 22924/93, at 17. For a scholarly account, see Stefan Trechsel (2005), Human Rights in Criminal Proceedings (Oxford: Oxford University Press), at 41. 137 ECtHR, Opuz v. Turkey, Judgment of 9 June 2009, Application No. 33401/02.

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those involving, among others, the violation of the right to life and physical and mental integrity, and domestic violence – prosecuting authorities should be able to conduct criminal proceedings as a matter of public interest, regardless of the victim’s withdrawal of his or her complaint. The ECtHR based its view on States’ positive obligations ‘to protect’ the rights infringed in these crimes, and their obligation ‘to ensure’ these rights under the ECHR.138 Additionally, the ECtHR noted that the practices in ECHR Member States show that the seriousness of the offence is a factor in favour of continuing criminal procedures in the public interest, even if the victim withdraws his or her complaint.139 The ruling of the ECtHR in this case fully coincides with my view in this monograph. As will be discussed at length in the next chapter, I submit, based on long-standing practice in civil law jurisdictions and international human rights instruments and practice,140 that decision-making power in criminal procedures should rest with State authorities, even if victims are allowed to access to and participate in these procedures; and that these authorities’ decision-making should be informed by public interest criteria. This is all the more so regarding serious human rights violations, which, as I submit throughout this study, are characterised by their gravity. iv. Conclusions In conclusion, the ECtHR has expressly required the involvement of the victim in criminal investigations into, and subsequent proceedings for, any infringement of the right to life and the prohibitions of ill-treatment, slavery and forced labour. In particular, in the view of the ECtHR victim involvement in these proceedings is a requirement States must observe when complying with their obligation to carry out an effective investigation into any alleged instance of these violations, regardless of the model the concerned State adopts in its criminal justice system – i.e. civil law or common law.141 The ECtHR has explicitly referred to the legitimate interests of victims, as a rationale for their involvement in criminal proceedings.142 According to the ECtHR, the legitimate interests of victims in criminal proceedings for serious human rights violations are based on “their close and personal concern with the subject matter of the inquiry.”143 Additionally, the ECtHR has identified the following elements as essential with respect to the involvement of the victim in criminal investigations and subsequent proceedings.

138 Id. paras. 145 and 149. 139 Id. para. 138. 140 See below Chapter IV, Section III. 141 ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 98. See also Hugh Jordan v. The United Kingdom, Judgment of 4 May 2001, Application No. 24746/94, para. 109; McKerr v. The United Kingdom, Judgment of 4 May 2001, Application No. 28883/95, para. 115; Shanaghan v. The United Kingdom, Judgment of 4 May 2001, Application No. 37715/97, para. 92. 142 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 98. 143 ECtHR, Paul and Audrey Edwards v. The United Kingdom, Judgment of 14 March 2002, Application No. 46477/99, para. 84.

the status under international law131 First, the victim should be kept informed of how the proceedings are progressing,144 and the decisions made therein.145 Second, the victim should be heard during criminal proceedings, including during the investigation stage.146 According to the case law of the ECtHR, this means that the victim should have the opportunity to give his or her version of events.147 Third, the victim should have access to the case files during criminal proceedings,148 although this can be limited to phases subsequent to the investigation.149 Lastly, the case law of the ECtHR provides support for the proposition that prosecutors should give reasons for their decisions not to prosecute an alleged infringement of the right to life and the prohibitions of ill-treatment, slavery and forced labour in order to facilitate access to information by victims and to allow them to challenge these decisions.150 The view of the ECtHR regarding the applicability of the right to a fair hearing in criminal procedures with respect to victims of serious human rights violations is less satisfactory. Specifically, regarding victims participating in criminal proceedings as a partie civile, I find unjustified the requisite that such participation needs to be decisive for victims’ compensation. To begin with, it is inconsistent with the case law of the ECtHR on several related matters, notably its view that victim involvement in criminal proceedings is a requirement States should fulfil when complying with their obligation to investigate an alleged violation of the right to life and the prohibitions of ill-treatment, slavery and forced labour; and that the legitimate interests of victims in criminal proceedings are based on “their close and personal concern with the subject matter of the inquiry.”151 As will be analysed in the following chapter, the view of the ECtHR on this matter also runs counter to a systematic and teleological interpretation of the right to a fair hearing.152 C. The African System for the Protection of Human Rights The African Commission has only briefly addressed the question of access to and participation in criminal procedures before domestic courts for victims of serious human rights 144 ECtHR, Gül v. Turkey, Judgment of 14 December 2000, Application No. 22676/93, para. 93; Orhan v. Turkey, Judgment of 18 June 2002, Application No. 25656/94, paras. 346, 348. 145 ECtHR, Güleç v. Turkey, Judgment of 27 July 1998, Application No. 21593/93, paras. 11, 12, 82; Öğur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93, para. 92; Orhan v. Turkey, Judgment of 18 June 2002, Application No. 25656/94, paras. 346, 348. 146 ECtHR, Öğur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93, para. 92; Gül v. Turkey, Judgment of 14 December 2000, Application No. 22676/93, para. 93; Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, paras. 44, 47–49; Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 98; Paul and Audrey Edwards v. UK, Judgment of 14 March 2002, paras. 84, 87. 147 See e.g. ECtHR, Gül v. Turkey, Judgment of 14 December 2000, Application No. 22676/93, para. 93. 148 See e.g. ECtHR, Öğur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93, paras. 89, 90, 92; Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, paras 44, 47–49. 149 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 115. 150 Id. para. 118. 151 ECtHR, Paul and Audrey Edwards v. The United Kingdom, Judgment of 14 March 2002, Application No. 46477/99, para. 84. 152 See below Chapter IV, Section I, Subsection C.

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violations. It has done so when examining the rights of victims to an effective remedy and to a fair hearing. This subsection thus analyses the approach of the African Commission to these two rights. i. The Right to an Effective Remedy Although the African Charter does not explicitly enshrine the victim’s right to an effective remedy, the African Commission has recognised this right for “acts violating the rights granted by the constitution, by law or by the [African] Charter.”153 The African Commission has implied such a right from the right to a fair hearing, set forth in Article 7 of the African Charter.154 In my view, State’s general obligations to recognise, to promote and to ensure the rights enshrined in this regional instrument under Article 1 therein are other legal bases for the right to an effective remedy for victims of human rights violations.155 Additionally, the African Commission has, in several decisions on individual complaints, taken the view that investigation, prosecution and punishment in the event of a serious human rights violation are elements of the effective remedy due to victims of these violations.156 ii. The Right to a Fair Hearing While the provisions of Article 7 of the African Charter setting forth the right to a fair hearing are less detailed than Article 14 of the ICCPR, the African Commission has

153 ACHPR, The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, DOC/OS(XXX)24, May 2003, Section B(a), available at http://www.achpr.org/files/ instruments/guidelines-right-fair-trial/achpr_principles_and_guidelines_fair_trial.pdf (“Everyone has the right to an effective remedy by competent national tribunals for acts violating the rights granted by the constitution, by law or by the Charter”) (hereinafter “The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa”). Accessed on 30 May 2012. See also ACHPR, The Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa, para. 7. 154 See e.g. The Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa, para. 7. Art 7, para. 1, of the African Charter on Human and Peoples’ Rights provides as follows: “Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.” 155 See Godfrey M. Musila (2006), “The Right to an Effective Remedy under the African Charter on Human and Peoples’ Rights,” 6 African Human Rights Law Journal 442, at 447–448. With respect to acts perpetrated by private individuals that impair the enjoyment of internationally recognised human rights, the ACHPR has also based the victim’s right to an effective remedy on the requirement of due diligence that States should observe regarding these acts. See Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, para. 159, in Twenty-First Activity Report 2007, Annex III (hereinafter “Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe”). 156 See e.g. Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, paras. 200, 212.

the status under international law133 expanded these provisions in two resolutions it has adopted dealing with this right. These two resolutions are the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa adopted on 15 November 1999,157 and the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa of 2001.158 The African Commission has made clear in these two Resolutions that the right to a fair hearing applies in the determination of both criminal charges against an individual and of “a person’s rights and obligations.”159 Additionally, the African Commission has stressed the fundamental importance of the right to a fair trial, noting that it is a requirement for the enjoyment of other rights.160 However, the view of the African Commission on whether the right to a fair hearing enshrined in Article 7 of the African Charter encompasses the rights of access to and participation in criminal procedures for victims of serious human rights violations is not straightforward. Although the African Commission has, in one individual case at least, taken the view that the right to a fair hearing includes a victim’s right of access to criminal procedures,161 in the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa of 2001 this body subjects victim access to and participation in these procedures to the domestic law of States.162 iii. Conclusions While the African Commission has not discussed at length the question of victim access to and participation in criminal procedures for serious human rights violations before domestic courts, its view on this question has so far been inconsistent. On the one hand, it has considered, in one individual case at least, that the right to a fair hearing includes a 157 As noted in the previous chapter, this Declaration was adopted by the ACHPR through Res. 41(XXVI)99: Resolution on the Right to Fair Trial and Legal Aid in Africa, 15 November 1999. 158 ACHPR, The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. 159 Id. Section A(1). For an authority on the need to observe the right to a fair hearing in civil proceedings, see ACHPR, Communications 140/94, 141/94 and 145/95, Constitutional Rights Project and Others v. Nigeria, November 1999, para. 23. 160 See the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa, Preamble. 161 Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, para. 213 (in supporting its finding that the Clemency Order No. 1 of 2000 – an Act which granted pardon to those responsible for politically motivated crimes, except for murder, rape, and theft – constituted a violation of victims’ right to judicial protection and to have their cause heard under Art. 7, para. 1, of the African Charter, the African Commission maintained that Art. 7 includes the “right of every individual to access the relevant judicial bodies competent to have their causes heard and be granted adequate relief”). 162 See the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Sections N(a) and N(f)2, available at http://www.achpr.org/english/declarations/Guidelines _Trial_en.html. Section N(a) reads as follows: “[Victims] are entitled to have access to the mechanisms of justice and to prompt redress, as provided by national legislation and international law, for the harm that they have suffered” (emphasis added). For its part, Section N(f)(2) demands that judicial officers and prosecutors facilitate the needs of victims by “allowing their views and concerns to be presented and considered at appropriate stages of the proceedings where their personal interests are affected … consistent with the relevant national criminal justice system” (emphasis added). These two sections borrow the wording of the UN Victims of Crime Declaration of 1985. For a discussion of this Declaration, see in this chapter, Section I, Subsection B.i.

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right of access to criminal procedures for victims,163 and, more generally, it has endorsed the view that investigation, prosecution and punishment in the event of a human rights violation are elements of the effective remedy due to victims of these infringements.164 On the other hand, in the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa of 2001 the African Commission leaves victims’ access to and participation in criminal procedures before local courts to the domestic law of States. III. The Divide between the Common Law and the Civil Law Traditions Traditionally there has been a divide with respect to the role of crime victims in criminal procedures before domestic courts between those States whose domestic law is based on the civil law tradition and those States whose domestic law is grounded in the common law tradition. While most States belonging to the former group allow the participation of crime victims in criminal proceedings as a party, States making up the latter group traditionally limit the involvement of crime victims in these proceedings to reporting the offence and serving as a witness at trial.165 The objective of this subsection is therefore threefold: first, to analyse the premises and features of both the common law and the civil law traditions, and the effect such premises and features have had in respect of the role of the victim in criminal procedures; second, to survey the state of the law in 34 countries, including both civil law and common law jurisdictions; and, lastly, to determine whether the state of the law in these countries confirms or not the longstanding premises of these two traditions with respect to the nature of criminal procedures and, in particular, the position of victims in such procedures. A. The Premises and Features of the Common Law Tradition The criminal justice system in the classical common law tradition is grounded in the following premises. First, it is assumed that there is a clear distinction between crime and tort. While crime is seen as a conduct harmful to society in general, against the public order, tort is viewed as a conduct detrimental to individual interests.166 As a corollary, criminal law is seen as aimed at protecting the public interest, while tort law is viewed as seeking to protect individual interests. Thus, whilst crime is viewed as the province of the State, the guardian of the society, torts are mainly the province of private individuals.167 In this tradition, tort law is therefore the venue opened to crime victims for seeking redress. 163 Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, para. 213. 164 See e.g. id. paras. 200, 212. 165 See e.g. Mario Chiavario (2002), “Private Parties: the Rights of the Defendant and the Victim”, in M. Delmas-Marty and J.R. Spencer (eds.), European Criminal Procedures 541 (Cambridge: Cambridge University Press). 166 See e.g. Doak (2008), Victims’ Rights, Human rights and Criminal Justice: Reconceiving the Role of Third Parties, at 7, 26–37, 154; Kirchengast (2006), The Victim in Criminal Law and Justice, at 5, 131; Groenhuijsen (2004), “Victims’ Rights and Restorative Justice: Piecemeal Reform of the Criminal Justice or a Change of Paradigm?,” at 66, 71. 167 See Andrew Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State,” 6 Oxford Journal of Legal Studies 86, at 87–91. See also Ashworth (1998), The Criminal

the status under international law135 At the procedural level, the main features of the common law tradition are the conception of the criminal process as a contest between the accused and the State,168 and the centrality of the principle of orality and cross-examination.169 Accordingly, the judge is charged with a passive role and victims are seen as would be any other witness – i.e. their role is limited to answering questions put by the questioner170 – and thus have no right to participate in criminal procedures. Moreover, under the classic conception of this tradition, there is strong opposition to granting participatory rights in criminal proceedings to crime victims. This opposition is mainly based on the fear that by introducing individual interests in the enforcement of criminal law, victim participation would undermine the conception of criminal law as being aimed at protecting the public interest and the notion that it is up to State officials to design and implement prosecution and sentencing policies having the public interest as the main guiding principle, and ensuring the objectivity and certainty of the criminal system.171 Other arguments against crime victim participation in criminal procedures raised in common law jurisdictions are that it would undermine the presumption of innocence of the defendant,172 and obstruct the ability of decision-makers in such proceedings to make reasoned judgment, because of the large emotional content of victims’ allocution.173 Each of these criticisms of access to and participation in criminal proceedings for crime victims will be addressed below in this and the next chapter. B. The Premises and Features of the Civil Law Tradition The classical civil law tradition shares with its common law counterpart most general premises such as the distinction between crime and tort. However, due to historical factors and the features of criminal procedures under the civil law tradition, these postulates are assumed less categorically in this tradition, in which it is accepted that criminal

Process: an Evaluative Process, at 34–35; Simester and Sullivan (2000), Criminal Law: Theory and Doctrine, at 3–4; Richard Young (2000), “Integrating a Multi-Victim Perspective into Criminal Justice through Restorative Justice Conferences,” in A. Crawford and J. Goodey (eds.), Integrating a Victim Perspective within the Criminal Justice 227 (Aldershot: Ashgate), at 228; Kirchengast (2006), The Victim in Criminal Law and Justice, at 210; Groenhuijsen (2004), “Victims’ Rights and Restorative Justice: Piecemeal Reform of the Criminal Justice or a Change of Paradigm?,” at 66. 168 See e.g. Doak (2008), Victims’ Rights, Human rights and Criminal Justice: Reconceiving the Role of Third Parties, at 6–7. 169 See id. at 34. 170 Id. at 126, 138. 171 Id. at 26–7, 35, 118, 152, 189. See also Ybo Buruma (2004), “Doubts on the Upsurge of the Victim’s Role in Criminal Law,” in Hendrik Kaptein and Marijke Malsch (eds.), Crime, Victims and Justice: Essays on Principles and Practice 1 (Aldershot: Ashgate), at 9, 13. 172 Doak (2008), Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties, at 7. See also Erin Ann O’Hara (2005), “Victim Participation in the Criminal Process,” 13 Journal of Law and Policy 229, at 240; R. Barajas and A. Nelson (1997), “The Proposed Crime Victims’ Federal Constitutional Amendment: Working Toward a Proper Balance,” 49 Baylor Law Review 1, at 1. 173 See e.g. John Hagan (1983), Victims Before the Law (Toronto: Butterworths), at 205–207.

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proceedings can serve to deal with both the criminal action and the reparation claim of the victim. In understanding the historical factors that have influenced the civil law tradition, special attention should be paid to French law because of the strong influence Napoleon’s Criminal Code of 1808 and other pieces of French legislation have had in several countries in Europe, Latin America and other parts of the world.174 Regarding the evolution of French law, it should first be mentioned that since the law of 1670 (L’Ordonnance of 1670), passed by l’Ancien Régime, French law has granted crime victims wide rights in criminal proceedings. In particular, since then French law has recognised almost without interruption both the right of the victim to directly institute criminal proceedings and to participate in these proceedings once they have been started.175 Notably, Napoleon’s Code of Criminal Procedure of 1808 conferred wide rights to crime victims in criminal proceedings, and in particular extensive participatory rights.176 Subsequently, both statutes and case law have widened the role of the victim in criminal proceedings under French law.177 Regarding case law, it is worth noting that in its judgment in the case of Thirion-Place issued in 1906, the French Cour de Cassation specifically held that victims of crime have the power to institute criminal proceedings.178 This power is still recognised by French law.179 With respect to statutes, it should be mentioned that, in 2000, the provisions in the French Code of Criminal Procedure granting victims numerous rights were supplemented with the introduction of a guiding principle in its Preliminary Article requiring judicial authorities to ensure that victims’ rights are respected throughout the entire criminal process.180 The rights granted to victims in criminal procedures by this Code include, in addition to the above-mentioned right to institute criminal procedures, the right to participate

174 See e.g. J. R. Spencer (2002), “Introduction,” in M. Delmas-Marty and J.R. Spencer (eds.), European Criminal Procedures 1 (Cambridge: Cambridge University Press), at 11. See also Langer (2007), “Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery,” at 627–628. 175 See French Cour de cassation, the case of Thirion-Place, Cass. crim., 8 December 1906, Recueil Dalloz, 1907.I.207, at 208. As to the provisions of the law of 1670 granting rights to victims in criminal proceedings, see Robert Allen (2005), Les tribunaux criminels sous la Révolution et l’Empire 1792–1811 (Rennes: Presses universitaires de Rennes), at 29; Jacques Leroy (2002), “La place de la partie lésée dans le procès pénal révolutionnaire,” 328 Annales Historiques de la Révolution Francaise 118, at 109, 111. 176 Michèle-Laure Rassat (2001), Traité de procédure pénale (Paris: Presses universitaires de France), at 249. 177 J.P. Delmas-Saint-Hilaire (1967), “La mise en mouvement de l’action publique par la victime de l’infraction,” in Mélanges offerts à Jean Brethe de la Gressaye 159 (Bordeaux: Bière), at 161–162. See also Gaston Stefani, Georges Levasseur and Bernard Bouloc (1993), Procédure pénale (Paris: Dalloz), at 72; Gérard Lopez, Serge Portelli and Sophie Clément (2003), Les Droits des Victimes: Victimologie et Psychotraumatologie (Paris: Dalloz), at 11, 33. 178 Also known as the case “Laurent Atthalin.” See Cass. crim., 8 December 1906, Recueil Dalloz, 1907.I.207, rapport Laurent-Atthalian, S., 1907.I.377, note Demogue. 179 See Code de Procédure Pénale, version in force as of 17 July 2012, Art. 1. 180 Para. II of the Preliminary Article of the Code de Procédure Pénale reads as folows: “L’autorité judiciaire veille à l’information et à la garantie des droits des victimes au cours de toute procédure pénale.”

the status under international law137 during the trial and the appeals proceedings,181 the rights to offer and examine evidence pertaining to the guilt or innocence of the accused,182 the right to put questions through the Presiding Judge to the defendant, the witnesses and all persons who have been called to the proceedings,183 and the right to appeal against the orders and decisions made during the investigation and against the trial decision in relation to his or her civil claim.184 It is worth noting that once the victim joins the proceedings as a partie civile, he or she becomes a party in the proceedings.185 Victim participation in criminal proceedings conducted according to the civil law tradition has also been facilitated by the fact that the proceedings and, in particular, the truthfinding process, are under this tradition actively directed by a professional judge.186 This allows the concerned judge to take the necessary measures to implement victim participation in the procedures, particularly in the truth-finding process.187 C. Features of Current Approaches in Common Law and Civil Law Jurisdictions Despite the limited number of jurisdictions surveyed in this subsection – 34 – this study on the state of the law in various jurisdictions is important for three reasons. First, it covers jurisdictions belonging to both the civil law and the common law traditions. Second, and more importantly, it focuses on examining whether the practice in those States confirms the validity of the premises of these traditions in respect of the nature of criminal proceedings and, in particular, victims’ place in such proceedings. Last, it covers jurisdictions such as France and the United Kingdom that, due to historical factors, continue to be intellectually influential elsewhere. This subsection demonstrates that despite the divergence between common law and civil law jurisdictions with respect to the recognition of victims’ participatory rights in criminal proceedings, many of the premises and assumptions of the common law tradition with respect to the nature of criminal proceedings and, in particular, victims’ role in such proceedings no longer hold. Regarding common law jurisdictions, it should first be noted that in several of them criminal proceedings are no longer viewed as aiming solely at punishing conduct harmful 181 See the Code de Procédure Pénale, Arts. 380–6, 460. 182 See id. Art. 82–1, para. 1. 183 Id. Art. 442–1. 184 Id. Arts. 186, 380–2, 380–6. 185 See e.g. Bernard Bouloc (2010), Procédure pénale (Paris: Dalloz, 22nd ed.), at 292–293. Etienne Vergès (2007), Procédure pénale (Paris: LexisNexis), at 203–204. 186 Spencer (2002), “Introduction,” at 25. See also Stefani, Levasseur and Bouloc (1993), Procédure pénale, at 60; Roger Merle and André Vitu (2001), Traité de Droit Criminel: Procédure Pénale (Paris: Editions Cujas), Vol. II, at 18–19; Denis Salas (2002), “The Role of the Judge,” in M. Delmas-Marty and J.R. Spencer (eds.), European Criminal Procedures 488 (Cambridge: Cambridge University Press), at 509–513; Hans F.M. Crombag (2003), “Adversarial or Inquisitorial: Do We Have a Choice?,” in Peter J. van Koppen and Steven D. Penrod (eds.), Adversarial Versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems 21 (New York: Kluwer Academic/Plenum Publishers), at 22–23; Doak (2008), Victims’ Rights, Human rights and Criminal justice: Reconceiving the Role of Third Parties, at 282. 187 See Aldana-Pindell (2004), “An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes,” at 674. Cf. Mirjan R. Damaška (1986), The Faces of Justice and State Authority: a Comparative Approach to the Legal Process (New Haven: Yale University Press), at 201.

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to society in general, but also at deciding whether to order an offender to pay compensation to the victim. According to Brienen and Hoegen, in five European jurisdictions whose domestic law is based on the common law tradition – i.e. Cyprus, England and Wales, Ireland, Malta and Scotland – criminal courts have been empowered to order an offender to pay compensation to the victim.188 Additionally, in some jurisdictions belonging to this group, such as England and Wales, not only are prosecutors required to take into account the views and interests of victims in their decision-making at critical stages of the procedures – e.g. when deciding whether to prosecute or not a case, or whether to accept a plea offered189 – but also victims have been granted the right to challenge certain key decisions of the prosecutor, notably the decision to discontinue a prosecution.190 Furthermore, recently several common law jurisdictions have allowed victims to give their views to the court when the offender faces sentence through the Victim Impact Statement.191 In this statement, the victim informs the court of the physical, emotional or financial harm suffered as the result of an offence. It should also be noted that since 1982 several laws have been enacted in the U.S., both at the federal and state level, to increase the protection of the rights of crime victims. At the federal level, the U.S. Congress has since 1982 adopted at least seven pieces of legislation dealing with victims’ rights in criminal proceedings.192 The most important of these is the Crime Victims’ Rights Act of 2004,193 which grants victims of a federal offence, 188 Marion Eleonora Ingeborg Brienen and Ernestine Henriëtte Hoegen (2000), Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure (Nijmegen: WLP), at 1073. See also Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State,” at 108; Doak (2008), Victims’ Rights, Human rights and Criminal justice: Reconceiving the Role of Third Parties, at 27. According to Lucia Zedner, in England and Wales, judges were first given this power by the Criminal Justice Act of 1972. See Lucia Zedner (1994), “Reparation and Retribution: Are They Reconcilable?,” 57 Modern Law Review 228, at 235. 189 See the Crown Prosecution Service (2004), The Code for Crown Prosecutors (London: the Crown Prosecution Service), para. 5.12 (requiring prosecutors when deciding whether to prosecute or not a case to take into account the consequences for the victim of any such decision, and any views expressed by the victim or the victim’s family); para. 10.2 (requiring prosecutors to ensure that the victim’s interests and views are taken into account when deciding whether it is in the public interest to accept a plea offered); and para. 11.1 (requiring the prosecutor to draw the court’s attention to the victims’ statement at the sentencing stage). 190 For authorities, see e.g. R. v. Chief Constable of Kent, Ex p L (1991) 93 Cr App R 416; R. v. Director of Public Prosecutions, Ex p C (1995) 1 Cr App R 136. See Doak (2008), Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties, at 122. 191 Doak (2008), Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties, at 147. See also Kirchengast (2006), The Victim in Criminal Law and Justice, at 7, 221–222. 192 David E. Aaronson (2008), “New Rights and Remedies: The Federal Crime Victims’ Rights Act of 2004,” 28 Peace Law Review 623, at 627–628. See also Human Rights Watch (2008), Mixed Results: U.S. Policy and International Standards on the Rights and Interests of Victims of Crime (New York: Human Rights Watch). 193 18 U.S.C. §3771 (2004). In April 2008, it was implemented in the Federal Rules of Criminal Procedure. See Chief Justice John G. Roberts, Jr., United States Supreme Court, “Amendments to the Federal Rules of Criminal Procedure adopted by the Supreme Court of the United States, pursuant to sec. 2072 of Title 28, United States Code,” April 23, 2008, available at http://www .supremecourtus.gov/orders/courtorders/frcr08p.pdf. Accessed on 14 February 2009.

the status under international law139 including both misdemeanours and felonies, ample rights in criminal proceedings, notably: the right to notice of any public court proceeding or any parole proceeding; the right to be present in any such public court proceeding, unless the court determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding; the right to be reasonably heard at any public proceeding in the district court involving release, plea or sentencing, or any parole proceeding; the right to confer with the attorney for the Government in the case; the right to proceedings free from unreasonable delay; and, the right to be treated with fairness and with respect for his or her dignity and privacy.194 In addition, and unlike earlier federal legislation and most state constitutional amendments and statutes, the Crime Victims’ Rights Act of 2004 provides a judicial enforcement mechanism consisting of the right to appeal a violation of victims’ rights to federal appellate courts.195 While the Crime Victims’ Rights Act of 2004 includes some limitations, notably those providing that victims’ rights shall not be construed so as to impair prosecutorial discretion and that the right of the victim to be heard appears to be excluded at the trial,196 as a whole it enhances victims’ role in American criminal proceedings. Additionally, it is worth mentioning that as of 2010, most U.S. states have statutory crime victim rights provisions, and over thirty states have ratified constitutional amendments that contain victim-related provisions.197 The most important rights usually protected in these amendments are the right to be informed of significant developments in the case; the right to receive protection; and the right to be heard with respect to important prosecutorial decisions.198 In several civil law jurisdictions a series of reforms have also been introduced to enhance the position of the victim in criminal proceedings. As mentioned, in France the provisions on victim participation in criminal proceedings in the Code of Criminal Procedure through the institution of the partie civile were complemented in 2000 with the introduction of a guiding principle in the Preliminary Article of this Code requiring judicial authorities to ensure that victims’ rights are respected throughout the criminal process.199 Several other States which adopt a criminal justice system based on the civil law tradition also grant victims participatory rights in criminal proceedings through the

194 18 U.S.C. §3771(a) (2004). 195 Aaronson (2008), “New Rights and Remedies: The Federal Crime Victims’ Rights Act of 2004,” at 626, 662, 664. 196 The Crime Victims’ Rights Act of 2004 specifies the instances in which victims have the right to be heard when providing as follows: “The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.” See Aaronson (2008), “New Rights and Remedies: The Federal Crime Victims’ Rights Act of 2004,” at 646. 197 See Peggy M. Tobolowsky et al. (2010), Crime Victim Rights and Remedies (Durham: Carolina Academic Press, 2nd ed.), at 12; Aaronson (2008), “New Rights and Remedies: The Federal Crime Victims’ Rights Act of 2004,” at 623–682. See also Barajas and Nelson (1997), “The Proposed Crime Victims’ Federal Constitutional Amendment: Working Toward a Proper Balance,” at 11–12; Human Rights Watch (2008), Mixed Results: U.S. Policy and International Standards on the Rights and Interests of Victims of Crime, at 9. 198 Barajas and Nelson (1997), “The Proposed Crime Victims’ Federal Constitutional Amendment: Working Toward a Proper Balance,” at 13. 199 Para. II of the Preliminary Article of the Code de Procédure Pénale.

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institution of the partie civile. In Europe, 18 States confer these rights on victims, namely Austria, Belgium, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Norway, Poland, Portugal, Spain, Sweden, Switzerland and The Netherlands.200 Additionally, according to Mario Chiavario, the legislation of Belgium, France, Germany, and Italy tends to extend to the counsel of victims participating in criminal proceedings as partie civile the rights granted to the defence of the accused.201 Most Latin American States also grant wide rights to crime victims in criminal proceedings. At least three States – i.e. Bolivia,202 Costa Rica203 and Honduras204 – grant victims the right to both institute criminal proceedings and to participate in these proceedings once they have been started. Others, such as Chile,205 Colombia,206 Guatemala207 and Paraguay,208 do not confer on crime victims the right to institute criminal proceedings, but they grant crime victims wide participatory rights in these proceedings once they have been started. Additionally, in Mexico and Uruguay, victims can also participate in criminal proceedings, although with more limited rights.209 Furthermore, the Colombian Constitutional Court has explicitly grounded participatory rights in criminal proceedings for victims of human rights violations on the right to the truth, to justice and to compensation recognised in certain international instruments.210 On this basis, this Court has held that participation in criminal proceedings for 200   See Brienen and Hoegen (2000), Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, at 1069. See also Marianne Wade, Christopher Lewis and Bruno Aubusson de Cavarlay (2008), “Well-informed? Well Represented? Well Nigh Powerless? Victims and Prosecutorial Decision-making,” 14 European Journal on Criminal Policy and Research 249, at 252. 201 Chiavario, “Private Parties: the Rights of the Defendant and the Victim,” at 558, note 48. 202   Law No. 1970, 25 March 1999, Arts. 11, 77. See Jennifer M. Guachalla E. (2005), “Derechos de las Víctimas en Bolivia: Estado de Situación y Perspectivas,” in Mauricio Duce, Cristián Riego and Juan Enrique Vargas (eds.), Reformas procesales penales en América Latina 187 (Santiago: CEJA), at 190–194. 203 Law No. 7594, 10 December 1996, Arts. 75–80, 358. 204  José María Palacios (2000), “Honduras,” in Julio B.J. Maier, Kai Ambos and Jan Woischnik (eds.), Las reformas procesales penales en América Latina 509 (Buenos Aires: Ad-Hoc), at 537. 205 Cristián Riego (2000), “Chile,” in Maier, Ambos and Woischnik (eds.), Las reformas procesales penales en América Latina 167, at 183–184. 206  See Law No. 906, 31 August 2004, as interpreted by the case law of the Colombian Constitutional Court. See notably, the following judgments of the Colombian Constitutional Court: Judgment C-651/11, 7 September 2011; Judgment C-516/07, 11 July 2007; and Judgment C-209/07, 21 March 2007. For a seminal judgment on this, see Colombian Constitutional Court, Judgment C-228/02, 3 April 2002. 207 Luis R. Ramirez G. and Miguel A. Urbina (2000), “Guatemala,” in Maier, Ambos and Woischnik (eds.), Las reformas procesales penales en América Latina 443, at 490. 208 Ley No. 1286-98, Código Procesal Penal, Art. 68. 209  Moises Moreno (2000), “México,” in Maier, Ambos and Woischnik (eds.), Las reformas procesales penales en América Latina 543, at 585–586. See also Gonzalo D. Fernández, “Uruguay,” in id. at 754–756. 210 See Colombian Constitutional Court, Judgment C-228/02, 3 April 2002, Section VI, Subsections 4.2, 4.4. See also Colombian Constitutional Court, Judgment C-651/11, 7 September 2011, Section VI, Subsection 5.1; and Judgment C-516/07, 11 July 2007.

the status under international law141 victims of these violations is aimed not only at seeking compensation for damages, but also at the satisfaction of victims’ rights to the truth and justice. In a judgment of 2002, it emphasised the latter by stating as follows: The victim of an offence […] has the right to participate in criminal proceedings not only to seek compensation, but also to make effective his or her rights to the truth and to justice. He or she can participate in such proceedings with the sole aim to seek the truth and justice, without it being necessary to demonstrate an economic damage or to submit a claim of this nature. Therefore, the victim is a party in the proceedings in a complete sense.211

This approach led to the recognition, under Colombian law, of extensive rights in criminal proceedings for victims of human rights violations, notably the rights to offer, and request the collection of, evidence,212 the right to challenge the decisions made during the proceedings,213 and the right to appeal against the judgment of first instance.214 However, victims enjoy a more limited set of rights in criminal justice procedures, particularly at the trial stage, under the current Colombian Code of Criminal Procedure, which entered into force on 1 January 2005 and adopts a criminal justice system based on the common law tradition.215 D. Conclusions Several conclusions can be drawn from the preceding subsection. To begin with, there remains a considerable divergence between most common law jurisdictions and civil law ones with respect to victims’ participatory rights in criminal proceedings. While these rights have for a long time been recognised in civil law jurisdictions, they remain an exception in common law jurisdictions. Despite this divergence, the measures adopted in the analysed common law jurisdictions are of considerable importance at the conceptual level, as they cast doubt on several of the long-standing premises of the common law tradition with respect to the nature of criminal proceedings and, in particular, victims’ role in these proceedings. The conferral on criminal judges of the power to order an offender to pay compensation to the victim challenges the strict divide between crime and tort that traditionally has existed in this tradition;216 and the recognition of the right of the victim to challenge some key decisions 211 See Colombian Constitutional Court, Judgment C-228/02, 3 April 2002, Section VI, Subsection 6.3 (translation by the author). 212 See the previous Colombian Code of Criminal Procedure, Ley No. 600, 24 July 2000, Art. 50. See also Colombian Constitutional Court, Judgment C-228/02, 3 April 2002, Section VI, Subsection 6.4. 213 See the previous Colombian Code of Criminal Procedure, Art. 50. See also Colombian Constitutional Court, Judgment C-228/02, 3 April 2002, Section VI, Subsection 6.4. 214 See the previous Colombian Code of Criminal Procedure, Art. 186 and 191. See also Colombian Constitutional Court, Judgment C-228/02, 3 April 2002, Section VI, Subsection 6.3. 215 See Law No. 906, 31 August 2004, Arts. 378, 391, 395. See also Colombian Constitutional Court, Judgment C-651/11, 7 September 2011, Section VI, Subsections 5.1–5.2. 216 See e.g. Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State”, at 112; Abraham S. Goldstein (1982), “Defining the Role of the Victim in Criminal Prosecution,” 52 Mississippi Law Journal 515, at 529–532; Lynne N. Henderson (1985), “The Wrongs of Victims’ Rights,” 37 Stanford Law Review 937, at 1007.

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of public prosecutors in England has proven that this right does not undermine the work of the latter. While these matters are analysed at length in the following chapter, these measures demonstrate that the granting of a series of rights to victims for accessing and participating in criminal procedures can be reconciled with the features of criminal law systems based on the common law tradition.217 The above analysis has also shown that victim participation in criminal proceedings in the civil law tradition has been facilitated by historical factors and a main feature of these proceedings under such tradition – i.e. the fact that the proceedings and, in particular, the truth-finding process, are actively directed by a professional judge.218 IV. General Conclusions The first two sections of this chapter have demonstrated that international norms against impunity are undergoing an important evolution. There is an increasing recognition that, alongside the long-standing State’s duties to investigate and prosecute serious human rights violations, there is a series of rights for victims of these infringements. For instance, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims provide, in addition to States’ obligations to investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law, for the right of victims of such infringements “to equal access to an effective judicial remedy.”219 From the analysis undertaken in this chapter, it appears, however, that the acceptance of victims’ rights in this area has not yet led to the recognition, under customary international law, of the rights of access to and participation in criminal proceedings before domestic courts for victims of serious human rights violations.220 There are significant 217 See Zappalà (2003), Human Rights in International Criminal Proceedings, at 225 (maintaining that the Italian experience, subsequent to the adoption of a criminal procedural system based on the adversarial model in 1989, “proves that it is certainly possible to combine an adversarial procedure with the possibility of conspicuous participation of victims in trials”). 218 See Mirjan Damaška (2009), “Problematic Features of International Criminal Procedure,” in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice 175 (Oxford: Oxford University Press), at 182. 219 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 12. 220 For a similar view, see Aldana-Pindell (2004), “An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes,” at 668 (stating that while the general principle that victims should have more access to the criminal process is widely accepted, the nature and scope of victims’ access under international instruments and case law is unclear); Rombouts, Sardaro and Vandeginste (2005), “The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights,” at 423 (“There is no obligation [under international law] for a State to allow victims to put the criminal machinery in motion”); Håkan Friman (2004), “Procedural Law of Internationalized Criminal Courts,” in Cesare P.R. Romano, André Nollkaemper, and Jann K. Kleffner, Internationalized Criminal Courts (Oxford: Oxford University Press), at 351 (stating that no consistent international standards for the role of victims in criminal proceedings have yet been established). Cf. Bassiouni (2006), “International Recognition of Victims’ Rights,” at 263 (maintaining that “victims’

the status under international law143 differences between the view adopted on this matter by most United Nations instruments and supervisory bodies on the one hand, and that by the ECtHR and the IACtHR, on the other hand. Several recent United Nations non-conventional instruments either subject victims’ access to and participation in criminal proceedings before local courts to the domestic law of States or remain silent as to whether a victim’s right of access to justice encompasses the rights of access to and participation in criminal proceedings. Similarly, the UN Human Rights Committee continues to maintain that the ICCPR grants no rights to victims in the criminal proceedings for these violations. In contrast, the IACtHR, the ECtHR and a number of United Nations instruments have recognised a series of rights in criminal proceedings before domestic courts for victims of serious human rights violations. To begin with, the IACtHR, the ECtHR and the CAT recognise the right of the victim to complain about any of these violations in order that an effective investigation be carried out.221 Furthermore, the IACtHR and the CAT have affirmed the right of the victim to have his or her case promptly and impartially examined by State authorities. The IACtHR and the ECtHR have recognised several other rights in criminal proceedings before domestic courts for victims of these violations. The IACtHR has recognised the right of the victim to resort to the administration of justice to obtain an investigation by a competent, independent and impartial authority within a reasonable time and, if warranted, the prosecution and punishment of those responsible, as well as the right to actively participate in the investigation and subsequent proceedings. According to the IACtHR, the latter requires that the victim “should have substantial possibilities of being heard and acting in the criminal proceedings [for human rights violations].”222 Likewise, the ECtHR demands the involvement of the victim in criminal proceedings as one of the requirements States Parties to the ECHR must observe when complying with their obligation to carry out an effective investigation into an alleged violation of the right to life and the prohibitions of ill-treatment, slavery and forced labour. Specifically, when evaluating State compliance with this obligation, the ECtHR has recognised implicitly several rights in criminal proceedings before domestic courts for victims of these acts, ranging from the right to information to the right to be heard. According to the analysis presented in this chapter, the main reason for this state of affairs is the traditional opposition of common law jurisdictions to an active role for crime claims to prosecution have become a justiciable right that victims should be able to claim against a State” because victims’ right of access to justice encompasses the State’s duty to prosecute those responsible for human rights violations, and pointing out as the legal basis for this view the provisions in human rights treaties that establish a right of access to justice or to be heard, and the right to an effective remedy as interpreted by their supervisory bodies); Juan E. Méndez (2006), “The Human Right to Truth: Lessons Learned from Latin American Experiences with Truth Telling,” in Tristan Anne Borer (ed.), Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies 115 (Notre Dame: University of Notre Dame Press), at 117 (stating that parallel to States’ duties to investigate human rights violations, and prosecute and punish those responsible, there exists a victims’ right to justice). 221 See e.g. the CAT, Art. 13. 222 See e.g. IACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63, para. 227.

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victims in criminal proceedings. The grounds for this opposition can be grouped into two categories: the first concerns those grounds used for maintaining that victim access to and participation in criminal proceedings would be contrary to the principles that govern the enforcement of criminal law in democratic States. According to these principles, prosecution and sentencing policies should be designed and implemented having the public interest and retribution as the main guiding principles, together with ensuring the objectivity and certainty of the criminal justice system and respect of the rights of the defendant. The second category of grounds for opposing access to and participation in criminal proceedings for crime victims is based on an enduring premise of the common law tradition, namely the conception of criminal law as the exclusive province of the State, based on a strict divide between crime and tort. However, developments in both international and domestic practices on this subject have demonstrated that the challenges that these grounds for opposing victim access to and participation in criminal proceedings pose are not insurmountable, particularly with respect to victims of serious human rights violations. Regarding the first group of these grounds, international and domestic developments have shown that access to and participation in these proceedings for victims of serious human rights violations can be reconciled with the principles that inform the system of public prosecution of criminal offences in democratic States. While this matter will be discussed at length in the next chapter,223 the analysis presented in this chapter provides preliminary support for this view. For many decades, numerous civil law jurisdictions have allowed victim access to and participation in criminal proceedings, while embracing the principles informing the enforcement of criminal law in democratic States. Measures taken in several common law jurisdictions in the last two decades aimed at enhancing the protection of victims’ interests in criminal proceedings also lend support to this view. In particular, the recognition of the right of the victim to challenge some key decisions of public prosecutors in England has demonstrated that this right does not undermine the work of the latter. At the international level, the practice of both the IACtHR and the ECtHR also provides support for this view. Developments in international and domestic practices on this subject have also challenged the long-standing premise of the common law tradition that criminal procedures are the exclusive province of the State. This chapter has demonstrated the increasing recognition of the proposition that victims of serious human rights violations have several legitimate interests in the criminal procedures for these infringements. While the next chapter will analyse this further,224 this chapter has found that both the ECtHR and the IACtHR have explicitly mentioned these interests as a rationale for victim involvement in criminal proceedings.225 This chapter has also shown that international instruments and 223 See below Chapter IV, Section III. 224 See below Chapter IV, Section II. 225 As regards the ECtHR’s case law, see e.g. Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 98; Hugh Jordan v. The United Kingdom, Judgment of 4 May 2001, Application No. 24746/94, para. 109; McKerr v. The United Kingdom, Judgment of 4 May 2001, Application No. 28883/95, para. 115; Shanaghan v. The United Kingdom, Judgment of 4 May 2001, Application No. 37715/97, para. 92. Regarding the IACtHR’s

the status under international law145 bodies increasingly view the conduct of an impartial and thorough investigation and, if warranted, criminal prosecution and sanctions, as part of the reparation due to victims of these infringements.226 Similarly, legislative reforms in several common law jurisdictions authorising criminal judges to order an offender to pay compensation to the victim cast doubt on this enduring premise of the common law tradition. Thus, the following chapter mainly seeks to demonstrate that the current state of customary international law on this subject is inadequate, most notably because access to and participation in criminal procedures for victims of serious human rights violations are well-grounded in legal positive and normative terms, and are consistent with the principles that inform the system of public prosecution of criminal offences in democratic States. In addition, it will identify a series of victim rights in criminal procedures carried out in situations of isolated serious human rights violations, based on an approach that takes into account both these principles and victims’ legitimate interests at the various stages of these procedures.

case-law, see e.g. the Caracazo v. Venezuela, Reparations, Judgment of 29 August 2002, Series C No. 95, para. 115; Case of Serrano-Cruz Sisters v. El Salvador, Merits, Reparations and Costs, Judgment of 1 March 2005, Series C No. 120, para. 64. 226 See e.g. the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 22(f). See also UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, paras. 8, 16. Regarding the case law of the IACtHR, see e.g. the Ituango Massacre case v. Colombia, Preliminary Objection, Merits, Reparations and Costs, Judgment of 1 July 2006, Series C No. 148, paras. 339–344; The Miguel Castro Castro Prison, Merits, Reparations and Costs, Judgment of 25 November 2006, Series C No. 160, para. 441. With respect to the ACHPR, see Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, paras. 200, 212.

chapter four

REAPPRAISING ACCESS TO AND PARTICIPATION IN CRIMINAL PROCEEDINGS FOR VICTIMS OF SERIOUS HUMAN RIGHTS VIOLATIONS

As discussed in the introduction, I find inadequate the current state of customary international law on access to and participation in criminal proceedings for victims of serious human rights violations. Two reasons for this view are worth stressing here. First, current customary international law on this matter is based on the premise that internationally recognised human rights and principles, such as the right to an effective remedy and the principle of the rule of law, are completely irrelevant to this subject. Second, the approach of several human rights treaty monitoring bodies, specially United Nations ones, to victim access to and participation in criminal procedures is inconsistent with the logic and rationales these bodies have adopted when dealing with a number of closely related matters, such as State’s obligations to investigate and prosecute serious human rights violations, remedies in the event of any of these infringements, and the rights of victims of such violations in non-criminal justice proceedings. Thus, this chapter seeks to demonstrate that victim access to and participation in criminal procedures are grounded in several internationally recognised human rights and principles, and are logical extensions of the approach of international human rights treaty monitoring bodies to the above-mentioned related matters. Regarding the former, this chapter specifically aims to show that victim access to and participation in criminal procedures are based on the rights to an effective remedy and to a fair hearing, and the principle of the rule of law. It does so by interpreting the provisions of general human rights treaties enshrining these rights according to international law rules on treaty interpretation, and the interpretation that human rights treaty monitoring bodies have given to these rights and principles when addressing the above-indicated related subjects. In addition, this chapter seeks to demonstrate that there are other rationales of a wider nature for victim access to and participation in criminal proceedings, such as their contribution to the expressivist objectives of these proceedings, and the increasingly accepted proposition that victims of serious human rights violations have several legitimate interests in the criminal procedures for these infringements. Furthermore, this chapter aims to show that victim access to and participation in criminal procedures are consistent with the principles that inform the enforcement of criminal law in democratic States, including the need to respect the rights of the defendant.

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In doing so, I address the chief arguments against victim access to and participation in these procedures. As analysed in the introduction, in order to determine which specific victim rights should be recognised in criminal procedures, in my view it is necessary to distinguish between those procedures conducted in situations of isolated serious human rights violations and those procedures carried out in situations of mass atrocity. Thus this chapter identifies a series of victim rights in criminal procedures conducted in situations of isolated serious human rights violations. Lastly, this chapter recognises a number of limitations that victim access to and participation in criminal procedures and, more generally, prosecutions, have in satisfying the needs of victims of these violations. I. The Legal Bases and Rationales for Access to and Participation in Criminal Procedures for Victims of Serious Human Rights Violations As mentioned earlier, I argue that access to and participation in criminal procedures for victims of serious human rights violations are based on the widely recognised rights to an effective remedy and to a fair hearing, and the principle of the rule of law. I also maintain that such access and participation are logical extensions of the approach of international human rights treaty monitoring bodies to several closely related matters, such as States’ obligations to investigate and prosecute serious human rights violations, remedies in the event of any of these infringements, and the rights of victims of such violations in noncriminal justice proceedings. A. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters My argument is that the logic and rationales that international human rights treaty monitoring bodies have adopted when dealing with these just mentioned related matters, particularly the procedural obligations of States when faced with serious human rights violations, also hold for the recognition of the rights of access to and participation in criminal proceedings for victims of these infringements. As discussed at length in Chapter II, when putting forward the rationales for such procedural obligations of States, these bodies have consistently stressed the features of criminal procedures – i.e. they make it possible for a thorough and independent investigation to be carried out and for the criminal responsibility of those involved to be established. These special characteristics of criminal procedures are a first reason why these procedures are an important means of redress for victims of serious human rights violations. As will be analysed below, the rights to an effective remedy and to a fair hearing, interpreted systematically, provide the bases in positive law for this argument in favour of victim access to and participation in criminal procedures. The special status of the rights infringed in serious human rights violations is another rationale that international human rights treaty monitoring bodies have put forward for the development of States’ procedural obligations in the field of criminal justice when faced with these infringements. This rationale is relevant in several respects regarding victim access to and participation in criminal procedures. First, by stressing the special

reappraising the rights of victims in criminal proceedings generally149 status of the rights infringed in serious human rights violations, these bodies have recognised that these infringements harm not only the public order, but also fundamental rights of individuals. This signals the special nature of these violations. As will be discussed below in this chapter, the special status of the rights infringed in these violations has been a basis for the recognition of various legitimate interests of victims in the criminal procedures for these infringements. Furthermore, the recognition of the special status of the rights infringed in serious human rights violations is an important basis for the applicability of the right to a fair hearing in criminal procedures in respect of victims of these infringements. As will be examined below, there is a strand of human rights treaty monitoring bodies’ case law according to which States are bound to ensure the right to a fair hearing in those instances in which the determination of an internationally recognised human right is at issue. International human rights treaty monitoring bodies have also consistently identi­ fied the victim’s right to an effective remedy as a main legal basis of States’ obligations to investigate and prosecute these violations.1 Likewise, a number of UN instruments and the UN Human Rights Committee take the view that, in the event of a serious human rights violation, the conduct of an investigation and, if warranted, criminal prosecution and sanctions, are components of the reparation due to the victim.2 These two developments indicate that these bodies and instruments view criminal procedures as providing victims of serious human rights violations with an important venue for seeking redress. In the light of these arguments, and as recognised by the IACtHR3 and the ECtHR,4 I maintain that victim access to and participation in criminal procedures are logical extensions of the approach of international human rights treaty monitoring bodies to the above-discussed related matters. B. The Right to an Effective Remedy As indicated above, I argue that the right to an effective remedy, widely recognised under international human rights instruments, is another legal basis for access to and participation in criminal procedures for victims of serious human rights violations. My submission on this matter is twofold. To begin with, criminal procedures provide victims of these violations with a significant venue for seeking redress because of the features of these procedures, the nature of these infringements and the context in which such violations are often committed. As just mentioned, international human rights treaty monitoring bodies have consistently noted that these procedures make it possible for a thorough and independent investigation to be conducted and for the criminal responsibility of those involved to be established. 1 See above Chapter II, Section I, Subsection A.i. 2 See e.g. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 22(f). See also UN HR Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, paras. 8, 16. For a lengthy discussion of these international instruments, see above Chapter III, Section I, Subsections A.i and B.ii. 3 See above Chapter III, Section II, Subsection A. 4 See above Chapter III, Section II, Subsection B.

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The official and public nature of criminal procedures are also very significant for victims of serious human rights violations. This is so not only because State authorities are the representatives of the society, but also because of the nature of these infringements and the context in which such violations are often perpetrated. As just indicated, international human rights treaty monitoring bodies have consistently recognised that these violations infringe upon fundamental rights of individuals. In addition, these infringements are often committed with the active involvement of State officials and surrounded by official denials and cover-ups.5 Therefore, as Brandon Hamber maintains, these violations, particularly when they are widespread, do not merely harm individuals, but also destroy social relations. They affect a victim’s sense of being part of society.6 Because of their official and public nature, criminal procedures can contribute in several ways to affirming victims’ dignity and their membership of and status in the concerned society. As Stanley Cohen points out, there are three reasons why uncovering the truth through officials mechanisms is so important for victims of serious human rights violations. First, the value of truth in itself because of the denials and lies that often exist regarding the commission of these violations. Second, because of the importance of public acknowledgment of what happened. Last, because of the hope that uncovering of past atrocities helps to prevent future ones.7 I will discuss this further in this and the following chapter.8 Furthermore, by helping to ensure that serious human rights violations are investigated and prosecuted, victims access to and participation in criminal procedures can serve to counter the recurrent unwillingness of State authorities to investigate and prosecute these infringements. As will be analysed below in this chapter, such access and participation include the rights of victims of these infringements to have an effective and impartial investigation carried out with reasonable expedition; to know the reasons for, and increasingly to ask for judicial review of, a public prosecutor’s decision not to prosecute any alleged such infringement; and, to be present, to be heard, and to offer, examine and challenge evidence at the trial phase.9 In this respect, it is worth stressing that international 5 See e.g. Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Polic­ing of the Past,” at 18–19. For many empirical studies confirming this, see below in this chapter Section II, Subsection A.i, and Section III, Subsection E; and Chapter V, Section IV, Subsection A. 6 Hamber (2009), Transforming Societies after Political Violence: Truth, Reconciliation, and Mental Health, at 22, 25. 7 See Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 18–19. For other scholars maintaining that criminal procedures constitute an important means for public acknowledgment of what happened, see Ruth Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 15. For the importance that official responses to serious human rights violations have for victims of these violations, see e.g. Hayner (2011), Unspeakable Truths: Transitional Justice and the Challenge of Truth Commis­ sions, at 20–21; Freeman (2006), Truth Commissions and Procedural Fairness, at 27; José Zalaquett (1992), “Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democ­ racies Confronting Past Human Rights Violations, 43 Hastings Law Journal 1991–1992, at 1437. 8 See below in this chapter, Section II, Subsection A.i, and Section III, Subsection E; and Chapter V, Section IV, Subsection A. 9 For the view that victim access to and participation in criminal proceedings can serve to corrode the impunity that often surrounds the perpetration of serious human rights violations, see

reappraising the rights of victims in criminal proceedings generally151 human rights instruments and bodies require that remedies for human rights violations must exist not only in theory, but also must be effective in practice. The ICCPR, the ECHR and the ACHR provide specifically for a victim’s right to an effective remedy.10 Both the IACtHR and the ECtHR have viewed the rights of victims in criminal procedures as an important means to counter impunity for these infringements. As analysed above, the Inter-American bodies for the protection of human rights have since their inception faced situations of impunity in respect of these violations in several countries.11 The recognition of victims’ rights in criminal procedures has been seen as a critical means to corrode such impunity.12 In recent years, the IACtHR has made explicit the link between the rights of the victim in criminal procedures and the objective of countering impunity by holding in several cases that a victim’s right to resort to the administration of justice to obtain a judicial investigation of an alleged human rights violation requires that criminal proceedings are conducted in such a way as to avoid undue delays that lead to impunity,13 and that every necessary step be taken to determine the truth and punish those responsible for the events.14 The practice of the ECtHR also provides support for this argument as many of the leading cases of this Court on the entitlements of victims in criminal procedures have concerned situations characterised by the unwillingness of State authorities to investigate serious human rights violations, and to prosecute and try those responsible – e.g. those in Southeast Turkey and Northern Ireland during the 1990’s, and in Chechnya in the late 1990’s and early 2000’s.15

Aldana-Pindell (2004), “An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes,” at 613, 669. See also Walleyn (2009), “The Prosecution of International Crimes and the Role of Victims’ Lawyers,” at 354. 10 See ICCPR, Art. 2, para. 3(a); ECHR, Art. 13; and ACHR, Art. 25, para. 1 (emphasis added). For an additional authority, see IACtHR, Velasquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 63, 66–68. 11 See above Chapter III, Section II, Subsection A. 12 See e.g. Cassel (2007), “The Inter-American Court of Human Rights,” at 151. 13 IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162, para. 150. See also IACtHR, Case of Myrna Mack Chang, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 209. 14 IACtHR, Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162, para. 149. For previous cases, see IACtHR, Case of Myrna Mack Chang, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101, para. 209; IACtHR, Case of the 19 Tradesmen v. Colombia, Merits, Reparations and Costs, Judgment of 5 July 2004, Series C No. 109, para. 188; IACtHR, Case of the Serrano-Cruz Sisters v. El Salvador, Judgment of 1 March 2005, Series C No. 120, para. 66; and IACtHR, Case of the “Mapiripán Massacre” v. Colombia, Merits, Reparations and Costs, Judgment of 15 September 2005, Series C No. 134, para. 216. 15 For Turkish cases, see e.g. ECtHR, Aksoy v. Turkey, Judgment of 18 December 1996, Application No. 21987/93; Gülec v. Turkey, Judgment of 27 July 1998, Application No. 21593/93; Ögur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93. For cases in Northern Ireland, see e.g. ECtHR, Kelly and others v. the United Kingdom, Judgment of 4 May 2001, Application No. 30054/96; Hugh Jordan v. the United Kingdom, Judgment of 4 May 2001, Application No. 24746/94. For cases which occurred in Chechnya, see e.g. ECtHR, Isayeva v. Russia, Judgment of 24 February 2005, Application No. 57950/00.

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C. The Right to a Fair Hearing The right to a fair hearing, an integral element of the widely recognised due process guarantees, is another legal basis for access to and participation in criminal proceedings for victims of serious human rights violations. Despite the obscurity surrounding the scope of the right to a fair hearing, under general human rights treaties, in situations other than that of the defendant in criminal proceedings, a systematic and teleological interpretation of this right provides support for such access and participation. It should first be noted that the scope of the right to a fair hearing in situations other than that of the defendant in criminal proceedings is not well-defined under the text of most general human rights treaties. The expression used in the ICCPR is formulated differently in the various official languages. While the English text refers in Article 14, paragraph 1, to the “determination of rights and obligations in a suit at law,” the French one makes reference to “des contestations sur ses droits et obligations de caractère civil.” For its part, the Spanish text uses identical wording to the French one, when referring to “para la determinación de sus derechos u obligaciones de carácter civil.” According to Article 53 of the ICCPR, the texts in all these languages, in addition to the Chinese and the Russian ones, are authentic. The text of Article 6, paragraph 1, of the ECHR, which defines the scope of the right to a fair hearing in situations other than that of the defendant in criminal proceedings, is also obscure. As analysed below, while the English and French texts of this article use equivalent expressions, the exact meaning of the expression used in the English text – i.e. ‘civil rights and obligations’ – is not well-defined. The ACHR is the only general human rights treaty that covers the determination of any type of right under its provision enshrining the right to a fair hearing in situations other than that of the defendant in criminal proceedings. Article 8, paragraph 1, of the ACHR refers to “the determination of [everyone’s] rights and obligations of a civil, labour, fiscal, or any other nature.” Because of the obscurity of the ICCPR’s and the ECHR’s terms defining the scope of the right to a fair hearing in situations other than that of the defendant in criminal proceedings, the travaux préparatoires of these instruments are worth analysing. It should be clarified that I analyse the travaux préparatoires of these provisions with the objective of shedding light on the terms of these treaties. Therefore, I resort to the travaux prépara­ toires at an earlier stage than that envisaged in Article 32 of the 1969 Vienna Convention on the Law of Treaties. However, this has no practical effect because, as will be analysed below, my view is that a systematic and teleological interpretation of the relevant provisions of the ICCPR and the ECHR suffices for interpreting the terms of these provisions. In addition, and as will be discussed below, the travaux préparatoires provide no definitive answer as to the meaning of the terms used in these treaties. It is worth recalling that pursuant to customary rules on treaty interpretation, enunciated in Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties, recourse may be had to the travaux préparatoires of a treaty in order to confirm the meaning resulting from an interpretation in good faith in accordance with the ordinary meaning of the terms in their context and in light of its object, or to determine the meaning when the

reappraising the rights of victims in criminal proceedings generally153 interpretation according to these principles either leaves the meaning ambiguous or obscure, or leads a result which is manifestly absurd or unreasonable.16 While from the travaux préparatoires of the ICCPR it is clear that the discussion during the negotiations revolved largely around the English text and thus this text better reflects the outcome of the negotiations,17 these travaux confirm the obscurity surrounding the scope, under this treaty, of the right to a fair hearing in situations other than that of the defendant in criminal proceedings. Whilst most governmental delegations concurred that some matters decided by administrative authorities involving the interests of private citizens had to be left outside the scope of the fair hearing requirement, the delegations could not agree on which specific matters were to fall within the scope of this provision. While some delegations were of the view that only civil proceedings were to be covered by this provision, others believed that such a provision was also to apply to judicial proceedings involving other matters, such as labour and tax matters. This explains why the term ‘civil suit’ or others with a similar meaning, which would have limited the scope of the fair hearing requirement to civil proceedings, were rejected and instead the more indeterminate term of ‘a suit at law’ was ultimately included in the English text of Article 14, paragraph 1, of the ICCPR. Likewise, the travaux préparatoires of the provision of the ECHR enshrining the right to a fair hearing fail to shed light on the scope, under this Convention, of such a right in situations other than that of the defendant in criminal proceedings. The draft of the ECHR used until the day before the adoption of this Convention, on 3 November 1950, the same texts as the current ICCPR in both the English and French texts. In the English text it referred to “the determination of [everyone’s] rights and obligations in a suit of law …”18 and in the French text referred to “… des contestations sur ses droits et obligations de 16 See Vienna Convention on the Law of Treaties, Arts. 31–33, 23 May 1969, 1155 U.N.T.S. 331, entered into force on 27 January 1980 (hereinafter “Vienna Convention on the Law of Treaties” or “VCLT”). Regarding the customary nature of the rules on treaty interpretation included in Articles 31–33 of the VCLT, see e.g. ICJ, Arbitral Award of 31 July 1989 (Guinea-Bisau v. Senegal), Judgment of 12 November 1991, 1991 I.C.J. Reports 53, at 70, para. 48; ICJ, Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, 2004 I.C.J. Reports 12, at 37–38, para. 83; ICJ, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), Judgment of 17 December 2002, 2002 I.C.J. Reports 625, at 23–24, para 37; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, 2004 I.C.J Reports 136, at 38, para. 94. 17 See the following UN Documents: Commission on Human Rights, Fifth Session: Summary Record of the Hundred and Seventh Meeting, 2 June 1949, UN Doc. E/CN.4/SR.107, at 2–3, 7–8; Commission on Human Rights, Fifth Session: Summary Record of the Hundred and Ninth Meeting, 6 June 1949, UN Doc. E/CN.4/SR.109, at 2–4, 7, 9; Commission on Human Rights, Sixth Session: Summary Record of the Hundred and Fifty-Fifth Meeting (Part II), 24 April 1950, UN Doc. E/CN.4/SR.155, Part II. Although, in the last of these, it was stated that the French text was to be discussed subsequently, I could not find any subsequent discussion regarding this text. See Commission on Human Rights, Sixth Session: Summary Record of the Hundred and Fifty-Fifth Meeting (Part II), 24 April 1950, UN Doc. E/CN.4/SR.155, para. 52. 18 ECommHR (1956), Preparatory Work on Article 6 of the European Convention, 8 October 1956, Doc. DH(56) 11, at 17, para. 13.

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caractère civil ….”19 The fact that the draft of the ECHR used the same wording as the current ICCPR was due to the terms of reference of the Committee of Experts on Human Rights convened by the Committee of Ministers of the Council of Europe in November 1949, which required “due attention [to] be paid to the progress which has been achieved in this matter by the competent organs of the United Nations.”20 After being proposed by the Committee of Experts on Human Rights, this wording was adopted by the Conference of senior governmental officials held in Strasbourg from 8 to 17 June 195021 and, subsequently, by both the Committee of Ministers22 and the Consultative Assembly,23 on 7 August and 25 August 1950, respectively. It was not until the day before the adoption of the ECHR, on 3 November 1950, that a Committee of Legal Experts attached to the governmental delegations replaced the expression “in the determination … of his rights and obligations in a suit at law” used in the English text of Article 6, paragraph 1, of the ECHR draft by the phrase “in the determination of his civil rights and obligations.” The French text, however, remained unchanged. Despite the importance of the change in the English text, the Committee of Legal Experts did not explain the reasons for it. In its report, the Committee of Legal Experts stated merely that it made “a certain number of formal corrections and corrections of translations [to the final draft of the ECHR].”24 Some authors point out as a possible reason for this change the fact that the expression ‘civil rights and obligations’ introduced by this body in the English text corresponds better to the French text referring to ‘droits et obliga­ tions de caractère civil.’25 An analysis of the drafting process with respect to the expression ‘droits et obligations de caractère civil’ used in the French text of Article 6, paragraph 1, of the ECHR also fails to shed light on the meaning of this expression as, although it remained unchanged throughout the negotiation, it was not discussed during either its drafting or adoption.26 19 Commission Européenne des droits de l’homme, Travaux préparatoires de l’article 6 de la Convention Européenne des droits de l’homme, 8 October 1956, Doc. DH (56) 11, at 16. 20 ECommHR (1956), Preparatory Work on Article 6 of the European Convention, at 8. This wording was taken from Article 13 of the “draft International Covenant on Human Rights” prepared by the UN Commission on Human Rights at its Fifth Session held from 9 May to 20 June, 1948. 21 For the English text, see ECommHR (1956), Preparatory Work on Article 6 of the European Convention, at 20. For the French text, see Commission Européenne des droits de l’homme (1956), Travaux préparatoires de l’article 6 de la Convention Européenne des droits de l’homme, at 18, para. 15. 22 ECommHR (1956), Preparatory Work on Article 6 of the European Convention, at 23. 23 Id. at 25. 24 Committee of Legal Experts, Report, 3 November 1959, Doc. CM/Adj (50) 3; A 2530, in Council of Europe (1975), Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights (Dordrecht: Martinus Nijhoff Publishers), Vol. VII, at 12. 25 See e.g. Jacques Velu (1961), “Le problème de l’application aux juridictions administratives, des règles de la Convention européenne des droits de l’homme relatives a la publicité des audiences et des jugements,” 1961 Revue de droit international et de droit comparé 129, at 159; J.E.S. Fawcett (1987), The Application of the European Convention on Human Rights (Oxford: Clarendon Press) at 128. 26 ECommHR (1956), Preparatory Work on Article 6 of the European Convention. See also Council of Europe (1975), Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights, (Dordrecht: Martinus Nijhoff Publishers), Vols. I-VIII; Separate Opinion of Judge

reappraising the rights of victims in criminal proceedings generally155 The practice of most human rights treaty monitoring bodies also provides little guidance as to the scope of the fair hearing requirement in situations other than that of the defendant in criminal proceedings. These bodies have set only broad criteria on this matter, and the application of these criteria has not always been consistent. The UN Human Rights Committee maintains that the concept of a ‘suit at law’ is based on the nature of the right in question, rather than on the status of one of the parties or the particular forum provided by domestic legal systems for the determination of particular rights. Additionally, this Committee has made clear that the concept of determination of rights and obligations ‘in a suit of law’ covers not only areas such as contract, property and torts in private law, but also similar notions in the area of administrative law, such as the termination of employment, the determination of social security benefits or the pension rights of civil servants, and other procedures which “must be assessed on a case by case basis in the light of the nature of the right in question.”27 As discussed earlier, the UN Human Rights Committee has answered in the negative the more specific question as to whether access to and participation in criminal proceedings for victims of serious human rights violations fall within the scope of the fair hearing requirement set forth in Article 14, paragraph 1, of the ICCPR. It has done so, stating merely that “the ICCPR does not provide a right for individuals to require that the State criminally prosecute another person.”28 While, unlike both the UN Human Rights Committee and the ECtHR, the IACtHR has recognised the rights of access to and participation in criminal proceedings for victims of human rights violations based on the right to a fair hearing, this Court has provided little reasoning regarding its view on this matter. It has merely stated that such an interpretation of the right to a fair hearing, set forth in Article 8, paragraph 1, of the ACHR, is warranted in light of both the letter and spirit of this provision, as well as the wording of Article 29 (c) of the ACHR.29 Matscher in König v. Germany, Judgment of 28 June 1978, Application No. 6232/73, at 40; Velu (1961), “Le problème de l’application aux juridictions administratives, des règles de la Convention européenne des droits de l’homme relatives a la publicité des audiences et des jugements,” at 159; Fawcett (1987), The Application of the European Convention on Human Rights, at 127. 27 UN HR Committee, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, para. 16. For individual communications in which the UN Human Rights Committee has taken the view that the expression a ‘suit at law’ goes beyond civil rights and obligations, see e.g. UN HR Committee, Casanovas v. France, Communication No. 441/1990, Views of 19 July 1994, para. 5.2 (adopting the view that a procedure concerning a dismissal of a civil servant from employment constituted “a determination of rights and obligations in a suit at law” in terms of Article 14, paragraph 1, of the ICCPR); UN HR Committee, J.L. v. Australia, Communication No. 491/1992, Views of 22 July 1992, para. 4.3 (“[T]he regulation of the activities of professional bodies and the scrutiny of such regulations by the courts may raise issues under Article 14 of the Covenant”). 28 See e.g. UN HR Committee, Lalith Rajapakse v. Sri Lanka, Communication No. 1250/2004, Views of 14 July 2006, para. 9.3. For further analysis, see above Chapter III, Section I, Subsection A.i. 29 See e.g. IACtHR, Blake v. Guatemala, Merits, Judgment of 24 January 1998, Series C No. 36, para. 96; IACtHR, Durand and Ugarte v. Peru, Merits, Judgment of 16 August 2000, Series C No. 68, para. 128; IACtHR, Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90, para. 58; IACtHR, Case of the 19 Tradesmen, Merits, Reparations and Costs,

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While the ECtHR has made clear its view on the scope of the fair hearing requirement, it has, under its predominant strand of case law, interpreted very restrictively the concept of ‘civil rights’ included in Article 6, paragraph 1, of the ECHR, that sets the scope of this requirement in situations other than that of the defendant in criminal procedures. As discussed in the previous chapter, the ECtHR has interpreted this expression as encompassing almost exclusively those rights that are of a private nature, which in turn have generally been characterised by their pecuniary content.30 Based on this strand of case law, the ECtHR has held that victims who participate in criminal proceedings as a partie civile in those States providing for such an institution benefit from the right to a fair hearing only if these proceedings are decisive for the compensation for damages they suffered as a consequence of the offence.31 In spite of the scarce guidance the text of general human rights treaties and the case law of most of their monitoring bodies provide on the scope of the right to fair hearing in situations other than that of the defendant in criminal proceedings, I argue that a systematic and teleological interpretation of this right provides support for the recognition of the rights of access to and participation in criminal proceedings for victims of serious human rights violations. To begin with, the applicability of the right to a fair hearing in criminal proceedings with respect to victims of these infringements is grounded in a systematic interpretation of this right and the right to an effective remedy.32 Specifically, when interpreting the right to a fair hearing, the approach taken by human rights treaty monitoring bodies that, in the event of any of these violations, criminal procedures are an important element of the victim’s right to an effective remedy should be taken into consideration.33 In this respect, it should be stressed that the right to a fair hearing is, as any other human right, one that evolves, and thus it should be interpreted in the light of the developments taking place in international practice.34 Judgment of 5 July 2004, Series C No. 109, para. 185. For a thorough examination of this matter, see above Chapter III, Section II, Subsection A. 30 See e.g. ECtHR, Ringeisen v. Austria, Judgment of 16 July 1971, Application No. 2614/65, para. 94; Airey v. Ireland, Judgment of 9 October 1979, Application No. 6289/73, para. 21; Benthem v. The Netherlands, Judgment of 23 October 1985, Application No. 8848/80, para. 36; Case of Editions Periscope v. France, Judgment of 26 March 1992, Application No. 11760/85, paras. 9–13, 33, 40. 31 See e.g. ECtHR, Tomasi v. France, Judgment of 27 August 1992, Application No. 12850/87, para. 121; Aït-Mouhoub v. France, Judgment of 28 October 1998, Application No. 22924/93, para. 44–46; Perez v. France, Judgment of 12 February 2004, Application No. 47287/99, para. 70; Antunes Rocha v. Portugal, Judgment of 31 May 2005, Application No. 64330/01, para. 43. For a lengthy analysis of this matter, see above Chapter III, Section II, Subsection B.ii. 32 Vienna Convention on the Law of Treaties, Art. 31, para. 1. 33 See above Chapter II, Section I, Subsection A. 34 See Douglas E. Beloof (2003), “Constitutional Implications of Crime Victims as Participants,” 88 Cornell Law Review 282, at 293. For the proposition that human rights should be interpreted in the light of present-day conditions, see e.g. ECtHR, Tyrer v. The United Kingdom, Judgment of 25 April 1978, Application No. 5856/72, para. 31 (affirming that “the ECHR is a living instrument which must be interpreted in the light of present-day conditions); ECtHR, Sigurdur A. Sigurjonsson v. Iceland, Judgment of 30 June 1993, Application No. 16130/90, para. 35; ECtHR, Selmouni v. France, Judgment of 28 July 1999, Application No. 25803/94, para. 101. For the general proposition that international treaties should be interpreted “within the framework of the entire legal system prevailing at the time of the interpretation,” see e.g. ICJ, Legal Consequences

reappraising the rights of victims in criminal proceedings generally157 Additionally, a systematic and teleological interpretation of the right to a fair hearing requires States to ensure the observance of this right in criminal procedures with respect to victims of serious human rights violations, because of the special status of the rights infringed in these violations. As analysed above, human rights treaty monitoring bodies have emphasised the special status of the rights infringed in these violations when elaborating on the rationales for States’ obligations to investigate and prosecute these infringements.35 While, as discussed above, most human rights treaty monitoring bodies have, under their predominant case law, failed to follow through on the logic of this case law when determining the situations in which the right to a fair hearing has to be ensured, there is a strand of these bodies’ case law that expressly endorses a systematic and teleological interpretation of this right. According to this strand, States are bound to ensure the right to a fair hearing in those instances in which the determination of an internationally recognised human right is at issue. A strand of the case law of the ECtHR is worth analysing in this respect. To begin with, Osman v. The United Kingdom case should be discussed. It concerned the alleged failure of the authorities to protect a young boy and his family from a teacher who had become obsessed with him and who followed, threatened and ultimately seriously wounded him, and shot and killed his father. In supporting its finding that there was a violation of the right of access to a court of the complainants because of the domestic courts’ dismissal of their negligence action against the police for the damage caused by the said failure on grounds of the exclusionary rule of such actions with respect to the police’s functions on the investigation and suppression of crime, the ECtHR emphasised the fact that their case involved the alleged failure to protect the right to life, and that the harm sustained was of the most serious nature.36 The judges who wrote dissenting opinions in this case stressed further the need for judicial remedies in the event of an alleged serious human rights violation. Judge De Mayer in his partly dissenting opinion, joined by Judges Lopez Rocha and Casadevall, stated that the applicants in the case had the right of access to a court under Article 6, paragraph 1, of the ECHR, even if domestic law would have not recognised such a right, stressing that “[the applicants] were asserting that they were the victims of a violation of fundamental … rights, which had to be secured to them under the ECHR,” and the essential nature of the guarantees enshrined in Article 6, paragraph 1, of the ECHR.37 Similarly, in Z. and others v. The United Kingdom, while the majority of the ECtHR deemed that it was not appropriate “to make any findings as to whether only court proceedings could have furnished effective redress,” it recognised the important role judicial remedies play in the event of a serious human rights violation, stressing that these

for States of the Continued Presence of South Africa in Namibia, Advisory Opinion of 21 June 1971, 1971 I.C.J. Reports 16, at 31, para. 53. 35 See above Chapter II, Section I, Subsection A.i. 36 ECtHR, Osman v. The United Kingdom, Judgment of 28 October 1998, Application No. 23452/94, para. 151. 37 Partly dissenting, partly concurring opinion of Judge De Mayer, joined by Judges Lopez Rocha and Casadevall, in Osman v. The United Kingdom, Judgment of 28 October 1998, Application No. 23452/94, at 56.

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remedies “furnish strong guarantees of independence, access for the victim and family, and enforceability of awards ….”38 The five dissenting judges in this case made their position in this respect even clearer, expressly stating that with respect to civil claims involving alleged violations of core ECHR’s rights – such as Articles 2 and 3 – only court proceedings satisfying all the requirements set out in Article 6 of the ECHR could provide an effective remedy.39 The ECtHR has stressed States’ duty to ensure the right to a fair hearing in disputes involving the determination of an internationally recognised human right in another context as well. This Court has done so in several cases concerning disputes on parents’ rights vis-à-vis their children, which relate to the right to a family life. For instance, in Keegan v Ireland, the ECtHR found a violation of the fair hearing requirement under Article 6, paragraph 1, of the ECHR, on the very grounds that “the applicant had no rights under Irish law to challenge [the] decision [placing his son for adoption without his prior knowledge and consent] either before the Adoption Board or before the courts or … any standing in the adoption procedure generally.”40 While the previous three judgments concerned non-criminal cases, the proposition that they uphold – i.e. States are bound to ensure the right to a fair hearing in those instances in which the determination of an internationally recognised human right is at issue – equally provides support for the applicability of the right to a fair hearing in criminal procedures with respect to victims of serious human rights violations. Criminal procedures for these violations involve the alleged infringement of a fundamental right of the victim. It should be stressed that the applicability of the fair hearing requirement in criminal proceedings with respect to victims of serious human rights violations does not mean that they would enjoy the same rights as the defendant. Victims may enjoy only the guarantees enshrined in the first paragraph of Article 14 of the ICCPR. Additionally, I recognise that legislators and judges can set reasonable limitations on those elements of the right to a fair hearing whose extension to victims in the context of criminal proceedings may be problematic, such as the right to adversarial proceedings. The right to adversarial proceedings is understood here as the right to have knowledge of and comment on all evidence adduced or observations filed.41 Human rights treaty monitoring bodies have confirmed that some elements of the right to a fair hearing are not absolute and thus limitations can be introduced.42

38 ECtHR, Z. and others v. The United Kingdom, Judgment of 10 May 2001, Application No. 29392/95, para. 110. 39 Partly dissenting opinion of Judge Rozakis, joined by Judge Palm, in Z. and others v. The United Kingdom, Judgment of 10 May 2001, Application No. 29392/95, at 45. See also partly dissenting opinion of Judge Thomassen, joined by Judges Casadevall and Kovler, in id. at 48–49. 40 ECtHR, Keegan v. Ireland, Judgment of 26 May 1994, Application No. 16969/90, para. 59. 41 See Nuala Mole and Catharina Harby (2006), The Right to a Fair Trial: A Guide to the Implementation of Article 6 of the European Convention on Human Rights, Human Rights Handbooks no. 3 (Strasbourg: Council of Europe, 2nd edn), at 46. 42 See e.g. ECtHR, Rowe and Davis v. The United Kingdom, Judgment of 16 February 2000, Application No. 28901/95.

reappraising the rights of victims in criminal proceedings generally159 The case law of both the IACtHR and the ECtHR confirms that the right to a fair hearing of the victim and the right to a fair trial of the defendant can be reconciled. Several experts on human rights in criminal proceedings also take the view that victims should enjoy several of the elements of the right to a fair hearing in the context of criminal proceedings.43 Long-standing practice in civil law jurisdictions also demonstrates that victim access to and participation in criminal proceedings are consistent with the right to a fair trial of the defendant. D. Contribution to Effective Human Rights Protection and to Reaffirmation of the Principle of the Rule of Law Victim access to and participation in criminal procedures can also contribute significantly to reaffirming the importance the concerned society attaches to the infringed rights and, ultimately, to effective human rights protection and to reaffirmation of the principle of the rule of law. I adopt the definition of the rule of law given by the Rule of Law Index, which is the following: [A] rules-based system in which the following four universal principles are upheld: • The government and its officials and agents are accountable under the law; • The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property; • The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; • Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.44 These four principles are relevant for the theme of this monograph. To begin with, it is worth reiterating that human rights treaty monitoring bodies have consistently maintained that, in the event of a serious human rights violation, criminal procedures serve to reaffirm the importance the concerned society attaches to the infringed rights and, more generally, the authority of the law because of the special characteristics of these procedures – i.e. they make it possible for a thorough and independent investigation to be carried out and for the criminal responsibility of those involved to be established.45 In addition, and as discussed earlier, when elaborating on the rationales for States’ obligations to investigate and prosecute serious human rights violations, these bodies have emphasised the special status of the rights infringed in these violations.46

43 See e.g. Trechsel (2005), Human Rights in Criminal Proceedings, at 37–41. 44 Mark David Agrast, Juan Carlos Botero and Alejandro Ponce (2010), The World Justice Project Rule of Law Index 2010 (Washington, D.C.: The World Justice Project), at 8. 45 See above Chapter II, Section I, Subsection A. See also Drumbl (2007), Atrocity, Punishment, and International Law, at 12. 46 See above Chapter II, Section I, Subsection A.

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Therefore, by helping to ensure that these infringements be investigated and prosecuted, victim access to and participation in criminal procedures contribute to these expressivist goals of criminal procedures.47 As will be analysed below, victim access and participation as understood in this monograph include the rights of victims of these infringements to have an effective and impartial investigation carried out with reasonable expedition; to know the reasons for, and increasingly to ask for judicial review of, a public prosecutor’s decision not to prosecute any alleged such infringements; and to be present, to be heard, and to offer, examine and challenge evidence at the trial phase.48 Additionally, human rights treaty monitoring bodies have for a long time held that in the event of a serious human rights violation, judicial remedies play a critical role in the proper operation of democracy and, in particular, of the principle of the rule of law. In this respect, the UN Human Rights Committee has stated that the right to a fair trial is “a key element of human rights protection and serves as a procedural means to safeguard the rule of law.”49 Similarly, the IACtHR has maintained that: The right to effective recourse to a competent national court or tribunal is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention.50

By the same token, the ECtHR has stated that: In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6, paragraph 1, would not correspond to the aim and the purpose of that provision.51

Furthermore, the ECtHR has, since its 1975 judgment in Golder v. The United Kingdom, emphasised the fundamental importance the rule of law has in the interpretation of the right to a fair hearing enshrined in Article 6, paragraph 1, of the ECHR.52 In Golder v. The United Kingdom, in supporting its conclusion that the right to initiate civil proceedings before a court of law constitutes an inherent element of the right to a fair hearing,53 the ECtHR referred, among other matters, to the rule of law as mentioned in the Preamble of the ECHR and in the Statute of the Council of Europe.54 Human rights treaty monitoring bodies have also linked the need for judicial remedies in the event of a human rights violation with the principle of accountability of State 47 See above Chapter II, Section I, Subsection D. 48 See below in this chapter, Section IV. 49 See UN HR Committee, General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, para. 2. 50 See e.g. IACtHR, Castillo Páez v. Peru, Merits, Judgment of 3 November 1997, Series C No. 34, para. 82. 51 ECtHR, Delcourt v. Belgium, Judgment of 17 January 1970, Application No. 2689/65, para. 25. 52 See e.g. ECtHR, Golder v. UK, Judgment of 21 February 1975, Application No. 4451/70, para. 34. See also ECtHR, Ashingdane v. UK, Judgment of 28 May 1985, Application No. 8225/78, paras. 56–57; Fayed v. UK, Judgment of 21 September 1994, Application No. 17101, para. 65; Fogarty v. UK, Judgment of 21 November 2001, Application No. 37112/97, para. 25. 53 See ECtHR, Golder v. UK, Judgment of 21 February 1975, Application No. 4451/70, para. 35. 54 Id. para. 34.

reappraising the rights of victims in criminal proceedings generally161 authorities, an integral element of the principle of the rule of law. For instance, in Osman v. The United Kingdom, in supporting its conclusion that “the application of the exclusionary rule in [the case] constituted a disproportionate restriction on the applicants’ right of access to a court,”55 the ECtHR stressed the particular importance that a civil suit for negligence against the police has in cases involving serious human rights violations. In this respect, the ECtHR stated as follows: Neither an action against Paget-Lewis nor against Dr Ferguson, the ILEA psychiatrist, would have enabled them to secure answers to the basic question which underpinned their civil action, namely why did the police not take action sooner to prevent Paget-Lewis from exacting a deadly retribution against Ali and Ahmet Osman. They may or may not have failed to convince the domestic court that the police were negligent in the circumstances. However, they were entitled to have the police account for their actions and omissions in adversarial proceedings.56

While the last two judgments concerned non-criminal cases, the proposition they uphold – i.e. that in the event of a human rights violation, judicial remedies, dealt with conforming to due process guarantees, play a critical role in the proper operation of the principle of the rule of law – is also applicable regarding criminal proceedings. As mentioned earlier, human rights treaty monitoring bodies have consistently held that, in the event of a serious human rights violation, criminal procedures are of the utmost importance because of the features of these procedures and the special status the rights infringed in such violations.57 Several scholars share my view that the principle of the rule of law is a legal basis of victim access to and participation in criminal proceedings.58 Access to and participation in criminal procedures for victims of serious human rights violations is fundamental for effective human rights protection and for reaffirming the principle of the rule of law in another respect as well. As discussed earlier, by helping to ensure that these violations are investigated and prosecuted, victim access to and participation in these procedures can serve to corrode the impunity that often surrounds the perpetration of these infringements.59 II. Other Rationales for Victim Access to and Participation in Criminal Procedures There are other rationales for access to and participation in criminal procedures for victims of serious human rights violations. To begin with, there is a growing recognition in international and domestic practices of the proposition that victims have several legitimate interests in the criminal procedures for these infringements. Additionally, victim access to and participation in criminal procedures can, according to the theory of procedural justice, improve victim perception of the fairness and legitimacy of these 55 ECtHR, Osman v. UK, Judgment of 28 October 1998, Application No. 23452/94, para. 154. 56 Id. para. 153 (emphasis added). 57 See above Chapter II, Section I, Subsection A. 58 See e.g. Bassiouni (2006), “International Recognition of Victims’ Rights,” at 263; O’Hara (2005), “Victim Participation in the Criminal Process,” at 246–7; Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State,” at 108. 59 See above in this section, Subsection B.

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procedures. These rationales are important from a normative point of view. As will be discussed below, the recognition of a number of legitimate interests of victims in the criminal procedures for these violations is a strong normative foundation of their access to and participation in such procedures, as such access and participation can be considered as necessary means to protect these legitimate interests. Similarly, the wide international and domestic recognition of the rights to a fair hearing and to an effective remedy is a strong endorsement of the theory of procedural justice. A. Recognising Several Legitimate Interests of Victims in the Criminal Procedures for Serious Human Rights Violations Increasingly, both international and domestic practices recognise that victims have several legitimate interests in the criminal procedures for serious human rights violations, because of the special status of the rights infringed in these violations, the features of such procedures, the personal harm they suffered as a result of the violation, and the context in which these infringements are often perpetrated. With respect to international practice, it should first be noted that, as analysed in the previous chapter, both the ECtHR and the IACtHR have explicitly recognised that victims have several legitimate interests in the criminal procedures for serious human rights violations. The ECtHR has referred to these interests as a rationale for the requirement for victim involvement in criminal proceedings.60 The ECtHR has added that these interests are based on “[victims’] close and personal concern with the subject matter of the inquiry.”61 Similarly, the IACtHR has recognised various legitimate interests of victims in the criminal procedures for these infringements. In particular, the IACtHR has consistently stated that by exercising the right to resort to the administration of justice to obtain an investigation into an alleged human rights violation, victims seek not only the benefit of society as a whole, but also their own benefit.62 The IACtHR has added that victim participation in criminal proceedings has a twofold rationale: to enable him or her to contribute to clarification of the facts and the punishment of those responsible; and to allow him or her to seek adequate reparation.63 Likewise, in November 2000, the then Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Carla del Ponte, referred to victim harm 60 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 98; ECtHR, Hugh Jordan v. The United Kingdom, Judgment of 4 May 2001, Application No. 24746/94, para. 109; ECtHR, McKerr v. The United Kingdom, Judgment of 4 May 2001, Application No. 28883/95, para. 115; ECtHR, Shanaghan v. The United Kingdom, Judgment of 4 May 2001, Application No. 37715/97, para. 92. 61 See ECtHR, Paul and Audrey Edwards v. The United Kingdom, Judgment of 14 March 2002, Application No. 46477/99, para. 84. 62 See e.g. IACtHR, the Caracazo v. Venezuela, Reparations, Judgment of 29 August 2002, Series C No. 95, para. 115; IACtHR, Case of Serrano-Cruz Sisters v. El Salvador, Merits, Reparations and Costs, Judgment of 1 March 2005, Series C No. 120, para. 64. 63 IACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63, para. 227. See also IACtHR, Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90, para. 59; IACtHR, Durand and Ugarte v. Peru, Judgment of 16 August 2000, Series C No. 68, para. 129. For a complete analysis of this subject, see below Chapter III, Section II, Subsection A.

reappraising the rights of victims in criminal proceedings generally163 as a rationale for her proposal to allow for victim participation in the procedures before these tribunals. Specifically, Ms del Ponte stated as follows: It is regrettable that the Tribunal’s statute makes no provision for victim participation during the trial, and makes only a minimum of provision for compensation and restitution to people whose lives have been destroyed…. We should therefore give victims the right to express themselves, and allow their voice to be heard during the proceedings…. I would therefore respectfully suggest to the Council that the present system falls short of delivering justice to the people of Rwanda and the former Yugoslavia, and I would invite you to give serious and urgent consideration to any change that would remove this lacuna in our process.64

Additionally, the UN Convention against Torture (hereinafter “the CAT”) recognises implicitly victims’ legitimate interests in criminal proceedings when providing for the right of the victim to have his or her case promptly and impartially examined by State authorities. Article 13 of the CAT, which provides for this right, read together with Articles 12 and 14 therein, makes clear that such a right covers criminal proceedings.65 As analysed earlier, the special status of the rights infringed in serious human rights violations and the above-analysed features of criminal procedures are additional bases for the legitimate interests of victims in criminal procedures for these infringements. As discussed above, international human rights treaty monitoring bodies have consistently stressed the special status of the rights infringed in these violations and the features of criminal procedures when putting forward the rationales for States’ obligations to investigate and prosecute these infringements. Domestic practice in civil law jurisdictions and, to a lesser extent, in common law jurisdictions also provides support for the proposition that crime victims have several legitimate interests in criminal proceedings. While there is little research on domestic practice specifically dealing with the interests of victims in the criminal procedures for serious human rights violations, domestic practice regarding the interests of crime victims in general in these procedures affirms this proposition. The Colombian Constitutional Court, which has developed a rich body of case law specifically addressing the interests of victims in criminal proceedings for serious human rights violations, has held that these interests encompass seeking clarification of the facts, the identification and prosecution of those responsible, and due compensation.66 With respect to domestic practice regarding the interests of crime victims in general in criminal proceedings, it is first worth noting the practice in civil law jurisdictions. In addition to the implicit recognition of these legitimate interests by many civil law jurisdictions through the conferral of participatory rights in criminal procedures upon victims,67 domestic courts in some of these States have explicitly recognised crime victims’ legitimate interests in these procedures. The French Cour de Cassation has, since its 1906

64 Address to the Security Council by Carla del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 21 November 2000, ICTY Press Release of 24 November 2000, JL/P.I.S./542-e (emphasis added). 65 See above Chapter III, Section I, Subsection A.ii. 66 See e.g. Colombian Constitutional Court, Judgment C-228/02, 3 April 2002, Section VI, Subsections 6.3 and 6.4. 67 See above Chapter III, Section III, Subsection C.

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decision in the case of Thirion-Place, expressly recognised several legitimate interests of crime victims in criminal procedures.68 I will elaborate on the approach of this Court in the next subsection. Regarding common law jurisdictions, it should be reiterated that while most of them decline to recognise victims’ participatory rights in criminal proceedings,69 increasingly domestic legislation and authorities in these jurisdictions recognise that crime victims have a number of legitimate interests in these proceedings. For instance, the United Kingdom Code for Crown Prosecutors requires prosecutors to take into account the interests and views of victims in prosecution decision-making at critical stages of the procedures – e.g. when deciding whether to prosecute or not a case, or whether to accept a plea offered.70 Additionally, the House of Lords has extended the duty to take into account the victim’s interests in decision-making to criminal judges.71 U.S. law recognises and integrates even further victims’ interests in criminal procedures. As analysed in the previous chapter, the U.S. Crime Victims’ Rights Act of 2004 grants explicitly crime victims several participatory rights: the right to be present in any public court proceeding, unless the court determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding; the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; and, the right to confer with the attorney for the Government in the case.72 In his intervention on 9 October 2004 during the discussion of the Crime Victims’ Rights Act of 2004, U.S. Senator Kyl, one of the sponsors of this bill, made explicit the recognition, under this piece of legislation, of victims’ legitimate interest in the pursuing of criminal justice, when stating as follows: Victims are the persons who are directly harmed by the crime and they have a stake in the criminal process because of that harm. … [T]his bill allows crime victims, in the vast majority of cases, to attend the hearings and trial of the case involving their victimization. This is so important because crime victims share an interest with the government in seeing that justice is done in a criminal case and this interest supports the idea that victims should not be excluded from public criminal proceedings, whether these are pre-trial, trial, or post-trial proceedings.73

While so far U.S. courts have adopted a more restrictive approach in this respect,74 they have also acknowledged that crime victims have some legitimate interests in criminal proceedings, notably in timely punishment and in attending the proceedings. While, until its 1981 judgment in Leeke v. Timmerman, the U.S. Supreme Court adopted the view that “a private citizen lacks a judiciable cognizable interest in the prosecution or 68 French Cour de cassation, the case of Thirion-Place, Cass. crim., 8 December 1906, Recueil Dalloz, 1907.I.207, at 213. 69 See above Chapter III, Section III, Subsections A and C. 70 See the Crown Prosecution Service (2004), The Code for Crown Prosecutors, paras. 5.12, 10.2 and 11.1. 71 See e.g. Attorney General’s Reference No. 3 of 1999 (2001) 2 AC 91, at 118 per Lord Steyn. 72 18 U.S.C. §3771 (2004). See especially §3771(a). 73 150 Cong. Rec. §10910 (daily ed. 9 Oct. 2004) (Statement of Senator Kyl). 74 One factor that may explain this is the fact that there are not many decisions by U.S. courts dealing with the Crime Victims’ Rights Act of 2004.

reappraising the rights of victims in criminal proceedings generally165 nonprosecution of another,”75 this Court has recognised in at least two subsequent cases that victims have a number of legitimate interests in criminal proceedings. In its 1983 judgment in Morris v. Slappy, in supporting its ruling that a continuance to allow better preparation by the defendant’s attorney was properly denied, the U.S. Supreme Court expressly stated that “in the administration of criminal justice, courts may not ignore the concerns of victims,” such as that of having to testify publicly several times about a humiliating and degrading experience.76 More importantly, in its 1998 judgment in Calderon v. Thompson, the U.S. Supreme Court acknowledged victims’ interest in timely punishment. In supporting its conclusion that only in exceptional circumstances should a federal court reverse an earlier decision denying habeas corpus relief to a state prisoner, the U.S. Supreme Court referred, among other matters, to “the powerful and legitimate interest in punishing the guilty,” interest that, in the view of this Court, the State and the victims of crime share.77 Victims’ legitimate interests in criminal proceedings have also been recognised by some U.S. state courts. For instance, in 1999, in State v. Timmendequas the New Jersey Supreme Court upheld the trial court’s denial of the defendant’s request for a change of venue in a homicide case, because such a change would have added two hours a day to the victim’s travel time to trial.78 Several scholars have also taken the view that crime victims have several legitimate interests in criminal procedures.79 Most of these scholars identify the direct harm suffered 75 Linda R.S. v. Richard, 410 U.S. 614 (1973). This case concerned an action by the mother of an illegitimate child for a judgment declaring the unconstitutionality of Texas Criminal law at that time providing that any ‘parent’ who fails to support his ‘children’ is subject to prosecution, but which by state courts’ construction applies only to married parents, and for an injunction forbidding the local district attorney from refraining to prosecute on the grounds that the unsupported child was illegitimate. In supporting its view that “in American jurisprudence a private citizen lacks a judiciable cognizable interest in the prosecution or nonprosecution of another”, the Supreme Court referred, among other matters, to the features of the prosecution system in American criminal law (id. at 619). See also Leeke v. Timmerman et al., 454 U.S. 83 (1981). This case concerned the decision of a Federal District Court not to issue criminal arrest warrants against four prison guards sought by inmates for alleged ill-treatment after having revised the information submitted by the complainant and a letter from the State Solicitor requesting that the warrants not be issued. The claimants alleged undue interference of the State solicitor in the case. The U.S. Supreme Court held that there had not been undue interference. In doing so, the Court affirmed its decision in Linda R.S. v. Richard (id. at 86–87). However, the Court also noted that “the respondents had access to judicial procedures to redress any claimed wrongs” since they were able to bring their complaints to the attention of the Magistrate (id. at 86–87). The latter is very important because, despite the US Supreme Court affirmation of its view in Linda R.S. v. Richard, this Court stressed that in the present case the claimant had the possibility of access to judicial procedures for seeking the commencement of an investigation. 76 Morris v. Slappy, 461 U.S. 1 (1983), at 14–15. 77 Calderon v. Thompson, 523 U.S. 538 (1998), at 556. For a scholarly account, see Douglas E. Beloof (2007), “Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure,” 56 Catholic University Law Review 1135, at 1169. 78 State v. Timmendequas, 161 N.J. 515, 737 A.2d 55, at 556 (1999). For a scholarly account, see Beloof (2007), “Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure,” at 1166. 79 See Beloof (2007), “Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure,” at 1147, 1149–50. See also Edna Erez and Julian Roberts (2007), “Victim Participation in the

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by the victim as a result of the criminal offence as a basis of his or her legitimate interests in these procedures.80 Michèle-Laure Rassat explains this by maintaining that there is ultimately a moral argument for victim participation in criminal proceedings: because the victim suffered harm as a result of the offence, he or she should have the right to participate in the trial and sanction of those responsible.81 Similarly, Helen Fenwick submits that the strongest foundation of procedural rights of victims in criminal procedures is that “by their means, the impact of the offence and the victim’s special interest in the case may be recognised.”82 The view that the personal harm suffered by the victim as a result of the criminal offence is a basis of his or her legitimate interests in criminal proceedings is considered sound, as it is consistent with the widely accepted proposition that serious criminal offences, in addition to being harmful to the public order, impair the interests and rights of individuals.83 i. Delimiting the Legitimate Interests of Victims in Criminal Procedures for Serious Human Rights Violations Once it is accepted that victims have several legitimate interests in the criminal procedures for serious human rights violations, the question arises as to what those interests are. This question is relevant not only for determining the scope of victims’ rights in criminal procedures, but also because of the differences that exist on this subject among civil Criminal Justice System,” in Robert C. Davis, Arthur J. Lurigio and Susan Herman (eds.), Victims of Crime 231 (Los Angeles: Sage), at 282; Young (2000), “Integrating a Multi-Victim Perspective into Criminal Justice through Restorative Justice Conferences,” at 228–229. More generally, see Nils Christie (1977), “Conflict as a Property,” 17 British Journal of Criminology 1, at 1, 7. 80 See Beloof (2007), “Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure,” at 1147, 1149–50; Philippe Conte and Patrick Maistre du Chambon (2002), Droit Pénal Général (Paris: A. Colin), at 14; Marc S. Groenhuijsen (1999), “Victims’ Rights in the Criminal Justice System: A Call for More Comprehensive Implementation Theory,” in Jan J.M. van Dick, Ron G.H. van Kaam, and Jo-Anne M. Wemmers (eds.), Caring for Crime Victims 85 (Monsey, New York: Criminal Justice Press), at 86; Helen Fenwick (1997), “Procedural ‘Rights’ of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?,” 60 The Modern Law Review 317, at 322; Christie (1977), “Conflict as a Property,” at 1, 7; Douglas E. Beloof (1999), “The Third Model of Criminal Process: The Victim Participation Model,” 1999 Utah Law Review 289, at 294; Beloof (2003), “Constitutional Implications of Crime Victims as Participants,” at 294; Norval Morris (1974), The Future of Imprisonment (Chicago: University of Chicago Press), at 56; Heather Strang (2002), Repair or Revenge: Victims and Restorative Justice (Oxford: Clarendon Press), at 6; Robert C. Davis (1983), “Victim/Witness Noncooperation: A Second Look at a Persistent Phenomenon,” 11 Journal of Criminal Justice 287, at 294; William F. MacDonald (1976), “Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim,” 13 American Criminal Law Review 649, at 673. 81 Rassat (2001), Traité de procédure pénale, at 250. 82 Fenwick (1997), “Procedural ‘Rights’ of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?,” at 321. 83 See e.g. Groenhuijsen (1999), “Victims’ Rights in the Criminal Justice system: A Call for More Comprehensive Implementation Theory,” at 86; Conte and Maistre du Chambon (2002), Droit Pénal Général, at 14; Rassat (2001), Traité de procédure pénale, at 250; Beloof (2003), “Constitutional Implications of Crime Victims as Participants,” at 283.

reappraising the rights of victims in criminal proceedings generally167 law jurisdictions. While in some of these jurisdictions the only legitimate interest recognised to victims in these procedures is that of seeking due compensation, in others, victims’ legitimate interests also encompass contributing to the clarification of the facts, and to the identification and prosecution of those responsible. My view is that the legitimate interests of victims in the criminal proceedings for serious human rights violations encompass seeking clarification of the facts, the identification and prosecution of those responsible, and due compensation. They include victims’ interest in presenting facts they know to ensure the right outcome of criminal procedures, and their interest in learning facts of which they are not aware.84 There are several arguments that lend support to my submission on this matter. First, my view is grounded in the case law of the IACtHR and the ECtHR. The IACtHR has expressly taken this approach when holding that the right of the victim to participate in criminal proceedings pursues a twofold objective: to enable him or her to contribute to clarification of the facts and the punishment of those responsible; and to allow him or her to seek adequate reparation.85 While the ECtHR has not explicitly dealt with this matter, it appears from its well-established case law requiring the victim’s involvement in the criminal proceedings for serious human rights violations that in the view of this Court such involvement pursues objectives that go well beyond that of seeking due compensation.86 In this respect, it is worth stressing that, unlike the ECtHR’s interpretation of the fair hearing requirement with respect to crime victims participating in criminal proceedings as a partie civile, this Court has never subjected the various victim entitlements it has recognised in criminal proceedings to a request for compensation.87 My view is also supported by the well-established proposition in international human rights law that compensation does not suffice in the event of a serious human rights violation.88 As discussed earlier, these violations involve the infringement of fundamental rights of individuals.89 Additionally, as analysed above, criminal procedures provide victims of these infringements with an important venue for seeking redress because of the features of these procedures. As discussed above, human rights treaty monitoring bodies have consistently maintained that these procedures make it possible for a thorough and independent investigation to be conducted and for the criminal responsibility of those involved to be established.90 The official and public nature of criminal proceedings are another reason why victims of these violations are very often interested in accessing and participating in these proceedings beyond seeking compensation. As analysed earlier, these characteristics of criminal proceedings are of critical importance for victims of 84 I thank Diane Orentlicher for bringing this point to my attention. 85 See e.g. IACtHR, Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63, para. 227; IACtHR, Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90, para. 59; IACtHR, Durand and Ugarte v. Peru, Merits, Judgment of 16 August 2000, Series C No. 68, para. 129. 86 See notably ECtHR, Slimani v. France, Judgment of 27 July 2004, Application No. 57671/00, para. 47. For further analysis of this case, see above Chapter III, Section II, Subsection B. 87 See above Chapter III, Section II, Subsection B. 88 See above Chapter II, Section I, Subsections A and C. 89 See above Chapter I, Section I. 90 See above Chapter II, Section I, Subsection A.

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these infringements not only because State authorities are the representatives of the society, but also because of the nature of these violations and the context in which such infringements are often committed. As discussed above, these infringements are often perpetrated with the active involvement of State officials and surrounded by official denials and cover-ups.91 Various empirical studies confirm my last two arguments. To begin with, it is worth discussing an empirical study conducted by Nadine Stammel et al. on the perceptions of victim participants and a number of Cambodians who lived when the crimes investigated by the Extraordinary Chambers in the Courts of Cambodia (hereinafter the “ECCC”) took place. The study was conducted in two rounds of interviews. The first round took place between 3 October 2008 and 22 May 2009 and those interviewed belonged to the two above-mentioned groups. The second round took place between 2 November 2010 and 10 December 2010 and involved only Civil Party applicants – i.e. 247 people.92 The study found that, according to those interviewed in the first round of interviews, bringing justice was the most frequent reason for victims to seek participation before the ECCC.93 In the second round of interviews the authors of the study did not ask a similar question. The study carried out by Phuong N. Pham et al. had similar findings. The study was conducted nearly a year after the ECCC trial in Case 001 ended “to learn from the civil parties, together with those [who initially were granted the status of civil party but which status was subsequently rejected at sentencing], about their experiences of participating in the ECCC proceedings.”94 The study found that the two most important motivations for victims’ participation in the ECCC proceedings were to obtain justice for themselves and/ or their relatives (69%), and to know the truth about what happened to their relatives (43%).95 Victims defined justice in terms of knowing who is right and who is wrong, being fair, and applying the law.96 The findings of two empirical studies examining the reasons why victim-survivors want to testify before the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”) are also worth noting. As mentioned in the general introduction, while victim involvement in criminal procedures limited to serving as a witness differs from victim participation in these procedures pursuant to the participatory rights identified in this study,97 the findings of these studies are relevant as they provide new insights into the reasons why victim-survivors of international crimes want to testify before an inter­ national criminal tribunal – i.e. the ICTY. In his study on the impact of the ICTY on 91 See e.g. Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 18–19. For empirical studies confirming this, see, in addition to the empirical studies discussed below in this subsection, those analysed in this chapter in Section III, Subsection E; and in Chapter V, Section IV, Subsection A. 92 Nadine Stammel, Sebastian Burchert, Sopheap Taing, Estelle Bockers and Christine Knaevelsrud (2010), The Survivors’ Voices: Attitudes on the ECCC, the Former Khmer Rouge and Experiences with Civil Party Participation (Berlin: Berlin Center for the Treatment of Torture Victims). 93 Id. at 34. 94 Phuong N. Pham et al. (2011), “Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia,” 3.3 Journal of Human Rights Practice 264, at 264–266. 95 Id. at 273–274. 96 Id. at 273–274. 97 See above Introduction, Section I, Subsection A.

reappraising the rights of victims in criminal proceedings generally169 victim-witnesses of the conflict in the former Yugoslavia, based on 127 interviews with victims who gave testimony to the ICTY, Eric Stover found that: [The main reason why the majority of victim-survivors gave testimony before the ICTY was] the compelling need to tell their story. They had survived unspeakable crimes while others had perished; it was their ‘moral duty’ to ensure that the truth about the death of family members, neighbours, and colleagues was duly recorded and acknowledged.98

Similarly, in a study on the impact of the ICTY on victims and perpetrators of war crimes and on Bosnia’s capacity to prosecute war criminals, Diane Orentlicher found that the main reason why victim-survivors want to testify before the ICTY is “to bear witness for those who did not survive.”99 It should also be mentioned the findings of an empirical study of the perceptions and experiences of the various actors involved in individual cases before the Inter-American system for the protection of human rights. While the nature of the proceedings before the Inter-American human rights bodies differs from those before criminal courts, the fact that most of the cases before these bodies have involved serious human rights violations makes the findings of this study worth analysing for the purposes of this monograph. This study found that a major reason why the hearing was very important for the victims interviewed was their desire to contribute to uncovering the truth and to the pursuit of justice.100 As will be analysed in the next chapter, the statutes and case law of several international and hybrid criminal tribunals also lend support to the proposition that the legitimate interests of victims in the criminal proceedings for serious human rights violations encompass seeking clarification of the facts, the identification and prosecution of those responsible, and due compensation.101 My view is also consistent with that of domestic courts in several civil law jurisdictions that have expressly held that victims’ legitimate interests in criminal proceedings go beyond seeking due compensation. In France, la Cour de Cassation, the top judicial authority, has made clear that the interests of victims participating in criminal proceedings as a partie civile encompass the clarification of the facts, as well as the identification and prosecution of those responsible.102 Similarly, the Colombian Constitutional Court

98 Eric Stover (2005), The Witnesses: War Crimes and the Promise of Justice in The Hague (Philadelphia: University of Pennsylvania Press), at 126 and 134. 99 Orentlicher (2010), That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia, at 18–19, 86. 100 Carlos Martín Beristain (2008), Diálogos sobre la Reparación: Experiencias en el Sistema Interamericano de Derechos Humanos (San José, Costa Rica: Instituto Interamericano de Derechos Humanos), Vol. I, at 189. 101 See below Chapter V, Section IV, Subsection C. 102 See French Cour de cassation, the case of Thirion-Place, Cass. crim., 8 December 1906, Recueil Dalloz, 1907.I.207, at 213 (stating that victims’ participation in criminal procedures as a partie civile has a double nature as it seeks not only due compensation, but also the identification and prosecution of those responsible). See also Anne D’Hauteville (2001), “Les Droits des Victimes,” 2001 Revue de Science Criminelle et de Droit Pénal Comparé 107, at 112; Roger Merle and André Vitu (2001), Traité de Droit Criminel: Procédure Pénale (Paris: Editions Cujas), Vol. II, at 43, 46; Jean Pradel (2008), Manuel de Procédure Pénale (Paris: Cujas, 14th edn), at 242–243;

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has expressly taken the view that victim participation in criminal proceedings for serious human rights violations is aimed not only at seeking compensation for damages, but also at the satisfaction of victims’ rights to the truth and justice.103 Reforms introduced in some common law jurisdictions also provide support for the proposition that victims’ legitimate interests in criminal procedures encompass more than seeking compensation for damages. For instance, crime victims’ rights to be present in any public court proceeding, to be reasonably heard, and to confer with the attorney for the Government in the case, under the U.S. Crime Victims’ Rights Act of 2004, are not limited to issues concerning compensation for damages.104 Several scholars also endorse my view on this matter.105 Lastly, it is worth clarifying that, as will be analysed at length below, the recognition of these legitimate interests of victims in criminal procedures for serious human rights violations does not mean that the views of these victims on the various matters that arise in such procedures should prevail. I will elaborate on this in the next section of this chapter.106 In conclusion, there is a growing recognition in international and domestic practices of the proposition that victims have several legitimate interests in the criminal procedures for serious human rights violations. This proves that the enduring premise of the common law tradition that criminal law and, more specifically, criminal procedures are the exclusive province of the State has been revised.107 B. Contribution to Victim Perception of the Fairness and Legitimacy of Criminal Procedures Access to and participation in criminal procedures for victims of serious human rights violations pursuant to the rights identified in this monograph can also improve victim perception of the fairness and legitimacy of these procedures. The theory of procedural justice provides the basis for this view. According to this theory, procedural justice aspects, Valérie Dervieux (2002), “The French System,” in M. Delmas-Marty and J.R. Spencer (eds.), European Criminal Procedures 218 (Cambridge: Cambridge University Press), at 227. 103 See e.g. the following judgments of the Colombian Constitutional Court: Judgment C-228/02, 3 April 2002, Section VI, Subsection 6.3; Judgment C-651/11, 7 September 2011, Section VI, Subsection 5.1; and Judgment C-516/07, 11 July 2007. 104 18 U.S.C. §3771(a) (2004). 105 See e.g. Trechsel (2005), Human Rights in Criminal Proceedings, at 41–42; Beloof (2007), “Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure,” at 1147, 1149–50; Edna Erez (2004), “Victim Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings,” 40.5 Criminal Law Bulletin 483, at 483, 492, 498; Goldstein (1982), “Defining the Role of the Victim in Criminal Prosecution,” at 547; Pierre Hazan (2006), “Measuring the Impact of Punishment and Forgiveness: a Framework for Evaluating Transitional Justice,” 88 International Review of the Red Cross 19, at 40; Walleyn (2009), “The Prosecution of International Crimes and the Role of Victims’ Lawyers,” at 358; Zappalà (2003), Human Rights in International Criminal Proceedings, at 225. But see Andrew Ashworth (2002), “Victims’ Rights, Defendants’ Rights and Criminal Procedure,” in Adam Crawford and Jo Goodey (eds.), Integrating a Victim Perspective Within Criminal Justice 185 (Aldershot: Ashgate), at 199–200. 106 See below in this chapter, Section III, Subsection A. 107 See above Chapter III, Section III, Subsection A.

reappraising the rights of victims in criminal proceedings generally171 particularly people’s right ‘to state their case,’ confirm an individual’s membership and status in the group and thus play a critical role in people’s perception of the fairness of legal procedures.108 This theory is based on a number of studies that have shown that people’s perception of the fairness and legitimacy of legal proceedings is determined not only by the outcome, but also by whether people are granted the opportunity to present their views. In this respect, it is worth reiterating that pursuant to the right to be heard as understood in this monograph, victims have the right to give their version of events and their views on the clarification of the facts, the identification and prosecution of those responsible, and the compensation due. The significance of procedural justice is also reaffirmed by the wide international and domestic recognition of the rights to a fair hearing and to an effective remedy. I will analyse various empirical studies on this matter below in this chapter.109 III. Addressing the Arguments Against Victim Access to and Participation in Criminal Procedures Several arguments have been made against victim access to and participation in criminal procedures generally. First, it has been argued that victim access to and participation in these procedures undermine the public interest criteria that inform decision-making in such procedures in democratic States. Second, some scholars maintain that the recognition of victim participatory rights in criminal procedures cannot be reconciled with a criminal system based on retribution. Third, there is the argument that victim access and participation divert criminal tribunals from their main objective, namely the determination of the criminal responsibility of those brought before them. Last, it has been maintained that victim participation in criminal procedures infringes on the presumption of innocence of the defendant. This section addresses each of these arguments.110 A. Observance of the Public Interest Criteria that Inform Decision-Making in Criminal Procedures in Democratic States As mentioned in the introduction to this chapter, traditionally many scholars and law makers, especially in the common law tradition, have opposed victim access to and participation in criminal procedures on the grounds that they would impair the public interest criteria that govern decision-making in these procedures in democratic States.111 108 Tyler (2006), Why People Obey the Law, at 117, 137, 175–176. See more generally, Zappalà (2003), Human Rights in International Criminal Proceedings, at 232. 109 See below in this chapter Section III, Subsection E. 110 Other subsections of this chapter address additional arguments against victim access to and participation in criminal procedures generally. Notably, Section IV, Subsection B.i. of this chapter deals with the argument that victim allocution would obstruct the ability of decision-makers in criminal procedures to make reasoned judgment because of its large emotional content. Additionally, Chapter V addresses several arguments against victim access to and participation in criminal proceedings conducted in situations of mass atrocity. 111 See above Chapter III, Section III, Subsection A.

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According to this view, victim access to and participation in criminal procedures would do so as it would introduce individual interests into the enforcement of criminal law.112 I disagree with this view. To begin with, decision-making power in criminal procedures remains in the hands of public officials, even when victims are granted participatory rights in these procedures. Additionally, and more importantly, the recognition of participatory rights in criminal procedures to victims of serious human rights violations does not prevent authorities from paying due regard to public interest criteria in their decision-making. Victim access to and participation in criminal procedures are aimed solely at ensuring that victims’ views are considered, together with other relevant factors, by decision-makers in these procedures.113 B. Victim Access to and Participation in Criminal Procedures Reaffirm the Objectives of Criminal Tribunals Another argument against victim access to and participation in criminal procedures is that they would divert criminal tribunals from their main objective, namely the determination of the criminal responsibility of those brought before them. While this argument has been made specifically regarding criminal tribunals operating in situations of mass atrocity and, particularly, international criminal tribunals,114 it can be made with respect to criminal tribunals generally. While the next chapter will specifically address this argument in respect of criminal tribunals working in situations of mass atrocity,115 it is important here to make clear that this argument fails with respect to criminal tribunals generally because it is based on the incorrect assumption that the only legitimate interest in criminal procedures of victims of serious human rights violations is to seek compensation. As analysed above, victims of

112 See e.g. Buruma (2004), “Doubts on the Upsurge of the Victim’s Role in Criminal Law,” at 9, 13; Mikaela Heikkilä (2004), International Criminal Tribunals and Victims of Crime (Turku: Institute for Human Rights, Åbo Akademi University), at 153–154. 113 See Michael Cavadino and James Dignan (1997), “Reparation, Retribution and Rights,” 4 International Review of Victimology 233, at 237; Beloof (2003), “Constitutional Implications of Crime Victims as Participants,” at 289 (“The [victim] never controls the sentencing decision, but merely provides another perspective to the sentencing authority”); The Victims Committee of the Criminal Justice Section of the American Bar Association (2006), The Victim in the Criminal Justice System, at 6, 8, available at http://meetings.abanet.org/webupload/commup load/CR300000/newsletterpubs/victimsreport.pdf. Accessed on 21 April 2012. See also Davis (1983), “Victim/Witness Noncooperation: A Second Look at a Persistent Phenomenon,” at 298. 114 See e.g. the ICTY’s Rules Committee, Victims’ Compensation and Participation, report attached to a letter dated 12 October 2000 from the President of the ICTY addressed to the UN SecretaryGeneral, in letter dated 2 November 2000 from the UN Secretary-General addressed to the President of the Security Council, 3 November 2000, UN Doc. S/2000/1063, Appendix, paras. 21, 36, 46–47. This report, which was approved by the ICTY’s Plenary, was prepared in response to the Prosecutor’s proposal that victims are granted participation rights and the opportunity to seek compensation before the ICTY. For a scholarly account, see e.g. Charles P. Trumbull IV (2008), “The Victims of Victim Participation in International Criminal Proceedings,” 29 Michigan Journal of International Law 777, at 801. 115 See below Chapter V, Section III. .

reappraising the rights of victims in criminal proceedings generally173 these infringements are also interested in the clarification of the events, and the identification and punishment of those responsible. Therefore, it is clear that the legitimate interests in these procedures of such victims coincide to a large extent with the duties entrusted traditionally to criminal tribunals. Additionally, while I recognise that victim access to and participation in criminal procedures add some responsibilities to criminal tribunals, these duties do not undermine the ability of such tribunals to determine in a fair and expeditious manner the responsibility of those brought before them. What is needed is that victim access to and participation in these procedures be implemented in a manner such that all legitimate interests involved in these procedures are taken into consideration. The next section of this chapter will spell out my proposal in this respect. In sum, this subsection shows that victim access to and participation in criminal procedures supplement, rather than undermine, the task of criminal tribunals of establishing in a fair and expeditious manner the responsibility of those brought before them. C. Victim Participatory Rights in Criminal Procedures Can be Reconciled with a Criminal Justice System Based on Retribution Another argument against granting participatory rights in criminal procedures to crime victims generally is that these rights cannot be reconciled with a criminal justice system based on retribution.116 This argument is based on the assumption that victim access to and participation in criminal procedures are mechanisms of restorative justice.117 This view is unwarranted as one should distinguish the granting of participatory rights in criminal procedures to crime victims from mechanisms of restorative justice.118 Many States that adopt retribution as the main justification for criminal punishment do grant participatory rights to crime victims in criminal procedures. This is particularly the case in civil law jurisdictions.119 The fact that participatory rights in these procedures do not confer on crime victims decision-making or veto power explains why these rights can be reconciled with a criminal justice system that embraces retribution as the main justification for punishment. Additionally, it is worth reiterating that, as discussed above, victims’ legitimate interests in criminal procedures cover areas traditionally assigned to criminal tribunals, namely the clarification of the events, and the identification and punishment of those responsible. Furthermore, it should be noted that, although views regarding the concept of restorative justice differ, most scholars view it as challenging the very features of criminal justice systems based on retribution. In particular, according to most authors, the 116 See e.g. Gerard J. Mekjan and Mathew C. Varughese (2005), “Hearing the Victim’s Voice: Analysis of Victims’ Advocate Participation in the Trial Proceeding of the International Criminal Court,” 17 Peace International Law Review 1, at 12–13. 117 Id. at 20. 118 See e.g. James Dignan and Michael Cavadino (1996), “Towards a Framework for Conceptualising and Evaluating Models of Criminal Justice from a Victim’s Perspective,” 4 International Review of Victimology 153, at 153–160; Ashworth (2000), “Victims’ Rights, Defendants’ Rights and Criminal Procedure,” at 192. 119 See below Chapter III, Section III, Subsections B and C.

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theory of restorative justice posits that restitution of the victim, rather than punishment, should be the main objective of the criminal justice system.120 In conclusion, while recognising that the granting of participatory rights in criminal procedures to crime victims and the theory of restorative justice share some goals, I consider that it is necessary to distinguish between the two. D. Victim Participation in Criminal Procedures is Consistent with the Presumption of Innocence of the Defendant Additionally, some scholars maintain that the recognition of victim status for the purpose of his or her participation in criminal procedures infringes on the presumption of innocence of the defendant, an element of his or her fair trial rights.121 According to this view, this is so because the recognition of victim status requires judges to consider important elements of the criminal proceedings – i.e. the occurrence of a crime and the harm suffered by the victim –based on a standard of proof lower than that of beyond reasonable doubt.122 This argument is unpersuasive because, as several international instruments and consistent practice in many civil law jurisdictions demonstrate, the determination of victim status for the purpose of his or her participation in criminal procedures is independent of the decision on the criminal responsibility of the defendant. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims lend support for this view, when providing that “[a] person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted ….”123 The UN Declaration on Crime Victims of 1985 states likewise.124 Additionally, no human rights treaty monitoring body has ever found the long-standing practice in many civil law jurisdictions granting victims’ participatory rights in criminal procedures contrary to the presumption of innocence of the defendant.125 The practice of the ICC also demonstrates that the determination of victim status for the purpose of his or her participation in criminal procedures is consistent with the presumption of innocence of the defendant. In Lubanga, the ICC’s Pre-Trial Chamber I endorsed this view, maintaining that any other approach would mean that “the

120 See e.g. Randy E. Barnett, “Restitution: A New Paradigm of Criminal Justice,” 87 Ethics 279, at 287–291. 121 See e.g. ICCPR, Art. 14, para. 2. 122 See e.g. Mugambi Jouet (2007), “Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court,” 26 Saint Louis University Public Law Review 249, at 258, 274. 123 The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, para. 9. For a scholarly account, see Carsten Stahn, Héctor Olásolo and Kate Gibson (2006), “Participation of Victims in Pre-Trial Proceedings of the ICC,” 4 Journal of International Criminal Justice 219, at 236. 124 The UN Declaration on Crime Victims of 1985, para. 2 (providing that “[a] person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted ….”). 125 See above Chapter III, Section III, Subsections B and C.

reappraising the rights of victims in criminal proceedings generally175 procedural framework provided for in the ICC Statute and the Rules [has to be] considered an infringement per se of the principle of innocence of Thomas Lubanga Dyilo.”126 E. Psychological Effects of Victim Access to and Participation in Criminal Procedures Pursuant to the Rights Identified in this Monograph One important policy aspect of access to and participation in criminal procedures for victims of serious human rights violations is their psychological effects on victims. This subsection addresses this aspect. In order to do so, I analyse several relevant theories and qualitative studies, as well as a number of empirical studies. Despite this monograph’s recognition of the special nature of serious human rights violations, this subsection covers studies carried out on the involvement in criminal proceedings of crime victims generally. I do so because there are very few studies on the psychological effects of the involvement in criminal procedures of victims of serious human rights violations. For the same reason, and notwithstanding the different nature of the proceedings before criminal courts and those before truth commissions, I also analyse studies on the psychological effects of victim involvement in truth commissions. While recognising the need for more empirical research on the psychological effects of victim access to and participation in criminal procedures pursuant to the rights identified in this monograph, this subsection finds that available evidence indicates that such access and participation can be psychologically beneficial for victims. To begin with, victim access to and participation in criminal procedures pursuant to the rights identified in this book can be psychologically beneficial as they give victims the opportunity to actively participate and provide significant input in the procedures. The above-analysed theory of procedural justice provides the theoretical basis for this view. According to this theory, procedural justice aspects, particularly people’s right ‘to state their case,’ confirm an individual’s membership and status in the group and thus play a critical role in people’s perception of the fairness of legal procedures.127 In addition, the opportunity to actively participate and provide significant input in criminal procedures is of utmost importance for victims of serious human rights violations because of the nature of these infringements and the context in which such violations often take place. As discussed earlier, these violations infringe upon funda­ mental rights of individuals, and are often perpetrated with the active involvement of State officials and surrounded by official denials and cover-ups.128 As analysed above, because of the official and public nature of criminal proceedings, these proceedings 126 See ICC, Prosecutor v. Lubanga, Decision on Second Defence Motion for Leave to Appeal, PreTrial Chamber I, Judge Sylvia Steiner: Single Judge, 28 September 2006, ICC-01/04-01/06-489, at 10. 127 Tyler (2006), Why People Obey the Law, at 117, 137, 175–176. See, more generally, Zappalà (2003), Human Rights in International Criminal Proceedings, at 232. 128 See e.g. Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 18–19; Tutu (1999), No Future Without Forgiveness, at 87; Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 15. For empirical studies confirming this, see, in addition to the empirical studies discussed below in this subsection, those analysed in this chapter in Section II, Subsection A.i; and in Chapter V, Section IV, Subsection A.

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constitute, among other things, a significant means for public acknowledgment of what happened.129 The findings of the two above-mentioned empirical studies on victims’ perceptions of the work of, and their participation in the proceedings before, the ECCC provide support for this view. The empirical study carried out by Phuong N. Pham et al. found that the two most important motivations for the participation of victims in the proceedings before the ECCC were to obtain justice for themselves and/or their relatives (69%), and to know the truth about what happened to their relative (43%).130 Likewise, the empirical study conducted by Nadine Stammel et al. found that according to victim participants and a number of Cambodians who lived when the crimes investigated by the ECCC occurred who were interviewed between 3 October 2008 and 22 May 2009, bringing justice was the most frequent reason for victims to seek participation before the ECCC.131 The findings of the above-discussed empirical study of the perceptions and experiences of the actors involved in individual cases before the Inter-American system for the protection of human rights also lend support for this argument. As mentioned earlier, notwithstanding the different nature of the proceedings before the Inter-American human rights bodies, the fact that most of the cases before these bodies have involved serious human rights violations makes the findings of this study relevant for the purposes of this book. According to this study, not only the benefits obtained as a result of the judgment, but also the procedures in themselves can serve to address the needs of victims.132 More specifically, the study found that for the victims who were interviewed and in whose cases a hearing was held, the hearing was very important. Among the chief reasons for this, the study found the desire of victims to provide testimony before a judicial body,133 and to contribute to uncovering the truth and the pursuit of justice.134 Victim access to and participation in criminal procedures pursuant to the rights identified in this monograph also provide an opportunity for the court to recognise the victim as the aggrieved party.135 In this respect, it should be noted that empirical studies have 129 See Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 18–19, 41. See also Tutu (1999), No Future Without Forgiveness, at 87; Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 15. For the importance that official responses to serious human rights violations have for victims of these violations, see e.g. Hayner (2011), Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, at 20–21; Freeman (2006), Truth Commissions and Procedural Fairness, at 27; Margaret Popkin and Naomi Roht-Arriaza (1995), “Truth as Justice: Investigatory Commissions in Latin America,” 20 Law and Society Inquiry 79, at 99; Zalaquett (1992), “Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations,” at 1437. 130 Pham et al. (2011), “Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia,” at 273–274. 131 Stammel et al. (2010), The Survivors’ Voices: Attitudes on the ECCC, the Former Khmer Rouge and Experiences with Civil Party Participation, at 34. 132 Beristain (2008), Diálogos sobre la Reparación: Experiencias en el Sistema Interamericano de Derechos Humanos, Vol. I, at 14, 203. 133 Id. at 185–186. 134 Id. at 189. 135 Erez (2004), “Victim Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings,” at 498. See also Mark

reappraising the rights of victims in criminal proceedings generally177 found that crime victims express satisfaction when their statements in their Victim Impact Statements are acknowledged by the judge in sentencing remarks.136 Additionally, granting victims of serious human rights violations participatory rights in criminal proceedings is a symbolic act for the recognition of their dignity.137 More specifically, granting victims an independent right to participate in these proceedings can reduce their perceptions of inequity138 and the feelings of helplessness and lack of control139 which are often caused by serious criminal offences.140 The well-accepted proposition among psychologists that other people’s responses and interactions play a key role in the recovery of victims provides the theoretical basis of these therapeutic effects of victim participatory rights in criminal procedures. Psychologists explain this by stating that other people’s responses and interactions provide critical inputs for the rebuilding of victims’ basic beliefs about the world – including about their self-worth, often destroyed as a result of serious offences.141

Freeman and Priscilla Hayner (2005), “Truth-Telling,” in David Bloomfield, Teresa Barnes and Luc Huyse (eds.), Reconciliation After Violent Conflict: A Handbook 122 (Stockholm: International Institute for Democracy and Electoral Assistance), at 134; Stahn, Olásolo and Gibson (2006), “Participation of Victims in Pre-Trial Proceedings of the ICC,” at 221. 136 Julian V. Roberts and Edna Erez (2004), “Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements,” 10 International Review of Victimology 223, at 231; Erez (2004), “Victim Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings,” at 498. 137 See e.g. Edna Erez (1990), “Victim Participation in Sentencing: Rhetoric and Reality,” 18 Journal of Criminal Justice 19, at 23; Mary Margaret Giannini (2008), “Equal Rights for Equal Rites?: Victim Allocution, Defendant Allocution, and the Crime Victims’ Rights Act,” 26 Yale Law and Policy Review 431, at 484; Jayne W. Barnard (2002), “Allocution for Victims of Economic Crimes,” 77 Notre Dame Law Review 39, at 41; Richard A. Bierschbach (2006), “Allocution and the Purposes of Victim Participation under the CVRA,” 19 Federal Sentencing Reporter 44, at 46. For a similar conclusion with respect to victim participation in the work of truth commissions, particularly their participation in public hearings, see Freeman (2006), Truth Commissions and Procedural Fairness, at 82, 223. 138 Dean G. Kilpatrick and Randy K. Otto (1987), “Constitutionally Guaranteed Participation in Criminal Proceedings,” 34 Wayne Law Review 7, at 18–19, 22, 26–27. See also Giannini (2008), “Equal Rights for Equal Rites?: Victim Allocution, Defendant Allocution, and the Crime Victims’ Rights Act,” at 449–453, 470; Erez (1990), “Victim Participation in Sentencing: Rhetoric and Reality,” at 23–24. 139 See e.g. Erez (1990), “Victim Participation in Sentencing: Rhetoric and Reality,” at 23–24; Kilpatrick and Otto (1987), “Constitutionally Guaranteed Participation in Criminal Pro­ ceedings,” at 19; Bierschbach (2006), “Allocution and the Purposes of Victim Participation under the CVRA,” at 46; Pamela Tontodonato and Edna Erez (1994), “Crime, Punishment, and Victim Distress,” 3 International Review of Victimology 33, at 35. 140 See e.g. Kilpatrick and Otto (1987), “Constitutionally Guaranteed Participation in Criminal Proceedings,” at 19. 141 Ronnie Janoff-Bulman (1992), Shattered Assumptions: Towards a New Psychology of Trauma (New York: The Free Press), at 142–143, 146, 172–173. See also Judith Lewis Herman (2001), Trauma and Recovery (London: Pandora), at 214; James W. Pennebacker (1990), Opening Up: The Healing Power of Expressing Emotions (New York: The Guilford Press), at 109; Ervin Staub (1996), “Breaking the Cycle of Violence: Helping Victims of Genocidal Violence Heal,” 1 Journal of Personal and Interpersonal Loss 191, at 193–195.

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The response of State authorities is particularly important for victims of serious human rights violations. As discussed earlier, this is due not only to the fact that these authorities are the representatives of the society, but also to the nature of these infringements and context in which these violations often occur. As analysed above, these violations involve the infringement of fundamental rights of individuals, and often take place with the involvement of State officials and are surrounded by official denials. The abovementioned study of the perceptions and experiences of the various actors involved in individual cases before the Inter-American system for the protection of human rights confirms this. It found that a critical reason why the hearing was very important for the victims interviewed and in whose cases a hearing was held, was that it is recognition of their effort to bring the case before the Inter-American system for the protection of human rights and of their dignity.142 Regarding empirical studies, it is worth noting that very few such studies have measured whether access to and participation in criminal procedures for victims of serious human rights violations pursuant to the rights identified in this monograph or similar ones increase victim satisfaction with the criminal justice system or, more generally, can be psychologically beneficial for them. Only the two above-discussed empirical studies on the experiences of victims who participated in the ECCC proceedings pursuant to the original provisions of the ECCC, granting victims wide participatory rights, appear to have done so. These studies found that these victims viewed the experience of participating in the ECCC proceedings positively. The above-mentioned empirical study conducted by Nadine Stammel et al. in two rounds of interviews – the first took place between 3 October 2008 and 22 May 2009 and the second was held between 2 November 2010 and 10 December 2010 – found that: 90% of [those interviewed in the first round of interviews] said that, with the knowledge they had today, they would apply again as a Civil Party—84.1 percent said “definitely yes” and 5.8 percent said ‘rather yes’.143

The findings from the second round of interviews were similar. The study states that “when [victim participants] were asked whether, with the knowledge they had today, they would apply again as a Civil Party, 85 percent said yes.”144 More generally, the study concludes that: [W]e found a high level of appreciation for the ECCC in survivors of the Khmer Rouge regime. Additionally Civil Party applicants did not report negative consequences in relation to their applications to the ECCC. Furthermore we did not find that Civil Party applicants in this survey were unsatisfied with the court’s work or that they mistrusted the court.145

The above-discussed study by Phuong N. Pham et al., conducted nearly a year after the ECCC trial in Case 001 ended, had similar findings. The interviewers asked the civil parties,

142 Beristain (2008), Diálogos sobre la Reparación: Experiencias en el Sistema Interamericano de Derechos Humanos, Vol. I, at 183. 143 Stammel et al. (2010), The Survivors’ Voices: Attitudes on the ECCC, the Former Khmer Rouge and Experiences with Civil Party Participation, at 51. 144 Id. at 65. 145 Id. at 62.

reappraising the rights of victims in criminal proceedings generally179 that is the victim participants, about their knowledge, opinions, attitudes and reactions to the various aspects of the proceedings.146 The study found that: Generally, the Cambodian civil parties in Case 001 viewed the experience of participating positively, and those who provided testimony also viewed that experience positively.147

It should, however, be noted that the work of the ECCC has been criticised because of lack of independence and the handling of subsequent cases, namely Cases 003 and 004. While I will analyse these criticisms in the next chapter, it is worth noting here that wellrecognised institutions such as the International Bar Association have stated that these allegations have tainted the legitimacy of the ECCC and undermined its work.148 It is likely that these criticisms will also have a negative impact on victims’ perceptions of their experience with the ECCC and of its work. Therefore, these factors need to be taken into consideration in future studies analysing victims’ perceptions of the ECCC work. The large majority of the empirical studies so far conducted have measured the effects of either significantly more restrictive ways of victim involvement in criminal proceedings or victim participation in non-judicial settings, such as truth commissions. Regarding the former, it should first be mentioned that an empirical study conducted in the U.S. that measured the effects of victim rights more restrictive than those identified here,149 concluded that victims’ participatory rights in criminal procedures increase their satisfaction with the criminal justice system and, more specifically, found that victims expressed a higher satisfaction with the criminal justice system in those U.S. states in which victims’ right to notification, to be present, to be heard and to restitution are better protected.150 A number of empirical studies have examined whether victims’ involvement in criminal proceedings before international tribunals as mere witnesses is therapeutic. Most of these studies have found that victims’ involvement in these proceedings as mere witnesses rarely has a therapeutic effect for victims. In his study based on 127 interviews with victims who gave testimony to the ICTY, Eric Stover found that ICTY trials generally did not have a therapeutic effect for victims who were involved in such trials as witnesses.151 Similarly, the International Federation of Human Rights, in a report on the situation of the victims who gave testimony before the ICTR, found that most of them had been psychologically disturbed as a result of this involvement.152 Likewise, in a similar 146 Pham et al. (2011), “Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia”, at 264–287. 147 Id. at 284. 148 See below Chapter V, Section I, Subsection C.v. 149 I state so because while the study by Kilpatrick et al. measured the psychological effect of victims’ right to notification, to be present, to be heard and to restitution, the right to be heard, the key participation right under my understanding of these rights, was understood in that study in a more restrictive way. See G. Kilpatrick, D. Beatty and S.S. Howley (1998), “The Rights of Crime Victims – Does Legal Protection Make a Difference?,” December 1998, National Institute of Justice Research in Brief, at 4. 150 See id. at 3, 7, 10. 151 Stover (2005), The Witnesses: War Crimes and the Promise of Justice in The Hague, at 88–89, 129 (emphasis added). 152 Fédération Internationale des Ligues des Droits de l’Homme (2002), Entre illusions et désillu­ sions: les victimes devant le Tribunal Pénal International pour le Rwanda (TPIR), Rapport de Situ­ ation N° 343 (Paris: Fédération Internationale des Ligues des Droits de l’Homme), at 7–8, 15.

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study, Dembour and Haslam concluded that the act of testifying does not have a therapeutic effect for most victim-witnesses who appear before the ICTY.153 However, the results of these studies cannot be extrapolated to those instances in which victims participate in criminal proceedings pursuant to the participatory rights identified in this monograph, because, as discussed earlier, there are significant differences between these two types of situations. When victims participate in criminal proceedings pursuant to the participatory rights identified in this study they are free to decide whether to participate in these proceedings and, once they do so, they have far more rights. Notably, by virtue of the right to be heard, victims have the right to give their version of events and their views on the clarification of the facts, the identification and prosecution of those responsible, and the compensation due. In contrast, when victims’ involvement in criminal proceedings is limited to serving as witnesses, they are unable to take the initiative to speak and if they do speak, they are limited to answering the questions put by the parties and the judges. Most of the empirical studies conducted on whether victim involvement in criminal proceedings before international tribunals as mere witnesses is therapeutic have recognised these differences. The above-mentioned report of the International Federation of Human Rights on the situation of the victims who gave testimony before the ICTR distinguished between victim involvement as mere witnesses and victim participation in criminal proceedings as a party. In this respect, the report contrasted the victim’s role before the ICTR with that under the ICC Statute,154 and noted that several victimwitnesses before the ICTR, when interviewed, expressed the view that they would be better off if they could have had a counsel representing them in the proceedings.155 Similarly, Dembour and Haslam mention, among the reasons for their conclusion that the act of testifying does not have a therapeutic effect for most victim-witnesses who appear before the ICTY, the fact that the scope of victim testimony in these instances is limited.156 Additionally, they appear to recognise further the importance of the distinction between victim involvement as mere witnesses and victim participation in criminal proceedings as a party when contrasting victim involvement in the ICTY proceedings with that under the ICC Statute, where victims are granted the right to participate in the proceedings.157 There have also been several empirical studies on whether the submission of a Victim Impact Statement (hereinafter “VIS”) by a crime victim increases his or her satisfaction 153 Marie-Bénédicte Dembour and Emily Haslam (2004), “Silencing Hearings? Victim-Witnesses at War Crime Trials?,” 15 European Journal of International Law 151, at 175. 154 Fédération Internationale des Ligues des Droits de l’Homme (2002), Entre illusions et désillu­ sions: les victimes devant le Tribunal Pénal International pour le Rwanda (TPIR), at 21, 23. 155 Id. at 8. 156 Dembour and Haslam (2004), “Silencing Hearings? Victim-Witnesses at War Crime Trials?, at 154, 158–159, 175. See also Stover (2005), The Witnesses: War Crimes and the Promise of Justice in The Hague, at 129; Minow (1998), Between Vengeance and Forgiveness, at 58; Rosalind Dixon (2002), “Rape as a Crime in International Humanitarian Law: Where to From Here?,” 13 European Journal of International Law 697, at 705–706, 712. 157 Dembour and Haslam (2004), “Silencing Hearings? Victim-Witnesses at War Crime Trials?,” at 176, note 99.

reappraising the rights of victims in criminal proceedings generally181 with the criminal justice system or, more generally, is psychologically beneficial for him or her. The results of these studies are, in fact, conflicting. While at least four studies carried out in England and Wales and Canada concluded that the victim’s opportunity to submit a VIS at sentencing increases his or her satisfaction with the criminal justice system and, more generally, contributes to his or her healing,158 other studies conducted in Australia, Canada, and the U.S. have found no evidence that VIS either has a therapeutic effect or increases victim satisfaction with criminal procedures.159 158 It is worth describing these studies and their findings. In a first study conducted with judges in three Canadian Provinces – British Columbia, Alberta and Manitoba – Roberts and Edgar found that most judges considered that the VIS increases victims’ satisfaction. See Julian V. Roberts and Allen Edgar (2006), Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions: A Survey of Three Jurisdictions (Ottawa: Department of Justice Canada), at 23. In a second study conducted with focus groups made up of victims who submitted a VIS in criminal procedures in four provinces of Canada, Meredith and Paquette found that most victims were positive in their assessment of VIS. Among the reasons for this, the victims interviewed mentioned that: “it enabled them to include in their statement information which they were prevented from providing in their testimony;” and “it allowed them to bring to the court’s attention the total impact of the offence regardless of the specific charges.” Specifically, many of the victims interviewed expressed the view that VIS has a therapeutic value. See Colin Meredith and Chantal Paquette (2001), Summary Report on Victim Impact Statement Focus Groups (Ottawa: Department of Justice), at 10. In a third study carried out in England and Wales, Hoyle, Cape, Morgan and Sanders found that, although the majority of victims who submitted a VIS did not know whether, and did not believe that, their VIS had made a difference to their case, most of them were satisfied with the VIS and with the criminal process. See Carolyn Hoyle, Ed Cape, Rod Morgan and Andrew Sanders (1998), Evaluation of the ‘One Stop Shop’ and Victim Statement Pilot Projects (London: Home Office, Research Development and Statistics Directorate), at 31–33, 43. Lastly, in a study conducted in Canada on victims’ perceptions, Wemmers and Cyr found a clear relationship between victims’ perceptions of fairness and their healing. In particular, the study found that when victims had the perception that the criminal procedures were fair they also considered that they felt better after these procedures. See Jo-Anne Wemmers and Katie Cyr (2005), “Can Mediation Be Therapeutic for Crime Victims? An Evaluation of Victims’ Experiences in Mediation with Young Offenders,” 47 Canadian Journal of Criminology and Criminal Justice 527, at 539–540. 159 In a first study conducted in the U.S. state of California, Villmoare and Neto concluded that “victims who provide VIS were no more likely to feel satisfied than victims who took little or no action,” although they added that some victims considered that allocution had benefited them because it allowed them, among other things, to gain a sense of recognition and participation. See Edwin Villmoare and Virginia V. Neto (1987), Victim Appearances at Sentencing Hearings under the California Victims’ Bill of Rights (Washington, D.C.: U.S. Dept. of Justice), at 49, 60, 62. In a second study conducted in Australia, Erez, Roeger and Morgan found that the submission of a VIS was not an important factor for victims’ satisfaction with criminal procedures. Rather, they found that the factor that most affects victims’ satisfaction is the sentence outcome. See Erez, Roeger and Morgan (1997), “Victim Harm, Impact Statements and Victim Satisfaction with Justice: An Australian Experience,” at 51, 55. See also Edna Erez, Leigh Roeger and Frank Morgan (1994), Victim Impact Statements in South Australia: An Evaluation (Adelaide: South Australian Attorney-General’s Department), at 72–73. In a third study conducted between July 1988 and April 1989 with 293 victims of robbery, nonsexual felonious assault, and burglary in Bronx, New York in the U.S., Davis and Smith concluded that their study did not support the proposition that VIS increase victims’ satisfaction with the criminal justice system. See Robert C. Davis and Barbara E. Smith (1994), “Victim Impact Statement and Victim Satisfaction: An

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While to determine which of these studies best explains the actual situation goes beyond the object of this monograph, it should be mentioned that various aspects of VIS as currently implemented in most common law jurisdictions are viewed by several scholars as an explanation for the finding of some of those studies that VIS neither increases the satisfaction of victims with criminal procedures nor has a therapeutic effect for crime victims.160 In most of the common law jurisdictions that authorise the submission of a VIS, its content is limited to providing information concerning the extent of the harm caused by the offence.161 There is also a lack of clarity in current rules and practice in these jurisdictions as to how VISs should be taken into consideration by decisionmakers.162 In addition, in most of these jurisdictions victims are not allowed to present a VIS orally in court.163 Furthermore, there has been criticism of the fact that a VIS is submitted just once and thus there is a lack of ongoing contact.164 Because of these aspects of VISs, particularly the differences that exist in the substantive scope between it and victim participation pursuant to the rights identified in this monograph, the results of these empirical studies can not be transposed to those instances in which victims participate in criminal proceedings pursuant to the latter. Unfulfilled Promise?, 22 Journal of Criminal Justice 1, at 10. In a fourth study conducted in Canada with prosecutors, defence lawyers, judges, and victim assistance personnel, Wemmers concluded that VIS alone is not therapeutic. See J. Wemmers (2008), “Victim Participation and Therapeutic Jurisprudence,” 3 Victims and Offenders 165, at 172–173. In a last study, Tontodonato and Erez found that victims’ satisfaction with criminal proceedings is mostly determined by the sentencing outcome and, thus, the effect of victims’ participation in this respect is only indirect: through its effect on the type of sentence imposed on the defendant and because it augments the likelihood of receiving restitution. See Tontodonato and Erez (1994), “Crime, Punishment, and Victim Distress,” at 49–51. Although the final study speaks about victims’ participation, this participation is understood as the possibility of filing a VIS and attending to trial sessions and other hearings. That is, a right to be heard as understood in this monograph is excluded. See id. at 37–38, 40. 160 See Erez, Roeger and Morgan (1997), “Victim Harm, Impact Statements and Victim Satisfaction with Justice: An Australian Experience,” at 55. See also Andrew Sanders, Carolyn Hoyle, Rod Morgan and Ed Cape (2001), “Victim Impact Statements: Don’t Work, Can’t Work,” 2001 The Criminal Law Review 447, at 453, 455, 457; Erez, Roeger and Morgan (1994), Victim Impact Statements in South Australia: An Evaluation, at 73. 161 Edwards (2004), “An Ambiguous Participant: The Crime Victim and Criminal Justice DecisionMaking,” at 977. See also Erez, Roeger and Morgan (1997), “Victim Harm, Impact Statements and Victim Satisfaction with Justice: An Australian Experience,” at 55; Erez, Roeger and Morgan (1994), Victim Impact Statements in South Australia: An Evaluation, at 73; Sanders, Hoyle, Morgan and Cape (2001), “Victim Impact Statements: Don’t Work, Can’t Work,” at 453. 162 Sanders, Hoyle, Morgan and Cape, (2001), “Victim Impact Statements: Don’t Work, Can’t Work,” at 453, 455, 457. See also Edwards (2004), “An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making,” at 977; Roberts and Edgar (2006), Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions: A Survey of Three Jurisdictions, at 25. 163 Edwards (2004), “An Ambiguous Participant: The Crime Victim and Criminal Justice DecisionMaking,” at 977. See also Erez, Roeger and Morgan (1997), “Victim Harm, Impact Statements and Victim Satisfaction with Justice: An Australian Experience,” at 55; Sanders, Hoyle, Morgan and Cape, (2001), “Victim Impact Statements: Don’t Work, Can’t Work,” at 453; Erez, Roeger and Morgan (1994), Victim Impact Statements in South Australia: An Evaluation, at 73. 164 Sanders, Hoyle, Morgan and Cape, (2001), “Victim Impact Statements: Don’t Work, Can’t Work,” at 453.

reappraising the rights of victims in criminal proceedings generally183 It is also worth discussing the results of empirical studies carried out on the involvement of victims of serious human rights violations in truth commissions (hereinafter “TCs”). While the nature of the proceedings and the rights conferred to victims before criminal courts as envisaged in this monograph differ from those before TCs,165 victim involvement in TCs shares some common elements with victim access to and participation in criminal proceedings pursuant to the rights identified in this book – i.e. in both, victims of serious human rights violations are given the opportunity to give their version of events in public hearings. Therefore, while the results of the studies conducted on the effects of victim involvement in TCs cannot be completely transposed to victim access to and participation in criminal proceedings according to the rights identified in this monograph, the findings of these studies are worth studying. Empirical studies carried out on the involvement of victims of serious human rights violations in TCs have shown the extreme complexity of measuring victims’ perceptions and, in particular, of determining how much weight victim participation in public hearings had on these perceptions. While, according to accounts by several members of TCs, victim involvement there was generally psychologically beneficial,166 most recent empirical studies on this subject have shown that victim perceptions are mixed and often ambivalent. Victims can express some disappointment, but at the same time satisfaction with their participation in a TC’s activities. In his study which draws on quantitative data 165 Victim access to and participation in criminal proceedings as envisaged in this monograph encompass much more than storytelling. Notably, they also give victims the opportunity to give their views on the clarification of the events, the identity and responsibility of those involved, and the compensation due. In this respect, it is worth noting that all the studies conducted on the psychological effect of victims’ involvement in TCs have been conducted with respect to the South African Truth Commission and that, although the law regulating the functioning of this Commis­sion gave victims some powers that went beyond storytelling, all these studies were limited to measuring the effect of victims’ storytelling before this Commission. Powers encompassing more than storytelling were granted to victims before two committees of the Commission: the Human Rights Violations’ Committee and the Amnesty Committee. In this respect, two provisions are worth noting: first, the TRC Act, § 14 (1) (b) (v), read together with § 30 (2) (c), provides that the HR violations’ Committee shall provide victims with the opportunity to “submit representations” or “to give evidence” at a hearing of the Commission. Additionally, the TRC Act, § 19 (4) (b), referring to the work of the Amnesty Committee, provides for the following rights of victims in cases where a hearing is conducted with respect to an amnesty application: to testify, adduce evidence, and “submit any article to be taken into consideration.” Regarding the scope of empirical studies carried out on the psychological effect of victim involvement in the South African TC, it is worth noting that the relevant criterion these studies used to select the persons surveyed is whether the person testified before one of the TC’s committees. See Ruth Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings;” Kaminer, Stein, Mbanga and Nompumelelo (2001), “The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness among Survivors of Human Rights Abuses,” at 373. 166 See Thomas Buergenthal (1994), “The United Nations Truth Commission for El Salvador,” 27 Vanderbilt Journal of Transnational Law 497, at 539. See also Zalaquett (1992), “Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations”, at 1437. For scholarly accounts, see Popkin and Roht-Arriaza (1995), “Truth as Justice: Investigatory Commissions in Latin America,” at 100, 114; Minow (1998), Between Vengeance and Forgiveness, at 126.

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from focus groups composed of direct and indirect victims of offences within the mandate of the South African TC – i.e. politically motivated gross human rights violations – David Backer illustrates this with his finding that while 56% of the participants in these focus groups considered giving a statement to the TC’s statement takers very upsetting, 64% believed that they gained something positive from submitting a statement.167 Similarly, based on her research with focus groups made up of victims who testified at the public hearings of the Human Rights Violations’ Committee of the South African TC, Ruth Picker states that victims’ feelings about their participation in these hearings can “be described as a complex mixture of satisfaction and disappointment.”168 Additionally, victims’ perceptions differ over time and thus victims have distinct feelings at different points of the TC’s process.169 More importantly, these studies have shown that victims’ perceptions are determined by many factors and that it is often very difficult to determine how much weight a specific set of factors – in this case, victim participation in public hearings – had in these perceptions.170 For instance, empirical studies in the South African TC have shown that most victims who provided a statement or participated in public hearings of the TC, as much as those victims who did not participate, gave considerable importance to obtaining financial compensation and in general to measures addressing social and economic inequalities. In the above-mentioned study, Backer found that almost all participants wanted financial contributions (98%) and special priority for jobs, housing and education (91%).171 Thus the failure of the government to provide full reparations to victims of these violations was ultimately given a major weighting by victims not only on their overall evaluation of the TC,172 but also on their satisfaction with particular processes of the TC – e.g. their participation in its public hearings.173 167 David Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” in Muna Ndulo (ed.), Security, Reconstruction, and Reconciliation: When the Wars End 165 (London: University College London Press), at 181. 168 Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 15, 18. 169 Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” at 181, 183, 185. More generally, see Hazan (2006), “Measuring the Impact of Punishment and Forgiveness: a Framework for Evaluating Transitional Justice,” at 27. 170 See e.g. Hazan (2006), “Measuring the Impact of Punishment and Forgiveness: a Framework for Evaluating Transitional Justice,” at 27. 171 See Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” at 179. See also Timothy Sizwe Phakathi and Hugo van der Merwe (2008), “The Impact of the TRC’s Amnesty Process on Survivors of Human Rights Violations,” in Audrey R. Chapman and Hugo van der Merwe (eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver? 116 (Philadelphia: University of Pennsylvania Press), at 123; Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 5. 172 Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” at 187, 190–193. See also Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 6, 18. 173 Sizwe Phakathi and van der Merwe (2008), “The Impact of the TRC’s Amnesty Process on Survivors of Human Rights Violations,” at 122, 124–125, 127, 132, 140. See also Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 5; Hugo van der Merwe and Audrey R. Chapman (2008), “Did the TRC Deliver?,” in Audrey R. Chapman and Hugo van der Merwe (eds.), Truth and Reconciliation in South Africa: Did the TRC Deliver? 241

reappraising the rights of victims in criminal proceedings generally185 Several empirical studies provide support for this proposition. In explaining the finding of his study that those victims who participated in the South African TC by testifying in public hearings only had, at some stages, a slightly higher level of approval of the TC’s work than those who did not participate in it, David Backer points to the fact that victims’ reactions and perceptions of the TC were considerably affected by broader circumstances, such as social and economic inequality,174 and that victims’ evaluation of the results of the TC’s work was ultimately determined by victims’ complaints about the failure to provide full reparations and a resolution of investigations, and about the lack of follow-up.175 Similarly, in elucidating her finding that the feelings of those victims who testified at the public hearings of the Human Rights Violations’ Committee of the South African TC about this participation were “a complex mixture of satisfaction and disappointment,”176 Ruth Picker states that victims’ perceptions of these hearings were affected by their perception of the TC work in general and, in particular, by the perceived failure of the TC in providing reparations.177 Likewise, in elucidating their finding that victims who testified in the South African TC hearings before the Amnesty Committee felt worse off in some respects after testifying, Timothy Sizwe Phakathi and Hugo van der Merwe maintain that the TC’s failure to fulfil some of its promises, such as providing sufficient financial compensation, providing new information about what happened, why and who ordered the crimes, as well as adopting measures for economic rehabilitation and for addressing social and economic inequality, affected victims’ perception of other TC’s processes.178 Last, it is worth noting an empirical study conducted by Debra Kaminer et al. on the psychiatric status of three groups of individuals who had been victims of serious human rights violations under the apartheid regime, as defined by the TC, namely survivors who had testified publicly before the TC, survivors who had given closed statement to a commission statement-taker, and survivors who did not give either a statement or a public testimony. In explaining their finding that there was “no significant difference in the rates of depression, post-traumatic stress disorder (PTSD) or other anxiety disorders” among the three groups and thus that “the process of giving either public or closed testimony to the truth commission did not have a significant effect on psychiatric health (it had neither a notable therapeutic effect nor a notable counter-therapeutic effect),” the authors of the study pointed out as possible explanation the ongoing exposure to other traumas among this community given the difficult socio-economic conditions they face.179

(Philadelphia: University of Pennsylvania Press), at 277; Kaminer, Stein, Mbanga and Nompumelelo (2001), “The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness Among Survivors of Human Rights Abuses,” at 375–376. 174 Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” at 193. 175 Id. at 190–191. 176 Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 5, 18. 177 Id. at 5–6, 18. 178 Timothy Sizwe Phakathi and Hugo van der Merwe (2008), “The Impact of the TRC’s Amnesty Process on Survivors of Human Rights Violations,” at 122, 124–125, 127, 140. 179 See Kaminer et al. (2001), “The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness Among Survivors of Human Rights Abuses,” at 375.

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In his book on the role of psychology and psychological theory and practice in mechanisms to address mass serious human rights violations, Brandon Hamber elaborates on the theoretical basis for the connection between the social context, understood as determined by social, economic, political and cultural factors, and the individual healing of victims of serious human rights violations. He first submits that these infringements, and political violence in particular, do not merely harm individuals, but also destroy social relations. They affect a victim’s sense of being part of society.180 He also maintains that “it is not only the physical or psychological stress which victims … endured that [determines the trauma], but also how this was mediated [by the social context] at different points over time.”181 In the light of these arguments, he submits that “[individual] healing [from trauma originated by political violence] is dependent upon and interrelated with the social context in a profound way.”182 Thus he recommends that the social context should be a major component of “conceptualising assistance to victims of extreme political traumatisation ….”183 As a case in point, Hamber refers to the South Africa case, in which “[victims’ ongoing social-economic marginalisation] accounts for why … victims evaluate the [TC] more and more negatively over time and feel more distressed by their plight as time passes.”184 Therefore, in societies in transition, Hamber stresses the need for measures to address the political and socio-economic conditions that underlay the conflict or repression. He also maintains that the promotion of social action and civic participation by victims is important for their healing. Social action and civic participation can serve to counter the effects of political violence as they “increase victim levels of empowerment and mastery over the environment.”185 They allow victims to be active agents within their environment and to regain self-control. They also allow victims to influence the political process. Another factor that appears to have negatively affected the satisfaction of the victims who testified in public hearings before the South Africa TC was the fact that several of these victims felt stigmatised because they were put in the public spotlight and their communities had the perception that they appeared there as defendants, not as victims.186 Despite all these factors that make it so difficult to draw conclusions on the therapeutic effect of victims’ participation in TCs’ processes, most empirical studies appear to indicate that storytelling of traumatic events in public settings can be highly emotional and has a considerable potential for re-traumatisation. The above-mentioned empirical study conducted by Ruth Picker, based on research with focus groups made up of victims who testified at the public hearings of the Human Rights Violations’ Committee of the South African TC, found that “a significant deterioration of the overall physical and 180 Hamber (2009), Transforming Societies After Political Violence: Truth, Reconciliation, and Mental Health, at 22, 25. 181 Id. at 200. 182 Id. at 189. 183 Id. at 198. 184 Id. at 202. 185 Id. at 196. 186 See e.g. Backer (2007), “Victims’ Responses to Truth Commissions: Evidence from South Africa,” at 187.

reappraising the rights of victims in criminal proceedings generally187 psychological health after testifying was often reported mainly because ‘traumatising memories were brought back into the present’.”187 The same author identifies, however, a series of measures for minimising the negative effects of public storytelling. First, victims should be fully informed about the tasks and limitations of the TRC and specifically, about what to expect at the hearing.188 Second, it should be ensured that victims are treated with due respect.189 Third, counselling should be provided after testimony is given.190 An alternative is the establishment of victim support groups – made up of victims.191 Fourth, follow-up information regarding the progress of the cases and other matters of concern to victims should be provided.192 Lastly, measures for satisfying other victims’ needs should be taken. For instance, for those impoverished, monetary reparations should be provided.193 Finally, it is worth mentioning the findings of the above-discussed study by Beristain on the perceptions and experiences of the various actors involved in individual cases before the Inter-American system for the protection of human rights. As noted above, while the nature of the proceedings before the Inter-American human rights bodies differs from those before criminal courts, the fact that most of the cases before these bodies have concerned serious human rights violations makes the findings of this study worth discussing for the purposes of this work. While the study recognises that victim participation in these procedures may be stressful situations and proposes a series of measures to minimise that, it concludes that “victims’ overall perception of their participation in the procedures before the Inter-American human rights bodies is in general positive.”194 The main measures that Beristain proposes to minimise the negative effects of victim participation in the procedures before these bodies are the following. First, it is important to tell victims that their participation in these procedures may be stressful situations and ask whether they want to move forward with the case; if their answer is in the affirmative, victims should be prepared regarding what can happen in the procedures. Specifically, they should be prepared for participation in public hearings, having it explained to them what this will entail and being able to take part in simulations of the procedure.195 Second, they should be treated with respect and their needs should be taken into consideration.196 187 Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 10, 16. See also Kaminer, Stein, Mbanga and Nompumelelo (2001), “The Truth and Reconciliation Commission in South Africa: Relation to Psychiatric Status and Forgiveness Among Survivors of Human Rights Abuses,” at 375. See, generally, Stover (2005), The Witnesses: War Crimes and the Promise of Justice in The Hague, at 32, 129; Freeman and Hayner (2005), “Truth-Telling,” at 134–135. 188 Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 16. 189 Id. at 16. 190 Id. at 16. See also Hayner (2011), Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New York: Routledge), at 156–158. 191 Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 17. 192 Id. at 16. 193 Id. at 17. 194 Beristain (2008), Diálogos sobre la Reparación: Experiencias en el Sistema Interamericano de Derechos Humanos, Vol. I, at 107. 195 Id. Vol. I, at 107, 118, 204. 196 Id. Vol. I, at 112, 116, and 123.

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Third, they should be provided with psychosocial support from the beginning of the procedures.197 Last, procedures should be carried out on an expeditious basis.198 In conclusion, while more empirical research is required for determining the psychological effects of victim access to and participation in criminal procedures pursuant to the rights identified in this study, available evidence indicates that such access and participation can increase victim satisfaction with criminal procedures and be psychologically beneficial for them. Although measures should be taken to minimise the negative effects the element of public storytelling may have on victims, the fact that pursuant to the participatory rights identified in this monograph victims can, through official and public mechanisms, actively contribute to uncovering the truth and identifying those responsible provide strong basis for the proposition that these rights can increase victim satisfaction with criminal procedures and serve, to some extent at least, to address the psycho­logical and emotional consequences of serious human rights violations on victims.199 The fulfilment of certain conditions is particularly important in order that this can be achieved. First, once victims approach the courts, they should be informed of their rights and what they can expect from their participation in criminal proceedings. In particular, victims should be informed that the hearings and delivering their testimony there may be traumatic experiences.200 Second, judges should ensure that the rights of victims in criminal proceedings are observed and, particularly, that they are treated with due respect.201 In common law jurisdictions, in particular, where questioning is undertaken by the parties, judges should intervene to curtail inappropriate and unnecessarily aggressive questioning.202 Pieces of legislation and case law in various common law jurisdictions have affirmed this power of trial judges under this legal tradition.203 In this respect, it is worth 197 Id. Vol. I, at 117. 198 Id. Vol. I, at 124. 199 I recognise that the degree of the effect varies according to the cultural context and the particular characteristics of the concerned individual. See e.g. Brandon Hamber (2005), “Healing,” in David Bloomfield, Teresa Barnes and Luc Huyse (eds.), Reconciliation After Violent Conflict: A Handbook 77 (Stockholm: International Institute for Democracy and Electoral Assistance), at 78–79. 200 See Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 16. 201 See id. at 16. 202 As has been rightly pointed out, questioning in common law jurisdictions is more aggressive than in civil law ones as defence lawyers view prosecutor’s witnesses as antagonists and thus are prone to be more hostile in their questioning than judges, who conduct the questioning in civil law jurisdictions. See e.g. Jamie O’Connell (2005), “Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?”, 46 Harvard International Law Journal 295, at 334. See also Haji N.A. Noor Muhammad (1981), “Due Process of Law for Persons Accused of Crime,” in Louis Henkin (ed.), The International Bill of Human Rights: The Covenant on Civil and Political Rights 138 (New York: Columbia University Press), at 154; Louise Ellison (2001), The Adversarial Process and the Vulnerable Witness (Oxford: Oxford University Press), at 104. 203 R v. Brown (Milton), (1998) 2 Cr App R 364, The Times (7 May 1998) (finding that in addition to ensuring the defendant’s right to a fair trial, the trial judge is obliged to protect the interests of witnesses when describing traumatic incidents and, in particular, that the judge should intervene when the defendant seeks by any means to intimidate, dominate or humiliate the witness). R. v. Kalia, Court of Appeal, (1974) 60 Cr. App. R. 200. Ellison reports that the Law Reform

reappraising the rights of victims in criminal proceedings generally189 stressing that several empirical studies have found that cross-examination is the element that most upsets and stresses victims in criminal proceedings.204 Third, rules should make clear that decision-makers are bound to consider victims’ views. As mentioned earlier, empirical studies on VIS have shown that it is only when victims feel that their voice is taken into consideration by decision-makers that having that voice is psychologically beneficial for victims.205 Fourth, legal representation should, when possible, be offered to those victims who decide to participate in criminal proceedings given the technical nature of these proceedings.206 Last, and because granting participatory rights in criminal proce­duresdoes not suffice to satisfy the psychological needs of victims of serious human |rights violations,207

Commission of Queensland and the New Zealand Law Commission have recommended the adoption of provisions enabling trial courts to disallow a question put to a witness in crossexamination if the question is misleading, unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. See Ellison (2001), The Adversarial Process and the Vulnerable Witness, at 132–133 (citing Evidence Act 1995 (Cth) 42(2)(d); and Evidence Act 1995 (NSW) 41(1), S. 42). For a scholarly account, see Mandy Burton, Roger Evans and Andrew Sanders (2007), “Vulnerable and Intimidated Witnesses and the Adversarial Process in England and Wales,” 11 the International Journal of Evidence and Proof 1, at 23. 204 In a study assessing the impact of the reforms introduced by the English Youth Justice and Criminal Evidence Act of 1999 with respect to vulnerable and intimidated witnesses, Hamlyn et al. found that “most victims and prosecution witnesses (71% in phase 2) who were crossexamined said that their experience had upset them.” Additionally, they include victims among the groups particularly likely to be upset by their experience of cross-examination (53% compared with 38% of other prosecution witnesses). See Becky Hamlyn, Andrew Phelps, Jenny Turtle and Ghazala Sattar (2004), Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses, Home Office Research Study 283 (London: Home Office), at 53. For scholarly accounts, see e.g. Burton, Evans and Sanders (2007), “Vulnerable and Intimidated Witnesses and the Adversarial Process in England and Wales,” at 20; Ellison (2001), The Adversarial Process and the Vulnerable Witness at 159; Christoph J.M. Safferling (2001), Towards an International Criminal Procedure (Oxford: Oxford University Press), at 371; Hazan (2006), “Measuring the Impact of Punishment and Forgiveness: a Framework for Evaluating Transitional Justice,” at 40. Concerning cross-examination before international criminal tribunals, see Elizabeth Neuffer (2002), The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda (New York: Picador), at 298. 205 For example, the lack of clarity in current rules and practice in several common law jurisdictions as to how VISs are taken into consideration by decision-makers has been seen as weakening VIS’ potential therapeutic effect. See Sanders, Hoyle, Morgan and Cape (2001), “Victim Impact Statements: Don’t Work, Can’t Work,” at 453, 455, 457. See also Edwards (2004), “An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making,” at 977; Roberts and Edgar (2006), Victim Impact Statements at Sentencing: Judicial Experiences and Perceptions: A Survey of Three Jurisdictions, at 25. 206 Sizwe Phakathi and van der Merwe (2008), “The Impact of the TRC’s Amnesty Process on Survivors of Human Rights Violations,” at 135. See also van der Merwe and Chapman (2008), Did the TRC Deliver?,” at 268. 207 See e.g. Stover (2005), The Witnesses: War Crimes and the Promise of Justice in The Hague, at 129. Laurel E. Fletcher and Harvey M. Weinstein (2002), “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation,” 24 Human Rights Quarterly 573, at 592–595.

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supplementary measures are needed. In particular, after testimony is given, counselling should be provided or victim support groups should be established.208 Additionally, it should be stressed that, as several of the above-discussed empirical studies on the South African TC have shown, victim satisfaction with mechanisms for dealing with serious human rights violations, including prosecutions, is influenced by many factors, both external and internal. Examples of the former are the broader institutional and social context in which these mechanisms are established and operate and whether other complementary mechanisms, such as reparations, are put in place and function effectively.209 Internal factors include whether those most responsible are effectively prosecuted, the proportionality between the sentence imposed and the gravity of the crime committed, and the length of the proceedings.210 Therefore, in examining the level of victim satisfaction with specific mechanisms for dealing with serious human rights violations such as prosecution and, in particular, with victim access to and participation in criminal procedures, all these factors should be taken into consideration.211 IV. Implementing Victim Access to and Participation in Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations The objective of this section is to specify, based on the discussion in the previous three sections, how victim access to and participation in criminal procedures conducted in situations of isolated serious human rights violations should be implemented. In order to do so, I take into consideration both victims’ legitimate interests at the various stages of criminal procedures and the principles governing the system of public prosecution of criminal offences – including the need to respect the rights of the defendant.212 Based on this approach, and drawing on the case law of the ECtHR and the IACtHR, some United Nations instruments, and comparative criminal law, this section identifies a series of rights in criminal procedures for victims of these violations. A. The Investigation Phase Two initial rights of victims of serious human rights violations in the area of criminal justice are, according to international instruments and case law, their rights to submit a complaint to the authorities regarding any of these violations, and to have an effective and 208 See e.g. Picker (2005), “Victims’ Perspectives about the Human Rights Violations Hearings,” at 16–17; Hayner (2011), Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, at 156–158. 209 Nettelfield (2010), Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State, at 19, 21, 272. 210 Orentlicher (2010), That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia, at 17, 51, 72. See also Victims’ Rights Working Group (2010), The Impact of the Rome Statute System on Victims and Affected Communities (London: Victims’ Rights Working Group), at 14. 211 Nettelfield (2010), Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State, at 19, 21, 272. 212 For a similar approach, see Fenwick (1997), “Procedural ‘Rights’ of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?,” at 322–323.

reappraising the rights of victims in criminal proceedings generally191 impartial investigation carried out with reasonable expedition.213 As regards the latter, victims should, in particular, have the right to resort to the administration of justice to obtain an investigation conducted by a competent, impartial and independent authority within a reasonable period of time.214 After an investigation has been conducted, a decision regarding the institution of criminal proceedings is to be made. The question then arises as to whether victims, in addition to prosecution authorities, ought to have the power to institute criminal proceedings. Clearly, the public interest is involved in the decision to institute criminal proceedings since it relates to the enforcement of criminal law in concrete cases and the commitment of a State’s human and economic resources. Because decisions in this area require balancing resource constraints and prioritising cases,215 I answer this question in the negative. Accordingly, it should be up to State officials to decide whether or not to institute criminal proceedings.216 This view is consistent with current international human rights law, which does not recognise a right for victims of human rights violations to institute criminal procedures on their own. While it should be up to State authorities to decide whether to institute criminal proceedings, when doing so these authorities should observe some principles: first, in deciding whether to prosecute or not a case, prosecutors should take into consideration the interests and views of victims.217 Second, in cases where these authorities decide not to prosecute an alleged serious human rights violation, they should communicate promptly the reasons for their decision to victims. As analysed above, the ECtHR has endorsed this view by holding that in cases of alleged serious human rights violations, prosecutors should, as a general rule, provide victims with the reasons for their decision not to prosecute.218 According to the ECtHR, there are three rationales for this requirement: first, it grants victims access to information about a matter of crucial importance to them;

213 See above Chapter III. 214 See e.g. the case law of the IACtHR above at Chapter III, Section III, Subsection A. For a scholarly account, see e.g. Beloof (1999), “The Third Model of Criminal Process: The Victim Participation Model,” at 309. 215 See e.g. U.S. Supreme Court, Wayte v. United States, 470 U.S. 598 (1985), at 607; Jörg-Martin Jehle (2006), “The Function of Public Prosecution within the Criminal Justice System,” in JörgMartin Jehle and Marianne Wade (eds.), Coping with Overloaded Criminal Justice Systems: the Rise of Prosecutorial Power Across Europe 3 (Berlin: Springer), at 63–64; Yue Ma (2008), “A Comparative View of Judicial Supervision of Prosecutorial Discretion,” 44 Criminal Law Bulletin 31, at 31; Rachel E. Barkow (2008), “The Ascent of the Administrative State and the Demise of Mercy,” 121 Harvard Law Review 1332, at 1354. 216 See e.g. Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State,” at 112–114. See also Hoyle, Cape, Morgan and Sanders (1998), Evaluation of the ‘One Stop Shop’ and Victim Statement Pilot Projects, at 5. 217 See e.g. the UK Crown Prosecution Service (2004), The Code for Crown Prosecutors, para. 5.12 (requiring prosecutors when deciding whether to prosecute or not a case to take into account the consequences for the victim of any such decision, and any views expressed by the victim or the victim’s family). See also Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State,” at 115. 218 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 118.

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second, it allows victims to pursue legal challenges against this decision; and, lastly, it enhances public confidence in the criminal justice system.219 Some domestic courts have also expressly recognised that such a requirement is, in certain circumstances at least, imposed by current international human rights law. For instance, in R. v. DPP, ex parte Manning et al., an English court held that in the event of an allegation of a violation of the right to life the prosecutor should give reasons to the victim regarding his decision not to prosecute, unless there are compelling grounds for not doing so.220 The Court based this ruling, inter alia, on what human rights instruments provide for and what supervisory bodies have held on this matter.221 Several authors have also emphasised the importance of this requirement, using rationales very similar to those of the ECtHR.222 Additionally, there is a trend in international practice towards recognising a victim’s right to ask for judicial review of a public prosecutor’s decision not to prosecute an alleged serious human rights violation. The recognition of such a right is of particular importance in those States in which the opportunity principle, also known as the expediency principle, governs the institution of criminal proceedings, where prosecutors enjoy a wide discretion in deciding whether or not to prosecute a case.223 Two Recommendations of the Council of Europe expressly grant crime victims this right. The Recommendation (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure provides for the victim’s right to ask for a review by a competent authority of a decision not to prosecute, or the right to institute private proceedings.224 More specifically, Recommendation (2000) 19 on the Role of Public Prosecution in the Criminal Justice System enshrines the victim’s right to seek judicial review of a public prosecutor’s decision not to prosecute.225 While the ECtHR has fallen short of requiring judicial review of a prosecutor’s decision not to prosecute an alleged serious human rights violation, this Court has in several cases stressed the importance of this review when criticising the failure of State authorities

219 Id. para. 117. 220 R. v. DPP, ex parte Manning and another, [2001] Q.B. 330, para. 33. 221 Id. para. 33. 222 See Brienen and Hoegen (2000), Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, at 1157. See also Ma (2008), “A Comparative View of Judicial Supervision of Prosecutorial Discretion,” at 51. 223 Brienen and Hoegen (2000), Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, at 15. It should, however, be noted that in common law systems, where the expediency principle is widely adopted, prosecutorial discretion is typically balanced by institutional accountability as the prosecution authorities are either part or under the supervision of the executive branch or directly elected. See Carsten Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” in Carsten Stahn and Goran Sluiter (eds.), The Emerging Practice of the International Criminal Court 247 (Leiden: Martinus Nijhoff Publishers), at 253. 224 Adopted by the Committee of Ministers of the Council of Europe on 28 June 1985. See para. B.7. of this Recommendation. 225 Adopted by the Committee of Ministers of the Council of Europe on 6 October 2000. See para. 34 of this Recommendation.

reappraising the rights of victims in criminal proceedings generally193 either to notify a decision not to prosecute,226 or to provide the reasons for such a decision.227 Scholars put forward several arguments for a victim’s right to ask for judicial review of a public prosecutor’s decision not to prosecute a case: first, the indeterminacy of the concept of public interest that informs prosecutorial decision-making;228 second, this right permits to have a prosecutor’s decision not to prosecute re-examined by a neutral and objective authority;229 third, it enhances accountability and serves as a means for allowing citizens to express their view in this respect;230 and, last, it prevents widespread use of prosecution discretion from undermining the principles of legality and the rule of law.231 However, this trend has not taken place unchallenged. Courts in certain States – particularly in the U.S. – and some authors, have declined to recognise a wide victim right to seek judicial review of a prosecutor’s decision not to prosecute a case. The main rationales for this approach are the principle of separation of powers and the view that judicial review would undermine law enforcement effectiveness.232 While there is some validity in the latter argument, it is clear that, given the gravity of serious human rights violations, judicial review of prosecutorial decisions regarding these infringements is more than warranted.233 Several States either forbid prosecutors’ decisions not to prosecute on discretionary grounds regarding serious offences or subject them to automatic judicial approval.234

226 ECtHR, Öğur v. Turkey, Judgment of 20 May 1999, Application No. 21594/93, para. 92. 227 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 117. 228 See e.g. Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State,” at 120. 229 Brienen and Hoegen (2000), Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, at 1164. 230 Ashworth (1986), “Punishment and Compensation: Victims, Offenders and the State,” at 108. See also Ma (2008), “A Comparative View of Judicial Supervision of Prosecutorial Discretion,” at 51. 231 Ashworth (1998), The Criminal Process: an Evaluative Process, at 303. 232 See e.g. U.S. Supreme Court, Wayte v. United States, 470 U.S. 598 (1985), at 607; U.S. v. Chemical Foundation, 272 U.S. 1 (1926); U.S. v. Armstrong, 517 U.S. 456 (1996), at 464. As to the separation of powers’ argument, see Laurence H. Tribe (2005), “In Support of a Victims’ Rights Constitutional Amendment,” 9 Lewis and Clark Law Review 659, at 661. 233 See e.g. Jehle (2006), “The Function of Public Prosecution within the Criminal Justice System,” at 24. See, generally, Beloof (1999), “The Third Model of Criminal Process: The Victim Participation Model,” at 313–314. 234 See Ma (2008), “A Comparative View of Judicial Supervision of Prosecutorial Discretion,” at 42, 45. See, generally, Brienen and Hoegen (2000), Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, at 1157 (stating that seven European States – i.e. Germany, Italy, Malta, the Netherlands, Portugal, certain Swiss cantons and Turkey – grant victims the right to seek judicial review of a prosecutor’s decision not to prosecute).

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B. The Trial Phase Because of the foundational nature of my approach to this subject as outlined in the introduction, the following two subsections focus on examining whether victims should have the rights to be heard, and to offer, examine and challenge evidence at the trial phase. Accordingly, other questions which have arisen regarding victim access to and participation in criminal procedures, such as victim access to records and evidence at different stages of the procedures, and the questioning of witnesses, are not dealt with here.235 i. The Right to be Heard The victim’s right to be heard, also known as the right to allocution,236 is the most important of the victim’s participatory rights. This right is increasingly recognised by human rights treaty monitoring bodies and by the domestic legislation of several States. As ana­ lysed in the previous chapter, three international human rights supervisory bodies have recognised this right, namely the IACtHR, the ECtHR and the CERD Committee.237 With respect to domestic jurisdictions, it is worth noting that in addition to most civil law jurisdictions, this right is expressly recognised by the U.S. Crime Victims’ Rights Act of 2004 and by amendments to several U.S. state constitutions aimed at enhancing victims’ rights.238 This right has, however, been subjected to many criticisms because of its perceived effects on the principles that govern criminal justice systems in democratic States, particularly the ability of decision-makers in criminal procedures to make reasoned judgment.239

235 For a discussion on the ICC case law on access to records and evidence by victims at different stages of the procedures, see ICC-Office of the Prosecutor, Policy Paper on Victims’ Participation, 12 April 2010, RC /ST/V/M.1, at 16–18. For the issue of questioning of witnesses by the victim or his or her representative, see Prosecutor v. Lubanga Dyilo, Decision on the Manner of Questioning Witnesses by the Legal Representatives of Victims, Trial Chamber I, 16 September 2009, ICC-01/0-01/06-2127, para. 29; Prosecutor v. Katanga et al., Decision on the Modalities of Victim Participation at Trial, Trial Chamber II, 22 January 2010, ICC-01/04-01/07-1788-tENG, para. 78; ICC-Office of the Prosecutor, Policy Paper on Victims’ Participation, 12 April 2010, RC / ST/V/M.1, at 20. 236 Carolyn Hoyle and Lucia Zedner (2007), “Victims, Victimization and Criminal Justice,” in Mike Maguire, Rod Morgan and Robert Reiner (eds.), The Oxford Handbook of Criminology 461 (Oxford: Oxford University Press), at 474. 237 For the ECtHR’s case law, see above Chapter III, Section II, Subsection B. For the IACtHR’s case law, see above Chapter III, Section II, Subsection A. For the CERD, see above Chapter III, Section I, Subsection A.iv. 238 For the recognition of this right in civil law jurisdictions, see above Chapter III, Section I, Subsection C. For the recognition of this right in the U.S. federal legislation, see 18 U.S.C. §3771(a) (2004). For analyses of the recognition of this right in U.S. state constitutions’ amendments, see Barajas and Nelson (1997), “The Proposed Crime Victims’ Federal Constitutional Amendment: Working Toward a Proper Balance,” at 13; Aaronson (2008), “New Rights and Remedies: The Federal Crime Victims’ Rights Act of 2004,” at 623–682; Human Rights Watch (2008), Mixed Results: U.S. Policy and International Standards on the Rights and Interests of Victims of Crime, at 9. 239 See e.g. Hagan (1983), Victims before the Law, at 205–207.

reappraising the rights of victims in criminal proceedings generally195 The objective of this subsection is fourfold: first, to analyse the content of this right; second, to address the main criticisms of this right; third, to discuss potential limitations to this right; and, last, to examine the interplay between this right and cross-examination of victims. a) Content The victim’s right to be heard requires that the victim be given the opportunity to give his or her version of events and views on the clarification of the facts, the identification and prosecution of those responsible, and the compensation due. This understanding of the scope of the victim’s right to be heard is based on the view, discussed above, that the legitimate interests of victims in criminal proceedings cover these matters.240 If the main purpose of the victim’s right to be heard is to allow him or her to seek the recognition and protection of his or her legitimate interests in criminal procedures, the scope of this right should be construed as conforming to the scope of these interests. In my view the victim should have, as a general rule, the opportunity to present live in court his or her version of events and views on the clarification of the facts, the identification and prosecution of those responsible, and the compensation due. The official and public nature of criminal proceedings is a critical reason why the possibility of directly addressing the court is so important for victims of serious human rights violations. As discussed earlier, these special characteristics of criminal proceedings are of major importance for such victims not only because State authorities are the representatives of the society, but also because of the nature of these infringements and the context in which these violations often occur. As analysed above, these violations involve the infringement of fundamental rights of individuals, and often take place with the involvement of State officials and are surrounded by official denials.241 The other features of criminal procedures that international human rights bodies have stressed when developing States’ obligations to investigate and prosecute serious human rights violations also explain why the opportunity to directly address the court is crucial for victims of these infringements. As discussed throughout this book, these bodies have consistently maintained that criminal justice procedures make it possible for a thorough and independent investigation to be carried out and for the criminal responsibility of those involved to be established. Additionally, in common law jurisdictions, this view fits well with the nature of the truth-finding process in criminal procedures, namely the fact that such a process proceeds through the presentation of competing narratives.242 More generally, and although measures should be taken to minimise the negative effects the element of public storytelling may have on victims, victims’ opportunity to directly address the court at the trial can enhance their self-esteem as it enables them to give their versions of events and views in their own words. As discussed earlier, several 240 See above in this chapter, Section II, Subsection A. 241 See above in this chapter, Section II, Subsection A, and Section III, Subsection E; and below Chapter V, Section IV, Subsection A. 242 Paul Gewirtz (1996), “Victims and Voyeurs: Two Narrative Problems at the Criminal Trial,” in Peter Brooks and Paul Gewitz (eds.), Law’s Stories: Narrative and Rhetoric in the Law 135 (New Haven: Yale University Press), at 136. See also Austin Sarat (1993), “Speaking of Death: Narratives of Violence in Capital Trial,” 27 Law and Society 19, at 55.

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experts maintain that victims’ participatory rights in criminal proceedings and, in particular, their opportunity to directly address the court can lessen their perceptions of inequity and the feelings of helplessness and lack of control which often result from the perpetration of serious criminal offences.243 The victim’s right to be heard should exist throughout criminal procedures, particularly at their key stages. The sequential nature of these procedures justifies this view. If this right is to be meaningful, it should be recognised not only at the sentencing stage – i.e. the final stage, but also in preceding stages.244 In addition to the above-analysed civil law jurisdictions, which generally grant victims wide participatory rights in criminal procedures, recent developments in common law jurisdictions provide support for this view. The U.S. Crime Victims’ Rights Act of 2004 provides for the right of crime victims to be reasonably heard at any public proceeding in the district court involving release, plea or sentencing, or any parole proceeding.245 Similarly, the UK Code for Crown Prosecutors requires prosecutors to take into account the views and interests of the victim in prosecution decision-making at critical stages of the procedures.246 This view is also endorsed in the International Criminal Court Strategy in Relation to Victims. One of the principles which underpin the Strategy is the following: A recognition that victims should be enabled to have a voice throughout all stages of the proceedings, subject to the rights of the defence and a fair and impartial trial, starting at the preliminary examination stage and to seek reparations in the event of a conviction.247

b) Main Criticisms Several criticisms have been made of the victim’s right to be heard in criminal procedures. A major one has been that it would arouse intense emotions among decision-makers that would undermine the principle according to which criminal verdicts and sentences should be based on reason, rather than on emotion.248 Specifically, the proponents of this view submit that because of its large emotional content, the victim’s allocution would obstruct the ability of decision-makers in criminal procedures to make reasoned judgment.249 This was one of the main arguments the U.S. Supreme Court made in its 1987

243 See above in this chapter, Section III, Subsection E. 244 Villmoare and Neto (1987), Victim Appearances at Sentencing Hearings under the California Victims’ Bill of Rights, at 62. 245 18 U.S.C. §3771(a) (2004). 246 See the Crown Prosecution Service (2004), The Code for Crown Prosecutors, paras. 5.12, 10.2, and 11.1. 247 ICC, Report of the Court on the Strategy in Relation to Victims, 10 November 2009, ICC-ASP/8/45, para. 15. 248 Other substantive criticisms of this right are addressed elsewhere in this chapter – e.g. for the one positing that the victim’s allocution on sentencing would undermine the principle according to which sentencing is a matter of public policy rather than private preference, see above Section III. There have also been objections of a managerial nature to the victim’s right to be heard. For example, it has been maintained that victim participatory rights lead to delays, longer trials and additional expenses for the criminal justice system. These criticisms are addressed in this chapter, Section III, Subsection B, and in Chapter V. 249 See e.g. Hagan (1983), Victims before the Law, at 205–207.

reappraising the rights of victims in criminal proceedings generally197 judgment in Booth v. Maryland for outlawing the admission of VISs at the sentencing phase of capital cases. In this respect, the majority of this Court stated as follows: [A]ny decision to impose the death sentence must ‘be, and appear to be, based on reason rather than caprice or emotion.’ The admission of these emotionally-charged opinions as to what conclusions should the jury draw from the evidence clearly is inconsistent with the reasoned decision-making we require in capital cases.250

It should, however, be noted that in Payne v. Tennessee, the U.S. Supreme Court overruled Booth v. Maryland by holding that the introduction of VISs at the sentencing phase of capital cases is not per se prohibited by the Eighth Amendment to the U.S. Constitution.251 Notwithstanding this reversal in the approach of the U.S. Supreme Court, several scholars continue to oppose the recognition of the victim’s right to be heard on the basis of its emotional content. For example, Susan Bandes submits that VISs produce sympathy and compassion for the victim, as well as a number of negative emotions against the defendants – e.g. hatred, fear, racial animus, vindictiveness – and that “[these] emotions diminish the ability of the jury to consider the character of the defendant and the circumstances of the case.”252 While recognising the need for more empirical research in this area, I find unpersuasive the view that victim allocution obstructs the ability of decision-makers in criminal procedures to make reasoned judgment. First, the relationship between emotional and cognitive process is complex.253 Therefore, one should not assume, as those who take this view do, that emotional arousal always stifles cognitive activity.254 Second, there is little empirical evidence on which specific emotions decision-makers experience as a result of VISs and other forms of victim participation in criminal proceedings. Scholars who make the argument that VISs arouse anger and sympathy among decision-makers in criminal trials fail to provide evidence for this contention.255 More importantly, various empirical studies have found that victims are less vindictive than often assumed.256 Third, and 250 U.S. Supreme Court, Booth v. Maryland, 482 U.S. 496 (1987), at 2536. 251 U.S. Supreme Court, Payne v. Tennessee, 501 U.S. 808 (1991). 252 Susan Bandes (1996), “Empathy, Narrative, and Victim Impact Statements,” 63 The University of Chicago Law Review 361, at 395, 401, 409. See also Bruce A. Arrigo and Christopher R. Williams (2003), “Victim Vices, Victim Voices, and Impact Statements,” 49 Crime and Delinquency 603, at 604, 613. 253 Janice Nadler and Mary R. Rose (2001), “Victim Impact Testimony and the Psychology of Punishment,” 88 Cornell Law Review 419, at 443. 254 Bryan Myers and Edith Greene (2004), “The Prejudicial Nature of the Victim Impact Statement,” 10 Psychology, Public Policy, and Law 492, at 502. See also Neal Feigenson (2000), Legal Blame: How Jurors Think and Talk About Accidents (Washington D.C.: American Psychological Association). 255 See e.g. Nadler and Rose (2001), “Victim Impact Testimony and the Psychology of Punishment,” at 443–445. 256 See Uli Orth (2003), “Punishment Goals of Crime Victims,” 27 Law and Human Behaviour 173, at 177, Table 1, and 181 (finding that among the various punishment goals victims seek, revenge was the second least important). See also Ulrich Orth, Leo Montada and Andreas Maercker (2006), “Feelings of Revenge, Retaliation Motive, and Postraumatic Stress Reactions in Crime Victims,” 21 Journal of Interpersonal Violence 229, at 238–239 (finding that the strength of the retaliation motive is not associated with posttraumatic stress reactions resulting from crime victimisation, but rather it is mostly caused by rumination on victimisation-related themes).

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assuming that some emotions that affect reasoned judgment may result from victim allocution, there are several aspects of the criminal trial process that encourage rational thought, notably the duration of the process, the formalities concerning the presentation of evidence, and the requirement of deliberation in cases of collective decision-makers.257 In his book-long study, Neal Feigenson concludes that these features of judicial procedures are likely to reduce or to eliminate the interference that emotional arousal might produce in other contexts.258 Fourth, and taking into consideration who the decision-maker(s) in the concerned criminal procedures are, it is clear that professional judges are well-prepared to deal with the emotions that may result from victim allocution because of their knowledge and experience of prior cases, and their professional duties. Empirical research provides support for this view. Notably, the empirical study conducted by Wessel et al. found that “the credibility ratings of court judges and their votes for a guilty verdict were not influenced by the emotions displayed by the witness.”259 Wessel et al. identify judges’ knowledge, experience and professional duties as the factors explaining this finding.260 Similarly, in an empirical study on the perspective of 42 legal professionals in South Australia on the potential effects of VISs on sentencing outcomes and processes, Erez and Rogers concluded that legal professionals in South Australia agree that the introduction of VISs has not increased sentence severity.261 In its Guidelines for Fair Treatment of Crime Victims and Witnesses, the American Bar Association also endorses this view. In supporting its view that victims should have the right to be heard, even if they appear to be emotional, this organisation maintains that the sentencing court is able to distinguish between “a relevant, factual exposition of the impact of the crime on the victim and pure vindication.”262 Several scholars share this view.263 While jurors do not have the same knowledge and experience as professional judges for dealing with the emotional content of the victim’s allocution in criminal procedures,264 there are at least two features of the criminal trial process when decision-making is the responsibility of jurors that encourage further rational thought. There is the requirement 257 Myers and Greene (2004), “The Prejudicial Nature of the Victim Impact Statement,” at 503. See also Feigenson (2000), Legal Blame: How Jurors Think and Talk About Accidents, at 72, 91. 258 Feigenson (2000), Legal Blame: How Jurors Think and Talk About Accidents, at 72. 259 Ellen Wessel et al. (2006), “Credibility of the Emotional Witness: A Study of Ratings by Court Judges,” 30 Law and Human Behavior 221, at 221, 227. 260 Id. at 227. 261 See Edna Erez and Linda Rogers (1999), “Victim Impact Statements and Sentencing Outcomes and Processes,” 39 British Journal of Criminology 216, at 223. 262 American Bar Association (1983), Guidelines for Fair Treatment of Crime Victims and Witnesses (Washington D.C.: American Bar Association), at 21. 263 Bryan Myers, Steven Jay Lynn and Jack Arbuthnot (2002), “Victim Impact Testimony and Juror Judgments: The Effects of Harm Information and Witness Demeanor,” 32 Journal of Applied Social Psychology 2393, at 2396. See also Jayne W. Barnard (2002), “Allocution for Victims of Economic Crimes,” 77 Notre Dame Law Review 39, at 70; Roberts and Erez (2004), “Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements,” at 237. 264 Myers, Lynn and Arbuthnot (2002), “Victim Impact Testimony and Juror Judgments: The Effects of Harm Information and Witness Demeanor,” at 2396.

reappraising the rights of victims in criminal proceedings generally199 of discussion among the jurors to reach a decision, and in several jurisdictions there exist guidelines on sentencing proceedings.265 Additionally, Paul Gewirtz makes an interesting proposal for providing further safeguards to defendants in criminal procedures. He suggests that victim statements should be subjected to reasoned examination. Specifically, he submits that after the victim’s allocution, the lawyers of the defendant and the prosecution should be given the opportunity to offer the jury or the judge reasoned argument about the victim’s allocution.266 Furthermore, guidelines should be issued explaining to jurors the purposes and functions of the victim’s allocution, as well as how they should assess it.267 In conclusion, the victim’s right to be heard in criminal procedures is consistent with the principle according to which criminal verdicts and sentences should be based on reason. Even assuming that some emotions that affect reasoned judgment may result from victim allocution, there are several aspects of the criminal trial process in general, and specifically when decision-making is the responsibility of jurors, that encourage rational thought. Furthermore, there are additional measures that may be adopted for subjecting victim allocution to reasoned examination when decision-making in criminal procedures is in the hands of jurors. c) Limitations Limitations of different types have been proposed regarding the victim’s right to be heard in criminal proceedings. These proposals mainly cover limitations on how victims’ views should be presented, their subject-matter and their time length. As regards limitations on time length and other mere logistical issues concerning the victim’s right to allocution, it is clear that judges should have the power to introduce this type of limitation, without however impairing the essence of this right.268 There are reasons of public interest – e.g. the requirement that the proceedings be conducted expeditiously – that may justify some limitations concerning mere logistical issues. With respect to limitations on how victim views should be presented – i.e. the requirement for victim views to be submitted in writing – my view is that they should, at the trial at least, be imposed only exceptionally. The reasons for this are those discussed above to explain why victims should have, as a general rule, the opportunity to present live in court their views on matters touching upon their legitimate interests in criminal procedures. 265 Myers and Greene (2004), “The Prejudicial Nature of the Victim Impact Statement,” at 503. See also Feigenson (2000), Legal Blame: How Jurors Think and Talk About Accidents, at 72, 91. Cf. Dennis J. Devine (2008), “Jury Deliberation,” in Brain L. Cutler (ed.), Encyclopedia of Psychology & Law (Thousand Oaks, CA: Sage), Vol. I, at 411. 266 Gewirtz (1996), “Victims and Voyeurs: Two Narrative Problems at the Criminal Trial,” at 145–146. 267 Myers and Greene (2004), “The Prejudicial Nature of the Victim Impact Statement,” at 508. See also Beth E. Sullivan (1998), “Harnessing Payne: Controlling the Admission of Victim Impact Statements to Safeguard Capital Sentencing Hearings From Passion and Prejudice,” 25 Fordham Urban Law Journal 601, at 633–635. 268 See e.g. United States v. Degenhardt, 405 F.Supp.2d 1341 (2005), at 1351 (stating that courts have the power to put reasonable limits on how long a victim can speak, in the same way as they are able to limit the length of a defendant’s presentation). For a scholarly account, see Tribe (2005), “In Support of a Victims’ Rights Constitutional Amendment,” at 661.

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As regards subject-matter limitations on the victim’s right to allocution, my view is that with the exception of abusive communication, the victim should be free to address in his or her allocution any issue relevant to the clarification of the facts, the identification and prosecution of those responsible, and the compensation due. This approach is consistent with my view on the scope of victims’ legitimate interests in criminal procedures,269 and the fact that, as discussed above, the victim’s voice in these procedures is, pursuant to the participatory rights recognised in this monograph, independent of both the prosecution and the defence.270 Last, and in order that victims may exercise their right to be heard in a proper manner, guidelines should be issued explaining them what this right entails and the limitations imposed on it.271 d) Requirements to be Observed Regarding the Factual Element of the Victim’s Right to be Heard As mentioned, the victim’s right to be heard includes a factual element: the right to give his or her version of events. The question that arises is which requirements need to be observed regarding this factual element in order that it forms part of the trial evidence. My view is that in order to do so, the requirements for giving evidence need to be observed. While the specific requirements will vary according to the legal tradition followed in the proceedings, generally this would mean that victims should make statements regarding this factual element under oath from the witness box and can be subject to crossexamination. This is necessary to ensure the right to a fair trial of the defendant.272 ii. The Rights to Offer, Examine and Challenge Evidence at the Trial The rights of the victim to offer and examine evidence pertaining to the guilt or innocence of the accused, and to challenge the admissibility or relevance of evidence at the trial, have two main bases: victims’ legitimate interests in the clarification of the facts, and the identification and prosecution of those responsible; and the need to ensure that victim participation in criminal proceedings is meaningful. In addition to the various international instruments and bodies mentioned above,273 several international and hybrid criminal courts have recognised that the legitimate interests of victims of serious human rights violations in criminal procedures encompass these matters. The following chapter will analyse the latter.274 Furthermore and because decisions in criminal proceedings are based on the evidence brought and discussed in the proceedings, in order to be meaningful victim participation 269 See above in this chapter, Section II, Subsection A. 270 See above in the general introduction, Section I, Subsection A. 271 Sullivan (1998), “Harnessing Payne: Controlling the Admission of Victim Impact Statements to Safeguard Capital Sentencing Hearings From Passion and Prejudice,” at 633–635. 272 See e.g. ICC, Prosecutor v. Lubanga Dyilo, Decision on the request by victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, Trial Chamber I, 26 June 2009, ICC-01/04-01/06-2032-Anx, 26 June 2009, para. 25. 273 See above in this chapter, Section II, Subsection A. 274 See below Chapter V, Section IV, Subsection C.

reappraising the rights of victims in criminal proceedings generally201 should include these rights. The ICC’s Appeals Chamber endorsed this view in its judgment of 11 July 2008 in Lubanga. In this case, in supporting its finding that victim participants at the trial phase of ICC’s proceedings can lead evidence pertaining to the guilt or innocence of the accused, the ICC’s Appeals Chamber stated as follows: If victims were generally and under all circumstances precluded from tendering evidence relating to the guilt or innocence of the accused and from challenging the admissibility or relevance of evidence, their right to participate in the trial would potentially become ineffectual.275

In the same decision, the ICC Appeals Chamber identified four substantive requirements to allow victims to tender and examine evidence: (i) demonstration of personal interests that are affected by the specific proceedings; (ii) compliance with disclosure obligations and protection orders; (iii) a determination of appropriateness; and (iv) consistency with the rights of the accused and a fair trial.276 In Lubanga, the ICC Trial Chamber I set an additional requirement for the victim’s right to offer evidence: the evidence likely to be given by the victims should be directly related to the charges brought against the accused.277 The ICC Trial Chambers have in subsequent decisions reaffirmed a victim’s right to offer evidence.278 As the judgment of 11 July 2008 of the ICC’s Appeals Chamber in Lubanga indicates, in proceedings conducted according to the common law tradition, the concerned judge or chamber should order the disclosure of the evidence sought by the victim before allowing it to be presented.279 Additionally, the victim’s rights to offer and examine evidence pertaining to the guilt or innocence of the accused, and to challenge the admissibility or relevance of evidence at the trial, are consistent with the principle of ‘equality of arms’, a component of the right to a fair trial of the defendant. Many civil law jurisdictions and hybrid criminal courts

275 See ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, para. 97. See also ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC01/04-01/06, paras. 108–109. For an authority in favour of these victims’ rights at the hearing of confirmation of charges, see ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage on the Case, Pre-Trial Chamber I, 13 May 2008, ICC-01/04-01/07-474, paras. 134–135. 276 ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, paras. 4, 104. 277 ICC, Prosecutor v. Lubanga Dyilo, Decision on the request by victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, Trial Chamber I, 26 June 2009, ICC-01/04-01/06-2032-Anx, paras. 33 and 39. 278 See e.g. ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Modalities of Victim Participation at Trial, Trial Chamber II, 22 January 2010, ICC-01/04-01/07-1788-tENG, para. 82. 279 See e.g. ICC, Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, para. 100.

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grant victims these rights and no human rights treaty monitoring body has ever considered that as a breach of the principle of ‘equality of arms’.280 V. Conclusions Conflicts between victim access to and participation in criminal procedures and the principles that inform the enforcement of criminal law in democratic States have traditionally been seen as insurmountable in the common law tradition and by some international law makers. However, this chapter has demonstrated that access to and participation in criminal procedures for victims of serious human rights violations are consistent with these principles, are based on several internationally recognised human rights and principles, and are logical extensions of the approach of international human rights treaty monitoring bodies to various closely related matters (such as States’ obligations to investigate and prosecute these violations, remedies in the event of such infringements, and the rights of victims of these violations in non-criminal proceedings). With respect to the second of these, this chapter has specifically shown that access to and participation in criminal procedures for victims of these violations are grounded on the widely recognised rights to an effective remedy and to a fair hearing, and the principle of the rule of law. Regarding the last of these, this chapter has demonstrated that the logic and rationales of international human rights treaty monitoring bodies when addressing these related questions also hold for the recognition of the rights of access to and participation in criminal proceedings for victims of these infringements. These two assertions are related, in the sense that these human rights and principles provide the legal bases for victim access to and participation in criminal procedures, and 280 These rights are recognised in e.g. France, Germany and Guatemala. For France, see Code de Procédure Pénale, version in force as of 17 July 2012, Art. 82-1, para. 1. As mentioned earlier, in France once the victim joins the proceedings as a partie civile, he or she becomes a party in the proceedings. See e.g. Bouloc (2010), Procédure pénale, 292–293. Vergès (2007), Procédure pénale, at 203–204. For Germany, see Criminal Procedure Code (Strafprozeßordnung, StPO), Section 397, para. 1, available at http://www.iuscomp.org/gla/statutes/StPO.htm#386. Accessed on 16 October 2009. For Guatemala, see Código Procesal Pénal, Decree Number 51–92, Art. 315, available at http://www.oj.gob.gt/es/QueEsOJ/EstructuraOJ/UnidadesAdministrativas/ CentroAnalisisDocumentacionJudicial/cds/CDs%20leyes/2004/PDFs/Codigos/CODIGO%20 PROCESAL%20PENAL.pdf. Accessed on 15 October 2009. Regarding hybrid courts, it is worth noting that the UNTAET Regulation 2000/30, which governed the procedures before the Special Panels in East Timor, empowered the victim “to request the Public Prosecutor to conduct a specific investigation or to take specific measures in order to prove the guilt of the suspect.” See UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure, 25 September 2000, UNTAET/REG/2000/30, Section 12.6. UNTAET Regulation 2001/25, which amended and replaced UNTAET Regulation 2000/30, granted victims the same rights as those included in the UNTAET Regulation 2000/30. See UNTAET Regulation 2001/25, 14 September 2001, UNTAET/REG/2001/25, sections 2, 12.3, 12.5–12.7. See also ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, Pre-Trial Chamber I, 13 May 2008, ICC-01/04-01/07-474, para. 66. But see Partly Dissenting Opinion of Judge G.M. Pikis, para. 14, in ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, para. 100.

reappraising the rights of victims in criminal proceedings generally203 international human rights bodies provide the rationales for such access and participation. I have made three main arguments in this regard. Firstly, there is the recognition by international human rights treaty monitoring bodies of the special status of the rights infringed in serious human rights violations. This recognition is significant in several ways with respect to victim access to and participation in criminal procedures. To begin with, it reaffirms that these violations harm not only the public order, but also fundamental rights of individuals. As will be discussed below, this indicates the special nature of these infringements. Furthermore, this recognition is an important basis for the applicability of the right to a fair hearing in criminal procedures with respect to victims of these infringements. As analysed above, there is a strand of human rights treaty monitoring bodies’ case law according to which States are bound to ensure the right to a fair hearing in those instances in which the determination of an internationally recognised human right is at issue. Secondly, I have maintained that criminal procedures provide victims of serious human rights violations with an important venue for seeking redress because of the special characteristics of these procedures, the nature of these violations and the context in which such infringements are often perpetrated. As analysed in Chapter II, international human rights bodies have consistently stressed the features of these procedures – i.e. they make it possible for a thorough and independent investigation to be carried out and for the criminal responsibility of those involved to be established. Furthermore, these procedures have an official and public nature. These two characteristics of criminal procedures are very important for victims of serious human rights violations not only because State authorities are the representatives of the society, but also because of the nature of these infringements and the context in which such violations are often committed. As just noted, international human rights bodies have recognised that these violations infringe upon fundamental rights of individuals. In addition, these infringements are often perpetrated with the active involvement of State officials and surrounded by official denials and cover-ups.281 Therefore, as Brandon Hamber submits, these violations, particularly when they are widespread, do not merely harm individ­ uals,  but also affect a victim’s sense of being part of society.282 Because of the official and public nature of criminal proceedings, these proceedings not only help to uncover the truth, but also are an important means for public acknowledgment of what happened.283 By facilitating entry to, and active involvement of victims in, criminal proceedings, victim access to and participation in these proceedings also contribute to affirming victims’ dignity and their membership of and status in the concerned society.284 281 See e.g. Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 18–19. For many empirical studies confirming this, see above in this chapter Section II, Subsection A.i, and Section III, Subsection E; and Chapter V, Section IV, Subsection A. 282 Hamber (2009), Transforming Societies after Political Violence: Truth, Reconciliation, and Mental Health, at 22, 25. 283 See above in this chapter, Section I, Subsection B; Section II, Subsection A; and Section III, Subsection E. 284 See above in this chapter, Section II, Subsection A, and Section III, Subsection E. See also below Chapter V, Section IV, Subsection A.

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Lastly, I have argued that by helping to ensure that serious human rights violations are investigated and prosecuted, victim access to and participation in criminal procedures contribute to countering the impunity that often surrounds these infringements and to reaffirming the importance the concerned society attaches to the infringed rights and, more generally, the principle of the rule of law. Victim access to and participation contribute to these expressivist goals of criminal procedures because, as analysed above, they encompass the rights of victims of these infringements to have an effective and impartial investigation conducted with reasonable expedition; to know the reasons for, and increasingly to ask for judicial review of, a public prosecutor’s decision not to prosecute an alleged such infringement; and to be present, to be heard, and to offer, examine and challenge evidence at the trial phase. It is worth recalling that international human rights bodies have consistently maintained that, in the event of any of these violations, criminal procedures serve to reaffirm the importance the concerned society attaches to the infringed rights and, more generally, the authority of the law, because of the special characteristics of these procedures.285 The case law of the IACtHR and the ECtHR confirms that victim access to and participation in criminal proceedings help to ensure that serious human rights violations are investigated and prosecuted and thus corrode the impunity that often surrounds the perpetration of such infringements. This is of critical importance because international human rights instruments and bodies require that remedies for human rights violations must be effective in practice. I have put forward three other rationales for access to and participation in criminal procedures for victims of serious human rights violations. To begin with, I have argued that victim access to and participation in criminal procedures are necessary means to protect the legitimate interests of victims in the criminal procedures for these infringements. These legitimate interests include seeking the clarification of the facts, the identification and prosecution of those responsible, and due compensation. Second, victim access to and participation in criminal procedures can, according to the theory of procedural justice, improve the perception of victims of the fairness and legitimacy of these procedures. Last, victim access to and participation in criminal procedures can serve to affirm victims’ dignity, and their membership of and status in the concerned society. The elements that provide the bases for these three rationales for victim access to and participation in criminal procedures are the above-discussed features of these procedures, the nature of serious human rights violations, the context in which these infringements often take place and the theory of procedural justice. This chapter has also demonstrated that access to and participation in criminal procedures for victims of serious human rights violations are consistent with the principles that govern the system of public prosecution of criminal offences in democratic States. In this respect, this chapter first have shown that the recognition of victim status for the purpose of his or her participation in these procedures is consistent with the presumption of innocence of the defendant, because such recognition is independent of the determination of

285 See above Chapter II, Section I, Subsection A. See also Drumbl (2007), Atrocity, Punishment, and International Law, at 12.

reappraising the rights of victims in criminal proceedings generally205 the criminal responsibility of the defendant. This chapter has also demonstrated that victim access to and participation in criminal procedures are consistent with a criminal justice system based on retribution and with the public interest criteria informing decision-making in these procedures in democratic States. Victim access to and participation in criminal procedures as understood in this monograph do not grant victims decision-making or veto power in these procedures. This chapter has also shown that victim access to and participation in criminal procedures complement, rather than undermine, the function of criminal tribunals of determining the responsibility of those brought before them. As analysed at length in this chapter, victims of these infringements are also interested in the clarification of the events, and the identification and punishment of those responsible. This chapter has also demonstrated that victim allocution in criminal procedures does not obstruct the ability of decision-makers in such procedures to make reasoned judgment. Even assuming that some emotions that affect rational thought may result from victim allocution, there are various aspects of the criminal trial process in general that promote reasoned judgment. Moreover, there are supplementary measures that may be taken for subjecting victim allocution to reasoned examination when decision-making in criminal procedures is in the hands of jurors. The practice of both the IACtHR and the ECtHR demonstrate that victim access to and participation in criminal procedures are consistent with the principles that inform the enforcement of criminal law in democratic States. Additionally, this chapter has identified a series of rights in criminal procedures for victims of serious human rights violations. It has done so drawing on the case law of the IACtHR and the ECtHR, a number of UN instruments, and comparative criminal law. It has also adopted an approach that takes into account both victims’ legitimate interests at key stages of criminal procedures and the principles that govern the system of public prosecution of criminal offences in democratic States.286 In particular, this chapter has identified the following victim rights in criminal investigations and procedures: • The right to submit a complaint to the authorities regarding any such infringements; • The right to have an effective and impartial investigation conducted with reasonable expedition; • The right to be informed of the reasons for a prosecutor’s decision not to prosecute any of those violations; • The right to be informed of the conduct of criminal procedures and of major decisions taken therein; • The right to be present at the trial and the sentencing phase; • The right to be heard throughout criminal procedures, particularly at the key stages of these procedures; and, • The rights to offer, examine and challenge evidence at the trial phase.

286 For a similar view, see Fenwick (1997), “Procedural ‘Rights’ of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?,” at 333.

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The recognition of these rights only demands treaty interpretation because, as this chapter has demonstrated, these rights can be derived from a systematic and teleological interpretation of the rights to an effective remedy and to a fair hearing, widely recognised under human rights treaties, and, more generally, from the principle of the rule of law. Additionally, this chapter has found that there is a trend in international practice towards recognising the victim’s right to ask for judicial review of a prosecutor’s decision not to prosecute an alleged serious human rights violation. This chapter has demonstrated that, in the end, the question of victim access to and participation in criminal justice procedures relates to the very objectives of these procedures and, ultimately, to effective human rights protection and the reaffirmation of the principle of the rule of law. By helping to ensure that serious human rights violations be investigated and prosecuted, victim access to and participation in these procedures contribute significantly to countering the impunity that often surrounds these infringements and to reaffirming the importance the concerned society attaches to the infringed rights, and, more generally, the authority of the law. Victim access and participation contribute, then, to the retributive and, more importantly, to the expressivist objectives of criminal procedures. Additionally, victim access to and participation in criminal procedures lead to a more holistic approach regarding the objectives of these procedures than that currently taken in many jurisdictions. In particular, while victim access to and participation in these procedures affirm the societal objectives such procedures seek in democratic societies, they allow criminal courts and prosecutors to pay due consideration to the legitimate interests and needs of victims in these procedures. Therefore, in my view, the instrumental approach towards victims of serious human rights violations that so far has prevailed in many jurisdictions should be abandoned.287 At the same time, it is worth bearing in mind that the ability of victim access to and participation in criminal procedures to satisfy the needs of victims of serious human rights violations and of the directly concerned society is limited by the function of these procedures. As disucussed earlier, these procedures focus on the determination of the individual responsibility of specific perpetrators, while victims of these violations and the directly affected society have many needs. The latter is so not least because, as discussed earlier, these violations affect victim dignity and often his or her sense of membership of and status in the particular society.288 There is, therefore, a need to supplement victim access to and participation in criminal procedures with other measures.289 I will elaborate on this aspect of victim access to and participation in criminal proceedings in the next chapter and in the general conclusions.290

287 Here I refer to the approach that limits victims’ role in criminal procedures to serving as a complainant and as a witness. 288 See above in this chapter, Section III, Subsection E. See also Hamber (2009), Transforming Societies After Political Violence: Truth, Reconciliation, and Mental Health, at 22, 25. 289 See above Chapter II, Section II, Subsection B.v, and in this chapter, Section III, Subsection E. 290 See above Chapter V, Section V; and Chapter VI, Section I, Subsection D, and Section II.

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VICTIM ACCESS TO AND PARTICIPATION IN CRIMINAL PROCEEDINGS CONDUCTED IN SITUATIONS OF MASS ATROCITY

As mentioned in the introduction, victim access to and participation in criminal procedures conducted in situations of mass serious human rights violations involve some distinctive questions. Notably, there are specific concerns with affording victims access to and participation in criminal procedures carried out in these situations because of the large number of victims usually involved in such situations. The judges of the ad hoc international criminal tribunals and several scholars oppose victim access to and participation in criminal procedures conducted in these situations on the grounds that they would significantly and unduly increase the complexity and length of these procedures. In particular, they maintain that applications and participation by a large number of victims, as would typically be the case in these situations, would impose an unreasonable burden on both the defence and the tribunal.1 While recognising that the large number of victims typically involved in situations of mass atrocity poses difficulties for the implementation of victim access to and participation in criminal procedures, I submit that such access and participation can be reconciled with the requirement that these procedures be conducted expeditiously. This can be achieved through an approach that, while satisfying the core of victims’ needs for access to and participation in criminal proceedings carried out in these situations, pays due 1 See e.g. the ICTY’s Rules Committee, Victims’ Compensation and Participation, attached to a letter dated 12 October 2000 from the President of the ICTY addressed to the UN Secretary-General, in letter dated 2 November 2000 from the UN Secretary-General addressed to the President of the Security Council, 3 November 2000, UN Doc. S/2000/1063, Appendix, paras. 36, 47 (hereinafter “the ICTY’s Rules Committee, Victims’ Compensation and Participation”). For scholarly accounts, see Jérôme de Hemptine and Francesco Rindi (2006), “ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings,” 4 Journal of International Criminal Justice 342, at 348. See also Christine H. Chung (2008), “Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?,” 6 Northwestern Journal of International Human Rights 459, at 461, 497, 519; Zahar and Sluiter (2008), International Criminal Law: A Critical Introduction, at 75; Damaška (2009), “Problematic Features of International Criminal Procedure,” at 178; Jérôme de Hemptinne (2009), “Victims’ Participation in International Proceedings,” in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice 175 (Oxford: Oxford University Press), at 562–563.

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consideration to the requirement that these proceedings be conducted expeditiously and the limited human and financial resources available in such situations. In particular, in identifying victim rights in criminal proceedings conducted in situations of mass atrocity, I take into account these legal and public interest considerations, and the large number of victims who may seek access and participation in these situations. This chapter spells out my proposal on this matter, puts forward a series of rationales for victim access and participation specifically applicable to criminal proceedings conducted in these situations, and proposes a number of victim rights in such proceedings. Furthermore, this chapter addresses the main criticisms of victim access to and participation in criminal proceedings conducted in these situations. In doing all these, I draw on international human rights law, comparative criminal law and the theory, law, and practice of international and hybrid criminal courts – all but one dealing with situations of mass atrocity.2 As a preliminary matter, this chapter provides an overview of the role of victims in the proceedings before international and hybrid criminal tribunals. I. Victims in the Proceedings before International and Hybrid Criminal Tribunals This section examines briefly the law and practice of international and hybrid criminal tribunals on the role of victims in the proceedings before these tribunals with the objective of determining whether certain trends on this subject can be ascertained. It should be noted that the subsequent sections of this chapter will analyse the substantive issues arising from victims’ role in the proceedings before these tribunals. A. Victims in the Proceedings before the ad hoc International Criminal Tribunals Victim involvement in the proceedings before the international criminal tribunals for the former Yugoslavia and Rwanda (hereinafter the “ICTY” and the “ICTR,” respectively) is limited to serving as a witness.3 Accordingly, victims can only testify if one of the parties 2 The exception being the Special Tribunal for Lebanon, which was established by an agreement between the United Nations and the Lebanese Republic pursuant to Resolution 1664 (2006) of the UN Security Council. Article 1 of the Special Tribunal’s Statute defines its jurisdiction as follows: “The Special Tribunal shall have jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. If the Tribunal finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks. This connection includes but is not limited to a combination of the following elements: criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.” See Statute of the Special Tribunal for Lebanon, attached to UN Security Council, Res. 1757, 30 May 2007, UN Doc. S/RES/1757, at 12 (hereinafter “The Statute of the Special Tribunal for Lebanon”). 3 See e.g. Pascale Chifflet (2003), “The Role and Status of the Victim,” in G. Boas ad W.A. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY 75 (Leiden: Martinus Nijhoff Publishers), at 108; Zappalà (2003), Human Rights in International Criminal Proceedings, at 224.

victim rights in criminal proceedings in situations of mass atrocity209 or the judge so request and, once they are called to do so, their testimony is limited to answering the questions put by the parties and the judge. Additionally, victims have no right – beyond that of the public – to access the evidence. Furthermore, compensation for victims of the crimes within the jurisdiction of these tribunals is largely left to national courts or other competent body. The only power the ICTY and the ICTR have regarding victim compensation is that of ordering as a penalty “the return of any property and proceeds acquired by criminal conduct to their rightful owners.”4 According to Rule 105 of both ad hoc tribunals, the Trial Chamber shall consider the matter of the restitution of property or proceeds only after a judgment of conviction containing a finding that unlawful taking of property by the accused was associated with the crime found has been passed.5 Additionally, only the Prosecutor or the concerned Chamber are entitled to request that the hearing envisaged for dealing with this matter is held.6 However, even this limited type of victim compensation has remained illusory, as this provision has thus far not been applied.7 Nor have domestic courts effectively provided compensation to the victims of the crimes within the jurisdiction of the ad hoc international criminal tribunals.8 Nor has a special body been established to deal with this matter. Several proposals for amending the Statutes of the ad hoc international criminal tribunals with the objective of granting victims participatory rights at the trial and allowing them to seek compensation before these tribunals have been put forward without success. In June 2000, Carla del Ponte, the then Prosecutor of the ad hoc tribunals, submitted two proposals to the ICTR Plenary for amending the Rules of this Tribunal on these matters. In July 2000, the Prosecutor of the ad hoc tribunals made the same suggestion to the Plenary of the ICTY.9 4 See the ICTY Statute, Art. 24 (3), UN Security Council, Res. 827, 25 May 1993, and as amended more recently, by UN Security Council, Res. 1877, 7 July 2009; the ICTR Statute, Art. 23 (3), UN Security Council, Res. 955 (1994), 8 November 1994, and as amended more recently, by UN Security Council, Res. 1901, 16 December 2009. 5 See the ICTY Rules, Rules 98 ter (B) and 105 (A); and the ICTR Rules, Rules 88 (B) and 105 (A), adopted on 29 June 1995 and as amended more recently, on 1 October 2009. 6 See the ICTY Rules, Rule 105 (A); and the ICTR Rules, Rule 105 (A). See also Zappalà (2003), Human Rights in International Criminal Proceedings, at 224. 7 Zahar and Sluiter (2008), International Criminal Law: A Critical Introduction, at 77. See also John R.W.D. Jones and Steven Powles (2003), International Criminal Practice (Ardsley, NY: Transnational Publishers), at 804, para. 9.154; Chifflet (2003), “The Role and Status of the Victim,” at 103. 8 According to an interview with Emmanuel Rakangira, Assistant Public Prosecutor in Rwanda, carried out by the International Crisis Group on 4 December 2000, Rwandan courts have awarded important amounts of money to victims of crimes committed during the genocide, but these judgments have been impossible to enforce. See International Crisis Group (2001), International Criminal Tribunal for Rwanda: Delayed Justice, ICG Report No. 30 (Nairobi: International Crisis Group). See also Susanne Malmström (2001), “Restitution of Property and Compensation of Victims,” in Richard May and Gabrielle Kirk MacDonald (eds.), Essays in ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald 373 (The Hague; Boston: Kluwer Law International), at 382. 9 See letter dated 12 October 2000 from the President of the ICTY addressed to the Secretary-General, in UN Secretary-General, Letter dated 2 November 2000 from the SecretaryGeneral addressed to the President of the Security Council, 3 November 2000, UN Doc. S/2000/1063, Annex, at 3.

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In a report prepared by the ICTY Rules Committee and later approved by the ICTY Plenary, while the ICTY judges recognised the right to compensation of victims of the crimes within the jurisdiction of the ad hoc tribunals,10 they maintained that the task of processing and determining the claims on this matter should not be entrusted to these international tribunals.11 Accordingly, the ICTY judges recommended the establishment of an international claims commission to deal with compensation claims of victims of international crimes in the former Yugoslavia.12 The main argument made by the ICTY judges for opposing the proposal of the ICTY Prosecutor was that allowing victims to participate and seek compensation before the ad hoc tribunals would significantly increase the length of the ICTY proceedings.13 This argument will be fully discussed below.14 Additionally, the ICTY judges maintained that allowing victims to participate and seek compensation before the ad hoc tribunals “would run counter to [these tribunals’] principal objective of prosecuting those responsible for the crimes in the former Yugoslavia,”15 without explaining why in their view this was the case. Lastly, the ICTY judges stated that amendments in this respect would be difficult to implement.16 In a letter dated 9 November 2000 and addressed to the UN Secretary-General, the ICTR Plenary took a similar view. The ICTR judges maintained that although they empathised with the compensation for victims, “the responsibility for processing and assessing claims for such compensation should not rest with the tribunal.”17 The main argument the ICTR judges put forward for supporting this conclusion was the impact the suggested reforms could have on the length of the proceedings before the Tribunal.18 B. Victims in the Proceedings before the International Criminal Court First of all, it is worth noting the nature of victim participatory rights under the Statute of the ICC. In contrast to the ad hoc international criminal tribunals, the rights recognised in the ICC Statute allow victims to act in the proceedings independently from the defence and the prosecution.19 The provisions on victim participation in the ICC Statute are rooted in civil law jurisdictions, which as analysed above generally allow victims to actively

10 See the ICTY’s Rules Committee, Victims’ Compensation and Participation, paras. 21, 36, 46–47. 11 Id. para 47. 12 Id. para. 48. 13 Id. paras. 36, 47. 14 See below in this chapter, Section III. 15 See the ICTY’s Rules Committee, Victims’ Compensation and Participation, para. 47. 16 Id. para. 47. 17 Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda addressed to the Secretary-General, in UN Secretary-General, Letter of 14 December 2000 from the Secretary-General addressed to the President of the Security Council, 15 December 2000, UN Doc. S/2000/1198, at 3. 18 Id. paras. 4, 11–13. 19 See e.g. Theo van Boven (1999), “The Position of the Victim in the Statute of the International Criminal Court,” in Herman A.M. von Hebel, Johan Gerrit Lammers and Jolien Schukking (eds.), Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos 77 (The Hague: T.M.C Asser Press), at 77, 85–86; McGonigle (2009), “Bridging the Divides in International Criminal Proceedings,” at 110. See also above general introduction.

victim rights in criminal proceedings in situations of mass atrocity211 participate in criminal proceedings.20 This is confirmed by the intense advocacy work that civil law countries, alongside NGOs, undertook in favour of the granting of participatory rights to victims in the proceedings before the ICC.21 Several commentators maintain that the inclusion of victim participatory rights in the proceedings before the ICC was also a mechanism aimed at achieving restorative justice in these proceedings.22 While recognising that the granting of procedural rights to crime victims in criminal proceedings and mechanisms of restorative justice share some goals, I consider, as discussed earlier, that it is necessary to distinguish between the two.23 With respect to the articles of the ICC Statute governing victim participation in the proceedings before the ICC, it should be mentioned that it is Article 68, paragraph 3, of this Statute that enshrines the victim’s right to participate in these proceedings and sets the conditions and criteria for such participation. Other provisions of the ICC Statute do authorise victim participation, but only at particular stages of the proceedings before this Court.24 It should be noted that while Article 68, paragraph 3, of the ICC Statute makes clear that victims have a right to participate in the proceedings before the ICC, it leaves to the ICC Chambers the determination of what such a right entails and of the stages of the proceedings in which it can be exercised.25 Some commentators who participated at the 20  See e.g. van Boven (1999), “The Position of the Victim in the Statute of the International Crim­ inal Court,” at 85, 87–88; Eric David (2005), “La Cour Pénale Internationale,” 313 Recueil des Cours 325, at 408; Mekjan and Varughese (2005), “Hearing the Victim’s Voice: Analysis of Vic­ tims’ Advocate Participation in the Trial Proceeding of the International Criminal Court,” at 16; Jouet (2007), “Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court,” at 257. See also above Chapter III, Section III, Subsections B and C. 21    See e.g. Zahar and Sluiter (2008), International Criminal Law: A Critical Introduction, at 71; Jouet (2007), “Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court,” at 253; William Bourdon and Emmanuelle Duverger (2000), La Cour pénale internationale: Le Statut de Rome (Paris: Ed. du Seuil), at 203; Claude Jorda and Jérôme de Hemptine (2002), “The Status and Role of the Victims,” in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court 1387 (Oxford: Oxford University Press), at 1400. 22  See e.g. Roy S. Lee (2001), “Introduction,” in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence lv (Ardsley, NY: Transnational Publishers), at lxiv; Gilbert Bitti and Håkan Friman (2001), “Participation of Victims in the Proceedings,” in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 456 (Ardsley, NY: Transnational Publishers), at 457; McGonigle (2009), “Bridging the Divides in International Criminal Proceedings,” at 107. 23  See e.g. Dignan and Cavadino (1996), “Towards a Framework for Conceptualising and Evaluating Models of Criminal Justice from a Victim’s Perspective,” at 153–160; Ashworth (2000), “Victims’ Rights, Defendants’ Rights and Criminal Procedure,” at 192. For further discussion, see above Chapter IV, Section III, Subsection C. 24  See e.g. the ICC Statute, Art. 15, paragraph 3 (authorising victims to make representations to the Pre-Trial Chamber when the latter is deciding a Prosecutor’s request for authorisation to commence an investigation proprio motu). See also id. Art. 19, paragraph 3 (authorising victims to submit observations to the ICC during proceedings with respect to jurisdiction or admissibility). 25   Article 68, paragraph 3, of the ICC Statute reads as follows: “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

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Rome Conference for the adoption of the ICC Statute maintain that the conferral of this large element of discretion upon the ICC Chambers was aimed at “making the scheme workable in case a large number of victims are involved.”26 In Section IV of this chapter, I will suggest an approach to the implementation of victim access to and participation in criminal proceedings conducted in situations of mass atrocity that can serve as a guide to the ICC Chambers. In their case law, the ICC Chambers have dealt with important questions concerning victim participation in the ICC proceedings, such as the scope of victim interests in these proceedings, the content of victim participatory rights in such proceedings, and whether victims can participate at the investigation stage even when there is not yet an accused. The case law of the ICC Chambers with respect to these and other important matters related to victim participation in the proceedings before this Court will be discussed below when analysing the main themes regarding victim access to and participation in criminal proceedings carried out in situations of mass atrocity. C. Victims in the Proceedings before the Hybrid Criminal Tribunals While hybrid criminal tribunals do not constitute a monolithic category, they share some common characteristics. To begin with, they have a mixed composition, as the judges, the prosecution and support personnel are made up of nationals and international personnel. Additionally, the subject-matter jurisdiction of all but one of these tribunals includes crimes against humanity and war crimes.27 Lastly, all but one are located in the State where the investigated crimes took place.28 I consider as hybrid criminal tribunals those established in Bosnia, Cambodia, East Timor, Kosovo, Sierra Leone, and the Special Tribunal for Lebanon.29 impartial trial.” Rule 89, paragraph 1, of the ICC Rules reaffirms this approach, when providing as follows: “[…] Subject to the provisions of sub-rule 2, the Chamber shall then specify the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements.” See also the ICC Rules, Rule 91, paragraph 2. 26 Bitti and Friman (2001), “Participation of Victims in the Proceedings,” at 460. 27 The exception being the Special Tribunal for Lebanon. See the Statute of the Special Tribunal for Lebanon, Art. 2. For scholarly analyses identifying this feature of hybrid criminal tribunals, see Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 247. See also Daphna Shraga (2004), “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions,” in Cesare P.R. Romano, André Nollkaemper, and Jann K. Kleffner (eds.), Internationalized Criminal Courts 15 (Oxford: Oxford University Press), at 36; David Cohen (2007), “Hybrid Justice in East Timor, Sierra Leone, and Cambodia,” 41 Stanford Journal of International Law 1, at 2; Laura A. Dickinson (2003), “The Promise of Hybrid Courts,” 97 American Journal of International Law 295, at 296. 28 The exception is again the Special Tribunal for Lebanon. See Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, Art. 8, para. 1, annex to UN Security Council, Res. 1757 of 2007, 30 May 2007, UN Doc. S/RES/1757, at 7. 29 It should, however, be noted that some scholars add other courts, such as the Serbian War Crimes Chamber, to the category of hybrid criminal courts. For instance, see Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 247. I do not share this view as courts such as the Serbian War Crimes Chamber are exclusively domestic courts as they are composed solely of nationals. The only international involvement there is the assistance provided by international advisors. In my view, to include these courts in the

victim rights in criminal proceedings in situations of mass atrocity213 There are, however, two main differences among these tribunals. The first concerns the nature of the act that established them. While some were created through agreements between the concerned government and the United Nations, others – notably those in East Timor and Kosovo – were established by a Regulation issued by the UN territorial administration in the concerned territory.30 Secondly, while most of them are part of the domestic criminal system, some, such as the Special Court for Sierra Leone, are independent.31 The following subsections analyse briefly the role of victims before each of these tribunals.32 i. The Hybrid Courts in Kosovo In February 2000, the UN Interim Administration Mission in Kosovo (hereinafter “UNMIK”) enacted a Regulation authorising international judges to be part of Kosovo’s judiciary.33 In contrast to hybrid courts elsewhere, such as those in Sierra Leone and East Timor, those in Kosovo therefore are formed ad hoc by the decision of the Special Representative of the UN Secretary General in Kosovo (hereinafter “the Special Representative”).34 The introduction of an international component of judges, together with international prosecutors, was aimed at addressing the fear of lack of impartiality and independence of Kosovo’s judiciary, because of the ethnic divides the armed conflict had accentuated, the dominance of the courts by Albanians, and the existence of various cases of threats against members of the judiciary.35 category of hybrid courts would enlarge this category beyond reasonable boundaries. For a discussion on the nature of the Serbian War Crimes Chamber, see Mark S. Ellis (2004), “Coming to Terms with its Past: Serbia’s New Court for the Prosecution of War Crimes,” 22 Berkeley Journal of International Law 165, at 189. 30 Shraga (2004), “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions,” at 16, 32. See also Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 247. 31 Regarding the independent nature of the Special Court for Sierra Leone, see e.g. Shraga (2004), “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions,” at 36; Dickinson (2003), “The Promise of Hybrid Courts,” at 299; Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 250; Tom Perriello and Marieke Wierda (2006), The Special Court for Sierra Leone under Scrutiny (New York: International Center for Transitional Justice), at 17. 32 These tribunals are considered chronologically, by creation date, from the oldest to the newest. 33 UNMIK, Regulation 2000/6, On the Appointment and Removal from Office of International Judges and International Prosecutors, 15 February 2000, UNMIK/REG/2000/6. For a scholarly account, see Robert F. Carolan (2008), “An Examination of the Role of Hybrid International Tribunals in Prosecuting War Crimes and Developing Independent Domestic Courts Systems: the Kosovo Experiment,” 17 Transnational Law and Contemporary Problems 9, at 16. 34 Michael E. Hartmann (2003), International Judges and Prosecutors in Kosovo: A New Model for PostConflict Peacekeeping, Special Report (Washington D.C.: United States Institute for Peace), at 11. 35 Shraga (2004), “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions,” at 34. See also Dominik Zaum (2008), “Balancing Justice and Order: State-building and the Prosecution of War Crimes in Rwanda and Kosovo,” in Phil Clark and Zachary D. Kaufman (eds.), After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond 391 (London: Hurst), at 373; Carolan (2008), “An Examination of the Role of Hybrid International Tribunals in Prosecuting War Crimes and Developing Independent Domestic Courts Systems: the Kosovo Experiment,” at 14.

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In December 2000, the role of international judges and prosecutors in Kosovo was enhanced further. The UN enacted a Regulation authorising the Special Representative to assign a special panel of three judges, including two international judges, and appoint an international prosecutor when he considered it necessary in order to ensure the independence and impartiality of the judiciary or the proper administration of justice.36 Additionally, the concerned prosecutor, the accused or the defence counsel were authorised to request the Special Representative to make such an assignment.37 According to the Organization for Security and Co-operation in Europe (hereinafter “OSCE”) and UNMIK, as of 2010, international judges and prosecutors continue working throughout Kosovo on different kinds of cases, including war crimes.38 Victims are recognised as having broad rights in the proceedings before the hybrid courts in Kosovo. The Provisional Criminal Procedure Code of Kosovo, which applies to these courts, grants victims the right to undertake a prosecution and broad participatory rights during all stages of the proceedings.39 Article 80, paragraph 2, of the Code confers on victims the right to propose during all stages of the proceedings evidence which had a bearing “on establishing the criminal offence, finding the perpetrator of the offence or establishing his or her property claims.”40 Article 80, paragraph 3, of the Code affirms this victims’ right and adds others at the trial stage.41 These articles of the Provisional Criminal Procedure Code of Kosovo support the proposition that the legitimate interests of victims in the criminal proceedings for serious human rights violations include seeking the clarification of the facts, and the identification and prosecution of those responsible. Addi­ tionally, victims are entitled to submit a compensation claim before courts in Kosovo.42 Although many sources were consulted with the aim of finding information on the implementation of these provisions by the hybrid criminal courts in Kosovo, no information was found on this matter.43

36 These judicial panels are the so-called “Reg. 64 panel,” as these powers were granted by UNMIK’s Regulation 2000/64. See UNMIK, Regulation 2000/64, On Assignment of International Judges/ Prosecutors and/or Change of Venue, 15 December 2000, UNMIK/REG/2000/64, Sections 1.1, 1.2., 2.1. 37 Id. Section 1.1. 38 Organization for Security and Co-operation in Europe and UNMIK (2010), Kosovo’s War Crimes Trials: An Assessment Ten Years on: 1999–2009 (Pristina: OSCE and UNMIK), at 11. 39 See UNMIK, Provisional Criminal Procedure Code of Kosovo, 6 July 2003, UNMIK/REG/2003/26, Art. 53 (hereinafter “Provisional Criminal Procedure Code of Kosovo”). See also id. Arts. 62, para. 1, and 63, para. 1. 40 Id. Art. 80, para. 2. This article reads as follows: “During all stages of criminal proceedings, the injured party has the right to call attention to all facts and to propose evidence which has a bearing on establishing the criminal offence, on finding the perpetrator of the offence or on establishing his or her property claims.” 41 Id. Art. 80, para. 3 (conferring on victims the rights “to propose evidence, to put questions to the defendant, witnesses and expert witnesses, to make remarks and present clarifications concerning their testimony and to give other statements and to file motions”). 42 Id. Arts. 107 et seq. 43 In addition to legal and international relations scholarship, information was sought from the following sources: the OSCE Mission in Kosovo, the International Center for Transitional Justice, and the International Crisis Group.

victim rights in criminal proceedings in situations of mass atrocity215 With respect to assessments of the introduction of international judges and prosecutors to Kosovo’s domestic legal system, it is worth mentioning that while most experts have considered this measure as necessary for countering the risk of ethnic bias in the local judiciary,44 several aspects of it have been criticised. A first area of concern has been the strong dependence of international judges on the Special Representative. In particular, the fact that the body that appoints and supervises international judges has a majority of international members designated by the head of the UNMIK,45 together with the hiring conditions of international judges – on six-month contracts – are seen as creating a risk to the independence of these judges.46 Other concerns with respect to the introduction of international judges and prosecutors in Kosovo’s courts are: the lack of clear criteria informing the Special Representative’s decision to assign international judges and prosecutors to a given case;47 the lack of consultation and participation of local justice sector officials in the introduction of international judges and prosecutors;48 the lack of practical experience or knowledge of international humanitarian law of the international judges appointed between 2000 and 2001;49 and, the limited interaction between international and national judges and prosecutors.50 Additionally, communication between international and national judges and prosecutors is more difficult because there are not enough translators due to financial shortages.51 The last two aspects have been seen as considerably diminishing the contribution of the hybrid courts to Kosovo’s institutions. The negative impact of these factors is compounded by other aspects of the justice sector in Kosovo, including: inadequate witness protection due to lack of 44 See e.g. David Marshall and Shelley Inglis (2003), “The Disempowerment of Human RightsBased Justice in the United Nations Mission in Kosovo,” 16 Harvard Human Rights Journal 95, at 145; Tom Perriello and Marieke Wierda (2006), Lessons from the Deployment of International Judges and Prosecutors in Kosovo (New York: International Center for Transitional Justice), at 34–35; Hartmann (2003), International Judges and Prosecutors in Kosovo: A New Model for PostConflict Peacekeeping, at 13. 45 Zaum (2008), “Balancing Justice and Order: State-building and the Prosecution of War Crimes in Rwanda and Kosovo,” at 375. 46 See Marshall and Inglis (2003), “The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo,” at 121–122. See also Perriello and Wierda (2006), Lessons from the Deployment of International Judges and Prosecutors in Kosovo, at 16, 19–20; Hartmann (2003), International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping, at 2; Zaum (2008), “Balancing Justice and Order: State-building and the Prosecution of War Crimes in Rwanda and Kosovo,” at 375. 47 Marshall and Inglis (2003), “The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo,” at 121–122. See also Perriello and Wierda (2006), Lessons from the Deployment of International Judges and Prosecutors in Kosovo, at 19; Hartmann (2003), International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping, at 2. 48 Marshall and Inglis (2003), “The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo,” at 129, 146. 49 Id. at 129; Perriello and Wierda (2006), Lessons from the Deployment of International Judges and Prosecutors in Kosovo, at 16. 50 Perriello and Wierda (2006), Lessons from the Deployment of International Judges and Prosecutors in Kosovo, at 18. See also Hartmann (2003), International Judges and Prosecutors in Kosovo: A New Model for Post-Conflict Peacekeeping, at 13. 51 Perriello and Wierda (2006), Lessons from the Deployment of International Judges and Prosecutors in Kosovo, at 28.

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resources;52 intimidation of and threats against some local judges;53 alleged instances of direct interference by the Special Representative with the decisions of judges in specific cases;54 and, last, the lack of cooperation from Serbia, where many of those involved in serious human rights violations in Kosovo lived.55 ii. The Special Panels in East Timor The Special Panels in East Timor (hereinafter “the Special Panels”) were established in mid-2000 within East Timor’s existing court system by the UN Transitional Administration in this country (hereinafter “UNTAET”) to try cases of ‘serious criminal offences’ that had occurred in 1999.56 The Special Panels exercised jurisdiction over genocide, war crimes, crimes against humanity, murder, sexual offences and torture.57 Victims of these crimes enjoyed several participatory rights in the proceedings before the Special Panels. Specifically, victims had the right to be heard at the various stages of the proceedings, including the investigation stage.58 Additionally, victims had the right to request the public prosecutor to conduct specific investigations or to take specific measures in order to prove the guilt of the suspect.59 Moreover, while victims were not expressly authorised to bring compensation claims before the Special Panels, the Panels were empowered to order the accused to pay compensation or reparations to the victim in their judgments.60 However, the Special Panels had many shortcomings, and hence these provisions were not fully implemented. Scholars and analysts have identified several reasons for this: the lack of a fully running justice system and the inadequate state of legal professionals at that time in East Timor; the serious shortages in funding and human resources faced by the Special Panels; Indonesia’s lack of cooperation with the Special Panels; the lack of sufficient support to the Special Panels from both the UN and the Timorese government; the 52 Id. at 26. See also Fredrick Egonda-Ntende (2005), “Justice after Conflict: Challenges Facing ‘Hybrid’ Courts: National Tribunals with International Participation,” 18 Humanitäres Völkerrecht 24, at 26; Marshall and Inglis (2003), “The Disempowerment of Human RightsBased Justice in the United Nations Mission in Kosovo,” at 126. 53 Egonda-Ntende (2005), “Justice after Conflict: Challenges Facing ‘Hybrid’ Courts: National Tribunals with International Participation,” at 27. 54 Marshall and Inglis (2003), “The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo,” at 122. See also Zaum (2008), “Balancing Justice and Order: State-building and the Prosecution of War Crimes in Rwanda and Kosovo,” at 375. 55 Perriello and Wierda (2006), Lessons from the Deployment of International Judges and Prosecutors in Kosovo, at 21. 56 See UNTAET, Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000, UNTAET/REG/2000/15, Section 1.1. 57 See id. Section 1.3. 58 UNTAET, Regulation 2000/30 on Transitional Rules of Criminal Procedure, 25 September 2000, UNTAET/REG/2000/30, Sections 12.3 and 12.5 (hereinafter “UNTAET, Regulation 2000/30 on Transitional Rules of Criminal Procedure”), and, subsequently, UNTAET, Regulation 2001/25, 14 September 2001, UNTAET/REG/2001/25, Sections 2, 12.3, 12.5–12.7. 59 UNTAET, Regulation 2000/30 on Transitional Rules of Criminal Procedure, Section 12.6. For a scholarly account, see Anne-Charlotte Martineau (2007), Les Juridictions Pénales Internationalisées (Paris: Pedone), at 223. 60 UNTAET, Regulation 2000/30 on Transitional Rules of Criminal Procedure, Section 49.2.

victim rights in criminal proceedings in situations of mass atrocity217 lack of expertise and experience in the investigation of complex crimes of the staff hired for the Special Panels; and the lack of a focused prosecutorial strategy until the Norwegian Siri Frigaar took the post of Deputy Prosecutor for Serious Crimes in East Timor.61 iii. The Special Court of Sierra Leone The Special Court of Sierra Leone (hereinafter the “SCSL”) was established through an agreement between the United Nations and the Government of Sierra Leone concluded in January 2002. The rules of procedure of the SCSL are based on those of the ICTR,62 and thus adopt a system with predominantly common law features.63 Following the traditional common law model, victims’ role in the proceedings before the SCSL is limited to serving as witnesses.64 Accordingly, they cannot participate in the proceedings in their own right. Additionally, victims’ compensation is, as in the ad hoc international criminal tribunals, left to domestic courts and legislation.65 Researchers at the International Center for Transitional Justice have reported that at a national conference in which 350 delegates of various communities from throughout Sierra Leone participated in March 2005, the delegations expressed their desire that the accessibility of the Court be improved.66 The Outreach Program of the SCSL has, however, been praised for its work with victimised communities in Sierra Leone.67 iv. The Special Chamber in the State Court of Bosnia and Herzegovina While part of the domestic justice system, the Special Chamber in the State Court of Bosnia and Herzegovina (hereinafter “the Special Chamber”) is a hybrid court, as it is composed of international and national officials.68 The Special Chamber was established,

61 See Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 249; Cohen (2007), “Hybrid Justice in East Timor, Sierra Leone, and Cambodia,” at 10; Caitlin Reiger and Marieke Wierda (2006), The Serious Crimes Process in Timor-Leste: In Retrospect (New York: International Center for Transitional Justice), at, 13, 18–19, 25, 40; Egonda-Ntende (2005), “Justice after Conflict: Challenges Facing ‘Hybrid’ Courts: National Tribunals with International Participation,” at 25. 62 See Statute of the Special Court for Sierra Leone, Art. 14, in UN Secretary-General, Letter Dated 6 March 2002 from the Secretary-General addressed to the President of the Security Council, Annex to Appendix II, 8 March 2002, UN Doc. S/2002/246, at 36. 63 Perriello and Wierda (2006), The Special Court for Sierra Leone under Scrutiny, at 17. 64 See e.g. Zahar and Sluiter (2008), International Criminal Law: A Critical Introduction, at 74; Friman (2004), “Procedural Law of Internationalized Criminal Courts,” at 351; Martineau (2007), Les Juridictions Pénales Internationalisées, at 225. 65 See SCSL, Rules of Procedure and Evidence of the Special Court of Sierra Leone, Rule 105, as adopted on 16 January 2002, and as amended more recently, on 16 November 2011, available at http://www.sc-sl.org/LinkClick.aspx?fileticket=Psp%2bFh0%2bwSI%3d&tabid=176. Accessed on 1 June 2012. 66 Perriello and Wierda (2006), The Special Court for Sierra Leone under Scrutiny, at 38. 67 See e.g. Cohen (2007), “Hybrid Justice in East Timor, Sierra Leone, and Cambodia,” at 21–22; Perriello and Wierda (2006), The Special Court for Sierra Leone under Scrutiny, at 36. 68 International Center for Transitional Justice and Bogdan Ivannišević (2008), The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court (New York: International Center for Transitional Justice), at 5–7, 39.

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through an agreement between the Office of the High Representative (hereinafter “OHR”) and the ICTY concluded in January 2003, to facilitate the latter to comply with the deadlines set by the UN Security Council for the completion of its mandate. In particular, the objective of the establishment of the Special Chamber was to refer cases involving lower and intermediate rank indictees to it.69 Accordingly, the jurisdiction ratione materiae of the Special Chamber encompasses war crimes, crimes against humanity and genocide. Another factor explaining the establishment of the Special Chamber was the fear that mere domestic courts would fail to render impartial and independent judgments.70 The Special Chamber is composed of six mixed trial panels and two mixed appellate panels. Since January 2008, most of the panels that make up the Special Chamber have been composed of two Bosnian judges and one international judge.71 The work of the Special Chamber was supplemented with the creation of the Special Department for War Crimes in the State Prosecutor’s Office.72 While victims are granted very limited participatory rights in the proceedings before the Special Chamber, they are allowed to submit compensation claims. The 2003 Bosnia and Herzegovina’s Criminal Procedure Code, which applies to the proceedings before the Chamber, grants victims two participatory rights in criminal proceedings: the right to present closing statements at the trial, and to appeal the decision of the trial chamber with respect to their compensation claim.73 Additionally, according to the same Code, victims can seek compensation before criminal courts,74 and these claims should be decided within criminal proceedings “if this would not considerably prolong the proceedings.”75 The Special Chamber has in most cases ordered victims to bring their compensation claims before civil courts, stating merely that the establishment of facts with regard to these claims would require time and thus would prolong the proceedings.76 In some of

69 Id. at 6. See also Shraga (2004), “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions,” at 35. 70 Shraga (2004), “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions,” at 35. 71 International Center for Transitional Justice and Ivannišević (2008), The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court, at 11. 72 Id. at 5. 73 Criminal Procedure Code, Official Gazette of Bosnia and Herzegovina, No. 36/2003, 21 Dec. 2003, Arts. 277 and 288 (hereinafter “Criminal Procedure Code of Bosnia and Herzegovina”). 74 Id. Art. 198, para. 2. This article reads as follows: “In a verdict pronouncing the accused guilty, the Court may award the injured party the entire claim under property law or may award him part of the claim under property law and refer him to a civil action for the remainder. If the data of criminal proceedings do not provide a reliable basis for either a complete or partial award, the Court shall instruct the injured party that he may take civil action to pursue his entire claim under property law.” 75 Article 193, paragraph 1, of the Criminal Procedure Code of Bosnia and Herzegovina provides as follows: “A claim under property law that has arisen because of the commission of a criminal offense shall be deliberated on the motion of authorized officials in criminal proceedings if this would not considerably prolong such proceedings.” 76 See e.g. the Special Chamber in the State Court of Bosnia and Herzegovina, Prosecutor v. Gojko Janković, Judgment, 16 February 2007, Case No. X-KRZ-05/161, English version, at 78; the Special Chamber in the State Court of Bosnia and Herzegovina, Prosecutor v. Ranko Vuković, Judgment,

victim rights in criminal proceedings in situations of mass atrocity219 these cases the Special Chamber has also based its decisions on this matter on the number of victims involved in the proceedings, without however specifying this number.77 I find the approach of the Special Chamber unsatisfactory. First, the Special Chamber’s lack of reasoning regarding its conclusion on this matter is problematic. Additionally, and as will be discussed below, victims’ legitimate interests in criminal proceedings, including that of seeking compensation, can be reconciled with the requirement that these proceedings be conducted without undue delay, even in proceedings carried out in situations of mass atrocity.78 I share the criticisms that the Mission to Bosnia and Herzegovina of the Organization for Security and Co-operation in Europe (hereinafter “the OSCE’s Mission”) has made of the reluctance of the criminal courts of Bosnia and Herzegovina (hereinafter “BiH”) to decide upon victims’ compensation claims within criminal proceedings. The OSCE’s Mission maintains that such a task may not be “beyond the grasp of [these courts]”79 and notes that BiH’s courts have developed criteria for determining compensation awards with respect to several specific human rights violations and nonpecuniary damages generally. In this respect, the OSCE’s Mission stresses the BiH Supreme Court issuance on 20 February 2006 of guidance criteria for determining just compensation for non-pecuniary damages.80 Equally, the OSCE’s Mission notes that BiH’s Constitutional Court and the Human Rights Chamber have developed some compensation standards for particular injuries when dealing with violations of Articles 3 and 5 of the European Convention of Human Rights.81 Additionally, the OSCE’s Mission has mentioned a series of benefits of the settlement of victims’ compensation claims within criminal proceedings, many of which coincide with the rationales I have identified in the previous chapter for granting victims participatory rights in criminal proceedings.82 First, it increases the efficiency of the judicial system as a whole. Second, it enhances the individual recognition of victims’ injuries. Third, and even if the chance of effectively obtaining money from the defendant is slim, 4 February 2008, Case No. X-KR/07/405, English version, at 34–35; the Special Chamber in the State Court of Bosnia and Herzegovina, Prosecutor v. Radmilo Vuković, Judgment, 16 April 2007, Case No. X-KR/06/217, English version, at 20. See also International Center for Transitional Justice and Ivannišević (2008), The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court, at 21–22; Organization for Security and Co-operation in Europe Mission to Bosnia and Herzegovina (2007), Fourth Report in the Case against Željko Mejakić et al. (Sarajevo: Organization for Security and Co-operation in Europe Mission to Bosnia and Herzegovina), at 3–4. 77 In Prosecutor v. Gojko Janković, the Chamber stated that there were “quite a few injured parties in the proceedings.” See the Special Chamber in the State Court of Bosnia and Herzegovina, Prosecutor v. Gojko Janković, Judgment, 16 February 2007, Case No. X-KRZ-05/161, English version, at 78. However, neither the information sheet on the case available on the Chamber’s website nor the 16 February 2007 judgment specify the number of victims who sought compensation in the case. The information sheet on the case is available at http://www.sudbih.gov.ba/index .php?opcija=predmeti&id=19&zavrsen=1&jezik=e. Accessed on 10 May 2012. 78 For an in-depth discussion of this, see below in this chapter, Section IV. 79 OSCE Mission (2009), Seventh Report in the Milorad Trbić Case: Transferred to the State Court pursuant to Rule 11 bis (Sarajevo: OSCE Mission), at 3. 80 Id. at 3. 81 Id. at 3. 82 See above Chapter IV, Sections I and II.

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compensation awards can have an important symbolic value for victims.83 Last, victims of serious human rights violations usually lack the financial resources to hire a lawyer to bring civil proceedings for the purposes of obtaining compensation.84 While analysts agree that the Special Chamber has contributed to creating a sense of ownership among local actors of the prosecution of those responsible for war crimes, other aspects of its work have been criticised, such as the fact that perceptions of bias among the Bosnian and Herzegovina’s population still remain significant,85 and that in some instances there has been a lack of commitment by international judges.86 v. The Extraordinary Chambers in the Courts of Cambodia The Extraordinary Chambers in the Courts of Cambodia (hereinafter the “ECCC”), established in June 2003 through an agreement between the UN and the Cambodian government,87 have jurisdiction over “senior leaders of Democratic Kampuchea and those who were most responsible” for genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, cultural property war crimes, and crimes against internationally protected persons, together with serious violations of the 1956 Cambodian Penal Code.88 The ECCC, whose temporal jurisdiction runs from 17 April 1975 to 6 January 1979,89 are composed of a Trial Chamber, a Supreme Court Chamber, two Investigating Judges and Two Prosecutors.90 While part of Cambodia’s court 83 OSCE Mission (2009), Seventh Report in the Milorad Trbić Case: Transferred to the State Court pursuant to Rule 11 bis, at 2. 84 Id. at 2. See also OSCE Mission (2007), Fourth Report in the Case against Željko Mejakić et al., at 4. 85 International Center for Transitional Justice and Ivannišević (2008), The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court, at 43. 86 Id. at 40. 87 See, in the ECCC’s website, the section entitled “Introduction,” available at http://www.eccc.gov .kh/en/about-eccc/introduction. Accessed on 9 February 2012. It should be added that the UN General Assembly approved, through Resolution 57/228 B of 23 May 2003, a draft agreement between the United Nations and the Government of Cambodia providing for the establishment of the ECCC. See UN General Assembly, Res. 57/228 B: Khmer Rouge Trials, 23 May 2003, UN Doc. A/Res/57/228 B, at 1, para. 1. For the main themes of the agreement, see UN SecretaryGeneral (2003), Report of the Secretary-General on Khmer Rouge Trials, 31 March 2003, UN Doc. A/57/769. 88 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea as promulgated on 27 October 2004 (NS/RKM/1004/006), Arts. 2, 4–8 (hereinafter “the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia”). See also Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, Arts. 1–2, Annex to UN General Assembly, Res. 57/228 B, 22 May 2003, UN Doc. A/ Res/57/228 B (hereinafter “the Agreement between the United Nations and the Royal Government of Cambodia concerning Prosecution of Crimes Committed during the Period of Democratic Kampuchea”). 89 The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, Art. 2. See also the Agreement between the United Nations and the Royal Government of Cambodia concerning Prosecution of Crimes Committed during the Period of Democratic Kampuchea, Arts. 1–2. 90 The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, Arts. 9, 16, 23. See also the Agreement between the United Nations and the Royal Government of

victim rights in criminal proceedings in situations of mass atrocity221 structure,91 the ECCC have a significant international element as they are made up of international and national personnel, and the UN provide them with financial and other assistance necessary to ensure their functioning.92 While initially victims enjoyed broad participatory rights in the proceedings before the ECCC, their rights have been limited over the years. Whilst victim participation in the proceedings before the ECCC is still aimed not only at seeking reparations, but also at contributing to the clarification of the facts, and the identification and prosecution of those responsible,93 in the 6th revision of the Internal Rules (hereinafter “the Rules”) adopted on 17 September 2010, the ECCC introduced an extensive restructuring of victim participation. To begin with, Rule 23 ter., paragraph 1, was added. It provides that: From the issuance of the Closing Order onwards, in order to participate in proceedings, Civil Parties shall at all times be represented by a Civil Party lawyer.

Rule 23, paragraph 3, which supplements this, was also added. It provides that: Civil parties at the trial stage and beyond shall comprise a single, consolidated group, whose interests are represented by the Civil Party Lead Co-Lawyers as described in IR 12 ter.

Therefore, from the trial stage onwards victims may not participate individually. The Rules also specify that “[t]he Civil Party Lead Co-Lawyers shall comprise a national and international lawyer, who are selected and funded by the ECCC” and that “[a]ll actions shall be taken jointly, except where power has been delegated to one of them, by a joint written decision, to accomplish such action individually.”94 As to the responsibilities of the Civil Party Lead Co-Lawyers, it should be noted that in addition to granting them the function of representing the interests of the consolidated group of Civil Parties,95 the Rules require the Co-Lawyers to balance “the rights of all parties and the need for an expeditious trial.”96 Furthermore, while the Rules provide that the Chamber shall hear victims at the trial stage,97 they do not specify the scope of the participation of the victims’ Lead Co-Lawyers beyond expressly providing that victims should be allowed to make closing statements.98 Cambodia concerning Prosecution of Crimes Committed during the Period of Democratic Kampuchea, Arts. 3, 5–6. 91 The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, Art. 2. 92 See the Agreement between the United Nations and the Royal Government of Cambodia concerning Prosecution of Crimes Committed during the Period of Democratic Kampuchea, Arts. 2, 4, 17. See also UN Secretary-General (2003), Report of the Secretary-General on Khmer Rouge Trials, para. 31; the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, Art. 11. 93 Internal Rule 23, paragraph 1, of the ECCC reads as follows: “1. The purpose of Civil Party action before the ECCC is to: a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution; and b) Seek collective and moral reparations, as provided in Rule 23 quinquies.” See Extraordinary Chambers in the Courts of Cambodia, Internal Rules (Rev.8), as revised on 3 August 2011, Rule 23, para. 1. 94 Id. Rule 12 ter, para. 4. 95 Id. Rule 12 ter, para. 5. 96 Id. Rule 12 ter, para. 1. 97 Id. Rule 91, para. 1. 98 Id. Rule 94.

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The conferral on victims of participatory rights in the ECCC procedures is not surprising as Cambodian law, the main formal source of these procedures99 and which is based on the civil law tradition, grants victims wide participatory rights in criminal proceedings.100 The statutory provisions and case law of the ECCC on victim participation have shed light on important matters such as the purposes of this participation and the substance of participatory rights. They will be analysed below when examining the substantive issues related to victims’ access to and participation in criminal proceedings conducted in situations of mass atrocity. It is also worth noting that while few empirical studies have been conducted on the experiences of those victims who participated in ECCC proceedings pursuant to the original provisions of the ECCC Rules, granting victims wide participatory rights, most of these studies have found that these victims viewed the experience of participating in the ECCC proceedings positively.101 It should, nevertheless, be noted that, as mentioned above, the work of the ECCC has been criticised because of lack of independence and the handling of Cases 003 and 004. On 25 October 2011, the two international Pre-Trial Chamber judges at the ECCC — Rowan Downing (Australia) and Katinka Lahuis (Netherlands) — delivered an opinion criticising the co-investigating judges’ rejection of a Case 003 civil party application.102 In their minority opinion, the international judges noted serious concerns about the legitimacy and transparency of the Case 003 investigations, including the failure of co-investigating judges to provide victims with sufficient information to allow them to meaningfully participate in the judicial investigation. Similarly, the International Bar Association in a report of 2011 states, particularly regarding the handling of Cases 003 and 004, that: Several allegations have been reported that raise doubts as to the independence and impartiality of the ECCC judiciary. These allegations have tainted the legitimacy of the ECCC and undermined its operations in practice. The allegations related primarily to the lack of training and professional expertise on the part of the judges, executive interference in judicial selection and proceedings, and corruption among Court officials and government employees.103

  99 See the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia, Art. 20. See also the Agreement between the United Nations and the Royal Government of Cambodia concerning Prosecution of Crimes Committed during the Period of Democratic Kampuchea, Art. 12. 100 See e.g. Guido Acquaviva (2008), “New Paths in International Criminal Justice?,” 6 Journal of International Criminal Justice 129, at 140; Cedric Ryngaert (2008), “Victim Participation and bias in the Cambodian Courts,” 3 Hague Justice Journal 68, at 69; David Boyle (2006), “The Rights of Victims,” 4 Journal of International Criminal Justice 307, at 308, 310. 101    See above Chapter IV, Section III, Subsection E. 102  Considerations of the Pre-Trial Chamber regarding the appeal against order on the admissibility of civil party application, Robert Hamill, Document Number: D11/2/4/4, Opinion of Judges Lahuis and Downing, 25 October 2011, available at: http://www.eccc.gov.kh/sites/default/files/ documents/courtdoc/D11_2_4_4_Redacted_EN.PDF. Accessed on 11 December 2011. 103  International Bar Association (2011), Safeguarding Judicial Independence in Mixed Tribunals: Lessons from the ECCC and Best Practices for the Future (London: International Bar Association), at 21.

victim rights in criminal proceedings in situations of mass atrocity223 The Open Society Justice Initiative has also criticised the handling of Case 003.104 These very serious allegations are likely to have a negative impact on victims’ perceptions of their experience with the ECCC and of their work. Therefore, they need to be taken into consideration in future studies examining victims’ perceptions of the work of the ECCC. vi. The Special Tribunal for Lebanon The Special Tribunal for Lebanon (hereinafter “the Special Tribunal”), established by the UN Security Council on 10 June 2007,105 essentially has jurisdiction “over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons.”106 While, unlike other hybrid criminal tribunals, the Special Tribunal exercises jurisdiction exclusively over domestic crimes107 and has its seat outside Lebanon,108 it shares with the rest of hybrid criminal tribunals its mixed composition of international and national judges.109 Victims can participate in the proceedings before the Special Tribunal. Article 17 of the Statute of the Special Tribunal, which borrows the wording of Article 68, paragraph 3, of the ICC Statute, makes this clear.110 However, and as in the proceedings before the ICC, the determination of what such participation entails and of the stages of the proceedings in which it can be exercised is left to the Chambers of the Special Tribunal. As a background, it is worth noting that the Lebanese criminal procedure, which is grounded in the civil law tradition, grants victims broad participatory rights.111 Victims cannot, however, bring compensation claims before the Special Tribunal. As with the Statutes of the ICTY and the ICTR, victims are required by the Statute of the

104 Open Society Justice Initiative (2011), Recent Developments at the Extraordinary Chambers in the Courts of Cambodia (New York: Open Society Justice Initiative), at 6–7, 13–15, 16–19. 105 See UN Security Council, Res. 1757, 30 May 2007, UN Doc. S/RES/1757, paras. 1(a), 2–3. 106 See the Statute of the Special Tribunal for Lebanon, Art. 1, attached to UN Security Council, Res. 1757, 30 May 2007, UN Doc. S/RES/1757, at 12 (hereinafter “the Statute of the Special Tribunal for Lebanon”). Article 1 of the Special Tribunal’s Statute adds that the Tribunal can also exercise jurisdiction over other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005 and, under very strict conditions, also over attacks that occurred on any later date that it deemed connected to the attack of 14 February 2005. 107 The Statute of the Special Tribunal for Lebanon, Art. 2. 108 See the Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, Art. 8, para. 1, Annex to UN Security Council, Res. 1757, 30 May 2007, UN Doc. S/RES/1757, at 7. 109 The Statute of the Special Tribunal for Lebanon, Art. 8. 110 Article 17 of the Statute of the Special Tribunal reads as follows: “Where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Pre-Trial Judge or the Chamber considers it appropriate.” 111 Cécile Aptel (2007), “Some Innovations in the Statute of the Special Tribunal for Lebanon,” 5 Journal of International Criminal Justice 1107, at 1120.

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Special Tribunal to bring their compensation claims before a domestic court or other competent body.112 D. Conclusions In view of the above analysis and as far as the provisions of the statutes of international and hybrid criminal tribunals are concerned, when trying to identify trends in the role of victims in the procedures before these tribunals, it is useful to distinguish between these two types of tribunals. An important evolution can be observed with respect to the role of victims in the proceedings before international criminal tribunals: from the conception of victims as mere witnesses in the constitutive instruments of the ad hoc tribunals to the recognition of victims’ right to participate independently from the defence and the prosecution in the proceedings before the ICC. The approach of the ICC Statute is a significant departure from that taken by the statutes of the ad hoc tribunals, even if the determination of what participatory rights under the ICC Statute entail and of the stages of the proceedings in which they can be exercised is largely left to the ICC Chambers. In contrast, the provisions of the statutes of the hybrid criminal tribunals on the role of victims in the proceedings do not follow any logical principle. There is not even consistency as to whether the approach taken under the legal tradition prevalent in the country in which the concerned crimes took place should be followed. Two out of the three hybrid tribunals created since February 2002 recognise more limited participatory rights of victims than those usually conferred under the legal tradition followed in the State where the concerned crimes occurred.113 In particular, while Bosnia and Herzegovina and Lebanon have historically adopted a criminal justice system based on the civil law tradition,114 the participatory rights recognised to victims in the proceedings before the War Crimes Chamber in Bosnia and Herzegovina, and the Special Tribunal for Lebanon are more limited than those normally granted under this legal tradition. The 2003 Bosnia and Herzegovina’s Criminal Procedure Code, which applies to the proceedings before the Chamber, only grants victims the right to present closing statements at the trial and to appeal the concerned court’s decision solely with respect to their compensation claim.115 Similarly, by borrowing the wording of the ICC’s Statute, the Statute of the Special Tribunal for Lebanon makes victims’ participatory rights in the proceedings less certain than it is usually the case under the civil law tradition. Despite the significance of these tribunals’ departure from the civil law tradition with respect to the role of victims in the proceedings, no reason is given for this departure in the documents related to the negotiation and adoption of the statutes of these tribunals.116 112 See the Statute of the Special Tribunal, Art. 25, para. 3. 113 Until the establishment of the Special Court of Sierra Leone in January 2002, the approach of the statutory provisions of hybrid criminal tribunals with respect to victims’ role in the proceedings coincided with that under the legal tradition of the country in which the concerned crimes took place. 114 For Lebanon, see Aptel (2007), “Some Innovations in the Statute of the Special Tribunal for Lebanon,” at 1123. 115 Criminal Procedure Code of Bosnia and Herzegovina, Arts. 277 and 288. 116 Research carried out by the author on the documents related to the negotiation and the establishment of the War Crimes Chamber in Bosnia and Herzegovina, and the Special Tribunal for

victim rights in criminal proceedings in situations of mass atrocity225 The significant freedom the ICC Chambers have in the determination of what victims’ participatory rights under the ICC Statute entail and the lack of consistency in the statutes of the hybrid criminal tribunals with respect to the role of victims in the proceedings before these tribunals reaffirm the importance of my task in this chapter, namely to suggest some objective principles to inform victims’ access to and participation in criminal proceedings conducted in situations of mass atrocity. II. Why Allow Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity? In addition to the rationales for victim access to and participation in criminal proceedings discussed in the previous chapter, there are three rationales for victim access and participation specifically applicable to criminal proceedings conducted in situations of mass atrocity. To begin with, such access and participation can make criminal proceedings more meaningful to directly victimised communities by fostering a sense of involve­ ment  in, and ownership of, the proceedings by these communities.117 Such access and Lebanon aimed at finding reasons for this departure yielded no result. In addition to the judgments of the War Crimes Chamber in Bosnia and Herzegovina in which this Chamber has instructed victims to bring their compensation claims before civil courts, several reports of the UN, the OSCE Mission in Bosnia and Herzegovina and NGOs in that country dealing with victim rights in criminal proceedings were analysed. As to judgments, the following were studied: the War Crimes Chamber in Bosnia and Herzegovina, Prosecutor v. Gojko Janković, Judgment, 16 February 2007, Case No. X-KRZ-05/161, English version; the War Crimes Chamber in Bosnia and Herzegovina, Prosecutor v. Ranko Vuković, Judgment, 4 February 2008, Case No. X-KR/07/405, English version; the War Crimes Chamber in Bosnia and Herzegovina, Prosecutor v. Radmilo Vuković, Judgment, 16 April 2007, Case No. X-KR/06/217, English version. With respect to the OSCE’s reports, the following were examined: OSCE Mission (2009), Seventh Report in the Milorad Trbić Case: Transferred to the State Court pursuant to Rule 11 bis; OSCE Mission (2007), Fourth Report in the Case against Željko Mejakić et al.; OSCE (2007), Fourth Report in the Case against Mitar Rašević and Savo Todović, (Sarajevo: OSCE Mission). Other sources consulted included International Center for Transitional Justice and Ivannišević (2008), The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court. Regarding the Special Tribunal for Lebanon, it is worth noting that while the report of the UN Secretary General on the establishment of the Special Tribunal for Lebanon states that victims are not allowed under the Statute of the Special Tribunal to participate in the proceedings as parties civiles as in civil law systems, the report does not provide any reason for this. See UN Secretary General, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, 15 November 2006, UN Doc. S/2006/893, at 8. The following documents were also examined regarding the Special Tribunal for Lebanon: the UN Security Council, Res. 1757, 30 May 2007, UN Doc. S/RES/1757; UN Secretary General, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon: Addendum, 21 November 2006, UN Doc. S/2006/893/Add.1. 117 See ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage on the Case, Pre-Trial Chamber I, 13 May 2008, ICC-01/04-01/07-474, para. 163. For scholarly accounts, see Drumbl (2007), Atrocity, Punishment, and International Law, at 124, 134–135, 175–176, 207–208; Bitti and Friman (2001), “Participation of Victims in the Proceedings,” at 457; Sriram (2004), “Globalising Justice: From Universal Jurisdiction to Mixed Tribunals,” at 13, 31; Cohen (2007), “Hybrid Justice in East Timor, Sierra Leone, and Cambodia,” at 5–6; David Donat-Cattin (2008), “Article 68,” in Otto

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participation facilitate entry to, and active involvement of members of these communities in, these official and public procedures aimed at the establishment of the truth and the identification of those responsible for such violations. As analysed in the previous chapter, there are four main reasons why such access and participation are very important for victims of serious human rights violations. First, because of the nature of these infringements; second, because of the features of criminal procedures; third, because of the value of such access and participation in themselves according to the theory of procedural justice; and last, because of the context in which these violations often take place. While measures for fostering local populations’ sense of ownership and involvement are particularly important with respect to criminal proceedings conducted by courts outside the country in which the concerned crimes were perpetrated, these measures are also needed regarding criminal proceedings carried out inside the territorial State. Research on the work of the hybrid criminal tribunals has shown that while their location in the country where the crimes took place can facilitate legacy creation, capacity-building, and community outreach, specific measures are needed for making the proceedings before these tribunals meaningful for directly victimised populations.118 The above-mentioned empirical study by Phuong N. Pham et al., conducted nearly a year after the ECCC trial in Case 001 ended “to learn from the civil parties, together with those [who initially were granted the status of civil party but which status was subsequently rejected at sentencing], about their experiences of participating in the ECCC proceedings”,119 confirms the significant role that victim access and participation can play in this respect. The authors of the study mention as examples of how victim participation can empower victims: … the creation of the Association of Victims of Democratic Kampuchea (Ksem Ksan), the association’s endeavour to build a memorial at S21 and the increased role as an advocate embraced by its president, Chum Mey, a survivor of S21.120

More generally, according to the International Center for Transitional Justice, at a national conference in which 350 delegates of various communities from throughout Sierra Leone participated in March 2005, the delegations expressed their desire that the accessibility of the Special Court be improved.121 Giving a voice to members of directly victimised communities in the proceedings before international criminal tribunals is even more critical, because of the remoteness of these tribunals from such communities and the various pressures to which these tribunals are often subjected. Victim access and participation can make criminal proceedings Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court 1277 (München: C.H. Beck, 2nd edn), at 1277; Mark Findlay (2009), “Activating a Victim Constituency in International Criminal Justice,” 3 The International Journal of Transitional Justice 183, at 185, 189. 118 See e.g. Cohen (2007), “Hybrid Justice in East Timor, Sierra Leone, and Cambodia,” at 36–37; Suzannah Linton (2002), “New Approaches to International Justice in Cambodia and East Timor,” 84 International Review of the Red Cross 93, at 119. See generally, Orentlicher (2007), “Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency,” at 16–17. 119 Pham et al. (2011), “Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia,” at 264–287. 120 Id. at 284. 121 See Perriello and Wierda (2006), The Special Court for Sierra Leone under Scrutiny, at 37–38.

victim rights in criminal proceedings in situations of mass atrocity227 before these tribunals more meaningful for directly victimised populations by facilitating entry and granting their members a voice there.122 The ICC Strategy in Relation to Victims identifies among the rationales for victim participation in the ICC procedures the need to make these procedures meaningful for victims and to promote victim confidence in the justice process.123 At the Rome Conference for the establishment of the ICC, it was widely accepted that the experience of the ICTY and the ICTR had exemplified the prejudicial effect the remoteness of the proceedings before these tribunals had on the perceptions of the directly victimised populations.124 Several sources confirm the need for additional measures for fostering local populations’ sense of ownership of, and involvement in, the proceedings before international criminal courts. In a presentation given in Arusha in November 2004, Bernard A. Muna, former Deputy Prosecutor of the ICTR, recognised that the ICTR had failed to counter the perception among the Rwandan People that it was a “court inherently foreign to [them]” and explicitly mentioned among the causes for this the fact that “Rwandan society is not actively involved in the activity of the Tribunal.”125 In her study on the impact of the ICTY in Bosnia and Herzegovina, Lara Nettelfield concluded that by advancing the process of democratization of this country, the ICTY has in several ways partially contributed to various aspects of expressivism as a rationale for criminal trials.126 However, she also identified a number of demands by civil society leaders, namely the wish of victim communities to be brought closer to the ICTY, their desire to benefit from a two-way communication in outreach events, and that the process reflects greater local ownership.127

122 See e.g. Drumbl (2007), Atrocity, Punishment, and International Law, at 124, 134–135, 207–208; Sriram (2004), “Globalising Justice: From Universal Jurisdiction to Mixed Tribunals,” at 13, 31; Cohen (2007), “Hybrid Justice in East Timor, Sierra Leone, and Cambodia,” at 5–6; DonatCattin (2008), “Article 68,” at 1277; Findlay (2009), “Activating a Victim Constituency in International Criminal Justice,” at 185, 189. 123 ICC, Report of the Court on the Strategy in Relation to Victims, 10 November 2009, ICC-ASP/8/45, para. 44. 124 See e.g. Ralph Zacklin (2004), “The Failings of Ad Hoc International Tribunals,” 2 Journal of International Criminal Justice 541, 544; War Crimes Research Office (2007), Victim Participation before the International Criminal Court (Washington: Washington College of Law), at 2; McKay (2008), “Victim Participation in Proceedings before the International Criminal Court,” at 2; Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 252; Drumbl (2007), Atrocity, Punishment, and International Law, at 133. For a source on the prejudicial effects that the ICTR’s physical remoteness has had on the Rwandan population, see Martin Ngoga (2008), “The Institutionalisation of Impunity: A Judicial Perspective on the Rwandan Genocide,” in Phil Clark and Zachary D. Kaufman (eds.), After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond 321 (London: Hurst & Company), at 330. 125 Bernard A. Muna, Former Deputy Prosecutor of the ICTR, The Early Challenges of Conducting Investigations and Prosecutions Before International Criminal Tribunals, Presentation at the Colloquium of Prosecutors of International Criminal Tribunals (25–27 November 2004), Arusha, available at http://www.ictr.org/ENGLISH/colloquium04/muna.htm. Accessed on 9 September 2009. 126 Nettelfield (2010), Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State, at 278. 127 Id. at 155.

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Close observers of the ICTR work specifically consider the refusal of the Tribunal’s Statute to allow victims to participate in the proceedings as one critical factor that has led to the disconnect between the work of the Tribunal and the Rwandan people.128 Granting a voice to victims in the proceedings before international criminal tribunals is important in another respect as well. It ensures that the views of members of directly victimised communities be taken into consideration in the decision-making of these tribunals. This is significant as both international prosecutors and criminal courts are often subjected to pressures from various entities, and victimised populations are usually the weakest party among these entities.129 As is well-known, States, particularly powerful ones, have several informal mechanisms for influencing the decision-making process of international criminal tribunals and prosecutors, because of the dependence of these tribunals and prosecutors on such States for their operation – e.g. arrests and collection of evidence – and resources.130 Ultimately, by fostering a sense of involvement in, and ownership of, criminal proceedings conducted in these situations by local populations, victim access and participation enhance the ability of these proceedings to achieve their expressivist objectives – e.g. the promotion of the rule of law.131 Furthermore, victim access to the investigation phase as envisaged in this chapter can contribute to ensuring the observance by prosecutors of some minimum principles in the exercise of their discretion with respect to the commencement and discontinuance of investigations and prosecutions, and the charges brought against a defendant in situations of mass atrocity.132 These minimum principles include the requirement for equal 128 See e.g. Jean-Marie Kamatali (2005), “From the ICTR to ICC: Learning from the ICTR Experience in Bringing Justice to Rwandans,” 12 New England Journal of International and Comparative Law 89, at 93–94, 96. 129 See Allison Marston Danner (2003), “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court,” 97 American Journal of International Law 510, at 525–534. See also Hazan (2006), “Measuring the Impact of Punishment and Forgiveness: a Framework for Evaluating Transitional Justice,” at 32 (noting that international criminal tribunals have various audiences – i.e. the societies most directly concerned and the international public, and that the expectations, reactions, and perceptions of these two audiences are ‘radically different’). 130 See Danner (2003), “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court,” at 525–534. For an authority stressing international criminal tribunals’ need for the cooperation of States to carry out their investigations and prosecutions due to the lack of a police force at their disposal, and the location of the accused persons, witnesses, and evidence under the jurisdiction of sovereign States, see ICTY, Prosecutor v. Blaškić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber, 29 October 1997, Case No. IT-95-14-AR108 bis, para. 26. See, generally, Bruce Broomhall (2003), International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press), at 2–6; Antonio Cassese (1998), “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law,” 9 European Journal of International Law 2, at 8. 131 See, generally, Cohen (2007), “Hybrid Justice in East Timor, Sierra Leone, and Cambodia,” at 5–6. 132 See e.g. Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 152; Jouet (2007), “Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court,” at 257.

victim rights in criminal proceedings in situations of mass atrocity229 treatment and for due consideration of the gravity of the crime and victims’ views in prosecutorial decision-making. This matter will be fully discussed below when analysing the proposed right of victims to seek judicial review of prosecutorial decisions on the commencement or discontinuance of investigations or prosecutions, and the charges brought against a defendant involved in the situation as a result of which they were victimised.133 III. Addressing the Arguments against Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity In addition to the arguments against victim access to and participation in criminal proceedings discussed previously, it has been argued that victim access to and participation in criminal proceedings conducted in situations of mass atrocity would significantly and unduly increase the complexity and length of such proceedings.134 Specifically, it has been maintained that applications and participation by a large number of victims, as usually would be the case in these situations, would impinge on the requirement that criminal proceedings be conducted with reasonable expedition,135 and impose an unreasonable burden on the concerned court and the defence.136 The ICTY judges made this argument in their Report on the proposal of the ICTY Prosecutor to grant victims participatory rights and the opportunity to seek compensation before the ad hoc tribunals.137 In particular, the ICTY judges maintained that allowing victims to participate and seek compensation before the ad hoc tribunals would significantly increase the length of the tribunals’ proceedings, a major issue the tribunals have had to deal with.138 According to the ICTY judges, this was particularly so because it would introduce new procedural steps in the proceedings – e.g. assessing whether those seeking to be recognised as victims fulfil the requirements set and then hearing them.139 Similarly, and as discussed earlier, when ordering victims to bring their compensation claims before civil courts, the War Crimes Chamber in Bosnia and Herzegovina has maintained that the establishment of facts in respect of these claims would require time and 133 See below in this chapter, Section IV, Subsection B.i. 134 See Zahar and Sluiter (2008), International Criminal Law: A Critical Introduction, at 75. See also Jouet (2007), “Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court,” at 277. 135 See e.g. Art. 14, para. 3, of the ICCPR. For a scholarly account, see e.g. McGonigle (2009), “Bridging the Divides in International Criminal Proceedings,” at 140. 136 See e.g. de Hemptine and Rindi (2006), “ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings,” at 348. See also Chung (2008), “Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?,” at 461, 497, 519; Zahar and Sluiter (2008), International Criminal Law: A Critical Introduction, at 75; Damaška (2009), “Problematic Features of International Criminal Procedure,” at 178; Hemptine (2009), “Victims’ Participation in International Proceedings,” at 562–563. 137 See the ICTY Rules Committee (2000), Victims’ Compensation and Participation, paras. 21, 36, 46–47. As mentioned earlier, this report was prepared by the ICTY Rules Committee and later approved by the ICTY Plenary. 138 Id. paras. 36, 47. 139 Id. para. 35.

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thus would prolong the proceedings.140 It should, however, be stressed that only in some of these cases has the Chamber specifically based its decisions in this respect on the number of victims involved in the proceedings.141 Likewise, in the situation in Uganda, the ICC Prosecutor submitted that allowing victims to participate at the investigation stage of a situation could significantly lengthen the proceedings as “the number of people who apply for participation and seek [measures by the ICC Chambers once granted the status of victim] would increase exponentially.”142 In a slightly different fashion, some commentators are not opposed to victim participation in criminal proceedings conducted in situations of mass atrocity as such, but to granting victims extensive participatory rights in these proceedings.143 In particular, these commentators argue that granting extensive participatory rights to victims will most likely prolong these proceedings and infringe on the right of the defendant to a trial without undue delay. I disagree with these two views because, as this section and the following will demonstrate, it is possible to reconcile victim access to and participation in criminal proceedings conducted in situations of mass atrocity with the requirement that these proceedings be conducted expeditiously. To begin with, various studies have shown that several of the factors that contribute to the complexity and length of criminal proceedings carried out in situations of mass atrocity, particularly proceedings before international tribunals, are not inherent to these proceedings and thus can be avoided. Poor case management, indictments with too many charges, and the adoption of procedural systems with 140 See e.g. the War Crimes Chamber in Bosnia and Herzegovina, Prosecutor v. Gojko Janković, Judgment, 16 February 2007, Case No. X-KRZ-05/161, English version, at 78; the War Crimes Chamber in Bosnia and Herzegovina, Prosecutor v. Ranko Vuković, Judgment, 4 February 2008, Case No. X-KR/07/405, English version, at 34–35 (the Chamber instructed victims to bring their compensation claims before civil courts, arguing that “the establishment of the facts regarding [such claims] would require a long[] period of time and would thus prolong the proceedings ….”); the War Crimes Chamber in Bosnia and Herzegovina, Prosecutor v. Radmilo Vuković, Judgment, 16 April 2007, Case No. X-KR/06/217, English version, at 20 (the Chamber ordered victims to bring their compensation claims before civil courts, maintaining that “the finding of facts with regard to the amount of the [compensation] claim would require a length of time which in turn would unduly lengthen [the criminal] proceedings”). See also International Center for Transitional Justice and Ivannišević (2008), The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court, at 21–22. 141 In Prosecutor v. Gojko Janković, the Chamber stated that there were “quite a few injured parties in the proceedings.” See the War Crimes Chamber in Bosnia and Herzegovina, Prosecutor v. Gojko Janković, Judgment, 16 February 2007, Case No. X-KRZ-05/161, English version, at 78. Neither the information sheet on the case available on the Chamber’s website nor the 16 February 2007 judgment specify the number of victims who sought compensation in the proceedings in the case. The information sheet on the case is available at http://www.sudbih.gov .ba/index.php?opcija=predmeti&id=19&zavrsen=1&jezik=e. Accessed on 1 October 2009. 142 ICC, Situation in Uganda, Decision on Victims’ Application for Participation a/0010/06, a/0064/06, a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, Pre-Trial Chamber II (Single Judge), 10 August 2007, ICC-02/04-101, para. 87. 143 See e.g. McGonigle (2009), “Bridging the Divides in International Criminal Proceedings,” at 140; Trumbull (2008), “The Victims of Victim Participation in International Criminal Proceedings,” at 801; Stahn, Olásolo and Gibson (2006), “Participation of Victims in Pre-Trial Proceedings of the ICC,” at 223.

victim rights in criminal proceedings in situations of mass atrocity231 predominantly common law features are examples of these factors.144 In a study on the impact of the ICTY in Serbia, Diane Orentlicher identifies two aspects exemplifying poor case management in the ICTY: the lack of effective pre-trial management, particularly the inability of judges to narrow down the issues, and the lack of courtroom experience of the presiding judges.145 Indictments with too many charges have also contributed to extending the length of the proceedings before the ad hoc international criminal tribunals.146 As several scholars have pointed out, the adoption of procedural systems with predominantly common law features, sometimes in their pure form, has been another factor contributing to the length of the proceedings before the ad hoc international criminal tribu­nals, as the common law model tends to make proceedings in this context lengthy.147 For example, as several analysts have maintained, a number of rules designed for jury trials, particularly these rules concerning evidentiary matters, are not appropriate in international criminal procedures as decision-making in these procedures is entrusted to professional judges.148 The various reforms made in the ad hoc international criminal tribunals, which have departed from this model and been aimed at reducing the length of the proceedings before these tribunals, confirm this.149 It is also worth noting that, in general in common law jurisdictions, only a minority of cases – about 10% – are subject to the normal trial procedure, as most cases are ended through alternative proceedings, such as submission of a guilty plea.150 In sum, measures should be taken for addressing those factors within the control of international courts that make criminal proceedings more complex and longer. Additionally, it is important to bear in mind that not all delays in criminal proceedings constitute, under international human rights law, infringements of the right of the defendant to a trial without undue delay. Human rights treaties make this clear by forbidding solely undue delays.151 Therefore one should always distinguish between due and undue 144 There are other factors contributing to the complexity and length of criminal proceedings conducted in situations of mass atrocity, particularly proceedings before international tribunals, but which are inherent to these proceedings. These include the difficult legal and factual issues, the large volume of evidence, and the high political stakes involved. Additionally, with respect to proceedings before international criminal tribunals, another factor that makes these proceedings complex is the fact that they target as defendants the political and/or military leadership. See Jouet (2007), “Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court,” at 277. For proceedings before international tribunals, see Diane F. Orentlicher (2008), Shrinking the Space for Denial: The Impact of the ICTY in Serbia (New York: Open Society Institute), at 87. 145 Orentlicher (2008), Shrinking the Space for Denial: The Impact of the ICTY in Serbia, at 22, 86. 146 Id. at 22. 147 See e.g. Zappalà (2003), Human Rights in International Criminal Proceedings, at 27, 114, 249; Trechsel (2005), Human Rights in Criminal Proceedings, at 305–306. See, generally, Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the ICTY and the ICTR, 22 November 1999, UN Doc. A/54/634, para. 82. 148 See e.g. Zappalà (2003), Human Rights in International Criminal Proceedings, at 16; Christoph J.M. Safferling (2001), Towards an International Criminal Procedure (Oxford: Oxford University Press), at 218. 149 See e.g. Zappalà (2003), Human Rights in International Criminal Proceedings, at 27, 249. 150 See e.g. id. at 114. 151 For example, Article 14, para. 3, of the ICCPR provides for the defendant’s right “to be tried without undue delay” (emphasis added).

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delays. On this basis, it can be submitted that reasonable delays resulting from victim access to and participation in criminal proceedings do not infringe on this right of the defendant. This interpretation is supported by long-standing practice in civil law jurisdictions. The recognition of extensive victims’ participatory rights in criminal proceedings by these jurisdictions has consistently been viewed by human rights treaty monitoring bodies as consistent with this right of the defendant. In his Separate Opinion in the ICC Appeals Chamber’s decision of 13 June 2007 in Lubanga, Judge Sang-Hyun Song endorsed this view, when he maintained that: Unless special circumstances exist, [the delay resulting from victims’ participation in the proceedings before the ICC] is not inconsistent with the rights of the accused, but merely a consequence of the fact that the Statute provides for [this participation].152

What is critical is that victim access to and participation in criminal proceedings conducted in situations of mass atrocity take place in such a way that these proceed­ings are not unreasonably delayed.153 The governmental delegations that negotiated and adopted the ICC Rules of Procedure and Evidence endorsed this approach as, by retaining the opportunity for victims to participate in the ICC proceedings, they confirmed that the difficulties that such access and participation could pose to the Court’s task of conducting expeditious proceedings were soluble.154 Similarly, the Office of the Prosecutor of the ICC states as follows in its Policy Paper on Victims’ Participation: [P]articipation is a statutory right, not a privilege bestowed upon victims on a case by case basis. …. On this basis, bureaucratic or resource-related arguments, such as the high number of victims, the costs involved or any other organisational problems require practical solutions: they are never a basis to oppose [victim] participation per se once the legal requirements for participation are met.155

In order to address these concerns, I suggest an approach that, while satisfying the core of victims’ needs for access to and participation in criminal proceedings carried out in situations of mass atrocity, gives due consideration to the requirement that such proceedings be conducted expeditiously and the limited human and financial resources available in these situations. The objective of the following section is to delineate this approach.

152 See Separate Opinion of Judge Sang-Hyun Song, para. 27, in ICC, Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, Appeals Chamber, 13 June 2007, ICC-01/04-01/06 OAS, at 31–32. 153 See e.g. ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, Pre-Trial Chamber I, 13 May 2008, ICC-01/04-01/07-474, paras. 72–74. See also Stahn, Olásolo and Gibson (2006), “Participation of Victims in Pre-Trial Proceedings of the ICC,” at 238; Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 69. 154 Fernández de Gurmendi (2001), “Definition of Victim and General Principle,” at 429. 155 ICC, Office of the Prosecutor, Policy Paper on Victims’ Participation, 12 April 2010, RC /ST/V/M.1, at 4.

victim rights in criminal proceedings in situations of mass atrocity233 IV. Implementing Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity While it is easy to agree that some limitations should be imposed on victim access to and participation in criminal proceedings conducted in situations of mass atrocity, how far these limitations should go is far less clear. The most common limitations in this area are to restrict the content of victim access to and participation in these proceedings, and to require that victim participation there takes place through a legal representative.156 The objective of this section is, then, to examine each of these types of limitations to determine whether they satisfy the core of victims’ needs for access to and participation in criminal proceedings carried out in situations of mass atrocity, and pay due consideration to the requirement that such proceedings be conducted expeditiously and the limited human and financial resources available in these situations. In other words, despite the limitations imposed, the degree of access and participation should still be meaningful for victims.157 A. Should Victim Participation in Criminal Proceedings Carried out in Situations of Mass Atrocity Take Place Only through a Legal Representative? While the requirement that victim participation in criminal proceedings conducted in situations of mass atrocity takes place, as a general rule, through a legal representative has been introduced in some international instruments and endorsed by the case law of a few hybrid criminal tribunals, in my view, when several victims participate in such proceedings in a given case, a reasonable number of them should be able to directly address the concerned court beyond their role as witnesses at the trial phase. This requirement has been introduced in the Rules of the ICC and the revised Internal Rules of the ECCC. The Rules of the ICC empower exclusively the legal representatives of victims to attend and participate in the proceedings before the Court according to the rulings of the concerned Chamber.158 Some commentators who participated in the negotiations of the ICC Rules maintain that “the main measure adopted during [such] negotiations for reconciling the issue of the large number of victims who could seek participation in the ICC proceedings with the need to conduct the proceedings expeditiously was the introduction of the legal representative’s requirement.”159 As mentioned earlier, in 156 An additional option would be to limit those who can be considered as victims for the purposes of access to and participation in criminal proceedings in these situations. However, this is not a real option, as there are widely accepted international standards on the concept of victim of serious human rights violations. See, notably, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN GA, Res. 40/34, 29 November 1985; and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN GA, Res. 60/147, 16 December 2005, UN Doc. A/RES/60/147. For a lengthy discussion of the concept of ‘victim of serious human rights violations’, see above Chapter I, Section II. 157 See Stahn, Olásolo and Gibson (2006), “Participation of Victims in Pre-Trial Proceedings of the ICC,” at 238. 158 See the ICC Rules, Rule 91, paragraph 2. 159 See Fernández de Gurmendi (2001), “Definition of Victim and General Principle,” at 431.

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the 6th revision of the Internal Rules of the ECCC, adopted on 17 September 2010, these Chambers introduced an extensive restructuring of victim participation. Two major modifications introduced were the requirement for legal representation of the victim from the issuance of the Closing Order onwards,160 and for common legal representation of victims from the trial stage onwards.161 The main rationale for the requirement that victim participation in criminal proceedings carried out in situations of mass atrocity takes place, as a general rule, through a legal representative is that it would facilitate expeditious and orderly victim participation there in a number of respects.162 First and foremost, it would facilitate the grouping of victim participants and thus keep at a manageable number those participating in the proceedings. Rule 90 of the ICC Rules empowers the ICC Chambers to request victims to choose a common legal representative or representatives, and in the event the victims are unable to make a selection within the time limit set by the Chamber, to ask the Registrar to choose one or more common legal representatives.163 As noted above, the revised Internal Rules of the ECCC go even further, providing that “[c]ivil parties at the trial stage and beyond shall comprise a single, consolidated group, whose interests are represented by the Civil Party Lead Co-Lawyers….”164 Additionally, the requirement that victim participation in criminal proceedings conducted in situations of mass atrocity takes place, as a general rule, through a legal representative would help in ensuring smooth communication between the judges and the parties involved in the proceedings, as legal representatives have the technical knowledge required for understanding promptly the orders issued by the judge and, in general, the legal issues involved in these proceedings.165 While the ECCC and several scholars have viewed the requirement of legal representation for victim participants in criminal proceedings carried out in situations of mass 160 See the ECCC Rules, Rule 23 ter., paragraph 1. For case-law from the ECCC, see e.g. ECCC, Case against Ieng Sary, Directions on Unrepresented Civil Parties’ Right to Address the Pre-Trial Chamber in Person, Pre-Trial Chamber, 29 August 2008, C22/I/69, at 4, 10 (finding that only in limited circumstances may an unrepresented Civil Party – i.e. a victim without a legal representative – may be granted leave to address the Pre-Trial Chamber directly). ECCC, Case against Ieng Sary, Written Version of Oral Decision of 1 July 2008 on the Civil Party’s Request to Address the Court in Person, Pre-Trial Chamber, 3 July 2008, C22/I/54, para. 3 (holding that only lawyers for civil parties can address the PTC during pre-trial appeals on the basis of Rule 77(10) of the ECCC’s Internal Rules); ECCC, Case against Ieng Sary, Decision on Preliminary Matters Raised by the Lawyers for the Civil Parties in Ieng Sary’s Appeal Against Provisional Detention Order, Pre-Trial Chamber, 1 July 2008, C22/I/46, para. 8. 161 See the ECCC Rules, Rule 23, para. 3. 162 See e.g. ECCC, Case against Ieng Sary, Directions on Unrepresented Civil Parties’ Right to Address the Pre-Trial Chamber in Person, Pre-Trial Chamber, 29 August 2008, C22/I/69, paras. 8, 11; Fernández de Gurmendi (2001), “Definition of Victim and General Principle,” at 429; David (2005), “La Cour Pénale Internationale,” at 410. 163 See ICC Rules, Rule 90, paras. 2–3. See also ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06, para. 116. 164 See Internal Rules of the ECCC, Rule 23, para. 3. 165 See e.g. ECCC, Case against Ieng Sary, Directions on Unrepresented Civil Parties’ Right to Address the Pre-Trial Chamber in Person, Pre-Trial Chamber, 29 August 2008, C22/I/69, paras. 5–7.

victim rights in criminal proceedings in situations of mass atrocity235 atrocity as an adequate means to make victim participation in these proceedings manageable, they have failed to analyse the consequences of their approach for the needs of victims.166 In my view, victim participation in criminal proceedings conducted in situations of mass atrocity should not, at the trial phase at least, be limited to participation through a legal representative. Specifically, I submit that when several victims participate in criminal proceedings in a given case, a reasonable number of them should be able to directly address the court beyond their role as witnesses at the trial phase.167 The official and public nature of criminal proceedings is a first reason why the opportunity to directly address the court is so significant for victims of serious human rights violations. As discussed earlier, these features of criminal proceedings are of critical importance for victims of these infringements not only because State authorities are the representatives of the society, but also because of the nature of these violations and the context in which such infringements are often perpetrated. As analysed above, international human rights bodies have consistently acknowledged that these violations infringe upon fundamental rights of individuals. Furthermore, as discussed above, these infringements are often perpetrated with the active involvement of State officials and surrounded by official denials and cover-ups.168 Therefore, as Brandon Hamber maintains, these infringements, particularly when they are widespread, do not merely harm individuals, but also destroy social relations. They affect a victim’s sense of being part of society.169 Given the official 166 The ECCC have been the only non-domestic court that has so far addressed directly this matter. See e.g. ECCC, Case against Ieng Sary, Directions on Unrepresented Civil Parties’ Right to Address the Pre-Trial Chamber in Person, Pre-Trial Chamber, 29 August 2008, C22/I/69, at 4, 10; ECCC, Case against Ieng Sary, Written Version of Oral Decision of 1 July 2008 on the Civil Party’s Request to Address the Court in Person, Pre-Trial Chamber, 3 July 2008, C22/I/54, para. 3; ECCC, Case against Ieng Sary, Decision on Preliminary Matters Raised by the Lawyers for the Civil Parties in Ieng Sary’s Appeal Against Provisional Detention Order, Pre-Trial Chamber, 1 July 2008, C22/I/46, para. 8. More generally, see the ICTY Rules Committee (2000), Victims’ Com­ pensation and Participation, para. 14 (mentioning as measures for facilitating victims’ participation in criminal proceedings involving a large number of victims, the requirement that victims participate through legal representatives and the authorisation to order their grouping). For scholarly accounts, see Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 69, 143, 153, 195; Mekjan and Varughese (2005), “Hearing the Victim’s Voice: Anal­ ysis of Victims’ Advocate Participation in the Trial Proceeding of the International Criminal Court,” at 23; Briannen McGonigle (2009), “Two for the Price of One: Attempts by the Extraor­ dinary Chambers in the Courts of Cambodia to Combine Retributive and Restorative Justice Principles,” 22 Leiden Journal of International Law 127, at 148; Ryngaert (2008), “Victim Partic­ ipation and Bias in the Cambodian Courts,” at 70; Boyle (2006), “The Rights of Victims,” at 310. 167 See Mariana Goetz (2008), “The International Criminal Court and its Relevance to Affected Communities,” in Nicholas Waddell and Phil Clark (eds.), Courting Conflict? Justice, Peace and the ICC in Africa 65 (London: Royal African Society), at 70. See also Donat-Cattin (2008), “Article 68,” at 1288. 168 See e.g. Cohen (1995), “State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past,” at 18–19. For empirical studies confirming this, see, in addition to those discussed below in this subsection, those analysed in Chapter IV, Section II, Subsection A.i, and Section III, Subsection E. 169 Hamber (2009), Transforming Societies after Political Violence: Truth, Reconciliation, and Mental Health, at 22, 25.

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and public nature of criminal procedures, these procedures not only play an important role in uncovering the truth, but also serve as a significant means for public acknowledgment of what happened.170 While no empirical study has been carried out on the importance for victims of the opportunity to directly address the court beyond their role as witnesses at the trial phase as proposed in this work, several empirical studies examining the reasons why victims want to testify as witnesses in the proceedings before international or hybrid criminal tribunals show that a major motivation for victims to do so is to tell their own or a relative’s story. The above-mentioned study by Phuong N. Pham et al., conducted nearly a year after the ECCC trial in Case 001 ended, found that “[w]hen asked what motivated them to testify, 15 of the 17 [victim participants] wanted to tell their own or a relative’s story.”171 Two empirical studies analysing the reasons why victim-survivors want to testify as witnesses before the ICTY also provide support for my submission on this matter. In his study on the impact of the ICTY on victim-witnesses of the conflict in the former Yugoslavia, based on 127 interviews with victims who gave testimony before the ICTY, Eric Stover found that the main reason why the majority of victim-survivors gave testimony before the ICTY was the following: [T]he compelling need to tell their story. They had survived unspeakable crimes while others had perished; it was their ‘moral duty’ to ensure that the truth about the death of family members, neighbours, and colleagues was duly recorded and acknowledged.172

Likewise, in a report on the impact of the ICTY on victims and perpetrators of war crimes and on Bosnia’s capacity to prosecute war criminals, Diane Orentlicher found that the main reason why victim-survivors want to testify before the ICTY is “to bear witness for those who did not survive.”173 More generally, and notwithstanding the different nature of the proceedings before the Inter-American human rights bodies, the above-mentioned study of the perceptions and experiences of the various actors involved in individual cases before these bodies found that a major reason why the hearing was very important for the victims interviewed and in whose cases a hearing was held, was that it is recognition of their efforts to bring the case before these bodies and of their dignity.174 The other special characteristics of criminal procedures that international human rights bodies have recognised when developing States’ obligations to investigate and prosecute serious human rights violations also explain why the opportunity to directly address the court is very important for victims of these infringements. As analysed earlier, these bodies have consistently maintained that criminal justice proceedings make it possible for a thorough and independent investigation to be conducted and for the criminal responsibility of those involved to be established. 170 See above Chapter IV, Section I, Subsection B; Section II, Subsection A; and Section III, Subsection E. 171 Pham et al. (2011), “Victim Participation and the Trial of Duch at the Extraordinary Chambers in the Courts of Cambodia”, at 275. 172 Stover (2005), The Witnesses: War Crimes and the Promise of Justice in The Hague, at 126, 134. 173 Orentlicher (2010), That Someone Guilty Be Punished: The Impact of the ICTY in Bosnia, at 18–19, 86. 174 Beristain (2008), Diálogos sobre la Reparación: Experiencias en el Sistema Interamericano de Derechos Humanos, Vol. I, at 183.

victim rights in criminal proceedings in situations of mass atrocity237 More generally, and as mentioned in the previous chapter, victims’ opportunity to directly address the court at the trial can enhance their self-esteem as it enables them to give in their own words their versions of events and views on the identity and responsibility of those involved in the crimes of which he or she was victim, and the compensation due. As discussed in the preceding chapter, while measures should be adopted to minimise the negative effects the element of public storytelling may have on victims, I share the view of several experts that victim participatory rights in criminal proceedings and, in particular, victim opportunity to directly address the court can lessen their perceptions of inequity, and their feelings of helplessness and lack of control which often result from the perpetration of serious criminal offences.175 Additionally, as regards the ICC, its Statute does not require that victim participation takes place through a legal representative. This requirement was only subsequently added by the ICC Rules.176 In this respect, it is worth noting that the first sentence of Article 68, paragraph 3, of the ICC Statute provides that victims shall express their views and concerns, and that the last sentence of this paragraph adds that “views and concerns may be presented by the legal representatives.” The word ‘may’ makes clear that participation through a legal representative is not a requirement under this international instrument. It should also be stressed that the ICC Chambers have not taken a strong stance on this matter. While they have recognised that Article 68, paragraph 3, of the ICC Statute “establishes the unequivocal statutory right for victims to present their views and concerns in person when their personal interests are affected,”177 they have said that the determination of whether the personal intervention by victims in order to express their views and concerns is appropriate is to be done on a case-by-case basis and taking into consideration a variety of factors, including the requirements and circumstances of the trial as a whole, and the number of victims who seek to express their views and concerns.178 The specific number of victims to be enabled to directly address the court beyond their role as witnesses at the trial phase would depend on the number of victims participating in the concerned case. In cases in which a large number of victims participate in the proceedings, only a small percentage should be able to directly address the court at the trial. This has been one of the lessons learned from the involvement of victims in truth commissions. As discussed in the previous chapter, while the nature of the proceedings and the victim’s rights before criminal courts proposed in this monograph differ from those before truth commissions, victim involvement in truth commissions shares some

175 See above Chapter IV, Section III, Subsection E. 176 See ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06, paras. 115–116. See also Donat-Cattin (2008), “Article 68,” at 1291; David (2005), “La Cour Pénale Internationale,” at 325–454, 410. 177 See e.g. ICC, Prosecutor v. Lubanga Dyilo, Decision on the request by victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, Trial Chamber I, 26 June 2009, ICC-01/04-01/06-2032-Anx, para. 17; Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06, para. 115. 178 ICC, Prosecutor v. Lubanga Dyilo, Decision on the request by victims a/ 0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, Trial Chamber I, 26 June 2009, ICC-01/04-01/06-2032-Anx, paras. 27, 40.

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common elements with victim access to and participation in criminal proceedings pursuant to the rights identified in this book – in both, victims of serious human rights violations are given the opportunity to give their version of events in public hearings.179 The experience of victims’ involvement in truth commissions demonstrates that, because of the limited time available for the completion of the mandate of these bodies, only a small percentage of the total pool of victims are enabled to testify in public hearings.180 In this respect, Mark Freeman reports that “even the South African [truth commission], which held more public hearings than any other truth commission, only enabled some nine percent of the pool of victims to testify.”181 In conclusion, while I agree that victim participation in criminal proceedings through a legal representative can expedite such participation in situations of mass atrocity and should thus be encouraged in several stages of these proceedings,182 in my view, a reasonable number of victims should be able to directly address the court beyond their role as witnesses at the trial phase. B. Content of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity The objective of this section is to propose and discuss a series of victim rights in criminal proceedings conducted in situations of mass atrocity, drawing on international human rights law, comparative criminal law, and the theory, law and practice of international and hybrid criminal tribunals, and based on the approach suggested in this chapter. By doing so, I seek to contribute to consistency both in law-making and treaty interpretation. As analysed above, currently there is a lack of consistency in the provisions of the statutes of international and hybrid criminal tribunals with respect to the role of victims in the proceedings, and the ICC Chambers have a large degree of freedom in the determination of what victims’ participatory rights under the ICC Statute entail. i. Victim Rights at the Investigation Phase Based on the approach suggested in this chapter and drawing on the sources just mentioned, I propose the following two rights at the investigation stage in situations of mass atrocity for victims of serious human rights violations. First, the right to obtain in a reasonable period of time a decision from the competent prosecution authority as to whether or not an investigation will be conducted with respect to the events as a result of which 179 See above Chapter IV, Section III, Subsection E. 180 See Freeman (2006), Truth Commissions and Procedural Fairness, at 227. See also Declan Roche (2005), “Truth Commission Amnesties and the International Criminal Court,” 45 British Journal of Criminology 565, at 577. As regards the criteria truth commissions adopt for selecting those who testify, Freeman states that usually it is sought to select a mix of persons who will reflect the country’s regional, ethnic, racial, and religious diversity; that diversity is also sought in the periods of history represented or in the kinds of violations; and that consideration is paid to the proportional victimisation of different groups. See Freeman (2006), Truth Commissions and Procedural Fairness, at 228. 181 Freeman (2006), Truth Commissions and Procedural Fairness, at 227. 182 See e.g. Fernández de Gurmendi (2001), “Definition of Victim and General Principle,” at 429; Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 143, 153, 195.

victim rights in criminal proceedings in situations of mass atrocity239 they were harmed. Second, and more importantly, the right to seek judicial review of prosecutorial decisions on the commencement or discontinuance of an investigation or a prosecution, and the charges brought against a defendant involved in the events as a result of which they were victimised. My view differs from that advocated by many in the context of the ICC’s proceedings, namely that victims should be allowed to participate at the stage of the investigation phase which precedes the charging of any particular individual – the so-called ‘situation stage’. In its decision in the situation in the Democratic Republic of Congo of 17 January 2006, the ICC Pre-Trial Chamber I held that victims can participate at this stage of the investigation phase and granted them the following rights: the right to submit their views and concerns regarding the investigation of the concerned situation before the Pre-Trial Chamber; the right to submit pieces of evidence before the Pre-Trial Chamber with respect to the concerned situation; and, the right to request the Pre-Trial Chamber to order specific measures.183 In its decision of 19 December 2008, the ICC Appeals Chamber reversed the Pre-Trial Chamber I’s decision of 17 January 2006. In this decision, the ICC Appeals Chamber rejected the view of the Pre-Trial Chamber that victim procedural status can be granted to victims outside a judicial proceeding, thereby entitling them to participate generally in the investigatory process. Instead, the ICC Appeals Chamber maintained that “participation can take place only within the context of judicial proceedings.”184 Additionally, several scholars have opposed the conferral on victims of the right to participate at the investigation phase on the grounds that such participation would impose a heavy burden on the ICC’s Chambers and the prosecution, and affect the independence and impartiality of the investigation.185 My approach grants victims only the two above-mentioned rights during the investigation phase. By doing so, I address these concerns, while satisfying the main needs of victims at the investigation phase. a. Victims’ Right to Obtain in a Reasonable Period of Time a Decision from the Competent Prosecution Authority as to Whether or Not an Investigation will be Conducted Victims’ right to obtain in a reasonable period of time a decision from the prosecution authority as to whether or not an investigation will be carried out with respect to the

183 See ICC, Situation in the Democratic Republic of Congo, Decision on the Applications to Participate in the Proceedings by VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-Trial Chamber I, 17 January 2006, ICC-01/04-101-tEn-Corr, paras. 59, 75. 184 See ICC, Situation in the Democratic Republic of the Congo, Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, Appeals Chamber, 19 December 2008, ICC-01/04 OA4 OA5 OA6, paras. 43–45, 56. 185 See War Crimes Research Office (2007), Victim Participation before the International Criminal Court, at 49; Elisabeth Baumgartner (2008), “Aspects of Victim Participation in the Proceedings of the International Criminal Court,” 90 International Review of the Red Cross 409, at 415; Trumbull (2008), “The Victims of Victim Participation in International Criminal Proceedings,” at 823–824.

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events as a result of which they were harmed, including the reasons for such decision, is important in the context of situations of mass atrocity for three main reasons. These reasons correspond to the rationales the ECtHR has put forward for its view that in the event of an alleged serious human rights violation, prosecutors should, as a general rule, provide victims with the reasons for their decision not to prosecute.186 First, it grants victims access to information about a matter of crucial importance to them; second, it permits victims to have a decision with respect to which they can seek judicial review; and, lastly, it enhances public confidence in the criminal justice system.187 The practice of the ICTR and the ICC confirms the significance of this right. With respect to the ICTR, there have been concerns that since the Prosecutor of the Tribunal announced in 2004 that he would investigate some of the allegations of international crimes against the Rwandan Patriotic Front (RPF), he has brought no indictment before the Tribunal concerning crimes committed by RPF members but nor has he taken the decision not to investigate such crimes.188 Similarly, on 2 December 2005, fifteen months after the ICC Prosecutor’s decision to open an investigation in Uganda,189 the ICC PreTrial Chamber III convened a Status Conference to receive information from the Prosecution as to whether the investigation in Uganda had been concluded. At that point in time, only five rebel leaders had been indicted in the Ugandan situation. There was therefore the fear that other perpetrators of heinous crimes would not be indicted.190 Additionally, in the context of the ICC, in which there is the distinction between investigation of a situation and of a case, the issue of the timing of the prosecution’s decision on whether or not to commence an investigation with respect to a situation has also arisen. It arose when the Central African Republic requested the Pre-Trial Chamber III to seek information from the Prosecutor on “the alleged failure to decide, within a

186 See e.g. ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96, para. 118. 187 Id. para. 117. 188 Letter from Hassan B. Jallow, Chief Prosecutor of the ICTR, to Kenneth Roth, Human Rights Watch Executive Director, 22 June 2009, OTP/2009/P/084, at 1–2. See also Letter from Human Rights Watch Executive Director, Kenneth Roth, to the ICTR’s Chief Prosecutor, Hassan Jallow, in Response to the latter’s Letter on the Prosecution of RPF Crimes, 14 August of 2009, available at http://www.hrw.org/en/news/2009/08/14/letter-ictr-chief-prosecutor-hassan -jallow-response-his-letter-prosecution-rpf-crime?print. Accessed on 10 September 2011; Joint Letter from Sidiki Kaba, International Federation of Human Rights, and Kenneth Roth, Human Rights Watch Executive Director, to UN Security Council, 1 June 2006, ICTR Should Address Serious Violations of International Humanitarian Law Committed by the RPA, available at http:// www.hrw.org/en/news/2006/06/01/ictr-should-address-serious-violations-international -humanitarian-law-committed-rpa. Accessed on 10 February 2012. For a scholarly account, see Kamatali (2005), “From the ICTR to ICC: Learning from the ICTR Experience in Bringing Justice to Rwandans,” at 100–102. 189 The ICC Prosecutor took the decision to open an investigation in the situation of Uganda on 29 July 2004. See http://www.icc-cpi.int/menus/icc/situations%20and%20cases/situations/ situation%20icc%200204/. Accessed on 1 October 2011. 190 ICC, Situation in Uganda, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in relation to the Application of Article 53, Pre-Trial Chamber III, 2 December 2005, ICC-02/04-01/05.

victim rights in criminal proceedings in situations of mass atrocity241 reasonable time, whether or not to initiate an investigation ….”191 In its decision on this request, the Pre-Trial Chamber III specifically held that “the preliminary examination of a situation … must be completed within a reasonable time … regardless of its complexity.”192 b. Victims’ Right to Seek Judicial Review of Prosecutorial Decisions on the Commencement or Discontinuance of Investigations or Prosecutions and the Charges Brought against a Defendant This subsection addresses the proposed right of the victim to seek judicial review of prosecutorial decisions on the commencement or discontinuance of an investigation or a prosecution and the charges brought against a defendant, with a twofold objective: to put forth several rationales for this right; and to address the main arguments against it. i. Rationales for this Right In addition to the rationales for victims’ right to request judicial review of prosecutorial decisions on the commencement or discontinuance of investigations or prosecutions mentioned in the previous chapter,193 judicial review of prosecutorial decisions in these areas is particularly important in situations of mass atrocity because of the broad discretion prosecutors enjoy in these situations. This discretion is due to the large number of serious human rights violations involved in these situations, and the limited human and financial resources available to deal with them.194 This right can help ensure the observance by prosecutors of some minimum principles in the exercise of their discretion in these areas.195 These minimum principles include the requirements for equal treatment and for due consideration of the gravity of the crime and victims’ views in prosecutorial decision-making.196 The recognition of this right of victims also conforms to the trend in

191 See ICC, Situation in the Central African Republic, Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, PreTrial Chamber III, 30 November 2006, ICC-01/05-6, at 3. 192 Id. at 4. In this case, it seems that the Pre-Trial Chamber III accepted the Prosecution’s response that no decision had been taken yet as to whether or not to initiate an investigation. See ICC OTP, Situation in the Central African Republic, Prosecution’s Report Pursuant to Pre-Trial Chamber III’s 30 November 2006 Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, 15 December 2006, ICC-01/05-7, para. 1. 193 See above Chapter IV, Section IV, Subsection A. 194 See ICTY, Prosecutor v. Delalic et al., Judgment, Appeals Chamber, 20 February 2001, IT-96-21-A, para. 602. For scholarly accounts, see e.g. Drumbl (2007), Atrocity, Punishment, and International Law, at 152; Matthew R. Brubacher (2004), “Prosecutorial Discretion within the International Criminal Court,” 2 Journal of International Criminal Justice 71, at 75. 195 See e.g. Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 152; Danner (2003), “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court,” at 534–540; Jouet (2007), “Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court,” at 257. 196 ICTY, Prosecutor v. Delalic et al., Judgment, Appeals Chamber, 20 February 2001, IT-96-21-A, paras. 602–607. See also ICTR, Prosecutor v. Akayesu, Judgment, Appeals Chamber, 1 June 2001, ICTR-96-4-A, paras. 94–96; ICTR, Prosecutor v. Ntakirutimana, Decision on the Prosecutor’s

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international practice towards the acknowledgment of the right of victims of serious human rights violations to ask for judicial review of key prosecutorial decisions.197 This right is of critical importance for victims of serious human rights violations perpetrated in situations of mass atrocity in another respect as well. It serves to prevent prosecutors in these situations, through case and charge selection, from unduly depriving victims of the opportunity to participate in criminal proceedings, as according to current case law only victims who have suffered harm from one of the charges brought against a defendant can participate in the proceedings once these charges have been confirmed by the concerned judge.198 Judicial review of these prosecutorial decisions is also needed because of several features of international criminal tribunals. To begin with, the checks and balances that exist with respect to the powers of international prosecutors are not completely satisfactory. The control, mostly entrusted to political bodies, is mainly informal and exercised in a generic fashion – i.e. with respect to the strategy as a whole, not over specific decisions.199 Additionally, judicial review can help ensure no undue influence from political factors in prosecutorial decisions.200 This is essential as the heavy dependence of international criminal tribunals on political actors, particularly powerful States, for their operations – e.g. arrests and collection of evidence – and resources may lead to political factors exerting undue influence on prosecutorial decisions.201 Judicial scrutiny can also serve to dispel Motion to Join the Indictments, Trial Chamber, 22 February 2001, ICTR-96-10-I and ICTR 96-17T, paras. 870–887; ICTR, Prosecutor v. Ndindiliyimana, Decision on Urgent Motion for a Stay of the Indictment, or in the Alternative a Reference to the Security Council, Trial Chamber II, 26 March 2004, ICTR-2000-56-I, para. 2. For scholarly accounts, see William A. Schabas (2008), “Prosecutorial Discretion v. Judicial Activism at the International Criminal Court,” 6.4 Journal of International Criminal Justice 731, at 749; Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” at 257. 197 See above Chapter IV, Section IV, Subsection A. 198 For discussion on the issue of which victims can participate once an indictment has been confirmed by the concerned judge, see below in this Section, Subsection B.ii. 199 Daniel D. Ntanda Nsereko (2005), “Prosecutorial Discretion before National Courts and International Tribunals,” 3 Journal of International Criminal Justice 124, at 144. See also Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” at 248–249; Luc Côte (2005), “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” 3 Journal of International Criminal Justice 162, at 186. Regarding the ICC’s Prosecutor, Stahn states specifically that while the Assembly of States Parties (“ASP”) exercises general political control over he or she pursuant to Article 112, para. 2, of the ICC Statute, and certain forms of formal accountability – e.g. election and removal of the Prosecutor, these forms of control are limited. First, the control exercised by the ASP is too limited in scope as it concerns prosecutorial performance as a whole. Second, the control exercised by the ASP is political, as this body is made up of diplomats from Member States. Third, the control is limited because of the temporary mandates of elected and appointed officials, the high threshold for removal from office and the voting majority required. Lastly, it is undifferentiated in its sanction as it consists of either removal from office or disciplinary measures. See Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” at 254–255, 259, 278. 200 Côte (2005), “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” at 186. 201 See e.g. Minow (1998), Between Vengeance and Forgiveness, at 30, 37, 40, 122; Drumbl (2007), Atrocity, Punishment, and International Law, at 152; Ratner, Abrams and Bischoff (2009), Accountability for Human Rights Atrocities in International Law, at 252.

victim rights in criminal proceedings in situations of mass atrocity243 claims of politically biased prosecutorial decisions, which are prone to arise with respect to international criminal proceedings because of their focus on prosecuting those at the leadership level.202 The many instances in which concerns have arisen with respect to the exercise of prosecutorial discretion in situations of mass atrocity confirm the necessity of granting victims the right to seek judicial review of a prosecutor’s decision on the commencement or discontinuance of investigations or prosecutions, and the charges brought against a defendant involved in the events as a result of which they were victimised. Several of these instances have been related to decisions of the prosecutors of the ad hoc international criminal tribunals and the ICC. In addition to the well-known debate that arose following the ICTY Prosecutor’s decision not to investigate the 1999 NATO bombing campaign against the Federal Republic of Yugoslavia,203 it is worth noting the finding of a study conducted in 1999 with judges and prosecutors from Bosnia with primary or appellate jurisdiction for national war crimes trials, that an area of concern for those interviewed with respect to the work of the ICTY was the way in which cases were selected.204 In particular, regarding case selection, those interviewed stated that they “did not understand how the ICTY set priorities for investigations and prosecutions.”205 Concerns have also arisen with respect to the exercise of prosecutorial discretion in the ICTR. As mentioned earlier, while the Prosecutor of the Tribunal announced in 2004 that he would investigate some of the allegations of international crimes against the Rwandan Patriotic Front (“RPF”) and handed over at least one case against RPF members to the Prosecutor General of Rwanda, he has so far brought no indictment before the Tribunal concerning crimes committed by RPF members.206 In a letter dated 22 June 2009, the

202 Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” at 256. 203 ICTY, Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report to the Prosecutor, 8 June 2000, para. 3, reprinted in 39 ILM 1257 (2000) (hereinafter NATO Report). For a scholarly analysis, see Danner (2003), “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court,” at 538–540. 204 The Human Rights Center and the International Human Rights Clinic, University of California, Berkeley, and the Centre for Human Rights, University of Sarajevo (2000), “Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors,” 18 Berkeley Journal of International Law 102, at 136–137, 140. 205 Id. at 137. 206 Letter from Hassan B. Jallow, Chief Prosecutor of the ICTR, to Kenneth Roth, Human Rights Watch Executive Director, 22 June 2009, OTP/2009/P/084, at 1–2. See also Letter from Human Rights Watch Executive Director, Kenneth Roth, to the ICTR’s Chief Prosecutor, Hassan Jallow, in Response to the latter’s Letter on the Prosecution of RPF Crimes, 14 August of 2009, available at http://www.hrw.org/en/news/2009/08/14/letter-ictr-chief-prosecutor-hassan-jallowresponse-his-letter-prosecution-rpf-crime?print. Accessed on 10 September 2011. Joint Letter from Sidiki Kaba, International Federation of Human Rights, and Kenneth Roth, Human Rights Watch Executive Director, to the UN Security Council, 1 June 2006, ICTR Should Address Serious Violations of International Humanitarian Law Committed by the RPA, available at http://www.hrw.org/en/news/2006/06/01/ictr-should-address-serious-violations-international-humanitarian-law-committed-rpa. Accessed on 10 September 2011. For a scholarly account, see Kamatali (2005), “From the ICTR to ICC: Learning from the ICTR Experience in Bringing Justice to Rwandans,” at 100–102.

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ICTR Prosecutor, Hassan B. Jallow, justified the approach of his office on the grounds that genocide is the main crime base within the ICTR jurisdiction.207 Similarly, Alex OboteOdora, Chief of the Appeals and Legal Advisory Division in the ICTR Office of the Prosecutor, stated that, “the focus [of the ICTR Prosecutor] was and remains on the prosecution of the crime of genocide and crimes against humanity.”208 Additionally, the ICTR Prosecutor, Hassan B. Jallow, stated in the above-mentioned letter of 22 June 2009 that the issuance of indictments in these cases, as in any other: … will be based solely on the availability of credible evidence … and not on extraneous considerations or feelings of maintaining ‘balancing acts’ by indicting ‘all sides’ to the Rwandan armed conflict.209

It is, however, difficult to reconcile the view of the ICTR Office of the Prosecutor with the very terms of the ICTR Statute that covers both genocide and other serious violations of international humanitarian law.210 The view of the ICTR Office of the Prosecutor is particularly troublesome because of the serious allegations of atrocities committed by RPF members that have been made.211 There have also been concerns regarding the case selection and charging decisions of the ICC Prosecutor. In particular, the fact that the ICC Prosecutor has avoided investigating and prosecuting current members of the government in the DRC and Uganda situations is troubling. Several analysts and victims’ organisations maintain that this has significantly affected the legitimacy of the Court among the victimised populations in these countries.212 An empirical study of the Victims’ Rights Working Group, a network of national and international civil society groups and experts created in 1997, provides support for this. The study, providing a compilation of the responses to a questionnaire on stocktaking circulated to 350+ members of the Group, as well as the result of 207 Letter from Hassan B. Jallow, Chief Prosecutor of the ICTR, to Kenneth Roth, Human Rights Watch Executive Director, 22 June 2009, OTP/2009/P/084, at 3. 208 Alex Obote-Odora (2009), “Case Selection and Prioritization Criteria at the International Criminal Tribunal for Rwanda,” in Morten Bergsmo (ed.), Criteria for Prioritizing and Selecting Core International Crimes Cases 41 (Oslo: PRIO), at 47, 51–52. 209 Letter from Hassan B. Jallow, Chief Prosecutor of the ICTR, to Kenneth Roth, Human Rights Watch Executive Director, 22 June 2009, OTP/2009/P/084, at 1. See also Obote-Odora (2009), “Case Selection and Prioritization Criteria at the International Criminal Tribunal for Rwanda,” at 52. 210 See the ICTR Statute, Arts. 2-4. 211 According to Human Rights Watch, the United Nations High Commissioner for Refugees has documented the reported killing of 30,000 people by RPF soldiers in 1994. See Letter from Human Rights Watch Executive Director, Kenneth Roth, to the ICTR’s Chief Prosecutor, Hassan Jallow, in Response to the latter’s Letter on the Prosecution of RPF Crimes, 14 August of 2009, available at http://www.hrw.org/en/news/2009/08/14/letter-ictr-chief-prosecutor -hassan-jallow-response-his-letter-prosecution-rpf-crime?print. Accessed on 10 September 2011. See also Letter from Human Rights Watch Executive Director, Kenneth Roth, to the Prosecutor of the ICTR regarding the Prosecution of RPF Crimes, 26 May 2009, available at http://www.hrw.org/node/83536. Accessed on 10 September 2011. 212 Phil Clark (2008), “Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda,” in Nicholas Waddell and Phil Clark (eds.), Courting Conflict? Justice, Peace and the ICC in Africa 44 (London: Royal African Society), at 44. See also “Reactions to Lubanga Confirmation in Bunia,” Access, Issue 8, Spring 2007, at 8.

victim rights in criminal proceedings in situations of mass atrocity245 numerous outreach activities undertaken by civil society to consult with victims and affected communities, including in countries such as Burma, Colombia, the DRC and Uganda, found the following: [V]ictims and the community organisations that work with them are disappointed at the limited number of arrest warrants so far, and are dismayed that high ranking officials have not been mentioned. In Ituri, where the first cases are underway before the ICC, victims from localities that are not covered by the charges felt that this is unjustified because they have suffered the same atrocities.213

Paul Seils, who until October 2008 was the head of the Situation Analysis Section of the ICC Office of the Prosecutor (hereinafter “ICC-OTP”), counters the argument of one-sided prosecutions in the DRC, Uganda and the CAR situations, making a three-fold argument. First, he maintains that the cases selected for investigation in these countries “were among the gravest for which credible and reliable information existed at the point of beginning the … investigation.” Second, he submits that the ICC-OTP does not view “the idea of the equivalence of blame as a legitimate criterion of selection.” Lastly, he maintains that in the DRC’s situation, cases have been brought against various actors, including “the leaders of the rival factions of the UPC and the FNI.”214 Furthermore, various observers and victims’ organisations have maintained that the fact that the ICC Prosecutor only brought charges of child recruitment-related war crimes in the Lubanga case has diminished the legitimacy of the Court, as in their view, it displays a choice for expeditious trials, rather than trying the gravest crimes.215 In this respect, it is worth noting that Lubanga was imprisoned in the DRC on charges of genocide and crimes against humanity.216 Paul Seils, who, as mentioned earlier, was until October 2008 the head of the Situation Analysis Section of the ICC-OTP, explains the case selection in Lubanga on an exceptional ground, what he calls the principle of opportunity. In this respect, Pauls Seils states as follows: At the time in question, Lubanga had been detained for almost a year in Kinshasa by the DRC authorities in relation to matters not being investigated by the OTP. His detention was to be the subject of judicial review on the expiry of a twelve-month period. The Office considered that in the particular circumstances that prevailed, there was a reasonable chance that a judge might order the release of Lubanga at that time. The Office did not claim it was anything more than a possibility, but it quite reasonably was not inclined to take unnecessary risks at that

213 Victims’ Rights Working Group (2010), The Impact of the Rome Statute System on Victims and Affected Communities (London: Victims’ Rights Working Group), at 14. 214 Paul Seils (2009), “The Selection and Prioritization of Cases by the Office of the Prosecutor of the International Criminal Court,” in Morten Bergsmo (ed.), Criteria for Prioritizing and Selecting Core International Crimes Cases (Oslo: PRIO), at 60. 215 Clark (2008), “Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda,” at 41. See also “Reactions to Lubanga Confirmation in Bunia,” Access, Issue 8, Spring 2007, at 8. For a criticism of the charges brought in cases concerning Northern Uganda and Sudan on the grounds of the small number of specific incidents they concern, see “Sudan Victims’ Lawyers Recount their Experiences with the ICC so far,” Access, Issue 9, Summer/Autumn 2007. 216 Schabas (2008), “Prosecutorial Discretion v. Judicial Activism at the International Criminal Court,” at 743.

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chapter five point: the arrest of suspects is quite easily the greatest challenge facing the ICC – the efficacy of the Court depends significantly on suspects being brought to trial.  At that point, the Office was not in a position to bring charges in relation to matters other than the recruitment of child soldiers. It therefore elected to seek an arrest warrant on this limited ground in order to avoid the risk of Lubanga being released and rendering the prospect of his future arrest much more difficult.217

According to Seils, this principle is to be applied in exceptional circumstances as a departure from the prevalent criterion, gravity.218 ii. Addressing Criticisms of this Right There are two main arguments against the proposed right of the victim to seek judicial review of prosecutorial decisions on the commencement or discontinuance of an investigation or a prosecution, and the charges brought against a defendant in situations of mass atrocity. First, it has been argued that judicial review of the decisions of prosecutors on these matters would undermine their independence.219 This view is unpersuasive as it fails to take into account that such a review serves to reaffirm the objectives that independent prosecutorial decision-making pursues. Unlike other actors involved in criminal proceedings, often driven by self-interest, judges aim through their review at ensuring the equitable and consistent enforcement of criminal law.220 Judicial review of the decisions of prosecutors on these matters in situations of mass atrocity has also been opposed on the grounds that these decisions involve non-legal considerations. In particular, it has been maintained that case selection in these situations involves a comparative assessment of several cases and demands access to information “on the whole crime base,” which only the Prosecutor has.221 More radically, some scholars argue that situation and case selection in situations of mass atrocity involve political choices which prosecutors are best placed to make. In this respect, Alexander Greenawalt claims that the decision to prosecute by the ICC in transitional justice contexts “requires complex policy judgments about what form of transitional justice is best suited to a particular situation” and that the questions involved in these contexts cannot be effectively subject to rule-based decision making.222 I disagree with this view, as one should not rule out judicial review with respect to prosecutorial decisions on these matters in situations of mass atrocity.223 Rather, it is

217 Seils (2009), “The Selection and Prioritization of Cases by the Office of the Prosecutor of the International Criminal Court,” at 58. 218 Id. at 58. 219 See e.g. Hassan B. Jallow (2005), “Prosecutorial Discretion and International Criminal Justice,” 3 Journal of International Criminal Justice 124, at 152. 220 See e.g. Côte (2005), “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” at 186. 221 Jallow (2005), “Prosecutorial Discretion and International Criminal Justice,” at 155. 222 Alexander K.A. Greenawalt (2007), “Justice Without Politics? Prosecutorial Discretion and the International Criminal Court,” 39 N.Y.U. Journal of International Law and Policy 583, at 650, 654. 223 I focus my discussion here on case selection as, despite the importance of situation selection, the ICC is the only body empowered to do the latter.

victim rights in criminal proceedings in situations of mass atrocity247 necessary to distinguish between the various criteria informing prosecutorial decisionmaking and thus set a standard of judicial review that suits the nature of each criterion.224 It is generally accepted that there are four types of factors informing prosecutorial decision-making in situations of mass atrocity: first, the criterion of gravity; second, the criterion of representativeness, which as the ICC Office of the Prosecutor puts it, means that “incidents will be selected to provide a sample that is reflective of the gravest incidents and the main types of victimization;”225 and, third and fourth, there are policy and practical factors.226 I submit then that while the criteria of gravity and representativeness can be subject to a high standard of judicial review, policy and practical factors should be subject to a low standard of judicial review. As the practice of international criminal tribunals has shown, the criterion of gravity of the case, encompassing both gravity of the offence and the seriousness of the responsibility of the person to be charged, can be subject to a high standard of judicial review. The UN Security Council has requested both the ICTR and the ICTY: …in reviewing and confirming any new indictment to ensure that such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant tribunal.227

Pursuant to the UN Security Council’s request, on 6 April 2004 the ICTY judges amended Rule 28 (A) of the ICTY Rules of Procedure and Evidence in order to empower the Tribunal’s Bureau to examine, during the review procedure of the indictment, whether the proposed indictment “concentrates on one or more of the most senior leaders suspected of being most responsible for the crimes within the jurisdiction of the Tribunal.”228

224 See e.g. Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” at 257; Côte (2005), “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” at 162–186; Mandy Burton (2001), “Reviewing Crown Prosecution Service Decisions Not to Prosecute,” 2001 Criminal Law Review 374, at 380, 383. 225 ICC, The Office of the Prosecutor, Report on Prosecutorial Strategy, 14 September 2006, at 5–6. 226 It has been reported that in 1995 the ICTY’s Office of the Prosecutor adopted a set of case selection criteria, which can be divided into five groups: first, the person to be prosecuted; second, the serious nature of the concerned crime; third, policy considerations; fourth, practical considerations; and last, other relevant considerations. See Morten Bergsmo, Kjetil Helvig, Ilia Utmelidze and Gorana Žagovec (2009), The Backlog of Core International Crimes Case Files in Bosnia and Herzegovina, FICHL Publication Series (Oslo: PRIO), at 68–73. Similarly, the Office of the Prosecutor of the ICC has publicly announced that one principle of its prosecutorial strategy is to focus on the most serious crimes and those who bear the greatest responsibility for these crimes. See ICC, The Office of the Prosecutor, Report on Prosecutorial Strategy, 14 September 2006, at 5. 227 See UN Security Council, Res. 1503, 28 August 2003, UN Doc. S/RES/1503 (2003), and UN Security Council, Res. 1534, 26 March 2004, UN Doc. S/RES/1534 (2004). 228 Rule 28 (A) of the ICTY’s Rules of Procedure and Evidence reads as follows: “On receipt of an indictment for review from the Prosecutor, the Registrar shall consult with the President. The President shall refer the matter to the Bureau which shall determine whether the indictment, prima facie, concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal.” See ICTY Rules of Procedure and Evidence, adopted on 11 February 1994 and as amended more recently, on 20 October 2011, Doc. IT/32/Rev. 46.

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The Pre-Trial Chambers of the ICC have also exercised judicial control over leadership criteria in the selection of cases when examining the Prosecutor’s applications for an arrest warrant. The ICC Pre-Trial Chambers have made this on the basis of the gravity requirement set forth in Article 17 (1) (d) of the ICC Statute.229 The criterion of representativeness of prosecutorial case selection can also be subject to objective determination and thus to strict judicial review. As mentioned earlier, according to the ICC Office of the Prosecutor, this criterion means that “incidents will be selected to provide a sample that is reflective of the gravest incidents and the main types of victimization.”230 Judges can overcome any initial shortcoming in information on these matters by requesting the prosecutor to provide additional information. Judicial review can also be exercised over policy and practical considerations, although the standard of review with respect to these elements should be low because of the nature of these considerations.231 An example of a provision empowering international judges to scrutinise prosecutorial decisions based on policy considerations is Article 53, paragraph 3(b), of the ICC Statute. This article grants the ICC’s Pre-Trial Chamber the power to review on its own initiative a Prosecutor’s decision not to investigate or prosecute based solely on ‘the interests of justice’ criterion. The principle of equality before the law and the prohibition of non-discrimination are examples of limits on prosecutors’ decisions on the initiation of investigations and the preparation of indictments based on political and practical considerations. In the Čelebići case, the ICTY’s Appeals Chamber made clear that the Tribunal’s Prosecutor is obliged to observe these principles when it held that the Prosecutor’s power to initiate an investigation and prepare an indictment is to be exercised “with full respect of the law,” including “recognised principles of human rights” such as the principle of equality before the law and the requirement of non-discrimination. According to the Appeals Chamber, the legal test in this respect consists of showing that the decision to prosecute the concerned person was based on an impermissible motive, such as race or religion, and that similarly situated persons were not prosecuted.232 Another ground for judicial review that can be adopted with respect to prosecutorial decisions based on policy and practical factors is that of irrationality, which is well-established in several domestic jurisdictions granting 229 See e.g. ICC, Prosecutor v. Lubanga Dyilo, Decision on the Prosecutor’s Application for a Warrant of Arrest, Pre-Trial Chamber I, 10 February 2006, ICC-01/04-01/06, at 3. For scholarly accounts, see Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” at 273– 274; Côte (2005), “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” at 169–170. 230 ICC, The Office of the Prosecutor, Report on Prosecutorial Strategy, 14 September 2006, at 5–6. 231 See, generally, Burton (2001), “Reviewing Crown Prosecution Service Decisions Not to Prosecute,” at 380, 383. 232 ICTY, Prosecutor v. Delalic et al., Judgment, Appeals Chamber, 20 February 2001, IT-96-21-A, paras. 602–607. See also ICTR, Prosecutor v. Akayesu, Judgment, Appeals Chamber, 1 June 2001, ICTR-96-4-A, paras. 94–96; ICTR, Prosecutor v. Ntakirutimana, Decision on the Prosecutor’s Motion to Join the Indictments, Trial Chamber, 22 February 2001, ICTR-96-10-I and ICTR 96-17T, paras. 870–887; ICTR, Prosecutor v. Ndindiliyimana, Decision on Urgent Motion for a Stay of the Indictment, or in the Alternative a Reference to the Security Council, Trial Chamber II, 26 March 2004, ICTR-2000-56-I, para. 2. For scholarly accounts, see Schabas (2008), “Prosecutorial Discretion v. Judicial Activism at the International Criminal Court,” at 749; Stahn (2009), “Judicial Review of Prosecutorial Discretion: Five Years on,” at 257.

victim rights in criminal proceedings in situations of mass atrocity249 prosecutors broad discretion in deciding whether or not to prosecute a case – e.g. in English law.233 ii. Victim Rights at the Trial Phase This subsection examines the scope of the proposed victims’ participatory rights at the trial phase of criminal proceedings carried out in situations of mass atrocity. Additionally, and as a preliminary matter, it addresses the question as to which victims can participate at the trial phase of criminal proceedings conducted in these situations. a. Victims Entitled to Participate at the Trial Phase of Criminal Proceedings Conducted in Situations of Mass Atrocity An initial question that needs to be addressed is which victims can participate at the trial phase of criminal proceedings conducted in situations of mass atrocity. This matter is important as, because of the large number of serious human rights violations perpetrated in these situations and the fact that prosecutions in such situations tend to focus on the leadership of the various factions involved, it will usually be the case that the charges against a given defendant would fail to encompass all the offences for which he or she is allegedly responsible. There are two main approaches to this matter. While the first approach posits that only victims who have suffered harm from one of the charges brought against the defendant can participate at the trial phase of the proceedings, the second approach maintains that any victim who has been harmed as a result of a crime for which the defendant allegedly bears responsibility can, under certain circumstances, participate at the trial. While the ICC has been the only international criminal tribunal that has dealt with this matter, its Chambers have differed in this respect. On the one hand, various ICC Chambers – including the Appeals Chamber – have held that only victims who have suffered harm from one of the charges brought against a defendant can participate at the trial phase.234 Four main arguments have been made for supporting this view. First, it has been maintained that the objective of trial proceedings is “the determination of the guilt or innocence of the accused person of the crimes charged.”235 Second, it has been argued 233 See Brubacher (2004), “Prosecutorial Discretion within the International Criminal Court,” at 85–86. 234 See ICC, Prosecutor v. Lubanga Dyilo, Decision on the Application for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case the Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, 29 June 2006, ICC-01/04-01/06-172-tEN, at 6–8; ICC, Prosecutor v. Lubanga Dyilo, Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of the Congo, Pre-Trial Chamber I, 28 July 2006, ICC01/04-01/06-228-tEn, at 8–9, 16; ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the 97 Applications for Participation at the Pre-Trial Stage of the Case, Pre-Trial Chamber I, 10 June 2008, ICC-01/04-01/07, paras. 65–66; ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, para. 65. 235 See e.g. ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, para. 62.

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that the jurisdiction of the concerned trial court is limited to the determination of the charges which are the subject of the trial.236 Third, it has been asserted that if victims of crimes other than those which are subjects of the trial were allowed to participate at this phase, the defendant would have “to face evidence and interventions that bear no relation to the charges brought against him.”237 Last, and related to the previous argument, it has been maintained that the participation of victims of crimes other than those included in the charges brought by the prosecution could lead the concerned trial court to make findings based on evidence outside the scope of the charges against the accused.238 On the other hand, the ICC Trial Chamber I in Lubanga and the Pre-Trial Chamber II in the situation of Uganda adopted the view that any victim harmed as a result of a crime for which the defendant allegedly bears responsibility can participate at the trial phase subject to the condition that he or she can demonstrate that the particular crime falls within the ICC jurisdiction and that his or her “interests are affected by the evidence or issue arising [at this phase].”239 In supporting its view in this respect, the ICC Trial Chamber I in Lubanga maintained that neither Rule 85 of the ICC Rules nor the provisions of the ICC Statute restrict victim participation to those victims who have been harmed as a consequence of the crimes contained in the charges confirmed by the Pre-Trial Chamber.240 Additionally, in order to understand the approach of the ICC Trial Chamber I in Lubanga it is important to bear in mind that, in this decision, the Chamber took the view that victim participation can be granted not only for the entirety of the proceedings, but also with respect to specific proceedings of the trial phase – e.g. the examination of a given witness or the discussion of a particular legal matter or piece of evidence.241 In my view, only victims who have suffered harm from one of the charges brought against a defendant can participate at the trial phase of criminal proceedings conducted in situations of mass atrocity. This approach is necessary mainly because, as various

236 Id. para. 63. 237 This argument was made by Lubanga’s defence in the proceedings concerning its and the Prosecutor’s appeals against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008. See ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, para. 48. 238 Dissenting Opinion of Judge René Blattman, para. 11, in ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06. See also Chung (2008), “Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?,” at 519–520. 239 See ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06-1119, paras. 95–96. See also ICC, Situation in Uganda, Decision on Victims’ Application for Participation a/0010/06, a/0064/06, a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, Pre-Trial Chamber II, 10 August 2007, ICC-02/04-101, paras. 12, 106. 240 ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06, paras. 96. 241 Id. para. 96.

victim rights in criminal proceedings in situations of mass atrocity251 ICC Chambers have held, the jurisdiction of the concerned trial court is limited to the determination of the charges which are the subject of the trial.242 There are also practical reasons in favour of this view. Because of the large number of victims involved in situations of mass atrocity and the fact that prosecutions in such situations tend to focus on the leadership of the various factions involved, this is the only option that allows the number of victims to be narrowed to a manageable number. On the other hand, it is worth reiterating the importance of granting victims the proposed right to seek judicial review of prosecutorial charging decisions in situations of mass atrocity, as judicial review can remedy any potential abuse resulting from these prosecutorial decisions.243 b. Content of Victims’ Rights at the Trial Phase This subsection focuses on the content of the proposed victims’ participatory rights at the trial phase of criminal proceedings conducted in situations of mass atrocity, as there is wide agreement on the recognition of victim right to receive information, and to be treated with respect, even in criminal proceedings carried out in these situations.244 In addition to the above-discussed victims’ right to directly address the court,245 victims’ legal representatives should be recognised as having the following rights at the trial phase of criminal proceedings conducted in situations of mass atrocity: first, the right to give the victim’s version of events and views on the clarification of the facts, and the identification and prosecution of those responsible; second, the right to offer evidence pertaining to the guilt or innocence of the accused; and, last, the rights to examine and challenge the admissibility or relevance of evidence. It should be noted that, unlike victim rights in criminal procedures conducted in situations of isolated serious human rights violations, I recognise that, in proceedings involving many victims and subject to what was said earlier regarding the right of the victim to directly address the court, these rights should be exercised through a legal representative, who may even be a joint representative.246 This can facilitate significantly the expeditiousness of the proceedings. The right of the legal representative of the victim to give the latter’s version of events and views on the clarification of the facts, and the identification and prosecution of those responsible is, together with the right to directly address the court for a reasonable number of victims, the core of the right of the victim to be heard. Based on the arguments put forward previously, I submit that this right enables the representative of the victim, as a general rule, to make oral submissions.247 It should be clarified that this right does not require that the legal representative of the victim is granted the opportunity to give his or her views with respect to every single issue arising at the trial phase. In my view, it suffices 242 See e.g. ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10, para. 63. 243 See above in this section, Subsection B.i. 244 See e.g. War Crimes Research Office (2009), Victim Participation at the Case Stage of Proceedings (Washington D.C.: Washington College of Law), at 38. 245 See above in this section, Subsection A. 246 Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 69, 143, 153, 195. 247 See above Chapter IV, Section IV, Subsection B.i.

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to give the legal representative of the victim this right regarding critical issues arising in this stage of the proceedings. In this respect, it is worth noting that the ICC Chambers have consistently recognised the right of the legal representative of the victim to make opening and closing statements at the confirmation of charges stage, which, although it is a phase prior to the trial, has some similarities with the latter.248 I have discussed in the previous chapter the legal bases and rationales of the victim’s rights to offer and examine evidence pertaining to the guilt or innocence of the accused, and to challenge the admissibility or relevance of evidence at the trial. iii. Steps Needed for the Recognition of these Victim Rights Although in order to ground these rights I have drawn on international human rights law, comparative criminal law and the theory, law and practice of international and hybrid criminal tribunals, I acknowledge that this is an area where some law making activity at the international level is needed. There are three main reasons for this: first, human rights instruments and bodies have not specifically dealt with this matter; second, the provisions of the statutes of international and hybrid criminal tribunals on this matter provide no logical guideline; and, last, more research on domestic practice is needed. C. The Scope of Victims’ Legitimate Interests in Criminal Proceedings Conducted in Situations of Mass Atrocity It should be stressed that the limitations on victims’ participatory rights in criminal proceedings conducted in situations of mass atrocity set in this study are based solely on the need to reconcile victim access to and participation in these proceedings with the requirement that such proceedings be conducted expeditiously and the limited human and financial resources available in these situations. Based on the case law of several ICC Chambers and the law and practice of a number of hybrid criminal tribunals, this subsection then affirms the proposition that victims’ legitimate interests in criminal proceedings encompass seeking clarification of the facts, the identification and prosecution of those responsible, and due compensation, even in proceedings carried out in situations of mass atrocity.249

248 See e.g. ICC, Prosecutor v. Lubanga Dyilo, Decision on the Modalities of Participation of Victims a/0001/06, a/0002/06 and a/0003/06 in the Hearing of Confirmation of Charges, Pre-Trial Chamber I, 22 September 2006, ICC-01/04-01/06, at 9 (granting this right to victims participating in the hearing of confirmation of charges who decided to remain anonymous); ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage on the Case, Pre-Trial Chamber I, 13 May 2008, ICC-01/04-01/07-474, paras. 141–142, 182 (setting forth two sets of participatory rights [at the confirmation of charges stage]: the first consisting of those rights available to the nonanonymous victims, and the second consisting of the rights available to victims wishing to remain anonymous; even for anonymous victims, the right to make opening and closing statements was included); ICC, Prosecutor v. Bemba Gombo, Fourth Decision on Victims’ Participation, Pre-Trial Chamber III, 12 December 2008, ICC-01/05-01/08, para. 102. 249 See above Chapter IV, Section II, Subsection A.i.

victim rights in criminal proceedings in situations of mass atrocity253 Article 68, paragraph 3, of the ICC Statute gives the ICC some flexibility to address the challenges that participation in criminal proceedings by a large number of victims can pose to the requirement that these proceedings be conducted expeditiously. In addition to requiring that “[victims’] personal interests are affected,” this provision demands the ICC to ensure that the manner in which victim participation takes place be not inconsistent with the rights of the accused and a fair and impartial trial. Therefore, even if the ICC adopts a wide understanding of victims’ personal interests in the proceedings before it based on the developments that have taken place both in international human rights law and domestic practice,250 this Court can still set some limitations on victim participation with the aim of reconciling it with the requirement that the proceedings be conducted expeditiously.251 In this respect, it should be noted that while the view of the ICC Chambers on this matter is not completely uniform, most of them have affirmed the proposition that victims’ legitimate interests in the criminal proceedings before the Court go beyond seeking compensation. One such example is the 17 January 2006 decision of the Pre-Trial Chamber I in the situation of Congo, stating that victims of the crimes within the ICC jurisdiction have legitimate interests in the clarification of the facts, the prosecution of those responsible and in obtaining compensation.252 Similarly, in its 22 September 2006 decision in 250 See above Chapter III and Chapter IV. In this respect, it is worth noting that according to Article 21 of the ICC Statute, the ICC shall apply after its Statute, and Elements of Crimes and Rules of Procedure and Evidence, “where appropriate, applicable treaties and the principles and rules of international law;” and as a last resort, “general principles of law derived by the Court from national laws of legal systems of the world ….” Additionally, Article 21, paragraph 3, of the same instrument provides that, “the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights.” Regarding this latter provision, see e.g. Separate Opinion of Judge Sang-Hyun Song, para. 16, in ICC, Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, Appeals Chamber, 13 June 2007, ICC-01/04-01/06 OAS. 251 For authorities identifying the various criteria set forth in Article 68, para. 3, of the ICC’s Statute for victim participation in the proceedings before this Court, see e.g. ICC, Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, Appeals Chamber, 13 June 2007, ICC-01/04-01/06 OAS, para. 28 (holding that Art. 68, para. 3, of the ICC Statute imposes a three-criterion test: first, whether victims’ interest are affected; second, whether that participation is appropriate at the particular stage; and, lastly, whether it is consistent with the rights of the defendant). See also ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the decision of the Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo,” Appeals Chamber, 13 February 2007, ICC-01/04-01/06-824, para. 45; Separate Opinion of Judge Sang-Hyun Song in ICC, Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, Appeals Chamber, 13 June 2007, ICC-01/04-01/06 OAS, para. 4. 252 ICC, Situation in the Democratic Republic of Congo, Decision on the Applications to Participate in the Proceedings by VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-Trial Chamber I, 17 January 2006, at 63, 72.

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Lubanga, the Pre-Trial Chamber I asserted that victims may participate in the confirmation hearing by presenting their views and concerns in order to “contribute to the prosecution of the crimes … and to be able to obtain reparations for the harm suffered.”253 In its 18 January 2008 decision on victims’ participation in Lubanga, the Trial Chamber I affirmed this view, stating that victims’ interests in the proceedings before the ICC include “receiving reparations, establishing the truth, protecting their dignity, and ensuring their safety.”254 In subsequent decisions, other ICC Chambers have also referred to victims’ rights to justice, the truth and reparation as bases of victims’ legitimate interests in the proceedings before the Court. In its 13 May 2008 decision in Katanga and Ngudjolo, Judge Sylvia Steiner, the Single Judge in the case, stated that victims have legitimate interests in the determination of the guilt or innocence of the defendant, as this determination serves to satisfy their rights to the truth and justice.255 Likewise, in its 12 December 2008 decision in Bemba, Judge Hans-Peter Kaul, the Single Judge in the case, maintained that victims’ personal interests in the proceedings before the ICC result not only from their desire to obtain due compensation, but also to see justice being rendered.256 Similarly, in its decision of 25 September 2009 in Idriss Abu Garda, Judge Sanji Mmasenono Monageng, the Single Judge in the case, stated that the personal interest of victims in the proceedings “flows from (i) their desire to have a declaration of truth by a competent body (right to truth); (ii) their wish to have those who victimized them identified and prosecuted (right to justice) and (iii) the right to reparation.”257 The view of the ICC Appeals Chamber has, however, been less consistent. While in some decisions this Chamber has endorsed the proposition that victims’ legitimate interests in the proceedings before the ICC go beyond seeking compensation, in others it has adopted a more restrictive approach. In supporting its finding that victims should be granted the right to participate in appeals relating to the conferral of interim release to a person subject to a warrant of arrest, this Chamber, in its 13 February 2007 decision, maintained that victims’ personal interests were affected because of “the nature of the appeal.”258 By doing so, this Chamber endorsed implicitly the proposition that 253 ICC, Prosecutor v. Lubanga Dyilo, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 in the Hearing of Confirmation of Charges, Pre-Trial Chamber I, 22 September 2006, ICC-01/04-01/06-462, at 6. See also ICC, Situation in Uganda, Decision on Victims’ Application for Participation a/0010/06, a/0064/06, a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, Pre-Trial Chamber II, 10 August 2007, ICC02/04-101, paras. 9, 97. 254 ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06-119, para. 97. 255 ICC, Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, Pre-Trial Chamber I, 13 May 2008, ICC-01/04-01/07-474, paras. 30–35, 39–42. 256 ICC, Prosecutor v. Bemba Gombo, Fourth Decision on Victims’ Participation, Pre-Trial Chamber III, 12 December 2008, ICC-01/05-01/08-320, para. 90. 257 ICC, Prosecutor v. Idriss Abu Garda, Decision on the 34 Applications for Participation at the Pre-Trial Stage of the Case, Pre-Trial Chamber I, 25 September 2009, ICC-02/05-02/09-121, para. 3 258 ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the decision of the Pre-Trial Chamber I entitled “Décision sur la demande de mise en

victim rights in criminal proceedings in situations of mass atrocity255 victims’ legitimate interests in the proceedings before the ICC go beyond seeking compensation. In at least one decision, the ICC Appeals Chamber has, however, adopted a more restrictive approach with respect to victims’ legitimate interests in the proceedings before the Court. Notably, in its decision of 13 June 2007 in Lubanga, this Chamber stated that while victims’ personal interests are clearly affected with respect to protection and compensation issues, regarding other matters the applicable legal test consists of determining “whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor.”259 This decision assumes that with respect to matters other than victim protection and compensation covered by the powers of the Prosecutor, only the voice of the latter should be heard. This undermines significantly a major rationale for granting participatory rights to victims in the ICC proceedings, namely that victims’ views and interests in these proceedings are independent of those of the Prosecution and the defence.260 The law and practice of other criminal tribunals established in situations of mass atrocity also endorse the proposition that victims’ legitimate interests in criminal proceedings conducted in these situations encompass the identification and determination of the responsibility of those involved in the concerned crimes. Both the procedural rules and practice of the ECCC and of the Special Panels in East Timor affirm this proposition. By decoupling victim participation from seeking compensation, Internal Rule 23, paragraph 1, of the ECCC recognises that victims’ legitimate interests in the proceedings before the ECCC go beyond seeking compensation.261 Some decisions of the ECCC have affirmed this view. In supporting its conclusion that victims’ right to participate in criminal proceedings under Internal Rule 23, paragraph 1, includes the opportunity to participate in the procedure related to an appeal against a

liberté provisoire de Thomas Lubanga Dyilo,” Appeals Chamber, 13 February 2007, ICC-01/0401/06-824 (setting out the reasons for the 12 December 2006 Decision of the Appeals Chamber in Lubanga). See ICC, Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber, Appeals Chamber, 12 December 2006, ICC-01/04-01/06-769. 259 ICC, Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, Appeals Chamber, 13 June 2007, ICC-01/04-01/06-925, para. 28. See also Separate Opinion of Judge Gerghios M. Pikis in id. para. 16 (stating while victims’ personal interests are affected when their protection and support are at issue, as well as regarding matters of sentencing, the burden of proof of the guilt of the accused lies with the Prosecutor). But see Separate Opinion of Judge Sang-Hyun Song, paras. 11, 14–15 in id. (maintaining that both obtaining compensation and seeking justice qualify as personal interest under the terms of Art. 68(3) of the ICC Statute, based on the case law of the ACtHR and the ECHR). 260 See e.g. ICC, Situation in the Democratic Republic of Congo, Decision on the Applications to Participate in the Proceedings by VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-Trial Chamber I, 17 January 2006, ICC-01/04-101-tEn-Corr, para. 51. 261 The Internal Rule 23, paragraph 1, of the ECCC reads as follows: “1. The purpose of civil party action before the ECCC is to: a) Participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the prosecution; and b) Allow victims to seek collective and moral reparations, as provided in this Rule.”

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defendant’s provisional detention order, the ECCC Pre-Trial Chamber maintained that victim participants “may have an interest in the outcome of [this] appeal.”262 The UNTAET Regulation 2000/30, which governed the procedures before the Special Panels in East Timor, also made it clear that victims’ legitimate interests in these procedures went beyond seeking compensation. This Regulation empowered the victim “to request the Public Prosecutor to conduct a specific investigation or to take specific measures in order to prove the guilt of the suspect.”263 D. Need for Additional Measures for the Effective Implementation of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity Several measures are required for the effective implementation of victim access to and participation in criminal proceedings conducted in situations of mass atrocity. A first set of measures relates to those necessary to overcome the various obstacles to victim access to and participation in criminal proceedings that exist in these situations. These measures first include those required to effectively inform victims of their rights of access and participation, particularly those victims situated in inaccessible or insecure locations.264 Additionally, measures should be taken to assist victims throughout the application procedure. This assistance can serve to overcome the obstacles arising not only from the technical nature of criminal proceedings, but also from the illiteracy of many victims of serious human rights violations in these situations.265 Moreover, measures for ensuring the security of those victims interested in participating in criminal proceedings should be taken. These measures are of critical importance as criminal proceedings often take place only a few years after the end of, or in the midst of, a situation of armed conflict or civil unrest.266 Experience has also shown the need for measures for facilitating orderly victim participation in criminal proceedings carried out in situations of mass atrocity once victims decide to exercise their participatory rights in these proceedings. To begin with, and as

262 ECCC, Case against Nuon Chea, Decision on Civil Party Participation in Provisional Detention Appeals, Pre-Trial Chamber, 20 March 2008, C11/53, para. 40. 263 Section 12.6 of UNTAET Regulation 2000/30 provided as follows: “The victim has the right to request the Public Prosecutor to conduct a specific investigation or to take specific measures in order to prove the guilt of the suspect. The Public Prosecutor may accept or reject the request ….” See UNTAET, Regulation 2000/30 on Transitional Rules of Criminal Procedure, 25 September 2000, UNTAET/REG/2000/30. UNTAET Regulation 2001/25, which amended and replaced UNTAET Regulation 2000/30, granted victims the same rights as those included in the UNTAET Regulation 2000/30. See UNTAET, Regulation 2001/25, 14 September 2001, UNTAET/REG/2001/25, sections 2, 12.3, 12.5–12.7. 264 See McKay (2008), “Victim Participation in Proceedings before the International Criminal Court,” at 4. 265 Id. See also above Chapter IV, Section III, Subsection E. 266 See e.g. McKay (2008), “Victim Participation in Proceedings before the International Criminal Court,” at 5; Mina Rauschenbach and Damien Scalia (2008), “Victims and International Criminal Justice: A Vexed Question?,” 90 International Review of the Red Cross 441, at 455.

victim rights in criminal proceedings in situations of mass atrocity257 discussed above,267 judges should be granted sufficient powers to take the necessary measures for implementing victim participation in criminal proceedings conducted in these situations.268 This view coincides with the reforms adopted in the ad hoc international criminal tribunals,269 and the suggestion made by several scholars in favour of granting a more active role to judges in international criminal procedures because of the nature and context in which these procedures take place, as well as the fact that decision-making there is entrusted to professional judges. In particular, I share the view of several experts who maintain that judicial control of international criminal proceedings is necessary because of the various elements involved in, and the often wide temporal and territorial coverage of, international crimes.270 Equally, and as mentioned earlier, a series of rules designed for jury trials, particularly those rules concerning evidentiary matters, are not appropriate in international criminal procedures as decision-making in these procedures is entrusted to professional judges. Another measure for facilitating orderly victim access to and participation in criminal proceedings conducted in situations of mass atrocity is the issuance of guidelines on the requirements for victim status being recognised in these proceedings.271 Additionally, the process of evaluation of victims’ requests for participation should be as straightforward and efficient as possible. In this respect, I share the criticism that has been made of the two-stage process adopted by most of the ICC Chambers regarding victim participation. The first stage seeks to determine whether the concerned person can be granted victim status, while the second stage is aimed at determining specifically the stage and the manner in which a particular victim can participate.272 This two-stage 267 See above Chapter III, Section III, Subsections B and D. See also e.g. International Bar Association’s ICC Monitoring and Outreach Programme (2008), Balancing Rights: The International Criminal Court at a Procedural Crossroads (The Hague: International Bar Association), at 45; McGonigle (2009), “Bridging the Divides in International Criminal Proceedings,” at 107–108, 146. 268 See e.g. Safferling (2001), Towards an International Criminal Procedure, at 217–218. 269 See e.g. Zappalà (2003), Human Rights in International Criminal Proceedings, at 27, 249–251; Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 63; Christopher K. Hall, (2009), “Danger of Selective Justice,” in Morten Bergsmo (ed.), Criteria for Prioritizing and Selecting Core International Crimes Cases 123 (Oslo: PRIO), at 128. 270 See e.g. Jérôme de Hemptine (2007), “The Creation of Investigating Chambers at the International Criminal Court,” 5 Journal of International Criminal Justice 402, at 402–418. 271 War Crimes Research Office (2007), Victim Participation before the International Criminal Court, at 6, 64. 272 See e.g. ICC, Situation in the Democratic Republic of Congo, Decision on the Applications to Participate in the Proceedings by VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-Trial Chamber I, 17 January 2006, ICC-01/04-101-tEn-Corr, para. 73; ICC, Situation in Uganda, Decision on Victims’ Application for Participation a/0010/06, a/0064/06, a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, Pre-Trial Chamber II, 10 August 2007, ICC02/04-101, paras. 89, 103; ICC, Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo,” Appeals Chamber, 13 February 2007, 01/04-01/06 (OA 7), at 44; ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06, paras. 95–96.

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process is not efficient because, as Judge René Blattman and several scholars have pointed out, it defers a decision on the critical aspects of victim participation to the second stage, which in situations of mass atrocity may cause significant delays.273 Therefore, in my view, a set of victims’ rights, similar to that suggested in this study, should be granted for a phase or the entirety of the proceedings once a person is recognised as having the status of victim.274 The above-mentioned empirical study conducted by the Victims’ Rights Working Group demonstrates the importance of dealing with this and other logistical matters regarding victim participation in the ICC proceedings. It found the following as the main causes of disappointment among victims and those who assist them with the system of victim participation in the ICC proceedings: The application forms are lengthy and abstract, there is little feedback about the processing of their applications, and the procedures are slow and remote. For many victims directly involved in proceedings, a general feeling of ‘lassitude’ is felt. The procedures to apply for participation and reparation can be daunting. Some victims in some parts of Uganda have even felt that applying was ‘a waste of time’ particularly as they did not receive livelihood support for the days it took to complete the forms and provide necessary documentation, which can be detrimental for those struggling on a daily basis.275

The ICC Strategy in Relation to Victims requires the adoption of measures to address these concerns of victims. It states that the most important features of ensuring victims’ right to participate in the proceedings before the Court include: a) Carrying out functions in a timely manner to ensure victims may apply and have their applications considered so as to keep pace with the proceedings; … c) Specific strategies will be developed in relation to vulnerable or marginalised victims.276

273   See e.g. Dissenting Opinion of Judge René Blattman, para. 22, in ICC, Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber, 18 January 2008, ICC-01/04-01/06. For scholarly accounts, see Chung (2008), “Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?,” at 521; War Crimes Research Office (2009), Victim Participation at the Case Stage of Proceedings, at 10; Håkan Friman (2009), “The International Criminal Court and Participation of Victims,” 22 Leiden Journal of International Law 485, at 490–492; War Crimes Research Office (2007), Victim Participation before the International Criminal Court, at 61–62. 274  See e.g. War Crimes Research Office (2009), Victim Participation at the Case Stage of Proceedings, at 50. For additional suggestions for facilitating victims’ participation in criminal proceedings conducted in situations of mass atrocity, see War Crimes Research Office (2007), Victim Participation before the International Criminal Court, at 7, 59, 69–72. 275  Victims’ Rights Working Group (2010), The Impact of the Rome Statute System on Victims and Affected Communities, at 17. 276 ICC, Report of the Court on the Strategy in Relation to Victims, 10 November 2009, ICC-ASP/8/45, para. 49.

victim rights in criminal proceedings in situations of mass atrocity259 V. Conclusions Victim access to and participation in criminal procedures conducted in situations of mass atrocity have been opposed mainly on the grounds that they would significantly and unduly increase the complexity and length of these procedures. While acknowledging that the large number of victims typically involved in these situations poses difficulties for the implementation of victim access to and participation in criminal procedures, I dissent from this view. As this chapter has demonstrated, victim access to and participation in criminal procedures carried out in these situations can be reconciled with the requirement that these procedures be conducted expeditiously, and the other legal and public interest considerations involved in such procedures. In particular, in identifying victims’ rights in criminal procedures carried out in these situations, I have suggested an approach that, while fulfilling the core of victims’ need for access to and participation in these procedures, pays due consideration to the requirement that such procedures be con­ducted expeditiously and the limited human and financial resources available in these situations. Additionally, this chapter has put forward two rationales for victim access and participation specifically applicable to criminal procedures conducted in situations of mass atrocity. First, I have argued that such access and participation can strengthen the ability of criminal procedures carried out in these situations to achieve their expressivist goals. They do so by promoting a sense of involvement in, and ownership of, the procedures by directly victimised communities. This positive effect of victim access to and participation in criminal procedures conducted in these situations is explained by the nature of serious human rights violations, the features of these procedures, the theory of procedural justice and the context in which such infringements often take place. Such access and participation ease entry to, and active involvement of members of these communities in, these official and public procedures aimed at the establishment of the truth and the identification of those responsible for these violations. Second, I have maintained that victim access to the investigation phase as envisaged in this chapter can help to ensure the observance by prosecutors of some minimum principles in the exercise of their discretion with respect to the commencement and discontinuance of investigations and prosecutions, and the charges brought against a defendant in situations of mass atrocity. These minimum principles include the requirement for equal treatment and for due consideration of the gravity of the crime and victims’ views in prosecutorial decision-making. This chapter has also demonstrated that the law and practice of a number of international and hybrid criminal tribunals support my submission that victims’ legitimate interests in criminal procedures, even those conducted in situations of mass atrocity, encompass seeking the clarification of the facts, the identification and prosecution of those responsible, and due compensation. This is of significant importance as it can help to consolidate the status of this proposition under international law. In addition, drawing on international human rights law, comparative criminal law and the theory, law, and practice of international and hybrid criminal tribunals, and based on

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the above-mentioned approach, I have proposed the following rights for victims of serious human rights violations in the investigation and prosecution of these infringements in situations of mass atrocity. At the investigation stage, victims of these violations should be recognised the following two rights: • The right to obtain in a reasonable period of time a decision from the competent prosecution authority as to whether or not an investigation will be conducted in respect of the events as a result of which they were harmed; and • The right to seek judicial review of prosecutorial decisions on the commencement or discontinuance of an investigation or a prosecution, and the charges brought against a defendant involved in the events as a result of which they were victimised. As discussed earlier, the latter is particularly important in situations of mass atrocity because it can help ensure the observance by prosecutors of some minimum principles in the exercise of their discretion in these areas. Additionally, this right helps prevent, prosecutors in situations of mass atrocity from unduly depriving, through case and charge selection, victims of the opportunity to participate in criminal procedures, as according to current case law only victims who have suffered harm from one of the charges brought against a defendant can participate in these procedures once the charges have been confirmed by a judge.277 Furthermore, I have suggested the following victims’ rights at the trial phase of criminal procedures carried out in situations of mass atrocity: • The right to give their version of events and views on the clarification of the facts, the identification and prosecution of those responsible, and the compensation due; • The rights to offer and examine evidence pertaining to the guilt or innocence of the accused; and • The right to challenge the admissibility or relevance of evidence. These rights constitute the core of victims’ participatory rights in criminal procedures conducted in these situations and serve to ensure that victim participation in these procedures be meaningful. I recognise, however, that certain limitations should be imposed on the implementation of these rights in order to ensure the expeditiousness of the procedures. In particular, victims can be required to exercise these rights through a legal representative. Nevertheless, I submit that, even when a large number of victims participate in a given case, a reasonable number of them should be allowed to directly address the court beyond their role as witnesses at the trial phase. As analysed in this chapter, the nature of serious human rights violations, the features of criminal procedures, the context in which these infringements are often perpetrated, and psychological considerations explain why the opportunity to directly address the court is so significant for victims of these violations. While in order to ground these rights I have drawn on international human rights law, comparative criminal law and the theory, law and practice of international and hybrid 277 For a discussion on the issue of which victims can participate in criminal proceedings once an indictment has been issued, see above in this chapter, Section IV, Subsection B.ii.a.

victim rights in criminal proceedings in situations of mass atrocity261 criminal tribunals, I acknowledge that the recognition of these rights requires some lawmaking activity at the international level. To begin with, international human rights instruments and bodies have not specifically addressed this matter. Additionally, the provisions of the statutes of international and hybrid criminal tribunals on this subject do not follow any logical principle. Furthermore, more research on domestic practice is needed. For the same reasons, these victim rights and their content as described here are not definitive. This study should be viewed as a serious effort to identify and delineate victim rights in criminal procedures conducted in situations of mass atrocity drawing on international and comparative law, and taking into account the various legal and policy considerations involved in these procedures. The analysis presented in this chapter has also demonstrated that effective implementation of victim access to and participation in criminal procedures conducted in situations of mass atrocity requires the adoption of various supplementary measures. A first set of measures is necessary to make possible such access and participation. These measures range from effectively informing victims of their rights of access and participation to assisting them throughout the application procedure, to ensuring the security of those victims interested in participating in the proceedings. Additionally, once victims decide to exercise the participatory rights in criminal proceedings proposed in this chapter, measures should be taken to facilitate orderly victim participation in these proceedings. These measures include the issuance of guidelines on the requirements for victim status being recognised in these proceedings, and streamlining the process of evaluation of victims’ requests for participation in the proceedings. Lastly, the findings of this chapter remind us about the limitations that victim access to and participation in criminal procedures carried out in situations of mass atrocity have for satisfying the multiple needs of victims of serious human rights violations perpetrated in such situations. To begin with, and as discussed earlier, prosecutions, even when victim access and participation are recognised, have a limited ability to satisfy the numerous needs of victims of these violations, particularly in situations of mass atrocity. Prosecutions focus on the determination of the individual responsibility of particular perpetrators. On the other hand, as many studies conducted in nearly all regions of the world demonstrate, victims of these violations and directly concerned populations in situations of mass atrocity usually have numerous needs beyond the determination of the individual responsibility of specific individuals.278 Additionally, the requirement for victim participation at the trial phase that there be a link between the harm suffered by the victim and the charges brought against a defendant,279 together with the limited scope of prosecution initiatives in situations of mass atrocity,280 makes evident that few from the pool of victims in any of these situations will be permitted to participate at this stage of criminal proceedings. Therefore, it is important to recognise that, even if victims are allowed to access to and participate in criminal procedures conducted in situations of mass atrocity, various

278 See above Chapter II, Section II, Subsection B.v. 279 See above in this chapter, Section IV, Subsection B.ii.a. 280 See above Chapter II, Section II, Subsection B.v.

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additional measures are needed to address the needs of victims and of the directly concerned societies.281 These measures should address social, economic, political and legal issues. As analysed in Chapter II, many studies carried out in nearly all regions of the world have found that economic, social and political issues are usually ranked high among the concerns of inhabitants in these societies generally and of victims of these violations specifically. In particular, these studies have affirmed the need for measures to address the political and socio-economic conditions that underlay the conflict or repression and to satisfy the economic and social needs of victims.282 Thus, as will be discussed further in the general conclusions of this work, there is a need for a holistic and interdisciplinary approach to the design and implementation of efforts to address serious human rights violations, particularly when perpetrated in situations of mass atrocity. Multipronged strategies addressing social, economic, political and legal issues should be designed and implemented in these settings.

281 See e.g. H. Chung (2008), “Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?,” at 536, 538; McGonigle (2009), “Bridging the Divides in International Criminal Proceedings,” at 149–151; Heikkilä (2004), International Criminal Tribunals and Victims of Crime, at 195. 282 See above Chapter II, Section II, Subsection B.v.

chapter six

GENERAL CONCLUSIONS

This study has analysed access to and participation in criminal proceedings before domestic, international and hybrid tribunals for victims of serious human rights violations from various perspectives, including international law, comparative domestic law, broader normative considerations, and empirical evidence. Specifically, this monograph has covered international human rights law and practice, the principles that inform the enforcement of criminal law in democratic States, comparative criminal law, public policy considerations and the theory, law and practice of international and hybrid criminal tribunals. It has also examined many theoretical and empirical studies conducted in nearly all the regions of the world and in three major languages, namely English, French and Spanish. In this chapter, I describe and discuss the main findings and submissions of this work, and analyse the most important implications of these findings and submissions. I. The Main Findings and Submissions of This Work A. The State of Customary International Law on This Matter The analysis presented in this work has demonstrated that despite the well-established State’s obligations to investigate and prosecute serious human rights violations and the right to an effective remedy of victims of these infringements, customary international law does not yet recognise the rights of access to and participation in criminal procedures for victims of such violations. There are still significant differences between the approach of most United Nations instruments and bodies on the one hand, and the approach taken by the ECtHR and IACtHR on the other hand. Several recent United Nations nonconventional instruments either subject victims’ access to and participation in criminal proceedings before local courts to the domestic law of States or remain silent as to whether a victim’s right of access to an effective judicial remedy includes the rights of access to and participation in criminal proceedings. Likewise, the UN Human Rights

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Committee continues to maintain that the ICCPR grants no rights to victims in the investigation into, and subsequent criminal proceedings for, these violations.1 On the other hand, the IACtHR, the ECtHR and certain United Nations instruments have recognised a series of rights in criminal proceedings before domestic courts for victims of serious human rights violations. These rights include a victim’s right to complain about any of these infringements, and to have his or her case promptly and impartially examined by State authorities. In addition, the IACtHR and the ECtHR have granted victims of these infringements other rights in criminal proceedings before domestic courts. These rights encompass the rights to be heard in these proceedings and to know the reasons for a prosecutor’s decision not to prosecute any of these violations.2 This study has also shown that the provisions of the statutes of international and hybrid criminal tribunals with respect to the position of victims in the proceedings differ widely and provide no logical guideline.3 This monograph has found that the main obstacle to the recognition of the victim’s rights of access to and participation in criminal procedures generally is the concern, which particularly exists in common law jurisdictions, that these rights would undermine the principles that govern the system of public prosecution of criminal offences in democratic States. Specifically, it has been maintained that victim access to and participation in these procedures would infringe on the presumption of innocence of the defendant, obstruct the ability of decision-makers in criminal procedures to make reasoned judgment, and undermine the public interest criteria informing decision-making in such procedures. Furthermore, and in particular regarding victim access to and participation in criminal procedures conducted in situations of mass atrocity, it has been argued that such access and participation would significantly and unduly increase the complexity and length of these procedures, because of the large number of victims usually involved in these situations. More generally, opposition to access to and participation in criminal procedures for crime victims has been based on a long-standing premise of the common law tradition, namely the conception of criminal law as the exclusive province of the State and thus tort law as the only venue open to crime victims for seeking redress. B. Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations From the International Law and Normative Perspectives My main thesis in this work has been that the current state of customary international law on this subject is inadequate, most notably because access to and participation in criminal procedures for victims of serious human rights violations are well-grounded in legal positive and normative terms. In the first instance, this study has argued that victim access to and participation in criminal procedures are based on the widely recognised rights to an effective remedy and to a fair hearing, and the principle of the rule of law. I have also maintained that such access and participation are logical extensions of the approach of international human rights treaty monitoring bodies to several closely related 1   See above Chapter III, Section I. 2 See above Chapter III, Section II, Subsections A and B. 3 See above Chapter V, Section I.

general conclusions265 matters, such as States’ obligations to investigate and prosecute these violations, remedies in the event of any of these infringements and the rights of victims of such violations in non-criminal proceedings. Specifically, I have submitted that the logic and rationales these bodies have adopted when addressing these closely related matters also hold regarding victim access to and participation in criminal procedures. These two arguments are related, in the sense that these human rights and principles provide the legal bases for victim access to and participation in criminal procedures, and these international human rights bodies provide the rationales for such access and participation. I have made three main assertions on this matter. Firstly, there is the recognition by human rights treaty monitoring bodies of the special status of the rights infringed in serious human rights violations. As analysed in Chapter II, these bodies have done so when elaborating on the rationales for States’ procedural obligations when faced with any of these violations. This recognition is relevant in several respects regarding victim access to and participation in criminal procedures. First, it reaffirms the proposition that these infringements harm not only the public order, but also fundamental rights of individuals. As will be discussed below, this denotes the special nature of these violations. Furthermore, this recognition is an important basis for the applicability of the right to a fair hearing in criminal procedures with respect to victims of these infringements. As analysed in Chapter IV, there is a strand of human rights treaty monitoring bodies’ case law according to which States are bound to ensure the right to a fair hearing in those instances in which the determination of an internationally recognised human right is at issue. Secondly, I have argued that criminal procedures are a significant means of redress for victims of serious human rights violations because of the features of these procedures, the nature of such infringements and the context in which these violations often take place. As discussed at length in Chapter II, when putting forward the rationales for States’ procedural obligations when faced with serious human rights violations, human rights treaty monitoring bodies have consistently emphasised the special characteristics of criminal procedures – i.e. these procedures make it possible for a thorough and independent investigation to be conducted, and for the criminal responsibility of those involved to be established. Additionally, these procedures have an official and public nature. These two features of criminal procedures are of critical importance for victims of these violations not only because State authorities are the representatives of the society, but also because of the nature of these infringements and the context in which such violations are often perpetrated. As just mentioned, human rights treaty monitoring bodies have consistently recognised that these violations infringe upon fundamental rights of individuals. Furthermore, and as discussed in Chapters IV and V, these infringements are often committed with the active involvement of State officials and surrounded by official denials and cover-ups.4 Therefore, as Brandon Hamber indicates, these violations, particularly when they are widespread, do not merely harm individuals, but also destroy social relations. They affect a victim’s sense of being part

4 See Chapter IV, Section I, Subsection B; Section II, Subsection A.i; and Section III, Subsection E; and Chapter V, Section IV, Subsection A.

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of society.5 Because of the official and public nature of criminal procedures, these procedures not only play a critical role in uncovering the truth, but also are a significant means for public acknowledgment of what happened. By easing entry to, and active involvement of victims in, criminal procedures, victim access to and participation in these procedures can also contribute to affirming victims’ dignity and their membership of and status in the concerned society. Lastly, I have maintained that by helping to ensure that serious human rights violations be investigated and prosecuted, victim access to and participation in criminal procedures contribute to countering the impunity that often surrounds these infringements and to reaffirming the importance the concerned society attaches to the infringed rights and more generally, the authority of the law. Victim access to and participation in criminal procedures contribute to these expressivist objectives of such procedures because, as discussed in Chapters IV and V, such access and participation include the rights of victims to have an effective and impartial investigation carried out with reasonable expedition; to know the reasons for, and increasingly to ask for judicial review of, a public prosecutor’s decision not to prosecute any alleged such infringement; and to be present, to be heard, and to offer, examine and challenge evidence at the trial phase. In this respect, it is worth noting that on the basis of the above-mentioned special characteristics of criminal procedures, human rights treaty monitoring bodies have consistently taken the view that in the event of a serious human rights violation, these procedures serve to reaffirm the importance the concerned society attaches to the infringed rights and, more generally, the principle of the rule of law.6 The case law of both the IACtHR and the ECtHR confirms that a major rationale for victim access to and participation in criminal procedures is to counter the impunity that often surrounds the perpetration of serious human rights violations. Both the IACtHR and the ECtHR have viewed victim rights in criminal procedures as an important means to corrode the impunity for these violations.7 This is of major importance because international human rights instruments and bodies require that remedies for human rights violations must exist not only in theory, but also must be effective in practice. The ICCPR, the ECHR and the ACHR provide specifically for a victim’s right to an effective remedy.8 I have put forward three other rationales for victim access to and participation in criminal procedures: first, such access and participation are necessary means to protect the legitimate interests of victims in the criminal procedures for serious human rights violations. These interests include seeking clarification of the facts, the identification and punishment of those responsible, and due compensation. Second, victim access to and participation in criminal procedures can, pursuant to the theory of procedural justice,

5 Hamber (2009), Transforming Societies after Political Violence: Truth, Reconciliation, and Mental Health, at 22, 25. 6 See Chapter II, Section I, Subsection A.i. 7 See above Chapter IV, Section I, Subsection B. 8 See ICCPR, Art. 2, para. 3(a); ECHR, Art. 13; and ACHR, Art. 25, para. 1 (emphasis added). For an additional authority, see IACtHR, Velasquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 63, 66–68.

general conclusions267 improve victim perception of the fairness and legitimacy of these procedures; and last, victim access to and participation in criminal procedures can serve to affirm victims’ dignity, as well as their membership of and status in the concerned society. The four factors that provide the foundations of these rationales for victim access to and participation in criminal procedures are the nature of serious human rights violations, the features of criminal procedures, the context in which these infringements often take place, and the theory of procedural justice. While the first three of these were discussed earlier in this chapter, here it is worth recalling the essentials of the theory of procedural justice. According to this theory, procedural justice aspects, particularly people’s right ‘to state their case,’ confirm an individual’s membership and status in the group and thus play a critical role in people’s perception of the fairness of legal procedures.9 This theory is based on a number of studies that have shown that people’s perceptions of the fairness and legitimacy of legal proceedings are determined not only by the outcome, but also by whether people are granted the opportunity to present their views. Several empirical studies analysed in this work provide further support for this theory. This monograph has also demonstrated that victim access to and participation in criminal procedures are consistent with the principles that inform the enforcement of criminal law in democratic States. To begin with, as various international instruments and long-standing practice in many civil law jurisdictions confirm, the recognition of victim status for the purpose of his or her participation in criminal procedures is consistent with the presumption of innocence of the defendant. The determination of victim status for this purpose is independent of the decision on the criminal responsibility of the defendant.10 In addition, as consistent practice in many States demonstrates, victim access to and participation in criminal procedures are consistent with a criminal justice system based on retribution and with the public interest criteria informing decision-making in these procedures in democratic States. The reason for this is that victim access to and participation in criminal procedures as understood in this monograph do not confer on victims decision-making or veto power in these procedures. Decision-making power in such procedures remains in the hands of public officials and continues to be informed by public interest considerations. Furthermore, victim access to and participation in criminal procedures complement, rather than undermine, the objective of criminal tribunals of determining in a fair and expeditious manner the responsibility of those brought before them. Victims of these violations share criminal tribunals’ interest in the clarification of the events, and the identification and punishment of those responsible. What is required is that victim access to and participation in criminal procedures be implemented in a manner such that all legitimate interests involved in these procedures are taken into consideration. The next subsection will describe the approach that I have taken. The practice of the ECtHR and the IACtHR confirms that victim access to and participation in criminal procedures are consistent

   9 Tyler (2006), Why People Obey the Law, at 117, 137, 175–176. See more generally, Zappalà (2003),    Human Rights in International Criminal Proceedings, at 232. 10 See above Chapter IV, Section III, Subsection D.

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with the principles that govern the system of public prosecution of criminal offences in democratic States. Developments in several common law jurisdictions have also challenged the longstanding premises of the common law tradition regarding the nature of criminal procedures and, in particular, the position of the victim in these procedures. Specifically, granting criminal judges the power to order an offender to pay compensation to the victim challenges the strict divide between crime and tort that historically existed in this tradition, and conferral on the victim of the right to seek review of some key decisions of public prosecutors in England has demonstrated that this right does not undermine the work of the latter.11 C. Implementing Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations In order to determine which specific victim rights in criminal procedures arise from victim access to and participation in these procedures as understood in this monograph, I have distinguished between those procedures conducted in situations of isolated serious human rights violations and those procedures carried out in situations of mass atrocity. Unlike situations of isolated human rights violations, situations of mass atrocity involve a large number of victims, and governments often have scarce financial and human resources available to satisfy the multiple societal needs involved in these situations. These factors, together with the requirement that criminal procedures be conducted expeditiously, explain why I propose a more limited set of victim rights in criminal procedures conducted in these situations than those identified in procedures carried out in situations of isolated serious human rights violations. i. Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations In order to identify victim rights in criminal procedures conducted in situations of isolated serious human rights violations, I have drawn on the case law of the IACtHR and the ECtHR, a number of United Nations instruments, and on comparative criminal law. I have also adopted an approach that takes into account both victims’ legitimate interests at key stages of criminal procedures and the principles governing the enforcement of criminal law in democratic States. Specifically, I have identified the following rights of victims in criminal procedures carried out in this type of situation: • The right to submit a complaint to the authorities regarding any instance of a serious human rights violation; • The right to have an effective and impartial investigation conducted with reasonable expedition; • The right to be informed of the reasons for a prosecutor’s decision not to prosecute an alleged serious human rights violation; • The right to be informed of the conduct of criminal procedures and of major decisions taken therein; 11 See above Chapter III, Section III, Subsections C and D.

general conclusions269 • The right to be present at the trial and the sentencing phase; • The right to be heard throughout criminal procedures, particularly at the key stages of such procedures; and • The rights to offer, examine and challenge evidence at the trial phase. Additionally, this work has found that there is a trend in international practice towards recognising the victim’s right to ask for judicial review of a prosecutor’s decision not to prosecute an alleged serious human rights violation. ii. Criminal Procedures Conducted in Situations of Mass Atrocity I acknowledge that the large number of victims usually involved in situations of mass atrocity poses particular difficulties for the implementation of victim access to and participation in criminal procedures. However, I maintain that victim access and participation in these situations can be reconciled with the requirement that these procedures be conducted expeditiously and the other legal and public interest considerations involved in such procedures. In order to do so, in identifying victim rights in criminal procedures carried out in situations of mass atrocity, I have proposed an approach that while satisfying the core of victims’ needs for access to and participation in these procedures, gives due consideration to the requirement that such procedures be carried out expeditiously and the limited human and financial resources available in such situations. Additionally, this work has demonstrated that there are two rationales for victim access and participation specifically applicable to criminal procedures conducted in situations of mass atrocity. To begin with, victim access to and participation in criminal procedures carried out in these situations can enhance the ability of such procedures to achieve their expressivist objectives, most notably the affirmation of the infringed rights and the promotion of the rule of law. They do so by fostering a sense of involvement in, and ownership of, the procedures by directly victimised populations. The features of criminal procedures, the nature of serious human rights violations, the context in which these infringements often take place and the theory of procedural justice explain this positive effect of victim access to and participation in criminal procedures conducted in these situations.12 Furthermore, victim access to the investigation phase as understood in this book help ensure the observance by prosecutors of a series of principles in the exercise of their discretion on the commencement and discontinuance of investigations and prosecutions, and the charges brought against a defendant in this type of situation.13 Based on the above-mentioned approach and drawing on international human rights law, comparative criminal law and the theory, law, and practice of international and hybrid criminal tribunals, I have proposed a series of rights for victims of serious human rights violations in the investigation and prosecution of these infringements in situations of mass atrocity. At the investigation stage, I have suggested the following two rights:

12 See above Chapter V, Section II. 13 Id.

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• The right to obtain in a reasonable period of time a decision from the competent prosecution authority as to whether or not an investigation will be conducted in respect of the events as a result of which they were harmed; and • The right to seek judicial review of prosecutorial decisions on the commencement or discontinuance of an investigation or a prosecution, and the charges brought against a defendant involved in the events as a result of which they were victimised. These rights are of major importance because of the broad discretion prosecutors enjoy in situations of mass atrocity. Furthermore, I have suggested the following rights of the victim at the trial phase of criminal procedures conducted in situations of mass atrocity: • The right to give his or her version of events and views on the clarification of the facts, the identification and prosecution of those responsible, and the compensation due; • The rights to offer and examine evidence pertaining to the guilt or innocence of the accused; and • The right to challenge the admissibility or relevance of evidence. However, and unlike the victim’s rights in criminal procedures conducted in situations of isolated serious human rights violations identified earlier, I recognise that in procedures carried out in a situation of mass atrocity, victims can be required to exercise these rights through a legal representative. As discussed above, this would ensure the expeditiousness of the procedures as it would facilitate the grouping of victims participating in the procedures and smooth communication between the judges and the participants in the procedures. Nevertheless, I submit that, even when there are many victims participating in a given case, a reasonable number of them should be allowed to directly address the court beyond their role as witnesses at the trial phase. The nature of serious human rights violations, the features of criminal procedures, the context in which these infringements often took place and psychological considerations are the main reasons why this opportunity is so important for victims of these violations. As discussed earlier, and although measures should be taken to prevent any negative effect on victims from the exercise of this right, the opportunity to directly address the court at the trial is important for victims, because of the objectives of criminal procedures – i.e. the establishment of the truth and the identification of those responsible – and the official and public nature of such procedures. Additionally, victims’ opportunity to directly address the court at the trial can reduce their perceptions of inequity and enhance their self-esteem. It enables them to give, in their own words, their version of events and views on the identity and responsibility of those involved in the crimes that have harmed them. While in order to ground these rights I have drawn on the sources indicated earlier, I acknowledge that the recognition of these rights requires some law-making activity at the international level. There are three reasons for this: first, international human rights instruments and bodies have not specifically addressed this question; second, the provisions of the statutes of international and hybrid criminal tribunals on this matter do not follow any logical principle; and, last, more research on domestic practice is needed. For the same reasons, these victim rights and their content as described in this work are not

general conclusions271 definitive. This study should be seen as a serious effort to identify and delineate the rights of victims in criminal procedures carried out in situations of mass atrocity, drawing on international and comparative law and practice, and taking into consideration the various legal and policy considerations involved in such procedures. D. The Significance of Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations A major objective of this study has been to assess the significance of victim access to and participation in criminal procedures for addressing the needs of victims of serious human rights violations and of directly concerned societies. My finding on this matter is that while victim access to and participation in criminal procedures pursuant to the rights identified in this book are important, their ability to satisfy the needs of victims of these infringements and of directly concerned communities, particularly in situations of mass atrocity, is limited. As discussed earlier, by helping to ensure that these violations be investigated and prosecuted, victim access to and participation in criminal procedures contribute to countering the impunity that often surrounds these infringements and to reaffirming the importance the concerned society attaches to the infringed rights and more generally, the principle of the rule of the law. Victim access to and participation in criminal procedures are also critical means to protect the above-mentioned legitimate interests of victims in such procedures. Furthermore, victim access to and participation in criminal procedures can improve victim perception of the fairness and legitimacy of these procedures, and serve to affirm victims’ dignity, as well as their membership of and status in the concerned society. However, this work has found that the ability of criminal procedures, and of victim access to and participation therein, to satisfy the needs of victims of serious human rights violations and of directly concerned societies, particularly in situations of mass atrocity, is limited. Fundamentally, the ability of victim access to and participation in criminal procedures to meet victim and societal needs is limited by the function of these procedures. Such procedures focus on the determination of the individual responsibility of particular perpetrators. On the other hand, victims of these violations and directly concerned communities, particularly in situations of mass atrocity, usually have many needs beyond the determination of the individual responsibility of specific individuals. As analysed in Chapter II, many studies conducted in nearly all regions of the world have found that economic, social and political issues are usually ranked high among the concerns of members of societies in transition generally and of victims of serious human rights violations specifically. In particular, these studies have affirmed the need for measures to satisfy the economic and social needs of victims and to address the political and socio-economic conditions that underlay the conflict or repression.14 In addition, and specifically regarding criminal procedures conducted in situations of mass atrocity, the requirement for victim participation at the trial phase that there be a link between the harm suffered by the victim and the charges brought against an accused, together with 14 See above Chapter II, Section II, Subsection B.v.

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the limited scope of prosecution initiatives in these situations, makes clear that few from the pool of victims in any of these situations will be allowed to participate at this stage of criminal procedures. II. The Implications of the Findings of this Work The findings of this book have a number of important implications, some specifically related to victim access to and participation in criminal procedures and others of a wider nature. The wider implications of this study arise from its finding that victims of serious human rights violations and directly concerned societies, particularly in situations of mass atrocity, have multiple needs, often involving social, economic, political and legal issues, and that the ability of criminal procedures to satisfy these needs is limited. The first of the wider implications of this study is therefore the need for a holistic and interdisciplinary approach to the design and implementation of efforts to address serious human rights violations, particularly when perpetrated in situations of mass atrocity. Socio-economic, policy and legal issues should be viewed as inter-related and thus addressed coherently. Specifically, and given the limited function of prosecution initiatives, they need to be supplemented with measures to meet the social and economic needs of victims, and in societies in transition with measures to address the political and socio-economic conditions that underlay the conflict or repression. As analysed in Chapter II, a series of empirical studies carried out in nearly all regions of the world has affirmed the need for these additional measures.15 Therefore, the current approach in which socio-economic, political and legal matters are addressed as three completely separate tracks should be abandoned. This also means that specialists from various fields of knowledge should work in a coordinated fashion in these efforts.16 In his book-long study, Brandon Hamber elaborates on the theoretical basis for the connection between the need for these additional measures to improve the social context and the individual healing of victims of serious human rights violations. He first explains that these violations, and political violence in particular, do not merely harm individuals, but also destroy social relations. They affect a victim’s sense of being part of society.17 He also maintains that “it is not only the physical or psychological stress which victims … endured that [determines the trauma], but also how this was mediated [by the social context] at different points over time.”18 The social context is understood as determined by social, economic, political and cultural factors. Based on these arguments, he states that “[individual] healing [from trauma originated by political violence] is dependent upon

15 See above Chapter II, Section II, Subsection B.v. See also above Chapter IV, Section III, Subsection E. 16 See e.g. Hamber (2009), Transforming Societies After Political Violence: Truth, Reconciliation, and Mental Health, at 188, 204; Harvey M. Weinstein (2011), “Editorial Note: The Myth of Closure, the Illusion of Reconciliation: Final Thoughts on Five Years as Co-Editor-in-Chief,” 5 The International Journal of Transitional Justice 1, at 10. 17 Hamber (2009), Transforming Societies After Political Violence: Truth, Reconciliation, and Mental Health, at 22, 25. 18 Id. at 200.

general conclusions273 and interrelated with the social context in a profound way.”19 Thus he maintains that the social context should be a major component of “conceptualising assistance to victims of extreme political traumatisation ….”20 Another wider implication of the findings of this work is the need to take into consideration the needs and views of victims and of directly affected communities when designing mechanisms to address mass serious human rights violations. Diane Orentlicher, in her former position of UN independent expert to update the Set of Principles on Combating Impunity, endorsed this view in the context of the design of policies for combating impunity.21 I share the rationales that Diane Orentlicher identified for the need for broad participation of victims and directly affected communities in the design of policies for combating impunity: Broad participation in deliberations concerning strategies for combating impunity serve[s] several purposes. To begin, it is likely to inspire greater public support for the resulting policy. Such consultations also help ensure that national policies respond to victims’ actual needs. Including victims also serves a deeper aim: it can help reconstitute the full civic membership of those who were denied the protection of the law in the past. Their participation in public deliberations may itself contribute to a process in which victims reclaim control over their lives and may help restore their confidence in government.22

Differences in cultural traditions and values among communities are another reason why the needs and views of victims and of directly affected populations should be taken into account when designing mechanisms to address mass serious human rights violations.23 I shall now turn to the implications of the findings of this book, specifically related to victim access to and participation in criminal procedures: The first implication of this type is that the emphasis of international standards on this matter should be placed on victim access to and participation in criminal procedures before domestic tribunals. As mentioned earlier, these tribunals usually have primary jurisdiction over serious human rights violations. Therefore, these tribunals deal with most of these infringements. Additionally, it is before domestic tribunals that impunity in the investigation and prosecution of these violations is more prominent. Therefore, it is before these tribunals that victim access to and participation in criminal procedures can make the largest contribution. This implication is very important because most international efforts and literature have focused on victim access to and participation in criminal procedures before international and hybrid criminal tribunals. The second implication of this kind is that human rights treaty monitoring bodies can in both legal positive and normative terms adopt a consistent view regarding victim access to and participation in criminal procedures before domestic courts.

19 Id. at 189. 20 Id. at 198. 21 Diane Orentlicher (2004), “Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 27 February 2004, UN Doc. E/CN.4/2004/88, annex, at 5–6, para. 11. 22 Id. at 5–6, para. 11. 23 See above Chapter II, Section II, Subsection B.i.

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As analysed in Chapter IV, a series of basic rights in criminal procedures for victims can be derived from the provisions of existing human rights treaties. Additionally, a consistent approach to this matter is required from a normative perspective as criminal proceedings for serious human rights violations, to which victim access and participation are attached, concern the protection of fundamental rights. Therefore, it should not be the case that victim access to and participation in criminal procedures depend entirely on the legal tradition that the concerned State adopts in its criminal justice system. As mentioned earlier, this is of practical importance as, for example, during the last decade, many countries in Latin America have switched from civil law to common law criminal justice system models.24 The third implication of this type is that it is possible to identify several objective principles to inform the implementation of victim access to and participation in criminal procedures conducted in situations of mass atrocity. In order to do so, I have taken into consideration the main features of these situations – i.e. the large number of victims involved and the limited human and financial resources usually available in such situations – and the legal and public interest considerations involved in criminal procedures. The last implication specifically related to victim access to and participation in criminal procedures is that those international and hybrid criminal tribunals which allow such access and participation can do much more to improve them. Notably, these tribunals can streamline the process of evaluation of victims’ participation requests and victims’ participation in general. This may include establishing a set of rights for victims, similar to those proposed in this work, to be granted for a phase or the entirety of the proceedings once a person is recognised as having the status of victim.25 While recognising the limited ability of victim access to and participation in criminal procedures to satisfy the needs of victims of serious human rights violations and of directly concerned societies, particularly in situations of mass atrocity, this book has demonstrated that such access and participation serve several important objectives. Notably, they contribute to reaffirming the importance the concerned society attaches to the infringed rights, victims’ dignity and their membership of and status in the concerned society. They also serve to counter the impunity that often surrounds these infringements. Therefore, victim access to and participation in criminal procedures are worth recognising under international law and worth pursuing.

24 See above Introduction, Section III, Subsection C. 25 See above Chapter V, Section IV, Subsection D.

BIBLIOGRAPHY

I. Primary Sources A. Treaties i. United Nations Treaties Convention on the Prevention and Punishment of the Crime of Genocide, UN General Assembly, Res. 260 A (III), 9 December 1948, 78 U.N.T.S. 277. International Covenant on Civil and Political Rights, UN General Assembly, Res. 2200A (XXI), 16 December 1966, 999 U.N.T.S. 171 (entered into force on 23 March 1976). Optional Protocol to the International Covenant on Civil and Political Rights, UN General Assembly, Res. 2200A (XXI), 16 December 1966, 999 U.N.T.S. 302 (entered into force on 23 March 1976). Convention for the Suppression of Unlawful Seizure of Aircraft, 14 November 1970, 860 U.N.T.S. 105. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN General Assembly, Res. 39/46, 10 December 1984, 1465 U.N.T.S. 85. The Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 12 July 1998, U.N. Doc. A/CONF.183.9. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, UN General Assembly, Res. 54/263, 25 May 2000, U.N. Doc. A/54/49 (entered into force on 18 January 2002). International Convention for the Protection of All Persons from Enforced Disappearance, UN General Assembly, Res. 61/177, 20 December 2006, UN Doc. A/RES/61/177 (entered into force on 23 December 2010). Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN General Assembly, Res. 63/117,10 December 2008, UN Doc. A/Res/637117 (not yet in force).

ii. African Treaties The African Charter on Human and Peoples’ Rights, 27 June 1981, 21 I.L.M. 58 (entered into force on 21 October 1986).

iii. European Treaties European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222 (entered into force on 3 September 1953, as amended by Protocols Nos. 3, 5, 8, 11 and 14, which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, 1 November 1998 and 1 June 2010 respectively).

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iv. Inter-American Treaties American Convention on Human Rights, 22 November 1969, 1144 U.N.T.S. 123 (entered into force on 18 July 1978). Inter-American Convention to Prevent and Punish Torture, General Assembly of the Organization of American States, 9 December 1985, 25 I.L.M. 519 (1986). Inter-American Convention on Forced Disappearance of Persons, General Assembly of the Organization of American States, 9 June 1994, 33 I.L.M. 1429 (1994). Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, General Assembly of the Organization of American States, 9 June 1994, 33 I.L.M. 1534 (1994).

B. Declarations, Resolutions and other Documents i. African Commission on Human and Peoples’ Rights a) Declarations and Guidelines

The Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa, adopted through Res. 41(XXVI)99: Resolution on the Right to Fair Trial and Legal Aid in Africa, 15 November 1999. Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), October 2002, available at http://www1.umn.edu/humanrts/achpr/tortguidelines.html. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, DOC/ OS(XXX)24, May 2003, available at http://www.achpr.org/files/instruments/guidelines-right-fair -trial/achpr_principles_and_guidelines_fair_trial.pdf.

b) Resolutions

Resolution 41(XXVI)99: Resolution on the Right to Fair Trial and Legal Aid in Africa, adopted on 15 November 1999. Resolution 57(XXIX)01: Resolution on the Recent Violence in Kabyla, Algeria, adopted on 7 May 2001. Resolution 67(XXXV)04: Resolution on Côte d’Ivoire, adopted on 4 June 2004. Resolution 70(XXXV)04: Resolution on Nigeria, adopted on 4 June 2004.

ii. Extraordinary Chambers in the Courts of Cambodia Internal Rules (Rev. 8), as revised on 3 August 2011.

iii. International ad hoc Criminal Tribunals Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report to the Prosecutor, 8 June 2000, reprinted in 39 ILM 1257 (2000), available at http://www.un.org/icty>. ICTY Rules Committee, Victims’ Compensation and Participation, attached to a letter dated 12 October 2000 from the President of the ICTY addressed to the UN Secretary-General, in letter dated 2 November 2000 from the UN Secretary-General addressed to the President of the Security Council, 3 November 2000, UN Doc. S/2000/1063, Appendix. ICTR President, Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda addressed to the Secretary-General, in UN Secretary-General, Letter of 14 December 2000 from the Secretary-General addressed to the President of the Security Council, 15 December 2000, UN Doc. S/2000/1198. ICTY and ICTR Prosecutor, Address to the Security Council by Carla del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 21 November 2000, ICTY Press Release of 24 November 2000, JL/P.I.S./542-e.

bibliography277 ICTR Rules, adopted on 29 June 1995 and as amended more recently, on 1 October 2009. ICTY, Rules of the International Criminal Tribunal for the Former Yugoslavia, Rev. 46, 20 October 2011, IT/32/Rev. 46.

iv. International Criminal Court The Office of the Prosecutor, Report on Prosecutorial Strategy, 14 September 2006. Report of the Court on the Strategy in Relation to Victims, 10 November 2009, ICC-ASP/8/45.

v. Declarations of the United Nations General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN General Assembly, Res. 40/34, 29 November 1985, UN Doc. A/RES/40/34. Declaration on the Protection of All Persons From Enforced Disappearance, UN General Assembly, Res. 47/133, 18 December 1992, in Human Rights: A Compilation of International Instruments, Vol. I (First Part), UN Doc. ST/HR/1/Rev.6 (Vol. I/Part 1), at 427. Declaration on the Elimination of Violence against Women, UN General Assembly, Res. 48/104, 20 December 1993, in Human Rights: A Compilation of International Instruments, Vol. I (First Part), UN Doc. ST/HR/1/Rev.6 (Vol. I/Part 1), at 175. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly, Res. 60/147, 16 December 2005, UN Doc. A/RES/60/147.

vi. UN Commission on Human Rights Fifth Session: Summary Record of the Hundred and Seventh Meeting, 2 June 1949, UN Doc. E/CN.4/ SR.107. Fifth Session: Summary Record of the Hundred and Ninth Meeting, 6 June 1949, UN Doc. E/CN.4/ SR.109. Sixth Session: Summary Record of the Hundred and Fifty-Fifth Meeting (Part II), 24 April 1950, UN Doc. E/CN.4/SR.155, Part II. Resolution 2004/72: Impunity, 21 April 2004, in UN Commission on Human Rights, Report of the Sixtieth Session, Part I, 23 April 2004, UN Doc. E/CN.4/2004/127 (Part I), at 271. Resolution 2005/81: Impunity, 21 April 2005, in UN Commission on Human Rights, Report of the Sixty-First Session, 22 April 2005, UN Doc. E/CN.4/2005/135, at 311.

vii. UN Committee against Torture General Comment No. 02: Implementation of Article 2 by State Parties, 27 November 2007, UN Doc. CAT/C/GC/2/CRP.1/Rev.4.

viii. UN Committee on the Elimination of Discrimination against Women General Recommendation No. 19: Violence against Women, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/ GEN/REV.8, at 302.

ix. UN Committee on the Elimination of Racial Discrimination General Recommendation XXVII on Discrimination against Roma, 16 August 2000, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 259. General Recommendation XXXI on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, 2005, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/ GEN/REV.8, at 277.

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x. UN Committee on the Rights of the Child General Comment No. 8 (2006): The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19; 28, para. 2; and 37, inter alia), 2 March 2007, UN Doc. CRC/C/GC/8*.

xi. UN High Commissioner for Human Rights The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law: Note by the High Commissioner for Human Rights, 10 November 2003, UN Doc. E/CN.4/2004/57. The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law: Note by the High Commissioner for Human Rights, 21 December 2004, UN Doc. E/CN.4/2005/59. Right to the Truth: Report of the Office of the High Commissioner for Human Rights, 7 June 2007, UN Doc. A/HRC/5/7.

xii. UN Human Rights Committee Annual Reports

Report of the Human Rights Committee (1988), UN Doc. No. A/43/40.

General Comments

General Comment No. 2: Reporting Guidelines, 28 July 1981, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/ GEN/REV.8, at 164. General Comment No. 6: Article 6 (Right to Life), 30 April 1982, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/ GEN/REV.8, at 166. General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment of Punishment), 10 March 1992, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 190. General Comment No. 29: Article 4: Derogations during a State of Emergency, 24 July 2001, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 228. General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, 8 May 2006, UN Doc. HRI/GEN/REV.8, at 233. General Comment No. 32: Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 23 August 2007, UN Doc. CCPR/C/GC/32. General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, 5 November 2008, UN Doc. CCPR/C/GC/33.

Other Documents

Sélection de décisions du Comité des Droits de L’Homme prises en vertu du Protocol Facultatif, Vol. II, 1991, UN Doc. CCPR/C/OP/2.

xiii. UN International Law Commission ILC Report 1976, UN Doc. A/31/10. Addendum to the Eighth Report on State Responsibility by Mr. Roberto Ago, Special Rapporteur, UN Doc. A/CN.4/318/Add.5–7, reprinted in International Law Commission (1980), Yearbook of the International Law Commission (New York and Geneva: United Nations), Vol. II, part 1, UN Doc. A/ CN.4/Ser.A/1980/Add.1 (Part 1).

bibliography279 Draft Code of Crimes against the Peace and Security of Mankind, in International Law Commission (1996), Yearbook of the International Law Commission, (New York and Geneva: United Nations), Vol. II (Part II).

xiv. UN Secretary-General’s Reports Report of the Secretary-General on Khmer Rouge Trials, 31 March 2003, UN Doc. A/57/769. Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and PostConflict Societies, 23 August 2004, U.N. Doc. S/2004/616*. Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, 15 November 2006, UN Doc. S/2006/893. Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon: Addendum, 21 November 2006, UN Doc. S/2006/893/Add.1.

xv. UN Security Council Statement by the President of the Security Council, 20 December 2002, UN Doc. S/PRST/2002/41. Resolution 1503, 28 August 2003, UN Doc. S/RES/1503. Resolution 1534, 26 March 2004, UN Doc. S/RES/1534. Resolution 1757, 30 May 2007, UN Doc. S/RES/1757. Resolution 1820, 19 June 2008, UN Doc. S/Res/1820.

xvi. Other United Nations Documents van Boven, Theo, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report Submitted by Mr. Theo van Boven, Special Rapporteur, 2 July 1993, UN Doc. E/CN.4/Sub.2/1993/8. Bassiouni, Cherif, Report of the Independent Expert on the Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms, Mr. M. Cherif Bassiouni, Submitted Pursuant to Commission on Human Rights Resolution 1998/43, 8 February 1999, UN Doc. E/CN.4/1999/65. Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the ICTY and the ICTR, 22 November 1999, UN Doc. A/54/634. UNMIK, Regulation 2000/6, On the Appointment and Removal from Office of International Judges and International Prosecutors, 15 February 2000, UNMIK/REG/2000/6. UNTAET, Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000, UNTAET/REG/2000/15. UNTAET, Regulation 2000/30 on Transitional Rules of Criminal Procedure, 25 September 2000, UNTAET/REG/2000/30. UNMIK, Regulation 2000/64, On Assignment of International Judges/Prosecutors and/or Change of Venue, 15 December 2000, UNMIK/REG/2000/64. UNTAET, Regulation 2001/25, 14 September 2001, UNTAET/REG/2001/25. Statute of the Special Court for Sierra Leone, in UN Secretary-General, Letter dated 6 March 2002 from the Secretary-General addressed to the President of the Security Council, Annex to Appendix II, 8 March 2002, UN Doc. S/2002/246. Chairperson-Rapporteur, Ambassador Alejandro Salinas (Chile), Report on the Consultative Meeting on the Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, 27 December 2002, UN Doc. E/ CN.4/2003/63. UN General Assembly, Resolution 57/228 B: Khmer Rouge Trials, 23 May 2003, UN Doc. A/Res/57/ 228 B. Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic

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Kampuchea, Annex to UN General Assembly, Resolution 57/228 B, 22 May 2003, UN Doc. A/ Res/57/228 B. UNMIK, Provisional Criminal Procedure Code of Kosovo, UNMIK/REG/2003/26, 6 July 2003. Chairperson-Rapporteur, Ambassador Alejandro Salinas (Chile), “Report of the Second Consultative Meeting on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (Geneva, 20, 21 and 23 October),” in the UN High Commissioner for Human Rights, The Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law: Note by the High Commissioner for Human Rights, 10 November 2003, UN Doc. E/CN.4/2004/57, Annex. Orentlicher, Diane, “Independent Study on Best Practices, Including Recommendations, to Assist States in Strengthening Their Domestic Capacity to Combat All Aspects of Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 27 February 2004, UN Doc. E/CN.4/2004/88, annex. Alston, Philip, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Mr. Philip Alston, 22 December 2004, UN Doc. E/CN.4/2005/7. Orentlicher, Diane, “Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity,” in UN Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, Addendum, 8 February 2005, UN Doc. E/CN.4/2005/102. Add.1 Orentlicher, Diane, “Report of the Independent Expert to Update the Set of Principles to Combat Impunity,” in Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, 18 February 2005, UN Doc. E/CN.4/2005/102. Alston, Philip, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Mr. Philip Alston, 8 March 2006, UN Doc. E/CN.4/2006/53. Statute of the Special Tribunal for Lebanon, attached to UN Security Council, Res. 1757, 30 May 2007, UN Doc. S/RES/1757. Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, Annex to UN Security Council, Resolution 1757, 30 May 2007, UN Doc. S/ RES/1757.

C. Domestic Legislation i. Bosnia and Herzegovina Criminal Procedure Code, Official Gazette of Bosnia and Herzegovina No. 36/2003, 21 December 2003.

ii. Cambodia Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea as promulgated on 27 October 2004 (NS/RKM/1004/006).

iii. Colombia Current Code of Criminal Procedure, Law No. 906, 31 August 2004. Previous Code of Criminal Procedure, Law No. 600, 24 July 2000.

iv. Costa Rica Law No. 7594, 10 December 1996.

v. France Code de Procédure Pénale, version in force as of 17 July 2012.

bibliography281 vi. Germany Criminal Procedure Code (Strafprozeßordnung, StPO), available at http://www.iuscomp.org/gla/ statutes/StPO.htm#386.

vii. Guatemala Código Procesal Pénal, Decree Number 51–92, available at http://www.oj.gob.gt/es/QueEsOJ/ EstructuraOJ/UnidadesAdministrativas/CentroAnalisisDocumentacionJudicial/cds/CDs%20 leyes/2004/PDFs/Codigos/CODIGO%20PROCESAL%20PENAL.pdf.

viii. South Africa Promotion of National Unity and Reconciliation Act 34 of 1995.

ix. United States Crime Victims’ Rights Act of 2004, 18 U.S.C. §3771 (2004).

x. United Kingdom The Crown Prosecution Service (2004), The Code for Crown Prosecutors (London: the Crown Prosecution Service).

D. Cases i. International Cases a) African Commission on Human and Peoples’ Rights

Communication 74/92 (1995), Commission Nationale des Droits de l’Homme et des Libertés v. Chad, in Ninth Activity Report 1995–1996. Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal Conference of East Africa v. Sudan, in Thirteenth Activity Report 1999–2000. Communications 54/91, 61/91, 98/93, 164/97-196/97 and 210/98, Malawi African Association; Amnesty International; Ms Sarr Diop; Union Interafricaine des Droits de l’Homme and Raddho; Collectif des Veuves et Ayants-Droits; Association Mauritanienne des Droits de l’Homme v. Mauritania, in Thirteenth Activity Report 1999–2000, Addendum. Communications 140/94, 141/94 and 145/95, Constitutional Rights Project and Others v. Nigeria, November 1999. Communication 204/97, Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, in Fourteenth Activity Report, (2001) AHRLR 51 (ACHPR 2001). Communication 155/96, The Social and Economic Rights Action Centre and the Center for Economic and Social Rights v. Nigeria, para. 44, in Fifteenth Activity Report 2001–2002, Annex V. Communication 245/2002, Zimbabwe Human Rights NGO Forum v. Zimbabwe, in Twenty-First Activity Report 2007, Annex III.

b) European Commission on Human Rights

Dujardin and others v. France, Admissibility decision, 2 September 1991, Application No. 16734/90.

c) European Court of Human Rights

Ringeisen v. Austria, Judgment of 16 July 1971, Application No. 2614/65. Golder v. UK, Judgment of 21 February 1975, Application No. 4451/70.

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Bekos and Koutropolos v. Greece, Judgment of 13 December 2005, Application No. 15250/02. Mikheyev v. Russia, Judgment of 26 January 2006, Application No. 77617/01. Murat Demir v. Turkey, Judgment of 2 March 2006, Application No. 43579/98. Corsacov v. Moldova, Judgment of 4 April 2006, Application No. 18944/02. Markovic and Others v. Italy, Judgment of 14 December 2006, Application No. 1398/03. Opuz v. Turkey, Judgment of 9 June 2009, Application No. 33401/02. Rantsev v. Cyprus and Russia, Judgment of 7 January 2010, Application No. 25965/04.

d) European Court of Justice

Grant v. South-West Trains Ltd., Judgment of 17 February 1998, Communication 249/1996.

e) Inter-American Commission on Human Rights

Martin de Mejia v. Peru, Case 10.970, Report No. 5/96, 1 March 1996. Carranza v. Argentina, Case 10.087, Report No. 30/97, 30 September 1997. Parada Cea et al. v. El Salvador, Case 10.480, Report No. 1/99, 27 January 1999. Domingues v. United States, Case 12.285, Report No. 62/02, 22 October 2002, OEA/SER.L/V/II.117, doc. 1, rev. 1 (2003).

f) Inter-American Court on Human Rights Judgments

Velásquez Rodriguez v. Honduras, Preliminary Objections, Judgment of 26 June 1987, Series C No. 1. Fairén Garbi and Solís Corrales v. Honduras, Preliminary Objections, Judgment of 26 June 1987, Series C No. 2. Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4. Godinez Cruz case, Merits, Judgment of 20 January 1989, Series C No. 5. Caballero-Delgado and Santana v. Colombia, Merits, Judgment of 8 December 1995, Series C No. 22. Genie Lacayo v. Nicaragua, Merits, Judgment of 29 January 1997, Series C No. 30. Castillo Páez v. Peru, Merits, Judgment of 3 November 1997, Series C No. 34. Suárez Rosero v. Ecuador, Merits, Judgment of 12 November 1997, Series C No. 35. Blake v. Guatemala, Merits, Judgment of 24 January 1998, Series C No. 36. Loayza Tamayo v. Peru, Reparations, Judgment of 27 November 1998, Series C No. 42. Castillo Páez v. Peru, Reparations and Costs, Judgment of 27 November 1998, Series C No. 43. The Caracazo Case v. Venezuela, Merits, Judgment of 11 November 1999, Series C No. 58. Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala, Merits, Judgment of 19 November 1999, Series C No. 63. Durand and Ugarte v. Peru, Merits, Judgment of 16 August 2000, Series C No. 68. Barrios Altos Case v. Peru, Merits, Judgment of 14 March 2001, Series C No. 75. Case of Las Palmeras v. Colombia, Merits, Judgment of 6 December 2001, Series C No. 90. Trujillo Oroza v. Bolivia, Reparations, Judgment of 27 February 2002, Series C No. 92. The Caracazo v.Venezuela, Reparations, Judgment of 29 August 2002, Series C No. 95. Case of Las Palmeras v. Colombia, Reparations, Judgment of 26 November 2002, Series C No. 96. Case of Juan Humberto Sánchez v. Honduras, Preliminary Objections, Merits, Reparations and Costs, Judgment of 7 June 2003, Series C No. 99. Bulacio v. Argentina, Merits, Reparations and Costs, Judgment of 18 September 2003, Series C No. 100. Mynra Mack Chang v. Guatemala, Merits, Reparations and Costs, Judgment of 25 November 2003, Series C No. 101. Case of the 19 Tradesmen, Merits, Reparations and Costs, Judgment of 5 July 2004, Series C No. 109. Case of the Serrano-Cruz Sisters v. El Salvador, Judgment of 1 March 2005, Series C No. 120. Case of Acosta Calderón, Merits, Reparations and Costs, Judgment of 24 June 2005, Series C No. 129. Case of the “Mapiripán Massacre” v. Colombia, Merits, Reparations and Costs, Judgment of 15 September 2005, Series C No. 134. Case of Palamara Iribarne, Merits, Reparations and Costs, Judgment of 22 November 2005, Series C No. 135.

bibliography285 Case of Gómez-Palomino v. Peru, Merits, Reparations and Costs, Judgment of 22 November 2005, Series C No. 136. Case of López Álvarez, Merits, Reparations and Costs. Judgment of 1 February 2006. Series C No. 141. Case of Baldeón-García, Merits, Reparations and Costs, Judgment of 6 April 2006, Series C No. 147. The Ituango Massacre case v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 1 July 2006, Series C No. 148. Case of Ximenes Lopes, Merits, Reparations and Costs, Judgment of 4 July 2006, Series C No. 149. Case of Montero-Aranguren and others (Detention Center of Catia) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of 5 July 2006, Series C No. 150. Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment of 19 September 2006, Series C No. 151. Case of Goiburú et al. v. Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006, Series C No. 153. Case of Almonacid-Arellano et al v. Chile, Preliminary Objections, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No. 154. Case of Vargas-Areco v. Uruguay, Merits, Reparations and Costs, Judgment of 26 September 2006, Series C No. 155. The Miguel Castro Castro Prison v. Peru, Merits, Reparations and Costs, Judgment of 25 November 2006, Series C No. 160. Case of La Cantuta v. Peru, Merits, Reparations and Costs, Judgment of 29 November 2006, Series C No. 162. Case of the Rochela Massacre v. Colombia, Merits, Reparations, and Costs, Judgment of 11 May 2007, Series C No. 163. Case of Heliodoro Portugal v. Panamá, Preliminary Exceptions, Merits, Reparations and Costs, Judgment of 12 August 2008, Series C No. 186.

Advisory Opinions

Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87 of 30 January 1987, Series A No. 8. Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-9/87 of 6 October 1987, Series A No. 9.

g) International Centre for Settlement of Investment Disputes (W. Bank) CMS Gas Transmission Co. v. Argentina, Case No. ARB/01/8 (12 May 2005). LG&E Energy Corp. v. Argentina, Decision on Liability, Case No. ARB/02/1 (3 October 2006).

h) International Court of Justice Contentious Cases

Colombian-Peruvian asylum case (Colombia v. Peru), Judgment of 20 November 1950, 1950 I.C.J. Reports 266. North Sea Continental Shelf cases (Federal Republic of Germany /Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, 1969 I.C.J. Reports 3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, 1986 I.C.J. Reports 14. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, 1997 I.C.J. Reports 7.

Advisory Opinions

South-West Africa-Voting Procedure, Advisory Opinion of 7 June 1955, 1955 I.C.J. Reports 67. Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion of 21 June 1971, 1971 I.C.J. Reports 16.

286

bibliography

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 1996 I.C.J. Reports 226. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, 2004 I.C.J. Reports 136.

i) International Criminal Court Situation in Uganda, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in relation to the Application of Article 53, Pre-Trial Chamber III, 2 December 2005, ICC-02/04-01/05. Situation of the Democratic Republic of Congo, Decision on the Application for Participation in the Proceedings by VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-Trial Chamber I, 17 January 2006, ICC-01/04-101-tEn-Corr. Prosecutor v. Lubanga Dyilo, Decision on the Prosecutor’s Application for a Warrant of Arrest, PreTrial Chamber I, 10 February 2006, ICC-01/04-01/06. Prosecutor v. Lubanga Dyilo, Decision on the Application for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case the Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, 29 June 2006, ICC-01/04-01/06-172-tEN. Prosecutor v. Lubanga Dyilo, Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of the Congo, Pre-Trial Chamber I, 28 July 2006, ICC-01/04-01/06-228-tEn. Prosecutor v. Lubanga Dyilo, Decision on the Modalities of Participation of Victims a/0001/06, a/0002/06 and a/0003/06 in the Hearing of Confirmation of Charges, Pre-Trial Chamber I, 22 September 2006, ICC-01/04-01/06. Prosecutor v. Lubanga Dyilo, Decision on Second Defence Motion for Leave to Appeal, Pre-Trial Chamber I (Judge Sylvia Steiner: Single Judge), 28 September 2006, ICC-01/04-01/06-489. Situation in the Central African Republic, Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, Pre-Trial Chamber III, 30 November 2006, ICC-01/05-6. Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber, Appeals Chamber, 12 December 2006, ICC-01/04-01/06-769. Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the decision of the Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo,” Appeals Chamber, 13 February 2007, ICC-01/04-01/06-824. Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, Appeals Chamber, 13 June 2007, ICC-01/04-01/06 OAS. Situation in Uganda, Decision on Victims’ Application for Participation a/0010/06, a/0064/06, a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, Pre-Trial Chamber II (Single Judge), 10 August 2007, ICC-02/04-101. Prosecutor v. Lubanga Dyilo, Decision on Victims’ Participation, Trial Chamber I, 18 January 2008, ICC-01/04-01/06. Prosecutor v. Katanga and Ngudjolo, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage on the Case, Pre-Trial Chamber I (Judge Sylvia Steiner: Single Judge), 13 May 2008, ICO-01/04-01/07-474. Prosecutor v. Katanga and Ngudjolo, Decision on the 97 Applications for Participation at the PreTrial Stage of the Case, Pre-Trial Chamber I (Judge Akua Kuenyehia: Single Judge), 10 June 2008, ICO-01/04-01/07. Prosecutor v. Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, Appeals Chamber, 11 July 2008, ICC-01/04-01/06 OA 9 OA 10. Prosecutor v. Bemba Gombo, Fourth Decision on Victims’ Participation, Pre-Trial Chamber III (Judge Hans-Peter Kaul: Single Judge), 12 December 2008, ICC-01/05-01/08-320.

bibliography287 Situation in the Democratic Republic of the Congo, Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of PreTrial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the Decision of Pre-Trial Chamber I of 24 December 2007, Appeals Chamber, 19 December 2008, ICC-01/04 OA4 OA5 OA6. Prosecutor v. Lubanga Dyilo, Decision on the request by victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, Trial Chamber I, 26 June 2009, ICC-01/04-01/06-2032-Anx.

j) International Criminal Tribunal for the former Yugoslavia Prosecutor v. Blaškić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Appeals Chamber, 29 October 1997, Case No. IT-95-14-AR108 bis. Prosecutor v. Furundžija, Judgment, 10 December 1998, Trial Chamber II, Case No. IT-95-17/1-T. Prosecutor v. Delalić et al., Judgment, 20 February 2001, Appeals Chamber, IT-96-21-A.

k) International Criminal Tribunal for Rwanda Prosecutor v. Ntakirutimana, Decision on the Prosecutor’s Motion to Join the Indictments, Trial Chamber, 22 February 2001, ICTR-96-10-I and ICTR 96-17-T. Prosecutor v. Akayesu, Judgment, 1 June 2001, Appeals Chamber, ICTR-96-4-A. Prosecutor v. Ndindiliyimana, Decision on Urgent Motion for a Stay of the Indictment, or in the Alternative a Reference to the Security Council, Trial Chamber, 26 March 2004, ICTR-2000-56-I.

l) Special Court for Sierra Leone Kallon and Kamara, Appeals Chamber Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, Case No. SCSL-2004-15-AR72(E).

m) UN Committee against Torture Baraket v. Tunisia, Communication No. 60/96, Views of 10 November 1999. Dragan Dimitrijevic v. Serbia and Montenegro, Communication No. 207/2002, Views of 29 November 2004. Dimitrov v. Serbia and Montenegro, Communication No. 171/2000, Views of 3 May 2005. Guridi v. Spain, Communication. No. 212/2002, Views of 24 May 2005. Suleymane Guengueng et al. v. Senegal, Communication No. 181/2001, Views of 17 May 2006.

n) UN Committee on the Elimination of Discrimination against Women A. T. v. Hungary, Communication No. 2/2003, Views of 26 January 2005, UN Doc. CEDAW/ C/32/D/2/2003 (2005).

o) UN Committee on the Elimination of Racial Discrimination L.K. v. The Netherlands, Communication No. 4/1991, Views of 16 March 1993.

p) UN Human Rights Committee Decisions on Individual Communications

Guerrero v. Colombia, Communication No. 45/1979, Views of 5 February 1979. Santullo Valcada v. Uruguay, Communication No. 9/1977, Views of 26 October 1979. Bleier Lewenhoff and Valino de Bleier v. Uruguay, Communication No. 30/1978, Views of 29 March 1982. Dermit Barbato v. Uruguay, Communication No. 084/1981, Views of 21 October 1982.

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Quinteros Almeida v. Uruguay, Communication No. 107/1981, Views of 21 July 1983. Tshitenge Muteba v. Zaire, Communication No. 124/1982, Views of 24 July 1984. Khemraadi B. et al. v. Suriname, Communications Nos. 146/1983 and 148-154/1983, Views of 4 April 1985. H.C.M.A. v. The Netherlands, Communication No. 213/1986, Views of 3 April 1989. S.E. v. Argentina, Communication No. 275/1988, Views of 26 March 1990. J.L. v. Australia, Communication No. 491/1992, Views of 28 July 1992. Angel N. Olo Bahamonde v. Equatorial Guinea, Communication No. 468/1991, Views of 10 November 1993. Barbarín Mojica v. Dominican Republic, Communication No. 449/1991, Views of 15 July 1994. Bradshaw v. Barbados, Communication No. 489/1992, Views of 19 July 1994. Casanovas v. France, Communication No. 441/1990, Views of 19 July 1994. Rodriguez v. Uruguay, Communication No. 322/1988, Views of 9 August 1994. Roberts v. Barbados, Communication No. 504/1992, Views of 10 August 1994. Zelaya et al. v. Uruguay, Communication No. 328/1988, Views of 18 August 1994. Koné v. Senegal, Communication No. 386/1989, Views of 21 October 1994. Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of 27 October 1995. Celis Laureano v. Peru, Communication No. 540/1993, Views of 25 March 1996. Pinto v. Trinidad and Tobago, Communication No. 512/1992, Views of 16 July 1996. Vicente et al. v. Colombia, Communication No. 612/1995, Views of 19 August 1997. Chongwe v. Zambia, Communication No. 821/1998, Views of 25 October 2000. Telitsin v. Russian Federation, Communication No. 888/1999, Views of 29 March 2004. Mulezi v. Democratic Republic of the Congo, Communication No. 962/2001, Views of 8 July 2004. Zheikov v. Russian Federation, Communication No. 889/1999, Views of 17 March 2006. Ruzmetov v. Uzbekistan, Communication No. 915/200, Views of 30 March 2006. Bousroual v. Algeria, Communication No. 992/2001, Views of 30 March 2006. Boucherf v. Algeria, Communication No. 1196/2003, Views of 30 March 2006. Ruzmetov v. Uzbekistan, Communication No. 915/200, Views of 19 April 2006. Kouidis v. Greece, Communication No. 1070/2002, Views of 26 April 2006. Medjnoune v. Algeria, Communication No. 1297/2004, Views of 14 July 2006. Lalith Rajapakse v. Sri Lanka, Communication No. 1250/2004, Views of 14 July 2006. E.B. v. New Zealand, Communication No. 1368/2005, Views of 21 June 2007.

ii. Cases by Hybrid Courts a) Extraordinary Chambers in the Courts of Cambodia Case against Nuon Chea, Decision on Civil Party Participation in Provisional Detention Appeals, Pre-Trial Chamber, 20 March 2008, C11/53. Case against Ieng Sary, Decision on Preliminary Matters Raised by the Lawyers for the Civil Parties in Ieng Sary’s Appeal against Provisional Detention Order, Pre-Trial Chamber, 1 July 2008, C22/I/46. Case against Ieng Sary, Written Version of Oral Decision of 1 July 2008 on the Civil Party’s Request to Address the Court in Person, Pre-Trial Chamber, 3 July 2008, C22/I/54. Case against Ieng Sary, Directions on Unrepresented Civil Parties’ Right to Address the Pre-Trial Chamber in Person, 29 August 2008, C22/I/69.

b) War Crimes Chamber in Bosnia and Herzegovina Prosecutor v. Gojko Janković, Judgement, 16 February 2007, Case No. X-KRZ-05/161, English version. Prosecutor v. Radmilo Vuković, Judgement, 16 April 2007, Case No. X-KR/06/217, English version. Prosecutor v. Ranko Vuković, Judgement, 4 February 2008, Case No. X-KR/07/405, English version.

bibliography289 iii. Domestic Cases a)  Argentina

Julio Héctor Simón, Corte Suprema de Justicia, 14 June 2005 (2005-328-2056).

b) Chile

Miguel Angel Sandoval Rodriguez, Corte Suprema de Chile, 17 November 2004.

c) Colombia

Colombian Constitutional Court, Judgment C-228/02, 3 April 2002. ——, Judgment C-209/07, 21 March 2007. ——, Judgment C-516/07, 11 July 2007. ——, Judgment C-651/11, 7 September 2011.

d) France

Cour de cassation, the case of Thirion-Place, Cass. crim., 8 December 1906, Recueil Dalloz, 1907.I.207.

e) South Africa

The Azanian People’s organization (AZAPO) and others v. The President of the Republic of South Africa and others, 1996 (4) SA 671 (CC).

f) United Kingdom

R. v. Kalia, Court of Appeal, (1974) 60 Cr. App. R. 200. R. v. Chief Constable of Kent, Ex p L (1991) 93 Cr App R 416. R. v. Director of Public Prosecutions, Ex p C (1995) 1 Cr App R 136. R v. Brown (Milton), (1998) 2 Cr App R 364, The Times. (7 May 1998). R. v. DPP, ex parte Manning and another, [2001] Q.B. 330. Attorney General’s Reference No. 3 of 1999 (2001) 2 AC 91.

g) United States Judgments of the Supreme Court

U.S. v. Chemical Foundation, 272 U.S. 1 (1926). Linda R.S. v. Richard, 410 U.S. 614 (1973). Leeke v. Timmerman et al., 454 U.S. 83 (1981). Morris v. Slappy, 461 U.S. 1 (1983). Wayte v. United States, 470 U.S. 598 (1985). Booth v. Maryland, 482 U.S. 496 (1987). Payne v. Tennessee, 501 U.S. 808 (1991). U.S. v. Armstrong, 517 U.S. 456 (1996). Calderon v. Thompson, 523 U.S. 538 (1998).

Judgments of state courts

State v. Timmendequas, 161 N.J. 515, 737 A.2d 55 (1999). United States v. Degenhardt, 405 F.Supp.2d 1341 (2005).

II. Secondary Sources A. Books and Articles Aaronson, David E. (2008), “New Rights and Remedies: The Federal Crime Victims’ Rights Act of 2004, 28 Pace Law Review 623. Acosta, Paola A. (2007), El derecho de acceso a la justicia en la jurisprudencia interamericana (Bogotá: Universidad Externado de Colombia).

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bibliography291 —— (2010), “Victims’ Rights,” in M. Cherif Bassiouni (ed.), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (Antwerpen: Intersentia), Vol. I, at 575–733. Baumgartner, Elisabeth (2008), “Aspects of Victim Participation in the Proceedings of the International Criminal Court,” 90 International Review of the Red Cross 409. Beloof, Douglas E. (1999), “The Third Model of Criminal Process: The Victim Participation Model,” 1999 Utah Law Review 289. —— (2003), “Constitutional Implications of Crime Victims as Participants,” 88 Cornell Law Review 282. —— (2007), “Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure,” 56 Catholic University Law Review 1135. Bergsmo, Morten, Kjetil Helvig, Ilia Utmelidze and Gorana Žagovec (2009), The Backlog of Core International Crimes Case Files in Bosnia and Herzegovina, FICHL Publication Series (Oslo: PRIO). Beristain, Carlos Martín (2008), Diálogos sobre la Reparación: Experiencias en el Sistema Interamericano de Derechos Humanos (San José, Costa Rica: Instituto Interamericano de Derechos Humanos), 2 Vols. Bernhardt, Rudolf (2000), “The Duty to Protect and to Ensure Human Rights Under the European Convention on Human Rights,” in Eckart Klein (ed.), The Duty to Protect and to Ensure Human Rights 207 (Berlin: Verlag). Bierschbach, Richard A. (2006), “Allocution and the Purposes of Victim Participation under the CVRA,” 19 Federal Sentencing Reporter 44. Bitti, Gilbert and Håkan Friman (2001), “Participation of Victims in the Proceedings,” in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 456 (Ardsley, NY: Transnational Publishers). Bloomfield, David (2005), “Conclusion,” in David Bloomfield, Teresa Barnes and Luc Huyse (eds.) (2005), Reconciliation After Violent Conflict: A Handbook 167 (Stockholm: International Institute for Democracy and Electoral Assistance). Bodansky, Daniel and John R. Crook (2002), “Symposium: The ILC’s State Responsibility Articles: Introduction and Overview,” 96 American Journal of International Law 773. Boed, Roman (2000), “State of Necessity as a Justification for Internationally Wrongful Conduct,” 3 Yale Human Rights & Development Law Journal 1. Borelli, Silvia (2006), “Positive Obligations of States and the Protection of Human Rights,” 15 Interights Bulletin 101. Bottigliero, Ilaria (2004), Redress for Victims of Crimes Under International Law (Leiden: Matinus Njhoff). Bouloc, Bernard (2010), Procédure pénale (Paris: Dalloz, 22nd ed.). Bourdon, William and Emmanuelle Duverger (2000), La Cour pénale internationale: Le Statut de Rome (Paris: Ed. du Seuil). Boyle, Alan and James Harrison (2008), “Environmental Accidents,” in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, online edition, [www .mpepil.com]. Accessed on 15 June 2010. Boyle, David (2006), “The Rights of Victims,” 4 Journal of International Criminal Justice 307. Brienen, Marion Eleonora Ingeborg and Ernestine Henriëtte Hoegen (2000), Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure (Nijmegen: WLP). Broomhall, Bruce (2003), International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press). Brubacher, Matthew R. (2004), “Prosecutorial Discretion within the International Criminal Court,” 2 Journal of International Criminal Justice 71. Bryson, Susan J. (2002), Aftermath: Violence and the Remaking of a Self (Princeton: Princeton University Press).

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INDEX access to criminal procedures, right of victims of. See victim access to criminal procedures conducted in situations of mass atrocity, right of; victim access to criminal procedures for serious human rights violations generally, right of accountability accountability, individual 78, 95 concept 77 Ad hoc international criminal tribunals 209, 210, 224, 229. See also International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia rights of the victim 210, 224, 229 African Charter on Human and Peoples’ Rights 49, 132 African Commission on Human and Peoples’ Rights (ACHPR) amnesty 50, 57, 59 economic, social and cultural rights 52 effective remedy, right to an 55, 59, 132 fair hearing, right to a 13, 132–133 States’ procedural obligations 50–52, 56–59, 69, 132 African tribal systems 10, 100 American Convention on Human Rights (ACHR) 15, 28, 40, 48, 51, 59, 118, 120, 121, 151, 152, 155, 266. See also Inter-American Commission on Human Rights; InterAmerican Court on Human Rights amnesty 59 effective remedy, right to an 119, 120, 151, 266 fair hearing, right to a 117, 121, 152, 155 investigate, obligation to 59, 75, 112, 116, 118, 120 prevent, obligation to 48, 68 private individuals 68 procedural obligations of States 40, 48, 51, 59, 68, 75, 116 respect, obligation to 28, 48, 51 rule of law, principle of 40 truth, right to 152 victim access to criminal procedures, right of 118, 120 victim participation in criminal procedures, right to 112, 113, 120 amnesty African Commission on Human and Peoples’ Rights 50, 57, 59

blanket amnesty 78, 92 conditional amnesty 72, 79, 83, 84, 86–87, 89, 92 European Court of Human Rights 44, 45, 54, 68, 70 Inter-American Court on Human Rights 2, 27, 48, 75, 112, 117, 121, 151 UN Human Rights Committee 183 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims 3, 13, 23, 24, 26, 27, 56, 74, 99, 106–108, 110, 111, 142, 145, 149, 174, 233 Bosnia and Herzegovina 5, 60–62, 93, 94, 190, 217–220, 224, 225, 227, 229, 230, 247 Bosnia and Herzegovina, the Special Chamber in the State Court of establishment 217, 218 rights of the victim 218 Cambodia 5, 168, 176, 179, 212, 217, 220–223, 225–228, 235, 236 Cambodia, Extraordinary Chambers in the Courts of establishment 220–222 rights of the victim 176, 179, 226, 236 victims’ perceptions 168, 176, 178–179, 221, 223 Chechnya 15, 16, 151 civil law tradition features 11, 135–137 historical development 136, 142 premises 11, 135–137 Colombia Colombian Constitutional Court 17, 140, 141, 163, 169, 170 rights of the victim 17, 140, 141 common law tradition features 134–135, 137–142 premises 134–135, 144, 145, 170, 264, 268 comparative criminal law 5, 10, 11, 21, 190, 205, 208, 238, 252, 259, 260, 263, 268, 269 compensation to victim 20, 117, 138, 141, 145, 209, 210, 268 criminal procedures See also prosecute, obligation to expressivist, objectives 1, 16, 21, 22, 60, 95, 147, 160, 204, 206, 228, 259, 266, 269

308 features 1, 11, 13, 18, 84, 95, 96, 135, 142, 148, 149, 161, 163, 173, 198, 203, 204, 207, 226, 235, 260, 265, 267, 269, 270 objectives 6, 15, 22, 60–62, 71, 79, 108, 151, 172–173, 190, 206, 225, 228, 238, 266, 267, 270, 271, 274 cultural traditions and values 9, 27, 273 customary international law 11–12, 14, 20, 54, 72–79, 89, 90, 95, 99, 100, 109, 142, 145, 147, 263, 264. See also victim access to criminal procedures for serious human rights violations generally, right of; victim access to criminal procedures conducted in situations of mass atrocity, right of; victim participation in criminal procedures conducted in situations of mass atrocity, right to; victim participation in criminal procedures for serious human rights violations generally, right to elements 11, 77–78 victim access to criminal procedures, right of 142–143, 263–264 victim participation to criminal procedures, right to 142–143, 263–264 decision-making power in criminal procedures 129, 130, 172 defendant, rights 19, 174–175 See also presumption of innocence of the defendant disappearance 1, 23–25, 37–39, 41, 42, 46, 48–50, 64, 70, 74, 75, 101, 103–105, 113, 115, 116, 126 discrimination against women UN Committee on the elimination of discrimination against women (CEDAW Committee) 105 domestic criminal courts 9–10, 273 domestic criminal law 4–5, 20, 26, 30, 38, 43, 100, 106, 109–111, 116, 133–134, 138, 143, 157, 263 due process 11, 20, 61, 75, 82, 88, 93, 152, 161, 188 East Timor 202, 212, 213, 216, 217, 225–228, 255, 256 East Timor, the Special Panels in establishment 216 rights of the victim 216, 256 economic, social and cultural rights 49, 50, 52 effectiveness, principle of 43–45, 51, 52, 54, 63, 193 effective remedy, right to an African Commission on Human and Peoples’ Rights 59, 132 European Court of Human Rights (ECtHR) 2, 15, 26, 34, 42–43, 45–48, 53, 55,

index 59–60, 122, 126, 128, 149, 151, 156, 158, 162, 263–264, 266 Inter-American Court on Human Rights 2, 15, 26, 34, 48, 55, 59, 115, 119–120, 149, 151, 162, 263–264, 266 UN Human Rights Committee 4, 27–35, 40–42, 101–103, 149, 263–264 enforced disappearance 1, 23, 24, 37, 38, 41, 42, 64, 70, 74, 101, 104, 105 International Convention for the Protection of All Persons from Enforced Disappearance 37, 38, 64, 70, 101, 104, 105 ensure, obligation to 29, 40, 41, 48, 62, 63, 68, 69, 87, 130. See also secure, obligation to equality of arms 201, 202 erga omnes obligation 116 European Convention on Human Rights (ECHR) 6, 15, 28, 40, 42–48, 51, 52, 54, 65–68, 88, 122–130, 143, 151–154, 156–158, 160, 255, 266 nature 54 European Court of Human Rights (ECtHR) effectiveness, principle of 44, 45, 51, 53, 54 effective remedy, right to an 43, 46–48, 122, 126, 143, 151, 158 ensure, obligation to 15, 126, 130, 204 fair hearing, right to a 2, 122, 127–129, 156–159 impunity 15, 151, 204, 266 investigate, obligation to 15, 55, 57, 122, 126, 131, 151, 204, 263 prevent, obligation to 47, 88, 124 private individuals 65, 67, 68, 88, 124 procedural obligations of States 43–48, 51, 53–61, 65–67, 75, 122–127, 129–130 rule of law, principle of 160, 161, 204, 266 special status of rights infringed in serious human rights violations 17, 43, 51, 149, 162 victim access to criminal procedures, right of 122–126 victim participation in criminal procedures, right to 122–126, 149, 151, 155–162, 167 evidence victim rights to examine and challenge evidence 16, 18, 105, 150, 160, 194, 200–202, 204, 205, 269–270 victim right to offer evidence 201 exemplary trials 89 Extraordinary Chambers in the Courts of Cambodia. See Cambodia, Extraordinary Chambers in the Courts of fair hearing, right African Commission on Human and Peoples’ Rights 132

index309 European Court of Human Rights 2, 122, 127–129, 131, 155, 156, 158–160, 167 Inter-American Court on Human Rights 2, 112, 113, 117, 118, 120, 121, 159 UN Human Rights Committee 20, 101, 102, 111, 155 fairness of criminal procedures 170–171, 267 forced disappearance. See disappearance forced labour 23, 42, 43, 46, 48, 122, 126, 130, 131, 143 France Cour de Cassation 17, 136, 163, 164, 169 rights of the victim 125, 127, 139, 140, 202 Genocide Convention 1, 37, 38, 58, 64 Germany 52, 77, 140, 155, 193 gross human rights violations. See serious human rights violations Guatemala 75, 80, 112–113, 140 rights of the victim 140 hate speech 39 heard, right to be European Court of Human Rights 122, 143, 194, 264 Inter-American Court on Human Rights  112, 117, 143, 194, 196–200, 204, 205, 264 Hybrid criminal tribunals 3–5, 10–12, 20–21, 169, 208, 212, 223–226, 233, 236, 238, 252, 259, 261, 263–264, 269–270, 273–274  See also Bosnia and Herzegovina, Special Chamber in the State Court of; Cambodia, Extraordinary Chambers in the Courts of; East Timor, Special Panels; Kosovo, hybrid Courts in; Lebanon, Special Tribunal for; Sierra Leone, Special Court of ill-treatment, prohibition 41–44, 46–51, 55, 58, 60, 63–64, 67, 68, 75, 76, 101, 116, 122, 130, 131, 143, 165 impunity African Commission on Human and Peoples’ Rights 58–59 European Court of Human Rights 15, 151, 204, 266 Inter-American Court on Human Rights 15, 112, 115, 116, 151, 204, 266 Set of Principles on Combating Impunity 58, 106, 109–110, 273 information, victim right to 7, 143, 251 Inter-American Commission on Human Rights 51, 112, 115–117, 120, 121. See also American Convention on Human Rights; Inter-American Court on Human Rights

Inter-American Court on Human Rights 2, 3, 13, 15, 17, 19, 26, 34, 48, 49, 52, 55–59, 68, 75, 78, 87, 88, 92, 112–121, 143–145, 149, 151, 155, 159, 160, 162, 167, 190, 191, 194, 204, 205, 263, 266–268. See also American Convention on Human Rights amnesties 48, 75, 112, 117, 121, 151 effective remedy, right to an 149, 151, 206, 263, 266 fair hearing, right to a 2, 112, 113, 117, 118, 120, 121, 159, 167 impunity 15, 112, 115, 116, 151, 204, 206 investigate, obligation to 15, 48, 55–59, 68, 75, 115, 117, 149, 204, 263 prevent, obligation to 48, 49, 87 private individuals 68 procedural obligations of states 48, 49, 55–57, 59, 68, 75, 116 respect, obligation to 55, 75, 87, 117, 190 rule of law, principle of 113–114, 160 truth, right to 115, 117, 118, 143, 159, 194 victim access to criminal procedures, right of 48, 112–117 victim participation in criminal procedures, right to 117–118 International Convention for the Protection of All Persons from Enforced Disappearance 1, 37, 38, 64, 69, 70, 101, 104, 105. See also disappearance International Convention on the Elimination of Racial Discrimination 39, 105. See also racial discrimination International Court of Justice (ICJ) 11, 31, 33, 54, 74, 77, 78, 89–91, 153, 156 customary international law 77–78, 89 International Covenant of Civil and Political Rights (ICCPR) 4, 15, 20, 24, 28–33, 35, 39–42, 51, 62, 63, 75, 87, 101–103, 110, 111, 132, 143, 151–155, 158, 174, 229, 231, 264, 266 international crimes 2, 64, 72, 73, 75–80, 82–84, 86–89, 91, 92, 95, 151, 168, 170, 180, 210, 240, 243–245, 247, 257 International Criminal Court rights of the victim 4, 5, 9, 174, 180, 201, 210–212, 223–225, 230, 232, 237–239, 244, 249, 251–255, 258 rules of 25–27, 212, 233, 234, 250 statute of 210, 211, 226 victim participation 3–5, 9, 38, 174–175, 180, 201, 210–212, 223–225, 227, 230, 232–234, 237–239, 249–255, 257–258 International Criminal Tribunal for Rwanda (ICTR) 179, 180, 208–210, 217, 223, 227, 228, 231, 240–244, 247, 248 judges 210

310 prosecutor 240–244, 248 prosecutorial discretion 243 role of victims 208–210 International Criminal Tribunal for the Former Yugoslavia (ICTY) 61, 91, 92, 94, 163, 168, 169, 172, 179, 180, 190, 207–210, 218, 223, 227–229, 231, 235, 236, 241, 243, 247, 248 judges 210, 229, 247 prosecutor 210, 228, 229, 243, 248 prosecutorial discretion 243 role of victims 169, 208–210, 236 International Law Commission Draft Articles on State Responsibility of 2001 90 necessity, as a circumstance precluding wrongfulness 89, 90 obligation of means 56 obligation of results 56 international standards 5, 9, 10, 89, 100, 107, 138, 139, 142, 194, 233, 273 interpretation, treaty customary international law rules 54, 72, 78, 95, 152 systematic interpretation 15, 128, 156 teleological interpretation 15, 16, 33, 35, 39, 92, 100, 102, 118, 119, 121, 131, 152, 156, 157, 206 Vienna Convention on the Law of treaties 54, 92, 152, 153, 156 investigate, obligation to 38, 50, 55–59, 63, 68, 75, 117, 122, 126, 131. See also obligation to prosecute legal bases 38–55 nature 55–58 rationales 38–55 requirements 56, 58 scope ratione personae 38, 62–70 Islamic tradition 10, 100 judicial review, victim right to seek 192, 193, 229, 239, 241, 243, 246, 251, 260 jus cogens 51, 91, 92, 117 Kosovo 212–216 Kosovo, Hybrid Courts in establishment 213 rights of the victim 214 Latin America 9, 20, 75, 136, 140, 143, 176, 183, 274 law-making 9, 238, 261, 270 Lebanon 5, 21, 22, 208, 212, 223–225 Lebanon, Special Tribunal for establishment 5, 21, 223, 225 rights of the victim 224

index legitimacy of criminal procedures 170–171 life, right to 24, 41–48, 50–52, 63, 66, 68, 87, 92, 122–126, 130, 131, 143, 157, 192 procedural obligations of States 41– 48, 50–52, 63, 66, 68, 87, 92, 123, 125, 126, 131 means, obligations of 56 necessity, as a circumstance precluding wrongfulness 89 requirements under customary international law 89 non-binding nature 28 non-derogable clauses in human rights treaties 92 non-derogable rights 92 non-state actors. See private individuals obligations of means. See means, obligations of obligations of result. See result, obligations of obligation to ensure. See ensure, obligation to obligation to investigate. See investigate, obligation to obligation to prevent. See prevent, obligation to obligation to prosecute. See prosecute, obligation to obligation to punish. See punish, obligation to obligation to secure. See secure, obligation to opinio juris 31, 72–74, 77 Optional Protocol to the ICCPR (the [First] Optional Protocol) 28, 35 participation in criminal procedures, right of victims to. See victim participation in criminal procedures conducted in situations of mass atrocity, right to; victim participation in criminal procedures for serious human rights violations generally, right to positive obligations European Court of Human Rights 44, 45, 70 Inter-American Court on Human Rights 48–49 presumption of innocence of the defendant 4, 19, 135, 171, 174–175, 204, 264, 267. See also defendant, rights prevent, obligation to 87, 88 private individuals procedural obligations of States 38, 62–65, 67–70 prosecute, obligation to 89 procedural justice, theory of 16, 18, 161, 162, 170–171, 175, 204, 226, 259, 266, 267, 269

index311 prosecute, obligation to legal bases 38–55 objectives 60–62 rationales 38–55 scope ratione personae 62–70 prosecutorial decision-making criteria informing 247 judicial review 193, 229, 241, 246, 247 public interest criteria informing decision making in criminal procedures 19, 205, 264, 267 public officials 11, 19, 63, 64, 172, 267. See also State authorities punish, obligation to 58, 59 racial discrimination 28, 39, 63, 64, 105, 110, 227, 287 International Convention on the Elimination of Racial Discrimination 105 rape 42–46, 48, 67, 133, 180 result, obligations of 56 retribution 62, 80–82, 93–95, 138, 144, 161, 171–174, 205, 267 right to a fair hearing. See fair hearing, right to a right to an effective remedy. See effective remedy, right to an right to be heard. See heard, right to be rule of law, principle of the 3, 13, 14, 16, 22, 147, 148, 159–161, 202, 204, 206, 264, 266, 271 secure, obligation to 45–48, 68 serious human rights violations concept 23–35 UN Human Rights Committee 23–25 Set of Principles on Combating Impunity 58, 106, 109, 110, 273 Sierra Leone 212, 213, 217, 224–226–228, 279, 287 Sierra Leone, Special Court of establishment 217 rights of the victim 217 slavery 23, 24, 39, 42, 43, 46, 48, 51, 122, 126, 130, 131, 143 society in transition. See transition, society in South Africa 73, 77, 80–83, 86, 87, 93, 94, 157, 183–185–187, 190, 238 truth commission (TC) 83, 86, 93, 183, 238 States procedural obligations when faced with serious human rights violations in situations of isolated serious human rights violations African Commission on Human and Peoples Rights 49–51 European Court of Human Rights 42–48

Inter-American Court on Human Rights 48–49 legal sources 38–55 rationales 38–55 UN Human Rights Committee 40–42 in situations of mass serious human rights violations assessing States compliance 79–85 state of customary international law 72–79 supplementary measures 93–95, 190, 205, 261 theory of procedural justice. See procedural justice, theory of torture UN Committee against Torture 55, 58, 104 UN Convention against Torture 17, 28, 39, 40, 58, 64, 88, 101, 103–104, 163 transition, society in 71–72, 79–83, 85–86, 88–90, 93, 95–97, 186, 246, 271–272 treaty interpretation rules of customary international law 54, 152 Vienna Convention on the Law of Treaties of 1969 54, 152, 153 truth commission 53, 60, 71, 83, 86, 93, 94, 116, 150, 175–177, 179, 183–185, 187, 190, 237, 238 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims. See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims UN Commission on Human Rights 58, 71, 74, 76, 106, 107, 109, 154, 273, 277, 280 UN Committee against Torture 55, 58, 104 UN Convention against Torture 17, 28, 39, 40, 58, 64, 88, 101, 103–104, 163 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 25, 106–107 UN High Commissioner for Human Rights 5, 24, 28, 32, 56, 64, 108, 278, 280 UN Human Rights Committee effective remedy, right to an 4, 13, 29, 32–33, 40–42, 103, 110, 149 fair hearing, right to a 13, 20, 101, 102, 111, 149, 155, 160 investigate, obligation to 4, 20, 40–42, 58, 62–63, 75, 103, 111, 149 legal status of its decisions in individual cases 27–35 prevent, obligation to 87 private individuals 62, 63

312 procedural obligations of states 40–42, 58, 75, 87 respect, obligation to 34 victim access to criminal procedures for serious human rights violations generally, right 37, 38, 72 victim participation in criminal procedures for serious human rights violations generally, right 135, 171, 174 UN Human rights treaty monitoring bodies 27–28 legal status of their decisions in individual cases 27–37 United Kingdom 2, 7, 15–17, 44, 45, 54, 56, 57, 61, 65–67, 88, 123–125, 128, 130, 131, 137, 144, 151, 156–158, 160–162, 164, 191, 193, 240, 281 United States United States Crime Victims Rights Act of 2004 7, 138, 139, 164, 170, 194, 196 United States Supreme Court 138, 164–165, 196–197 UN Secretary-General 71, 72, 76, 80, 89, 172, 207, 209, 210, 213, 217, 220, 221, 225 UN Security Council 22, 76, 163, 172, 207–210, 212, 217, 218, 223, 225, 240, 242, 243, 247, 248, 276, 279 UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions 57, 58, 64 victim access to criminal procedures conducted in situations of mass atrocity, right of additional measures 22, 256–258 arguments against 21, 171, 229–232 implementation at the investigation phase 190–193, 238–252 legal representation 189, 233–238 in the proceedings before the ad hoc international criminal tribunals 208–210 in the proceedings before the Extraordinary Chambers in the Courts of Cambodia 220–223 in the proceedings before the Hybrid Courts in Kosovo 214 in the proceedings before the hybrid criminal tribunals 212–224 in the proceedings before the ICC 210–212 in the proceedings before the Special Chamber in the State Court of Bosnia and Herzegovina 217–220 in the proceedings before the Special Court of Sierra Leone 217 in the proceedings before the Special Panels in East Timor 216–217 in the proceedings before the Special Tribunal for Lebanon 223–224 rationales 225–229

index scope of victims legitimate interests 252–256 significance 22, 271 victim access to criminal procedures for serious human rights violations generally, right of African Commission on Human and Peoples Rights 131–133 arguments against 171–190 Basic Principles and Guidelines on the Right to a Remedy and Reparation 107–109 customary international law 142–143, 263–264 European Court of Human Rights 122–126 implementation in the investigation phase 190–193 Inter-American Court on Human Rights 112–122 International Covenant on Civil and Political Rights 101–104 legal bases 148–161 psychological effects 175–190 rationales 148–171 Set of Principles on Combating Impunity 109–110 significance 22, 270 UN Convention against Torture 103–104 UN Declaration for Victims of Crime 106–107 victim dignity 14, 17–18, 23–24, 51, 74, 139, 150, 177–178, 203–204, 206, 236, 254, 266–267, 271, 274 Victim Impact Statements (VIS) 177, 181, 182, 189, 197–200 victim legitimate interests in criminal procedures for serious human rights violations 17, 18, 162–170, 266 victim membership of and status in society 14, 17, 203, 206, 266, 267 victim participation in criminal procedures conducted in situations of mass atrocity, right to additional measures 256–259 arguments against 229–233 implementation at the investigation phase 238–252 implementation at the trial phase 249–252 legal representation, requirement 233–238 legitimate interests, scope 252–256 in the proceedings before the ad hoc international criminal tribunals 208–210 in the proceedings before the Extraordinary Chambers in the Courts of Cambodia 220–223 in the proceedings before the Hybrid Courts in Kosovo 214

index313 in the proceedings before the hybrid criminal tribunals 212–224 in the proceedings before the ICC 210–212, 223, 224, 232, 254, 255 in the proceedings before the Special Chamber in the State Court of Bosnia and Herzegovina 5, 217–220 in the proceedings before the Special Court of Sierra Leone 217, 224 in the proceedings before the Special Panels in East Timor 216, 255, 256 in the proceedings before the Special Tribunal for Lebanon 223–224 rationales 225–229 scope of victims legitimate interests 252–256 significance 22, 271–274 victim right to be heard 233–238 victim participation in criminal procedures for serious human rights violations generally, right to African Commission on Human and Peoples Rights 131–133 arguments against 171–190 Basic Principles and Guidelines on the Right to a Remedy and Reparation 107–109 customary International Law 142–143 European Court of Human Rights 122–126 implementation in the investigation phase 190–193 implementation in the trial phase 194–202 Inter-American Court on Human Rights 112–122 International Covenant on Civil and Political Rights 101–103 legal bases 148–171 psychological effects 175–190 rationales 148–171 rights to examine and challenge evidence at the trial phase 200–202 right to be heard 194–200

right to offer evidence at trial phase  201 Set of Principles on Combating Impunity 109–110 significance 22, 271 UN Convention against Torture 103–104 UN Declaration for Victims of Crime 106–107 victim rights to examine and challenge. See evidence victim rights to offer evidence. See evidence Victim right to an effective remedy. See effective remedy, right to an victim right to information. See information, victim right to victim right to seek judicial review 192, 193. See also judicial review, victim right to seek victims of serious human rights violations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims 26 concept 25 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 25 victims of serious human rights violations, rights. See victim access to criminal procedures conducted in situations of mass atrocity, right of; victim access to criminal procedures for serious human rights violations generally, right of; victim participation in criminal procedures conducted in situations of mass atrocity, right to; victim participation in criminal procedures for serious human rights violations generally, right to Vienna Convention on the Law of Treaties of 1969 (VCLT) 54, 152–153, 156 witness 7, 8, 125, 134, 135, 137, 166, 168, 169, 172, 188, 189, 198, 200, 206, 208, 215, 236, 250