12 novembre 2014 |
The role of victims at the International Criminal Court: legal challenges from the tension between restorative and retributive justice
Per scaricare il contributo di G. Zago, di cui riportiamo l'abstract e il sommario, clicca in calce alla pagina su download documento.
Abstract. The work of the International Criminal Court is characterized by a diversity of legal goals: indeed, its purpose is not limited to the fulfillment of a classic retributive scope, by punishing the accused for the commission of crimes within the Court's jurisdiction, but it also intends to achieve a restorative aim, giving satisfactions to the victims of the perpetrated crimes by allowing their active participation in the proceedings. Such policy has been embraced as a response to the criticisms advanced at the former international tribunals for their failure in ensuring accountability for victims of international crimes.
The un-precedent role accorded to victims at the ICC raises a series of questions on different levels, as the tensions between distinct objectives shines through a sometimes un-coherent statutory framework and risks to undermine the primary scope of the ICC, i.e. the ending of impunity for the commission of serious crimes of international concern. Such disharmony among the substantive principles and norms contained in the Rome Statute may consequently affect the attribution of competence to ICC organs and culminates with the necessity of judges' intervention in order to interpret the constitutive treaty and the Rules of Procedures and Evidence to fill the statutory gaps.
This paper analyses some issues of concern in respect of the above. Initially, it examines the process to obtain the status of victims before the Court and the problems related to the application procedure. Further, it continues considering the criticalities emerged at the trial stage, especially focusing on the role of the victims' legal representative and on the extent of victims' participatory rights at trial, such as the possibility to lead evidence in respect of the guilt or innocence of the accused. These topics appear particularly sensitive in the light of the concept of "victim's case", which comes up besides the Prosecutor and Defense ones, as happened for the first time in the Katanga trial.
The paper speculates on the challenges related to the victims' participation policy and wonders whether it might endanger the retributive scope of the ICC trial, the right of due process for the accused and even the protection of victims' security. It reaffirms the importance of granting a form of moral and material redress for victims through their involvement in the criminal proceedings, although suggesting the necessity of re-defining their role in the ICC procedure; in this perspective, it contemplates the possible consequences of a different interpretation of the concept of restorative justice, which aims to give victims the chance to be heard in Court in order to provide a meaningful contribution to the proceeding, though without assuming an active "third party" position. Ultimately, it considers if in so doing, the ICC could work more efficiently, establishing a necessary hierarchy of otherwise conflicting goals, satisfying the victims' interests and at the same time taking in due consideration both the respect of the right of a fair trial for all the parties involved in the proceedings and the material limits of the Court.
SOMMARIO: 1. Introduction. - 2. The restorative justice movement and its influence on victims' status at the ICC. - 2.1. Victims' participation at the ICC: legal status of victims and application procedure. - 3. Participatory rights of victims at the trial stage. - 3.1. The appointment of one or more legal representatives for victims. - 3.1.1. Procedural issues related to the communication between the legal representative and its client. - 3.1.2. Other issues of concern regarding the appointment of a common legal representative for victims. - 3.2. Modalities of victims' participation at the trial stage. - 4. Conclusions and recommendations.