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Panel: TJ through the Lens of International Criminal Justice

Catalyzing Victim-oriented Justice Nationally and in The Hague Through an Inclusive Complementarity Division: A Design Proposal

Dr. Miracle Chinwenmeri Uche, University of Westminster Law School

International criminal proceedings conducted domestically or abroad fall within transitional justice (TJ) mechanisms necessary for addressing harms of victims of core international crimes. These and other ‘less’ formal TJ mechanisms have often been the subject of debate in relation to the International Criminal Court’s (ICC) principle of complementarity. This principle is key to the ICC’s existence and sustainability due to states’ desire to protect their sovereignty, yet it impacts how justice for victims is shaped and delivered, and which victims may participate. Interpreting and applying complementarity is a multifaceted process and involves several stakeholders including, ICC organs, states, the accused, and victims. Each stakeholder has its own unique interests in the process and in complementarity decisions. For example, states, and the ICC may want to exercise their respective jurisdictions for various reasons, victims may desire to participate, the accused as well as victims and may want justice to be served in The Hague or in domestic jurisdictions. Managing these diverse and sometimes conflicting interests in complementarity can be complex. Thus, this article examines how victims’ interests can be adequately accommodated in the complementarity regime and process to aid the ICC in the fight against impunity and in achieving victim-oriented justice in The Hague and fostering the same in domestic jurisdictions. It therefore proposes a design strategy for the creation of a neutral and independent ICC complementarity division.

To what Extent Judicial Mediation Answers the Dilemmas of International Criminal Legal System

Mostafa Mohamed Helmy Ahmed Elsherif, Judge

This is an in-progress PhD research; it proposes creating mediation and negotiation room at the ICC (International Criminal Court). This proposal works to turn this idea into a feasible and applicable legal mechanism and incorporate mediation in the legal architecture of the ICC. This statement shall pose two main areas of questioning; what are the benefits of this incorporation? And how it could be feasible and practical? In the first regard, this mechanism meets a need and shortage at the international criminal system. It enables victims to get a vital role and to to be involved in designating the way of enforcing justice after huge atrocities crimes. It also paves the way for a sustainable peace process, that is not rigidly captivated by political compromises or procedural legal constrains.

How could victims participate and how they are represented? How mediation become a part of the legal process in the ICC, while the court suffers from the lack of enforcement and lack of executive power? How perpetrators at such grave crimes of Rome Statute may accept being a part of settlement in front of judicial system, and set a scheme of accountability and reconciliation with their victims? And the most critical point, what judicial mediation could fulfil the vacuums that politics can’t manage on many occasions? A focal part of this research is to draw a legislative and practical proposal that answers these questions.

Sexual and Gender-based Violence Victims and International Criminal Tribunals: A Symbiotic Relationship?

Dr. Marie Wilmet, Research Fellow at Centre Thucydide (University Paris-Panthéon-Assas)

International and hybrid criminal courts have historically experienced difficulties in the investigation, prosecution, and adjudication of sexual and gender-based violence (‘SGBV’) crimes. Moreover, studies conducted with SGBV victims who testified before the early international tribunals – in which the role of the victim was limited to that of a witness – found that they felt traumatised and silenced as a result of their trial experience. As such, one may question the adequateness of formal transitional mechanisms as sites of gender justice.

This paper proposes to investigate whether the inclusion of participatory rights within the procedural laws of international and hybrid criminal courts can alter the interaction between SGBV victims and such courts. The research draws from an empirical case study of the participation of victims of forced marriage in the Extraordinary Chambers in the Courts of Cambodia’s Case 002/02. It is based on nine months of fieldwork combining archival research, participatory observation, and 77 qualitative interviews conducted with legal professionals as well as with victims of forced marriage who participated as civil parties in Case 002/02. Analysing the civil parties’ effective exercise of procedural rights, their informal modes of engagement alongside court proceedings, and their ability to challenge the ECCC’s initially limited attention to SGBV crimes committed under the Khmer Rouge, this paper seeks to explore the nature of the relationship between the Court and SGBV victims to determine whether it can be qualified as symbiotic.

Victim Participation At A Crossroad: A Promising Avenue Forward Or Not?

Dr. Rudina Jasini, ESCR Fellow of Law and Senior Lecturer, University of Oxford, Defence Counsel in the Thaci et Al Case, Kosovo Specialist Chambers in The Hague

In a landscape of changing philosophy and practice in international criminal trials, the innovative approach endorsed by the ICC, the ECCC, and other international criminal tribunals, by including victims of alleged crimes as participants in legal proceedings, rather than as mere witnesses, have revealed potential strengths and weaknesses as well as the possibilities for future directions in international criminal justice. This paper seeks to offer a critical examination of the scope and parameters of victim participation as a legal mechanism, first whether the expansive role granted to victims of mass atrocities by having greater procedural rights and substantive remedies enhances the prospect of a more inclusive justice system, and, second, the potential shortcomings of civil party participation with regard to the functionality of court proceedings and the defendant’s right to a fair and expeditious trial. Notwithstanding victims’ grand aspiration to have their voices heard and the potential value that their participation could bring, such a development in international criminal justice demands however, as the ECCC and the ICC trials have demonstrated, careful examination of whether or not victim participation beyond that of the victim as a witness, is always in the best interests of victims or justice. It appears that the comfortable liberal discourse on the participation of victims has often obscured the need to critically interrogate how it is being practiced.