In research for my new book, Commentary on the Rome Statute, which should be completed later this year and available early next year, I have been reviewing the various documents of the International Criminal Court concerning the participation of victims in the proceedings. A glance at the website, especially the various proceedings of the Court, will give some idea of the large scale of victim participation. This is only a guess, but I suspect that there are more lawyers acting on behalf of the victims in the ongoing proceedings than there are lawyers acting on behalf of both the Prosecutor and the defence combined.
How much does this all cost? I came across a document issued by the Committee on Budget and Finance of the Assembly of States Parties, which provides the main oversight of how money is spent at the Court. The Proposed Programme Budget for 2008, issued in July 2007 (ICC-ASP/6/8), estimated that out of approximately EUR 100 million, some EUR 14 million was required for ‘victims and witnesses’ (see p. 6). It is not clear how the figure was arrived at. There may be other more hidden costs involved in witness participation that are reflected in the length and complexity of the proceedings occasioned by victim participation. I suspect that the relative importance of victim-related costs continues to increase as well.
Of course, the main financial centre for victims is supposed to be the Trust Fund for Victims, established in accordance with article 79 of the Rome Statute. According to its last report, the Trust Fund totals about EUR 3 million, composed essentially of contributions from several wealthy States. For a couple of years, these amounted to about EUR 1 million a year, but the amount has now declined to EUR 500,000 for the most recent fiscal year. Here’s the problem: the administration costs of this fund amount to about EUR 700,000 per year!
Does any of this make sense? We have an enormous apparatus engaged in supporting ‘victims’, but maybe the ‘victims’ would prefer to see the money themselves. If the international community has EUR 15 million per annum to devote to ‘victims’ in the Congo and Uganda, the money might be better spent on a new hospital or a school. Right now, the main beneficiaries of our efforts to help the ‘victims’ would appear to be international civil servants, lawyers and airline companies.
I really doubt that when the Rome Statute was adopted in 1998, those who participated in the negotiations ever imagined that victim participation would involve so much in terms of resources and would deliver so little in concrete terms to the victims themselves.
What is the value-added of victim participation in terms of the court proceedings themselves? If, for instance, victim testimony is critical to a successful prosecution of a war criminal, does the high cost become more justifiable?
I also wonder if the high level of victim participation is a sort of damage control, or compromise, given the oft-expressed victim frustration over the loss of a sense of ownership or involvement in justice processes that, with the ICC, take place far away, rather than in the national context.
This brings to mind a related issue that the Tribunals struggle with: the competing interests of restorative and retributive justice. Restorative justice would argue in favor of more comprehensive proceedings that establish a comprehensive and accurate historical record of the crime. Retributive justice argues in favor of swift justice narrowly tailored to deliver maximum verdicts. The two issues are not unrelated of course, but on occasion tribunals have yielded to public pressure (Milosevic comes to mind) in regards to a historical record at the expense of efficient justice.
The ICTY mandate to "contribute to the restoration of peace by holding accountable persons responsible for serious violations of international humanitarian law" has been interpreted by some to a broader definition to "contribute to the restoration of peace" by establishing an accurate history of the events as well as a forum for victims to tell their stories.
Hence one of the policy debates at the ICTY from its inception was always what is the obligation of the Prosecution with its indictments to the bigger picture of criminal activity, versus its obligation to be efficient.
The Prosecution was left to draft indictments without any guidance or precedence on what is the proper balance between these two principles.
I'd note that the ECCC is embarking on a model that greatly favors victim participation based on French domestic model. Many Cambodian victims groups are represented by counsel and have an expectation of full participation as parties to the proceedings. It will interesting to see what effect this will have on the efficiency of the proceedings and their perceived legitimacy conpared to the Ad Hocs.
The international community needs to produce less overpaid civil servants and more genuine results.
The desperate calls for funds of UNRWA to address Gazas' population needs is an example of how bad resources are distributed within the UN.
Michelle, I don't think those who drafted the Rome Statute and included victim's participation were concerned about the "value-added" in court proceedings - I think they were rather concerned about the way victims have been treated in international criminal process (ICTY, ICTR) where victim witnesses have been treated like means to an end without taking into account the impact. These institutions eventually developed victim support sections in order to support victim witnesses who participated in proceedings as this can often be a rather traumatic process (especially when a judge falls asleep as the person details how they were raped).
However ensuring victim's representation actually goes beyond providing psychological support and for i.e. helps explain the process to victim witnesses. Such support exists in many countries (ie Sweden) and was also established in the form of Victims' Assistants in Kosovo. I believe those who drafted the Rome Statute considered past events and tried to institutionalize this important support.
I recommend Eric Stover's excellent book "The Witnesses" or my report "Voices from the Field: Prosecuting Sexualised Violence in an International Setting" http://www.kvinnatillkvinna.se/files/File/Rapporter/voices_from_the_field.pdf
This is a very interesting topic -I look forward to reading more opinions on the matter.
Here are two articles on the Trust Fund that might be of interest:
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