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Fairness to Victims in Proceedings Before The ICC: Lessons from the Inter-American Court of HR




by Dr. Alessandra Cuppini*


It was only with the establishment of the International Criminal Court (ICC) in 1998 that victims of gross violations of human rights have been entitled to participate in proceedings with an autonomous standing. This is an absolute novelty, because, for the first time in international criminal proceedings, Article 68(3) of the Rome Statute enables victims to present their views and concerns at the stages of the proceedings determined to be appropriate by the ICC, in a manner not prejudicial to the rights of the accused and fair trial. However, the implementation of Article 68(3), conferring to victims the status of participants in their own rights, prompted a significant amount of dissent among academics and professionals. The debate has focused on highlighting the number of potential harms that victims’ participation may bring to the proceedings before ICC. One of the key shortcomings affects the fair trial principle, underling a basic tension between victims’ procedural rights and the rights of the defendants to an expeditious and fair trial and the principle of equality, which are considered ‘principles of an imperative nature’ (Zappalà, 2010, p. 140).


The search for equilibrium between the rights of victims and the accused’s right urges first to clarify that, despite victims are not granted the right to a fair trial, victims’ right to and need for justice have become an important consideration in international criminal justice. In essence, justice needs to be fair not only for the accused but should entail a component of fairness for victims as well. Given that the Article 68(3) only refers to the presentation of views and concerns limited by the rights of the accused to a fair trial, the scope of the fairness to victims and its legal nature are yet to be determined. In this regard, Article 21 of the Rome Statute, requiring an interpretation of the Statute consistent with internationally recognized human rights, opens to the jurisprudence of the Inter-American Court of Human Rights (IACtHR) as the framework of principles within which the interpretation of the ICC provisions should take place. The IACtHR’s case law proved to be relevant to the elaboration of the concept of fairness to victims, which has been articulated around two basic issues: vitims’ right to access to justice to obtain an investigation, prosecuton and punishemt; and victims’ right to participate in criminal proceedings.


Victims’ participation in the Rome Statute


It has been often claimed that victims’ participation in proceedings conducted in regard to situations of mass atrocities would significantly jeopardize the effectiveness and expeditiousness of the proceeding, as well as the accused’s right to a fair trial and the principle of equality of arms since the defendant would be forced to confront more than one party. As a matter of fact, the debate on victims’ participation has often been reduced to a matter of the rights of victims against the rights of the accused that ends in ‘zero-sum games, in which you are either for or against victims’ (Edwards, 2004, p. 971).


Indeed, Article 68(3), by allowing victims to present their views and concerns, does not confer any right to a fair trial onto victims. It would be paradoxical to hold that victims’ participation is guaranteed by the fair trial right and simultaneously such participation can also jeopardise it. Nonetheless, victims are entitled to a general component of fairness within the criminal proceeding.

The active role played by victims in proceedings at the ICC sends a message about the standards of fairness, which to be assessed, requires a balancing of interests, including not only the rights of the accused to a fair and expeditious process but also the rights of victims.

There is an inherent connection between fairness to victims and procedural justice, since without victims ‘views and concerns being effectively heard, then any talk of a fair trial will be no more than talk in the abstract, for there cannot be any concept of fairness without the concept of justice and there can be no criminal trial without victims of the crimes charged’ (ICC, Prosecutor v. William Samoei Ruto and Joshua Arap Sang, pp. 42-43). Together with the accused’s right to a fair trial, the principle of fairness to victims represents the bedrock of the international criminal procedure, as it is a genuine standard to assess the quality of the criminal justice system.


In the silence of the Rome Statute, which in Article 68(3) focuses on due process for the defendant to the detriment of fairness for victims, the scope and content of fairness can be understood in light of the case law of the IACtHR, whose standards bind the operation of the ICC, pursuant to Article 21(3) of the Rome Statute. The ACtHR does not explicitly refer to fairness to victims but to the victims’ right to obtain a remedy, which, entailing the right to justice and access to it, the right to the truth, the right to be heard, shares with the right to fairness the same goal, that is to advance the rights of all victims participating in criminal proceedings.


The case law of the IACtHR supports two propositions: the State’s duty to prosecute serious crimes is also a right that is owed to victims; and victims’ access to justice and participation in criminal proceedings is necessary to enforce such right. The emerging principle that victims should have greater access to the criminal process to ensure that criminal prosecutions are effective and that States are accountable to victims is particularly relevant, because it can orientate how the international criminal justice can enhance the principle of fairness to victims, by articulating certain participatory rights of victims and clarifying why they should participate to proceedings. In its jurisprudence establishing the right of victims to access to justice and to participate in the criminal proceedings, the IACtHR interpreted Article 1(1) of the American Convention on Human Rights (ACHR), which impose a general obligation on States to respect and ensure the full exercise of the rights and freedoms recognized herein, as entailing States’ legal duty to carry out a serious investigation of the violations committed within its jurisdiction, to identify those responsible and to impose the appropriate punishment (Velásquez-Rodríguez v. Honduras, para 174). The IACtHR has found that State’s failure to carry out a prompt, thorough, effective, impartial and independent investigation into allegations of serious violation of human rights violates: victims’ right to an effective remedy (Article 25 ACHR) and to a fair hearing (Article 8(1) ACHR).


Victims’ right to access to justice to obtain an investigation, prosecution and punishment


The IACtHR rooted victims’ right to access to justice on the combined reading of the general State’s duty under Art 1(1), together with Article 25 and Article 8(1). In Loayza Tamayo v. Peru, the IACtHR’s interpretation of the right to judicial protection along with Article 1(1) obliged the State to guarantee to every individual access to the administration of justice and, in particular, to simple and prompt recourse, so that those responsible for human rights violations may be prosecuted (Loayza Tamayo v Peru, para 169). In Castillo Páez v Peru (para 106), the IACtHR read Article 25 as upholding the right of every person to a hearing within a reasonable time and with the due guarantees before a competent, independent and impartial tribunal for the determination of his rights of any nature. This interpretation of Article 25 charged States with the obligation to guarantee the right of all persons under their jurisdiction to an effective judicial remedy against violations of their fundamental rights.


In several decisions, the IACtHR insistingly stated that the mere availability of judicial remedies is not enough (Baldeón García v. Peru, para 144) and took a deeper look into the concept of effectiveness of a judicial remedy. To be effective a judicial remedy ought to be ‘suitable to fight the violation, its application by the competent authority must be effective’ (López Álvarez v. Honduras, para 139) and it should give ‘a person a real opportunity to pursue a simple and prompt recourse which, if applicable, will secure the judicial protection sought from the competent authority’ (Palamara Iribarne v. Chile, para 184). To guarantee victims’ right to access to justice in accordance with Article 25, the judicial mechanism has to take every necessary step to ensure, within a reasonable time, the right of the alleged victims or their next of kin to learn the truth about what happened and to punish those who may be responsible (The “Mapiripán Massacre” v Colombia, para 216). The IACtHR affirmed that ‘only a criminal trial could guarantee [the victims] the appropriate remedy; namely, the punishment of the perpetrators’ (Castillo Páez v Peru, paras 105-107). However, the victims’ right to access to justice does not imply that the prosecution turned into a pure private victim’s right. The duty of States to investigate, prosecute and punish is independent from the right of the victim to access to justice (Trujillo Oroza v. Bolivia, para 99).


In addition to the victims’ right to State’s investigation, prosecution and punishment of those responsible for gross violation of human rights, as a way to resort to an effective remedy, the IACtHR recognised that victims’ accesso to justice should be conducted with due process guarantees (Bámaca-Velásquez v. Guatemala, paras 182-196). In particular, in Genie-Lacayo v. Nicaragua (paras 74-75), the IACtHR developed the principle of a fair hearing, contained in Article 8(1), to include the victims and their relatives right to a fair hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal. The IACtHR argued that the victims and their next to kin enjoy the right to a fair hearing as well as the defendant, since a violation of their procedural rights in the trial to identify those responsible for the death of Genie-Lacayo amounts to a breach of Article 8(1). In Blake v. Guatemala (paras 96-97), the IACtHR maintained this broad interpretation of Article 8(1), acknowledging that the right to a fair trial includes the right to access to justice and judicial guarantees for victims and their relatives because any act of forced disappearance places the victim outside the protection of the law and causes grave suffering to her/him and to her/his family. The IACtHR found that Article 8(1) recognized the rights of Blake’s relative to have his disappearance and death effectively investigated by the Guatemalan authorities, to have those responsible prosecuted and, where appropriate, punished.

The right of victims to participate in criminal proceedings


The IACtHR’s case law has systematically upheld that Articles 8(1) and 25, which determined victims’ right of access to justice, entail their right to participation in criminal proceedings as well. In the case Villagrán-Morales et al. v. Guatemala (para 227), the IACtHR confirmed the extensive interpretation of Article 8(1), according to which the right to a hearing should provide victims of human rights violations or their next of kin with substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible. This orientation is based on the interpretation of the wording and spirit of Article 8(1), which requires the observation of the right to a fair hearing for the determination of everyone’s ‘rights and obligations of a civil, labour, fiscal, or any other nature’. Specifically, the caveat ‘or any other nature’ leaves room to include into the scope of the right to a fair hearing the victims’ right to participate in the criminal proceedings.


Interrelated with Article 8(1), the IACtHR’s case law on Article 25 broadened the notion of judicial remedy for victims to provide a rather comprehensive array of victims’ rights in criminal proceedings. The IACtHR relied on the wording of Article 25, which not only covers those remedies that are simple, prompt and effective, but it also set forth ‘any other effective recourse’ in order to protect the fundamental rights recognized by the State concerned or by the ACHR. The IACtHR recognised that Article 25 established the recourse of a writ (simple and prompt), as well as a second type of recourse that, though not simple or prompt, iseffective (Salvador Chiriboga v Ecuador, Partially Dissenting Opinion of Judge Medina Quiroga, para 3).


This interpretation of Article 25 finds support in the travaux préparatoires of the ACHR, which showed that the expression ‘any other effective recourse’ is very far from being meaningless and accidental. In the original version of Article 25 the part ‘any other effective recourse’ was not intended. After the representatives from the Dominican Republic observed that in some cases the judicial protection could be effective, without being simple and prompt, the effectiveness became the only mandatory requirement of a legitimate recourse (Conferencia Especializada Interamericana Sobre Derechos Humanos, p. 66). In light of this broad notion of judicial remedy for victims, in Caracazo v. Venezuela (para 118), the IACtHR affirmed that


[t]he next of kin of the victims and the surviving victims must have full access and the capacity to act during all stages and levels of said investigations.


It is significant that the IACtHR through the expression ‘must have full access and the capacity to act’ explicitly acknowledged that the right to judicial protection incorporates victims’ entitlement to take part in all stages and levels of the investigations on infringements of the rights protected by the ACHR. While the Caracazo case refers to all stages and levels of investigations, in Baldeón García v. Peru (para 199), the IACtHR further expanded the degree of participation for victims, affirming that:


[t]he next of kin of the victim or his representatives shall have full access to and participate in all stages and instances of the domestic criminal proceedings initiated in relation to the instant case.


The IACtHR fully recognised victims’ right to actively participate in the criminal proceedings, requiring States to grant them ‘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’ (Villagrán-Morales et al. v. Guatemala, para 227).


A lesson for the ICC


The achievement of fair access to justice to who is being affected by the crime and should be given a voice in the criminal process at the ICC needs to embrace a model of international criminal justice grounded in principles underlying the framework of the human right regime, and the adherence of rules of international criminal procedure to that regime. The emphasis on victims’ participation in the investigation stage of the preceding not only reinforces the stand represented by the ICC that certain serious human rights violations – those that amount to international crimes – must attract criminal sanction, but also holds that victims’ participation would serve an accountability function. Equally, the participation of victims at the trial stage seen as an opportunity to have their interests considered, to be heard, to clarify the facts and determine the responsibility of the accused, is an international law hallmark for enhancing fairness to victims in international criminal proceedings.



*Dr. Alessandra Cuppini, Associate lecturer, Faculty of Business and Law, The Open University.


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