Recognition of a Survivor and a Survivor-Centred Approach at the International Criminal Court

Dr Ingrid Roestenburg-Morgan

Ingrid is a Senior Research Fellow at the Institute for Justice and Reconciliation (IJR), South Africa. She is both a legal practitioner and scholar and specialised in international human rights, international criminal law and transitional justice. She has previously held positions at the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY) and ActionAid International (AAI).

In the realm of international justice, how we define those affected by mass atrocities matters. Traditionally and more generally, the term ‘victim’ has been used to describe individuals who have suffered harm in conflict situations. However, in recent years, there has been a shift towards using the term ‘survivor’, a term that conveys resilience, agency, and empowerment. However, despite its increasing use, there is still no legal definition of ‘survivor’ under international law, including at the International Criminal Court (ICC). This lack of clarity risks diminishing the rights and dignity of those who identify as survivors and hinders the ICC’s ability to adopt a truly survivor-centred approach to justice.

This blog post forms part of a recently published edited volume entitled Survivor-Centred Justice: Global Perspectives and Issues which interrogates global perspectives and issues that constitute and characterize survivor-centred justice, exploring both the conceptual and theoretical issues surrounding the definition of a ‘survivor’, practical considerations of what constitutes a survivor-centred approach to justice and available avenues of justice for survivors of mass atrocities.

This blog post will argue that the ICC must be cognizant of the ‘narrative’ identity surrounding survivors as a category or group and aspire to address the issue of their identity in recognition of the wrongs committed against them during conflict and also as an integral and foundational aspect of the Court's support for a survivor-centred approach to justice.

Why Words Matter: Victim versus Survivor

 

The ICC plays a critical role in transitional justice, aiming to hold perpetrators accountable while providing justice for those affected by crimes. It has made strides in recognizing victims’ rights, allowing the latter formal recognition which includes the right to participate in trials and, in some cases, receive reparations. However, its current framework primarily focuses on victims, often overlooking the distinct identity of survivors who should also be afforded legal recognition. In order to understand what essentially differentiates a victim from a survivor it is important to unpack the meaning of both terms.

A more generalized understanding of the ‘victim’ often implies passivity, helplessness, or dependency, whereas ‘survivor’ acknowledges resilience and agency. The term ‘victim’ mainly refers to an individual who has suffered harm as a result of criminal conduct. Most laws, including international laws, treaties and international organizations, often employ the term ‘victim’ to denote a particular legal standing or status within the criminal justice system and also quite often within the transitional justice discourse. Furthermore, on closer consideration and scrutiny, some hold that the term ‘victim’ may carry with it the connotation of passivity and helplessness, as well as defeat or subjugation. Much of the time, the term is understood to refer to those who have been killed during mass atrocities or those who have been subjugated to the types of crimes committed against them, leaving them defenseless or helpless during and after the commission of such crimes. The term, in other words, connotes a type of “passivity that robs an individual of their agency and their ability to fight back”.

The term ‘survivor’, on the other hand, holds different connotations for those who have undergone mass atrocities and survived. From an activist and feminist position, it implies that such individuals emerge victorious and triumphant regardless of their circumstances. It demonstrates an individual’s ability to take action in the face of immense obstacles and the day-to-day work of surviving despite immense trauma, thereby suggesting tenacity and perseverance in the face of extreme and appalling circumstances. The terminology of ‘survivor’, therefore, best depicts the trajectory of recovery for individuals who consider themselves as survivors of mass violence. Feminists, for example, further argue that the term ‘survivor’ is politically loaded as it endows agency to women, which empowers them, and unlike the term ‘victim’, it is not a “strategic construct used to win over public sympathy”. In the latter instance, it was commonplace for activists to employ the term ‘victim’ in order to rally both government and public support for their causes in the past but more so to the detriment of an individual or a woman’s agency.  The transition in terminology from ‘victim’ to ‘survivor’ over time meant that those who preferred the term ‘survivor’ over the term ‘victim’ were willing to support and spearhead this transition especially because they appreciated the connotation of agency and power accorded by the term ‘survivor.’

Some proponents, however, hold that the term ‘survivor’ does not accurately sum up an individual’s experience and that it is a misleading term in that it “sugar coats” the reality of an individual’s true trauma or experiences. It, furthermore, vilifies victimhood by placing blame and shame on the individual concerned without putting focus on the perpetrator who actually should be the one in the public spotlight. This argument counters the notion that using the term ‘victim’ might not necessarily be devoid of agency if one considers mobilization and advocacy surrounding the term to the benefit of the individual and affected populations. The use of terminology is thus reflective of the way in which the individual positions themselves within their wider context. So, using the term ‘victim’ or ‘survivor’ is ultimately a personal choice for a protagonist because it reflects the personal circumstances and ideologies of the person involved. The consequence of conflating the terms and using them interchangeably diminishes and ignores the multi-layered and faceted meaning that both terms connote, represent and convey.

Arguments favouring the term ‘survivor’ are often based on the goal of empowering individuals and communities through the creation of agency. ' Survivors must seek redress for past injustices by developing their capacity to pursue their own human dignity and positive peace. Arguably, therefore, the term ‘survivor’ may be a preferred choice by some because it falls in line with two basic human rights, namely restoring human dignity and ensuring justice to both individuals and communities on the whole.

Those who support a survivor-centred approach to justice rely heavily on a number of human rights that should rightfully accrue to survivors of mass atrocity. For example, according to the United Nations Basic Guidelines on the Right to Remedy and Reparations for Victims of Gross Violations of International Humanitarian Law, victims and survivors have the right to justice, truth and reparations. Therefore, the aforementioned rights are undoubtedly pivotal and form part of a larger network of rights that ought to accrue to survivors of mass atrocities.

The shift from victimhood to survivorship is significant, particularly for individuals who have endured trauma and want to reclaim their identities. This is particularly relevant in cases of sexual and gender-based violence, where survivors often resist being defined solely by their suffering. However, without any formal legal definition of the term ‘survivor’, the ICC risks undermining these individuals’ agency and could limit their access to justice.

The Case for Defining ‘Survivor’ and Using a Survivor-Centred Approach in International Law

 

While the ICC’s Rules of Procedure and Evidence define who qualifies as a ‘victim’, they do not account for individuals who prefer to identify as a ‘survivor’ instead of a ‘victim’. A legal definition of ‘survivor’ could ensure the proper recognition of survivors’ rights and dignity, greater inclusion in justice processes at the ICC and stronger adherence by the ICC to a survivor-centred approach, ensuring that survivors’ needs and perspectives can be integrated into legal proceedings.

Furthermore, based on the mandate that the ICC owes to victims and survivors of mass atrocities and its role as a leading judicial transitional justice actor, the ICC should consider developing a legal definition of the term ‘survivor’ to uphold the dignity and rights of a category of persons who currently lack a legal identity. A proposed legal definition could be:

A survivor means any person who individually and collectively suffered from harm, mainly of a sexual nature which results in 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 domestic jurisdictions and within the jurisdiction of the International Criminal Court. Survivors during their process of recovery are fragile and may be re-traumatized or reinjured emotionally. They may shift in and out of victimization and victim-survivor status. Survivors may also further identify as both victim and perpetrator in ambiguous contexts of mass conflict if there is a blurring or duality in their status. They may periodically return to their mental and emotional suffering, or they may continue to strive to maintain emotional, mental, spiritual, and physical health. Survivors feel empowered to make healthy decisions about their lives and they actively pursue informal and formal support systems geared towards their full recovery.

This definition covers the legal gap between those who identify as survivors including those who have a dual or tripartite identity or status, such as perpetrators who identify as both victims and/or survivors. Furthermore, it brings more clarity and consistency to the term ‘survivor’, which forms the foundational underpinnings of a survivor-centred approach, also recently supported by the ICC’s Office of the Prosecutor (OTP).

A survivor-centred approach prioritizes survivors’ well-being, agency, and dignity. It ensures that survivors’ voices are central in justice processes and that they receive protection from re-traumatization. The key principles of this approach include:

• Confidentiality: Respecting survivors’ privacy and control over their narratives.

• Safety: Ensuring legal processes do not expose survivors to further harm.

• Empowerment: Enabling survivors to participate actively in justice proceedings.

• Non-discrimination: Guaranteeing equal treatment regardless of gender, background, or identity.

In December 2023, the ICC’s Office of the Prosecutor took a significant step by releasing an updated Policy on Gender-Based Crimes. This policy explicitly adopts a survivor-centred approach and recognizes the agency of individuals affected by mass atrocities. It allows individuals to choose how they identify as victims, survivors, or both. This marks an important shift, aligning with international best practices such as the Murad Code, which provides ethical guidelines for engaging with survivors of conflict-related sexual violence.

Despite progress, challenges remain. The ICC’s legal framework still relies on a rigid definition of ‘victim’, which may exclude those who do not meet its criteria but identify as survivors instead. Additionally, individuals with complex identities, such as former child soldiers, may struggle to access justice due to the binary classification of victims and perpetrators. To fully embrace a survivor-centred approach, the ICC must consider developing a formal legal definition of ‘survivor’. The Court should also ensure that survivors have formal access to legal representation and reparations and expand survivor-centred training for ICC staff and legal practitioners.

Conclusion

Recognizing survivors as a distinct legal category is more than just a semantic shift; it is a necessary step towards ensuring that justice systems respect their dignity and rights. The voices of survivors must not only be heard but they must be recognized, respected, and be central to international justice efforts.  A person’s identity is a crucial aspect of one’s dignity, agency and development and the lack of recognition is rooted in inequality and discrimination. A denial of one’s identity can lead to feelings of injustice, lack of respect, lack of self-esteem and humiliation amongst other feelings. The legal and political recognition of one’s identity can, therefore, change the way in which individuals perceive and esteem themselves. In a similar way, individuals who identify as survivors require specific recognition of their survivor identity and should not resort to falling under the umbrella of the victim identity when accessing their rights and benefits unless they identify as a victim as well. Survivors should, therefore, be in a position to share an equal identity with other legally recognized groups under transitional justice and international law. The ICC has a responsibility to pave the way for more inclusive and empowering international and domestic legal frameworks by developing and working more robustly on its own legal framework. By defining ‘survivor’ and institutionalizing a survivor-centred approach, the ICC can reinforce its role as a true champion of justice. Survivor-centred justice must, therefore, be viewed as a critical element of transitional and international justice and must not be ignored or trivialized if progress is to be made in transforming situations of impunity and contributing to the empowerment and dignity of victims and survivors.

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