Dr Alessandra Cuppini
Alessandra Cuppini is a Senior Postdoctoral Fellow (FWO) at the Programme for Studies on Human Rights in Context (Ghent University, Belgium) conducting research on narrative victimology as a framework to analyse victims’ narratives in proceedings before the International Criminal Court. Funded by the Campbell Burns scholarship, she completed her PhD in Law at the University of Strathclyde (UK). Before joining Ghent University, Alessandra worked as an Associate Lecturer at the Faculty of Business and Law of The Open University (UK). She also was a Teaching Assistant and a Lecturer at the University of Strathclyde. Alessandra holds an LLB in Law and LLM in International Law from the University of Bologna (Italy).
Gross human rights violations have been, and continue to be, perpetrated in armed conflicts and during tyrannical regimes. The Preamble to the Rome Statute of the International Criminal Court (ICC) is an important reminder of the significance of the plight of victims: ‘during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’. While it might have been expected that the extensive nature, seriousness, and recurrence of the atrocities committed would have triggered the operation of an effective scheme of victims’ participatory rights as a response to those violations, the reality seems to have been the reverse. Early international criminal tribunals, such as the International Military Tribunal (IMT) at Nuremberg and the more recent International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) did not grant victims any autonomous legal standing in the proceedings apart from the status of witnesses.
Only in recent years, due to the growing recognition of the impact of mass crimes on victims and communities, have victims’ right to and need for justice become important considerations in international criminal justice. The limited representation of victims of mass violence, whose perceptions and needs were frequently ignored, presumed, or misunderstood, has urged for positioning victims’ participation in international criminal proceedings, wherein they bring a unique perspective on the factual and cultural elements vital to assist in the comprehension of the context of violence. As such, the challenge of addressing the needs for justice of victims of international crimes has been subject to increasing normative development, evidenced by the incorporation of a regime of victims’ participation as participants (the ICC, the Special Tribunal for Lebanon) and as civil parties (the Extraordinary Chambers in the Courts of Cambodia) in the statutes and rules of international and hybrid criminal courts. Nevertheless, giving content to, shaping, and enhancing victims’ participatory rights have been among the most debated issues in international criminal justice: who, when, and how victims can participate are all crucial questions that are undefined, as are questions about the appropriate stage of participation.
The book ‘The Participation of Victims in International Criminal Proceedings: An Expressivist Justice Model’ is grounded in the conviction that the rationale for victims’ participation is linked to the nature of the judicial mandate of international criminal justice, and, thus, the contradictions and anomalies concerning the role of victims unveil essential questions about the goals and functions of international criminal proceedings. The overall goal is to provide critical insight into which criminal justice model can provide a meaningful foundation for the participation of victims in international criminal proceedings and best clarifies the scope and content of their participatory rights. As such, a great deal of rethinking is needed on the understanding of the main purpose behind the entire enterprise of international criminal justice.
What is the appropriate avenue for justice for victims?
International criminal tribunals, tasked with defining the scope of victims’ participatory rights, faced – and still face – the above-described fundamental tensions, as Judges wrestle with providing a coherent approach to victims’ participation. In fact, while one would have expected decisions by international criminal courts to be fundamental to giving meaning to victims’ participation, in reality, the Judges advanced solutions to the issues concerning the scope of victims’ procedural rights, which resulted in experimentalism and inconsistencies across different Chambers. As a result, the lack of uniformity has meant that decisions on victims’ participation in international criminal proceedings have often created as much confusion as they have clarity. Wemmers found that key figures within the ICC had different views, perspectives, and attitudes towards victims’ participation, due to the legal traditions they belong to, namely the common law and civil law traditions and their respective adversarial and inquisitorial procedural approaches, which almost exclusively informed international criminal law and procedure. One of the fundamental differences concerns the roles and rights of parties and participants in the criminal process. The divide between these two legal traditions is due, in part, to the differences in the perception of the trial process and the methods adopted in reaching their primary and ancillary goals. An example of a primary goal would include the search for truth or holding an individual accountable for committing a crime. An example of an important ancillary goal includes greater participation of victims in proceedings.
This work argues that contradictions and anomalies of the framework of victims’ participation are such that framing a model of participation for victims in international criminal proceedings without a broader reconsideration of the eligible justifications for justice within the international justice would fall short of providing an effective response to victims’ need for justice. To understand what model of international criminal justice best clarifies the scope and content of victims’ participatory rights in international criminal proceedings, the analysis framework explores classical criminal justice models and victimological developments, which have mostly informed victims’ position in international criminal proceedings. It is argued that victimological studies did not produce a radical reform of the existing retributivist and deterrent paradigms, which relegated victims to a marginal role. The development of restorative practices has the merit of having placed new obligations on criminal justice agencies to make their practice more inclusive of victims’ concerns, but they do not grant substantial participatory rights to victims within the framework of the criminal trial. Such analysis is instrumental to highlight that the application of the retributivist, deterrent and restorative justice theories to the international criminal justice system is problematic, not only because these justice models do not effectively accommodate victims’ participatory rights, but also because they do not fully meet the purpose of delivery international justice. The ICTY, the ICTR and the ICC, in putting forward as theoretical justification to the international criminal justice system these frameworks, downplayed the suitability of such transplant in the context of mass atrocities. The critique of these criminal justice models is based on the distinct character of international crimes that are generally committed at times when law and order largely break down, during which times grave crimes are committed against a large segment of the population by organised groups. The selectivity of prosecutions, a general dearth of proportionate punishments (relative to the crimes committed), as well as the overall lack of willingness of offenders to amend for their wrongdoings, are shown to weaken such classical justice models.
Towards an expressivist justice model
A well-grounded foundation for victims’ participation in international criminal proceedings needs to depart from the above-mentioned criminal justice frameworks, which still relegate victims to the periphery of the criminal process. A unifying thread throughout this book’s analysis is the idea that victims’ participation must be implemented through the lens of the expressivist model of justice, which best clarifies the scope and content of their rights in international criminal proceedings and harmonises the diverging understandings of victims’ procedural role.
The normative claim underlying expressivism, according to which, by expressing valuable social messages, criminal law operates as a mechanism for altering social norms, holds greater importance in international criminal justice than in other models. Expressivism imposes a change in perspective: it advances a distinctive role for international criminal justice, continuous with, but not reducible to, the purposes of punishment. As opposed to punishing simply because the perpetrators deserve it or because potential perpetrators will be deterred, expressivism emphasises the symbolic meanings generated by the practices of the international criminal process as a whole, where the acts and perspectives of the different actors get voiced. In particular, the expressivist potential lies in the didactic function of the trial and its capacity to create historical narratives as representations of truth and their pedagogical dissemination. The communicative and performative features of the trial are as important as its outcomes or substantive findings, as they advance the idea of the proceedings being an attempt to craft historical records and create communal meaning. The trial is conceived as a communicative institution in post-conflict societies that can have an impact on present and future societal understandings of mass violence, peremptorily repudiating conducts amounting to international crimes, symbolically rejecting the acquiescence of the international community to those crimes and promoting human rights. The trial, thus, becomes a forum for dialogue and open possibilities, rather than a forum for the provision of closure, providing a new way of thinking about atrocities amounting to international crimes and stimulating processes of historical memory building, persuasion, and internalisation of values.
The expressivist model of international criminal justice puts forward a cutting-edge understanding of what structure the criminal process should have and what type of performance and functions the individuals involved in the criminal process carry out. Through the adoption of the expressivist framework, it is possible to establish a common grammar that bridges the gap between the different concepts of the criminal process in the civil law and common law systems, contributing to harmonising the procedural understanding of the rights and role not only of the victims, but also of the other actors, such as Judges, Prosecutor, and Defence. Structuring the international criminal proceedings around key elements of expressivism, namely the performative and communicative features of the trial, through which the truth-telling and educative functions unfold, smooths the rough edges off the adversarial nature of the criminal process.
The expressivist dimension of victims’ participation in international criminal proceedings
While literature exists in the field of international criminal law regarding the ability of international criminal justice to exhibit an expressivist value, the expressivist potential for victims’ participation to construct messages and narratives within the courtroom in the context of mass atrocities is underappreciated in international criminal justice scholarship. Academic debate has been quite attentive to the diversity of messages constructed by competing actors, mainly prosecutors and Defence, as part of the struggles within international criminal courtrooms. McCarthy engages with the implications of expressivism for victims of gross violations of human rights, but his analysis focuses on the expressivist approach as a basis exclusively for the system of reparations for victims at the ICC.
This book, therefore, makes a contribution to the literature on victims’ participation in international criminal justice, by advancing the idea that the victim’s role is fundamental for expressivist purposes. The expressivist understanding of the criminal proceedings as a forum for providing a narrative of the events and enunciating condemnation of the atrocities committed provides an important conceptual justification for victims’ participation in international criminal proceedings. Victims become critical actors in international criminal proceedings, as their participation can potentially contribute to re-enacting the crime, constructing an authoritative acknowledgement of the events, and communicating the denunciation of those heinous conducts. The message to those who think they can engage with these criminal conducts that impunity will not be tolerated can be expressed not only through punishment, but also through the mechanism of victims’ participation, which makes it possible to convey the repudiation of such crimes. In fact, within the expressivist paradigm, the victim’s voice contributes to the enhancement of the quality of the narrative shaped during the proceedings and, ultimately, to the establishment of the truth, resulting in an effective prosecution of perpetrators and putting an end to impunity. Tailoring the structure of the proceedings in a way that reflects the norm-expression function of the trial has required a loosening of the adversarial model and its characteristic of a contest between parties.
The expressivist capacity of international criminal tribunals
The book’s analysis focuses, first, on the evaluation of the trials of the IMT, the ICTY, and the ICTR from an expressivist perspective, and considers the expressivist value of the limited instances of participation of victims before these tribunals in light of the predominance of the common law adversarial model in their practices. This work aims to demonstrate that, while the Nuremberg IMT, the ICTY, and the ICTR were vested with an expressivist value, there was a corresponding expressivist ‘deficit’ with regard to the way the procedural role of victims is framed in their founding legal instruments and implemented in their practices. This will provide a background for the analysis of the development of the victims’ participation scheme set in Article 68(3) of the ICC’s Statute. According to the said article, victims can apply to become participants, a status that grants them a range of participatory rights, such as presenting ‘their views and concerns’ at ‘appropriate’ ‘stages of the proceedings’. This status is more extensive than that of the early Nuremberg IMT and ad hoc tribunals for the former Yugoslavia and Rwanda, where victims could only appear if called as witnesses. Thus, whereas the discussion contends that the practices of the Nuremberg IMT, the ICTY, and ICTR undermined the capacity of victims’ narratives expressed during the trials to present their perspective on the events and to bring about a potential qualitative change in the message the trial conveys, the analysis of the case law of the ICC reveals how victims appear as participants when they are authorised to do so, and what the effects of these appearances are.
On reviewing the existing case law of the ICC concerning victims’ participatory rights at the investigation, pre-trial, and trial stages, this study illustrates that the arguments of the Chambers can be interpreted as advancing the expressive aims of the international criminal trial, shedding new light on the understanding of the possibilities for victims’ involvement at the ICC. However, the analysis of the ICC’s case law uncovered some limitations of a specific modality of victims’ participation, namely the common legal representation. By pooling victims together for purposes of participation, the common legal representation to a certain extent negates the essence of the victim’s right to participate in the proceedings. It overlooks the role of victims as a fundamental constituency of the criminal proceedings, in favour of a collective and rather abstract concept of victimhood.
The book underlines the critical need to reformulate the criminal justice paradigm that underpins the international criminal justice system in order to implement an effective framework for victims’ participation, which can successfully give a voice to victims in the proceedings. The objective is to create a fertile ground to put forward a core set of participatory rights for victims, which should be granted to victims systematically, rather than based on a casuistic approach. As the ICC’s legal framework does not envisage a protected core of participatory rights, the analysis expounded throughout this book can provide some insight into a potential set of victims’ rights and, thus, enhance overall predictability for victims’ participation.
Indeed, victims’ participation in international criminal proceedings will continue to be a vexed question, as there is no one best way to incorporate victims’ participatory rights. Nevertheless, the expressivist justice model is a better response to the challenge of determining a proper role for victims in international criminal proceedings, since the assumption of the trial as a platform for framing the narratives of gross human rights violations urges victims to express their independent voice and bring their story-telling about the complex and serious dimension of the atrocities suffered to the proceedings.
* This piece is based on Alessandra's monograph ‘The Participation of Victims in International Criminal Proceedings: An Expressivist Justice Model’ (2022), Routledge.
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