ABSTRACT

The deplorable condition in which Victims of International Crimes are faced with has been a major concern to the ICC. Hence, in its preamble the Rome Statute of the ICC provides these, “Mindful that during  this century millions of children, Women  and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity”. The ICC in its determined effort to put an end to the impurity committed by the perpetrators of these crimes has made available in its statute provisions for the crimes within its jurisdiction. Thus, the ICC shall have the power to exercise its jurisdiction. over persons for the most serious crimes of International concern as provided in the Statute. The meting out of punishment to perpetrators of international crimes is one of the distinct measures adopted by the International Criminal Court (ICC) in ensuring that victims of international crimes are adequately compensated for the wrong or harm which they have suffered. Another distinct measure adopted is the inclusion of victims’ right in its Statute. These rights are; right to protection, participation and reparation. Also, the ICC has equally established legal frameworks by which victims can have access to these rights, such as the Trust Fund for Victims, Victims and Witnesses Unit, Victims Participation and Reparation Section. In the same vein, the mechanisms by which the ICC exercises its jurisdictional powers are, State Referrals, Security Council referrals and the prosecutors’ initiatives. Notwithstanding, the above mentioned measures provided by the ICC, the problem of protection and redress for the violation of victims rights still remains a hard nut to crack. Hence, this research project sets out to discuss the rights of victims, possible means for seeking redress, limitations faced by ICC in the enforcement of these rights and finally recommendations made to ensure that these rights are adequately protected.

CHAPTER ONE

GENERAL INTRODUCTION

1.1           Background to the Study

Historically, the issues of crimes against crimes of genocide, humanity, war crimes and crimes of aggression[1] have been of major concern to the international community. The 20th century witnessed some of the worst atrocities, committed in the history of humanity accounting for more than eighty six million civilian deaths in over 250 conflicts across the globe.[2] The number of persons prosecuted by the post World War tribunals is a testimony of the fact. These tribunals were established in the aftermath of World War II (1939-1945) to try cases of international crimes occasion demand.[3] It is worthy to note that these ad hoc tribunals were vastly limited in areas of duration and jurisdiction and to some extent incapable of performing their function as well as enforcing their decisions.

As a result of the inadequacies, experienced by these ad hoc courts and as a matter of exigency, it was pertinent for the establishment of an independent permanent international court. In relationship with the United Nations system with jurisdiction over the most serious crimes of concern to the international community as a whole. Hence, the International Criminal Court (ICC) which came into operation in 2002; is a creation of the Rome Statute to prosecuted and convict international crimes carried out in the jurisdiction of state parties from the day the statute came to force. The court is distinctive in three major respects;

i.                    It was established pursuant to a multi-lateral treaty[4]

ii.                  Unlike its predecessors, it is a permanent court

iii.                It was established as a court of last judicial resort for War crimes, crimes against humanity, aggression and genocide.

The International Criminal Court (ICC) has political and legal power to encourage national prosecutions of International Crime. Under the Rome statutes, state parties are expected to arrest and prosecute those accused of these Crimes, if their respective national courts have jurisdiction over such crime.[5] Thus, the International Criminal Court (ICC) acts as a “complimentary” judicial resort. In case no State party or non state party can or is willing to excise jurisdiction over any allegation of international crimes.[6] 

One remarkable advantage of the International Criminal Court (ICC) is that the Rome statute has ensured that a number of rights which have never before been granted by an International Criminal Tribunals are accorded to victims. The statute has generated a victim friendly scenario than all the International Criminal Tribunal. It has however, celebrated the call for a paradigm shift from criminology and penology to “victimology”.[7] One of which is the right to participate in proceeding, independently of the prosecution or defence. Also, victims have the right to have their own legal representative in the courtroom presenting their concerns and personal interests to the courts. Victims may also make representation to the pre-trial chamber, in accordance with the rules of procedure and evidence. Another remarkable progress is the creation of the Trust fund for Victims. The Trust fund for victims advocates for victims and mobilizes individuals institution with resource, and the good will of those in power for the benefit of victims and their communities. Thus, it funds or sets up innovative projects to meet victims’ physical, material or psychological needs. It may also directly undertake activities as and when requested by the International Criminal Court (ICC). The Trust fund for victims can act for the benefit of victims of international crimes, regardless of whether there is a conviction by the International Criminal Court (ICC). It cooperates with the International Criminal Court (ICC) to avoid any interference with ongoing legal proceeding.

Hence, it is expedient to mention here that the International Criminal Court (ICC) as a legal personality is vested with the superior and authoritative power to exercise its jurisdiction in the trial and prosecution as well as meting out punishment to offenders of international crimes. In other words, the Rome statute seek to provide protective measure to victims of international crime. 

In the same vein, it is important to note that the jurisdiction of the International Criminal Court (ICC) is “complimentary” and not necessarily based on the universality principles,[8] that is to say that, states have the inherent jurisdiction to investigate and prosecute cases of international crimes and the International Criminal Court (ICC) can only exercise its jurisdiction where the state- parties are either unwilling, unable or perhaps where states are not parties to the statute.

Based on this background, this work aims at ensuring the protection and redress for victims of international crime – the legal framework and mechanisms for the protection of the rights of victims of international crimes vis-à-vis an appraisal of the role and operations of the International Criminal Court (ICC)

1.2           Statement of the Problem

It is trite that the International Criminal Court (ICC) is charged with the responsibility of investigating prosecution and punishment for offenders of international crimes as well as ensuring the protection of victims’ rights and possibly the provisions for compensation and redress for losses suffered by victims, their survivors and other dependants, and the entire community.

Nevertheless, these enormous responsibilities are not without its short-coming as the International Criminal Court (ICC) has encountered diverse challenges to the effective administration for the roles and exercise of its authority.

Hitherto, the International Criminal Court (ICC) has been confronted with severe challenges which includes; different approaches to criminal justice – the International Criminal Court (ICC) will require the approval of major legal system of the world. In practical terms, this means that it will have to be acceptable to both civil law countries, that apply the inquisitorial method of criminal procedure, and common law countries, that follow the accusatorial procedure.[9] It also means that states will have to agree in broad terms to the definitions of the crimes to be tried by the court and to the general principles of criminal law to be applied by the International Criminal Court (ICC).

Another challenge is the issue of which crimes are to fall within the court’s jurisdiction. The ILC Draft statute provides that the court is to have jurisdiction over genocide, aggression, serious violation of the law and customs applicable in armed conflict, crimes against humanity and treaty crimes listed in an Annex to the Statute.[10] The Annex lists grave breaches of the 1949 Geneva Conventions on the laws of War and protocol 1 of 1977, includes hijacking, apartheid, crimes against diplomats, hostage-taking, torture, seizure of ships and drug-trafficking, all of which are designated as international crimes by multilateral treaty. There is a considerable opposition to the inclusion of treaty crimes within the court’s jurisdiction. The principal reason advanced for the opposition is that such crimes are not part of customary international law and therefore qualify as international crimes only for state parties to the treaties in question.[11] It is argued that these crimes will over burden and trivialize the court.[12] There is a also serious objection to the inclusion of aggression; first, because of the difficulties experienced in defining this crime and secondly, because of the insistence by the major power, reflected in the ILC Draft Statute.[13]

At present it seems likely that treaty crimes and aggression will be excluded and that the court will be left with jurisdiction over only the “core crimes” of genocide, war crime and crimes against humanity. This will be rather unsatisfactory by other states that are parties to the Rome statute.[14]

Thirdly, is the issue of state sovereignty and the jurisdiction of the International Criminal Court (ICC) – many states view the prosecution of crime both national and international as an aspect of sovereignty and therefore unwilling to allow the International Criminal Court (ICC) to assert its jurisdiction except there is consent. This explains their insistence that they retain primary jurisdiction over international crimes and that they control the initiation of proceedings before the court. While the ad hoc tribunals for the former Yugoslavia[15] and Rwanda[16] provides for concurrent jurisdiction with national courts over international crimes within the jurisdictions but in the final resort they have primacy of jurisdiction as they may require statutes to defer in their competence,[17] the ILC Draft statute instead in its preamble declares that the court is intended to be “complementary to national criminal jurisdiction.” This attempt to relegate the International Criminal Court (ICC) to a subordinate status will seriously undermine the credibility of such a court as it may be rendered powerless to override the decision of national authorities to refuse to prosecute or grant amnesty to persons alleged to have committed international crimes or review the friendly prosecution of suspect before national court.[18] while concurrent jurisdiction may be an acceptable compromise, the notion of “complementarily” involving the subordinate jurisdiction of the international court could effectively destroy the value of such a court. However, it is advocated that states cooperate with the International Criminal Court (ICC) in terms of arrest and suspects, the provision of evidence and witnesses and by making their prisons available for convicted criminals to serve their jail term.

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