Victims have rights. No doubt about it. Since the 1960’s the need for the criminal justice system to take into account the needs of the victims has been emphasized. These efforts-mostly driven by non profits-have borne fruits. The international community has paid attention. In 1985 the United Nations Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the General Assembly[1]. This Declaration recognized the vulnerability of victims of crime and that there was a need for judicial and administrative processes to respond better. Part of the better response included “allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system”[2]. In almost similar fashion, the General Assembly subsequently adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law[3]. This instrument provided, inter alia that “A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law”[4].

The right of victims to actively participate in the criminal trial process has also been reflected in international criminal law. Thus, whereas previous international tribunals such as the Nuremburg Tribunals, the ICTR, the ICTY among others, did not offer any role to the victim during the trial, the Rome Statute has been very generous in this regard. The Statute sets up a Victim and Witnesses Unit within the Registry charged with the responsibility of undertaking “protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses”[5]. In addition, Article 68 provides that ‘‘Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court”[6]. The only qualification to this right is that it ought to be conducted “in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”[7]. The ICC has had occasion to interpret this rather wide provision. In the Lubanga case[8], for example, the victims were allowed to directly participate in the investigations and the prosecution of the case. In the Kenyatta case[9] and the William Ruto case[10], victim participation during the trial process included allowing the Victim’s Representative to ask questions during the trial.

Whereas this development in the recognition of the victim rights is applaudable, I am concerned that the international criminal jurisprudence could end up tipping to the other side: ‘victimising’ the alleged perpetrator in the name of recognizing the victim(s)’ rights. Let me explain. The entire adversarial nature of criminal trials hangs on an assumption of the equality of arms between the protagonists. The prosecution and the accused person should have equal resources and the same opportunities to argue their cases. However, this balance will be interfered with when the Victim is provided an opportunity to participate in the trial. Since the victim would naturally be on the opposing side from the accused person, his/her participation would essentially be a second cross examination of the accused person and his witnesses. An unfair result no doubt.

Secondly, victim participation in proceedings negatively affects the pace of proceedings. This also has negative repercussions on the rights of the accused to have his case determined fast. The Victim will not only spend time during the cross examination stage but he will also have a right to make interlocutory applications and appeal on any Rulings therefrom. This could in turn take an inordinate amount of the court’s time. As an example, Elisabeth Baumgartner estimates that in the Lubanga case “out of a total of 45decisions rendered by Pre-Trial Chamber I from the issuing of the warrant of arrest in February 2006 tothe referral of the case to the Trial Chamber in September 2007, 20 decisions (13 per cent of all decisions) were directly related to victim participation (not counting decisions on victim protection issues)”[11]. In a court where each second counts in terms of the cost implications, this is significant.

Thirdly, the primary role of the criminal justice process is to determine the guilt or otherwise of the accused person. In other words, “the criminal law system cannot serve therapeutic purposes, since it does not have the resources needed and was not designed to attend to the victims.”[12] All other roles such as victim support are ancillary and ought to be in support of this objective. The participation or none participation of a victim at this stage does not affect the guilt or otherwise of the accused person[13]. Admittedly the court needs to understand the pain and circumstances of the victim as a result of the alleged crimes. However, such information is only relevant at the sentencing stage, not in trial. When the victim participates at the hearing stage the smooth functioning and possibly the eyes of the court are taken away from the primary goal (guilt or innocence of the accused) to ancillary issues (plight of the victims

Lastly, the victims interests in court are (or ought to) be adequately represented by the Office of the Prosecutor. Limiting the participation of the victims during the trial will compel them to co-operate more with the Office of the Prosecution. Rather than pursuing their own independent strategy, the victims will work with the objective of the prosecutor. This is a good thing for international criminal law.

In a word therefore for the above mentioned reasons there is need to rethink the participation of the victims   in the trial process. Too great an involvement is not only disruptive but “might not be the most judicious path towards the recovery and reparation desired by the victim”[14].

[1] Resolution No. A/RES/40/34,29 November 1985, 96th plenary meeting