Written by Lina Laurinaviciute

Although terrorism has already been on the agenda of the international community for many years, absence of attention to the concerns of victims of terrorism acts has been significant until fairly recently. The change in at least thirty years^[1] taking theoretical debate about victim role in criminal justice was caused by the growing attention to terrorism in general due to the spreading worldwide large-scale terrorist acts. Indeed, terrorism continues to pose a high threat to the security and, more importantly, has become more diverse in its methods and impact. Therefore, much of the public and political concerns are particularly directed towards terrorist acts which lead to many casualties and fatalities.

Figures of terrorist attacks speak for themselves: on 9/11, 2001, more than 3000 people were directly affected by loss of life or injuries; the Bali bombings of 2002 killed 202 people, 164 of whom were foreign nationals (resulting in so-called cross-border victims). A further 209 people were injured.^[2] Looking even at regional level, recent Europol’s report^[3] on situation of terrorism records a total of 249 terrorist attacks in the European Union (hereinafter – EU) in 2010. It is self-evident that specific support oriented to the needs of victims of acts of terrorism is sufficiently and unquestionably justified on national, regional and international levels.

Notwithstanding the enduring attempts of the international community to fight against terrorism, regrettably, victims of acts of terrorism were mostly “forgotten” and regarded only as collateral damage. Yet because the consequences caused by terrorism will continue to affect international community, which itself is notably showing an increased sensitivity to victims of such calamity, the discussion on the effective response not only to the perpetrators of such criminal acts but also to the victims, indicates the global significance of the the efficient support to victims of terrorism acts.

Regarding the specific characteristics of the victim of terrorism acts, paragraph 1 of the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, defines victims as: “persons who, individually or collectively, have suffered harm, including 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 Member States, including those laws proscribing criminal abuse of power.” This definition comprises all situations where people are victimized as a result of criminal offences committed by terrorist organizations and individuals.^[4]

Additionally, according to the Council of Europe Recommendation 2006(8) on assistance to crime victims “the term ‘victim’ also includes, where appropriate, the immediate family or dependents of the direct victim”^[5] and the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power includes “persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (also often referred to as ‘first responders’).”^[6]

Thus, it is clear that victims of the terrorism acts would fall under the general definition of victim within the criminal justice system. However, it is important to note that terrorism acts as such have unique characteristics which, consequently, lead to the differentiation of the victims of terrorism acts from the victims of other violent crimes.

Regarding the definition of terrorism itself it is important to note that the definition is not generally yet agreed upon. However there were some efforts made to define International terrorism. Some authors, for instance, distinguished International terrorism as a “threat or use of violence for political purposes when such action is intended to influence the attitude and behavior of a target group other than its immediate victim and its ramifications transcend national boundaries”.^[7]

Continuing, Rianne Letschert and Antony Pemberton pointed out, that: ”Typologies of terrorism distinguish between religious-motivated terrorism, left and right-wing terrorism, ethno-nationalist or separatist terrorism, vigilante terrorism and single issue terrorism. Terrorism can be both single-phased (bombing and shooting), that is characterized by punctuated short-duration attacks and dual-phased incidents, involving protracted kidnappings, hijackings, and other acts of hostage-taking.”^[8] Consequently, the different types and forms of terrorism make it challenging for reaching the consensus on a definition that would cover all existing terrorism forms and could be used as a basis for the joint action under international criminal justice system.

Cyrille Begorre-Bret emphasized that:”the consequence of the ‘definitional abstention’ is of a political and practical nature. If everyone is allowed to define terrorism the way they want, violence will continue indefinitely. Everyone will delimit terrorism in such a way that his own violence cannot be described as illegitimate. If one wants to break the vicious circle that leads from violence to retaliation and from the latter to the former, one needs an objective point of view and therefore a definition. The definition of terrorism is thus far from being just a theoretical issue.”^[9]

Currently existing definitions of terrorism, usually incorporate three main elements:

“1.  The intention to cause death or serious bodily harm and/or damage to public or private property;

2. The targets are often randomly selected persons, in particular civilians and non-combatants;

3. The purpose of such an act is to intimidate a population (or a specific segment within the population), or to compel a government or an international organization to do or to abstain from doing any act or to attempt to destabilize governments or societies.”^[10]

Most acts considered as terrorism inflict large scale human and material devastation. These acts make impact not only to the direct victims, who may be physically injured or killed, but may also have lasting effects on indirect victims, such as their dependents or relatives, as well as vicarious victims, which may include members of the broader society.

From the victim approach, terrorism could be understood as a ‘blind’ violence because it is not targeted at victims intuit personae but it strikes at random, innocent people.^[11] However, it could also be associated with symbolism which leads to the direct impact on victims. “Symbolic targets are chosen because their identity or location or activities symbolize something which the terrorists will like to attack. The symbolism attached to the terrorists’ victim may be personal or representative, or it may be ‘everyman’ symbolism.”^[12] Thus, as noted by Cyrille Begorre-Bret: “if one defines terrorism through the status of its victims, one manages to avoid the discussion of the legitimacy of its cause.”^[13]

Therefore, the category of victims of acts of terrorism is specific, especially addressing their needs regarding compensation arrangements. Furthermore, “victims of terrorism are different from victims of violent crime in that they may be seen as ‘instruments’ used by terrorists in order to modify or intervene in the political process. This public dimension requires a public response which may be seen as solidarity.”^[14] Furthermore, the difference in treatment afforded to victims of acts of terrorism, as distinct from victims of other crimes, should be guided by their specific needs and vulnerability.

Regarding the recognition of victim status, generally, judicial authorities need to recognize that the person in question have suffered harm as a direct consequence of the criminal conduct for which the accused is charged so that they can appear as victims in criminal proceedings, including trial. As and example, for the purposes of participation in trial procedures, the Pre-Trial Chamber I in the Situation in the Democratic Republic of Congo considered that “the determination of a single instance of harm suffered is sufficient, at this stage, to establish the status of victim.”^[15]

It is important to note, that officials leading investigations or prosecutions may interrogate surviving victims of terrorist acts and thus may prejudice their status as victims or lead to secondary victimization. Therefore, if an investigation is necessary to determine whether victims really suffered harm as a result of criminal acts, victims should be questioned in a careful manner.

Furthermore, the question of the status of the victim should not be directly or solely dependent on the determination of guilt of the accused. as it is stated in the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power “a person may be considered a victim, […] regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim”.^[16]

The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative as opposed to merely retributive justice. Proponents of this movement promote that criminal justice mechanisms should serve the interests of victims in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims’ interests.^[17]

However, the most common^[18] approach to the role of the victims in the administration of criminal justice is the one of victim – as an evidence to prosecute crime – terrorism here is not an exception. In essence, “victims of crime were the forgotten persons of the criminal justice system, valued only for their capacity to report crimes and to appear in court as witnesses.”^[19] It is important to note, that the International Criminal Tribunals for the former Yugoslavia^[20] and for Rwanda^[21] in their jurisdictions, did not envision the possibility of victims to intervene in the proceedings, except as witnesses. Such approach raises strong concerns for the ‘visibility’ of victims and more particularly, for the protection of their right to be heard in the criminal proceedings.

Pursuant to Article 14 of the International Covenant on Civil and Political Rights, access to justice is a fundamental right of all persons. Nevertheless, this, one of the most important international human rights instrument goes into detail only with regard to basic procedural rights that shall be afforded to accused persons.^[22] However, victims of terrorist crimes, as much as victims of crime in general, should be entitled to access criminal proceedings. Although the concept of victim participation in criminal proceedings is not easily defined, it may be described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.”^[23] This also implies the additional right to put questions to the defendant, to call witnesses, and to provide additional evidence.^[24]

Naturally, the extent of victims’ role remains a central question for international criminal justice.

Some scholars^[25] are concerned that after victim infuse into the legal process, highly emotional accounts from victims risk violating the “procedural justice”. Some^[26] observe that “far from giving the victims a hearing, they may leave them feeling silenced”^[27]. While others advocate that “participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims’ ‘healing and rehabilitation’.”^[28]

In light of this, the question is whether victim participation in recent developments of international criminal justice increased the “positive” role of the victims of terrorism acts within the criminal proceedings by actually allowing greater recognition of victims’ voices and experiences.

In this regard, the Special Tribunal for Lebanon (hereinafter – STL)^[29], established in 2006, deals precisely with the crime of terrorism and therefore addresses the victims of terrorism acts. The establishment of this tribunal showes that terrorist crimes that are relatively small in terms of number of casualties can have large political intimidation effects. Michael P. Scharf noted on this concern: “with regard to the notion of fear, terror or panic, that those who are victim of such state of mind need not necessarily make up the whole population.” ^[30] Therefore, the assassination of the Lebanese Prime Minister Rafik Hariri has been held sufficiently important to result in the establishment of the STL.^[31]

Regarding the role of victims of terrorism act, the Statute of the STL grants rather broad access to the participation in the criminal proceedings, respecting also the rights of the accused. The Statute of the Tribunal established within the Registry a section for victims and witnesses, which „provides measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses“^[32] Subsequently, Rules of Procedure and Evidence^[33] govern, inter alia, the participation of victims and their protection in detail.

Indeed, the participating in the proceedings notion distinguishes victim as „victim of an attack within the Tribunal‘s jurisdiction who has been granted leave by the Pre-Trial Judge to present his views and concerns at one or more stages of the proceedings after an indictment has been confirmed.“^[34]

In addition, Article 17 of the STL Statue on rights of the victims recognized: „Where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Pre-Trial Judge or the Chamber considers it appropriate.“^[35]

However, the normative framework of the STL also features a number of restrictions. Significantly, the victim‘s participation in the proceedings is limited to a participation through the legal representative unless the Pre-Trial Judge authorizes otherwise.^[36]

Nevertheless, participating in the proceedings are entitled to receive documents filed by the Parties (however, with the restriction on the interests of justice).^[37] In addition, two more rights are provided for the victims participating at the trial stage. Firstly, a victim „may request the Trial Chamber, after hearing the Parties, to call witnesses and to authorise him to tender other evidence“. It follows, that a victim may also exercise right to examine or cross-examine witnesses, however, „subject to the authorisation by, and under the control of, the Trial Chamber after hearing the Parties“^[38]. Secondly, under the conditions of Rule 87 (B) a victim may also file motions and briefs.

Moreover, victims participating in the proceedings at the sentencing stage, has a right to be heard by the Trial Chamber or file written submissions relating to the personal impact of the crimes on them subject to the authorisation by the Trial Chamber.^[39] While on victims’ participation at the appeal stage, also subject to the authorisation of the Appeals Chamber, Rules of Procedure and Evidence stipulates that „[…] after hearing the Parties, a victim participating in proceedings may participate in a manner deemed appropriate by the Appeals Chamber.“^[40]

Therefore, it follows that, establishing the normative framework of the STL, introduces a changing role of a victim in criminal justice systems, moving from the perception of a victim as witness towards more victim-centred approach, which allows victims to participate in criminal proceedings independent of their role as witnesses and envisage to give victims a voice in the proceedings ensuring that justice is done in relation to their interests, however, in balance of a fair and expeditious trial.

However, to ensure effective access to justice for the victim of terrorism acts is possible only if the State puts in place legal aid mechanisms as the effective victim support, beyond criminal justice response, also requires, the necessary material, medical, psychological and social assistance, including information on available health and social services. In this regard, according to the findings of UNODC: “legal representation is a condition in most legal systems for the victims to participate in a trial.”^[42] Therefore, it is clear, that there is a strong link between legal status, legal access and defense of victims’ rights.

Through the course of history it is evidenced, that terrorist violence is unpredictable, it can occur at anytime and anywhere. Anyone can use it and anyone can be its target. “Wars between states are confined to geographical areas and have a declared set of combatants, but terrorism can be conducted with relative ease across many national borders.”^[43] It throws a complicated set of challenges varying in scope and scale to different state governments which often grope for appropriate means to respond.”^[44]

Terrorism will continue to be a difficult and persistent feature of international violence. Therefore, international cooperation and coordinated international efforts are necessary to ensure effective transnational proceedings and the protection of terrorist acts victim’s rights, beyond the borders. UNODC observed that: “Cross-border issues may add a layer of complexity to the measures required to protect victims’ access to justice and/or compensation.”^[45] As example here can be mentioned the location of the trial proceedings, which makes impact on the interests and involvement of the victim, and through this, also to the chances for a successful trial.

In such case, States would have to make additional efforts to extend the support which is usually available to “domestic” victims to victims residing abroad, or to victims residing in their territory who have been victims of offences abroad. In this regard, the experience of foreign victims of the bombings in Indonesia in 2004 illustrates some of the cross-border challenges faced. “While under the Indonesian framework regarding treatment of victims and witnesses, there was no obstacle for foreign victims to seek restitution, one difficulty encountered by a foreign victim that sought medical treatment in a third country was that the legislation of neither Indonesia nor the country of nationality of the victim provided for coverage in those circumstances.“^[46]

Therefore, in enhancing the effectiveness of their criminal justice systems, in particular regarding their ability to cope with large-scale crimes, States should also pay specific attention to the support afforded to victims and to the particular challenges faced by victims of acts of terrorism. Particularly in the field of criminal law and jurisdiction, states should, as a consequence of their participation in treaty regime, amend their legislation in accordance with the requirements of the treaty. This may entail substantial changes in their systems of criminal law and procedure. This area is sensitive in the States and thus national authorities too often neglect to implement changes.^[47]

Yet, it is also clear that only formal incorporation of relevant international law obligations into the domestic legal system does not guarantee, that anti-terror measures are effectively enforced.^[48] Enforcement itself is a complex activity, which ranges from formal incorporation of international law instrument to the monitoring of its practical applications by courts and also law enforcement officials.

In this regard, the reports^[49] under relevant Security Council resolutions shows inconsistencies in domestic legislation and enforcement practices, especially the lack of harmonization of criminal law provisions bearing on international terrorism. This is also applied to the regional context, such as the EU, in which the 2002 Framework Decision on combating terrorism “has been implemented by Member States in a manner which can hardly be deemed satisfactory in terms of consistency.”^[50]

Thus it is self-evident that such discrepancies, despite all the efforts of international community to harmonize criminal law standards on terrorism, are detrimental to the efficiency of anti-terror measures and therefore also for the effectiveness of the support of the victims of terrorism acts, irrespectively of the nationality of the victim, perpetrator, or the place of commission of the crime. From the focus on victim support from a criminal justice point of view, there is a clear necessity to criminalize acts of terrorism in the domestic legal order, implying the smooth implementation of international normative standards.

In this regard, imposing a worldwide recognized definition of terrorism would reduce a lot of recent controversies and it would help to limit the potential for abuses, that states sometimes have in defining crimes related to international terrorism in their domestic legal systems. The message arising from the mentioned ‘danger’ of the lack of common definition on terrorism is clear: conflicting interests of nation states can make universal counter-terrorism measures impossible.

However, justice from the victim point of view, depends not only on the prosecution of the perpetrators, but also on their role in the criminal proceedings and the capacity to restore the situation for victims. In response to victimization, it is absolutely essential to identify the rights and needs of victims of terrorism acts, to protect those rights, to support victims and to provide reparation for the damage they have suffered.