In my dissertation, I carried out a critical examination of the development of victims’ rights in international criminal law. The rights of victims of mass atrocities and human rights violations have historically been overlooked in international criminal proceedings. However, the gradual development of restorative justice, initially in domestic criminal systems and, more importantly, as a tool of transitional justice, has created the possibility of victims rights gaining a solidified position in international criminal law. The potential for objective justice for victims is best illustrated in the founding of the International Criminal Court (ICC), on which I focused my evaluation, whilst considering the retributive and restorative dimensions of international criminal law in transitional, post-conflict situations.
First, my dissertation considered the historical development of international criminal law and the marginalisation of victims in its first proceedings. Placing its origins in the historical trials of the International Military Tribunals of Nuremberg and Tokyo, I argued that international criminal law, particularly in its foundational stage, was heavily influenced by the state-centric orthodox framework of international law. This, in addition to the retributive and deterrent functions of the International Military Tribunals, rendered the aim of victim redress insignificant against the absolute priority of prosecuting war criminals.
My dissertation subsequently evaluated the position of victims in the International Criminal Tribunals for former Yugoslavia (ICTY) and for Rwanda (ICTR). Their establishment was significant for the evolution of international criminal law as a concrete legal discipline for the imposition of international individual accountability. However, I submitted that the ad hoc Tribunals’ success in post-conflict reconciliation was limited, as their operation maintained an adversarial focus, thus precluding the inclusion of restorative practices in proceedings. Nevertheless, it was acknowledged that the ad hoc Tribunals provided substantial impetus for the creation of the International Criminal Court (ICC) which has in turn taken steps towards the formal inclusion of restorative justice mechanisms. I showed that this was effectuated by the enshrinement of victims’ right to participation in proceedings, as well as the right to reparations. This is reflected in the founding documents of the ICC, namely the Rome Statute of the International Criminal Court and the Rules of Procedure and Evidence, as well as in the creation of the Victims’ Trust Fund, supporting the reparation regime.
Providing an in-depth evaluation of the victims’ rights framework of the ICC, my dissertation showed that the practical application of these rights in ICC jurisprudence reveals an incoherence in judicial reasoning, particularly regarding the role of victims in proceedings and the prioritisation of their rights and interests in the Court’s decision-making. Such disparity indicates that the ICC has not been wholly successful in its aspiration to combine restorative and retributive objectives under the same institutional framework. I further elaborated on the underlying causes of the theoretical incoherence evident in the ICC’s operation. I argued that the difficulty in adopting an effective framework for the implementation of victims’ rights stems from the conflicting normative assumptions about the function of the ICC. Specifically, ICC practice and policy is influenced by the underlying dynamics in international criminal law and its goals within transitional justice. In order to demonstrate the difficulty of realising the ideal objectives of international criminal law in the context of transitional, post-conflict realities, I highlighted the difference between the interests of actual victims and the use of abstracted victimhood as a moral justification for international prosecutions. Utilising this contrasting paradigm of ‘ideal victim’ and ‘actual victim’, I showed that the prevalence of the ideal victim rhetoric indicates that the structure of international criminal law, including the ICC, remains predominantly retributive. This, in combination with the practical difficulties that the ICC faces, significantly complicates the inclusion of restorative practices and the realisation of victims’ rights. Ultimately, I submitted that in order for the ICC to fulfill its potential in relation to victims, it must reassess its objectives and adopt a clear position about the co-existence of restorative justice with the Court’s adversarial procedures.