In reaching a decision, how would you approach the need to balance the rights of an accused person and the rights of victims, which are both protected by the ICC’s legal texts?
The need to balance the rights of an accused person and the rights of victims is a critical issue for the conferment of justice and its overall quality and therefore quite understandably an issue which has attracted the attention of scholars lately. The Rome Statute considers ab initio this critical issue. It is clear that the provision of Article 53§1 ICCRSt (Initiation of an investigation) balances the rights of accused and the victims from the investigation stage onwards.
Undoubtedly, the principal article regarding the victims’ protection and their participation in the proceedings is Article 68 ICCRSt, under the title “Protection of the victims and witnesses and their participation in the Proceedings”, where it is stated:
- The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender […] and health, and the nature of the crime […] where the crime involves sexual or gender violence or violence against children. […] These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
- As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child […]
- Where the personal interests of the victims are affected, the Court shall permit their views […] to be presented and considered […] in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
Moreover, Article 64 ICCRSt under “Functions and powers of the Trial Chamber” stresses in paragraph 2 that “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”. In paragraph 6(e) of the said Article it is reiterated that “In performing its functions […] during the course of a trial, the Trial Chamber may […] [p]rovide for the protection of the accused, witnesses and victims”. Additionally Article 65 ICCRSt under the title “Proceedings on an admission of guilt” stresses in paragraph 4 that “Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute […]” Hence, the complete adherence to the aforementioned provisions and their just application and enforcement will greatly assist me in balancing the rights of an accused person and the rights of victims, given that all of them refer both to the accused and victims and establish a delicate balance between their rights.
On the other hand, Article 67 ICCRSt refers explicitly to the rights of the accused and the utmost importance of their respect. Hence it is duly stressed that the accused shall:
1) have a public, fair and impartial hearing;
2) be informed in an understandable language of the exact charge(s) and his/her rights;
3) have adequate time and facilities for the preparation of his/her defence;
4) communicate freely with his/her counsel(s);
5) be tried without undue delay;
6) examine the witnesses against him or her and call and examine defence witnesses;
7) be entitled to raise defences and present evidence;
8) have gratis the assistance of a competent interpreter and translation services
9) not be compelled to testify or confess guilt and remain silent, without such silence affecting the determination of guilt or innocence;
10) be able to make an unsworn oral or written statement in his/her defence;
11) never been imposed upon him/her any reversal of the burden of proof or any onus of rebuttal;
12) have knowledge of and access to evidence in the Prosecutor’s possession or control which are in favour of his/her innocence or mitigate his/her guilt or affect the credibility of prosecution evidence.
Finally yet importantly, on a personal note, I believe that victims’ rights should always be fully respected and that victims should always have the right to express their views and concerns from a very early stage of the proceedings. However the rights of the victims should not reach the point where the rights of the accused are violated or victims act as a quasi ‘second prosecutor’ (as often ends up being the case in civil jurisdictions) or overtly delay proceedings. I also believe that the legal representatives of victims should be granted full access to the case file and confidential material, while the access for victims themselves should be more limited, following the sound practice which has been developed by the Court over the years. Finally the victims should be able to call and (cross-) examine witnesses but inevitably there must a limit on the number of witnesses that victims can call and the allocated time they can utilize for this purpose must always be appropriate to justice being conferred fairly and properly.
 Juan Pablo Perez-Leon-Acevedo and Joanna Nicholson (eds.), Defendants and Victims in International Criminal Justice: Ensuring and Balancing Their Rights, (London: Routledge), (2020).
 “(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice”. Contemporaneously, the rights of the accused are found in the 1(a) and 1(b) provisions of Article 53 ICCRSt where it is noted: “unless there is no reasonable basis to proceed under this Statute”, “[t]he information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed” and “[t]he case is or would be admissible under article 17”.