Protection of Victims of Sexual Violence During International Criminal Trials: A Comparative Perspective

Table of Contents

Introduction

Section 1: Victims as witnesses: Protection during cross-examination

1. Special Evidentiary Rules

2. Measures to avoid face-to-face confrontation with the accused

3. Limits on manner and length of questioning

Section 2: Victims as participants: Protection in participation

1. The common regime of victims as participants in criminal proceedings

2. Non-public (ex parte) or in-camera proceedings

3. Confidentiality measures

4. No face-to-face with the accused

Conclusion

Bibliography

Introduction

Originally stowaways of the international procedure and courtroom,[1] victims have finally been recognized as an indispensable player in international criminal trials. The influence of developments in international human rights law, as well as the criticized shortcomings of the international criminal tribunals have led the founders of the International Criminal Court (ICC) to recognize victims’ access to this unique jurisdiction. Their late inclusion in international criminal proceedings is explained not only by concerns about the large number of persons concerned, but also by the traditional split between different legal traditions. Indeed, some feared a massive influx of victims that would disrupt the course of the proceedings, and thus negatively affect the generally accepted right to a fair trial.[2] No jurisdiction had ever had to consider so many people. Therefore, the specter of these thousands, even millions of victims, had been one of the major obstacles to their participation. The reluctance was also based on the place of victims in the national criminal systems and procedures. As it varies from one State to another, and more generally from one legal tradition to another, coming to an agreement regarding the participation rights of victims at the international level was even more convoluted.

Indeed, until 1998, the structure of the international criminal procedure was essentially based on the common law applied in Anglo-Saxon legal systems. In these systems, no opportunity to participate in the trail was offered to the victim, and their role, reduced to that of witnesses,[3] was essentially limited to the communication of information or the presentation of evidence. The victim was not given the qualification of “party”, this status was reserved for the prosecution and the defence. During the establishment of the International Military Tribunals of Nuremberg and Tokyo in 1945 and 1946 respectively, the victims were ignored, they were not recognized any status or rights, they were not even mentioned in the International Military Tribunals Statutes.[4] In the 1990s, the ad hoc tribunals did not give them a more important role. Although the Rules of Procedure (RPE) for the International Criminal Tribunal for the former Yugoslavia (ICTY) referred to the victims,[5] they were relayed to the role of witnesses in a Court whose objective was mainly repressive.[6] Until the drafting of the Rome Statute, victims were therefore not recognized the right to participate actively in the criminal proceedings before international jurisdictions, or even obtain redress. At the 1998 Rome Conference, several non-governmental organizations played an important role in the debates concerning victims in international criminal prosecutions.[7] Similarly, delegations from certain countries of civil legal tradition, including France, successfully supported the idea of victim participation in ICC proceedings.

Today, it seems that, with regard to victims, the ICC is based to a greater extent on Romano-Germanic law, by specifically allowing their participation, representation by counsel and claims for compensation.[8] While accepting the principle of victim participation, the original text did not include the civil law notion of “civil party.” Indeed, the drafters deliberately avoided defining the notion of “party.” According to the Statute or the Rules, it is impossible to define prima facie the place of the victims. In a 2008 decision, the Trial Chamber I finally decided to affirm its position on the matter: the victims are not parties but participants to the proceedings.[9] Often defined as a “hybrid legal system,”[10] the ICC has also maintained significant features of the common law systems, in addition to introducing a more civilian approach to victim participation.

Consequently, victims now have a dual role in international proceedings. On the one hand, they can appear as witnesses in the process of cross-examinations. This is an evidentiary mechanism that is found in several common law countries. In the United-States, this process is guaranteed by Amendment VI of the Bill of Rights[11] and affirmed by the United-States Supreme Court in a 1895 case.[12] In the United Kingdom, Rule 24.4 of the Criminal Procedure Rules[13] recognizes the right to cross-examination, and in Canada, it is the Charter of Rights and Freedoms that acknowledges it as a right of any person charged with an offence.[14]

On the other hand, victims in international proceedings now also have the possibility of acting as participants in the proceedings, which is a role that is well-known in civil law countries. For instance, Spain adopted this role of victim-participant in the process of the acción civil.[15] The same applies in Italy with the parte civile proceedings,[16] in Germany with the idea of the Nebenklage,[17] and in France, where victims can opt for a constitution de partie civile.[18]

Although it is now established that the victim has been recognized in international proceedings, it is essential to grasp what is meant by the word “victim”, both at the national and the international levels, in order to understand the significance of the rights they are entitled to. In Canada, the notion of “victim” is defined in section 2 of the Criminal Code, “victim means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence.”[19] However in France, there is no established definition of the idea of victim, neither in the Code of Criminal Procedure nor in the Criminal Code. Instead, the notion is apprehended in relation to the civil action, having to prove that she or he has suffered personal harm directly caused by the criminal offence,[20] and that the harm was certain and born of a punishable offence, in order to be considered a victim. In the two domestic descriptions, there is the common idea that a harm must have been suffered for the person to be considered a victim. At the international level, the definition of “victim” is set out in Rule 85 of the ICC Rules of Procedure and Evidence (RPE):

(a) “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;

(b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.[21]

In the international context, a few extra steps must be taken in order to be recognized as a victim. The person or organization must apply to the Registrar who will transmit the application to the relevant Chamber. The application is then usually scrutinized by the Victim Participation and Reparations Section, and the relevant Chamber will be in charge of determining whether the definition of “victim” is met by the applicant.[22] We find here again the notion of suffered harm associated with the word victim. These similarities could be explained by the 1985 Declaration of the United Nations on justice for victims which was adopted in the hope that, once implemented into national legislation, it would ensure that victims are “entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.”[23]

“Victims” means 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.[24]

By treating victims with respect and compassion, they would be assured that they have undeniably suffered a wrong that is recognized by society as such.[25] With this declaration, the international community also established that victims are entitled to specific rights that should not be denied. Indeed, beyond being given an access to justice, victims also have a right to be informed of the proceedings, to present their views and concerns, to be assisted, and to have measures taken in order to minimize their inconvenience, protect their privacy, and when necessary ensure their safety, that of their families and witnesses.[26]  This last right is one of the most essential ones and will be the focus of this paper.

By introducing the dual role of the victim and its new place in international criminal proceedings, the ICC had to ensure that victims would be adequately protected when being involved during a trial. The rationale behind the use of such protective measures within international criminal courts, both for victims as witnesses and as participants, is first to minimize serious risks to the security of witnesses and victims.[27] Conflicts rarely occur or disappear overnight, the hatred, whether ethnic, religious, or any other form, is often deeply rooted in a community, and victims can have a legitimate fear of retaliation. For example, the danger for witnesses to testify is amplified where the accused held a high-ranking position during the conflict and still has many friends who watch over his welfare, as it was the case during a lot of the trials before the International Criminal Tribunal for Rwanda.[28] Secondly, such measures are created in order to avoid serious incursions into the victims and witnesses’ privacy and dignity. Indeed, in still a lot of societies today, victims of rape are looked upon as guilty of having done something wrong and are therefore too often rejected by their own communities.[29] In her 2004 report, the women’s rights activist from Rwanda Marie Imaculée Ingabire puts together some testimonies from genocide victims, especially victims of sexual and gender-based violence, which illustrate the reluctance that victims have to testify before a court due to their fear of disclosing the stories:

“I had to change homes”, she said, “I left my village and I cannot go back there, because everyone there knows that I was raped. I was raped in a school compound where we had gone to hide. Nobody knows what happened to me where I stay now, and you want me to testify and disclose my secret before the entire world? Never.”[30]

Rejection by one’s family and community is often the basis why some victims refuse to testify. However, some of them do agree to testify, and for them confidentiality is essential to protect them from further stigmatization and rejection after testimony.

The third reason that justifies the institution of protective measures is that of reduction the trauma associated with giving testimony.[31] As a result of testifying or participating in criminal proceedings, victims should not have to suffer from secondary victimization and should not have to go through, once again, the pain that led them to be called before the Court. Lastly, it is fundamental to note that if it was not for the victims and witnesses, there would often not even be a trial. Measures need to be introduced to protect them in order to establish the truth.

Consequently, the question that needs to be asked is, in the context of international criminal trials before the ICC, to what extent is the protection of victims, and particularly of victims of sexual violence, influenced by the Common Law and Civil Law legal systems? Indeed, as the role of victims as witnesses is a feature that came from common law jurisdictions, those jurisdictions had to create mechanisms in order to protect victims in such circumstances. Likewise, in introducing this process at the international level, the ICC had a duty to reproduce those protective tools to ensure the fairness of the cross-examination. Therefore, it is interesting to compare the protective tools that are available at the international level to those available in a country of common law legal tradition, Canada in this case. Similarly, as the opportunity for victims to take part in international criminal proceedings as “simple” participants is a role that was inspired to the ICC by civil law countries, the idea is here to compare the protective mechanisms available to victims in one of those jurisdictions, France, to those present at the international level. With these two distinct comparisons, it will be possible to understand how the ICC was influenced by the two different legal traditions in its development of protective tools for victims of sexual violence.

This paper is going to take the focus of women victims of conflict-related sexual violence. More than other groups of victims, victims of sexual violence may suffer from stigmatization, fear and shame, and as a result, there is a significant risk of them being underrepresented at trails before the international court, or before any court for that matter, if those fora do not provide them with methods and means to ensure their protection and to inform them of the participatory possibilities available at the ICC.[32] The 1998 Rome Statute took into account the necessity of such measures by creating a duty for the Court to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”[33]  Furthermore, the ICC explicitly recognizes that victims of conflict-related sexual violence must be considered vulnerable witnesses who, as a result, deserve special attention when choosing the appropriate protective measures:

In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes.[34]

At the national level, the legislation also explicitly acknowledges the necessity of ensuring the victims and witnesses with a right to be protected during trial. In Canada, it is the Section 9 of the Canadian Victims Bill of Rights that states that “every victim has the right to have their security considered by the appropriate authorities in the criminal justice system.”[35] Similarly in France, Article 81-1 of the Code of Criminal Procedure affirms that the judge may, on his or her own, or at the request of the public prosecutor’s office, or at the request of the civil party, proceed, in accordance with the law, with any act enabling him or her to assess the nature and extent of the damage suffered by the victim or to gather information on the person’s personality[36] in order to adopt adequate protective measures.

Thus, in a section, by putting in parallel the protection measures available both at the ICC and in Canada, this paper will attempt to establish the tools that are common to both systems regarding the protection of witnesses during criminal proceedings (Section 1). In a second time, we will see if a similar comparison can be drawn between the protection of victims as participants in criminal proceedings in France and before the ICC (Section 2).

Section 1: Victims as witnesses: Protection during cross-examination

Before the first international criminal jurisdictions, the presentation of evidence followed the Anglo-American, or common law, structure and rested in the responsibility of the parties. Indeed, in Nuremberg, cross-examination by the adversary party was an important procedural tool pursuant to Articles 16 (e) and 24 (e) of the International Military Tribunal Statute. As the ICC Statute was drafted as a compromise and was intended to establish a unique international procedural order, a clear commitment to a particular way of witness examination was avoided. Indeed, the ICC RPE presented the common law style of witness testimony as an optional way, stating in Rule 140 (2) that:

2. In all cases, subject to article 64, paragraphs 8 (b) and 9, article 69, paragraph 4, and rule 88, sub-rule 5, a witness may be questioned as follows:

(a) A party that submits evidence in accordance with article 69, paragraph 3, by way of a witness, has the right to question that witness;

(b) The prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters

Though it avoided the use of explicit common law terms, it seems clear that (2)(a) refers to cross-examination-in-chief, and (2)(b) to cross-examination.[37] Consequently to adopting such form of proceedings in international criminal trials, the ICC had to provide protective mechanisms for victim-witnesses to ensure their safety and to facilitate their delivery of evidence, just as common law systems, such as Canada, do. These protective tools are mainly aimed at protecting the person from re-traumatization and include special evidentiary rules (1), measures to avoid face-to-face confrontation with the accused (2), and measures that seek to put limits on the manner and length of questioning (3).

1. Special Evidentiary Rules

Special evidentiary rules are measures which, among other things, restrict the questions that may be asked by the parties to the victim-witness. The first one of these special rules concerns the issue of consent and inquiries into the victim’s conduct and state of mind. Rule 70 of the ICC RPE clearly affirms that consent cannot be inferred from the words or conduct of the victim when there is use of force or coercion, when the victim is not able to give genuine consent, or when the victim simply remains silent and does not demonstrate resistance to the commission of the offence.[38]  Before being set as a rule in the case of proceedings before the ICC, this idea of inferring and questioning the witness on her consent was rejected in proceedings before the International Criminal Tribunal for the former-Yugoslavia.[39] Indeed, in the Kunarac, Kovač and Vuković case, the reaction of one of the witnesses to the inquiry of the Prosecutor on whether the sexual contact was against her will was met with outrage: “Please, madam, if over a period of 40 days you have sex with someone, with several individuals, do you really think that is with your own will?”[40] In the closing statements, the Prosecutor recognized that the question had been met with “appropriate outrage” by the rape victim.[41] In Canada, the same principle is adopted and applies to victims of sexual violence. Section 273.1 (2) of the Criminal Code establishes that no consent can be inferred where it has been expressed by someone else, where the victim is incapable of consenting, if it is induced by a position of authority, or when the victim has shown signs of disagreement.[42]

In any circumstances, including consent in the definition of rape can expose the victim of the sexual violence to humiliating and painful questions that are usually irrelevant in situations where coercion or force is exercised, especially when the victim has just described the conditions in which the violence took place. The protective tool of limiting the questions regarding consent allows the victims not to be further traumatized by the cross-examination process and prevent them from feeling that their suffering is illegitimate or doubted.

Another main tool that is implemented both at the national and international level to protect victim-witnesses during trials is that of the rape shield laws. In Canada, this mechanism, also known as the Mills Regime, enables restrictions on the production of complainant records in cases of sexual violence. It was introduced by the Supreme Court’s case R v O’Connor[43]in 1995 and later on added to the Criminal Code.[44] The provisions were recognized as constitutional in the 1999 R v Mills decision,[45] leading them to be known as “the Mills regime.” This regime prohibits criminal defence lawyers from asking questions suggesting that the witness might be lying about the alleged offence. Internationally, when the ICC established the Rome Statute and its RPE, it similarly acknowledged the presumption that past or subsequent sexual conduct could not be admitted as evidence during trial.[46]

The idea behind such protective measures, beyond preventing secondary victimization and recognizing the vulnerability of the victims, is that it might increase the likelihood of reporting sexual crimes by ensuring the respect of their privacy.[47] As it was raised in the Delalić case before the ICTY in 1997, to admit such evidence would “lead to a confusion of the issues” by trying “to call the reputation of the victim into question,” and would only cause “further distress and emotional damage”[48] to the victim-witnesses.

The third type of measures that protects victims from the risk of being re-traumatized by the cross-examination is that of corroboration. According to Rule 63 (4) of the ICC RPE and Section 274 of the Canadian Criminal Code, corroboration is not required to prove crimes falling within the jurisdiction of the courts, particularly for crimes of sexual violence. Victims of such crimes, as often opposed to victims of other crimes, used to be seen as inherently unreliable and untrustworthy witnesses, thus requiring that their testimonies be corroborated.[49] Today it is not the case anymore, and both Canada and the ICC recognize that victims of sexual violence are as reliable as any other victims. They should not be mistrusted, and are even recognized rights to specific protective measures while being cross-examined, in order to prevent as much as possible increased traumatization.

2. Measures to avoid face-to-face confrontation with the accused

Due to the vulnerabilities of victims of sexual violence, many of them might be reluctant to come forward to testify before the court by fear of facing their offender. As a consequence, the jurisdictions that involve cross-examination in their trial process have had to put in place protective measures aimed at shielding victim-witnesses from the intimidation and possible trauma of face-to-face confrontation with the accused. In Canada, victim-witnesses of sexual violence have the possibility to apply, either directly or through the prosecutor, for an exception to in-court testimony. Indeed, section 486.2 (2) of the Criminal Code provide for the alternative of testifying “outside the court room or behind a screen or other device that would allow the witness not to see the accused.”[50] Such testimonial aids are also admitted before the ICC. Indeed, Rule 87 (3)(c) of the ICC RPE allows victim-witnesses to testify using “electronic or other special means, including the use of technical means enabling the alteration of pictures or voice, the use of audio-visual technology, in particular videoconferencing and closed-circuit television, and the exclusive use of the sound media.”[51] With the use of these protective measures, the parties to the proceedings, including the accused, will still be able to hear and see the witness on the screen monitor in the courtroom, but the victim will not, and might therefore be more at ease while being cross-examined.

One difference should however be noted between those corresponding regulations. While victims of sexual violence are automatically entitled to the presentation of evidence by electronic or other means before the ICC,[52] the recourse to such protective measures is left to the discretion of the judge or justice in Canada. Indeed, testimonial aids may only be granted if the court is “of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.”[53] With the assessment of this difference, it appears that the ICC grants more protective measures to the particularly vulnerable category of victims of sexual violence. This might demonstrate that when drafting the Rome Statute, the States parties had the intent of providing these victims with a specific regime, going even further in the protective rights conferred to victims than those that may exist at the domestic level.

3. Limits on manner and length of questioning

The last special evidentiary rule that has been recognized both at the national level in Canada and at the international level before the ICC is that of setting down limits in the conduct of the cross-examination. The ICC RPE impose a duty on the Chambers of the Court to protect the victims by supervising the manner in which the prosecution and defence examine the witness.[54] As it was exemplified above with the quote from the Transcripts of the Kunarac case,[55] prosecutors in international trials have been reproach with going too far when cross-examining the victim-witness. Consequently, the ICC now has the obligation to ensure that the length and the manner of the questioning remain appropriate.

In Canada, such duty has not been imposed by the legislation, yet the case law does recognize that cross-examination techniques in sexual violence cases often abusively “seek to put the complainant on trial rather than the accused”[56] and “distort rather than enhance the search for the truth.”[57] For this reason, limitations have been introduced. First, the courts have to make sure that the complainants are not unduly harassed,[58] and second, is some circumstances, it is possible for a self-represented accused not to personally cross-examine where the witness is a complainant of certain prescribed sexual offences. “If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.”[59]

On this point, it seems that it is the Canadian legislation that emphasizes the vulnerability of victims of sexual violence and the necessity of more extensive measures to protect them. Yet it should be noted that this tool may not be necessary at the international level as it is very rare for the accused not to be represented by counsel during international proceedings.[60]

In the context of mass sexual violence, where rapes are often perpetrated multiple times by several offenders in a number of different ways, the more aggressive common law approach to the cross-examination of witnesses is unequivocally inappropriate in proceedings before the ICC. As counsels of the accused often come from all over the world, and thus either have a civil law or a common law background from which result different ways of handling the cross-examination of witnesses, it seems essential to establish a uniform approach to the cross-examination of victims of sexual violence, in order to protect victims from secondary victimization and ensure that they are willing to testify and establish the truth. This has been partially done by recognizing fundamental protective measures in the conduction of the proceedings, inspired by tools that often already exist at the domestic level.

However, because most civil law countries, including France, do not have a procedure that is comparable to that of the cross-examination of victims as witnesses, these types of protective measures are not being enforced in those countries. Yet, as it was pointed out in the introduction, with the adoption of the Rome Statute, the ICC has given victims a new way to participate in criminal trials.

Section 2: Victims as participants: Protection in participation

The new mode of involvement of victims as participants has been significantly influenced by civil law jurisdictions. For the first time in the history of international criminal justice, victims have procedural rights that allow them to be heard at all stages of the proceedings, regime that is common to all civilian countries (1). Even if they cannot trigger the prosecution itself, they now have the possibility to intervene in the context of a procedure already initiated by the Prosecutor, the Security Council, or a State Party. This new role, though not open to all victims of international offences, give rise to a number of protective measures for those allowed to appear in court, which include non-public (ex parte) or in-camera proceedings (2), confidentiality measures (3) and measures to avoid any face-to-face with the accused (4).

1. The common regime of victims as participants in criminal proceedings

Before the ICC and in French civil actions, victim participation is subject to a similar regime. The most fundamental common trait is that victims are officially recognized a right to participate in the proceedings. This is established by Article 68 (3) of the ICC Rome Statute:

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 and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.[61]

According to this Article, a victim may be authorized by the Court to express his or her views and concerns whenever his or her personal interests are involved, and this, at all stages of the proceedings, i.e. the preliminary phase, the trial and the appeal. This disposition is supplemented by more specific provisions, such as Article 15 (3) of the same statute, which authorizes victims to address representations to the Pre-Trial Chamber,[62] even before the initiation of the investigation, and Article 19 which allows them to submit observations to the Court when it is asked to rule on a question of jurisdiction or admissibility.[63] In a similar manner, the French Code of Criminal Procedure acknowledges that a civil party petition can be filed at any time, during the investigation[64] or even before the start of the prosecution.[65]  Victims also benefit from very developed participation rights, they may file pleadings and conclusions upon which the court must rule,[66] and they can express their views on all procedural questions, including on points concerning the merits of the case.[67]

This common participatory regime is however subjected to the same condition. According to the ICC jurisprudence, victims, in order to be allowed to participate in the proceedings, must “demonstrate why their interests are affected by the evidence or issue,”[68] and on a case-to-case basis, the court will decide whether to allow such participation or not. Similarly, in France, Article 2 of the Code of Criminal Procedure conditions the civil action of victims to the existence of a damage personally suffered by the victim and directly caused by the criminal offence.[69] Though the participation of victims is not absolute and is subject to some conditions, for the victims of sexual violence who get to exercise their participatory right, the ICC provides protective tools that are relevant to their situation and that can be compared to measures adopted in multiple courts.

2. Non-public (ex parte) or in-camera proceedings

As part of the protective measures adopted both at the international and at the domestic levels, in the ICC and in France respectively, victims-participants can benefit from non-public (ex parte) or in-camera proceedings. According to Article 68 (2) of the Rome Statute, together with Rule 87 (3)(e) of the ICC RPE and Regulation 94 (d) and (e) of the Regulations of the Registry,[70] any part of the proceedings can be held in camera, without any audience in the public gallery attending the court proceeding. In the case of victims of sexual violence, the Court will have the obligation to conduct any part of the proceedings in such a manner when their testimony implies the sexual acts they endured. In such circumstances, it would not even be necessary for the Prosecutor or the victims or their legal representatives to apply for such measures themselves. Yet in some circumstances, the Court has the possibility of ordering otherwise, particularly when the defence sets out reasons why the in camera protective measures should not be applied.

The French Code of Criminal Procedure similarly asserts the general rule that the trial should be held in public, unless its publicity would be dangerous for order or morality.[71] However, just as the ICC does, the French system recognizes that in the case of prosecutions of certain offences, including sexual violence, a hearing in camera is granted where the civil party victim, or one of the civil party victims, so requires. As a result, the victims do have to apply for the implementation of such protective measures, but once they have done so, they are granted as of right.[72] Victims of sexual violence do not always want to exclude the public or the press from the proceedings. Some victims, on the contrary, feel that they have no reason to be ashamed and want their story to be heard. According to Patricia Viseur-Sellers, the Legal Advisor on Gender-Related Crimes at the ICTY, “most witnesses request confidentiality…. Meanwhile, some women want to be identified and seen, not only by the defendant but also by the public.”[73] The options of protective measures available, such as in camera proceedings, should therefore be discussed with the victims before the trial to ensure that they can make an informed choice.

The possibility of non-public proceedings before the ICC may not have been adopted under the sole influence of civil law jurisdictions. Indeed, the Canadian Criminal Code also allows the partial or total exclusion of the public members during all or parts of the proceedings in certain circumstances, when “the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice.”[74] Though in those circumstances victims do not hold the role of participants, such measures are necessary whatever the role of the victims, at it ensures that they do not suffer from serious incursions of their privacy and dignity.

The parallels that can be drawn between the protective measures available at the ICC and in Canada as well as in France clearly show that in creating the international court and the Rome Statute, the drafters adapted the protectives measures that existed in every legal traditions to the different roles given to the victims before the ICC. This double influence can be further emphasized by looking at the confidentiality measures recognized to the victims as participants in France and at the ICC, that can nevertheless also be encountered in the Canadian legislation.

3. Confidentiality measures

Confidentiality measures are protective tools given to victims participating in criminal trials and aimed at their protection from the press and from the public. They include expunction, the use of pseudonym, and the non-disclosure to third parties.

According to Rule 87 (3)(a) of the ICC RPE and Regulation 94 (g) RegR, the Court has the power to order the redaction of all information of a witness or victim which could lead to his or her identification. This includes, among other things, the whereabouts and names of members of the family of the person concerned, but it could also mean the expunction of the entire statement of the witness or victim. In the Lubanga decision, the Appeals Chamber noted that:

Three of the most important considerations for an authorisation of non-disclosure of the identity of a witness pursuant to rule 81 (4) of the Rules of Procedure and Evidence; [are] the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why the Pre-Trial Chamber considered that the measure would not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.[75]

Such measures for victims of sexual violence will allow them to come forward and participate in the proceedings without having to fear of becoming social outcasts in their countries of residence. The withholding of the victims’ names and whereabouts protects them from the glare of the public, as well as from the risk of reprisal upon their return into their own community.

The idea behind the use of a pseudonym is similar as it also allows the protection of the identification of the victims. Its use is enabled by Rule 83 (3)(d) of the ICC RPE and Regulation 94 (a) RegR. Such protective measure has the advantage of allowing the different parties to question the victims or witnesses without the risk of accidentally using their real names.

The last type of confidentiality measure carried out by the ICC is that of the non-disclosure of information to a third party. The RPE state that the Prosecutor, the defence, and any other participant in the trial before the ICC can be ordered by the Court not to disclose the name or any other information which could lead to the identification of a witness or victim to a third party.[76] The measure demonstrations the ICC’s broad approach to confidentiality as it prohibits the disclosure of any identification details by participants in the proceedings to anyone who is not directly involved in the case at hand. This also includes prohibiting the public and the media from photographing, recording or sketching the victims of international conflicts.[77]

Confidentiality measures for victims of sexual violence were already granted before the establishment of the ICC. Indeed, during proceedings before the ICTY, victims felt the need to request such measures in order to respond to “a desire for privacy, a wish not to be publicly associated with the alleged sexual assaults upon his person and that of another.”[78] Indeed, many women that are victims of sexual violence come from cultures where sexual matters are not openly discussed, and even less in front of a public courtroom full of males.[79] But even in situations where the victims might not be facing such discriminations, crimes of sexual violence are very personal violations, and often carry long-term detrimental effects upon the survivors’ lives.

This justifies why similar measures have been adopted in France in order to preserve the identity of civil parties. The French Code of Criminal Procedure recognizes that in some criminal proceedings where the hearing of a victim is likely to engender her life or physical integrity, as well as those of the members of her family, the Court may authorize that the statements of this person be collected without her identity appearing in the record proceedings.[80] This general confidentiality right encompasses the non-disclosure of the identity of the victim, the use of a pseudonym as well as the non-disclosure to a third party. When this disposition is applied, the identity and address of the victim shall be recorded in a separate report of the minutes of the hearing and added into a file that is separate from that of the proceedings. Just as the ICC RPE do,[81] if, due to the circumstances in which the offence was committed or to the personality of the victim, the knowledge of his or her identity is essential to the exercise of the rights of the defence, the provisions of Article 706-58 are not applicable.[82] In addition, because of the particularity of these protective measures and the resulting reports, the possibility of testifying anonymously must be limited and reserved for situations where the victim may legitimately fear retaliation. The Code of Criminal Procedure further states that no conviction can be pronounced solely on the basis of a statement collected in accordance with those confidentiality measures.[83]

Confidentiality measures, just as the possibility of holding non-public or in camera proceedings, are not protective measures that exist only in civil law systems. In Canada, the measures that prohibit information that could identify victims or witnesses from being published are known as publications bans or “orders restricting publication”.[84] They are meant to acknowledge the vulnerability of sexual violence complainants and the sensitive nature of such offences.[85] The Canadian Criminal Code also provides a general right for victims to request the non-disclosure of their identity.[86] By prohibiting the disclosure, during the proceedings, of any information that could lead to the identification of the victim, the Code extends the protection of privacy even further.

Here again, it is possible to infer that even when the victim takes on the role of a participant in the proceedings before the ICC, the protective measures that are available do not find their source only in civil law systems but were also influenced by common law jurisdictions. It is true for non-public proceedings, confidentiality measures, but also for the protection from being confronted with the accused.

4. No face-to-face with the accused

The protective measures that are meant to avoid face-to-face confrontation with the accused during international criminal trials are provided for in Rule 87 (3)(c) of the ICC RPE and Regulations of the Registry, and enable the victims to participate through the use of technical means. One-way closed-circuit television[87] or videoconference[88] allow the victim’s participation from a room other than the courtroom itself. The participation of victims and their presentation of evidence through such special means is an automatic right for victims of sexual violence.[89] Though the parties to the proceedings, including the accused, will still be able to hear and see the victim on the television monitors in the courtroom, these measures can be applied together with other technical means that will cover her identity, such as face[90] or voice distortion,[91] in order to shelter the victim against potential retaliation and ensure the reduction of the risk of secondary victimization.

Similarly, the French Criminal Code also recognizes the possibility of using means of telecommunication during proceedings. The hearing of a person, as well as any confrontation between the parties, can be carried out in different geographical areas linked by telecommunication means.[92] In Canada, such protective measures are known as testimonial aids and are restricted to specific circumstances where the victim is a minor or is likely to have difficulty in communicating his or her evidence. For other victims, the Court may grant the right to testify outside of the courtroom or behind a screen upon application. These measures are the same as those enacted for the protection of victims as witnesses (section 1).

The ICC Statute establishes a clear distinction between the role of victims as witnesses and as participants. Victims become actors, subjects of the international criminal justice. This approach to victim participation, apparently largely drawn from civil law jurisdictions, seems to have also been influenced by the regime of common law countries as the protective measures available for victims in such circumstances are common to both legal traditions.

Conclusion

In light of this study of the Statute and the Rules of Procedure and Evidence and its comparison to internal legislation, it seems possible to conclude that the ICC’s constitutive and procedural instruments bring forth a high standard for the protection of victims, as witnesses and as participants, that probably exceed the protection tools available in some domestic jurisdictions. The protective measures offered by the ICC run throughout all the phases of the proceedings carried out before the court, from the investigative phase to the post-trial phase. Victims appearing as witnesses or as participants may, depending on their situation, be in need of protective and special measures. These measures are meant to safeguard some of the ICC’s most fundamental goals, that is, the safety, dignity and privacy, as well as the physical and psychological well-being of victims,[93] goals that are indispensable to maintain when the context involves conflict-based sexual violence.

Some of the protective tools are common to the two roles of victims, while some others are provided for mainly one or the other. With regard to the measures available for victim-witnesses during the process of cross-examination, it appears that they essentially derive from those available in common law jurisdiction. All of those discussed above can be found in the domestic legal system of Canada. Yet when looking at the measures meant to ensure the protection of victims as participants in international criminal proceedings, it appears that they could be derived both from common law and civil law legal traditions, which could lead to the conclusion that the protection of victims of sexual violence in such trials might have been influenced to a greater extent by common law jurisdictions.

In any case, the ICC can surely be praised for its considerable efforts to give a voice to victims of serious human rights abuses and to put them at the head of the international criminal justice system.[94] Nevertheless, although these provisions are progressive, it is important not to consider these measures as flawless and as fully protective of victims. Indeed, the comparative analysis above has shown that the provisions have limited effect as they sometimes apply to very limited circumstances, and it would be precipitate to come to the conclusion that the Court is able to guarantee absolute protection and ensure that secondary victimization or re-traumatization does not result from participation itself. Ensuring the continuous participation of victims of conflict-related sexual violence is essential to the development of international criminal justice, and as such, it is very important that their participation is guaranteed by enabling the use of measures and procedures that lessen the fear of retaliation of testifying, and that ensure the well-being of victims. Allowing the victims to participate in ICC proceedings not only emphasizes the importance of their contribution to the establishment of the truth, but it also ensures that the Court and the international community are fully aware of the trauma that they experienced.[95]

Further research might focus on the ways in which the international tools available for the protection of victims during criminal trials could be improved. It might be beneficial to develop special methods to notify victims about the participatory possibilities available before the ICC and the protective tools that go with them. In addition, as it was suggested by Anne-Marie de Brouwer, it would be interesting to develop guidelines that would formalize one uniform approach to the treatment of victims of conflict-related sexual violence in court. Such a document would set out the proper conduct that should be adopted by all parties to the proceedings when cases of sexual violence are concerned.

Future research, as well as the introduction of a formalized approach to the protection of victims, may also help to answer the question regarding the potential existence of international human rights of victims of sexual violence in criminal trials. As it was developed above, victims are presented with a certain number of rights when action as witnesses or participants before the ICC. Yet it was not established whether those rights could amount to international human rights of victims of sexual violence. If they did, the question would arise as to whether such rights are not likely to infringe the right of the accused to a fair and impartial trial, and thus violate the presumption of innocence recognized by the Rome Statute.[96] Could the ICC or another international body impose a general obligation to protect victim during criminal proceedings?

In addition, this comparative analysis took a very theoretical approach to the protective measures available in international criminal trials. It would be very significant to adopt a more prospective perspective and to look at examples and factual implementation and enforcement of these tools. For instance, a 2014 interview survey of victims who appeared before the ICC gave some numbers on the actual use of the protective measures established in the international criminal legal framework.[97] This study gathered 109 victims who testified in the Court’s first two trials,[98] and according to the immediate post-testimony survey findings, out of the 29 women witnesses interviewed, 85 % used any kind of protection, 82 % used facial distortion measures, 82 % used a pseudonym and 41 % requested to testify in closed session. Though the relatively widespread use of protective measures in those cases seems to highlight the perceived risks involved in testifying,[99] more studies of this type should be conducted in order to understand the strengths and weaknesses of the ICC protective tools and what could be improved. Following that same idea, those studies could adopt a feminist approach to find out which type of protective measures are more commonly used among women, and how the ICC could strengthen and expand its protective tools to ensure that victims of conflict-related sexual violence come forward and are not reluctant to give their testimony or to get involved as participants in international criminal proceedings.

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[1] Natacha Bracq, “Comparative Study on Victims’ Participation at the ICC and at Criminal Courts in Civil Law Countries” (2013) 2013:4 RevDH, online: < www.journals.openedition.org/revdh/316>.

[2] Office of Public Counsel for Victims (OPCV), Representing Victims before the International Criminal Court: A Manual for Legal Representatives, ICC, 2010, ICC-OPCV-MLR-001/10 at 58.

[3] Jonathan Doak, “The Victim and the Criminal Process: An Analysis of Recent Trends in Regional and International Tribunals” (2003) 23:1 Legal Studies 1 at 31.

[4] Sam Garkawe, “The Role and Rights of Victims at the Nuremberg International Military Tribunal” in Herbert R. Reginbogin & Christoph J. M. Safferling, eds, The Nuremberg Trials: International Criminal Law Since 1945 (Munich, Germany: K.G. Saur, 2006) 86.

[5] Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, IT/32/Rev.44 (2009), rule 85 (A).

[6] Gauthier De Beco, “Victim Participation in Proceedings Before the International Criminal Court: Resolving Contentious Issues” (2009) 3:1 HR&ILD 95 at 86.

[7] Christoph Safferling, International Criminal Procedure (Oxford, United Kingdom: Oxford University Press, 2012) print at 48.

[8] Fausto Pocar & Linda Carter, “The Challenge of Shaping Procedures in International Criminal Courts” in Linda Carter & Fausto Pocar, eds, International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems (Glos, United Kingdom: Edward Elgar, 2013) 1 at29.

[9] Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on Victims’ Participation (18 January 2008) (International Criminal Court) online: ICC .

[10] Benjamin Perrin, “Out of the Shadows: A Comparative Assessment of the Role of Victims at the International Criminal Court and in Canada” (2015) 93:2 CBR 459 at 460 online: .

[11] US Const amend VI.

[12] Mattox v United States, [1895] 156 U.S. 273.

[13] Criminal Procedure Rules (UK), 2014, r 24.4.

[14] Canadian Charter of Rights and Freedoms, s 11 (d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[15] Ley de Enjuiciamiento Criminal, 14 Septembre 1882, art 100.

[16] Codice di Procedura Penale, art 76.

[17] Strafprozeßordnung, ss 395-492.

[18] Code de Procédure Pénale, art 2. [C proc pén].

[19] Criminal Code, RSC 1985, c C-46, s 2.

[20] Supra note 18.

[21] Rules of Procedure and Evidence of the International Criminal Court, ICC-ASP/1/3, at 10, and Corr 1 (2002), UN Doc PCNICC/2000/2/Add.1 (2000) r 85 [ICC RPE].

[22] Ibid, r 89.

[23] United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UNGAOR, 40^th Sess, Supp No 53, UN Doc A/RES/40/34 (1985) art 4.

[24] Ibid, art 1.

[25] Roger S. Clark, The United Nations Crime Prevention and Criminal Justice Program: Formulation of Standards and Efforts at Their Implementation (Philadelphia: University of Pennsylvania Press, 1994) ch 7 at 189 print.

[26] Supra note 23 at art 6.

[27] Anne-Marie L.M. De Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTY (Antwerpen: Intersentia, 2005) ch 4 at 231.

[28] “Genocide Witnesses ‘Being Killed,’” BBC News (16 December 2003), online: .

[29] Supra note 27.

[30] Marie Imaculée Ingabire, “The Rape of Tutsi Women: A Weapon of the 1994 Genocide,” in Prosecutor v Mikaeli Muhimana, ICTR-95-1B-T, Filing (0174/3) (27 April 2004) at 6 (International Criminal Tribunal for Rwanda, Trial Chamber III) online: ICTR .

[31] Supra note 27.

[32] Supra note 27.

[33] Rome Statute of the International Criminal Court, UN Doc A/CONF 183/9; 37 ILM 1002 (1998); 2187 UNTS 90 art 68 [Rome Statute].

[34] Ibid.

[35] Canadian Victims Bill of Rights, SC 2015, c 13, s 2, s 9.

[36] C proc pén, art 81-1.

[37] Supra note 7 at 456.

[38] ICC RPE, r 70.

[39] Supra note 27.

[40] Prosecutor v Dragoljub Kunarac, IT-96-23-T and IT-96-23/1-T, Transcripts (25 April 2000) at 2235-2236 (ICTY) online: ICTY .

[41] Prosecutor v Dragoljub Kunarac, IT-96-23-T and IT-96-23/1-T, Transcripts (20 November 2000) at 6281 (ICTY) online: ICTY .

[42] Supra note 19, s 273.1 (2).

[43] R v O’Connor, [1995] 4 SCR 411 (SCC) (CanLII).

[44] Supra note 19, s 276.

[45] R v Mills, [1999] 3 SCR 668 (SCC) (CanLII).

[46] ICC RPE ss 70 (d) and 71.

[47] Benjamin Perrin, Victim Law: The Law of Victims of Crime in Canada (Toronto: Thomson Reuters, 2017) at 94 print.

[48] Prosecutor v Delalić, IT-96-21-T, Decision on the Prosecution’s Motion for Redaction of the Public Record (5 June 1997) at para 48 (ICTY).

[49] Fionnuala Ni Aolain, “Radical Rules: The Effects of Evidential and Procedural Rules on the Regulation of Sexual Violence in War” (1997) 60:3 Albany L Rev 883 at 889.

[50] Supra note 19, ss 486.2 (2), 486.2 (2.1) and 486.2 (3)(c).

[51] ICC RPE, r 87 (3)(c).

[52] Rome Statute, art 68 (2).

[53] Supra note 19, s 486.2 (2).

[54] ICC RPE, r 88 (5).

[55] Supra note 40.

[56] R v Shearing, 2002 SCC 58 at para 76, [2002] 3 SCR 33 (CanLII).

[57] Ibid.

[58] Ibid.

[59] Supra note 19, ss 486.3 (1)-(2).

[60] Nikola Hajdin, “Self-Representation Before the International Criminal Court: Safeguarding the Interests of Justice and Protecting Human Rights” (2016) (Lund, Sweden: RWI Research Paper) online: .

[61] Rome Statute, art 68 (3).

[62] Rome Statute, art 15 (3).

[63] Rome Statute, art 19.

[64] C proc pén, art 87.

[65] C proc pén, art 1.

[66] C proc pén, art 315.

[67] C proc pén, art 459.