Victims are frequently brought into public debates about criminal justice policies. This occurs in domestic systems (such as recent changes to Canada’s prostitution laws) and in international criminal justice (such as ongoing debates about the role of victims in trials at the International Criminal Court). Victims are sometimes treated as having moral authority to demand particular policies. However, many experts and policymakers believe that victims’ perspectives should be heavily discounted. They often assume that victims lack generalizable knowledge, and that their desire for vengeance or compensation will lead to unfair judgments or bad policies. Victims therefore tend to be treated in one of two ways – either as privileged spokespersons for justice, or as people who deserve our sympathy but whose views on justice policies should be largely ignored.
I’m currently writing a paper on how researchers and policymakers should listen to and engage victims. Some of the most helpful thoughts that I’ve encountered on the topic come from Judith Shklar’s 1990 book The Faces of Injustice (originally a Storrs Lecture at Yale Law School). I’ll return to those shortly. But first, a word on “victims.”
The term, “victims,” is a loaded one. For some, it is associated with powerlessness or pity and should never be used. While I agree that those negative connotations often exist, I think “victim” is an important social role, and one that should be made empowering rather than stigmatized. After all, most of us will be victims of injustice at some point. To be considered a victim can mean that certain people, or society at large, owe a debt to us for egregious actions against us. Many of the participants in my focus group research in Kenya and Uganda, who had all suffered great violence or injustice, considered themselves “victims,” and saw it as an accurate and somewhat desirable label because of the social obligations it acknowledges. (For some of my reflections on victim participation and the International Criminal Court, see here and here.) Like them, I think it’s important to acknowledge the possibility that victim status is morally signifiant and politically actionable, while at the same time not suggesting that it is the entirety of people’s identity.
In her book, Shklar argues that citizens and political theorists ought to pay serious attention to victims’ perspectives on injustice. She claims that victims’ “sense of injustice” can provide a necessary corrective to existing theories, laws and institutions of justice. She clarifies that our conventional understanding of justice, or “normal justice,” is a “body of rules and basic principles governing the distribution of benefits and burdens within a community, and it demands the establishment of effective and impartial institutions to guarantee the enforcement of these basic rules and principles” (p. 17). This rule-bound, generalized approach is necessary for justice to be institutionalized as laws and organizational practices. But as a result, normal justice frequently has blind spots, gaps and unintended consequences.
A couple weeks ago I defended my PhD dissertation – Justice and Inclusion in Global Politics: Victim Representation and the International Criminal Court – before the eminent panel of Richard Price and Mark Warren (my co-supervisors), Michael Byers (committee member), UBC examiners Erin Baines and James Stewart, and external examiner Jan Aart Scholte. It was a pleasure to discuss my research with this group, and to address their incisive and thought-provoking questions. And it was a pleasure to be done!
To give you a sense of my relief to be completed my PhD, see as exhibits the following two pictures.
#1: November 20, uploading doctoral dissertation with last ounce of strength.
#2: January 13, outside UBC Faculty of Graduate Studies, dissertation defended and ready to celebrate with Elin.
This post, first published on Justice in Conflict on December 10, 2014, was co-written with Stephen Smith Cody (Director of the Atrocity Response Program at the University of California, Berkeley School of Law) and Susana SáCouto (Director of the War Crimes Research Office (WCRO).
When the Assembly of States Parties convenes this week, members will select judges, finalize a budget, and debate new rules and regulations. Another topic sure to arise is the major reform of the Registry of the International Criminal Court (ICC). Such actions don’t make headlines, but they have serious implications for how the ICC operates and how it relates to one of its key constituencies, victims of crimes. We have several concerns about how proposed reforms of the Registry might impact victims’ opportunities to engage with and be heard by the ICC.
The Rome Statute gives victims the right to participate in judicial proceedings that affect their personal interests, so long as this does not violate fair trial processes or the rights of the accused. Victim participation, along with victims’ right to reparations and opportunities to receive assistance and rehabilitation from the Trust Fund for Victims (TFV), can enable the ICC to engage victims and promote justice for them beyond the courtrooms of The Hague.
Victims’ opportunities to participate have of course been shaped by judicial decisions. (For several reports and comments on these developments, see the end of this post.) They are also affected by the Registry’s policies, and so the major institutional reform of the Registry – known as the “ReVision Project” – may have significant implications for victim participation. (Registrar Herman von Hebel has discussed this major restructuring, and FIDH has issued a thoughtful letter in response.) While we can find no public document outlining the ReVision proposals, Registry officials have provided an overview to some civil society actors. Among other proposed reforms, the overview suggests that victim participation will be streamlined by merging two current offices (the Victims Participation and Reparations Section, or VPRS, and the Office of Public Counsel for Victims, or OPCV) into a single Victims Office, and legal representation for victims would come entirely or partly from within this office.
We wholeheartedly support efforts to make victim participation more efficient and effective. However, we are concerned that this reform may not take sufficient account of victims’ actual engagement with their representatives and Court officials or their own views on legal participation. As researchers working on different projects related to victim participation, we have examined these issues from empirical as well as doctrinal perspectives. Drawing on in-depth interviews with Court staff, victims’ legal representatives, and hundreds of victims in four ICC situation countries, we have several observations that might inform debates around victim engagement in general, and legal participation in particular.
Victim participation requires ongoing dialogue between the Court and victims.
Recognition of victims’ experiences and suffering requires contact and conversations with victims. This dialogue should enable victims to learn about the ICC, their right to participate, and details of judicial processes that concern them. It should also enable victims, when appropriate, to put forward their opinions, concerns, and interests.
We agree with the ReVision proposal to improve the coherence of the Court’s communication with victims, but we would emphasize that this engagement must be ongoing. Judicial processes and victims’ situations evolve, and so must opportunities for victims to become informed and to express their views. Victim representatives must be able to provide victims with up-to-date information, solicit victims’ views, and advance them through appropriate judicial and non-judicial channels.
One common complaint that we have heard from victims is that they do not know what the Court is doing on matters that concern them, such as the status of their application to participate, the timing of trials, or the opportunity to receive reparations. “The most important thing is that we want somebody from the Court to come here so that we can interact with them,” said one Ugandan victim (interviewed by Cody as part of a multi-country study of victim interactions with the ICC).
It is important that ICC staff and representatives create systems to disseminate information on judicial proceedings and other court-related activities on a regular basis. Doing so may require the Court to provide communication devices, such as radios or mobile phones, to representatives in affected communities and develop protocols for responding to victims’ concerns in a timely manner.
Victims’ representatives should be aware of potential insecurities, including the possibility for retaliation against victim participants. Representatives should also be able to help victims get attention from the Victim Witness Unit (VWU) should they be facing serious security and health threats, particularly if these arise from being victim participants.
In addition, representatives should be aware of the material needs of victims, and should help victims understand what assistance the Court can and cannot provide. In most cases, ICC staff who interact with victims should have a high level of cultural knowledge, training in working with survivors of violence, and experience working with vulnerable populations in the region. They should be able to speak of the work and mandate of the TFV, as well as the Court’s reparations process, while being careful not to unduly inflate victims’ expectations about reparations and assistance.
Victim participation requires independent representation.
The ICC should establish processes to ensure the effective coordination of victim-related services across all sectors of the ICC, and, where appropriate, combine efforts to utilize common systems and mediate costs and any potential risks to victims. We support some of the ReVision Project’s recommendations to achieve these ends.
However, the coordination of victim-related services and integration of court outreach and support must not compromise the independence of victims’ legal counsel, and we are concerned that eliminating external legal representatives altogether might do just that. It is important for victims’ representatives to act on behalf of victims, and thus to act and be seen to be acting independently of other constituencies or institutional imperatives. The Court must, therefore, preserve the autonomy of victims’ representatives’ vis-à-vis other sections of the Court in order to insulate representatives as much as possible from institutional pressures or tensions at the Court.
On May 22, U.S. Ambassador Samantha Power asked Qusai Zakariya of Syria to stand up in the gallery of the United Nations Security Council. Ambassador Power was in the midst of arguing for a draft resolution to refer the Syrian conflict to the International Criminal Court. She had to justify a resolution that some – including Ambassador Power herself in the past – had suggested could undermine a peace deal, and that was doomed to be vetoed by China and Russia. (Others have commented on the speech and the U.S. strategy, here and here.) Mr. Zakariya, a victim of a chemical attack, would be part of that justification.
Several scholars have written about how different actors make assertions about victims of international crimes in order to promote their aims or authority. Among others, Kendall and Nouwen argue that “the Victims” is an abstract category that justifies international criminal justice and displaces the voices of actual victims; Sagan has claimed that African war criminals and victims are discursive subjects integral to the project of cosmopolitan liberal justice; and Dixon and I argued that victims are central to claims about legal, expert and moral authority. So it is interesting to look closely at the rhetorical deployment of Mr. Zakariya.
Ambassador Power has a longstanding activist bent toward preventing or punishing those responsible for mass atrocities, and picks up those themes here. She references the need to hold perpetrators of mass violence accountable, and notes the unfairness of ICC action in eight African countries but not Syria. She speaks of thousands of Syrian torture victims. In her finale she calls for retribution by citing the ancient Greek philosopher Solon, who apparently claimed “Those who are not wronged, no less than those who are wronged, must exert themselves to punish the wrongdoers.” But the largest section of her speech referred to Mr. Zakariya and other victims. Here is an excerpt:
In 1865, David Reesor rose in the Legislative Council of Upper Canada to argue that if the prime minister was granted the power to appoint senators he would “deluge this House with party tools.” Unfortunately, Canada’s founders did not heed his warning, and a 150-year flood began. Liberal leader Justin Trudeau made the right move this week by partially damming the deluge of partisanship in the Red Chamber.
Admittedly, Trudeau’s policy execution left much to be desired. Senators themselves were caught off guard and confused by the change. Some were supportive, others dismayed. It’s still not clear how committee memberships and research budgets will be distributed to these newly “independent” senators.
But with the move, Trudeau highlighted the partisanship and patronage that has delegitimized the Senate and undermined its democratic role. When we say the Senate should be a “chamber of sober second thought,” we mean that it can bring to bear expertise and viewpoints that differ from those forged under the conditions of party strife. But today, even when senators do their job well, we are suspicious of their motives. And when they are shown to be party shills and fundraisers, meeting in the Prime Minister’s Office to accept payouts and talking points, our cynicism is justified.
Electioneering machines and sober second thought
By proposing that senators should be selected by a “non-partisan public process,” Trudeau challenged the conventional wisdom that our only alternatives to Senate dysfunction are to abolish the chamber or elect senators the same way we elect MPs. While he did not say much about what a non-partisan selection process might look like, it’s worth exploring the options. Before doing so, let’s consider some of the reasons why a non-partisan Senate is desirable.
First published on Justice in Conflict on November 22, 2013.
While the relationship between the International Criminal Court (ICC) and African states looms large over the current meeting of the Assembly of States Parties (ASP), victims’ issues will also receive a great deal of attention. Victims and affected communities will be the focus of a plenary discussion today and side-events will tackle victims’ legal participation, the external review of the Trust Fund for Victims, and justice for victims in Kenya. ASP members and civil society groups want the ICC to improve its policies on victims’ matters such as participation, reparations and engagement with affected communities. Academics, too, have been weighing in.
In this post I will mention a few of the issues raised in recent publications, focusing on concerns about victim participation. Academics and civil society organizations tend to want more extensive participation, which will likely require more resources. However, several legal officers from ASP member states have in recent months told me that their governments see victim participation as a money pit, capable of costing much and adding little to the Court’s core functions. To address these various concerns we need better assessments of the impact of victim participation.
Last week the illustrious, despised and devilishly playful Jacques Verges died. The French lawyer was notorious not only for the clients he defended but for the provocative tactics he used. Most recently, he had defended former Khmer Rouge head of state Khieu Samphan, now being tried at the Extraordinary Chambers in the Courts of Cambodia. I wrote about the ECCC in its early days for Macleans, The Walrus and the Radio Netherlands World Service. I was curious see whether Verges might challenge the authority and the narrative of the ECCC, as he had done in previous trials. I therefore secured a meeting at his Paris home in August, 2008. I had planned to write a magazine profile on Verges but never got around to it. I re-read the interview last week, and I continue to find his views on criminal trials to be interesting, provocative, and somewhat self-serving. He saw legal advocacy as profoundly creative and political, particularly if one casts off conventional views around the legitimacy of courts and the ability of criminal trials to establish the truth.
Before excerpting from that interview, here are a few details from Verges’ fascinating life. Those interested in more can turn to this superb profile by Stéphanie Giry, the very good documentary Terror’s Advocate and a great character sketch in Erna Paris’ Unhealed Wounds: France and the Klaus Barbie Affair. Verges was born in 1925 in Thailand to a French doctor and his Vietnamese wife. His father had to quit as French consul because of this interracial marriage, and Verges seems always to have had a love-hate relationship with France. He enjoyed attention from his countrymen, a refined life in Paris and the French tradition of subversive public intellectuals like Voltaire. (Verges died in a home that Voltatire once lived in.) Yet he spent much of his life attacking the country’s mores and defending some of its enemies.
Verges rose to fame in 1957 when he defended – and fell in love with – Djamila Bouhired, a young revolutionary with Algeria’s National Liberation Front. Bouhired was accused of planting a bomb in a milk bar in Algiers frequented by French civilians. Eleven people were killed. Verges did not try to prove that Bouhired was innocent or seek a reduced sentence. Instead he mounted what he called “la défense de la rupture” – to defend the accused by creating a rupture in the trial itself. He did so by challenging the legality and morality of the state that mounted the prosecution, through dramatic speeches to the courtroom and the news media. In Bouhired’s case he attacked the court as a puppet of French colonialism in Algeria. Bouhired was sentenced to death but Verges’ performance had made her a cause-célèbre. Facing a domestic and international outcry, the court stayed her execution. When Algeria became independent in 1962 she was released and proclaimed a national hero. Bouhired and Verges together advocated for anticolonial causes, met with Mao Zedong in China, and married in 1965.
In 1970, Verges told his wife and his colleagues that he was going to Spain, and then he disappeared for eight years. He has referred to this phase, mysteriously, as when he stepped “into the looking glass.” Theories abound concerning his whereabouts: in Cambodia under the Khmer Rouge (I think unlikely), in Palestinian militant training camps, perhaps living invisibly in Paris, etc. When I asked when he would reveal the truth of those years, Verges said “perhaps as a last testament.” He added with a laugh, “But for now I am in very good health.”