The Rights of Victims v. the Rights of the Accused

For too long victims have been neglected in international criminal law; with theadoption of the International Criminal Court (ICC) Statute they have, however,been granted a set of procedural rights that entitles them to some form of participationin international criminal proceedings. Arguably there is nothing prejudicialper se to the rights of the accused in allowing victims to participate in internationalcriminal proceedings. Unfortunately, however, the ambiguities of the ICC Statute,the lack of clarity as to the procedural model, and the absence of clear cut provisionsin the ICC Rules of Procedure and Evidence (RPE) have created a legal frameworkwhich is flawed with regard to the principle of legal certainty and, at least in thisrespect, clearly amounts to a violation of the rights of the accused. Against this background,the judges are solely responsible for finding the appropriate way to enablesome measure of victim participation consistent with the rights of the accused.According to the Statute, any balancing between these two competing interestsmust be premised on the primacy of the rights of the accused. The practice of ICCChambers, however, suggests that the judges are hesitant explicitly to recognize theprimacy of such rights. This reluctance may lead in some instances (e.g. the broaddefinition of victims; permission for the presentation of evidence by victims; theacceptance of the double status as victim and as witness; and so on) to weaken theprotection of the rights of the accused due to a mistaken interpretation of the rightof victims to obtain justice.