Abstract
The first thing that must be underlined is the non-existence of an international concept of victim. On the contrary, there are almost as many definitions as categories of victims envisaged by international norms. The exception is constituted by victims of terrorism because no definition exists both in the system of the UN and in the regional systems.
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- 1.
Inside UN, there is no international norm defining victims of terrorism.
- 2.
In the European regional system only, the definition given by the Guidelines on the Protection of Victims of Terrorist Acts and adopted by the Committee of Ministers of the Council of Europe on 2 March 2005. In the American and in the African regional systems, no definition of victims of terrorism exists.
- 3.
It was adopted on 29 November 1985 by a General Assembly Resolution 40/34.
- 4.
Adopted on 29 November 1985 by General Assembly Resolution 40/34 it is based on Article 8 of the Universal Declaration of Human Rights, which states the right of everyone “to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
- 5.
This is the case of norms adopted by the Council of Europe and the European Union.
- 6.
There is a similar definition in the ICC Rules of Procedure and Evidence as well as in the Statute of this Court. They also envisage a special protection for victims in the procedures before the ICC.
- 7.
The third paragraph of this definition adds: “3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.”
- 8.
In the same way article 1 para. 1 of Recommendation (2006) 8 of the Committee of Ministers adopted on 14 June 2006. For the purpose of this recommendation, article 1 para. 1 states that: “Victim means a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, caused by acts or omissions that are in violation of the criminal law of a member state. The term victim also includes, where appropriate, the immediate family or dependants of the direct victim.”
- 9.
It would be also very helpful from the triple perspective of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. That is persons who have suffered harm (direct victims) as well as the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (both, indirect victims).
- 10.
Fernández Sola also underlines that this category of victims has already been protected by the Inter-American Court of Human Rgihts in the case of Nogueira de Carvalho et al. v. Brazil (I/A Court H.R., Case of Nogueira de Carvalho et al. v. Brazil. Preliminary Objections and Merits. Judgement of November 28, 2006, Series C No. 161). The concept of the European Court of Human Rights is more restrictive (see Chapter IV of the present work).
In this article, the author makes only refence to victims of enforced disappearance (cf. Fernández Sola (2008), 403).
- 11.
OJEC L 261 of 6 August 2004. This Directive was done on the basis of the principle of subsidiarity of Article 5 of European Union’s Treaty “since the objective of facilitating access to compensation to victims of crimes of cross-border situations cannot be sufficiently achieved by the Member States because of the cross-border elements and can therefore, by reason of the scale or effects of the action, be better achieved at Community level,…” (paragraph 15 of its preamble).
- 12.
The Council Directive has the advantage of binding all Member States of the EU. So, Member States of the EU that are not parties to the 1983 European Convention are, at least, bound in that way to compensate crime victims in cross-border situations.
- 13.
This obligation to compensate victims of violent crimes persists even if the offender cannot be prosecuted or punished, see article 2 para. 2.
- 14.
OJEC L 82 of 22 March 2001.
- 15.
It also contains a definition of “victim support organization”. That is: “a non-governmental organization, legally established in a Member State, whose support to victims of crime is provided free of charge and, conducted under appropriate conditions, complements the action of the State in this area” (article 1 lit. b). Some time later, on 29 April 2004, the Council Directive 2004/80/EC relating to compensation of victims was adopted, see note 36. This Directive is founded upon the principles of subsidiarity and beyond what is necessary in order to achieve that objective.”
- 16.
Point No. 18 of the Declaration.
- 17.
On Article 2 (b). The Draft is of 8 February 2010 and has been drawn up by the World Society of Victimology.
- 18.
Doc. E/CN.4/2005/L.10/Add.11. The resolution was adopted within the Commission on Human Rights by a recorded vote of 40 votes to none, with 13 abstentions. See A/RES/40/34, Annex, B. para. 18.
- 19.
A/RES/40/34, Annex, V.8.
- 20.
Ibid., Annex, V.8. So, in the same line that the definition given in General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted on 29 November 1985.
- 21.
Ibid. Annex, V.9.
- 22.
On this matter cf. Fernández de Casadevante Romani (2010), 373–378.
- 23.
ICJ, Arrest Warrant of 11April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 22. It also states that no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an “official” capacity, and those claimed to have been performed in a “private capacity”, or, for that matter, between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office. As known, in this case the arrest warrant concerned the Minister for Foreign Affairs of the Democratic Republic of the Congo—Mr. Yerodi—to whom the commission of several international crimes were attributed.
- 24.
Cf. ibid., para. 55, 22.
- 25.
That is the case, for example, of Article VI of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, of Article 17 of the Statute of the ICC, of Articles 5 and 7 of the 1984 UN Torture Convention and of Articles 8 and 9 of the Draft Code of Crimes Against the Peace and Security of Mankind.
- 26.
The Arrest Warrant refers to “various speeches inciting racial hatred” and to “particularly virulent remarks” allegedly made by the Minister for Foreign Affairs Mr. Yerodia during “public addresses reported by the media” on 4 August and 27 August 1998. These speeches “allegedly had the effect of inciting the population to attack Tutsi residents of Kinshasa: there were dragnet searches, manhunts (the Tutsi enemy) and lynchings. The speeches inciting racial hatred thus arc: said to have resulted in several hundred deaths, the internment of 7 Tutsis, summary executions, arbitrary arrests and unfair trials.” (Warrant of 11April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, paragraph 67, 28.)
- 27.
See Carnerero (2007); Esposito (2007); M. Cosnard, “Quelques observations sur les décisions de la Chambre des Lords du 25 Novembre 1998 et du 24 Mars 1999 dans l’affaire Pinochet”, RGDIP, 1999/2, 309 et seq.; Ch. Dominice, “Quelques observations sur l’immunité de juridiction pénale de l’ancien Chef d’Etat”, RGDIP, 1999/2, 298 et seq.
- 28.
The framework of the Extraordinary Chambers in the Courts of Cambodia allows for the victim to participate in the proceedings as a partie civile.
- 29.
Article 19 para. 3 states: “The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court”.
- 30.
About the ICC, see Carnerero (2011), 521 et seq. In extenso see O. Triffterer, Commentary on the Rome Statute of the International Criminal Court –Observers’ Notes, Article by Article-, 2008.
- 31.
So for example, Gozzi and Laborde (2005), 297 et seq.
- 32.
The Rules of Procedure and Evidence of the ICC is an instrument for the application of the ICC-Statute.
- 33.
Related to the protection of victims and witnesses and their participation in the proceedings (article 68), the reparations to victims (article 75) and to the Trust Fund that should be established for the benefit of victims of crimes and of families of such victims within the jurisdiction of the ICC (article 79). In respect of these articles see, for example, the commentaries of D. Donat-Cattin, “Article 68. Protection of victims and witnesses and their participation in the proceedings”, 1275 et seq.; “Article 75. Reparation to victims”, 1399 et seq.; M. Jennings, “Article 79. Trust Fund”, 1439 et seq., in: O. Triffterer, Commentary on the Rome Statute of the International Criminal Court –Observers’ Notes, Article by Article, 2008.
- 34.
In accordance with article 15 para. 3, which states: “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.” (emphasis is added).
- 35.
Article 12,4 of the Statute of the Special Tribunal for Lebanon establishes within the Registry a section for victims and witnesses (“Section III, Rights of the accused and victims”). It provides for the participation in the proceedings respecting the rights of the accused (cf. Article 17) and organizes their compensation (cf. Article 25). On the other hand, the rules of Procedure and Evidence of this Special Tribunal envisage the participation of victims and their protection (pursuant Article 28 of the Statute of this Special Tribunal).
- 36.
The reference to victims is precise: “in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence”. According to Rule 86: “A Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence”.
- 37.
According to Rule 87 para. 1: “Upon the motion of the Prosecutor or the defense or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure.”
- 38.
It is an exception with regard to the principle of public hearings of article 67 of the Statute.
- 39.
Rule 87 para. 3 states: “A Chamber may, on a motion or request under subrule 1, hold a hearing, which shall be conducted in camera, to determine whether to order measures to prevent the release to the public or press and information agencies, of the identity or the location of a victim, a witness or other person at risk on account of testimony given by a witness by ordering, inter alia: (a) that the name of the victim, witness or other person at risk on account of testimony given by a witness or any information which could lead to his or her identification, be expunged from the public records of the Chamber; (b) that the Prosecutor, the defense or any other participant in the proceedings be prohibited from disclosing such information to a third party; (c) that testimony be presented by 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; (d) that a pseudonym be used for a victim, a witness or other person at risk on account of testimony given by a witness; or (e) that a Chamber conducts part of its proceedings in camera”.
- 40.
See Rule 90.
- 41.
See Rule 91 para. 3.
- 42.
See Rule 92 para. 2.
- 43.
In this respect, see C. Jorda, “L’accès des victimes à la justice pénale internationale” and C. Tournaye, “L’apport des Tribunaux ad hoc pour la répression du terrorisme”, both in: SOS Attentats, see note 6, 416 et seq.
- 44.
It is, until today, the only international treaty at the general or universal level relating to a category of victims. The 1992 Declaration and the 2006 Convention, see note 4, contain the following catalogue of rights: right to justice (which includes the right to a prompt and effective judicial remedy); the right to know the truth regarding the circumstances of the enforced disappearance; the progress and results of the investigation and the fate of the disappeared person; the right of access to all information concerning the person deprived of liberty; the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons; and, at least, the right to obtain reparation and prompt, fair and adequate compensation.
- 45.
See note 10 of the first chapter of this book.
- 46.
It is the case of the UN Commission on Human Rights in relation to Resolution 2005/35 of 19 April 2005 containing the Basic Principles and Guidelines of the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Doc. E/CN.4/2005/L.10/Add.11).
- 47.
Para. 5 of the preamble. The same is true in the case of other international norms quoted by this Declaration like A/RES/43/173 of 9 December 1988 and the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, set forth in the Annex to the Economic and Social Council resolution 1989/65 of 24 May 1989, endorsed by the General Assembly in its resolution A/RES/44/162 of 15 December 1989 (cf. ibid., para. 10).
- 48.
Para. 5 of the preamble of the International Convention for the Protection of All Persons from Enforced Disappearance.
- 49.
According to article 7 para. 1 ICC-Statute: “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of International Law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under International Law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
- 50.
- 51.
Article 24 para. 1.
- 52.
In the opinion of N. Fernández Sola, this lack could also be covered by way of the third category of victims envisaged by the UN Declaration of 1985, that is, “persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.” In his opinion, this category could be helpful to protect persons, associations and groups engaged with human rights which become victims of attacks of forces or groups responsible for enforced disappearance, see Fernández Sola (2008), 403 et seq.
- 53.
For example, UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by General Assembly resolution 40/34 of 29 November 1985 or Resolution 2005/35 of 19 April 2005 containing the Basic Principles and Guidelines of the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Doc. E/CN.4/2005/L.10/Add.11).
- 54.
The Convention entered into force on 29 September 2003. The Protocol, on 25 December 2003.
- 55.
Specifying Article 3.d) that: “‘Child’ shall mean any person under eighteen years of age.”
- 56.
The Convention entered into force on the 1st February 2008.
- 57.
OJEU L 101, of 15 April 2011.
- 58.
According to which: “1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. 4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used. 5. When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking in human beings even if none of the means set forth in paragraph 1 has been used. 6. For the purpose of this Directive, ‘child’ shall mean any person below 18 years of age.”
- 59.
Council of Europe, Committee of Ministries-CM/Del/Dec(2005) 917.
- 60.
It only exists in the frame of the Council of Europe.
- 61.
See 71 et seq. of the present work.
- 62.
UNODOC (2011), p. 93, para. 375.
- 63.
Ibid. See also paragraphs 376–379.
- 64.
European Commission, COM(2011) 275/2.
- 65.
As noted by BERISTAIN, all crimes of terrorism are of a greater tragic gravity than similar crimes in the same genus (a terrorist murder is more serious than murder). For this reason, their victims deserve the name of macrovictims. (See Beristain (2004), p. 35). De este autor vid. también Victimología. Nueve palabras clave, Tirant lo Blanch, Valencia, 2000, y Transformación del Derecho Penal y la Criminología hacia la Victimología, ARA Editores, Perú, 2008.
- 66.
European Commission, Brussels 18.5.2011, SEC(2011) 275 final, 17.
- 67.
Article 18 says: “1. For the purposes of this Directive, the following categories of victims are considered to be vulnerable due to their personal characteristics: (a) Children; (b) Persons with disabilities. 2. For the purposes of this Directive, the following categories of victims are considered to be vulnerable due to the nature or type of crime to which they have fallen victim: (a) Victims of sexual violence; (b) Victims of human trafficking. 3. Member States shall ensure that all other victims receive a timely and individual assessment, in accordance with national procedures, to determine whether they are vulnerable, due to their personal characteristics or the circumstances or the type or nature of the crime, to secondary and repeat victimization or intimidation. 4. Member States shall ensure that all vulnerable victims as identified in paragraphs 1, 2 and 3, receive a timely and individual assessment, in accordance with national procedures, to determine which special measures as provided in Articles 21 and 22 they should benefit from. Such an assessment shall take into account the wishes of the vulnerable victim including where they do not wish to benefit from special measures. 5. The extent of the assessment may be adapted according to the severity of the crime and the degree of apparent harm suffered by the victim.”
- 68.
I say general character because it only envisages victims of crime. That is, of all crime.
- 69.
European Commission, Brussels 18.5.2011, SEC(2011) 275 final, 4.
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de Casadevante Romani, C.F. (2012). The International Categories of Victims. In: International Law of Victims. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-28140-2_2
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