Victim Participation at the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia: A Feminist Project?

Under the Rome Statute establishing the International Criminal Court (ICC), victims of the world’s most serious crimes were given unprecedented rights to participate in proceedings before the Court. Nearly a decade later, a similar scheme was established to allow victims to participate in proceedings before the Extraordinary Chambers in the Courts of Cambodia (ECCC), a court created to prosecute atrocities committed by Khmer Rouge leaders. Although there are some differences in how the schemes work at each of these tribunals, both allow victims to participate in criminal proceedings independent of their role as witnesses. Advocates of victim participation had high expectations that these new schemes would allow victims to tell their story in a way they were unable to do as victim-witnesses before the ad hoc International Criminal Tribunals for the former Yugoslav and Rwanda, where victims’ voices were often unheard or only partially heard because of the need to narrowly define what happened to them in line with the rules of evidence and the legal definition of the crimes with which the accused were charged. This paper explores whether this novel victim participation scheme, as implemented by the ICC and ECCC thus far, has actually allowed for greater recognition of victims’ voices and experiences than was possible in proceedings before their predecessor tribunals. The paper begins with a brief discussion of the significance of “visibility” as a feminist goal. From there, it describes the victim participation schemes at the ICC and ECCC and how victim participants, particularly survivors of gender-based violence, have fared under these schemes. Although the ICC and ECCC have only heard a limited number of cases, the history of participation before these tribunals thus far suggests that victim participants face some of the very same limitations victim-witnesses encountered at the ad hoc tribunals, particularly in cases against senior leaders and those most responsible for serious international crimes, the focus of ICC and ECCC prosecutions today. In the final section, the paper considers the implications of this conclusion on the feminist goal of visibility and, more generally, on the larger question of whether alternatives to direct participation in proceedings might be as, if not better, suited to achieve this goal.