Friday, November 18, 2011

Victim Participation at the ICC and ECCC: A Feminist Project?

As we’ve blogged about before (here, here and here), victims of the world’s most serious crimes were given unprecedented rights to participate in proceedings before the International Criminal Court (ICC) (at right; photo credit) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) (at left). 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. Indeed, while there is wide recognition that the ad hoc tribunals have made signifcant strides in the investigation and prosecution of rape and other forms of sexual violence, feminist scholars and activists have questioned how much of women’s experiences have actually been captured by those tribunals. In a recent paper entitled Victim Participation at the ICC and ECCC: A Feminist Project?, I explore whether the novel victim participation schemes at the ICC and ECCC, as implemented thus far, have allowed for greater visibility of women’s experiences than was possible in proceedings before their predecessor tribunals.
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 paper, I explore 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. My point is not to suggest that victim participation ought to be abandoned, but rather that we should acknowledge the limits of what can be achieved through these schemes and engage in a broader discourse about alternatives that might help us advance the project of “surfacing” the myriad ways in which sexual violence and inequality are experienced by women in the context of war, mass violence, or repression.
While a full exploration of possible alternatives is beyond the scope of the paper, I suggest that the establishment and operation of the ICC and ECCC has opened up space for the emergence of other mechanisms that offer a unique opportunity to further this goal. For instance, both the ICC and ECCC have expanded their victim-related activities to include non-judicial programs designed to assist victims. Because they are not part of the formal trial process, participation in these programs might enable women to tell their stories unfettered by the limitations inherent in criminal proceedings. At the same time, because these programs were created by the ICC and ECCC, they remain connected to the work of those courts, meaning they may have stronger moral condemnation power than mechanisms, such as truth commissions, which operate independently of the criminal justice process. Although these programs are currently underfunded and underdeveloped, I suggest that they are worth exploring, as they hold out the possibility of complementing the inevitably limited narratives which emerge through criminal proceedings and bringing us closer to making the more complex and subtle narratives of women’s experiences “fully visible.”

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