Development of the term since the establishment of the ICTs

Prior to the adoption of the definition of the term “victim” in Rule 85 there were proposals for a different definition then provided for by the ICTs. A wider definition was suggested, for example, by van Boven in his report to the UN intituled Basic Principles and Guidelines on the right to reparation for victims of gross violations of human rights and international humanitarian law325 _{and by Bassiouni in the “Final report of the Special}

Rapporteur”326 _{for the purpose of reparations.}327

Discussions regarding the role of victims did not take place in the preparation of the Rome Statute until the 1999 Paris Seminar. In Paris, another definition was proposed with regard to the elaboration of the RPE, which was close to the definition of van Boven.328

325 _{Doc. UN E/CN.4/1997/104 of January 16th 1997, Annex, compared to the ICTs Definitions this} definition is more clear in some points, it comprises collective victims and immediate family and dependents or other persons or groupsof persons closely connected with the direct victim and on the other hand is clearly restricted to the direct victim;

Another wide definition was proposed at the inter-sessional meeting held in Siracusa,

http://documents-dds- ny.un.org/doc/UNDOC/GEN/G97/101/71/pdf/G9710171.pdf?OpenElement.

326 _{E/CN.4/2000/62 of January 18}th _{2000, Annex : A person is “a victim” where, as a result of acts or} omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairment of that person’s fundamental legal rights. A “victim” may also be a dependant or a member of the immediate family or household of the direct victim as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm; this definition further contains different forms of “harm”

http://documents-dds-ny.un.org/doc/UNDOC/GEN/G00/102/36/pdf/G0010236.pdf?OpenElement. 327 _{As for a more detailed picture see Shelton, D. (2005). The UN Principles and Guidelines on Reparations:}

Context and Contents. Out of the ashes. K. De Feyter, S. Parmentier, M. Bossuyt and P. Lemmens. Antwerpen, Intersentia: 11-33. pp. 15 et seq.

328 _{See Doc. PCNICC/1999/WGRPE/INF/2, Annex I, Rule X (article 15) Definition of victim1:}

1. “Victim” means any person or group of persons 2 who individually or collectively, directly or indirectly, suffered harm as a result of crimes within the jurisdiction of the Court.

2. “Harm” includes physical or mental injury, emotional suffering, economic loss or substantial impairment of fundamental rights; http://documents-dds-

ny.un.org/doc/UNDOC/GEN/N99/203/37/pdf/N9920337.pdf?OpenElement.

from 31 January to 6 February 2000, it circulated at the request of Italy and the Netherlands.329

The definition of the notion of “victim” was the subject of a lengthy debate in the Working Group on June 14, based on Rule Q in Chapter 9 of the Mont Tremblant document and a proposal by several Arab states. During this debate, while a number of delegations expressed strong support for the definition in Rule Q, many delegations raised concerns regarding specific aspects of this definition. Subsequently the Coordinator, Silvia Fernández de Gurmendi, introduced a new version in the Coordinator’s text330 _on

June 20. The vast majority of states that spoke supported the Coordinator’s text as well- balanced and while several would have preferred a more detailed text and/or still had specific concerns, they appreciated that it would not be possible to achieve consensus on the wording of such a text. The final text adopted by the Working Group on June 29331

was in substance the same as the coordinator’s text with only grammatical changes, except for an amendment replacing “illegal entities” with “organizations or institutions.”332

329 _{PCNICC/2000/WGRPE/INF/1;Chapter 9 of the Mont Tremblant text; Rule Q: For the purpose of the} Statute and the rules of procedure and evidence: “Victims” means persons who, individually or

collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through conduct that constitutes a crime within the jurisdiction of the Court. The term “victim” also includes, where appropriate, 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. The term “victim” also includes, where appropriate, organizations or institutions that have been directly harmed.

330 _{See PCNICC/2000/WGRPE(2)/RT.4; http:/ / documents-dds-}

ny.un.org/ doc/ UNDOC/ GEN/ N00/ 485/ 41/ pdf/ N0048541.pdf?OpenElement. 331 _{Contained in document PCNICC/2000/WGRPE/L.9, http:/ / documents-dds-}

ny.un.org/ doc/ UNDOC/ LTD/ N00/ 502/ 96/ pdf/ N0050296.pdf?OpenElement.

332 _{Report from CICC Draft Report on the Fifth Session of the Preparatory Commission June 12-30, 2000} Coalition for an International Criminal Court July 24, 2000, at page 12.

The finalized draft text of June 2000 was adopted as draft Rule 85 and subsequently adopted in the Rome Statute in September 2002.333

In March 2001, the Council of the European Union adopted a framework decision on the standing of victims in criminal proceedings.

Rule 85 therefore represents a compromise from the lengthy discussions of the Preparatory Commissions.

334 _{Apart from this measure, a number of}

other international conventions were created in which the position of the victim was further strengthened.335

On 16 December 2005, the General Assembly of the UN adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.

336 _{This action by the General Assembly followed adoption of the Principles by the}

Commission on Human Rights on 19 April 2005. The Basic Principles and Guidelines are the result of more than 15 years of work by independent experts. They adopt a victim- oriented perspective and clarify the scope of the right to a remedy and outline what can be done to realize it.337

333 _{See ICC Doc. ICC-ASP/1/3, http://documents-dds-}

ny.un.org/doc/UNDOC/GEN/N02/603/35/pdf/N0260335.pdf?OpenElement. 334 _{See 2001/220/JHA at http://eur-}

lex.europa.eu/LexUriServ/site/en/oj/2001/l_082/l_08220010322en00010004.pdf.

335 _{See thereto more comprehensively Joutsen, Matti. The Internationalization of Victimology. in:} Festschrift für Hans Joachim Schneider, Kriminologie an der Schwelle zum 21. Jahrhundert, Berlin, Walter de Gruyter, 1998: pp. 353-367.

336 _{See General Assembly Resolution 60/147, http://www.ohchr.org/english/law/remedy.htm} 337 _{With regard to the definition of “victim” the Basic Principles state: “For purposes of the present}

document, victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm inintervening to assist victims in distress or to prevent victimization.”, see United Nations Document A/C.3/60/L.24 of 24 October 2005, Annex, V., 8.; http://documents-dds- ny.un.org/doc/UNDOC/LTD/N05/567/49/pdf/N0556749.pdf?OpenElement.