Methodological Approach

In order to discuss the research questions and when examining the above-listed sources, it has been followed a legal research methodology implemented as follows.

First, a thorough analysis of the international instruments that constitute the law applicable by international and hybrid criminal courts at which victims may exercise one or more dimensions of their status. Under the interpretation provisions of the Vienna Convention on the Law of Treaties, which have been applied by international and hybrid criminal courts,22 _{the legal analysis of the}

provisions in this thesis pays attention to: i) the provision wording; ii) the object and purpose of the instrument in question; iii) a systematic and contextual reading of the provision; and/or iv) a survey of the legislative history (travaux préparatoires) that led to the adoption of the provision in question.23

22 _{See, e.g., Situation in the Democratic Republic of Congo (ICC-01/04-168), Judgment on the} Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, Appeals Chamber, 13 July 2006, para. 33.

23 _{Vienna Convention on the Law of Treaties, article 31 (1) (‘A treaty shall be interpreted in good} faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’), (2) (3) and article 32 (2) (referring to the supplementary means of interpretation, including the preparatory work of a treaty). For rules and principles of treaty interpretation specifically relevant to international and hybrid criminal courts see Schabas (2006) 80-84; Schabas (2010) 387-388; Elizabeth Salmón Gárate, Introducción al Derecho Internacional Humantario (IDEHPUCP/CICR 2004) 42-47.

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Second, the examination of the applicable law takes into account painstakingly and critically how it has been interpreted and applied by the competent international or hybrid criminal court. Emphasis is given to how and to what extent the judicial reasoning has shaped the victims’ status. Moreover, it is closely analyzed how victims’ status has been enhanced or weakened by the jurisprudence of international and hybrid criminal courts and also, where relevant, how these jurisprudential outcomes have impacted on the efficiency of the proceedings and the accused’s right to a fair and impartial trial/proceedings. Furthermore, where relevant, it is also considered whether the Judges/Chambers of the international and hybrid criminal courts issued their decisions or judgments within the limits of applicable law or whether they implemented an excessively ‘creative’ or restrictive interpretation. Submissions by victims’ legal representatives are in some specific instances also examined to see their impact on the respective jurisprudential outcomes.

Third, the analysis of both the law applicable by international and hybrid criminal courts and their case law is substantially complemented by using and discussing relevant academic literature commenting on both sources. This academic literature is used either to back up the thesis argumentation or, where pertinent, this literature is also criticized. In addition, some of the academic literature has been employed as a very important source of systematized case law from international and hybrid criminal courts.24

Fourth, jurisprudential contributions from international human rights monitoring bodies, in particular the IACtHR and the ECtHR, are examined especially when they have been cited/referred to by international and hybrid criminal courts to give content to some aspects of the dimensions of the victims’ status and how these work.

Fifth, analysis of some empirical evidence, in particular, comments/opinions from victims, found in academic literature, are integrated as part of the argumentation to especially analyze jurisprudential outcomes.

Sixth, the above-detailed methodological guidelines are employed to examine specific aspects of the victims’ status as witnesses, victim participants/civil parties and reparations claimants in a particular international or hybrid criminal court or a subgroup of them, put together when they are quite similar in a particular dimension of the victims’ status. In particular, the ICTY, the ICTR and the SCSL are always grouped together due to the identical

24 _{In this regard, inter alia, the following material has been particularly useful: McGonigle Leyh} (2011); Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia 2005) 227-313, 383-424.

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situation of the victims’ status in their dimensions at these courts. After having examined the victims’ status in a specific international or hybrid criminal court or a subgroup of them, some comparisons with the other international and hybrid criminal courts are made to have a better approach to the similarities and differences among these institutions as well as to identify some trends concerning victims’ status at international and hybrid criminal courts.

Seventh, although the thesis research questions concern the victims’ status as witnesses, victim participants/civil parties and reparations claimants at international and hybrid criminal courts, as previously said, three national systems have been considered for illustrative and, to some extent and where relevant, comparative purposes. Those national systems, as mentioned, are the English and the American systems (adversarial systems) and the French system (inquisitorial system). The general presentation of national systems is based on the fact that, like international and hybrid criminal courts, at these systems, victims also have a status in criminal proceedings. The selection of those three systems correspond to their high influence not only on the procedural/evidence law of the international and hybrid criminal courts and, in particular, victims’ status as witnesses, victim participants/civil parties and reparations claimants, but also on criminal proceedings and victims’ status in other national systems worldwide.