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3 Int'l Crim. L. Rev. 345 (2003)
Victims and the International Criminal Court: Three Major Issues

handle is hein.journals/intcrimlrb3 and id is 351 raw text is: International Criminal Law Review 3: 345-367, 2003.
© 2003 Koninklijke Brill NV Printed in the Netherlands.
Victims and the International Criminal Court: Three major
Abstract. The Statute of the permanent International Criminal Court (the ICC) agreed to
in Rome in 1998 contains many provisions that deal with the specific concerns and rights of
victims and survivors of the international crimes that the ICC will have jurisdiction over.
It consolidates the work of the two ad hoc international criminal Tribunals (the former
Yugoslavia and Rwanda) in this area, but also further enhances the role and rights of victims
in a number of innovative ways. These three international criminal Tribunals thus collectively
represent an important step forward in the recognition of the suffering and the position of
victims and survivors of international crimes. This article will examine three main issues in
relation to victims and the ICC. First, after identifying the protective measures for victims
allowed at the discretion of the international criminal Tribunal for the former Yugoslavia,
it will focus on the most controversial measure (which the ICC can also order) - the non-
disclosure to the defence of the identity of witnesses. Does this protective measure violate
a defendant's right to a fair trial? The Statute of the ICC also allows, for the first time in
international criminal justice, for the fight of victims to obtain their own legal representation,
subject to the discretion of the ICC. The second issue is how is this going to work in practice in
light of the fact that international crimes normally involve hundreds, if not thousands or even
tens of thousands, of victims? And finally, while the ICC Statute provides for the possibility
of reparations to victims, where will the money come from, and thus what are the chances of
victims actually being able to receive compensation?
I. Introduction
Benjamin Ferencz1 argues in the opening Chapter of a recent book edited
by Dinah Sheldon2 that there are five stages to the process of creating a more
* Sam Garkawe, Associate Professor, School of Law and Justice, Southern Cross Univer-
sity, NSW, Australia (E-mail: sgarkawe@scu.edu.au). This is an updated version of a paper
delivered on the 3 February 2003 by the author to the Australian Red Cross as part of its
International Humanitarian Law Lecture Series.
1 Benjamin Ferencz is a distinguished lawyer with a long career in international criminal
justice. In particular, at the age of 27 he was appointed as the Chief Prosecutor in probably the
largest murder trial in history - the Einsatzgruppen case (United States v. Ohlendorf et al., 4
CCL No. 10 Trials 411) where a total of 22 defendants were charged with the murder of over
one million people. This case was the ninth in a series of American trials at Nuremberg that
followed on from the work of the IMT.
2 Ferencz B, 'The Experience of Nuremberg', in Shelton D (ed.), International Crimes,
Peace and Human Rights: The Role of the International Criminal Court, Transnational
Publishers Inc., 2000.

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