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This chapter considers the rights and duties of domestic-violence victims with respect to participating in the prosecution of domestic-violence cases. First, it revisits and expands upon the distinction briefly sketched in Chapter 5 between ‘reasons to do it yourself’ and ‘reasons to help someone else do it’ in order to identify the kinds of reasons which might ground a better understanding of the rights and duties of victims in the context of criminal prosecutions. Second, it considers the nature and scope of victims' rights to participate in domestic-violence prosecutions. Third, it considers whether victims ever have a duty to participate in domestic-violence prosecutions. Finally, the chapter argues that prosecutorial enforcement of this duty through legal mechanisms such as subpoena enforcement and contempt of court is unlikely ever to be justified, and even where justified, is self-defeating to the project of feminist prosecution defended in this book.

This chapter first examines the rationale for victim participation. The goals of victim participation include the reparative effect on victims, the contribution to ‘truth’, and balancing the fair trial rights of the accused. The chapter then outlines the key features of the Special Tribunal for Lebanon's (STL) victim regime; evaluates the STL regime against the goals of victim participation; and considers options for addressing the continuing tension between victim participation in theory and in practice.

This chapter studies the participation of victims in international criminal tribunals. Victim participation in international criminal trials has been uneven. Historically, prosecutors often have side-lined victim testimony in favour of documentary or physical evidence or assumed that justice for victims equated to retributive punishment of offenders. In recent decades, however, victims have become more active contributors in criminal investigations and proceedings. Victim participation at all stages of the Hissène Habré trial, for example, suggests a growing trend towards greater victim inclusion in international and national criminal trials. As such, it is incumbent on court personnel, as well as international justice researchers and practitioners, to better understand the diverse needs of victims and how they can be best supported before, during, and after trials.

International human rights tribunals, such as the Inter-American and the European Courts of Human Rights, have in recent years been engaged in overcoming obstacles to the individual's direct access to justice. On three recent occasions, for example, the Inter-American Court has pronounced on the incompatibility of self-amnesties with the relevant provisions of the American Convention on Human Rights.This evolution has disclosed both an institutional and a jurisprudential dimension. The former is materialized in the presence and participation of the victims in all stages of the international legal procedure. The second has recently culminated in holdings of the Inter-American Court to the effect that the right of access to justice has nowadays entered the domain of jus cogens.

This section draws on the earlier discussion of the promises and pitfalls of the ICC’s legal provisions, as well as the realities of practice at the ICC, to sketch out trial strategies and trial skills necessary for effective victim representation. The Pre-Trial Chambers are responsible for all judicial proceedings prior to, and including, the confirmation of the Prosecutor’s charges. Thus, the Pre-Trial Chamber oversees the overall integrity and fairness of the proceedings during the investigation phase of cases. The Rome Statute also vests the Pre-Trial Chamber with authority to review the Prosecutor’s decision not to proceed with an investigation. This review can occur on the Pre-Trial Chamber’s own motion, following the request of a state that had made an Article 14 referral, or after the Security Council refers the case pursuant to Article 13(b). Article 65 resolves this dispute by permitting guilty pleas.

This chapter explores and challenges the promise of victim participation before the International Criminal Court (ICC). Victims are a key reason for international criminal trials. Indeed, trials are said to be held because of the great numbers of victims the crimes have created. Perpetrators are prosecuted so victims can see justice being done. Yet when it comes to victims who want to claim their own rights before international criminal courts, the picture is less clear. International courts have struggled with how to deal with victims. Responses to victims’ participation in criminal trials have ranged from outright opposition, to reluctant acceptance, to apparent embrace. Even when there seems to be embrace, though, under the surface victims struggle to have their suffering and damage recognized. Victims are merely third-parties in the criminal trial. The charges are not their charges; they may not fit their damage. What is more, courts deal with victims collectively, denying them the individual attention their claims may demand. To make things worse, rather than applying the legal principle of accountability to victims' claims for damage, courts have a tendency to address victims' damage as a humanitarian problem that can be solved through humanitarian assistance.

Chapter 2 introduces the reader to the theory and practice of RJ. Drawing on a largely reparative conception of restorative practice, the chapter explores how dialogical and participatory responses to crime can help to repair the harms it causes. Both normative assumptions and empirical findings about RJ’s repairing benefits are examined, while the limitations of existing research methods are outlined. The chapter concludes by summarizing the potential benefits and pitfalls of using RJ for hate crime. In particular, the chapter highlights how the restorative process attempts to reduce levels of fear, anxiety, and anger by breaking down identity and cultural differences. The challenges of bringing vulnerable and marginalized victims together with dominant aggressive offenders are also highlighted.

Rule 85(a) defines the term “victims.” Full participation at the ICC requires victims to first obtain official ICC registration. The task of becoming a registered victim, however, is more challenging than it might first appear. In the past, applications prepared by nongovernmental organizations have contained errors, prompting the Court to dismiss them. Victim representatives must therefore take care that information be accurate and verified, and that the time, date, nature, and location of the alleged harm carefully correspond with the criminal conduct alleged in the charging document. In order to maximize the chances of securing participatory rights, then, it is advisable that the victim representative go beyond the minimum statutory requirements. Rule 50(1) requires the Office of the Prosecutor to inform potential victims and the Victims and Witnesses Unit of any decision to seek Pre-Trial Chamber authorization to initiate an investigation in accordance with Article 15(3).

This chapter examines how victim representation worked at the Extraordinary African Chambers (EAC) and how it differed from other international tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC and the EAC are the only ad hoc tribunals that have allowed victims participation. The reason for this is that both hybrid tribunals are rooted in the French civil law system, which awards civil party status to the victims. This status recognizes victims as a legal party to the proceedings. Overall, in the Hissène Habré case, the different roles amongst the national and international lawyers representing the victims were better defined than in the first trial in front of the ECCC. Similarly, the collaboration between the civil parties' lawyers and the Prosecution was better organized in the Habré trial than in front of the ECCC.

The drafting of legislation containing sweeping, optimistic preambles is a far more simple undertaking than lending substantive meaning to those codified ambitions. The ICC’s articles and rules may lead to the reasonable belief that victim participation will be both substantive and widespread. However, the ICC has not lived up to the high expectations it set for itself. Consider the number of victims in the Democratic Republic of the Congo, where between 1998 and 2004 more than three million people died from murder, starvation, and disease, and millions more were displaced. Despite these atrocities, as well as those committed elsewhere, the ICC in its first seven years received fewer than one thousand victim applications to participate in proceedings. Only a fraction of these victims have obtained the “status of victim.” The toll of administrative burdens foisted on this court of limited jurisdiction will undoubtedly dissuade many victims from joining the process.

This chapter focuses on the particular problem of victim satisfaction, considering reparations. One of the interesting features of the Extraordinary African Chambers (EAC) is that its victim participation scheme allows individual victims of crime to submit claims for reparations. The promise that reparations can be delivered through international criminal justice has now been around for more than two decades, but the first practice has only emerged in the last few years. The adjudication of the first reparations claims before the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) has been arduous and revealed disagreement within and outside these courts over the nature, extent, and purpose of reparations in an international criminal justice framework. Considerable uncertainty surrounds whether these reparations schemes can live up to expectations placed upon them. It is in this context that an examination and a comparative discussion of the EAC's approach to reparations might provide some fruitful insights.

Overview: Focusing on two in-depth case studies (Khmer Institute of Democracy (KID) and the Center for Social Development), the next two chapters unpack the genealogies of these intermediary outreach non-governmental organizations (NGOs) and the institutional practices that laid a basis for their specific Khmer Rouge Tribunal outreach activities. This history, as well as the background and vision of the NGO leaders, is critical to understanding how, in the interstices of the transitional justice assemblage, these NGOs “translated” global justice in complicated, uneven, and creative ways often by using simplification and vernacularization, including the use of Buddhist concepts. More detailed: Chapter 2, “Time,” picks up this line discussion by looking at the history of KID and how the booklet was linked to the NGO’s earlier aims and practices. By exploring the creation and use of this booklet, the chapter also explores different “vortices” or whirlpools of movement that, if affected by the force of the “global justice,” are also informed by other contextual factors and are combustive in the sense of generating acts of imagination. By focusing on an NGO and particular individuals who played a direct or indirect role in the creation of the booklet, this chapter foregrounds lived experience and interstitiality, thus seeking to go beyond the global-local binary in different ways.

Whatever one may say about the impact of international justice and international trials when it comes to deterring future perpetrators of atrocity crimes, one of the clear benefits of such proceedings is the possibility of creating a (relatively) neutral, and reliable, historic record. Indeed, victims agree that making such a record available to future generations is a prime motivator of victim participation. Such a record makes it more difficult for those accused to create fictionalized, self-serving accounts of what occurred. A proper understanding of the historic events, and even public outrage over the conduct that often took place in the public’s name, can replace the twin dangers of complacency and resentment toward victims. Substitutes for trial such as truth commissions and state-sponsored panels may help address some concerns of victims, but they also permit the state to potentially whitewash events, and fail to affix blame, create accountability or punish perpetrators.

In Chapter 8, “Normativity,” I follow this line of discussion but focus on the understandings of less educated Cambodian civil parties, including rural villagers. The chapter focuses, in particular, on everyday understandings of “return,” which inform transactions with beings ranging from patrons to family members and the spirits of the dead. For many Cambodians, the court provided an opportunity to fulfill their obligations to significant others. Not doing so might lead to a rupturing and disordering of their social world, including angering the dead who might afflict a relative in response. The chapter also explores civil parties’ views of Duch as relations with the defense became increasingly tense.