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Univ. of San Diego School of Law

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Wednesday, September 16, 2009

Findlay on Recognizing a Victim Constituency in International Criminal Justice

Mark Findlay (Findlay University of Sydney-Institute of Criminology) has posted Activating a Victim Constituency in International Criminal Justice (International Journal of Transitional Justice, Vol. 3, No. 2, 2009) on SSRN.  Here is the abstract:
Those who would like to see the international criminal trial remain a retributive endeavor reflecting the conventional features and characteristics of domestic trials are concerned that enhancing victim constituency for the international trial process will endanger its limited potential success. Despite legalist assertions the ICC, and its prosecutor, have claimed more universalist justifications in the form of the court's potential to assisting in state reconstruction and peacemaking. Further, the ICC, and the international tribunals which precede it, have within their authorizing legislation growing recognition of victim interests, even if this remains largely outside the processes of trial decision making.

Today in many domestic criminal jurisdictions, the position and voice of the victim is receiving increasing attention and recognition, if only in terms or very selective participation. The imperative for victim inclusion has progressed into the procedures governing institutional international criminal justice.


This being said, the reality of global crime victimization and its terrible collective dimensions has found little practical trial recognition beyond the fragmentary and selective prosecution of genocide. Victim communities, and the prosecution of collective perpetration are not driving the unique jurisprudence of international criminal; law or trial procedure.

This paper argues that the nature of global crime, and the purposes of international criminal justice require a more victim-centered transformed trial process. Te nature of international criminal justice and the global crimes it confronts, presents a uniquely persuasive position for a victim constituency despite the challenging partiality of victim interests.

Such a transformation of justice constituency must be measured against the crucial importance of accountability as a indicator of trial fairness, and the protections of the accused which these require. Despite active efforts by the international criminal courts and tribunals to better balance victim interests at trial and pre-trial phases, the constrictions of adversarial justice relegate the victim voice to the witness role, and compensation considerations post sentence.

Along with accountability to a victim constituency, follows the pragmatic persuasion that with a heightened victim purchase over international criminal justice will flow greater legitimacy for this process across a wider range of communities which it is said to serve. The legitimacy that the satisfaction of victim interests offers should not be underestimated, or over calculated. The nature and direction of victim legitimation will be examined specifically in this paper against a range of challenges which might tend to compromise that legitimating process.

Our concluding discussion of 'communities of justice' argues rationalization above balance. In any criminal justice resolution there may be several victims or victim communities with different victim stories exercising different interests and values. A distillation of legitimate victim interests in such a contested environment will be a challenge for the transformed criminal trial. The identification and harmonization of legitimate victim interests is much more than uncritical concession to the self-interested expectations, beyond retributive justice and vengeance that victims enunciate.

The paper begins by confronting prevailing circumspection about why victims should be prioritized as the constituency for international criminal justice. The argument moves from the demands of legitimacy, on to the anticipation that through communities of justice a sharper victim focus will require that international criminal justice be more accountable. This is a theme that prevails throughout and will link our case for transformed criminal trial process to a new age of global governance. But first it is necessary to locate the paper's theoretical mission, against the perennial struggle between subjective and universalized analysis.
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