Procedural Justice? Victim Participation in International Criminal Proceedings
, by McGonigle Leyh, BrianneNote: Supplemental materials are not guaranteed with Rental or Used book purchases.
- ISBN: 9781780680200 | 1780680201
- Cover: Paperback
- Copyright: 9/2/2011
In early 2006, the Office of the High Commissioner for Human Rights called for more detailed research into the relevant international standards and national and international practices concerning the role of victims in criminal proceedings. In response to this call and the increased attention paid to victims at international criminal institutions, this study explores the role of victims in international criminal proceedings.
Brianne McGonigle Leyh is an assistant professor with Utrecht University's Netherlands Institute of Human Rights where she is an attorney specializing in transitional justice, human rights, victims' rights and international criminal law and procedure. She is an executive editor of the Netherlands Quarterly of Human Rights and is a senior counsel and co-director of the Netherlands Office of the Public International Law & Policy Group (PILPG), a global pro bono law firm providing legal assistance to states and non-state entities on a range of legal issues. Previously, Brianne has worked as co-counsel on a legal team representing civil parties before the Extraordinary Chambers in the Courts of Cambodia and has held a Visiting Professional position at the International Criminal Court's Office of Public Counsel for Victims. Before receiving her PhD in law from Utrecht University in 2011, she received her Bachelors degree (BA) in 2002 from Boston University, graduating magna cum laude with a self-crafted major in the study of international law and human rights. She received her Law degree (JD) in 2006 from American University's Washington College of Law, graduating cum laude, and one year later her Masters degree (MA) in International Affairs from American University's School of International Service.
Acknowledgments | p. vii |
List of Abbreviations | p. xvii |
Introduction | |
Introduction | p. 3 |
Victims and Criminal Justice | p. 3 |
International Criminal Trials | p. 9 |
Core Themes: The Link between Human Rights, International Criminal Justice and VictimsÆ Rights | p. 12 |
Fair Trial Standards | p. 13 |
VictimsÆ Procedural Rights | p. 18 |
Central Research Question | p. 21 |
Structure | p. 25 |
Aim and Methodology | p. 27 |
Conclusion | p. 30 |
Origins and Influence | |
Victims and Theories of Criminal Justice | p. 33 |
Introduction | p. 33 |
Distinctions between Civil Litigation and Criminal Law | p. 34 |
Traditional Theories of Criminal Justice: Where Do Victims Fit In? | p. 36 |
Retributivism | p. 37 |
Utilitarianism | p. 41 |
Reforming Criminal Justice Institutions | p. 44 |
VictimsÆ Interests: What Do Victims Want? | p. 47 |
Restorativism | p. 51 |
Mixed Theories of Criminal Justice | p. 57 |
Criminal Justice Theories, Victims and International Criminal Justice | p. 59 |
Traditional Theories at the International Level | p. 60 |
Restorativism at the International Level | p. 61 |
Conclusion | p. 63 |
Domestic Criminal Justice and Victim Participation Models | p. 65 |
Introduction | p. 65 |
Comparing Traditions, Systems and Approaches | p. 67 |
Civil Law and Common Law Traditions | p. 70 |
The Inquisitorial Procedural Approach | p. 71 |
The Adversarial Procedural Approach | p. 74 |
Conceptualizing Participation | p. 76 |
Models of Victim Participation at the Domestic Level | p. 78 |
Complainant | p. 78 |
Victim-Witness | p. 79 |
Civil Party/Civil Complainant | p. 79 |
Private/Subsidiary/Auxiliary Prosecutor | p. 81 |
Impact Statement Provider | p. 84 |
Restorative Practices | p. 86 |
Reflections on Victim Participation: A Fundamental Divide Concerning the Role and Rights of Parties, Participants and Courts | p. 89 |
Conclusion | p. 91 |
International Developments and Victims of Crime | p. 93 |
Introduction | p. 93 |
UN General Assembly Declarations | p. 94 |
VictimsÆ Declaration | p. 95 |
Basic Principles | p. 98 |
Human Rights Bodies and VictimsÆ Rights | p. 104 |
Human Rights Committee | p. 105 |
European Court of Human Rights | p. 106 |
Inter-American Court of Human Rights | p. 111 |
Inter-American Commission on Human Rights | p. 115 |
African Court of Human and PeoplesÆ Rights | p. 116 |
African Commission on Human and PeoplesÆ Rights | p. 117 |
Other International Developments and Initiatives | p. 119 |
International Treaties, Resolutions and Principles | p. 119 |
European Initiatives | p. 120 |
A VictimsÆ Convention? | p. 125 |
A Shift in Emphasis? | p. 126 |
Conclusion | p. 128 |
Experimenting Laboratories | |
International Criminal Courts: A Wide Range of Practices | p. 133 |
Introduction | p. 133 |
Nuremberg and Tokyo Military Tribunals | p. 135 |
The Ad Hoc Tribunals | p. 137 |
Participation as Witnesses | p. 140 |
Participation as Amici Curiae | p. 141 |
Participation in the Form of Victim Impact Statements | p. 143 |
Calls for Greater Participation in Relation to Reparations | p. 145 |
Hybrid Courts | p. 148 |
Special Court for Sierra Leone | p. 148 |
East Timor: Special Panels for Serious Crimes | p. 151 |
UNMIK/EULEX War Crimes Panels in Kosovo | p. 156 |
Special Tribunal for Lebanon | p. 159 |
Conclusion | p. 163 |
Victim Participation and the Extraordinary Chambers in the Courts of Cambodia | p. 167 |
Introduction | p. 167 |
Negotiating History and Framework of the ECCC | p. 168 |
Victims and the ECCC | p. 173 |
Participation | p. 173 |
Reparation | p. 177 |
Protection | p. 178 |
Participation in Practice | p. 179 |
Application Process | p. 179 |
Pre-Trial Proceedings: Case 001 and 002 | p. 185 |
Trial Stage: Case 001, The Ditch Trial | p. 192 |
Appeals | p. 203 |
Procedural Issues Arising Out of Participation | p. 204 |
Disclosure Issues | p. 205 |
Evidentiary Issues | p. 205 |
Witnesses, Civil Parties and Dual Status | p. 206 |
Familiarization and Proofing | p. 207 |
Proposing Witnesses | p. 207 |
Questioning of Witnesses and Accused | p. 208 |
Civil Party Testimony | p. 212 |
Victim Assistance | p. 216 |
Legal Representation | p. 217 |
Legal Aid | p. 219 |
Civil Society Groups | p. 220 |
Conclusion | p. 221 |
Victim Participation at the International Criminal Court | p. 225 |
Introduction | p. 225 |
Negotiating History and Framework of the ICC | p. 226 |
Victims and the ICC | p. 232 |
Participation | p. 234 |
Reparation | p. 239 |
Protection | p. 239 |
Participation in Practice | p. 240 |
Application Process | p. 240 |
Article 68(3) Requirements | p. 257 |
Pre-Trial Stage | p. 261 |
Preliminary Examination Phase | p. 261 |
Investigation Phase | p. 267 |
Confirmation of Charges Phase | p. 273 |
Trial Stage | p. 291 |
Appeals | p. 303 |
Procedural Issues Arising Out of Participation | p. 307 |
Disclosure Issues | p. 308 |
Evidentiary Issues | p. 311 |
Witnesses, Civil Parties and Dual Status | p. 312 |
Familiarization and Proofing | p. 314 |
Proposing Witnesses | p. 315 |
Questioning Witnesses | p. 315 |
Victim Testimony | p. 321 |
Victim Assistance | p. 325 |
Legal Representation | p. 326 |
Legal Aid | p. 329 |
Civil Society Groups and Intermediaries | p. 330 |
Conclusions | p. 331 |
Conclusion | |
Conclusions and Recommendations | p. 339 |
Introduction | p. 339 |
Participation as a Human Rights Standard? | p. 339 |
Victim Participation in International Criminal Proceedings | p. 341 |
Uneasy Transplantation | p. 342 |
Areas of Concern Arising Out of Increased Participation: Fair Trial Rights of Accused | p. 346 |
What is the Proper Scope and Content of Victim Participation in International Criminal Proceedings? | p. 357 |
Give Sufficient Regard for the Core Objectives of the Criminal Process | p. 357 |
Reject the Balancing Consciousness and Recognize the Primacy of the Rights of Accused | p. 360 |
Focus on Services for Victims | p. 362 |
Embrace Pluralism | p. 363 |
Final Observations | p. 364 |
Samenvatting (Summary in Dutch) | p. 367 |
Bibliography | p. 385 |
Table of Cases | p. 409 |
Index | p. 439 |
Curriculum Vitae | p. 447 |
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