‘The application of legal rules to all actual victims results in a narrowing, like a pyramid, of the victims that are considered “legally relevant”’.Footnote 1
1. Introduction
At its inception, the ICC was hailed as revolutionary for its victim-centered provisions. The pinnacle of these developments was Article 68(3) of the Rome Statute, which allowed victims to voice their views and concerns in ICC proceedings in their own right, rather than through their role as witnesses.Footnote 2 The ability of victims to express views and concerns before the ICC was understood to represent a shift towards a more victim-centered international criminal justice process, distinguishing the ICC from its predecessors, the ad hoc tribunals for the former Yugoslavia and Rwanda, which permitted victims to participate solely as witnesses.
The meaningfulness and effectiveness of the ICC’s victim participation scheme in practice has, however, been questioned.Footnote 3 One point of critique is the fact that not all victims of international crime are represented before the Court. This is problematic in light of the broad claims that international criminal justice institutions make to represent and respond to the views and concerns of ‘the victims’ of international crime.Footnote 4 In a pivotal article, Kendall and Nouwen distinguished the large community of actual victims of international crime from a much smaller community of ‘juridified victims’ who participate in ICC proceedings.Footnote 5 Kendall and Nouwen depict the relationship between the two communities as a pyramid, with the wide pool of ‘actual victims’ at the base, narrowed by various factors to the small number of victims that actively participate in ICC proceedings at the pinnacle.Footnote 6 The steps of the pyramid include, for example, that the harm suffered is recognized as an international crime, that it is subject to investigation by the Prosecutor of the ICC, that the relevant charges against the accused are confirmed by the pre-trial judges, and that the accused has been surrendered to the Court. It is also subject to victims wanting to participate, applying to participate, meeting the procedural requirements for participation within the constraints of judicial deadlines, and the voice of the victims being effectively represented via counsel. While the distinction between the large pool of victims affected by international crime and those who participate through ICC proceedings is well established, there is limited understanding of the demographics of the victims who do ultimately participate in terms of characteristics such as age, gender, disability, sexuality, race, religion, and socio-economic status. Although recourse to demographics cannot provide a full picture of the inclusivity of the ICC’s victim participation regime, it offers a valuable lens through which to interrogate the inclusion of groups that are frequently marginalized.
Some indications that certain groups have the potential to be, or are being, marginalized as victim participants in ICC proceedings can be found in existing literature. A vast body of feminist literature has drawn attention to aspects of international criminal law, procedure, policy, and practice that obstruct access to justice and inclusion along gender lines.Footnote 7 Beckman-Hamzei’s research has highlighted barriers that children face in participating as victims in ICC proceedings.Footnote 8 In the field of international humanitarian law, attention has been drawn to the significance of the way that war crimes are interpreted for the inclusion of victims with disabilities.Footnote 9 Commentary on specific aspects of ICC law and procedure has also warned of the potential for certain groups to be excluded as victim participants. This includes critique of the ICC’s reliance on common legal representation, whereby large groups of victims may be represented by the same legal representative within ICC proceedings. This practice has been seen to risk producing a false homogenization of voices and undermining the voice and agency of victims whose views and interests conflict with the general narrative that is presented.Footnote 10 Particular attention has been drawn to the potential for victims of sexual violence and female voices to be marginalized.Footnote 11
While academic literature provides important insights into the inclusivity of victim participation at the ICC, it tends to focus on the representation of discrete groups or points of law and procedure. Understanding of who is ultimately represented, and heard, through the ICC’s victim participation scheme and why remains limited. The ICC’s reporting does not offer much clarity. The Court’s reports on key performance indicators reveal the number of victims that have participated in ICC proceedings without indicating who is represented in that number.Footnote 12 The Women’s Initiatives for Gender Justice (WIGJ) provided numerical information on the gender breakdown of victims who had applied to participate, and who had been formally authorized to participate, in proceedings until 2014.Footnote 13 The WIGJ reports indicated a slight overall under-representation of female victims, but significant inconsistencies in gender representation in different situations and cases.Footnote 14 The information, however, only relates to gender. Further insights can be gained from Court documents relating to certain situations and cases, where the gender and, occasionally, age of victims who have applied or been admitted to participate is sometimes shown.Footnote 15 However, this data is not provided for every case and situation and indications of under-representation have the potential to become buried within a growing body of court documents and case law.
Against this background, this article has three main aims. The first is to explain the importance of inclusivity in ICC victim participation drawing from the rights of victims, the requirements of the Court’s legal framework, the goals of the ICC and the promotion of victim agency and voice. The second is to offer a deeper understanding of the inclusivity of ICC victim participation, drawing from the perspectives of practitioners who work on victim participation within or beyond the Court.Footnote 16 The third is to identify measures that can be taken to promote inclusivity in ICC victim participation, in light of the views of practitioners.
It must be acknowledged at the outset that eliciting views of practitioners, rather than victims themselves, raises similar issues of representation, inclusion and victim voice to those that are being investigated within the ICC’s victim participation scheme. The picture that is painted by practitioners will be shaped by their concerns, assumptions and biases. Further research and monitoring that engages directly with victims is, therefore, necessary to fully understand the inclusivity of ICC victim participation, the range of barriers to inclusion, and their significance. Nonetheless, a practitioner perspective offers important insights into the inclusivity of ICC’s victim participation scheme, shedding light on areas that have not been reported on or investigated to date, and issues that may not be visible to victims themselves.
The views of practitioners were gathered through two methods: an online survey and analysis of court documents. An online survey was used because of its flexibility, which could accommodate different work schedules and time zones, and its ability to reach a broad range of actors working on ICC victim participation. The survey was open from December 2023 to January 2024. Respondents were reached through opportunity and snowball sampling. The survey was distributed within the ICC to all staff working in relevant sections of the Court, namely the ICC Office of Public Counsel for Victims (OPCV), the ICC Victims Participation and Reparations Section (VPRS), and the ICC Trust Fund for Victims (TFV). It was also sent to independent counsel who act as victim legal representatives and staff from relevant non-governmental organizations (NGOs) whose contact details were available on public record. Some recipients disseminated the survey further amongst their contacts. The survey was comprised of 34 questions and was estimated to take 20–30 minutes to complete. The questions were in English, but respondents were given a choice of responding in English or French, the two working languages of the Court. Responses in French were translated to English by a professional interpreter. To encourage participation, the survey was anonymous, although data was collected on the job roles of the practitioners and their demographics (age, gender, and disability). No incentives were offered in exchange for participation.
The survey questions asked respondents about their perception of how victims of different ages, genders and disability status were represented as victim participants at the ICC, as well as the barriers to representation, measures that had been effective in supporting the representation of different groups and further measures that could be taken to improve inclusion. Age, gender, and disability were chosen as points of focus because details of them are taken on the application forms that victims submit to participate in proceedings, indicating a degree of awareness as to their representation within the Court. However, the survey also asked about other under-represented characteristics and narrative responses to the survey questions highlighted other under-represented groups. While some quantitative data was collected (e.g., the number of respondents who considered particular groups to be under-represented), the majority of the questions were open ended with the intention of identifying common themes.
The survey was completed by 27 respondents.Footnote 17 The respondents included practitioners in all of the key sections of the Court (OPCV, VPRS, TFV), as well as independent counsel and prominent NGOs working on ICC victim participation.Footnote 18 There was roughly an even split of male and female respondents.Footnote 19 The majority (22) of respondents were aged 30–60.Footnote 20 The majority (22) also identified as having no disability.Footnote 21 Given the size of the sample and the sampling methods, the responses should not be interpreted as representative of, or generalizable to, all practitioners working on ICC victim participation within or beyond the Court. As the respondents were free to choose whether or not to participate, it is possible that the results are affected by selection bias.
The data drawn from the survey was triangulated with information on the inclusivity of victim participation drawn from court documents. The court documents included in the analysis were identified through the final judgments of the Court which made reference to victim participation in the procedural history of each case.Footnote 22 These court documents were supplemented by others that had been referred to by the survey respondents or by practitioners contacted to participate in the survey. Some of these documents related to victim participation at ‘situation stage’, prior to the identification of cases against specific accused individuals.
The results and analysis reveal a broad range of barriers that various groups face in participating as a victim before the ICC owing to their personal characteristics, which extend beyond those identified in existing literature. They highlight barriers to the participation of a wide range of groups, based on age, gender, disability, ethnicity, sexual orientation, and socio-economic status, as well as the intersections between them. The existence of barriers to ICC victim participation as a consequence of disability, sexual orientation, socio-economic status, and older age are particularly significant given the lack of attention that they have received in academic commentary and policy discussions to date. The data also reveals the existence of an organizational context and practical difficulties that frustrate the pursuit of inclusion by practitioners within the ICC. As a result of the barriers to participation and obstacles to promoting inclusivity, the ICC’s victim participation scheme is unlikely to fully represent the population victimized by crimes within the jurisdiction of the Court, although the degree of representation is likely to vary from situation to situation, and from case to case. The article sets out a range of measures that can be taken by the Court and state parties to the Rome Statute to improve the inclusivity of the ICC’s victim participation scheme to enhance the voice, agency and rights of victims, the effectiveness of the Court in realizing its underlying goals, and compliance with the ICC’s legal framework.
Two final points should be noted about the scope of the article. The first is that it focuses on the ability of victims from different demographics to participate in ICC proceedings and does not engage with the benefits and risks of participating in ICC proceedings more broadly.Footnote 23 Existing research on the benefits and risks of victim participation suggests that these benefits and risks may vary on the basis of personal characteristics such as gender and age.Footnote 24 Secondly, the article focusses on the ability of victims to voice views and concerns through the ICC’s victim participation scheme. It does not address the inclusivity of reparations, awarded to victims by the Court, which is a crucial aspect of the inclusivity of the ICC’s approach to victims, but one that exceeds the scope of the present study. Some references are, however, made to reparations where they are mentioned by practitioners responding to questions about victim participation.
2. The importance of inclusive victim participation
The inclusivity of the ICC’s victim participation scheme is important for several intersecting reasons, set out below.
2.1. Victims’ rights and access to justice
The starting point is the right of victims to equal access to justice. The ICC’s victim participation scheme was ‘inspired by’ the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly and followed by the 2005 Guidelines on the Right to a Remedy and Reparations.Footnote 25 The idea that victims have equal access to justice has been described as ‘[o]ne of the central objectives’ of these documents.Footnote 26 Repeated iterations of the ICC’s strategy in relation to victims make reference to these instruments and express the Court’s own commitment to equal access to justice.Footnote 27
The framework set out by UN Women to measure access to justice defines it as encompassing ‘the elements needed to enable citizens to seek redress for their grievances and to demand that their rights are upheld’.Footnote 28 Those elements include ‘a legal framework that grants comprehensive and equal rights to all citizens in accordance with international human rights standards’.Footnote 29 The framework set out by UN Women emphasizes the need to capture the gender specificity of individuals’ experiences in line with the UN Sustainable Development Goals (SDGs).Footnote 30 Building, similarly, on the SDGs, the UN Development Programme has placed emphasis on the importance of a ‘people-centred approach’ to access to justice; one that ensures that ‘justice systems, services and institutions [are] fair, accountable, accessible, and able to deliver quality justice services for all, especially the most marginalised, vulnerable and furthest behind’.Footnote 31 Further guidelines have been developed to respond to the needs of particular demographics, such as child victims.Footnote 32 These efforts reflect a broad international policy objective to ensure that justice is accessible to all, including marginalized communities, and an emphasis on ‘differential victimology’ that recognizes that victims are ‘not a homogenous group but are individual people in very diverse circumstances who can have substantially different needs in the aftermath of crime’.Footnote 33
The pursuit of people-centred and differentiated approaches to supporting access to justice coincides with growing recognition of the importance of intersectionality within the field of international human rights law.Footnote 34 As Crenshaw highlighted in her foundational work on intersectionality, considering discrimination through a single axis, such as gender or race, fails to capture the particular experience of those who are ‘multiply burdened’.Footnote 35 An intersectional approach is necessary to understand access to justice by individuals who face marginalization on multiple, intersecting grounds. This entails recognition that ‘individuals do not experience discrimination as members of a homogenous group but rather, as individuals with multidimensional layers of identities, statuses and life circumstances’.Footnote 36
2.2. The ICC’s legal framework
An inclusive approach to victim participation is also required under the Court’s legal framework. Rule 86 of the ICC’s Rules of Procedure and Evidence (RPE) states that
[a] Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence.Footnote 37
The inclusion of these groups is therefore mandated by the ICC’s applicable law.Footnote 38
In addition to this, Article 21(3) of the Rome Statute requires the law, including the participatory right outlined in Article 68(3) of the Rome Statute, to be interpreted and applied in a manner that is
consistent with internationally recognized human rights, and… without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
The Court’s decisions have acknowledged that Article 21(3), read in conjunction with human rights law, prohibits victims from being excluded from participating on the basis of characteristics such as age.Footnote 39 Article 21(3) has also been understood to support an intersectional approach, recognizing ‘the complex ways that multiple aspects of identity (e.g., race, ethnicity, gender, class, ability, sexual orientation, gender identity, national origin, and religion) intersect and mutually constitute one another, especially in the experiences of marginalized individuals or groups’.Footnote 40
Article 54 of the Rome Statute further requires the Office of the Prosecutor (OTP) to ‘respect the interests and personal circumstances of victims and witnesses, including age, gender… and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children’. With reference to this provision, the OTP has developed policy documents focusing specifically on children and sexual and gender based crimes, which state the OTP’s objective of helping to remedy the historic under-representation of children and to tackle the impunity gap that exists in relation to gender-based crimes, recognizing the need to take an intersectional and differentiated approach to the inclusion of these victims.Footnote 41
2.3. Realization of the ICC’s goals
An inclusive approach to ICC victim participation is not only mandated by law, it is also critical to the achievement of any of the wide array of goals that have been attributed to international criminal justice and the ICC, from justice and accountability to punishment, the expression of wrongs, history and truth telling, education, prevention and restoration of victimized communities.Footnote 42 Realization of any one of these goals will be affected by the range of voices that are heard in the Court’s proceedings and, in turn, the harms that the Court recognizes and addresses.
To take an example, one of the goals most heavily emphasized in current discourse around the ICC is its expressive capacity.Footnote 43 Expressivism refers to the ability of law to ‘articulate and reinforce social norms’ and to ‘send different types of messages’.Footnote 44 The voicing of views and concerns by victims has significant implications for the messages that the Court sends about the demographics who have been victimized, the harms that have been suffered and the weight that has been given to that suffering; messages that affect the potential of the Court to condemn violence and feed into efforts to educate and prevent further suffering. Cuppini has highlighted the implications of the ICC’s emphasis on the ‘ideal victim’ for the expressive capacity of the Court in that it ‘limit[s] victims’ potential for shaping the expressivist message of international criminal trials’.Footnote 45 The marginalization of particular demographics in the ICC’s victim participation regime has the potential to restrict the expressive capacity of the Court in a similar way, along demographic lines.
2.4. Victim voice and agency
Alongside, and intersecting with, the above is growing recognition of the importance of victim voice and agency in the aftermath of international crime. The term ‘voice’ has been used to refer to ‘the ability to establish narrative authority over one’s circumstances and future, and, also, the ability to claim an audience’.Footnote 46 ‘Agency’ speaks to the extent to which victims are able to exercise autonomy and control in responding to issues that affect them and in addressing their needs.Footnote 47
Literature has highlighted constraints on victim agency and voice in international criminal proceedings, including at the ICC.Footnote 48 Deep concerns have been raised about the instrumentalization and silencing of victims in the context of the ad hoc tribunals, where victims could only participate as witnesses, restricted by the role that they played for the prosecution or defence.Footnote 49 The incorporation of a victim participation regime at the ICC provided a separate platform for victims to voice their views and concerns. Nonetheless, the ICC has received criticism for instrumentalizing victim voices, both through its claims to speak on behalf of ‘the victims’, and for marginalizing those victims who are not effectively represented through its proceedings.Footnote 50 Such marginalization may, in turn, reinforce or cause secondary victimization to already marginalized victims.Footnote 51 By promoting an inclusive approach to victim participation, and resisting false homogenization of victims’ views and concerns, the ICC could serve as a more effective mechanism for promoting victim agency and voice.
It is important to note that victim agency may not always be realized through participation in criminal proceedings. Research has shown the powerful role that silence can play as a means of responding to international crime.Footnote 52 Alongside work to remove barriers to participation it is, therefore, also important to deepen understanding of the reasons why victims may abstain from participating as an expression of their own agency, and whose voice is not heard through ICC victim participation as a consequence.
3. The demographics of ICC victim participation
The results of the survey of practitioners and court documents provide important insights into the inclusivity of the ICC’s victim participation scheme, and its limitations.
3.1. Uncertainty
One of the most striking findings from the survey was the lack of awareness amongst the respondents, including practitioners within the Court, about who is included as a victim participant before the ICC. Several respondents left text-based questions blank or selected ‘I don’t know’ in response to questions about inclusion. Some of the narrative responses expressly referred to the lack of data on the representation of particular groups, such as nonbinary, transsexual, and disabled victims.Footnote 53 For example, in response to a question about the representation of victims with a disability, one respondent concluded ‘…but that is simply my impression – I do not have numbers to back it up’.Footnote 54
Limited information is provided in case- and situation-specific court documents. The procedural history of final judgments in some cases and some situation-level reports on victim participation indicate the gender, age, and sometimes ethnicity of victims who have participated or applied to participate. However, there is little discussion of the participation of other groups such as non-binary victims, elderly victims, or victims of varied socio-economic status. Nor is there information on the number of victim participants registered with disabilities and the kinds of disabilities that those victims have; for example, at its broadest, the proportion of victims who have a physical, or a mental disability.
There are various reasons for this lack of reporting. Time and resource constraints limit the ability of the Court to provide detailed reports and engage in analysis of the information that is collected. Reporting on the Venezuela situation, the VPRS explained that it did not have the time to produce statistical data on victim participation, offering a broad inclusionary statement instead.Footnote 55 Further difficulties arise from missing data on victim application forms. Several court documents note the submission of incomplete applications.Footnote 56 For example, in a report from the Registry on victim participation in the Côte d’Ivoire situation, of the 655 individual victims, 124 victims were noted as not having submitted information regarding their age, and information on gender was not specified in 53 representations.Footnote 57 The same report explains that ‘victims were not encouraged to give information regarding their age, gender, ethnicity, location’ and, consequently, the Registry was ‘not in a position to comment on the extent to which the victims who have participated in this process are representative of the overall victim population’.Footnote 58
An associated complication is the use of collective representations, in which multiple families, or even entire villages, may be included in the same application to participate.Footnote 59 This can result in missing information as well as the duplication of information, making it more difficult to establish the extent to which victim participants reflect the victimized population. Reports of the Registry on victim participation in the Afghanistan and Georgia situations recognize this issue expressly.Footnote 60 The Afghanistan report also shows that there can be uncertainty as to whose data is reflected on applications forms for collective representation; whether this relates to the person completing the form or the victims represented.Footnote 61 Furthermore, the survey revealed how female voices, or the recorded number of female victims, had the potential to be excluded in collective applications where female family members are represented by male heads of households.Footnote 62 Another issue is the potential for incorrect or unreliable data as a result of reliance on intermediaries to assist in the completion of victim application forms. Court documents acknowledge the limits of the training provided to intermediaries by the VPRS,Footnote 63 as well as the absence of any requirement for intermediaries to be trained interpreters.Footnote 64
Beyond issues of lack of, or inaccurate, reporting is the lack of consistency in reporting, which further complicates assessment of the inclusivity of the ICC’s victim participation scheme across situations and cases. For example, where the age of victim participants is reported, the age groups are not aligned,Footnote 65 making Court-wide trends difficult to establish. Inconsistent approaches have also been taken to the reporting of gender; specifically, whether non-binary victims are included.Footnote 66
In addition to the above, where there is reporting, it tends to be restricted to the number of participants, or participants in particular groups, without any indication as to the quality of their participation or representation, and how meaningful it may therefore be. There is a significant distinction to be drawn between those victims who have applied and been admitted to participate and with the very small number that are approved to present their views and concerns in person. There is no consolidated reporting on the demographics of the few victims who appear in person before the Court, and little reflection or analysis of whose voice has been distilled into the submissions of legal representatives who act on the victims’ behalf.
3.2. Under-represented groups
Despite revealing uncertainty surrounding the representation of different groups amongst the ICC’s victim participants, the survey data and court documents indicate that the respondents perceived issues of under-representation across a range of groups. The following table summarizes the survey responses to questions that asked how age, disability, and gender are represented in ICC victim participation.
These insights into representation are, of course, perceptions and not facts. They will be influenced by the assumptions and biases of the respondents as to what appropriate representation should look like as well as how effectively different groups are represented. Nonetheless, they suggest that some of those who work closely with ICC victim participation consider there to be issues of inclusion which are elaborated on in the narrative data that is presented below.
3.2.1. Female victims
While six survey respondents considered female victims to be appropriately (or over-) represented, four believed them to be under-represented as victim participants. A further three answered that ‘it depends’. Explanations for the latter indicated that gender representation varies across situations,Footnote 67 and is affected by the presence of NGOs who can assist with the representation of female victims.Footnote 68 Variation in the representation of female victims is also reflected in court documents. Reports on victim participation in some situations and cases suggest a roughly even split, or over-representation of female victims (e.g., Georgia,Footnote 69 Bemba Footnote 70 , Yekatom, and Ngaïssona Footnote 71 ). Others indicate a, sometimes significant, over-representation of male victims (e.g., Afghanistan,Footnote 72 Côte d’Ivoire,Footnote 73 Lubanga, Footnote 74 Ntaganda Footnote 75 ). In the situation in Afghanistan, only ten out of the 165 victim participants were registered as female.Footnote 76
One of the most frequently referred to barriers to the participation of female victims was the existence of cultural norms that inhibit women and girls from voicing their views and concerns directly, or at all. Several survey respondents made reference to the channelling of female voices through male interlocutors as a barrier to participation, or the difficulty in interacting with female victims directly.Footnote 77 These included comments that: ‘[o]ften female victims are relegated to second place within their families and therefore it is the male head of household who participates on their behalf’,Footnote 78 that female victims are ‘often excluded by approaches which focus on community leaders’,Footnote 79 that ‘in certain situations, women are not perceived by their male relatives (fathers, brothers, husbands) as equal rights subjects, therefore it is extremely difficult to meet women in order to inform them about their right to participate [or] request reparations’,Footnote 80 and that ‘cultural prejudices that inhibit active participation of women and girls in public affairs’ constituted barriers to participation.Footnote 81 One respondent explained that where female narratives or applications are ‘channelled by men… their participation can be more indirect and sometimes controlled. It also happens when the identification processes and intermediary are male. These barriers [vary] according to the cultural approach towards gender in the countries where the victims are located’.Footnote 82 Cultural norms were also considered by one survey respondent as a possible restriction on the participation of transsexual women.Footnote 83
Similar themes are echoed in some situation-level reports on victim participation. The final consolidated Registry report on victims’ representation in the situation in Afghanistan acknowledges the sparse contributions of women.Footnote 84 It notes an explanation for this from an organization with ‘extensive experience in Afghanistan’: that ‘most “traditional justice resolution” practices (“jirgas”) are male-only affairs, with crimes against women almost entirely unrepresented in these fora, unless as a matter of family “honour”’ and that ‘the obstacles to women using a “formal” justice system are enormous’.Footnote 85 In the situation in Bangladesh/Myanmar, the Registry’s request for extension of notice period and submissions on the Article 15(3) process highlights the frequent exclusion of women and girls within Rohingya communities from participation in public life for cultural and religious reasons, with male relatives ‘often acting as information gatekeepers’.Footnote 86 The request reflects the Registry’s acknowledgement of the need, in this context, for ‘specific communication strategies targeting women in order to ensure that they can make informed decisions and can meaningfully participate in the Article 15(3) process if they so wish’.Footnote 87
Survey responses and court documents also indicate various factors that hinder the reporting of sexual and gender-based violence (SGBV). While this form of violence is not confined to female victims,Footnote 88 women and girls are often a significant proportion of the victimized population, particularly in the context of genocide, crimes against humanity, and war crimes.Footnote 89 Survey responses described the ‘social stigma due to the nature of the harm suffered (particularly with regards to sexual violence)’ as a barrier to the participation of female victims,Footnote 90 and indicated that ‘[female] victims who suffered sexual abuse are more reluctant in, coming out as [a] victim’.Footnote 91 Consistent with these perceptions, the Registry’s report on victims’ representations in the situation in the Philippines recognizes the under-reporting of SGBV due to ‘fear and the stigma associated with it’.Footnote 92 The aforementioned Registry report in the situation in Afghanistan also acknowledges barriers to the reporting of sexual violence outlined in the 2017 Report of the UN Secretary General on Conflict-Related Sexual Violence.Footnote 93 Further reference to the impact of the under-reporting of sexual violence, and implications of reporting it is found at case level, including in the Gbagbo Footnote 94 and Katanga Footnote 95 cases.
A wide range of other factors were mentioned by survey respondents as barriers to the participation of female victims, including: ‘low levels of literacy (particularly in contexts where the education of women and girls is not prioritised)’,Footnote 96 ‘family commitments particularly for those caring for young children’,Footnote 97 ‘the struggle for survival, because most [female victims] don’t work’,Footnote 98 ‘[s]tigma, cognitive bias and fear’,Footnote 99 unwillingness to speak with men present,Footnote 100 discouragement due to the length of proceedings,Footnote 101 ‘gender-blinded investigation’ and restrictive interpretation of the Rome Statute’s provisions on SGBV.Footnote 102 In the context of the situation in the Philippines, the VPRS also noted that whereas ‘the majority of direct victims of the crimes reported in the Transmitted Representations [were] men… the women survivors of murdered family members [had been] seen as collateral victims “largely ignored by the Government and deprived of its services”’.Footnote 103
3.2.2. Male victims
The survey responses and court documents are aligned in suggesting that male victims are generally appropriately represented,Footnote 104 if not over-represented,Footnote 105 as victim participants.Footnote 106 Nonetheless, a range of barriers were highlighted in the survey to the participation of male victims. These included ‘lack of information due to [their] place of residence’,Footnote 107 ‘doubt that they will obtain a tangible outcome’,Footnote 108 ‘work or occupational commitments’,Footnote 109 and ‘ongoing physical or psychological trauma’.Footnote 110 There was also recognition of the possibility of a cultural barrier to the participation of transsexual men,Footnote 111 and reference to a potential barrier in sharing details of sexual violence ‘to a female interlocutor or to any interlocutor’, particularly in communities where sexual violence is stigmatized.Footnote 112 One respondent made reference to the reluctance of male victims to speak on certain issues, or ‘to be perceived as showing “weakness” as a victim’, particularly in relation to sexual violence.Footnote 113 These reflections indicate that while the overall representation of male victims may be appropriate, certain groups of victims, or victims of certain crimes, may still be under-represented.
3.2.3. Non-binary victims
Considerable attention has been drawn to the particular ways that men and women are victimized by the commission of international crimes.Footnote 114 Less focus has been placed on the representation of gender beyond the gender binary. The survey responses, however, indicated the perception amongst practitioners that non-binary victims are one of the most under-represented groups amongst the ICC’s victim participants.Footnote 115
Several survey respondents described cultural barriers preventing individuals from identifying as non-binary within society as a barrier to the participation of non-binary victims.Footnote 116 One explained that
Table 1. Survey responses on perceived representation of age, gender and disability
Table 2. General constraints on ICC victim participation
[i]n normal contexts, non-binary people are largely marginalized from society, but in crisis ontexts, such as being a victim of war crimes, crimes against humanity or genocide, this becomes more complex. The barrier in these cases is the difficulty of non-binary victims to have basic services, since it is often because of these services that victims are able to participate before the ICC.Footnote 147
Reiterating the significance of interlocutors, another respondent referred to the lack of intermediaries able to assist in the identification of non-binary victims as a barrier to their participation.Footnote 148 Another described, more generally, ‘lack of access’ as a barrier to participation.Footnote 149 It was also highlighted that having a private setting for interactions was important but ‘very hard to arrange e.g. in refugee camps or given the need for interpretation from a community member’.Footnote 150
These issues are compounded by the ICC’s processes and legal framework. Survey respondents highlighted the ‘lack of specific mention of non-binary in application forms for participation or reparations’,Footnote 151 as well as ‘the issues that the ICC Statute defines gender only as male and female as understood in society’,Footnote 152 and ‘lack of gender inclusivity in the Prosecutor’s selection of crimes’.Footnote 153 The approach of the Prosecutor to the inclusion of non-binary victims was referred to by another survey respondent, who regarded the focus of the OTP on gender-based crimes as ‘[in]sufficient to guarantee the participation of non-binary victims’.Footnote 154
3.2.4. Victims aged under 30
While roughly half of the survey respondents who expressed a view saw the age groups referred to as appropriately represented, half indicated under-representation, or significant under-representation, or stated that ‘it depends’.Footnote 155 Explanations for ‘it depends’ noted the particular under-representation of children under the age of 18,Footnote 156 and suggested that representation of age groups is influenced by a range of factors, including the focus of the proceedings,Footnote 157 the length of time between the alleged crimes and the trial,Footnote 158 the age composition of the targeted population,Footnote 159 life expectancy,Footnote 160 and cultural norms that support a leading role for older community members in representing the voices of victims.Footnote 161 There is little statistical data on the age groups of victims in court documents on victim participation at case or situation level,Footnote 162 although some indicate the number of children, or child soldiers, included amongst the victim participants.Footnote 163
In the narrative responses to questions about the representation of victims under 30, respondents emphasized the need to distinguish children from other victims in the age group. One considered victims under the age of 18 to be ‘the most striking under-representation’ in ICC proceedings.Footnote 164 An example of this under-representation can be found in a Registry report on victim applications for participation in trial proceedings in the Yekatom and Ngaïssona case, which notes that ‘[a]pplications received represent well the different victims’ groups’ age spectrum, except for those currently between 10 to 19 years, for which fewer applications were collected than prevalent in all other age segments’.Footnote 165
According to the survey respondents, one of the most significant obstacles to the participation of victims under the age of 18 was lack of information that children can participate in proceedings, as well as awareness of the process for their voice to be channelled via a person who can act on their behalf (PAB), and the potential for children who are almost 18 years old or showing signs of maturity to apply to participate on their own behalf.Footnote 166 One explained that:
because of the circumstances [some children] have no longer a family member nearby, it may be even more complicated to understand that an adult who is not a family member could also play this PAB role for them, providing that proper justification is included in the participation application. Then if a judge authorises children who are almost 18 or are showing signs of maturity to apply on their own behalf, the conditions are not always clearly relayed to the victim communities.Footnote 167
This lack of understanding is reflected in aforementioned Registry report in the Yekatom and Ngaïssona case, which explains that ‘[t]he low number of participating victims in the 10–19 year age segment compared to the subsequent segments can be explained by the lack of understanding of victims in affected areas that children retain a separate right to participation and/or reparations before the Court’.Footnote 168
In addition to lack of awareness of the opportunity and process for participation, further barriers to child participation include the fact that ‘[c]hildren are… generally less informed [and] less educated… especially the children who have been born or raised in conflict areas as they [have] had less access to a proper education system’.Footnote 169 As noted in the situation in Bangladesh/Myanmar, the participation of children may also be obstructed by limited access to learning opportunities and psycho-social programmes, as well as efforts to protect them by keeping them away from the public domain.Footnote 170 Survey respondents also mentioned academic commitments as a barrier to the participation of children,Footnote 171 as well as the lack of motivation amongst some child soldiers to participate in trial proceedings.Footnote 172 One also reported that ‘[c]hildren who have lost contact with their families have also usually more difficulties to provide reliable information on their identity, such as date and place of birth, own name, and name of parents’.Footnote 173 This is problematic because assessments of maturity for child victims and the indirect participation of minors by a person acting on their behalf rely on identity documents for both the child and their representative, lack of which can bar participation.Footnote 174
Beyond the barriers specific to child victims, the under-30s age group were seen by survey respondents to be particularly affected by time constraints and competing demands that could limit engagement with ICC proceedings. Reference was made to their mobility as a barrier to participation,Footnote 175 as well as academic or professional commitments that conflict with periods of interaction with counsel,Footnote 176 and family commitments, particularly for young women.Footnote 177 One respondent referred to a lack of interest in participation,Footnote 178 which may be attributable to these factors, while another highlighted issues of recall for younger victims.Footnote 179 There was also reference to lack of funds and a ‘victims bar specialised team’,Footnote 180 as well as general reference to issues of access.Footnote 181
The participation of victims under the age of 30 was also seen to be affected by ‘cultural norms that prevent active participation of younger members of the community (particularly women)’.Footnote 182 Two respondents highlighted the tendency of older groups (particularly men) to be the ones to receive information and to represent victims, sometimes as ‘community leaders’.Footnote 183 Reference was also made to ‘fear of social ostracism due to the nature of harm suffered (particularly with regards to sexual violence for both young girls and boys and the forced participation in committing atrocities against community members)’.Footnote 184 These comments indicate the potential for particular barriers to be faced by victims on the basis of both age and gender. Other intersectional barriers were also highlighted, with greater barriers being faced by victims who are both under the age of 30 and also of a minority status, e.g., as part of certain ethnic groups, communities of extreme poverty, or members of the ‘LGBT community’.Footnote 185
3.2.5. Victims aged over 60
There is little discussion of barriers to the participation of victims over the age of 60 in court documents. Survey respondents, however, highlighted a range of barriers to their participation in ICC proceedings. These included poverty,Footnote 186 deteriorating physical or mental health (including mobility and sight),Footnote 187 limited life expectancy,Footnote 188 family commitments, particularly in cases where elderly victims are the primary care givers [for] younger children and grandchildren,Footnote 189 reliance on assistance to participate,Footnote 190 technological difficulties,Footnote 191 literacy and language barriers,Footnote 192 poor telephone networks,Footnote 193 and difficulty in achieving direct access to them.Footnote 194 These responses highlight particular difficulties faced at the intersection between age and disability, as well as age and socio-economic status. One survey respondent highlighted the lack of NGOs that assist older people when compared with those focussed on children.Footnote 195 Cultural norms were also understood to affect the participation of victims aged over 60. Survey respondents referred to ‘cultural difficulties’,Footnote 196 and ‘in some contexts… a tendency for younger family members to assume a role of speaking for their parents/grandparents rather than allowing them to speak for themselves’.Footnote 197 The latter comment highlights how cultural norms can restrict the voices of older victims just as they can elevate and prioritize them.
3.2.6. Disability
As with age, there is little statistical data on disability and victim participation in court documents. However, survey respondents perceived victims with a disability to be one of the most under-represented groups. Of the survey respondents that offered an opinion, more reported the under-representation of disabled victims, than those who reported appropriate or over-representation.Footnote 198 One of the survey respondents who answered ‘it depends’ reasoned that it depends on how the group ‘victims with a disability’ is defined, explaining that while those who are disabled through the crimes of the accused are very well represented they did not have enough knowledge about victims with pre-existing disabilities.Footnote 199 It was indicated in one survey response that victims with certain disabilities, such as those with vision and hearing impairments, were particularly under-represented as victim participants.Footnote 200
According to survey respondents, obstacles to the participation of disabled victims included their ‘invisibility’,Footnote 201 the written format of participation used in most situations and cases,Footnote 202 lack of mobility or transport,Footnote 203 lack of specific outreach, knowledge or access,Footnote 204 language barriers,Footnote 205 lack of healthcare,Footnote 206 lack of finances,Footnote 207 lack of expertise amongst ICC staff, for example to communicate with deaf clients, blind clients or those with mobility disabilities,Footnote 208 and, for some, inability to sit through or participate in meetings.Footnote 209 As with victims under the age of 18, survey respondents highlighted reliance on the ability of a care provider or person to assist in the participation process as a barrier to the participation of victims with disabilities.Footnote 210
Ten survey respondents considered the barriers to participation to differ depending on the nature of the disability.Footnote 211 Contrasts were made, for example, between physical and mental disabilities, and the particular barriers to the participation of neurodivergent victims.Footnote 212 One explained that a ‘major difference will be whether as a result of this disability the person requires a person acting on behalf’.Footnote 213 Another considered that ‘[i]nability to communicate one’s story effectively, for whatever reason, seems to make representation much less likely’.Footnote 214
3.3. Further exclusions
Survey respondents highlighted a range of characteristics beyond age, gender, and disability as potentially under-represented groups. They included LGBTQI+ victims,Footnote 215 displaced and indigenous communities,Footnote 216 and those who live in small villages or far from provincial capitals.Footnote 217 Responses to other questions, already discussed, also highlight the impact of socio-economic status on victim participation with poverty and lack of finances being referred to as barriers.Footnote 218
4. The significance of background constraints on victim participation
The barriers referred to above sit on top of a wide array of general constraints on victim participation. These constraints are relevant to the inclusivity of ICC victim participation because of the pressure that they place on the victim participation scheme as a whole. This, in turn, is likely to limit the capacity of practitioners to prioritize and support the inclusion of a wide range of participants, particularly where additional time and resources are required to do so.
The constraints noted by survey respondents are shown in the table below, separated into barriers that are likely to vary between individuals and situations, those that relate to the ICC’s legal or procedural framework, and those that relate to the ICC’s broader organizational framework. These categories are not mutually exclusive, or irrefutable. Absence of victim assistance offices in places where international crimes have been committed and distance from The Hague could be viewed as an organizational issue whilst being situation-specific, just as lack of information on how to access the justice system is arguably a matter of ICC procedure as much as it is a constraint on particular individuals. The purpose of the categories is to illustrate the range of barriers that may influence which victims ultimately participate and the potential for them to have a differing impact depending on the situation and individual victims involved.
Half of the constraints in the table (marked with an asterisk) go beyond those acknowledged by Kendall and Nouwen in their discussion of the ICC’s juridified victim and reveal additional obstacles that have materialized in practice from the perspective of practitioners. Significantly, the data indicates a broad range of organizational constraints that frustrate victim participation, such as the under-resourcing of victim representation teams, inadequate facilities to allow counsel and victims to interact frequently and meaningfully, concerns about poor counsel selection and inadequate access to the resources that are needed to respond to the harms that have been caused by the crimes charged throughout the trial process. Addressing these issues will provide more scope for the promotion of inclusion in the ICC’s victim participation scheme.
5. Building a more inclusive scheme
While there are many cross-cutting barriers to ICC victim participation, it is clear from the survey responses and court documents reviewed that some victim groups face particular barriers to participation that may lead to marginalization or exclusion. As a result, the ICC’s victim participation scheme is unlikely to be fully representative of the victimized community, although the extent to which groups are under-represented will vary from situation to situation, and perhaps from case to case, depending on the crimes charged. The data, however, indicates several measures that can be taken to build a more inclusive scheme.
5.1. A multi-level approach to inclusion
The first measure is to ensure that inclusion is addressed at multiple levels. This is necessary to respond to the fact that barriers to inclusion of particular groups permeate the levels of the pyramid described by Kendall and Nouwen, which separates the juridified victim from the wider victimized population. While the image of a pyramid could be understood to suggest a hierarchy, the levels are independent, and measures taken to address them can be taken simultaneously.
Figure 1. Building an inclusive approach to victim participation.
5.1.1. Jurisdiction and admissibility
The foundation for a more inclusive scheme is the recognition of harms affecting under-represented groups as international crimes within the jurisdiction of the Court. The root of some of the issues of gender inclusion, for example, relate to the interpretation of the Rome Statute’s provisions on SGBV, and the need for broad interpretation of them.Footnote 219 While the survey responses referred specifically to the interpretation of the Rome Statute’s provisions on SGBV, academic literature and civil society reporting has highlighted the importance of taking a gender-sensitive approach to the interpretation of other aspects of the ICC’s jurisdiction, including its modes of liability.Footnote 220 Literature has also highlighted the need to look beyond gender, for example by using a ‘disability lens’ when interpreting international crimes.Footnote 221 While it was not referred to in the survey data, failure to factor inclusivity into decisions on the admissibility of situations and cases to the ICC has also been understood to affect the range of victims whose harms are responded to by the Court and their ability to participate in the related proceedings.Footnote 222
5.1.2. Prosecutor’s selection of situations and cases
Further narrowing occurs through the Prosecutor’s selection of situations and cases. A survey respondent noted policies of the OTP that are designed to enhance inclusion,Footnote 223 which include the 2023 policies on children and gender based crime.Footnote 224 They also recognized the ‘larger scope of cases’ as an example of best practice on inclusion.Footnote 225 Nonetheless, they expressed the need for improvements in the systematic charging of SGBV, the inclusion of non-binary victims, and recognition of intersectionality in the OTP’s charging practices.Footnote 226 This correlates with commentary on the OTPs approach to gender-based crime, which has highlighted the failure of ICC Prosecutors to include SGBV crimes where there has been evidence of their commission, for example in the cases of Lubanga and Al Mahdi, as well as the susceptibility of SGBV charges to collapse at pre-trial or trial stage as a result of failure of the OTP to uncover relevant evidence.Footnote 227
5.1.3. Procedural requirements for victim participation
The next level of the pyramid contains the procedural requirements for participation. Most of the barriers highlighted in the survey comments and court documents related to this level. A key point emphasized here was the need for more targeted outreach and interactions with victims.Footnote 228
Several recommendations were made for reaching a diverse range of victims. These included the use of communication channels used by victims of different age groups,Footnote 229 increased outreach for victims with less mobility, disabilities, and health conditions,Footnote 230 efforts to increase awareness that children can participate in proceedings,Footnote 231 and the tracing of victims to countries of asylum to increase participation of younger victims, who may be more mobile.Footnote 232 While some respondents emphasized the importance of early interaction of Court staff with organizations and intermediaries able to identify and engage with particular demographics,Footnote 233 others highlighted the importance of not relying solely on intermediaries and of promoting direct interaction of Court staff with victims through local missions.Footnote 234
A range of practical measures were also suggested to facilitate the participation of a diverse range of victims, including the provision of specific spaces for youth participation,Footnote 235 gender-specific sessions,Footnote 236 organizing events specifically designed for women at the same time as events organized for their male relatives,Footnote 237 organizing meetings in a way that would allow parents with young families to attend alongside their children,Footnote 238 allowing victims to choose between individual or group meetings and to select the gender of ICC staff that they engage with,Footnote 239 protecting the privacy of victims sharing sensitive information,Footnote 240 providing support for victims who feel shame that may inhibit participation,Footnote 241 and facilitating the involvement of any existing caregivers for victims with physical or psychological trauma.Footnote 242
Other suggestions for overcoming barriers to participation included the use of inclusive application forms, e.g., that allow any specification of identity,Footnote 243 providing options for non-written engagement, e.g., audio and video, sign language and speech to text technology,Footnote 244 allowing children to be recorded as experiencing events outlined in the narrative provided by their parents,Footnote 245 adopting a flexible approach to the recognition of allegations of SGBV to accommodate victims who are reluctant or unable to describe crimes in explicit terms,Footnote 246 and encouraging engagement by bringing groups to The Hague to visit the prison facilities.Footnote 247
The survey responses also highlighted the need for further financial and human resources to ensure that a wide range of victims could participate as victims.Footnote 248 Several respondents highlighted the need for additional resources to support the participation of certain groups such as elderly victims and victims with disabilities, including through the enlistment of qualified professionals.Footnote 249 A number of specific suggestions were made for financial and practical measures that could promote inclusion in interactions with victims, such as providing or funding transport and a meal to minimize the impact of participation on victims’ livelihoods,Footnote 250 offering telephone subscriptions or credits to allow victims to retain contact with counsel,Footnote 251 providing or accommodating childcare,Footnote 252 ensuring ‘discretion, confidentiality and protection’,Footnote 253 and offering or facilitating victims’ access to healthcare.Footnote 254
5.1.4. Judicial deadlines
Further up the pyramid, it is necessary to address the implications of judicial deadlines for the participation of victims from a wide range of demographics. Building inclusive victim participation into these deadlines entails recognizing and mitigating constraints on the inclusivity of victim participation, such as time to build rapport with intermediaries, and for Court staff to build rapport directly,Footnote 255 time needed to identify and assist victims from under-represented groups,Footnote 256 which may be affected by the absence of intermediaries, or to accommodate groups of victims who may take more time to come forward, such as victims of SGBV.Footnote 257
5.1.5. Effective representation
A final critical step in building an inclusive pyramid is effective representation via counsel. Survey responses highlighted the need for clear protocols that encourage the participation of marginalized demographics, as well as training to support the inclusion of various groups, including children, victims with disabilities, female victims, LGBTQI+ victims, and male victims of sexual violence.Footnote 258 Recommendations were also made to increase the diversity of staff directly interacting with victims,Footnote 259 and to expand the list of counsel to encourage greater diversity, including the registration of more women.Footnote 260 Emphasis was also placed on the importance of regular meetings with victims (meeting at least twice a year), facilitated by advance payment of travel expenses for victim legal representatives.Footnote 261 Where victims participate in large groups, it was also suggested that the selection of a representative sample for ongoing interactions would help to give visibility to those who may otherwise be marginalized.Footnote 262 One respondent highlighted that there was need to ‘[direct] counsel to actively deal with [the issue of inclusion and] to propose measures to enhance the representation of their clients’.Footnote 263 While collective representation will always be a limited means of communicating the views and concerns of victims participating in large groups, these measures provide a means of promoting inclusion in the narratives that are expressed through the work of the ICC.
5.2. Addressing background constraints on victim participation
Alongside the steps outlined above, the survey data highlighted the need to address the general constraints on victim participation that limit the Court’s capacity to promote inclusive practices. While the ICC and state parties have less control over some of the individual and situation-based constraints outlined above, they directly regulate the legal, procedural, and organizational barriers. Of course, addressing some of the constraints, such as lack of funding for victim representation teams, inadequate facilities to allow counsel and victims to engage in frequent and meaningful consultations, and inadequate access to material, medical, and psychological assistance during the trial process, will require additional resources, which is difficult in an ongoing climate of financial restraint. However, other measures may be addressed without need for significant resources, such as a greater focus on the identification of victims from a range of demographics, the direction of counsel to consider the inclusion of under-represented populations in their interactions with victims, promoting inclusion in the interpretation of relevant statutory provisions and the approach of the OTP to the selection of cases and situations, the use of inclusive application forms, and allowing children to be recorded as experiencing events outlined in the narrative provided by their parents.
5.3. Enhanced reporting
The last recommendation is to address the pervasive uncertainty surrounding the inclusivity of ICC victim participation. This will not only enable barriers to be addressed, but also highlight where resourcing is needed, and provide justification for it. Better reporting requires (i) the inclusion of a wider range of demographics in public-facing reports at case, situation and Court-wide levels;Footnote 264 (ii) distinguishing the demographics of victims who have applied to participate from those who have been admitted to participate, and those who have voiced views and concerns on their own behalf; (iii) the standardization of data collection and reporting, e.g., in terms of age, inclusion of all genders and approach to reporting on disability; and (iv) the collection of qualitative data on the accessibility and meaningfulness of participation in addition to information about the number of victims who have participated, Footnote 265 and how demographics affect those who do not wish to participate and whose voices may not be heard as a consequence.Footnote 266
As noted at the outset, it is important that monitoring of inclusivity centres the voices of victims themselves. The data presented here reflects the perspectives of practitioners as to the inclusivity of ICC victim participation and where barriers lie. Victims may assess the inclusivity of the scheme, and barriers to participation, differently. They may also be better placed to reflect on the relative impact of the range of barriers to participation, which would assist in directing resources to the most pressing areas.
6. Conclusion
Not all demographics are equally represented in the ICC’s victim participation scheme. Drawing from practitioner perspectives, this article has highlighted the potential for groups of victims to be under-represented on the basis of age, gender, and disability, as well as sexual orientation, membership of a displaced, indigenous, or rural community, and socio-economic status, and for the degree of inclusion to be affected by the specifics of the case or situation being addressed. The consequence of the barriers to participation is that the ICC’s victim participation is unlikely to be fully representative of the communities that are harmed by the commission of ICC crimes. This is problematic for several reasons; not only does it conflict with victims’ rights and the ICC’s legal framework, it also limits the agency and voice of the victims that are marginalized and obstructs the realization of the Court’s underlying goals. The study has also shown that there are significant intersectional dimensions to the under-representation of certain groups, including at the intersections between gender and age, age and disability, age and minority status, e.g., ethnicity or sexual orientation, and age and socio-economic status. The ways in which victims experience barriers to participation, particularly at the intersections between groups, warrant much deeper study.
The barriers to inclusion in ICC victim participation identified in this study are wide-ranging, encompassing issues relating to the content and interpretation of the ICC’s crimes, the selection of situations and cases by the OTP, numerous procedural barriers to registration and participation as a victim in ICC proceedings, as well as judicial deadlines and the effectiveness of victims’ legal representatives. Consequently, inclusivity needs to be addressed at different ‘levels’, or in various aspects of the ICC’s law and procedure. The specific barriers that are faced by the members of particular groups are exacerbated by a plethora of general constraints on the victim participation regime, which reduce the capacity of the ICC and its teams to focus upon and promote inclusion in its processes, and must also be addressed.
There remains a problematic lack of awareness of the details of how and to what extent different groups are affected. The current focus on the number of victims included in proceedings is to the detriment of a more nuanced picture of who is encapsulated in that number and how meaningful participation is to them. It is important, therefore, that greater detail about who participates, and to what extent, is built into monitoring of the ICC. Nonetheless, there are measures outlined above that could be taken immediately to improve inclusion. Many of these, such as funding for victim representation teams and additional material, medical, and psychological assistance for victims, have cost implications and are likely to require support from state parties. Others, such as greater attention to inclusion in the identification and representation of victims, or in OTP charging practices and the interpretation of international crimes, could be implemented by the Court independently, and potentially without great cost. The prioritization of such measures, and the construction of a more inclusive victim participation scheme, is not only required by the Court’s applicable law and the rights of victims, it is also instrumental to the achievement of the goals that animate the ICC’s operation and provide justification for its existence, and critical to the value of the ICC as a mechanism for the promotion of victim agency and voice.
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