Second, the definition of “victims” adopted in the ICC’s Rules of Procedure and
Evidence (“RPE”) is broader than what had previously been used in ad hoc tribunals investigating
and prosecuting serious breaches of international humanitarian and human rights law, and the
definition’s scope makes it much more likely that children may be considered victims of crimes
that were not perpetrated directly against them. The definition of who is considered a victim of a
crime falling under the jurisdiction of the ICC is expressed in Rule 85 of the ICC’s RPE. Rule
85(a), which is of the greatest relevance for purposes of this Article, states: “For purposes of the
Statute and the Rules of Procedure and Evidence: (a) ‘Victims’ means natural persons who have
suffered harm as a result of the commission of any crime within the jurisdiction of the Court
. . . .”63 This definition is broader than the definitions employed by the ad hoc criminal tribunals
for Rwanda and the former Yugoslavia in that it does not limit victims to those individuals
“against whom a crime over which the tribunal has jurisdiction has allegedly been committed.”64
Rather, under the ICC definition anyone “who . . . suffered harm may qualify as [a] victim [—
leaving the definition open to] include immediate family members or dependents of those who
have suffered harm.”65 Thus, the ICC is likely to include more child witnesses and victims in its
proceedings than other international criminal courts in the past not only as a result of its
jurisdiction over crimes that may only be committed against children ( i.e., child soldiers), but also
because it recognizes that family members and dependents must be considered “victims” of the
crimes falling within its jurisdiction.
B. The ICC’s Expanded Notion of Victim Participation
It is acknowledged that “the primary role and function of international(ized) criminal
tribunals is to investigate and prosecute the most serious crimes of concern to the international
community.”66 However, “the role and function of international(ized) criminal tribunals is no
longer limited to administering traditional forms of justice. Instead, the role and function of these
courts has been expanded to include . . . victim empowerment.”67 The ICC has taken specific
steps to empower victims while also providing them protection through its expanded
understanding of who the victims of some of the most atrocious crimes are, as well as its general
rules and procedures regarding participation.
With regard to participation, the Rome Statute has been lauded as progressive because it
“formal[ly] recogni[zes] . . . the dignity and the rights of victims, notably . . . their right to
participate actively in the proceedings”68 and their right to protection.69 In fact, the ICC is the first
63 Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/INF/3/Add.1 Rule 85(a) (2000) [hereinafter ICC Rules of Procedure
and Evidence]. In determining whether or not an individual qualified for ICC victim status, judges will ask whether:
(1) the victim applicant is a natural person as set forth in rule 85(a) . . . , (2) a crime within the jurisdiction of
the Court appears to have been committed, (3) the victim applicant has suffered harm, and (4) such harm arose
“as a result” of the alleged crime within the jurisdiction of the Court.
Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-320, Fourth Decision on Victims’ Participation, ¶ 30 (Dec. 12,
2008), http://www.icc-cpi.int/iccdocs/doc/doc610092.pdf; Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09-121,
Decision on the 34 Applications for Participation at the Pre-Trial Stage of the Case, ¶ 11 (Sep. 25, 2009), http://www.icc-
cpi.int/iccdocs/doc/doc747034.pdf; Brianne McGonigle, Apples and Oranges? Victim Participation Approaches at the ICC and the
ECCC, in THE EFFECTIVENESS OF IN TERNATIONAL CRIMINAL JUSTICE 91, 98 (Cedric Ryngaert ed., 2009).
64 de Brouwer & Groenhuijsen, supra note 15, at 157.
65 Id. The authors also note that the ICC definition makes an important departure from those definitions employed by the ad hoc
criminal tribunals in that it “recognizes a victim as a victim from the moment he or she reports a crime, whereas the [definition
adopted by the International Criminal Tribunal for the former Yugoslavia] and the [International Criminal Tribunal for Rwanda] only
seems to recognize a victim from the moment the guilt of the accused has been established.” Id.
66 McGonigle, supra note 63, at 91.
68 Caroline Fournet, Mass Atrocity: Theories and Concepts of Accountability—On the Schizophrenia of Accountability, in EXPLORING
THE BOUNDARIES OF INTERNATIONAL CRIMINAL JUSTICE 27, 44 (Ralph Henham & Mark Findlay eds., 2011); see also Håkan Friman,
Participation of Victims in the ICC Criminal Proceedings and the Early Jurisprudence of the Court, in INTERNATIONAL CRIMINAL