Where the personal interests of the victims are affected, the Court shall permit
their views and concerns to be presented and considered at stages of the
proceedings determined to be appropriate by the Court and in a manner which is
not prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.81
Article 68, thus, establishes that victims should be permitted to participate in ICC proceedings
whenever their “personal interests are affected.” Additionally, this Article describes one of the
protective measures that the ICC may elect to take: namely, allowing victim participation at the
ICC to be either direct or indirect.82
Despite the above provisions providing victims with a right to participate in ICC
proceedings, victim participation is neither automatic nor absolute.83 Rather, victim participants
must “ask the relevant Chamber for permission to demonstrate how their personal interests are
affected [via application] before [they can] actively exercis[e] many of their rights.”84
Additionally, the Chambers have been granted “wide discretionary powers to control
participation” by both the Rome Statute and the RPE.85 While Article 68 acknowledges that
victims must be afforded the right to participate in proceedings where they have a personal
interest in the case86 and requires the ICC to “take appropriate measures to protect the safety,
physical and psychological well-being, dignity and privacy of victims and witnesses,”87 the Rome
Statute and the RPE both fail to provide specific procedural rights outlining the extent to which
individuals may participate and the form which participation must take.88 Thus, ICC judges are
granted enormous discretion in their decisions regarding the proper “modalities of
participation.”89 And, even those procedural rights that are granted may then be limited by the
ICC Chamber acting “proprio motu, or at the request of the parties, the Registry or any other
participant, if it is shown that the relevant limitation is necessary to safeguard another competing
interest protected by the Statute and the Rules.”90
D. ICC Protective Measures and the Rationales for Establishing Them
The rationales for using special and protective measures to shield victims and witnesses
who interact with international criminal courts include: “(1) . . . minimiz[ing] serious risks to . . .
their security; (2) . . . avoid[ing] serious incursions on . . . their privacy and dignity; and (3) . . .
81 Rome Statute, supra note 59, at art. 68(3).
82 See, e.g., McGonigle, supra note 63, at 98; de Brouwer & Groenhuijsen, supra note 15, at 149 (noting that “victims may . . . present
either themselves or through a legal representative, their views and concerns, where there personal interests are affected”).
83 McGonigle, supra note 63, at 95.
84 Id.
85 Id.
86 Rome Statute, supra note 59, at art. 68(3).
87 Id. at art. 68(1).
88 McGonigle, supra note 63, at 105 (noting that the exception to this statement is the general right of victims to file requests with the
ICC).
89 Id. McGonigle summarized some of the modalities of participation identified by the judge at the pre-trial stage of the ICC case
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui as including:
[N]otification rights; access to transcripts and documents in the case in the form they are made available to the
non-proposing party; the right to examine and make submissions on the admissibility and value of evidence on
which the Prosecution and Defense intend to rely at the confirmation hearing; the right to examine witnesses;
attend hearings; make oral motions, responses and submissions; and file written motions, responses and replies.
Id. at 105–06.
