Abstract
The aim of this chapter is firstly to analyze implementation difficulties of victims’ rights focusing in particular on victims of international crimes and victims of cross-border victimization. This will be followed by an analysis of global or multi-level governance structures in this field and some first proposals will be made to adjust existing victim protection schemes to the changing demands of a globalized world.
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Notes
- 1.
For the purpose of this chapter, victims are defined as those who have been harmed by acts defined as criminal in national or international law.
- 2.
For a thorough analysis of this, See Ferstman, C. & Schurr, J. (2010), ‘Universal Justice? The Practice and Politics of Universal Jurisdiction Cases Relating to Crimes Committed in Africa’, in: Letschert, R.M., Haveman, R., Brouwer, de A.L.M., & Pemberton (eds.), A. Developing Victimological Approaches to International Crimes, Focus on Africa, Intersentia.
- 3.
More elaborate proposals relating to the specific themes of this book will be made in the respective chapters.
- 4.
See for more detailed information on the UN Declaration, Van Genugten, W.J.M., Van Gestel, R., Groenhuijsen, M.S., & Letschert, R.M. (2007). ‘Loopholes, Risks and Ambivalences in International Lawmaking; The Case of a Framework Convention on Victims’ Rights’, Netherlands Yearbook of International Law, vol. XXXVII, pp. 109–154., Available also through http://ssrn.com/abstract=999315.
- 5.
More details are provided by Groenhuijsen, M. (1999). ‘Victims’ Rights in the Criminal Justice System: A Call for More Comprehensive Implementation Theory’, in: Van Dijk, Van Kaam, & Wemmers (eds.), Caring for Crime Victims: Selected Proceedings of the Ninth International Symposium on Victimology, New York, NY, Criminal Justice Press, pp. 85–114, Groenhuijsen, M.S. (2005). ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: Snyman, R. & Davis, L. (eds.), Victimology in South Africa, Pretoria, Van Schaik Publishers, pp. 333–351, or Van Genugten et al. (2007).
- 6.
For an overview, see Schneider, H.J. (2000). ‘Victimological Developments in the World during the Last Three Decades: A Study of Comparative Victimology’, in: Gaudreault, A., & Waller, I. (eds.), Beyond Boundaries. Research and Action for the Third Millennium, Montreal, Association québécoise Plaidoyer-Victimes, pp. 19–68; and Brienen, M., Groenhuijsen, M.S., & Hoegen, E. (2000). ‘Evaluation and Meta-Evaluation of the Effectiveness of Victim-Oriented Legal Reform in Europe’, Criminologie, 33, 1, pp. 121–144.
- 7.
The first draft, including the revisions, can be found at http://www.tilburguniversity.nl/intervict/undeclaration/convention.pdf. Further revisions have been discussed and agreed upon during a Symposium held at the Tokiwa International Victimology Institute on February 15 & 16, 2008. The proceedings of this Symposium have been published: Dussich, J. & Mundy, K. (eds.) (2009). Raising the Global Standards for Victims: The Proposed Convention on Justice for Victims of Crime and Abuse of Power, Mito, Seibundo Publishing Co., Ltd.
- 8.
Representatives of the WSV attended the annual meetings of the UN Crime Commission in 2008 and 2009 to this end, and the UN Crime Congress in Brazil 2010.
- 9.
- 10.
Note Triffterer who stated that “Europe seems predisposed as a forerunner of the ‘globalization of criminal justice’.” Triffterer, O. (2000). ‘Legal and Political Implications of Domestic Ratification and Implementation Processes’, in: Claus Kreß & Flavia Lattanzi (eds.), The Rome Statute and Domestic Legal Orders, Nomos, Baden-Baden and Il Sirente, Ripa di Fagnano Alto, vol. 1, pp. 1–28 at pp. 25–27.
- 11.
Note that the Inter-American Court of Human Rights does grant victims procedural rights, such as participation rights.
- 12.
Other EU legislation also touches upon victims’ needs and rights, for instance a framework decision on combating terrorism, a framework decision on combating human trafficking, and a framework decision on combating sexual abuse and exploitation of children.
- 13.
With the entry into force of the Treaty of Amsterdam, framework decisions under Title VI of the EU Treaty (Police and Judicial Cooperation in Criminal Matters) have replaced joint actions. More binding and more authoritative, they should serve to make action under the reorganized third pillar more effective. Framework decisions are used to approximate (align) the laws and regulations of the Member States. Proposals are made on the initiative of the Commission or a Member State and they have to be adopted unanimously by the European Council. They are binding on the Member States as to the result to be achieved but leave the choice of form and methods. Contrary to directives, framework decisions have no direct effect. With the entry into force of the Lisbon Treaty distinctions between the EU pillars have been abolished and existing framework decisions such as those on the position of crime victims will have to be transformed into regular directives.
- 14.
For more information on the background to the adoption of the Framework Decision, see Rock, P. (2004). Constructing Victims’ Rights: The Home Office, New Labour and Victims, Oxford, Oxford University Press.
- 15.
See further http://www.coe.int/victims for more information on the work of the CoE on victims of crime, and also for the other CoE victims’ rights instruments.
- 16.
The implementation of the CoE recommendation has not yet been evaluated and will therefore not be further analysed here.
- 17.
Brussels, 20 April 2009, COM(2009) 166 final, Report From The Commission, Pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) [SEC(2009) 476].
- 18.
‘Implementation of international norms refers to incorporating them in domestic law through legislation, judicial decision, executive degree, or other processes’, while ‘compliance includes implementation, but is broader, concerned with factual matching of state behaviour and international norms’. See Shelton, D. (2000). ‘Introduction, Law, Non-Law and the Problem of “Soft Law”’, in: D. Shelton (ed.), Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System, Oxford, Oxford University Press, 2000, pp. 1–18, 5. Interestingly enough, in literature and case law in the field of European law normally no distinction is made between implementation and compliance. Here, implementation is usually the overarching term for both the obligation to transpose European laws (especially directives and framework decisions) into national legislation and the obligation to ensure that compliance is guaranteed on the national level. See Prechal, S. (2006) Directives in EC Law, Oxford, Oxford University Press.
- 19.
Victims Support Europe is an umbrella organization of national victim support organizations, see http://www.victimsupporteurope.eu
- 20.
APAV-INTERVICT Report (2010), Implementation of the EU Framework Decision on the standing of victims in the criminal proceedings in the Member States of the European Union, Project on behalf of Victims Support Europe, p. 149. Available at http://www.apav.pt/portal_eng and http://www.tilburguniversity.nl/intervict.
- 21.
APAV-INTERVICT report, p. 156.
- 22.
Peers, S. (2008). ‘EU Criminal Law and the Treaty of Lisbon’, European Law Review, 33, 4, 507–529.
- 23.
See further Rijken & Letschert, ‘Harmonizing Legislation Post-Lisbon’ (2011).
- 24.
See The Stockholm Programme – An open and secure Europe serving and protecting the citizen, European Council, Brussels, 2 December 2009.
- 25.
See also Council Conclusions on a strategy to ensure fulfilment of the rights of and improve support to persons who fall victim to crime in the European Union, 2969th Justice and Home Affairs Council Meeting, Luxembourg, 23 October 2009. Also within the field of violence against women, children and sexual identity violence important developments are underway. The EU is considering adopting harmonizing legislation in this field and is currently (2010) undertaking a feasibility study in this regard.
- 26.
See Proposal for a Council Directive on Compensation to Crime Victims, COM (2002) 562 final, 2002/0247 (CNS), Brussels, 16 October 2002, p. 10.
- 27.
See paragraph 7 of the Preamble.
- 28.
The original draft did contain standards on this issue, noting that ‘compensation shall cover pecuniary and non-pecuniary losses […]’. Id., Article 4, p. 22.
- 29.
Proposal for a Council Directive on Compensation to Crime Victims, COM (2002) 562 final, 2002/0247 (CNS), Brussels, 16 October 2002, p. 12.
- 30.
Signed in Strasbourg on 24 November 1983, European Treaty Series (ETS) – no. 116. 21 of the 47 Member States of the CoE have ratified the convention, most of them being also EU Member States. Already in 1977, a resolution on compensation of victims of crime was adopted by the Council of Ministers which paved the way for the 1983 Convention. See for more information also Buck, K. (2005). ‘State Compensation to Crime Victims and the Principle of Social Solidarity – Can Theoretical Analysis Contribute to a Future European Framework’, European Journal of Crime, Criminal Law and Criminal Justice, 13, 2, 148–178.
- 31.
See Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the application of Council Directive 2004/80/EC relating to compensation to crime victims, SEC(2009)495, Brussels, 20 April 2009. http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc/study_compensation_to_crime_victims_en.pdf
- 32.
The examples in this section follow the themes discussed in the subsequent chapters; for that reason, no mention is made of the still expanding legal victims’ rights framework relating to violence against women and children.
- 33.
The principles are often referred to as the Van Boven/Bassiouni Principles, referring to the two principal drafters.
- 34.
The guidelines were adopted and proclaimed by the United Nations General Assembly on 16 December 2005 (Res. 60/147), after a 15-year period of negotiations. Note that the Preamble mentions that the principles and guidelines do not ‘entail new international or domestic legal obligations, but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.’
- 35.
For instance in the EU and CoE instruments mentioned above.
- 36.
Van Boven, T. van (2009). ‘The Right to a Remedy as contained in International Instruments: Access to Justice and Reparation in Treaties and the New United Nations Principles’, in: Flauss, J.F. (ed.), La protection internationale des droits de l’homme et les droits des victimes (pp. 31–56), Bruxelles, Editions Bruylant, p. 22. See also De Greiff, P. (2006). ‘Justice and Reparations’, in: De Greiff (2006) (ed.), The Handbook of Reparations, The International Center for Transitional Justice, Oxford, Oxford University Press, pp. 452–503.
- 37.
See for more information on the van Boven/Bassiouni Principles and reparation in general, Shelton, D. (2005). ‘The United Nations Principles and Guidelines on Reparations: Context and Contents,’ in: De Feyter, Parmentier, Bossuyt, & Lemmens (eds.), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, Antwerpen, Intersentia, pp. 11–32, and Letschert, R.M, Haveman, R., Brouwer, de, A.L.M., & Pemberton, A. (2010). Devising Victimological Approaches to International Crimes, Antwerpen, Intersentia.
- 38.
See Drumbl, M.A. (2007). Atrocity, Punishment and International Law. Cambridge, Cambridge University Press.
- 39.
Groenhuijsen, M.S. (2005). ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: Snyman & Davis (eds.), Victimology in South Africa, Pretoria, Van Schaik Publishers, pp. 333–351.
- 40.
Garkawe, S. (2003). ‘Victims and the International Criminal Court: Three Major Issues’, International Criminal Law Review, 3, 345–365.
- 41.
See for more information http://www.icc-cpi.int/victimsissues.html
- 42.
Secondary victimisation is defined in CoE Recommendation 2006. (8) as ‘victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim’ (Article 1.3).
- 43.
- 44.
In July 2009, INTERVICT organized an expert meeting on “developing victimological approaches to international crimes”, analyzing whether victims of the latter have different needs than victims of conventional crime. The results are published in Letschert et al. (2010). See furthermore http://www.tilburguniversity.nl/intervict/events/reportrwanda.pdf for the report of the conference. See further Danieli, Y. (2009). ‘Massive Trauma and the Healing Role of Reparative Justice’, in: Ferstman, C., Goetz, M., & Stephens, S. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, Martinus Nijhoff Publishers.
- 45.
Human Security Report, 2005, 86.
- 46.
See also Chapters 4 and 5. Chapter 5 will provide detailed analyses of the implementation status of the Convention against Transnational Organized Crime.
- 47.
2002/629/JHA: Council Framework Decision of 19 July 2002 on combating trafficking in human beings.
- 48.
- 49.
See Guidelines of the Committee of Ministers of the Council of Europe on the Protection of Victims of Terrorist Acts, 2 March 2005. The Guidelines are laid down in the Appendix to this chapter. The CoE also adopted Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers at its 804th meeting (11 July 2002), which addresses victim’s compensation issues in paragraph XVII.
- 50.
Preamble, para. h.
- 51.
See Letschert, R.M., Staiger, I., & Pemberton, A. (2010). Victims of Terrorism, Towards a European Standard of Justice, Springer Publishers, also including the Draft Recommendation.
- 52.
In September 2009, the UN organised a High-Level Expert Meeting on Addressing the Needs of Victims of Terrorism, for the report see ‘Supporting Victims of Terrorism’, Available through http://www.un.org/terrorism/pdfs/UN%20Report%20on%20Supporting%20Victims%20of%20Terrorism pdf (last checked March 2010). See also http://www.un.org/terrorism/workgroup3.shtml.
- 53.
See also Falk, R. (2006). ‘Reparations, International Law and Global Justice’, in: Pablo de Greiff (ed.), The Handbook of Reparations, The International Center for Transitional Justice, Oxford, Oxford University Press, p. 491 and Letschert, R.M. & Van Boven, Th. (2010). ‘Reparation to Victims of Mass Crimes – Challenges involved’, in Letschert et al. (2010).
- 54.
Factory at Chorzow, Judgment No. 8, 1927, P.C.I.J., Series A, no. 17, at 29. Article 1 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd Session 2001.
- 55.
Boven, T. van (2009). ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’, in: Ferstman, Goetz, & Stephens, Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity, Martinus Nijhoff, p. 21.
- 56.
- 57.
Authors recognizing an individual right to reparation include Hofmann, R. (2006). ‘Victims of Violations of International Humanitarian Law: Do They Have an Individual Right to Reparation Against States Under International Law’, in: Dupuy, Fassbender, Shaw, & Sommermann (eds.), Common Values in International Law – Essays in Honour of Christian Tomuschat, Zegveld, L. (2003). ‘Remedies for Victims of Violations of International Humanitarian Law’, 851, IRRC, Fleck, D. (2007). ‘Individual and State Responsibility for Violations of the Ius in Bello – An Imperfect Balance’, in: Heintschel von Heinegg, & Epping (eds.), International Humanitarian Law Facing New Challenges, Heidelberg. For the opposite view, see, amongst others, Seibert-Fohr, A. (2009). Prosecuting Serious Human Rights Violations, Oxford, Oxford Press, p. 244, Tomuschat, C. (1999). ‘Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position Under General International Law’, in: Randerzhofer, A. & Tomuschat, C. (eds.), State Responsibility and the Individual, Martinus Nijhoff. More recently, the ILA Committee on Reparations to Victims of Armed Conflict came to the following conclusion: “in view of the relevant state practice and taking note of a strong majority among scholars, the Committee came to the conclusion that, until most recently, international law did not provide for any right to reparation for victims of armed conflicts. The Committee submits, however, that the situation is changing: There are increasing examples of international bodies proposing, or even recognising, the existence of, or the need to establish, such a right,” Hofmann, R. (2010), ‘Reparations for Victims of Armed Conflicts’, Report to the ILA Hague Conference 2010, p. 2 and 14. The Committee has drafted a declaration on the topic of reparation which will be discussed at the 2010 ILA (International Law Association) Conference.
- 58.
Seibert-Fohr, A. (2009, p. 244) and Letschert, R.M. & Boven, T. van (2010). ‘Challenges in Providing Reparations after Mass Victimization’, in: Letschert et al. 2010.
- 59.
See Redress Report, Universal Jurisdiction in Europe, Criminal prosecutions in Europe since 1990 for war crimes, crimes against humanity, torture and genocide http://www.redress.org/documents/unijeur.html. The report gives the following examples; “In Italy, for instance, groups representing relatives of the disappeared in Argentina were denied their applications to join proceedings. In Switzerland, the spouse of a victim who had died in the Rwandan genocide withdrew as partie civile from the case against N. when forced to choose between becoming an ordinary witness and gaining the right to witness protection measures, or remaining as partie civile and not being eligible for such protection. There are also disincentives for victims to apply to be partie civile. For instance, in Belgium if victims initiate an investigation from which no prosecution results, the victims are obliged to pay the costs of the investigation. Any compensation orders made in such cases are also difficult to enforce.” See also Goldmann, M. (2008). ‘Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law?’ Finnish Yearbook of International Law, 16, (2005/2008), 5–29, also for further references.
- 60.
See also the stocktaking study on the impact of the ICC on victims that was carried out for the 2010 ICC Review Conference in Kampala, Uganda, Available at http://www.icc-cpi.int/iccdocs/asp_docs/ASP8R/ICC-ASP-8-49-ENG.pdf.
- 61.
For examples, see Letschert, R.M. & Ammerlaan, K. (2009). Compensation for Victims of Terrorism, in: Letschert et al.
- 62.
- 63.
- 64.
In 2009, VSE issued a Manifesto calling the European Union to take a number of measures to advance the implementation of victims’ rights. Available at http://www.victimsupporteurope.eu
- 65.
The concept of multilevel governance was first used to describe European integration, introduced by Marks, G., Hooge, L., & Blank, K. (1996). ‘European Integration from the 1980s: State-Centric v. Multi-Level Governance’, Journal of Common Market Studies, 34, 341–78.
- 66.
“Multi-level governance is often referred to as a system of continuous negotiation among nested governments at several territorial tiers, describing how supranational, national, regional, and local governments are enmeshed in territorially overarching policy networks. Multi-level governance emphasizes both the increasingly frequent and complex interactions between governmental actors and the increasingly important dimension of non-state actors that are mobilized in cohesion policy-making and in the EU policy more generally”, see Marks, M. (1993). ‘Structural policy and Multi-level governance in the EC’, in: Cafruny, A. & Rosenthal, G. (eds.), The State of the European Community: The Maastricht Debate and Beyond, Boulder Colorado, Lynne Rienner, pp. 391–411.
- 67.
Held, D. (1995). Democracy and the Global Order, Cambridge Press, in: Aas (2007, p. 148).
- 68.
For instance, Europol, Eurojust, the European Arrest Warrant, Frontex and the Police Chiefs Operational Task Force can be mentioned.
- 69.
- 70.
See Van Genugten et al. (2007).
- 71.
Aas (2007, p. 148).
- 72.
- 73.
Cited in Aas, K.F. (2007, p. 106).
- 74.
- 75.
APAV-INTERVICT Report, Recommendations Victims Support Europe on the basis of the report: p. 177.
- 76.
The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all 192 UN Member States once every 4 years. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations.
- 77.
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Letschert, R., Groenhuijsen, M. (2011). Global Governance and Global Crime – Do Victims Fall in Between?. In: Letschert, R., van Dijk, J. (eds) The New Faces of Victimhood. Studies in Global Justice, vol 8. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9020-1_2
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