A communicative approach to the participation of victims in international criminal processes

• Main Author: Frisso, Giovanna Maria
• Published: University of Nottingham 2012
• Subjects: 641.55
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.580296

The 1998 Rome Statute, which established the International Criminal Court (ICC), recognized the right of victims of crimes to present their views and concerns where their personal interests are affected, as well as the right to seek from the ICC reparation for the harm they suffered. Far less innovative, but still indicating the attention afforded to the interests of victims in the Rome Statute, are the provisions that address the protection of witnesses. This thesis is concerned primarily with the application of these various provisions by the ICC and, to a lesser degree, with the extent to which they were foreshadowed by developments in the field of international human rights and the experience of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. The thesis argues that a communicative understanding of international criminal processes offers a rationale for the application of the provisions related to the participation of victims which, in turn, is able to increase the legitimacy of the decisions reached by the ICC. A communicative approach, it is further argued, limits the risks of the development of a jurisprudence in which the participatory rights of the victims are seen as merely symbolic. This argument is based primarily on discourse theories of law drawn mainly from Habermas's theory of communicative action and, to a lesser extent, on communicative theories of punishment. These theories are used to inform an understanding of international criminal processes as communicative enterprises that exhibit proper respect and concern for both victims and offenders.