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Discuss the role of victims in international criminal trials and suggest possible areas of reform - Essay Example

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Theorist opinion of the main function of any criminal system is the punishment of the guilty and acquittal of the innocent1. Benjamin Ferencz12 states that there are five stages to the process of creating a more humane world in situations where war and/ or widespread violations of human rights have taken place…
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Discuss the role of victims in international criminal trials and suggest possible areas of reform
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Download file to see previous pages It is the fourth stage that concerns helping and rehabilitating victims which is the main subject of this article. In addition the need for providing a voice to the victims in the trial process itself is examined. In the past victims have not been of great interest to the international community, and some writers have labeled concern for victims the 'missing link' of international criminal justice3.
The International Criminal Tribunal for the Former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); and the permanent International Criminal Court (ICC) have a common mandate: "to contribute to the consolidation and enhancement of international justice and the international rule of law by bringing to account, in an international forum, those persons bearing the greatest responsibility for the most egregious violations of international humanitarian law."4 In the past thirteen years a number of cases have been tried and the use and effectiveness of such courts is evident as they helped establish peace and justice in Rwanda and the Balkans.
The need for establishment of international criminal tribunals and courts was felt because the persons committing crimes that may be prosecuted under four clusters of offences i.e. breaches of the 1949 Geneva Conventions5, violations of the laws or customs of war6 (which together are generally known as "war crimes"), genocide7, and crimes against humanity8 are often beyond the reach of unwilling or unable national judicial systems. Neither is it possible to establish an atmosphere, within the country, for a fair trial to be conducted.

3.0 The Role of the Courts
International criminal law has a dual purpose, one to truth and history and second to justice through the trial process. This duality has been recognised and confirmed by the ICTY9. A similar traditional criminal trial model approach was adopted by the ICTR and the ICC with the aim to convict, punish and deter. On the other hand the post-apartheid South Africa trails adopted an amnesty based truth and reconciliation model to reconcile, heal and to set the record straight.
Neither approach in itself appears to be fully correct; the role of truth in the first and justice in the second has been overlooked10. The need is to move toward a judicious combination of the two approaches and this indeed is happening when we consider the recent history of trials where the courts have asserted their role as makers of history11 while the defendants have challenged the very legitimacy of the court12. International criminal justice is fast becoming a process of securing convictions of international criminals. The new criminal procedure and jurisprudence that is emerging needs to be considered in the light of what is the actual demand made from it, the rationale behind the trial, and should not limit itself to an adjustment between the classical criminal and civil law processes. While in the traditional criminal trial procedures the need is to find undisputable proof of guilt and punish the criminal, international criminal courts have further considerations like the effect the decision may have on the peace and stability of the nation to which the under-trial belongs and also, importantly, the victims and affected communities of the crimes purportedly committed. Professor Mark Drumbl13 ...Download file to see next pagesRead More
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