Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Definition of 'victim'

 

There is no single, universally agreed definition of the term 'victim'. There are, however, several important international instruments which identify the essential elements of being a 'victim' that are commonly referred to by the international community. One such instrument is the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Declaration of Basic Principles) (General Assembly resolution 40/34), in which 'victims' is defined as follows:

'Victims' means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those proscribing criminal abuse of power (Para. 1).

That definition essentially captures all situations where people are victimized because of the crimes committed by terrorist organizations. When the victimization is the result of violations of human rights law or international humanitarian law or refugee law, the definition provided by the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and International Humanitarian Law (Basic Principles and Guidelines for Victims) (para. 8) is also relevant:

[V]ictims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term 'victim' also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (General Assembly resolution 60/147).

Finally, where a terrorist act falls within the scope of one of the core crimes falling within the jurisdiction of the International Criminal Court (ICC), Rule 85 of its Rules of Procedure and Evidence (ICC, 2013) defines 'victims' as follows:

(a) 'Victims' means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;

(b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

The definition contained in the ICC Rules differs from that used by the ad hoc Tribunals for Rwanda and the former Yugoslavia respectively, and marks a shift in emphasis in the role of the victim in international criminal law (discussed further below) in the context of victimology and the emergence of the victim in international justice).

Recognition of children born as a result of rape: the approach taken by the International Criminal Court

Children born as a result of rape can experience stigmatisation in post-conflict societies as a result of a perceived association with their fathers, leading to social isolation, physical and psychological harm. At the same time, mothers who have been subjected to rape and enforced pregnancy may struggle to bond with their child, with the potential for neglect and abuse. Despite these significant issues, children have received only limited recognition within international criminal law and have been viewed largely as evidence of harm perpetrated against their mother, rather than as a victim in their own right.

Two cases before the ICC suggest a possible shift in the way in which children born of rape are viewed. An expert's report submitted in the Bemba case has suggested that children should be considered victims for the purpose of evaluating reparations*, while in the case of Ongwen, the Prosecutor has recognized children born of rape in LRA captivity as a category of victims.

* International Criminal Court (2017 ). Expert Report on Reparation. Presented to Trial Chamber III, International Criminal Court: Situation in the Central African Republic in the Case of The Prosecutor v. Jean-Pierre Bemba Gombo . The Hague. ICC-01/05-01/08-3575-Anx-Corr2-Red 30 November 2017.
** Neenan, Joanne (2018). " The Role of the ICC of Protecting the Rights of Children Born of Rape in War." EJIl: Talk!. 12 February.

Notably, all three of the definitions cited above define 'victim' by reference to the harm they have suffered rather than to the crime perpetrated against them. The notion of victimhood is therefore understood in direct relation to the victim, rather than to the act of the perpetrator (although there must, of course, be some link between the harm suffered and the act committed).

In addition, by basing the notion of victimhood on the harm suffered, the three definitions inherently encompass indirect as well as direct victims, since the link which must be established is between the criminal act and the harm which arises because of it, rather than between the criminal act and the direct victim of it. This means that the families of direct victims, who have suffered harm because of the direct targeting of a family member, are encompassed by the definition. For the same reason, the definition would also incorporate children born to women as a result of rape.

There are, however, differences between the definitions, which may relate to the specific context of their application. While, e.g., both the Declaration of Basic Principles and the Basic Principles and Guidelines for Victims envisage collective harm, such as would be consistent with the perpetration of terrorist atrocities on a mass scale, Rule 85(a) of the Rules of Procedure and Evidence of the International Criminal Court makes no reference to harm which has been suffered collectively. While it defines victims in the plural (as opposed to reference to the singular in the ad hoc Tribunal definitions), Rule 85(a) does not make any express reference to the possibility that the notion of victims might comprise a collective or group.

Given that the definition of victim contained in the Declaration of Basic Principles had been expressly considered by the drafters, the exclusion of any reference to collective harm or victimhood in Rule 85(a) was probably a deliberate decision. While, therefore, offences such as crimes against humanity are crimes of scale and have an inherently collective component, it is the notion of personal harm to the individual, howsoever it arises, which is determinative of the individual's status as a victim before the ICC. The effect may be to exclude any broad, collective, diaspora-type application to the Court or one which might otherwise situate the individual participant in a representative capacity vis-à-vis the affected community (McDermott, 2009, p. 32).

Significantly too, as was elaborated by the Committee against Torture:

A person should be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted or convicted, and regardless of any familial or other relationship between the perpetrator and the victim. ...... The term 'survivors' may, in some cases, be preferred by persons who have suffered harm. (General Comment No. 3 CAT/C/GC/3, para. 3).

Finally, a definition of 'terrorism victim' is included in the Principles and Guidelines on Human and Peoples' Rights while Countering Terrorism in Africa (2015), produced by the African Commission for Human and Peoples' Rights (ACommHPR):

The following persons are to be considered as victims of terrorism: (a) individuals who have been killed or suffered serious physical or psychological injury through the commission of an act of terrorism (direct victims); (b) the next-of-kin or dependants of a direct victim (secondary victims); (c) innocent individuals who have been killed or suffered serious injury indirectly attributable to an act of terrorism (indirect victims); and (d) potential future victims of terrorism (para. 10D). (This definition effectively endorses the approach taken in General Assembly, Human Rights Council report 34/30, para. 16).

Like the more general definitions described above, the definition defines victim by reference to the harm suffered, rather than the act perpetrated against them. It also envisages a range of both direct and indirect victims, including potential future victims (and hence reflects the first phase of victimisation and trauma as described below), characterized by a heightened oppressive environment and risk.

Some would further consider those migrants and refugees fleeing terrorist violence to be victims of terrorism (see also Modules 1-5 of the University Module Series on Trafficking in Persons and Smuggling of Migrants). A significant number of these persons may have experienced terrorist acts first hand or be fleeing the broader impact of terrorist activities in their region, such as heightened insecurity and reduced opportunities or a lack of prospects for themselves and their families. Notably, the former United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism advocated that for any counter-terrorism policy to be effective, it must include a comprehensive migration policy that respects human rights, justice, accountability, human dignity, equality and non-discrimination and that grants victims of terrorism the protection to which they are entitled (General Assembly report 71/384, paras. 54-55).

 
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