Conceptualizing Victimization at the International Criminal Court: Understanding the Causal Relationship Between Crime and Harm

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Nema Milaninia is a trial attorney with the Office of the Prosecutor of the International Criminal Court.

One of the hallmark achievements of the International Criminal Court (ICC) is to give voice to victims—making them part of the criminal process as opposed to mere observers. Yet, that unique strength has also created unique difficulties that overwhelm the Court and its various branches with the onerous task of ascertaining who should actually qualify as a “victim” accorded the myriad of accompanying participatory benefits. And while the Court has had ample opportunity to define criteria for determining qualifying “victims,” as putative victims have submitted tens of thousands of applications since 2006, the Court has failed to do so. More specifically, the Court has failed to provide a clear definition of the most central aspect of what constitutes a “victim”: namely, what causal relationship is required between the charged crimes and the putative victim’s resulting harm.

This Article confronts the need to determinedly define “victims” under the Rome Statute, the ICC’s founding treaty, by identifying two conceptual models used in the jurisprudence of the United States Crime Victims’ Rights Act (CVRA). This Article utilizes the CVRA’s framework because the federal law contains a causal requirement for victimhood substantially like that required by the ICC. The first conceptual model looks at the elements of the charged offense and evaluates whether the victim’s harm is a natural and foreseeable result of those elements. The second model looks at the facts underlying the elements and whether the victim’s harm was a natural and foreseeable consequence of the crime as alleged to have been committed. When examined under the CVRA’s two models, the Court’s jurisprudence shows conflicting and inconsistent approaches to addressing the required causation between the charged crimes and a putative victim’s resulting harm. This paper illustrates that inconsistency and identifies the model it believes best comports with the ICC’s Rome Statute and its principal aims.

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