Critical Analysis On International Recognition Of Victim Rights

The inception and the United Nations adopted two general assembly resolutions
dealing with the rights of the victim. From the declaration of basic principles
of justice for victims of crime and abuse of power and the year 2006 of basic
principles and rights to the remedy and reparation for victims.

Then, it
Appraises every alternative approach So, victims play an important role in the
court proceedings. According to article 68(3) of the Rome statute on the
judicial proceeding they have convicted that victim has all the rights to
present their views and concerns directly to the ICC judges and this further
suggested that while dealing with the victims: Victims shall be treated with
dignity and compassion, then it also Assure the justice and fair treatment.

Introduction:
In traditional justice systems, victims of aggression have typically received
support and assistance from their family, village, or tribe. Additionally, this
network often assists in resolving the conflict and ensuring that any decisions
made are implemented. In this context, it is assumed that the victim (and their
family), the perpetrator (and their family), and the entire social group will
share the responsibility of dealing with the conflict.

In many parts of the world, the State has taken on a dominant role in justice as
society has become more complex and justice systems have evolved. The State
defines specific behaviours as crimes, which are now viewed more as crimes
against the State than violations of the victim’s rights. The state now assumes
responsibility for investigating the offense, prosecuting the suspect,
adjudicating the case, and enforcing the sentence. The victim has fewer
opportunities for direct participation. Although the victim often reports the
offense to the authorities, the justice process is now more focused on the
interests of the State and the community than on those of the victim.

However, it is important to note that the historical development of justice
systems has not been a simple one of gradual reduction of the victim’s status.
Traditional justice systems were not always ideal for victims, as community
mobilization against the offender depended largely on the social power of the
victim and their social group. Additionally, different justice systems have not
all followed the same path of development.

In some present-day systems, such as
those of Islamic countries and several European countries, the victim plays a
crucial role throughout the criminal justice process. The changes in society
that have expanded the scope and impact of victimization, have driven an
essential re-evaluation of the position of the casualty. The frequency of
wrongdoing and mishandling of control has expanded around the world. At the same
time, conventional designs of social solidarity and reliance have been
disturbed.

Changes in modes of generation and patterns towards urbanization,
which have been went with by broad inside and worldwide relocation and the
disability of societal foundation have reduced the part of the expanded family
and the constrain of social controls. Anomie, unemployment, and debilitating
social bolster plans have undermined the capacity of people to recoup from
victimization.

The selection by the United Countries Common Get Together of the Affirmation of
Essential Standards of Equity for Casualties of Wrongdoing and Mishandle of
Control in 1985 is by no implies the as it were illustration of Joined together
Countries’ action in this field. The work of the Joined together Countries in
anticipating mishandling of control and infringement of human rights is
long-standing and incorporates among its accomplishments:

• The Universal Pledge on Respectful and Political Rights.
• The tradition of the Prevention and Discipline of the Crime of Genocide.
• The Tradition of the Assurance of All People from Being Subjected to Torment and Other Pitiless, Inhuman or Debasing Treatment or Discipline.
• The Tradition on the Rights of the Child.
• The Tradition on the End of All Shapes of Segregation against Ladies.

International Developments In Victimology:
Since 1960, many Western countries have implemented victim compensation schemes
and enacted laws regarding this matter. New Zealand was the first country to
adopt such a scheme in 1963, followed by the United Kingdom, which introduced
the Criminal Injuries Compensation Scheme in 1964 to provide compensation to
victims of specific crimes. The Criminal Injuries Compensation Board was
established to administer the compensation scheme.

In Australia, the state of
New South Wales was the first to enact legislation in this respect, followed by
Queensland, South Australia, and Western Australia in 1968, 1969, and 1970,
respectively. The state of Victoria enacted more comprehensive laws in 1972,
which were then followed by other states.

In the USA, California was the first
state to legislate on victim compensation in 1965, and most other states
followed California’s lead in their efforts towards it. The Federal Government
of the USA also enacted the Victim and Witness Protection Act, of 1982 and the
Victims and Crimes Act, of 1984. International laws for the protection of
victims and witnesses around the world include:

• The Justice for Victims of Crime Act, 1986 (Canada).
• The Victims of Offences Act, 1987 (New Zealand).
• The Criminal Justice Act, 1988 (part VII deals with compensation by the court and Criminal Injuries Compensation Board).
• The Criminal Injuries Compensation Act, 1995 (UK).
• The Victims of Crime Assistance Act, 1996 of Victoria.
• The Victim and Witness Protection Act, 1982 (USA).
• The Victims’ Rights and Restitution Act, 1990 (USA).
• The Witness Protection Act, 1991, 1996, and 2000 (Australia).

In recent years, thanks to the efforts of progressive thinkers and activists in
countries such as the U.K., Canada, the U.S.A., Australia, and New Zealand,
there has been a slight shift in focus towards the victims of crime. Typically,
victims suffer the most injury and are the party most deserving of redress, yet
they often do not receive it.

Canada-Manitoba enacted the Justice for Victims of Crime Act, in 1986. New
Zealand has also enacted the Victims of Offences Act, of 1987. In the U.K., the
Criminal Justice Act, of 1988 has made fresh provisions for payment of
compensation by the Criminal Injuries Compensation Board. Australia has also
enacted legislation based on the UN Declaration of 1985. In the U.S.A. the
Victims of Crime Act, of 1984 has been made part of the federal Law Formed in
1979, the World Society of Victimology (WSV) is a society for the advancement of
specialized scientific research. WSV has been instrumental in the development
and subsequent adoption of the Declaration on the Basic Principles of Justice
for Victims of Crime and Abuse of Power.

Further, the Indian Society of Victimology (ISV) was formed in August 1992 in the State of Tamil Nadu (India)
with its headquarters in the University of Madras. Efforts were made by it to
impress upon the State of Tamil Nadu to create a Victim Assistance Fund for the
benefit of crime victims.

In 1995 a scheme to this effect was introduced in the
legislative assembly. Under this scheme the victims of homicide/their bereaved
relatives, victims of serious physical injuries including rape were made
eligible for monetary assistance from the Government. It is not a right of the
victim because it is not a law but only an executive order of the Government.

The United Nations Congress on Prevention of Crime and Treatment of Offenders
has played a significant role in drafting the United Nations General Assembly
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, which was adopted in November 1985. The declaration was aimed at
promoting justice for victims of crime and abuse of power, and Congress has made
substantial contributions in this regard.

The United Nations General Assembly on
29th November 1985 made a declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power adopting national and international perspectives
about the rights of victims of crime and victims of abuse of power It was
declared that offenders or third parties should make fair restitution to victims
or dependents. This Declaration has been described as the ‘Magna Carta’ of
rights of victims worldwide.

The Declaration recognized the following rights of
the victims of crimes. The Declaration defines victims as persons who have
suffered any physical or mental injury, through acts that violate criminal laws
operative within Member States. The suffering can be of any description like
substantial impairment of the fundamental rights, emotional reactions to
suffering, financial loss, and many more.

International Legal Framework:
Respect and Implement International Human Rights and Humanitarian Law:

• The duty to comply with, guarantee, and enforce international human rights law and international humanitarian law, as outlined in their respective frameworks, arises from:
• Treaties to which a State is a party.
• Customary international law.
• The domestic law of each State.
• If States have not done so already, they must ensure that their domestic laws are consistent with their international legal obligations as required by international law.
• Incorporating international human rights and humanitarian law into Domestic law.
• Adopting appropriate and effective legal and administrative procedures that offer fair, efficient, and timely access to justice.
• It is important to ensure that suitable and efficient solutions are made available in a timely and appropriate manner, including compensation, as defined below:
• Domestic laws must provide the same level of protection as international obligations for victims.

Obligation:

• The duty to abide by international human rights law and international humanitarian law encompasses the responsibility to respect, ensure respect for, and enforce the provisions of both sets of laws.
• To take the necessary legal, administrative, and any other appropriate actions to prevent any violations.
• Violations must be investigated impartially and promptly, and those responsible should face legal action as appropriate under national and international law.
• Regardless of who is ultimately responsible, ensure equal and effective access to justice for those who claim to be victims of a human rights or humanitarian law violation.
• To provide efficient solutions to the victims, which should include proper preparation and compensation for any damages incurred.

International crimes consist of severe violations of human rights and humanitarian law:

• States must investigate and prosecute those who commit serious violations of international human rights and humanitarian laws. They must cooperate and support international judicial organizations in such cases.
• States should implement universal jurisdiction as required by applicable treaties or international law obligations and facilitate extradition or surrender of offenders to other States or international judicial bodies. They must provide judicial assistance and protect victims and witnesses following international human rights legal standards and international legal requirements such as those prohibiting torture and other cruel treatment.

Limitations:

• If an applicable treaty or other international legal obligation permits, statutes of limitations will not apply to gross violations of international human rights law and serious violations of international humanitarian law that are considered crimes under international law.
• Other types of violations not considered international crimes should not have unduly restrictive domestic statutes of limitations, including those applicable to civil claims and other procedures.

Victims of international human rights and humanitarian law violations:

• Victims are those who suffer harm from acts that seriously violate international human rights or humanitarian law, causing physical or mental injury, emotional suffering, economic loss, or a significant impairment of their basic human rights. The term may include family members of the direct victim and those who suffer harm in intervening to assist victims.
• A person who experiences any violation shall be considered a victim, regardless of the perpetrator’s identification, apprehension, prosecution, conviction, or familial relationship with the victim.

Victim Treatments:

• It is an absolute necessity that victims of violence or trauma are treated with unwavering respect, dignity, and humanity. It is the duty of all involved parties to take all necessary measures to provide a secure and supportive environment for victims of violence or trauma, and to uphold their fundamental rights at all times. The State must guarantee that its domestic laws provide special consideration and care to victims to avoid any re-traumatization they may experience during legal and administrative procedures aimed at providing justice and reparation.

Right to Remedies:

• Victims of serious human rights and humanitarian law violations have the right to international remedies.
• Equal and effective access to justice;
• Adequate, effective, and prompt reparation should be provided in cases of harm suffered. Additionally, victims should have access to relevant information about violations and reparation mechanisms.

Justice:

• Victims of human rights violations and breaches of humanitarian law have the right to access an effective judicial remedy. They may also seek other remedies through domestic law proceedings and administrative bodies. International law obligations must be reflected in domestic laws. States must:
• Disseminate information on available remedies for human rights and humanitarian law violations publicly and privately.
• Protect and support victims and their representatives by minimizing inconvenience, safeguarding privacy, and ensuring safety before, during, and after legal proceedings.
• Assist victims in accessing justice by providing appropriate help.
• Help victims seek justice for violations of international human rights or humanitarian law through legal, diplomatic, and consular means.
• States should enable group claims for reparation in addition to individual access to justice.
• An effective remedy for violations of international human rights or humanitarian law should involve all relevant international procedures without impacting domestic remedies.

Legislative Measures For The Protection Of Victim’s Rights In Various
Countries:
Compensating crime victims is part of a wider movement recognizing their
importance in the justice system. The UN Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power acknowledges that victims,
families, witnesses, and helpers often suffer loss, damage, or injury, and may
face hardship aiding in prosecution. The Declaration states that offenders
should pay for the costs of their crimes and compensate victims.

When costs
cannot be recovered, states should provide financial compensation. Sentencing an
offender includes ordering restitution or reparation and damages for tort.
Statutory compensation schemes are driven by the principle of compensation.
Compensation recognizes the injustice that victims should not bear the losses of
a crime.

Victim Compensation in England:
The Criminal Injuries Compensation Scheme 2012 compensates victims of violent
crimes in England, Scotland, or Wales. The Criminal Injuries Compensation Scheme
was established under the Criminal Injuries Compensation Act 1995, and is
administered by the Criminal Injuries Compensation Authority, which determines
the amount of compensation. If disputed, an appeal can be made to the UK’s
First-Tier Tribunal. A decision of the Tribunal can only be challenged by
Judicial Review in the UK High Court.

Conditions:

• Physical injury
• Threat
• Sexual Assault

Victim Compensation in France:
Victims of crimes may not be able to enforce a court decision against the
perpetrator. France has a Guarantee Fund that compensates victims and takes
legal action against the responsible parties. The Guarantee Fund is composed of
two funds:

• The FGAO
• The FGTI

Conditions:

• Dead.
• Permanent Disability.
• Sexually Aggressed, Rape or Human Trafficking.
• Minor

Victim Compensation in Canada:
Canada has a federal system with a federal and ten provincial legislatures. The
federal government enacts the Criminal Code, but the provinces are responsible
for administering criminal law and victim compensation. This research covers
victim compensation schemes in Alberta, Ontario, and Quebec. The Criminal Code
allows judges to require offenders to pay a victim surcharge, which can
contribute to provincial compensation schemes.

Condition:

• Death
• Deceased person’s kids and financial assistance.
• Offences against minor

United Nations General Assembly (UNGA) Resolutions:
There are mainly two general assembly resolutions:

1. Principles Of Justice for Victims of Crime and Abuse of Power:
   Victims of crimes and traumatic events should be provided with necessary support
   such as material, medical, psychological, and legal assistance. This aid should
   be provided through a combination of government, volunteer, and community-based
   resources. Additionally, justice, health, social service, and other personnel
   need to receive proper training to better understand the needs of the victims
   and ensure that they receive prompt and appropriate assistance.

   Simply victim
   means a person who, individually or collectively has suffered harm it also
   includes physical or mental injury, economic loss, and emotional suffering.
   States should consider incorporating into the national norms proscribing abuses
   of powers and providing remedies to the victims of such abuses. In such cases,
   remedies include restitution, compensation, and necessary support.
    

2. Principles and Rights to the Remedy and Reparation for Victims:
   Reparation is a way to promote justice by correcting severe breaches of
   international human rights laws or serious breaches of international
   humanitarian laws. Reparation must be proportional to the severity of the
   violations and the harm suffered. A State has the responsibility to provide
   reparation to victims for acts or omissions that can be attributed to the State
   and constitute gross violations of international human rights law or serious
   violations of international humanitarian law. When a person, a legal entity, or
   any other group is found responsible for causing harm to a victim, they should
   provide reparation to the victim.

If the parties at fault are unable or
unwilling to meet their obligation, then the State must establish national
programs to provide reparation and other assistance to the victims. In cases
where victims make claims, States must enforce domestic judgments for reparation
against individuals or entities responsible for the harm suffered. Additionally,
States must strive to enforce valid foreign legal judgments for reparation by
complying with domestic law and international legal obligations.

If the State
has already provided reparation to the victim, the party responsible for causing
harm should compensate the State. In order to do so, States must provide
effective mechanisms for the enforcement of reparation judgments under their
domestic laws. Victims of gross violations of international human rights law and
serious violations of international humanitarian law must be provided with full
and effective reparation, as laid out in the principles below the para, taking
into account individual circumstances.

This includes the following forms:
restitution, compensation, rehabilitation, satisfaction, and guarantees of
non-repetition.

• Restitution is a legal process that aims to compensate victims
  of serious international human rights violations or violations of
  international humanitarian law. The goal of restitution is to
  restore the victim to their original situation as much as possible.
  This may involve restoring their liberty, human rights, identity,
  family life, citizenship, place of residence, employment, or
  property that was affected by the violation.
   
• Compensation should also be provided for any quantifiable
  economic damage arising from gross violations of international human
  rights law and serious violations of international humanitarian law,
  based on the severity of the violation and the circumstances of each
  case.

Challenges And Critics Faced By International Victims:
International victims, especially those who suffer from human rights
abuses, face various challenges and criticisms due to the
complexities of international law, geopolitical dynamics, and
cultural differences.

There are several common challenges and criticisms that
international victims often encounter, including:

• International victims may find it challenging to access legal protection due to jurisdictional issues. Holding perpetrators accountable for cross-border crimes can be difficult, and there may be gaps in legal frameworks to address transnational abuses.
• Victims of human rights abuses may face political interference, particularly in cases where the perpetrators are powerful individuals or states. Political pressure can undermine efforts to seek justice and accountability for victims.
• Many international victims lack access to resources such as legal representation, healthcare, and psychosocial support, which can hinder their ability to seek redress and recover from the trauma of abuse.
• Victims of human rights abuses may face stigmatization and discrimination, both within their communities and in the broader international community. This can exacerbate their suffering and make it difficult for them to access support services.
• International victims may face challenges related to cultural and linguistic differences, particularly if they are seeking assistance or support in a foreign country. These barriers can make it difficult for victims to navigate legal processes and access essential services.
• Some international victims may face skepticism and disbelief from authorities, the media, and the public, which can further traumatize victims and discourage them from coming forward to seek help or justice.
• In some cases, international victims may experience secondary victimization when they encounter insensitive or discriminatory treatment from authorities, service providers, or others in positions of power.
• International victims may become entangled in complex geopolitical dynamics, particularly in cases where their suffering is linked to conflicts or disputes between states. This can complicate efforts to seek justice and resolution.
• There may be a lack of coordination and collaboration among international organizations, governments, and civil society groups working on behalf of victims, resulting in fragmented or ineffective responses to human rights abuses.
• International victims often face significant trauma and mental health challenges due to their experiences. However, they may have limited access to mental health services and support, particularly in conflict-affected or resource-constrained settings.

Notable Case Laws:

• Airey vs Ireland:
  Mary Airey, an Irish citizen, argued that without legal representation, she was
  denied access to a fair trial in her divorce proceedings. The European Court of
  Human Rights ruled in her favour, emphasizing that access to legal aid is
  essential for a fair trial and that states must provide mechanisms for legal
  representation, especially for financially disadvantaged individuals and
  marginalized groups. The Airey v. Ireland case highlights the vital role of
  legal aid in upholding justice and human rights worldwide.
   
• Vel�squez Rodr�guez v. Honduras
  The case relates to the disappearance of Manfredo Vel�squez Rodr�guez, a
  political activist and university student who went missing in Honduras in 1981.
  It is believed that he was abducted by the state security forces and
  subsequently vanished. Following this, his family complained, alleging that the
  Honduran government was responsible for his disappearance and had contravened
  several provisions of the American Convention on Human Rights. This case led to
  a landmark ruling:
  1. Recognition of the Right to Personal Liberty

Prosecutor vs Anto Furund�ija
Anto Furund�ija, serving as a commander in the Croatian Defence Council during
the Bosnian War, faced accusations of crimes against humanity and breaches of
the laws or customs of war, including acts of torture and rape. The case
centered on an incident wherein Furund�ija purportedly took part in the torture
and sexual assault of Bosnian Muslim women at a detention facility in central
Bosnia in 1993. the case established several crucial legal principles:

• Recognition of Sexual Violence as a War Crime
• Command Responsibility.
• Importance of Witness Testimony.

Rantsev v. Cyprus and Russia (European Court of Human Rights, 2010):
The case involved the tragic death of Oxana Rantseva, a young woman trafficked
from Russia to Cyprus and forced into prostitution. Despite her pleas for help
being ignored, she fell to her death while trying to escape her traffickers.
Rantseva’s family brought a case to the European Court of Human Rights (ECHR),
alleging that both Cyprus and Russia failed to protect her from human
trafficking, contributing to her death.

These highlighted issues of state
responsibility in combating trafficking and protecting victims. In its 2010
judgment, the ECHR ruled in favour of Rantseva’s family, finding violations of
several articles of the European Convention on Human Rights. The court held that
Cyprus and Russia had failed in their obligations to protect Rantseva and
conduct effective investigations into her death.

Case of Lubanga (International Criminal Court, 2012):
The Lubanga case, heard by the International Criminal Court (ICC) in 2012, is a
significant case study in international criminal law, particularly regarding the
prosecution of individuals for war crimes, specifically the enlistment and
conscription of child soldiers. In its judgment delivered in 2012, the ICC found
Thomas Lubanga guilty of the war crime of conscripting and enlisting children
under the age of 15 and using them to participate actively in hostilities. The
court highlighted the importance of protecting children from being drawn into
armed conflict and held Lubanga accountable for his actions.

Conclusion:
The criminal justice system around the world has historically focused on
punishing offenders and rehabilitating delinquents. Unfortunately, the needs of
victims have often been neglected. Victimology, on the other hand, is concerned
with providing necessary assistance and relief to victims to help them heal and
recover. In earlier societies, judicial systems prioritized relief and remedies
for victims.

However, as criminal law evolved, the state took on the role of the
individual who had been wronged. The focus shifted to theories of punishment
rather than redressal for victims. Today, new forms and patterns of crime have
added to the challenges faced by victims. However, they remain central to the
criminal justice process and deserve relief and rehabilitation through the
system. Without the cooperation of victims, the criminal justice system cannot
function.

In the United States, both Federal and State laws exist to ensure that victims
of crime have a voice and their grievances are heard. State governments provide
crime victims with specific rights that protect them before, during, and after a
trial. These rights include the right to notice, protection, employment
protection, privacy and confidentiality, restitution, and a speedy trial. The
U.S. is the first country to take significant steps to ensure that victims have
a role in the criminal justice system.

The United Nations adopted the Magna Carta or the Victims’ Rights Charter in
1985, which is also known as the 1985 Declaration on the Basic Principles of
Justice for Victims of Crime and Abuse of Power. This declaration established
victim’s rights globally and universally. In the European Union, similar rights
were mentioned under the EU Directive Establishing Minimum Standards on the
Rights, Support, and Protection of Victims of Crime in 2012.

Since then, many
European countries have incorporated a large number of rights for victims. After
the Second World War, European countries faced numerous hardships. As a result,
some prominent scholars began exploring the concept of victimology as a separate
field of study from criminology. The study of victimology can be traced back to
1940. Before that, the primary focus of research and academic analysis in the
field of criminology was on the perpetrators of criminal acts rather than the
victims.

References:

• https://www.academia.edu
• https://www.doj.gov.hk
• https://www.lexisnexis.co.uk/legal/legislation/uk-parliament-acts/criminal-justice-act-1988
• https://www.madre.org/media-item/calling-for-a-survivor-centered-approach-to-sexual-violence-in-israel-palestine-and-beyond
• https://newuniversityinexileconsortium.org
• http://www.worldsocietyofvictimology.org/publications/wsv11.html

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