Introduction 1
Ⅰ. Addressing Some Critical Conceptual and Methodological Issues 6
A. Defining the Rights of Victims in Criminal Procedures Analysed in this Work 6
B. Delineating my Approach to This Matter 8
C. Identifying and Discussing the Legal Frameworks Used in This Work 10
Ⅱ. The State of Customary International Law on This Subject 11
Ⅲ. Why the Current State of Customary International Law on This Matter is Inadequate 12
A. Legal Bases and Rationales for Victim Access to and Participation in Criminal Procedures 12
ⅰ. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters 12
ⅱ. Internationally Recognised Human Rights and Principles 14
ⅲ. Other Rationales 16
B. Observance of the Principles that Inform the Enforcement of Criminal Law in Democratic States 19
C. Other Reasons Why the Current State of Customary International Law on This Subject is Inadequate 20
D. Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Serious Human Rights Violations 21
Ⅳ. Assessing the Significance of Victim Access to and Participation in Criminal Procedures 22
Chapter Ⅰ Conceptual Framework 23
Ⅰ. The Concept of Serious Human Rights Violations 23
Ⅱ. The Concept of Victim 25
Ⅲ. The Legal Status of the Decisions of Human Rights Treaty Monitoring Bodies in Individual Cases 27
A. Practice of the UN Human Rights Committee 28
B. Approaches by Scholars 30
C. Approach Adopted in This Work 33
Chapter Ⅱ Procedural Obligations of States in the Field of Criminal Justice When Faced with Serious Human Rights Violations 37
Ⅰ. Features of States' Procedural Obligations When Faced with Serious Human Rights Violations Generally 38
A. Legal Sources and Rationales 38
ⅰ. Case Law of United Nations and Regional Human Rights Treaty Monitoring Bodies 40
B. The Nature of States' Obligation to Investigate 55
C. Content of States' Procedural Obligations 58
D. The Objectives of Criminal Procedures for Serious Human Rights Violations 60
E. Scope Ratione Personae 62
ⅰ. United Nations Human Rights Instruments and Bodies 62
ⅱ. Case Law of Regional Human Rights Treaty Monitoring Bodies 65
ⅲ. Conclusion 69
F. Conclusions of this Section 70
Ⅱ. States' Procedural Obligations in Situations of Mass Serious Human Rights Violations 71
A. The State of Customary International Law 72
B. Assessing States' Compliance with Their Obligations under General Human Rights Treaties and Certain Subject Specific International Conventions 79
ⅰ. Why Balance the Goal of Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations with Other Objectives of Societies in Transition? 79
ⅱ. Conditions to be Met in Order that a State Can Refrain from Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations 84
ⅲ. Legal Grounds that a State May Invoke for Adopting a Conditional Amnesty Scheme 86
ⅳ. Requirements that Prosecutions Should Fulfil 93
ⅴ. The Need for Non-Prosecution Measures to Supplement Prosecutions 93
C. Conclusions of this Section 95
Ⅲ. General Conclusions 95
Chapter Ⅲ The Status Under International Law of the Rights of Access to and Participation in Criminal Proceedings Before Domestic Courts for Victims of Serious Human Rights Violations 99
Ⅰ. The Approach of United Nations Instruments and Monitoring Bodies 101
A. The Approach of United Nations Treaties and Their Monitoring Bodies 101
ⅰ. The International Covenant on Civil and Political Rights 101
ⅱ. The UN Convention against Torture 103
ⅲ. International Instruments Proscribing Forced Disappearance 104
ⅳ. Other International Conventions 105
B. United Nations Instruments Other Than Treaties 106
ⅰ. The UN Declaration for Victims of Crime 106
ⅱ. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims 107
ⅲ. The Set of Principles on Combating Impunity 109
C. Conclusions 110
Ⅱ. Case Law of Regional Human Rights Treaty Monitoring Bodies 111
A. The Inter-American System for the Protection of Human Rights 112
ⅰ. Victims' Right to Resort to the Administration of Justice to Obtain an Investigation and, if Warranted, that Those Responsible are Prosecuted and Punished 112
ⅱ. Victims' Right to Participate in Criminal Proceedings 117
ⅲ. Discussion 118
ⅳ. Conclusions 121
B. The European System for the Protection of Human Rights 122
ⅰ. Victims' Rights in Criminal Proceedings Recognised by the ECtHR When Assessing Compliance with the State's Procedural Obligations When Faced with Serious Human Rights Violations 122
ⅱ. Do Victims of Serious Human Rights Violations Enjoy the Right nto a Fair Hearing in Criminal Proceedings? 127
ⅲ. The Implementation of States' Procedural Obligations When Faced with Serious Human Rights Violations 129
ⅳ. Conclusions 130
C. The African System for the Protection of Human Rights 131
ⅰ. The Right to an Effective Remedy 132
ⅱ. The Right to a Fair Hearing 132
ⅲ. Conclusions 133
Ⅲ. The Divide between the Common Law and the Civil Law Traditions 134
A. The Premises and Features of the Common Law Tradition 134
B. The Premises and Features of the Civil Law Tradition 135
C. Features of Current Approaches in Common Law and Civil Law Jurisdictions 137
D. Conclusions 141
Ⅳ. General Conclusions 142
Chapter Ⅳ Reappraising Access to and Participation in Criminal Proceedings for Victims of Serious Human Rights Violations 147
Ⅰ. The Legal Bases and Rationales for Access to and Participation in Criminal Procedures for Victims of Serious Human Rights Violations 148
A. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters 148
B. The Right to an Effective Remedy 149
C. The Right to a Fair Hearing 152
D. Contribution to Effective Human Rights Protection and to Reaffirmation of the Principle of the Rule of Law 159
Ⅱ. Other Rationales for Victim Access to and Participation in Criminal Procedures 161
A. Recognising Several Legitimate Interests of Victims in the Criminal Procedures for Serious Human Rights Violations 162
ⅰ. Delimiting the Legitimate Interests of Victims in Criminal Procedures for Serious Human Rights Violations 166
B. Contribution to Victim Perception of the Fairness and Legitimacy of Criminal Procedures 170
Ⅲ. Addressing the Arguments Against Victim Access to and Participation in Criminal Procedures 171
A. Observance of the Public Interest Criteria that Inform Decision-Making in Criminal Procedures in Democratic States 171
B. Victim Access to and Participation in Criminal Procedures Reaffirm the Objectives of Criminal Tribunals 172
C. Victim Participatory Rights in Criminal Procedures Can be Reconciled with a Criminal Justice System Based on Retribution 173
D. Victim Participation in Criminal Procedures is Consistent with the Presumption of Innocence of the Defendant 174
E. Psychological Effects of Victim Access to and Participation in Criminal Procedures Pursuant to the Rights Identified in this Monograph 175
Ⅳ. Implementing Victim Access to and Participation in Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations 190
A. The Investigation Phase 190
B. The Trial Phase 194
ⅰ. The Right to be Heard 194
ⅱ. The Rights to Offer, Examine and Challenge Evidence at the Trial 200
Ⅴ. Conclusions 202
Chapter Ⅴ Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity 207
Ⅰ. Victims in the Proceedings before International and Hybrid Criminal Tribunals 208
A. Victims in the Proceedings before the ad hoc International Criminal Tribunals 208
B. Victims in the Proceedings before the International Criminal Court 210
C. Victims in the Proceedings before the Hybrid Criminal Tribunals 212
ⅰ. The Hybrid Courts in Kosovo 213
ⅱ. The Special Panels in East Timor 216
ⅲ. The Special Court of Sierra Leone 217
ⅳ. The Special Chamber in the State Court of Bosnia and Herzegovina 217
ⅴ. The Extraordinary Chambers in the Courts of Cambodia 220
ⅵ. The Special Tribunal for Lebanon 223
D. Conclusions 224
Ⅱ. Why Allow Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity? 225
Ⅲ. Addressing the Arguments against Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity 229
Ⅳ. Implementing Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity 233
A. Should Victim Participation in Criminal Proceedings Carried out in Situations of Mass Atrocity Take Place Only through a Legal Representative? 233
B. Content of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity 238
ⅰ. Victim Rights at the Investigation Phase 238
ⅱ. Victim Rights at the Trial Phase 249
ⅲ. Steps Needed for the Recognition of these Victim Rights 252
C. The Scope of Victims' Legitimate Interests in Criminal Proceedings Conducted in Situations of Mass Atrocity 252
D. Need for Additional Measures for the Effective Implementation of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity 256
Ⅴ Conclusions 259
Chapter Ⅵ General Conclusions 263
Ⅰ. The Main Findings and Submissions of This Work 263
A. The State of Customary International Law on This Matter 263
B. Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations From the International Law and Normative Perspectives 264
C. Implementing Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations 268
ⅰ. Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations 268
ⅱ. Criminal Procedures Conducted in Situations of Mass Atrocity 269
D. The Significance of Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations 270
Ⅱ. The Implications of the Findings of this Work 271
Bibliography 275
Index 307