#Workingforjustice: Victim Participation at the International Criminal Court (ICC)

Victims’ rights to participate in international criminal justice have long been celebrated as empowering victims to have their say, share their experiences, engage in truth-seeking, and/or receive emotional closure. For equally long, however, many lawyers and NGOs have lamented that victim participation erodes the defendant’s rights to a fair trial, creates punitive cultures and, in any case, is too distant and juridical to be meaningful for victims of atrocity crimes in far-away countries. None of these perspectives is wrong, but they all overlook something more obvious, banal even, namely that victims take time out of their lives to participate in the ICC’s processes and in doing so also localize and legitimate the Court’s interventions. Drawing on my new book, Victims and the Labour of Justice at the International Criminal Court: The Blame Cascade (OUP, 2024), this post explores what happens if we conceptualize victim participation not as a legal right or a restorative justice measure but as a form of labour. Indeed, observing the ICC’s victim engagement in Kenya and Uganda, I was struck by how exhausting justice was; how much it looked like hard work, both for the Court’s field staff and for victims.

But what does it mean to say that victim participation is labour? I argue that the Court’s victim engagement demands a form of labour, both from victims and those who ‘engage’ them, that we are all familiar with, what Marxist-Feminists call social reproduction work: all the birthing, nursing, feeding, educating and caring that is essential for reproducing the worker and his labour power, capitalism’s main source of surplus value, but is not usually recognized or paid as work. We see the worker arriving at the factory gate in the morning and leaving in the evening, but we don’t see the unpaid domestic labour that happens in between and around the clock. Indeed, as Marxist-Feminists argue, capitalism has deliberately obscured the essential character of that labour by walling it off in the home and naturalizing it as part of women’s role, invisibilizing and thus cheapening women’s labour.

Figure 1: Workers Leaving the Factory in Barrow-in-Furness (England, 1901) © BFi Player

I argue that something similar is happening in international criminal justice where victim participation and victims’ labour are essential for reproducing the Court as a legitimate and working institution but are not recognized as work, neither by the Court nor by the surrounding literature.

Figure 2: Making domestic labour visible – a poster by © Red Feminist silk-screen collective in the 1970s-1980s

Part of the reason for this oversight is that both supporters and critics of victim participation tend to focus on the victims’ role in the courtroom or their instrumentalization as ‘passive, innocent’ victim tropes. Of course, if we look at the courtroom, the victims’ role does look rather limited. We can see the victims’ lawyers but no victims, except when they act as witnesses. In the Ongwen case, the first case in Uganda, only seven out of the 4095 participating victims actually ‘had their day in court’ in The Hague. But this overlooks what the ICC does outside the courtroom, ‘in the field’, for example in Kenya and Uganda where I conducted ethnographic observations and interviews with the Court’s field staff, victims’ lawyers, civil society, intermediaries, and victims between 2014 and 2019. (Overall, I conducted 134 interviews including with practitioners in The Hague.)

Indeed, the fixation on the courtroom provides a rather skewed image of what ‘doing’ international criminal justice entails as reflected in the following numbers which the Court used to represent its accomplishments for the year 2023:

• 2 new arrest warrants
• 126 hearings
• 4 ongoing trials
• 46 witnesses testified
• 16,000 victims participated in the proceedings
• 1600 victims received reparations
• 17,000 victims in 8 situations benefitted from assistance
• 400+ outreach meetings with affected communities
• Over 34 million people reached in 16 countries

The first four figures relate to courtroom proceedings and are rather modest, but then the numbers start to climb: 16,000 victims participated in the proceedings; 17,000 victims benefitted from assistance programmes; over 34 million people were reached in 16 countries through media and community outreach. As the ICC itself put it in its ‘Justice at Work’ series: ‘what you see in the Courtroom is the tip of the iceberg. For just one day of Court hearings, hundreds of people are working behind the scenes to make it happen’.

This is even more pertinent for victim participation which really happens in the Court’s situation countries where outreach officers, victims’ lawyers and their field assistants regularly meet victims and affected communities to update them on the trial, listen to their stories and answer their questions. Thus, just like in domestic economies we ‘see’ the factory but not the household labour which makes factory labour possible in the first place, in international criminal justice we (as Western audience) tend to ‘see’ the courtroom but not the field activities that underpin it.

Figure 3: What we ‘see’ when we think of victim participation: The ICC’s courtroom in The Hague © ICC flickr

Figure 4: Where victim participation actually happens: Screening of the Ongwen trial in Lukodi, Uganda © ICC flickr

 Victim Participation as Labour

What happens in the field? What do victims actually do when they participate in international criminal justice? To find out, I talked to victims’ staff, intermediaries and victims in Kenya and Uganda. While few directly characterized victim participation as ‘labour’, they often talked about it as if it was work. Victims complained that they are exhausted from attending meetings and demanded that they should be paid for ‘their contribution’ to the Court’s work (more than the ‘transport reimbursement’ some of them receive). Victims’ staff and lawyers lamented that victims usually come late to the Court’s meetings and are not sufficiently focused on, engaged with, and informed about the trial. Consider how one field assistant in Uganda described the challenges of victim participation on the ground:

They [the victims] still don’t understand fully how it works and even what is expected of them. At the beginning, we had clients who were telling us that they are tired of attending meetings, but one would expect that this is something that someone who has chosen to participate would understand, this is the expectation: this is their duty. So, this is something we had to go through over and over again and tell them, step by step: ‘Do you remember when you came in to apply? This is what participation means. This is what is expected of you, to share your views. The trial cannot go on without you giving us your views. It becomes pointless if we are to work without you…. (Interview with Field Assistant, Kampala, 9 July 2019).

Here, we encounter the rather disciplinary quality of participation: you have agreed to participate, now you must share your views. As victims are roped into the Court’s processes, victim participation morphs from a legal right or democratic measure – making victims’ voices heard – to a labour form – making victims work for the Court, basically for free. And victim participation isn’t exactly a short-lived commitment. The ICC’s trials drag on for years and even decades. For example, the trial against Dominic Ongwen, a speedy trial by ICC standards, began in 2016 and is still in the reparation phase. Victim participation is also risky labour. Victims must travel, sometimes for hours, on unsafe roads, crossing checkpoints, bribing police officers, to meet the Court’s lawyers and outreach officers. And in countries in which the government is hostile to the ICC’s intervention, like in the Kenyan cases, victim participation can become very dangerous labour, indeed. Far from ‘having their day in court’, victims invisibly labour in the courtroom’s shadow for years.

Why don’t we see or recognize victims’ labour? Part of the reason is that victims in rural areas in the Global South, especially in Africa, where the Court tends to operate, are often manual, subsistence and reproductive workers whose time is not valued. Another part is that participation is not seen as work because victims do it to receive justice. It is their commitment to justice, rather than any legal obligation or financial incentive, which makes them undertake that labour. Justice, like much social reproduction work, could thus be considered a labour of love. As Silvia Federici explains, a ‘labour of love’ is a form of labour which is not defined by a wage contract and whose very character as labour is concealed by ideological and affective expectations that we do it because we want to do it, because we believe in it, because it’s part of who we are, or because we love those we do it for. And love, of course, is supposed to be given freely.

Victims’ Labour: A Labour of Love?

Whether or not the labour of justice can be considered a ‘labour of love’, it is undisputable that the Court’s victim engagement exacts plenty of emotional labour both from victims and those who work with them, whether victims’ lawyers, field staff, local assistants or intermediaries. Consider, for example, how one victims’ officer in Uganda described her work of facilitating victims’ applications to participate in the Court’s proceedings:

They [the judges] gave us six months to file applications after the confirmation of charges. …One thing that struck me is that many victims, and I met with all of the 4100 victims, for all or most of them, it was the first time that they ever sat down with someone to listen to them, to take down their story, from their perspective … Doing this was, personally, and I come from Northern Uganda, so it was an interesting thing, but it was also sad, because I didn’t see how we were able to close the wounds that we were opening through the application process… It was emotionally draining. In fact, I got sick after the application process, like, it was manic; it was very fast; it was emotional. For me, there was just too much that I had to deal with (Interview with Field Officer, Kampala, 9 July 2019).

Who ends up doing most of that labour? Victims’ work is gendered and racialized as gendered and racialized workers do most of that labour. African lawyers can be hired cheaply as field assistants or interpreters, and intermediaries, often victims themselves, do most of the work of engaging victims and affected communities as unpaid ‘volunteers’ or ‘friends’ of the Court. The darker you are, the closer you are to victims, the more emotional labour you do, the less valuable your work is.

Figure 5: From the ICC’s Website: ‘Civil Society and the ICC’ Hague © ICC Website

How victims’ labour is devalued through feminization can be illustrated with the example of local intermediaries who help the Court with evidence collection, outreach and victim engagement on the ground. Many intermediaries are professional workers, but few are recognized as such by the ICC. Indeed, the Court insists that ‘the function of an intermediary … is in principle unpaid’. Intermediaries are reimbursed for eligible expenses rather than paid for their labour. This is especially true for victim engagement, as opposed to investigations, where the Prosecutor’s office would more often use paid, contracted intermediaries (see here para 203). In my interviews, the Court’s victims’ practitioners often emphasized that it is intermediaries’ cultural and personal proximity to victims and witnesses rather than their professional expertise, which makes them valuable to the Court, not law but love. By associating intermediaries with feelings and values like trust and care, their labour is hidden while moral expectations are heightened, which then stirs feelings of betrayal and outrage when intermediaries are not ‘faithful’, when they betray the Court’s trust, when they take advantage of their role, when they start gatekeeping. Indeed, it is often easier to blame those who fail in love, not law. Think, for example, of society’s relentless blaming of ‘the uncaring mother’, that unpaid essential worker, who, as Jacqueline Rose argues, becomes the ultimate scapegoat ‘for everything that is wrong with the world’.

Wages for Victims?

But interpreting victim participation as labour also raises the question of what it contributes to international criminal justice. Not much, some believe. One of the judges I interviewed in The Hague in 2013 insisted that the court’s ‘core business’ is investigating and prosecuting atrocity crimes which could be done more effectively without victim participation (see also here and here). But that ignores how victims’ labour makes the Court a legitimate institution, especially at a time when the justice ideology has shifted (and you can get a sense of that if you follow the Court on X) from seeing justice as something that is best judged from a distance to embracing it as a process that needs to be engaged, localized and participatory not only to be meaningful but also to be marketable to states, donors and the ‘international community’. It also overlooks the importance of unpaid or underpaid labour for the Court’s ‘core business’. Perennially constrained by a tight budget, the ICC could not possibly investigate and prosecute effectively in 17 countries across four continents without cheap or free local labour, much of which is provided by victims, witnesses, NGOs and victims’ associations. In my book, I further show that what is at stake in the Court’s victim engagement is not simply the reproduction of the Court through the labour of victims but also the reproduction of global capitalist relations by recruiting and training those at the global periphery, who have been ‘unproductive’ due to years of war and displacement, as capitalist subjects who willingly accept their position at the bottom of the global division of labour.

But here I want to briefly consider the political and normative implications of considering victim participation as labour. Should victims be paid for their labour? Do we need to monetize their contribution to international criminal justice to value it? In a world in which both capitalist value and normative value are measured in the money form, which also supplies the means of survival, paying victims, intermediaries and victim workers fairly for their labour appears like the right approach. But what if that makes international criminal justice unaffordable? Or even if it was affordable, what if it turns justice into something that people only pursue for money? The ‘Wages for Housework’ campaign in the 1970s faced similar questions. They replied as follows: ‘we do not say that gaining a wage is the revolution. We say, however, that it is a revolutionary strategy, for it undermines the role we are assigned in the capitalist division of labor … our aim is to be priceless, to price ourselves out of the market, for housework and factory work and office work to become “uneconomic”’. In this way, demands for ‘wages for victims’ that are easily dismissed as ‘unrealistic’ or ‘counterproductive’ can become prefigurative for a new world of labour producing a new world of justice. Indeed, if justice workers, including victims, had a real say in the type of justice they are producing (rather than merely a ‘voice’ in a top-down legal process), the latter will presumably take on new meanings and forms, including more redistributive, community-based, deliberative and reparative justice processes.