Chapter 9 The Politics of Reparations at the International Criminal Court

In: The Politics of International Criminal Law
Author: Miriam Cohen
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1 Introduction

At its inception, international criminal justice sought to punish offenders and attempted to hold them accountable for their actions. More recently, international criminal law has begun to embrace the notion that pursuing ‘justice for victims’ of atrocities may be necessary to achieve justice.1

While realizing justice for victims may appear to be a simple notion, it has been confronted by a number of practical challenges. The international community has questioned what meaning, scope, and content it should be given, and whether the international criminal justice system is truly able to deliver justice for victims. At the International Criminal Court (‘icc’), the pursuit of justice for victims facilitated the inclusion of reparations as a remedy in the field of international criminal law. Nevertheless, as this chapter argues, so far, internal factors have influenced the types of reparations available and how they can be implemented. The structure of the reparation system at the icc, and the way in which reparations have been integrated into past decisions by the Court Chambers, have the potential to create a hierarchy of victims by placing limitations on victimhood which conflict with what is required to achieve justice for victims. There exists a hierarchy of victims between those whose cases are tried by the icc, and those whose cases are not prosecuted before the Court, and thus cannot be covered under the icc reparation scheme. There is also a tension between individual and collective types of reparation awards. Decisions by the icc demonstrate that while individual victims may prefer individual reparations, the icc has instead focused primarily on collective reparations.2

The goal of this chapter is to trace the evolution of the use of reparation as a remedy within the international criminal justice system. Through a case study of the operationalisation of reparations before the icc, this chapter ultimately claims that determining the beneficiaries, the forms of reparation, and the methods of allocating those reparations, all have inherently political components and consequences. Attempts to achieve justice, such as the development of a system of reparations at the icc, are in practice often shaped by their historical foundations. It is argued that there exists a disconnect between the rhetoric appealing to idealistic notions about justice for victims in support of reparation clauses, and the fact that the decision to award reparations has been increasingly influenced by the political and structural limitations of the icc. In order to provide meaningful justice for victims, it is suggested that the icc must move beyond the rhetoric and develop a collaborative understanding of its reparations mandate.

This chapter starts by examining the origins of international criminal law and considers international criminal law’s early focus on punishment. Second, it evaluates the way reparations have been implemented by the icc, the first international criminal tribunal to recognize a victim’s right to reparations, and highlights the potential impact that internal factors may have on decisions on reparations. Third, the chapter discusses as a case study the icc’s first case addressing reparations (at trial and appeal levels), which established the so-called ‘principles of reparations’ and prompted different constructions of victimhood before the Court.

2 The Genesis of International Criminal Law and the Focus on Individual Accountability

To understand the change that making reparations available as a remedy represents, it is necessary to view the development of international criminal law within the broader historical framework of international law. The development of international criminal law represented a shift from a purely State-centred approach of international responsibility.3 For a long time, international law was concerned solely with inter-State matters, and the idea of individuals being a (passive) subject of international law, standing trial and being punished, would have been inconceivable within the traditional framework of international law.4

Modern international criminal law developed as a response to the atrocities committed during the Second World War. In the war’s aftermath, it became clear that the atrocities committed during the Second World War needed to be addressed by the international community. However, holding an abstract entity such as a State solely responsible, without punishing those who individually perpetrated the atrocities, was no longer acceptable nor desirable, and often stood in contrast with domestic criminal justice systems. Therefore, the punishment of individual perpetrators was seen as a necessary step towards the establishment of a genuine international legal order.

The advent of modern international criminal law represents a turning point in the conceptual framework of international law. This paradigm shift is well illustrated in a statement made by the International Military Tribunal at Nuremberg, which noted that ‘crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.5 This statement also demonstrates that, since its inception, international criminal law was premised on a narrow definition of justice focused primarily on the trial and punishment of individuals who perpetrated atrocities in order to achieve international criminal law objectives.

Focusing solely on punishing individual perpetrators, as opposed to developing a framework that included redress for victims alongside criminal sanctions, can be better understood by considering the position of the individual as a subject of the State during the early development of international criminal law. The battle of that time was to go beyond the State in order to be able to put on trial the individuals responsible for the atrocities of the Second World War.6 As a result, justice for victims included solely a criminal dimension, that is, holding the criminal perpetrators accountable.

However, a State-based framework was not completely dismantled. State sovereignty remained as far as reparations for victims were concerned: reparations for international crimes were to be sought by States rather than by individuals.7 In other words, redress for victims of international crimes continued a State-based approach.8

The politics of international law and international relations impacted the early historical development of international criminal law, and therefore influenced the early development of reparations as a remedy for victims of international crimes. Reparations were often viewed as a matter of State responsibility, that is, to be settled by inter-State agreements after the war. The development of international criminal law allowed for the recognition of individuals as perpetrators of international crimes, but it did not take a further step of recognising the perpetrators’ victims as right-holders under international law. However, during negotiations of the Rome Statute,9 the icc’s enabling statute, the idea of justice for victims was brought back to the fore, and as a result, the potential for victims to claim reparations within icc proceedings was included in the Rome Statute, alongside the aim of prosecuting the accused individuals.

3 Operationalising Reparations at the International Criminal Court: the Evolving Notion of ‘Justice for Victims’

One of the main innovations of the icc, as compared to previous international criminal tribunals, has been to incorporate victims’ rights, including a right to reparations,10 within the framework of an international criminal tribunal.11 The inclusion of victims and the possibility of obtaining reparations within icc proceedings sets the icc apart from previous ad hoc international criminal tribunals, which determined that justice for victims is best attained by holding perpetrators accountable. In the Prosecutor v. Obrenović case, Trial Chamber i of the International Criminal Tribunal for the former Yugoslavia (icty) stated that ‘[i]ndividual accountability for the crimes committed and commensurate punishment is the aim of criminal proceedings involving such grave crimes’.12

With the advent of the icc and the Extraordinary Chambers in the Courts of Cambodia (‘eccc’), international criminal law developed to allow individual victims to play a more active role in proceedings,13 and to allow adjudicators to award reparations. This change in the dynamics of international criminal law has led to many questions, challenges and critiques. One primary critique asks whether the structural limitations of the icc, a Court devised to undertake criminal proceedings but subject to pressure from internal and international politics, stands in the way of a truly reparative justice system for victims of international crimes.

Specific aspects of the icc’s mandate on reparations demonstrate that, in practice, the idea of justice for victims is not completely dissociated from politics. Modern notions of international criminal justice have been permeated by particular notions of justice, and have been shaped by the politics of international relations. The next section focuses on the operationalisation of reparations within the icc. It focuses on a discussion of the first case in which the icc considered reparations in order to illustrate the effects of politics on the implementation of the icc’s reparations mandate and to offer a critical examination of the icc’s system of reparative justice.

4 A ‘Victim’ for Purposes of Reparation Awards

Victims of international crimes now have a right to obtain reparations through proceedings before the icc.14 The right to reparations is primarily governed by Article 75 of the Rome Statute.15 However, other provisions of the icc’s governing texts define important features of the icc’s reparation system, including the manner in which the icc decides who qualifies as a victim. By embracing multiple levels of victimhood, the icc has effectively limited who may qualify as a victim under the Rome Statute.

4.1 Definition of Victims

It has been established that an individual must be recognised as a victim by the icc before being entitled to claim reparations under the icc scheme. In order to be declared a victim, individuals, or their representatives, must initiate legal proceedings for reparations by filing a request with the icc. The icc may also initiate the reparation procedure proprio motu in exceptional circumstances.16

According to Rule 85 of the icc Rules of Procedure and Evidence, victims are defined as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court’.17 Victims may also include legal persons, such as corporations or institutions. This Rule was interpreted in the Situation in the Democratic Republic of Congo case18 where Pre-Trial Chamber i established criteria to be used in determining whether individual applicants meet the definition of a victim in relation to natural persons. A four-part test was developed which has been subsequently followed by other Chambers and confirmed on appeal.19 The test to identify whether an applicant should be considered a victim under Rule 85 proceeds by inquiring:

  1. (i)whether the identity of a natural person or legal person can be established;
  2. (ii)whether the applicants claim to have suffered harm;
  3. (iii)whether a crime within the jurisdiction of the Court can be established; and
  4. (iv)whether harm was caused ‘as a result’ of the event constituting the crime within the jurisdiction of the Court.20

This test, defining who qualifies as a victim for the purpose of proceedings before the Court, is limited in a number of ways in practice. The test is subject to prosecutorial discretion over which crimes are finally charged and prosecuted. In other words, only victims of the crimes within the jurisdiction of the Court for which the Prosecutor has pursued charges, and an accused is then convicted before the icc, can potentially receive reparations. The Prosecutor’s selection of situations, and cases, will dictate the victims in practice, who get their day in Court, and who might eventually receive reparations. This discretion creates a first-level limitation on victimhood: not all victims of crimes within the jurisdiction of the icc will be recognised as victims for the purpose of proceedings before the Court.

4.2 Constructions of Victimhood

When discussing the potential beneficiaries of reparations, the first step is whether the individual meets the icc’s legal definition of a ‘victim’ as discussed above. However, a first-order question seeks to understand how this legal definition operates to create a hierarchy of victims, and the effects of such a hierarchy. It asks whether it is appropriate to differentiate and prioritise certain victims over others, and, if so, whether certain classes of victims should receive priority when disbursing reparations. Finally, it questions the role that law, morality, justice, and politics play in deciding which victims should receive priority.

Asking such questions relates to the effect that adding a civil dimension (that is, a dimension focused on reparations) to international criminal justice may have on different kinds of victims. Victims of international crimes are often compartmentalised and differentiated by various decisions made by the icc, including the selection of which conflict(s) to investigate, the temporal jurisdiction of the Court, the determination of which charges will be brought against an alleged perpetrator, the confirmation of such charges, the conviction of the accused, and whether an individual is recognised as a ‘victim’ for the purpose of proceedings before the icc, among others.

All of these decisions allow ‘recognized victims’ an opportunity to receive reparations while others – who are also victims of international crimes – are denied such an opportunity.21 This dynamic effectively imposes a hierarchy of victims when it comes to reparations between victims of international crimes who can obtain reparations and those who cannot. The political implications of this hierarchy create diverging perceptions of justice among victims of the same conflict and influence the legitimacy of the icc among the affected populations.

The interplay between justice, politics, and the creation of a hierarchical system of victims is also illustrated by the tension between individual and collective reparations. Although individual awards permit the voices, needs, and desires of specific victims to be heard, collective reparations are more inclusive and can benefit a greater number of victims. Individualised reparations also require greater selectivity – as awards are made to individual victims based on specific selection criteria – and may lead to prioritising a particular class of victims. In this regard, the selection of victims and the crafting of individualised reparation awards may be more likely to reflect particular political interests.

One such example can be found in the reparations phase of the first trial, Prosecutor v. Thomas Lubanga Dyilo (the ‘Lubanga case’), heard before the icc in 2012. During this phase, victim advocates campaigned to ensure that reparations would take into account the needs of individual victims, thus favouring individual reparations.22 Victims also claimed that individual awards should be disbursed according to the personal situation of victims.23

An important issue is how victims perceive the international criminal justice system. The inclusion of reparations as a remedy available to victims appearing before the icc sheds light on the way victims often conceive of justice and their perception of the legitimacy of the icc. A victim’s conception of justice may not be solely concerned with the prosecution and punishment of the offender; it often includes some measure of reparation. This view was confirmed in a 2015 study conducted by researchers at the Human Rights Center of the University of California’s Berkeley School of Law. The study interviewed 622 victim participants with matters appearing before the icc about the participation regime at the icc. While the study concluded that the participation regime needed to be reformed, it had also made some interesting conclusions regarding reparations. In particular, the study submitted that:

Victim participants joined icc cases with the expectation that they would receive reparations. In Uganda and drc, the prospect of receiving reparations was the primary motivation for the overwhelming majority of victim participants; in Kenya and Côte d’Ivoire, less than half reported that receiving reparations was their main objective. Nearly all respondents, however, reported an interest in individualized reparations for themselves and others. Their conceptions of reparations were frequently interwoven with local conceptions of justice.24

Similarly, a 2013 study on victims’ rights before the icc reported that: ‘As the damage to participating victims is individual, victims do not understand collective reparations and feel that individual reparations would better fulfil their expectations’.25

Constructions of victimhood at the icc are marked by this dilemma where reparations in international criminal justice will undoubtedly suffer from selectivity, hierarchy and prioritisation, at one level or another. These are also characteristics of international justice in its criminal dimension.

5 The Tension Between Justice and Politics: types of Reparations and the Collective Versus the Individual in the icc Context

Another area that highlights the conflict between achieving justice for victims and the political rhetoric used to support reparations is the type of reparations that can be awarded in the icc context. Article 75(2) states that:

The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.26

Following the drafting of the Rome Statute, much debate surrounded the way in which the Chambers of the icc might develop and apply principles of reparations.27 It took some time before the Court’s Chambers were required to examine a request for reparations. Many questions remain regarding how Article 75 of the Rome Statute could be interpreted, and the practical effects it could have on reparation awards to victims.

It is important to take note of the types of reparations specifically mentioned – ‘restitution, compensation and rehabilitation’ – but not symbolic forms of reparations, such as satisfaction, and non-repetition. The precise reason for failing to expressly mention these forms of reparations is unknown.28 However, as Frédéric Mégret argues:

Symbolic reparations have several uses. They may be particularly important in cases where the harm is hard to evaluate, or continuing, or where the injury cannot be repaired … Symbolic reparations also cater to a broader range of victim concerns, and take seriously their need for recognition, respect, dignity and hope for a safe future.29

Material and symbolic reparations are not mutually exclusive; they can in fact complement each other. Given the nature of mass victimisation resulting from international crimes, this complementarity of reparations is relevant to cases before the icc. The fact that symbolic reparations were not included raises questions about the role particular conceptions of justice may have played when the selection of the forms of reparations was made during negotiations of the Rome Statute, and during the early development of the system of reparations at the icc. As the reparation system at the icc continues to develop, it is hoped that symbolic forms of reparations will be taken into account, and included as a form of reparation available to victims appearing before the icc.

Turning to reparation awards, under the terms of Rule 97 of the icc Rules of Procedure and Evidence, the Court may award reparations on an individualised basis or, where it deems it appropriate, on a collective basis, or both. This was confirmed by Trial Chamber i in the Lubanga case.30 Rule 98 stipulates that collective reparation awards are to be channelled through the Trust Fund for Victims (‘tfv’).31 The tfv sets out ‘the precise nature of the collective award(s), where not already specified by the Court, as well as the methods for its/their implementation’.32 It is worth noting, however, that the assessment by the tfv must be approved by the Court.

In the context of mass atrocities where the number of victims is often very large, or cannot be accurately assessed, collective reparations are an important way to help redress the collective nature of the crimes within the jurisdiction of the icc. In fact, when taking into account the scale and impact of many international crimes, it may be difficult, if not impossible, to provide redress to each individual victim.33 A key practical advantage of collective reparations is that they can help the Court to maximise the impact of the limited resources that the Court may have at its disposal to provide as reparations to victims, potentially leading to a situation where victims have to be individually selected for reparation purposes.

Collective reparations can also be seen from an ontological lens. Frédéric Mégret argues,

the opposition between individuals and groups is also partially artificial: international crimes target the “groupness” that is in the individual, and the individual that is in the group. More than trying to offer reparation to groups and/or individuals as such, one may wonder whether a truly groundbreaking theory of reparations would not try to direct itself less at mending the subjects – individual or collective – than the relations that exist between them and the rest of society. In the end, it seems, what is broken and torn apart by international crimes is not only the integrity of individuals or groups taken in isolation, as much as their place in the world and the ties that bind them. In that respect, however, looking at groups, the place of individuals within them, and the place of the group within society, is already in itself a way of focusing attention on the relational aspects of reparations.34

One interesting issue concerns the raison d’être of collective reparations. Often international crimes are not aimed at a specific individual but rather at a community, or a group of individuals, and often the crime is perpetrated against individuals due to the fact that they belong to a particular group.35 Collective reparations can potentially offer a means of redress for a large number of victims, while acknowledging their suffering and losses and providing a way to reach victims who, for one reason or another, are unable to claim reparations before the Court.36

Setting the normative perspective aside, when it comes to the adjudication and award of reparations, a primary consideration pertains to the nature of international crimes and the ability of the international criminal justice system, and the icc in particular, to provide reparations in mass victimization situations. This stands at the heart of the tension between individual and collective reparations, and the relationship between justice and politics. This was evidenced in the first reparation case before the icc, the Lubanga case.

5.1 A Collective Approach to Reparations – The Lubanga Case

As discussed above, victims in the Lubanga case requested both individual and collective reparations. The Trial Chamber adopted a collective/community-based approach, rejecting requests for individual reparations due to the limited availability of funds.37 Since the convicted person was declared indigent, any reparations would be dependent on voluntary contributions to the tfv. By deciding to focus on collective reparations, the reparation net was cast wider and could therefore benefit a greater number of victims. It also discharged the Court from the task of crafting individual remedies and assessing each individual claim.38 It is claimed, however, that by focusing on collective reparations, an abstract, intangible construction of victimhood is given priority over the needs, interests, desires, and concrete claims of individual victims, which effectively disregards the unique harm they have suffered.39 The choice to award collective reparations, contrary to the stated desires of individual victims, raises the question of the true meaning of justice for victims before the icc.

Considering the Lubanga case was the first that elaborated the principles of reparations at the icc, it merits some discussion of the factual background. In 2012, in the case against Thomas Lubanga Dyilo, Trial Chamber i rendered the first decision of the icc on the question of reparations.40 The Appeals Chamber subsequently rendered its Judgment on the case in 2015, further elaborating on the principles of reparations and appending an amended reparation Order to its Judgment. It is useful to briefly examine both the first Decision of Trial Chamber i,41 and the Appeals Chamber Judgment (collectively the ‘Chambers’) addressing the principles of reparations to be applied, and the procedures to be followed. The purpose of this chapter is not to examine each judgment in detail, but rather to set out the main conclusions of the Chambers which offered some clarity about the path ahead for reparation remedies at the icc.

In general terms, in its Decision, Trial Chamber i established principles relating to reparations and detailed the required approach to implementation. After emphasising that the Decision on Reparations should not affect the rights of victims in other cases, Trial Chamber i then set out: the applicable law; the principles of dignity, non-discrimination and non-stigmatisation; the possible beneficiaries of reparations; rules about accessibility and consultation with victims; principles relating to victims of sexual violence and child victims; the scope of reparations and the modalities thereof; the principle of proportional and adequate reparations; causation; the standard and burden of proof; principles relating to the rights of the defence; questions relating to States and other stakeholders; and required the publicity of the principles established therein.42

Trial Chamber i indicated that the convicted person, Mr. Lubanga Dyilo, had been declared indigent and that any symbolic reparation from him would need his agreement.43 The Chamber decided not to order reparations against the accused directly given his state of indigence. Essentially, the Chamber outsourced the handling of reparations to the tfv and found it unnecessary to ‘remain seized throughout the reparations proceedings’.44 In the operative paragraphs, Trial Chamber i decided not to examine individual applications for reparations and instead instructed the Registry to transmit all the individual application forms it received to the tfv.45

The Appeals Chamber reversed many of the Trial Chamber’s findings. Among its many conclusions, the most significant established the minimum elements required to be found within a reparations order. They are:

  1. 1.The order for reparations shall be directed at a convicted person;
  2. 2.It must establish and inform him/her of his/her liability regarding reparation;
  3. 3.It must describe and reason the type of reparation in accordance with Rule 97(1) and 98 of the rpe;
  4. 4.It must describe the harm caused and the modalities of reparation that are appropriate in the circumstances; and
  5. 5.It shall also identify the victims or set out eligibility criteria based on the link between the harm suffered and the crimes the accused was convicted.46

The Appeals Chamber also confirmed that in this case, collective reparations, rather than individual reparations, should be ordered given the number of victims involved. It also confirmed that reparations should be awarded according to the degree of the harm suffered as a result of a crime which occurred within the jurisdiction of the Court.47

Another significant contribution of the Appeals Chamber Judgment, as Carsten Stahn has stated, is:

its articulation of the link between criminal conviction and reparation under Article 75. The icc reparations regime differs from civil claim models due to its nexus to the criminal case, and specifically the focus on conviction. The judgment clarifies that ‘reparation orders are intrinsically linked to the individual whose criminal responsibility is established in a conviction and whose culpability for these criminal acts is determined in a sentence’.48

In light of the Appeals Chamber Judgment, the essential elements set out by a Chamber cannot be delegated to an administrative organ like the tfv, and thus continuous monitoring by a Trial Chamber is necessary. This is a positive development as some issues in relation to reparations (including those considered ‘essential elements’) are by nature legal issues and should be overseen by judicial organs. But this development has also led to institutional tension, a topic which will be discussed shortly.

5.2 After the Appeals Chamber Judgment in the Lubanga Case

The question of reparations has not ended with the Judgment of the Appeals Chamber discussed above. Victims were made to wait some time before finally being able to benefit from reparations. This case not only demonstrates the pitfalls of having to decide on the principles of reparations on a case-by-case basis (rather than through the adoption of guiding principles by the plenary of the Court), but also how internal structures can ultimately lead to delays of justice.

Once the long trial ended, victims became caught in the middle of a back-and-forth of submissions between the tfv and the Trial Chamber charged with monitoring the implementation of reparations.49 The timeline of the case demonstrates the extent to which justice was delayed: the conflict which formed the basis of the case tried before the Court covered the period of 2002–2003; charges were confirmed in 2007; the trial started in 2009; the conviction and reparation decision were rendered in 2012; the Appeals Chamber judgment was delivered in 2015; and only at the end of October 2016 was the reparation plan of the tfv accepted by the Trial Chamber.

While it is important to acknowledge that this was the first case before the Court to address reparations, it sheds light on the internal tensions, delays and complexities, which prevents the substantive realisation of providing reparations for victims. The Appeals Chamber’s reliance on the principle of ‘liability to remedy harm’ created a sui generis reparation liability.50 The approach of the Court failed to acknowledge that reparations may have the potential to create societal frictions, and pursued a minimalistic approach regarding other possible objectives of reparations that are non-accountability related.51

While this chapter seeks to explore the significance of the Lubanga case, the case of the Prosecutor v. William Samoei Ruto and Joshua Arap Sang (the ‘Ruto and Sang case’) (the former defendant being Kenya’s Deputy President and the latter being a former journalist), is worth briefly mentioning here.52 This case highlighted how the inherent structural limitations of the Court – set as an institution operating within the framework of criminal proceedings – can hinder its reparations mandate.

In light of the termination of the Ruto and Sang case against the accused, the Trial Chamber was asked whether the State of Kenya had an obligation to provide reparations to victims who had suffered as a result of the post-election violence, and whether the tfv had an obligation to provide assistance to victims.53 The Chamber decided by a two to one (2-1) majority that it was not the right forum to rule on the reparations requested given that the case against the accused was terminated.54 In his Dissenting Opinion, Judge Eboe-Osuji discussed at length the reparation mandate of the Court and stated:

To conflate considerations of punitive justice with those of reparative justice – and say that this Court cannot entertain questions about reparation for victims when a case against the accused has been terminated – will create more confusion and anxiety about the administration of justice in this Court.55

Judge Chile Eboe-Osuji raises an important point at the heart of the reparation system at the icc. He questioned whether reparations at the icc are necessarily conditional on a conviction of the accused person(s):

…I see no convincing basis in law for the idea that an icc Trial Chamber may not entertain questions of reparation merely because the accused they tried was not found guilty.

Indeed, there is a solid basis in international law to reject the no ‘compensation without conviction’ thesis. International and transnational norms concerning criminal injuries compensation have completely rejected the idea.56

In sum, while Lubanga clarified many questions and will pave the way for future developments, many controversies remain. The points raised by the majority and Dissenting Opinion in the Ruto and Sang case demonstrate that there are important questions pertaining to reparation proceedings at the icc, including the interconnectedness of the conviction of the accused person(s) and the ability of the Court to pronounce on reparations.

6 Some Critical Thoughts on the icc’s Reparations Role: the Divide of Justice and Politics

This chapter now turns to critical scholarship concerning possible detrimental effects of including reparations within international criminal trials. The operationalisation of reparations at the icc has been criticised from a variety of different perspectives including: the tension between the rights of victims and rights of the accused; detrimental effects on victims; the influence of politics on the creation and development of reparations in international criminal law; and alleged false constructions of victimhood (discussed above).57

One prominent criticism is that the right to reparations may conflict with the rights of the defence in icc trials. Professor Zappalà argues in this context that:58

Any conflict between the rights of victims and the rights of defendants has to be the object of a delicate balancing that must be carried out in the knowledge that the overarching purpose of criminal procedure is to reach a finding of guilt or innocence whilst protecting at the highest level the rights of those subjected to the proceedings (i.e. the suspect and the accused) … The balancing of victim participation against the rights of the accused should be inspired by some procedural principles of an imperative nature, which represent the backbone of international criminal procedure: the presumption of innocence, the right to a fair hearing in full equality, the right to an expeditious trial, the right to confront and present evidence, and so on.59

While reparations for victims have a place within the broader institutional goals of the icc, their place within concrete criminal trials is less clear. In a criminal trial, a primary consideration is the rights of the accused. The application of victims’ rights in a criminal context is not necessarily an argument against the operationalisation of reparations within the international criminal law context. However, what is clear is that the right to reparations should not be to the detriment of the rights of the accused. For example, reparations should not cause a delay in proceedings against the accused, and must ensure the presumption of innocence is not set aside.

Another important dimension relating to reparations in the international criminal context concerns the various perceptions and constructions of victimhood. Could the inclusion of reparations within a traditional criminal process create an abstract victim that does not always correspond to reality? If so, is it to the detriment of the real victims in actual cases? In this regard, Laurel Fletcher submits that:

Although victims are entitled to limited participation in the trial and to seek reparations after a sentence is reached, the legal structure of the icc prioritises retributive over restorative justice, punishment over reparations, and the conviction of perpetrators over the character of the charges they face. Looking at trial procedures, victims are framed as a consideration against which other rights and values are weighed. Thus the real victims are subordinated to the retributive justice aims of the icc, and their desires are continually compromised despite their moral centrality to the integrated justice (retributive and restorative) mission of the Court.60

Laurel Fletcher also claims that this dichotomy between the ‘abstract’ construction of a victim and ‘real’ victims of international crimes was evident in the first reparations proceedings at the icc, in the Lubanga case. Underlying this argument is the perceived tension between restorative or reparative justice, on the one hand, and the political imperative which has guided the historical development of international criminal law to focus on retributive justice, on the other. Fletcher reviewed the submissions of victims regarding reparations and submits that, while victims of the crimes actually requested individual redress in addition to collective awards, the Chamber only considered community-based reparations. The ‘imagined victim’ again justified abstract, collective forms of repair. This obscured the particular, and dissimilar, preferences of individual victims for reparative justice.61

Another important consideration is the extent to which receiving reparations is an inherently political act. Submitting victims to a criminal process where they must involve themselves in an inherently political act of being recognized as victims in order to be considered for reparations by the icc may further victimise already vulnerable individuals. Peter Dixon argues that the ‘provision of international criminal reparations is an inherently political act through which the icc necessarily becomes a player in local power relations’ through the ‘politics of recognition’, which is inherent in reparations.62 Thus, as the study of the first case at the icc indicates, reparations as a remedy in international criminal justice may not ultimately be entirely dissociated from politics: the determination of the beneficiaries, the forms of reparation, and the methods of allocating those reparations, all have inherently political components, and consequences.

The conclusion which logically results from many of these critical accounts of the reparations process is that when reparations for international crimes start to be considered by the icc, many moral, ethical, and political challenges may arise. It is important to understand, and engage with, these critical accounts while bearing in mind the bigger picture: the icc’s reparations process is one of many ways by which redress for victims of international crimes can be sought. As reparations proceedings at the Court are developed, and as additional principles are developed within the jurisprudence, new lessons will be learned from past practices. It is also important to remember the symbolic benefit of making reparations available to victims of international crimes, as well as the potential for the system of reparations at the icc to be a catalyst for the development of domestic mechanisms governing reparations for international crimes.

7 Conclusions

This chapter reviewed the development of reparations within international criminal law. It sought to understand the structural limitations to the icc’s ability to deliver reparative justice, and argued that certain conceptions of justice, in conjunction with particular political interests, have influenced the development of the icc’s current system of reparations. As a result of the historical development of international criminal law, and the role victims have played in the process, the decision to recognize reparations is not completely dissociated from politics. It is not only the notion of justice for victims that is shaping reparations for victims of international crimes appearing before the icc. Structural limitations, reflecting the dominant historical paradigm governing the development of international criminal law, have also excluded victims from the process. This has resulted in a system that, while premised on the notion of justice for victims, has failed to deliver justice to many.

The icc cannot be the sole source of reparative justice for international crimes. Currently, the Court faces many practical and structural challenges arising from the inclusion of reparations within its mandate. It should not be forgotten that the icc is part of a broader system seeking to address international crimes. National justice systems must complement and work alongside international bodies, such as tribunals, and mechanisms in order to attain the goal of realising justice for victims. It is hoped that the icc can be a catalyst for other similar efforts seeking to provide redress to victims of international crimes.

As the icc progresses by further developing and finessing its reparations system, it is important to recognise that politics play a role, be it in the construction of notions of victimhood, in the recognition of beneficiaries, or in the choices made regarding the forms of reparation awards available. It is only by acknowledging the presence of structural limitations, and a rhetorical discourse far removed from the reality on the ground, that the development of reparations at the icc can move forward in a meaningful way.

1

This paper was originally presented at the 2016 Australian International Criminal Law Workshop. The research and arguments in the chapter are up to date until mid-2018. See e.g., Second Annual Report of the icty, A/50/365-S/1995/728, 23 August 1995, paras. 198–199; icc Press Release, ‘icc Cases and Opportunity for Communities in Ituri to Come Together and Move Forward’, ICC-OTP-20080627-PR332, 27 June 2008.

2

Cf. L. Fletcher, ‘Refracted Justice: the Imagined Victim and the International Criminal Court’, in C. De Vos et al. (eds.), Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge University Press, Cambridge, 2015), pp. 317–319.

3

See generally H. Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’, 21 British Yearbook of International Law (1944) 58.

4

See e.g., L. Oppenheim, International Law: A Treatise (2nd edn., Longmans, Green and Co., London, 1912), pp. 367–368 (stating: ‘the Law of Nations is a law between States, and … individuals cannot be subjects of this law’. The later edition was modified to take into account the growing position of individuals as subjects of international law).

5

Trial of Major War Criminals before the International Military Tribunal, 14 November 1945 – 1 October 1946, (International Military Tribunal, Nuremburg, 1947), p. 223.

6

J. Westlake, The Collected Papers of John Westlake on Public International Law, in L. Oppenheim (ed.) (Cambridge University Press, Cambridge, 1914), p. 411 (Even prior to the Second World War, John Westlake had stated that ‘the same tone of thought will again be evil if it allows us to forget that … the action of our State is that of ourselves’).

7

A. Colonomos, and A. Armstrong, ‘German Reparations to the Jews after World War ii: A Turning Point in the History of Reparations’, in P. de Greiff, Handbook of Reparations (Oxford University Press, Oxford, 2006) p. 390 (according to Ariel Colonomos and Andrea Armstrong: ‘traditionally, reparations were part of the framework of relations between nations following a conflict and obligated the losing State to compensate damages incurred by its opponents during the course of the war’) (hereafter A. Colonomos, ‘German Reparations’). See also P. d’Argent, Les Réparations de Guerre en Droit International Public (Librairie générale de droit et de jurisprudence, Brussels, 2002).

8

Ibid.

9

Rome Statute of the International Criminal Court (A/CONF.183/9) adopted: 17 July 1998 (it came into force on July 1st, 2002) (hereafter ‘Rome Statute’).

10

See e.g., G. Greco, ‘Victims’ Rights Overview under the icc Legal Framework: A Jurisprudential Analysis’, 7 International Criminal Law Review (2007) 531–547.

11

The focus of the present chapter concerns the possibility for victims to request reparations within the icc framework. It does not review victims’ right to participate in icc proceedings.

12

Judgment, Obrenović (IT-02-60/2-S), Trial Chamber i, 10 December 2003, § 46.

13

Concerning victim participation in criminal proceedings: See e.g., C.P. Trumbull, ‘The Victims of Victim Participation in International Criminal Proceedings’, 29 Michigan Journal of International Law (2007) 777.

14

G. Bitti & G.G. Rivas, ‘Reparations Provisions for Victims Under the Rome Statute of the International Criminal Court’, in The International Bureau of the Permanent Court of Arbitration (ed.), Redressing Injustices Through Mass Claims: Innovative Responses to Unique Challenges (Oxford University Press, Oxford, 2006), p. 301.

15

Rome Statute, supra note 9, Art. 75 (established the International Criminal Court (hereafter: ‘icc’)). Article 75 reads as follows:

‘The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.

Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.

In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.

A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.

6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law".

16

Rome Statute, supra note 9 Art. 75(1); Rule 95(1) icc rpe. See also E. Dwertmann, The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations (Leiden, Nijhoff, 2010), at Chapter 6.

17

Rule 95(1) icc rpe.

18

icc, Decision on the Application for Participation in the Proceedings of vprs1, vprs2, vprs3, vprs4, vprs5 and vprs6, Situation in the Democratic Republic of Congo, Case No. ICC-01/04-101-tEN-Corr, Pre-Trial Chamber i, 7 January 2006, para. 9 (hereafter ‘Decision on the Application for Participation’).

19

icc, Judgment on the Appeals of the Prosecutor and The Defence against Trial Chamber i’s Decision on Victims’ Participation, Lubanga, Case No. ICC-01/04-01/06-1432, Appeals Chamber, 18 January 2008.

20

Decision on the Applications for Participation, supra note 18, para. 79.

21

See S. Kendall, and S. Nouwen, ‘Representational Practices at the International Criminal Court: the Gap between Juridified and Abstract Victimhood’, 75 Law and Contemporary Problems (2013) 235–262. See also Christine Schwöbel-Patel, ‘The “Ideal” Victim of International Criminal Law’, 29(3) European Journal of International Law (2018) 703–724.

22

icc, Observations of Victims on Sentencing and Reparations V01, Lubanga, Case No. ICC-01/04-01/06-2880, Legal Representatives of Victims, 14 May 2012, paras. 24–27.

23

icc, Observations of Victims on Sentencing and Reparations V02, Lubanga, Case No. ICC-01/04-01/06-2882, Legal Representatives of Victims, 14 May 2012, para. 27.

24

Human Rights Center, University of California, Berkely School of Law, The Victims’ Court: A Study of 622 Victim Participants at the International Criminal Court (2015), <www.law.berkeley.edu/wp-content/uploads/2015/04/VP_report_2015_final_full2.pdf>, accessed 30 September 2019, p. 71 (The Human Rights Center interviewed icc victim participants, in four countries where the icc had started investigations and prosecutions: Uganda, Democratic Republic of Congo, Kenya, and Côte d’Ivoire. Individuals interviewed were either registered as victim participants or had submitted applications for consideration as victim participants. Some of the questions addressed were: ‘What motivated these men and women to become victim participants? Was it to tell their story and to have it acknowledged by the court? Did they wish to see the accused punished? Or was it more important to receive reparations for the harms they suffered? What did they think of the process of becoming a victim participant? What were their perceptions of the court and how it operated? How were their interactions with court staff? And did they have security or safety concerns?’).

25

Fédération internationale des droits de l’Homme, Enhancing Victims’ Rights Before the icc: A View from Situation Countries on Victims’ Rights at the International Criminal Court, November 2013, <www.fidh.org/IMG/pdf/fidh_victimsrights_621a_nov2013_ld.pdf>, accessed 30 September 2019, pp. 27–28 (The Report addressed various issues relating to victims before the icc, including reparations. fidh selected a ‘group of 11 men and women, experts and representatives from local civil society from situation countries that have worked with victims of Rome Statute crimes in the field and/or have interacted with the icc staff or have good knowledge of the Court. They came from the Democratic Republic of the Congo (drc), Kenya, Mali, Côte d’Ivoire, Sudan and Central African Republic’).

26

Rome Statute, supra note 9 Art. 75(2).

27

See e.g., C. Ferstman, ‘The Reparation Regime of the International Criminal Court: Practical Considerations’, 15 Leiden journal of International Law (2002); L. Zegveld, ‘Victims’ Reparations Claims and International Criminal Courts’, 8 Journal of International Criminal Justice (2010).

28

F. Mégret, ‘The International Criminal Court and the Failure to Mention Symbolic Reparations’, 16(2) International Review of Victimology (2009), 127–147.

29

Ibid.

30

icc, Decision Establishing the Principles and Procedures to be applied to Reparations, Lubanga, Case No. ICC-01/04-01/06-2904, Trial Chamber i, 7 August 2012, paras. 217–221 (hereafter icc, ‘Decision on Reparations’).

31

On the tfv, see Rome Statute, supra note 9, Art. 79.

32

Reg. 69, Regulation of the Trust Fund for Victims, ICC-ASP/4/Res.3.

33

For studies on collective reparations in the context of mass violations of human rights or international humanitarian law: See F. Rosenfeld, ‘Collective Reparation for Victims of Armed Conflict’, 92 International Review of the Red Cross (2010). See also H. Rombouts, Victim Organizations and the Politics of Reparation: A Case-Study on Rwanda (Intersentia, Mortsel, 2004), p. 34.

34

F. Mégret, ‘The Case for Collective Reparations before the icc’, in J. Wemmers (ed.), Reparation for Victims of Crimes Against Humanity (Routledge, London, 2014).

35

R. Lemkin, ‘Genocide as a Crime under International Law’, 41 American Journal of International Law (1947) 145, cited in Dwertmann, supra note 16, p. 122.

36

C. Tomuschat, ‘Darfur – Compensation for the Victims’, 3 Journal of International Criminal Justice (2005) 579; P.R. Dubinsky, ‘Justice for the Collective – The Limits of the Human Rights Class Action’, 102 Michigan Law Review (2004) 1152.

37

icc, ‘Decision on Reparations’, supra note 30, para. 274 (from the Judgment of the Chamber, it seems that the choice for collective reparations was guided by practical implications. It was hoped that collective reparations would have ‘greater utility’ and reduce costs of the administration of individual awards).

38

Ibid.

39

L. Fletcher, supra note 2, pp. 317–319.

40

icc, ‘Decision on Reparations’, supra note 30.

41

Ibid. (Upon the delivery of the first Judgment of the Court in the case of the Prosecutor v. Thomas Lubanga Dyilo, on 14 March 2012, Trial Chamber i issued a scheduling order on, inter alia, the issue of reparations).

42

Ibid., paras. 64–85.

43

Ibid., para. 269.

44

Ibid., para. 261.

45

Ibid., para. 289(b).

46

icc, Judgment on the appeals against the ‘Decision establishing the Principles and Procedures to be applied to Reparations’ of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, Lubanga, Case No. ICC-01/04-01/06-3129, Appeals Chamber, 3 March 2015 (hereafter ‘Judgment on Reparations’).

47

Ibid., para. 1.

48

C. Stahn, ‘Reparative Justice after the Lubanga Appeal Judgment: New Prospects for Expressivism and Participatory Justice or ‘Juridified Victimhood’ by Other Means?’, 13(4) Journal of International Criminal Justice (2015) 801–813.

49

See ‘Order approving the proposed plan of the Trust Fund for Victims in relation to symbolic collective reparations’, Lubanga, ICC-01/04-01/06-3251, Trial Chamber ii, 21 October 2016, paras. 1–10 (for a detailed account of the numerous procedural stages of the implementation of reparations in the Lubanga case).

50

Stahn, supra note 48, p. 808.

51

Ibid.

52

Decision on the Requests regarding Reparations, Ruto and Sang (ICC-01/09-01/11-2038), Trial Chamber v(a), 1 July 2016 (hereafter ‘Ruto and Sang’).

53

Ibid.

54

Ibid.

55

Ibid., para. 9.

56

Ibid., para. 4.

57

See Section 4.2 of this chapter on ‘Constructions of Victimhood’.

58

S. Zappalà, ‘The Rights of Victims v. the Rights of the Accused’, 8 Journal of International Criminal Justice (2010) 137–164.

59

Ibid.

60

L. Fletcher, supra note 2, pp. 304–305.

61

Ibid., p. 319.

62

P.J. Dixon, ‘Reparations and the Politics of Recognition’, in C. De Vos, Contested Justice: The Politics and Practice of the International Criminal Court Interventions (Cambridge University Press, Cambridge, 2015), p. 326.

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