Invited Experts on Reparations Question

Bassiouni Avatar Image M. Cherif Bassiouni Distinguished Research Professor of Law Emeritus DePaul University College of Law

Victim Rights and Participation in ICC Proceedings and in Emerging Customary International Law

To date, the judges of the ICC have narrowly interpreted the court’s statute and have yet to provide victims with the full panoply of rights and remedies as defined by the 2005 Basic Principles.

Summary

The notion that human beings are entitled, as a matter of right, to an effective remedy for human rights violations has a turbulent and incomplete history in the international arena. The idea itself dates back to the Universal Declaration of Human Rights of 1948, which declared that victims should have an effective remedy for violations of fundamental rights. The form of that remedy has remained a source of disagreement, especially with regards to whether states and state actors are subject to criminal jurisdiction for human rights violations, and to the form of victim participation in criminal proceedings.

Since 1985 there have been three distinct attempts to articulate victims’ rights. The first of the three is the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Unfortunately the Declaration that was ultimately adopted, unlike the original draft, lacked expansive provisions for state accountability, especially for civilian superiors and was limited in scope to domestic proceedings. In 1998 the international community returned to this issue as part of the Statute of the International Criminal Court and its 2002 Rules of Procedure and Evidence (“RPE”), which explicitly recognized individual criminal accountability and rejected head of state and other immunities. Finally, the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“2005 Basic Principles”) provided expansive rights to victims for participation and remedy, which the ICC Statute and RPE did not.

However, the approaches adopted by the ICC and the 2005 Basic Principles are not uniform and express a divergence in philosophies between the common law approach of the ICC and the civilist approach of the 2005 Basic Principles. While the ICC provides for the participation of victims in proceedings, their place in the system is limited by three factors. First, prosecutorial considerations often narrow charges to specific crime scenes or incidents, thereby limiting the right of other actual victims to participate, which is especially troubling where the prosecution’s facts are narrowed at a later stage, effectively denying the participation and status of victims who had been previously recognized as such. Second, the ICC’s Statute and RPE, as interpreted by the court’s judges, do not provide universal participatory rights for victims, so that their participation is not assured, for instance on appeal. Finally, it is not yet clear how much latitude victims have in presenting evidence that is not part of the prosecution’s case.

These limitations at the ICC are incompatible with the 2005 Basic Principles, whose underlying premise is that victims cannot be denied a legitimate cause of action or the right to participate fully in proceedings which directly affect them. To date, the judges of the ICC have narrowly interpreted the court’s statute and have yet to provide victims with the full panoply of rights and remedies as defined by the 2005 Basic Principles. While the 2005 Basic Principles are undoubtedly “soft law,” they will hopefully become binding custom and provide guidance for the reformation of the ICC’s unsatisfactory approach. There is clearly a progression in the rights of victims at the ICC when compared to the 1985 Declaration and what came before, but the process is still ongoing and as yet incomplete, and the ICC will likely revisit the question in the years to come.

Argument

The Universal Declaration of Human Rights of 1948 states that, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”1 But it was not until 1985 that the United Nations addressed the question of victims’ rights when the Seventh United Nations Congress on Crime Prevention and Criminal Justice (“Congress”) adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (“Declaration”).2 The draft text, which was prepared by a committee of experts who convened in Ottawa, Canada in 1984 and subsequently submitted to the Congress, was far more extensive than the text that was eventually adopted in 1985.3 This is particularly so with respect to the right of redress for victims of states’ abuse of power.4 That section of the Declaration, whose draft text was two pages long, was reduced to an innocuous paragraph while the rest of the text dealt with victims of crime committed by individuals.

The catalyst for the UN’s effort to adopt a resolution concerning victims was a 1984 industrial disaster in the town of Bhopal, India, which caused the release of toxic chemicals resulting in the death and illness of thousands of persons.5 The deadly spill was due in large part to the state’s failure to protect its citizens from industrial malfeasance and misfeasance.6 The first issue confronting the 1984 delegates was whether states could be held civilly or criminally accountable, or both, for their failure to provide adequate oversight over private sector entities engaging in inherently dangerous activities. The second question was whether a state’s failure to oversee private sector entities placed them de facto beyond the reach of the law. The third question was whether state-actors and corporate decision makers can be de facto beyond the reach of the law when the outcomes of their conduct, by commission or omission, constitutes an international crime.

Establishing rights of redress for victims of states’ crimes was not something the international community was willing to accept in 1985, even though many states provide for administrative and civil accountability for injuries to victims in their national legislations. But states maintain barriers against criminal responsibility for state actors, particularly for civilian superior responsibility.

The Declaration provides for a victim’s right to participate in criminal proceedings, a provision that is mirrored in Rule 85 of the ICC Statute. Both the Declaration and the ICC Statute apply only to crimes committed by individuals, not by States themselves. There is not a single international instrument which extends criminal responsibility to states even for genocide7 and crimes against humanity.8 These issues and others concerning victims’ substantive and procedural rights for international crimes are pertinent to ICC state parties whenever they exercise domestic jurisdiction under the Article 17(1) of the statute pursuant to the principle of complementarity.9

It was not until 1998, following the adoption of the ICC Statute by the Rome Diplomatic Conference, July 17, 1998 that the question of victim’s rights took on a new life. Individual international criminal responsibility was the gravamen of the ICC’s jurisdiction.10 Head of State and other immunities were removed in Article 27 and superior responsibility was clearly established.11 The principal goal of the elimination of immunities and the application of superior responsibility was to provide deterrence and thereby to achieve prevention. These are the same goals reflected in the legislative policy underlying domestic criminal laws of most legal systems. The theory of general deterrence, however, is based on the effectiveness and relative certainty of retributive sanction attaching to the consequences of the criminal violation. Retribution in some legal systems goes back to Talmudic Talion Law (with its famous codification of an “eye for an eye”) which was designed to provide “justice” or, more appropriately, satisfaction to the victims.12 This is the reason for the inclusion in the Rome Statute of article 68(3), which provides for victims’ recovery. Subsequently, as stated above, the Rules of Procedure and Evidence adopted in 2000 provide, in Rule 85, for victim’s participation in the proceedings.13

The ICC Statute, having taken this unprecedented position, spurred the efforts undertaken by the United Nations Commission on Human Rights which resulted in the 2005 Basic Principles .14 Unlike the 1985 Declaration, which focused on domestic crime, the 2005 Basic Principles focused on gross violations of international human rights law and serious violations of international humanitarian law, thus complementing the ICC’s provision for victim compensation and participation in criminal proceedings.15

Unlike the ICC’s Article 68, the 2005 Basic Principles provide for a number of different remedies for victims of the crimes within the scope of international human rights law and serious violations of international humanitarian law. They are: a) restitution, or the “restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property”; b) compensation “for any economically assessable damage” including for physical or mental harm, lost employment, education or social opportunities, material damages and loss of income, moral damage, and the cost of any medical, psychological, legal or social services costs incurred; c) rehabilitation, or the provision of medical, psychological, legal or social services; d) satisfaction, or the implementation of measures to prevent future violations, the verification and public disclosure of facts related to the violation, a declaration from a judicial body recognizing the harm done to the victim thereby restoring the victim’s dignity and reputation, a public apology, the imposition of sanctions against the perpetrator(s), commemorations, and the inclusion of the incident in educational materials; and e) guarantees of non-repetition, including military, police and judicial reform as well as the protection of human rights defenders, the provision of continuing education to the military, police and judiciary, monitoring for human rights violations and reforming problematic laws.16

Under Rule 85 of the ICC’s Rules of Procedure and Evidence, victims have the right to participate in ICC proceedings with respect to crimes within the jurisdiction of the court, which as of now are defined in articles 6, 7, and 8—respectively “genocide”, “crimes against humanity”, and “war crimes”—and after its possible entry into effect in 2017, the crime of “aggression”.17 Violations giving rise to victims’ rights and participation under the ICC regime are more limited than under the 2005 Basic Principles, as are the remedies afforded. Under the ICC’s Rules, these remedies are limited to restitution, compensation and rehabilitation,18 and do not extend to other forms of redress for victims contained in the 2005 Basic Principles, as described above. It should also be noted that neither the Statute adopted in 1998 nor the Rules adopted in 2002 define compensation or rehabilitation. Under the provisions in the ICC Statute for the ICC’s Trust Fund,19 individual claims for reparations shall be made directly against the convicted person, which limits the exposure of States and also potentially the level of the reparation.

While the 2005 Basic Principles are still deemed “soft law”, they provide for broader rights and remedies, they do not limit the victims’ competent forum,20 and they do not limit the category of victims to those who are directly encompassed within the facts described in the indictment. More importantly, the ICC victims’ substantive and procedural rights are not applicable to state parties who elect to exercise their domestic jurisdictional under the complementarity provision of the ICC Statute by prosecuting the accused in domestic fora (Article 17). How victims’ rights can be reconciled under these two instruments, if and when the 2005 Basic Principles become in whole or in part customary international law, is still off the radar screen of scholars and experts of victims’ rights.

Under the ICC scheme, the determination of a victim’s status depends first upon the prosecutor’s selection of the incriminating facts and second upon the Pre-Trial Chamber’s confirmation of the Indictment. Although the prosecutor’s reasons may be objective and not discriminatory, they are nonetheless informed by prosecutorial policy which may narrow the charges against the accused to ensure successful prosecution.21 The narrowing of the charges for such purposes necessarily means narrowing the facts and focusing on a specific time and place on which the charges are based. As a result of such a narrowing, the category or group of court recognized victims becomes narrower and unjustly excludes those individuals whose victimization was not a part of the facts referred to in the indictment. Ultimately, this outcome arbitrarily distinguishes between victims on the basis of prosecutorial considerations, which are unrelated to the factual victimization caused by the total conduct of the perpetrator. It is obvious that this goes against the purpose and spirit of the ICC Statute. This approach also goes against the 2005 Basic Principles, whose focus was on defining categories of violations for which victims could obtain redress in a variety of forms, irrespective of the facts specified in the indictment.

The 2005 Basic Principles are more openly inclined towards the Romanist-Civilist (“civilist”) legal scheme of the “partie civile,” than the ICC Statute, whose procedures are strongly influenced by the adversary-accusatorial approach which is characteristic of the common law systems.22 The unarticulated premises of the 2005 Basic Principles is that no victim should be excluded before a forum and victims who have the right to a cause of action should be able to participate in the criminal proceedings without exclusion by the prosecution for whatever reason.

Victims in “partie civile” legal systems participate in the proceedings through their counsels who have the right to present or question evidence. The reason for such a prominent role of the “partie civile” in criminal prosecutions is that in those civilist systems the facts as determined in the criminal proceedings are binding on the subsequent civil proceedings. In other words, if there is no independent civil action for damages in respect to crimes for which prosecutions have taken place, then the victim has to establish the facts in the course of the criminal proceedings. The victim can either establish damages in the criminal proceeding or elect to have a subsequent civil action that establishes only damages. Judges in the proceedings can also remand the ascertainment of the quantum of damages to subsequent civil proceedings if that question excessively encumbers the criminal proceedings. If damages are established in the course of the criminal proceedings, the defendant is sentenced to pay the victim such damages. This is unlike common law systems where civil proceedings establish both liability and damages.

There are of course variations in civilist legal systems some of which allow greater latitude for the defense in the role of a “partie civile” while others are more restrictive in order to give the prosecution more leeway. In the latter cases the victims are allowed greater procedural latitude in bringing independent civil actions for damages in which they may or may not be bound by the facts as established in the criminal proceedings.23

The ICC Statute reveals the ambivalence that exists in its efforts to reconcile the differences between the common law and civilist approaches as to the rights and roles of victims before the court. This is evident in the contentious ICC pre-trial proceedings as to who the class of victims include, particularly before and after indictment confirmation hearings. In other words, a broader class of victims may be involved in the pre-confirmation investigatory stage only to be narrowed post-confirmation, which is a manifest injustice to the excluded victims. Another issue arises out of the ICC’s approach to the “partie civile” for victims arises in the context of victims’ counsel presentation of evidence which the prosecution may not find satisfactory. These and other issues pertaining to the fundamental rights of victims have yet to be resolved by the ICC.

The jurisprudence of the ICC during its first few years has demonstrated a lack of coherence which reflects the tensions between those judges who essentially support an adversary-accusatory system of criminal procedure and those favoring the civilist “partie civile” system. Neither the statute nor the rules have adequately dealt with the issues arising out of this incongruity causing several trial chambers and appeals chambers to issue multiple rulings over a period of 10 years that gave rise to criticism.24

A number of unresolved issues remain such as (1) the rights of victims before national tribunals of state-parties exercising their complementary rights under the statute; (2) the rights of victims left out of that category because of the ICC prosecutor’s choice of narrowing the facts in a given case (thus excluding actual victims of the crime); (3) The intersection of victims’ rights with ne bis in idem protections; (4) the rights of victims before the ICC to ask for additional remedies on the basis of customary international law, if and when, some or all of the remedies contained in the 2005 Basic Principles reach such a level; and 5) victims’ appeal rights.25

The ICC Statute and Rules were a step forward in securing victims’ rights, but for lack of political consensus, and maybe because the Rome Conference negotiators were mostly diplomats whose knowledge of comparative criminal law and procedure was limited, the statutory language was inadequate. Subsequently, the ICC Judges considering victims’ issues also did not demonstrate their grasp of these legal questions. The jurisprudence of the ICC is less than satisfactory, and it is likely to be revisited by the Court in the years to come.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Universal Declaration of Human Rights (10 Dec. 1948), U.N.G.A. Res. 217 A (III) (1948), Art. 8.

  2. 2.

    G.A. Res. 40/34 (29 November 1985); See M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev. 203 (2006).

  3. 3.

    Id. See also 7 Nouvelles Etudes Penales, “International Protection of Victims” (M. Cherif Bassiouni ed, 1988).

  4. 4.

    Declaration, Annex (Article 11).

  5. 5.

    See Amnesty International, India: Clouds of Injustice: Bhopal Disaster 20 Years On (November 29, 2004) available online (last visited January 18, 2012).

  6. 6.

    Id.

  7. 7.

    William Schabas, Genocide in International Law (Cambridge University Press, 2nd ed., 2009).

  8. 8.

    M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge, 2011).

  9. 9.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]; 1-3 The Legislative History of the International Criminal Court (M. Cherif Bassiouni ed., Transnational Publishers, 2005).

  10. 10.

    Id.

  11. 11.

    Id.

  12. 12.

    In addition to Talmudic law, Islamic law based on the Qur’an provides for crimes of Qisas, an option to the victim. The choices are: “Talion Law” or the equivalent harm (a death for a death, and injury for injury), the payment by the perpetrator of Diyya (victim compensation), or pardoning (forgiving) the perpetrator, which is the most desirable option.

  13. 13.

    International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2000), Rule 85.

  14. 14.

    G.A. Res 60/147 (New York, 21 Mar. 2006).

  15. 15.

    M. Cherif Bassiouni, supra note 2.

  16. 16.

    Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly Resolution 60/147, 16 December 2005, [hereinafter cited as 2005 Basic Principles]. Available online.

  17. 17.

    Rome Statute Articles 5(2) and 15bis(3).

  18. 18.

    Rome Statute, Article 75; ICC RPE, Rule 94(1)(d-f).

  19. 19.

    ICC RPE Rule 98.

  20. 20.

    The victim’s ability to enforce the rights contained in the 2005 Basic Principles are not limited to a specific forum as in case of victims’ rights under the ICC regime.

  21. 21.

    Redress, Victims and the ICC: Still Room for Improvement (2008), available online; Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?, 6 Nw. U. J. Int’l Hum. Rts. 459 (2008); Greco, Victims’ Rights Overview under the ICC Legal Framework: A Jurisprudential Analysis, 7 Int’l Crim. L. Rev. 531 (2006); Stahn, Olásolo, and Gibson, Participation of Victims in Pre-Trial Proceedings of the ICC, 4(2) J. Int’l Crim. Just. 219-238 (2006); Mekjian and Varughese, Hearing the Victim’s Voice: Analysis of Victims’ Advocate Participation in the Trial Proceeding of the International Criminal Court, 17 Pace Int’l L. Rev. 1 (2005).

  22. 22.

    7 Nouvelles Etudes Penales, “International Protection of Victims” (M. Cherif Bassiouni ed., 1988); 65 International Review of Penal Law: “The Regionalization of International Criminal Law and the Protection of Human Rights in International Cooperation in Criminal Proceedings” (1994); 68 International Review of Penal Law: “Inquisitorial-Accusatorial: The Collapse of Dogmas in Criminal Procedure” (1997).

  23. 23.

    Some Civilist states like Italy have provided as of 1989 with the adoption of their new code of criminal procedure for an independent right of civil action by victims irrespective of whether they were a partie civile in a criminal case or not. See Article 130 et seq. Codice di Procedura Pénale.

  24. 24.

    Supra note 17; see also Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1119, Trial Chamber, Decision on victims’ participation (18 January 2008); ICC-01/04-01/06-1432, Appeals Chamber, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008 (11 July 2008). Prosecutor v. Thomas Lubanga: ICC-01/04-01/06-672 (6 November 2006); ICC-01/04-01/06-462 (22 September 2006); ICC-01/04-01/06-380 (4 September 2006); ICC-01/04-01/06-335 (17 August 2006); ICC-01/04-01/06-319 (10 August 2006); ICC-01/04-01/06-318 (9 August 2006); ICC-01/04-01/06-317 (8 August 2006); ICC-01/04-01/06-206 (24 July 2006); ICC-01/04-01/06-2698 (8 March 2011); ICC-01/04-01/06-2659-CORR-RED (8 February 2011); ICC-01/04-01/06-2586-RED (4 February 2011); ICC-01/04-01/06-2468 (9 June 2010); ICC-01/04-01/06-2340 (11 March 2010); ICC-01/04-01/06-2207 (26 January 2010); ICC-01/04-01/06-2175 (27 October 2009); ICC-01/04-01/06-2135 (22 September 2009); ICC-01/04-01/06-2127 (16 September 2009); ICC-01/04-01/06-2115 (11 September 2009); ICC-01/04-01/06-2109 (8 September 2009); ICC-01/04-01/06-2065 (23 July 2009); ICC-01/04-01/06-2063 (21 July 2009); ICC-01/04-01/06-2035 (10 July 2009); ICC-01/04-01/06-2032 (9 July 2009); ICC-01/04-01/06-1861 (8 May 2009); ICC-01/04-01/06-1564 (19 December 2008); ICC-01/04-01/06-1563 (19 December 2008); ICC-01/04-01/06-1562 (18 December 2008); ICC-01/04-01/06-1556 (15 December 2008); ICC-01/04-01/06-1379 (5 June 2008); ICC-01/04-01/06-1368 (2 June 2008); ICC-01/04-01/06-1333 (16 May 2008); ICC-01/04-01/06-1211 (6 March 2008); ICC-01/04-01/06-1191 (26 February 2008); ICC-01/04-01/06-1119 (18 January 2008); ICC-01/04-01/06 OA 9 and OA 10 (16 May 2008); ICC-01/04-01/06-1239 (20 March 2008); ICC-01/04-01/06-1347 (22 May 2008); ICC-01/04-01/06-1426 (9 July 2008); ICC-01/04-01/06-1432 (11 July 2008); ICC-01/04-01/06-1435 (15 July 2008); ICC-01/04-01/06-1448 (28 July 2011); ICC-01/04-01/06-1453 (6 August 2008); ICC-01/04-01/06-2155, (9 October 2009); ICC-01/04-01/06-2159 (14 October 2009); ICC-01/04-01/06-2168 (20 October 2009); ICC-01/04-01/06-2546 (30 July 2010); ICC-01/04-01/06-2552 (13 August 2010); ICC-01/04-01/06-2555 (17 August 2010); ICC-01/04-01/06-2556 (18 August 2010); ICC-01/04-01/06-2575 (29 September 2010); Situation in the Democratic Republic of the Congo, ICC-01/04 OA4 OA5 OA6. The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui: ICC-01/04-01/07-3185 (21 October 2011); ICC-01/04-01/07-3064 (16 August 2011); ICC-01/04-01/07-2642 (10 January 2011); ICC-01/04-01/07-2517 (9 November 2010); ICC-01/04-01/07-2367 (6 September 2010); ICC-01/04-01/07-2288 (16 July 2010); ICC-01/04-01/07-2124 (24 May 2010); ICC-01/04-01/07-2108 (19 May 2010); ICC-01/04-01/07-2032 (19 April 2010); ICC-01/04-01/07-1967 (16 March 2010); ICC-01/04-01/07-1876 (16 February 2010); ICC-01/04-01/07-1788 (22 January 2010); ICC-01/04-01/07-1669 (23 November 2009); ICC-01/04-01/07-1567 (28 October 2009); ICC-01/04-01/07-1491-Red (23 September 2009). The Prosecutor v. Callixte Mbarushimana: ICC-01/04-01/10-483 (24 January 2011); ICC-01/04-01/10-476 (20 December 2011); ICC-01/04-01/10-441 (23 September 2011); ICC-01/04-01/10-382 (18 August 2011); ICC-01/04-01/10-351 (11 August 2011); ICC-01/04-01/10-265 (4 July 2011); ICC-01/04-01/10-229 (10 June 2011); ICC-01/04-01/10-181 (24 May 2011). The Prosecutor v. Jean-Pierre Bemba Gombo: ICC-01/05-01/08-2027 (21 December 2011); ICC-01/05-01/08-2011 (15 December 2011); ICC-01/05-01/08-1935 (21 November 2011); ICC-01/05-01/08-1862 (25 October 2011); ICC-01/05-01/08-1837 (11 October 2011); ICC-01/05-01/08-1711 (6 September 2011); ICC-01/05-01/08-1619 (23 September 2011); ICC-01/05-01/08-1597 (23 September 2011); ICC-01/05-01/08-1590 (8 July 2011); ICC-01/05-01/08-1091 (23 December 2010); ICC-01/05-01/08-1017 (18 November 2010); ICC-01/05-01/08-871 (6 September 2010); ICC-01/05-01/08-857 (18 August 2010); ICC-01/05-01/08-851 (11 August 2010); ICC-01/05-01/08-807 (19 July 2011); ICC-01/05-01/08-699 (22 February 2010); ICC-01/05-01/08-623 (27 November 2009); ICC-01/05-01/08-566 (20 October 2009); ICC-01/05-01/08-500 (3 September 2009); ICC-01/05-01/08-408 (22 April 2009); ICC-01/05-01/08-349 (8 January 2009); ICC-01/05-01/08-184 (23 October 2008); ICC-01/05-01/08-103 (12 September 2008).

  25. 25.

    The ICC Statute provides that its provisions are also interpreted on the basis of customary international law. See Article 21.

Ferstman Avatar Image Carla Ferstman, B.A., LL.B, LL.M. Director REDRESS

Reparations should be about promoting victims’ dignity and agency: The ICC should avoid paternalistic or bureaucratic approaches to determining victims’ needs and wants

Victims should be fully involved in the process of determining what ICC reparations regime would be most appropriate for addressing mass atrocities and war crimes.

Summary

Victims should be fully involved in the process of determining what ICC reparations regime would be most appropriate for addressing mass atrocities and war crimes. Fostering victims’ agency through the reparations process is itself the first step to restoring what they lost—their dignity, their voice.

Beneficiaries

It is important that the Office of the Prosecutor’s policy on case and charge selection truly reflects the full extent of the victimization. This will help ensure that the widest number of victims and communities can relate with the Office’s work and form the linkages between the limited prosecution of incidents and the need to see justice done in the wider sense. The beneficiaries of court-ordered reparations must necessarily be linked to the crimes that the accused is convicted of. Thus, victims who do not fall within this frame will not be eligible for Court-ordered reparations. This underscores the need for the Office of the Prosecutor to get the charges right. An overly narrow or skewed investigation cannot be rectified by the judges at the reparations phase, nor should it be. However, judges should take an expansive approach to the nexus between the harm suffered and the crimes for which the accused was convicted.

Victim applications

The Court is able to order reparations to eligible victims, even if they have not submitted formal applications, given the challenges and bureaucracies inherent in the application process and in order to promote efficiencies, particularly in relation to collective awards. It is hoped that the Court would design a process to receive input from victims if and when it decides to issue collective awards that could benefit not only the individuals that apply for reparations before the Court, but all victims who are eligible to receive reparations.

The most appropriate forms of reparations

There is not one approach which is most suitable to massive crimes; the Court should consider all factors in a given case to devise an award (which might include several components) that is meaningful and appropriate in light of the totality of the circumstances.

Article 75(1) of the Rome Statute lists “restitution, compensation and rehabilitation” as forms of reparation that it may consider. However, this list is not exhaustive. The Court can and should consider ordering other types of reparation including symbolic reparation. However, the Court may only make orders against an accused person, which may prove restrictive in respect of certain awards which necessarily involve the State. The Court could incorporate any apology a convicted person may have freely made into the reparations order, for example, by ordering that the apology is published and disseminated in particular locales.

Funding

A dual strategy should be employed to secure sufficient resources for reparations. The Court should adopt a robust approach to the location, freezing and seizure of assets belonging to the accused. Furthermore, the Trust Fund for Victims is encouraged to intensify its fundraising efforts. Whilst it has managed to secure laudable donations from States Parties, it should also seek progressively to diversify its funding base.

Argument

The best persons to determine what ICC reparations regime would be most appropriate for addressing mass atrocities and war crimes are those directly affected by the crimes: the victims. The best way of securing meaningful reparations is to engage victims effectively in the consideration of their needs and in the determination of what is “most appropriate.”

As a result of difficult and divisive budget discussions at the last meeting of the Assembly of States Parties, funding for outreach to victims and affected communities is severely reduced. This has an impact not only on the public awareness of the Court and its work, but also on the ability of the Court to listen to and engage with its key constituencies in the field. This will be detrimental to the reparations process, which, in order to be successful, must be open, accessible and meaningful to victims. Reparation is not only about the award of compensation or other relief that comes at the end of the trial. It is also about the process itself, whereby victims are provided with the opportunity to be heard, to voice their views about what matters most to them and what will be most relevant for them in their efforts to move forward with their lives. The act of fostering victims’ agency through the reparations process is itself the first step to restoring what they lost—their dignity, their voice.

Beneficiaries

The nature of the crimes under the jurisdiction of the Court necessarily means that there will be a significant number of victims. There is a tendency to approach the fact of mass victimisation as a problem which needs to be managed or controlled, or indeed, a problem so large that defeat is inevitable, so the issue becomes more about managing defeat than working towards solutions—facing the challenging reality head-on with innovation, compassion and foresight. Defeat is only inevitable if defeat remains the initial frame of reference through which reparations is perceived, by judges, court officials and states parties alike.

On the appropriate relationship between the Office of the Prosecutor’s case and charge selection strategy and the scope of beneficiaries, there are two main issues to consider. Firstly, it is important that the Office of the Prosecutor’s policy on case and charge selection is truly reflective of the full extent of the victimization. Certainly the Office of the Prosecutor cannot prosecute everyone and every crime falling within its mandate, however the cases and ultimately the charges within these cases, should reflect the fullest possible extent of the victimization—the incidents taken up by the Office should ideally act as emblematic windows through which the vast criminality can be understood. This will help ensure that the widest possible number of victims and communities can feel a connection with what the Office is doing and make the linkages between the limited prosecution of incidents and the need to see justice done in the wider sense. Secondly, the beneficiaries of court-ordered reparations must necessarily be linked to the crimes that the accused is convicted of. This is a direct consequence of the statutory framework for reparations, which, under Article 75 (2) of the Statute, provides that “the Court may make an order directly against a convicted person.” The use of the permissive “may” relates to the fact that the Court is not obliged to make an order for reparations—it “may” do so. Should it choose to make an order for reparations, this order is made directly against the convicted person; it cannot be made against anyone else. Thus, it follows that the ability to make an order for reparations is contingent on the conviction of the perpetrator, and, his or her liability to pay reparations is limited to those who suffered harm as a result of the acts for which he or she was convicted. So, victims who do not fall within this frame will lose out.1 This underscores the reason why it is so important for the Office of the Prosecutor to get the charges right. An overly narrow or skewed investigation cannot be rectified by the judges at the reparations phase, nor should it be.

There is however, an area where the judges may be able to take an expansive approach, and it is hoped that they do. The victims must have suffered harm “as a result” of the crimes for which the accused was convicted, but how closely connected must the harm be, to these crimes? The Court has already had occasion to consider this issue in relation to its examination of requests from victims who wish to participate in proceedings. It has determined that in order for victims to participate in Court proceedings, they must be able to demonstrate that the harm they suffered was caused as a result of the event constituting the crime within the jurisdiction of the Court. So, in the Lubanga case, which involves the enlisting and conscripting of children into rebel forces, this was taken to mean that, not only the child victims, but also their immediate family members, has a sufficiently close connection to the crimes.

But, what of the many villagers who suffered at the hands of these children? Their properties were pillaged, many were raped, tortured, murdered. Cannot these victims also be considered to have suffered harm “as a result” of the crime of enlisting and conscription of child soldiers?2 Some of these villagers sought to participate as victims in the Lubanga trial proceedings. They were initially included as a category of indirect victims, who were entitled to participate. However on appeal the nexus to the crimes charged was deemed to be too remote. The Appeals Chamber largely based its reasoning on the language in Article 68(3) which provides that victims may participate in appropriate stages of proceedings “where their personal interests are affected.” It stated that the purpose of the ICC’s proceedings “is the determination of the guilt or innocence of the accused person of the crimes charged” and it is only victims “of the crimes charged” who may participate in the trial proceedings pursuant to Article 68(3), when read together with Rules 85 and 89(1).3 However, as regards reparation, the limitations regarding participation in proceedings provided in Article 68(3) do not necessarily apply, and thus it may be useful to revisit the majority decision of the Trial Chamber in the Lubanga case, at first instance. In that decision, His Honour Judge Fulford for the majority held that: “Rule 85 of the Rules does not have the effect of restricting the participation of victims to the crimes contained in the charges confirmed by Pre-Trial Chamber I, and that this restriction is not provided for in the ICC Statute framework. Rule 85(a) of the Rules simply refers to the harm having resulted from the commission of a “crime within the jurisdiction of the Court” and to add the proposed additional element—that they must be the crimes alleged against the accused—therefore would be to introduce a limitation not found anywhere in the regulatory framework of the Court.”4 As such, there is some scope for the Court to take a wide approach to the nexus or degree of causation required between the crimes for which the accused was convicted and the harm suffered by the victims, which would make a wider group of victims eligible for reparations.

Victim applications

It is a separate question altogether whether the Court can order reparations only to those who apply for it. Article 75(1) of the Statute provides that “…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.” This provision has not yet been ruled upon, nor has the Court issued any principles on reparations which might provide any guidance. It is suggested that the Court should adopt the widest possible reading of this article, for two main reasons: 1) difficulties in the application process; 2) efficiency.

Firstly, it is evident that, even if the most restrictive formulation of eligibility is used (and it is hoped that such a formulation would not be used), the number of actual victims who are eligible to apply for reparations will far exceed the number of those who manage to apply to the Court. Despite the best intentions of all those who are trying to make this system work, many vulnerable victims will be too far removed from lawyers and local organisations who might otherwise be able to provide guidance; they will have difficulty to access and accurately complete the Registry’s seven page application form and to comply with the formalities under Rule 94 of the Rules of Procedure and Evidence and will be even further removed from the ICC’s Registry staff to whom applications for reparations would need to be submitted. Furthermore, because of the absence of reparations principles to guide the Registry and help it to respond to the many valid questions that are being posed in the field, the Registry has carried out only minimal outreach on reparations, so there is very little information circulating in communities about the Court’s reparations process, and what information does circulate is potentially erroneous, given the absence of reparations principles. The confusion caused by the lack of accurate information is likely to further hinder the application process. This confusion is unlikely to be rectified upon the publication of principles in the context of a particular case, given the minimal budgets accorded to Registry staff to carry out outreach work.

Secondly, encouraging use of proprio motu powers for reparations proceedings could also lead to efficiencies, particularly in regards to awards for collective forms of reparation. If the Court is contemplating a collective award, use of proprio motu powers may be one way for the Court to proceed directly to make such an award without requiring individualised applications. It is hoped that the Court would design a process to receive input from victims if and when it decides to issue collective awards that could benefit not only the individuals that apply for reparations before the Court, but all victims who are eligible to receive reparations.

The most appropriate forms of reparations

Victims’ needs and wants may vary considerably case to case, as well as within cases. Victims living outside of the country where the crimes took place may have vastly different concerns than those living at the site of atrocities. Also, the cases which come before the Court may vary significantly with respect to the number of eligible victims, the types of harm suffered by them, the ability for the harm to be quantified and the extent of the assets from the convicted person that may be accessible to the Court. One could imagine that each of these factors, and yet others still, are relevant to determine the feasibility and appropriateness of individual or collective awards or both, as well as the quality and quantum of such awards. There is thus not one approach which is the most suitable to massive crimes; the Court must consider all the factors in a given case to come up with an award (which might include several components) that is meaningful and appropriate in light of the totality of the circumstances.

Article 75(1) of the Statute lists “restitution, compensation and rehabilitation” as forms of reparation that it may consider. However, this list is not exhaustive. The Court can and should consider ordering types of reparation other than restitution, compensation or rehabilitation including symbolic reparation, and indeed the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation5 include the additional forms of satisfaction and guarantees of non-repetition. However, the challenge to award such other measures lies with the fact that the Court may only make orders against an accused person. It may not make an award that invokes State responsibility, even though it may require that a particular State cooperates with respect to the enforcement of an award. Whilst it is difficult to see how a Court can force a convicted person to apologise, the Court could incorporate any apology a convicted person may have freely made into the reparations order, for example, by ordering that the apology is published and disseminated in particular locales.

Funding

A dual strategy should be employed to secure sufficient resources for reparations. Firstly, the Court should adopt a robust approach to the location, freezing and seizure of assets belonging to the accused. There is an important role for States Parties (and non-parties) to cooperate with the Court in this regard, and for the Office of the Prosecutor to carry out robust investigations into the assets of accused persons, in order to ensure that requests to States are sufficiently evidenced. States should review legislation to ensure that seizure and transfer of assets to the ICC is a straight-forward process. It is important to note that, for the purposes of enforcing a reparations award, there is no need to show that the assets were the proceeds of crime, as it would be for instance, to satisfy fines and forfeitures.

Furthermore, the Trust Fund for Victims is encouraged to intensify its fundraising efforts. Whilst it has managed to secure laudable donations from States Parties, it should also seek progressively to diversify its funding base.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    These victims and their families may still be eligible to receive physical or psychological rehabilitation or material support from the Trust Fund for Victims.

  2. 2.

    This argument is set out in more detail in REDRESS, Justice for Victims: The ICC’s Reparations Mandate, May 2011, pp. 60-62.

  3. 3.

    The Prosecutor v Thomas Lubanga, Appeals Judgment, 11 July 2008, ICC-01/04-01/06, para. 58.

  4. 4.

    The Prosecutor v Thomas Lubanga, Decision on victims’ participation, 18 January 2008, ICC-01/04-01/06-1119.

  5. 5.

    Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005.

Levmore Avatar Image Saul Levmore, J.D., Ph.D. William B. Graham Distinguished Service Professor of Law University of Chicago Law School

Reparations in the Wake of Atrocities: A Plan for Encouraging Participation by Governments

The proposal anticipates a combination of required, suggested, and altruistic payments into a reparations fund.

Summary

There is no doubt that the ICC has the power to award reparations when it finds criminal wrongdoing on a large scale. But there are obvious problems with a reparations remedy—even beyond the problem of identifying deserving survivors and victims. First, when wrongdoers are brought to trial it is likely that they are completely out of power and no longer have access to sources of revenue with which to pay any reparations decreed by the Court. Second, and more subtly, if the Court looks to governments that might have delayed in bringing criminals to justice, then these governments will be less likely to turn over defendants and to cooperate in the investigation of atrocities. One solution might be to require reparations from convicted criminals and to use the rather modest or even nominal funds available from this source to begin a reparations fund. The next and important step is to invite countries to contribute to the fund and even to identify countries with citizens likely to feel a special connection to the victims or a special responsibility for the crimes committed. The idea is to encourage payments from some sources without any admission of wrongdoing while demanding and suggesting payments from other sources because of guilt, whether primary or secondary. The proposal anticipates a combination of required, suggested, and altruistic payments into a reparations fund.

Argument

Reparations can be an effective means of helping victims rebuild their lives, of penalizing wrongdoers, of bring closure to historic events, of apologizing for past wrongs, and even, perhaps, of encouraging constructive behavior. Nevertheless, in the case of atrocities, criminals will usually be brought to justice only after many years and after their fall from the very positions of power that enabled them to carry out the crimes of which they are later convicted by the International Criminal Court. There are many problems with justice long delayed, but a few are especially relevant when the remedy of reparations is considered. Where will the Court or the criminals find the means to make payments to the many victims they are left behind? And if the Court looks to governments for funding, either because these governments gave comfort to criminals or because they might have intervened and prevented atrocities, then the very threat of reparations might make governments even less inclined to cooperate with international attempts to end wrongdoings and then to bring wrongdoers to justice.

It is time to think of new sources of funds for reparative payments, for it is one thing to assign blame and to identify deserving victims, hard as those tasks might be, but then another to locate the source of reparative payments. One possibility is for the ICC to use whatever funds can be extracted from the convicted criminals simply to begin a fund, but then to use its pulpit to encourage cooperative governments to add to the fund. Some governments might do this as a kind of foreign aid. They may do so because news of the atrocities had a profound effect on the citizenry now asked to contribute to the reparations fund. Other governments may be identified by the ICC not as criminal wrongdoers, but as governments that might have intervened to prevent some of the atrocities in question. It is especially useful to combine these two sources of funding because the latter alone can have the perverse effect of discouraging cooperation. It would be a tragedy to create a moral hazard such that a government declined to intervene in a humanitarian effort or declined to cooperate in bringing a criminal to justice because it feared identification as an entity liable for reparations. A more successful strategy is likely to be one where some governments were credited with cooperation, and left free to contribute to a reparations fund on their own, while others were identified as bearing a special responsibility to pay because they might have acted and did not.

I have suggested in the past that there are situations where “Privatizing Reparations” can be a useful idea. I refer to the idea that individual citizens can make payments, conditional on other citizens’ doing so, in order to create a reparations fund. The idea is that there will be settings where there is little chance of political implementation of a reparations scheme. Whether or not the ICC encourages country A to take some responsibility for the crimes and victims in country B, A will find it politically unpalatable to agree to make reparative payments. Still, a substantial minority of citizens or businesses in country A might be inclined to make such payments, and A, through tax rules or a willingness to enforce contingent promises, can enable these voluntary payments to a reparations fund. These privatized reparations bear some similarity to charitable donations where we can also think of governments as serving a coordinating function. On a larger scale, governments themselves might deflect some of the political cost of agreeing to reparations (and any guilt that might be implied) by agreeing to make payments to a reparations fund if a specified number of other countries do so, or if a certain amount is thus contributed by other nations. Such “synchronized reparations,” as we might call them, can also be encouraged by the ICC, which might list countries that neighbor the location of past atrocities or otherwise bear some other relationship to the wrongs that have been brought to light.

One advantage of elective reparations, at both the individual and sovereign levels, is that elective payments will often attract majority support where required payments would not have done so. A country’s citizens might be more likely to agree to a reparative scheme if somewhat disinclined citizens perceive that others would bear the brunt of the financial burden. The majority might even agree to a partial tax credit or other device that effectively divided the burden unevenly between those who wanted to make the payments and those who merely tolerated them. Similarly, at the international level, some governments could be expected to make substantial payments while others made modest ones. The latter will sometimes play a useful role in deflecting claims that the former signal guilt. In this way, the more countries that participate, the less any one suffers a humiliation or a negative domestic political reaction.

Perhaps the most serious hurdle to the proposal offered here is that the International Criminal Court is not perceived as in the business of promoting alliances among countries or fostering private charitable giving. Its task is to try criminals, it might be said, and not to tax or fundraise. For this reason, I have framed the suggestion as one in which the Court plays by the rules and requires reparations from the convicted criminals. At the same time it can in its decisions address the moral responsibility of sovereign nations, and even of humanity as a whole, and suggest that the inadequate fund likely to be created from the resources available to the criminal can be leveraged into a fund that does real good for the victims who are now in plain view.

It is noteworthy that the suggested mixture of required and voluntary payments reflects the ambiguity associated with the history and definition of reparations itself. In some contexts the terms is used as to refer to a legally ordered remedy. But in other settings it refers to payments made in the absence of legal obligation. Thus, some payments made to Holocaust survivors and payments made by the U.S. government to families of victims aboard an Iranian airliner shot down in 1988 have been labeled as reparations and were not required by a court. The approach suggested here for the ICC thus further mixes voluntary payments with obligated ones, but does so in a way meant to promote the aims of the justice system.

Mégret Avatar Image Frédéric Mégret, LlB, DEA, Dipl. IEP, Ph.D. Associate Professor, Canada Research Chair in the Law of Human Rights and Legal Pluralism Faculty of Law, McGill University

Reparations before the ICC: the Need for Pragmatism and Creativity

[T]hose convicted will often have nothing like the resources that would be necessary to pay adequate reparations; and […] it is in the nature of international criminal justice’s selectivity that it may create significant distortions between different categories of victims.

Summary

Little is know about what the ICC’s reparation policy will turn out be, but this is already one of the most eagerly anticipated issues in international criminal justice. Much hinges on a just reparation policy, but the obstacles are formidable. Two of them stand out: the fact that those convicted will often have nothing like the resources that would be necessary to pay adequate reparations; and the fact that it is in the nature of international criminal justice’s selectivity that it may create significant distortions between different categories of victims. The argument offers two promising leads to develop a coherent reparations policy that makes sense of the limitations of awards ordered by the Court and of the Victim Trust Fund’s resources. These are on the one hand to diversify what is understood by reparations and in particular to foreground collective and symbolic reparations by opposition to individual and monetary ones; and on the other hand to better contextualize reparations and see Court awards and TFV initiatives as potentially part of a constellation of other reparatory initiatives that should be encouraged and coordinated with.

Argument

Debates around the issue of the optimum reparations policy before the ICC highlight the existence of two implicit schools of thought on how to conceptualize the issue. The first is more legalist, is framed by tort law concepts and international human rights law’s notion of a right to reparation (past-oriented), and tends to focus on specific perpetrating agent and specific victims. The second is more policy based, is influenced by major compensation schemes set up by states in the wake of war or atrocities and truth commissions, and is more oriented towards a global transitional “package” (future-oriented).1 The ICC tends to lean in the direction of the first paradigm but it is a particularly problematic one when dealing with individuals convicted of mass crimes against innumerable victims. The goal of the ICC reparation principles should be to remedy and offset international criminal justice’s persistent individualism, rather than amplify it. The existence of the Victims Trust Fund is an opportunity to think about efforts to help victims broadly and beyond compensation stricto sensu.

The prospect of victim reparation has garnered significant international civil society support and interest from victims. However, the precise nature of that regime remains in doubt, if only because the Statute itself is poor on details and no trial has even reached the verdict stage. Beyond good intentions and general principles, there is a dearth of thinking on how to address the really hard issues of reparations. A truly just reparations policy must be assessed from an overall perspective, determining how a range of victims will see their rights vindicated. In the event that compensation will not, for various reasons be available for all, particular attention should be granted to managing expectations, lest false hopes be raised, with potentially devastating consequences for victims. This short paper identifies the main challenge for the ICC reparations policy as a complex problem of resource (Part 1). It then suggests ways in which that problem might be alleviated, even though it may never be entirely solved (Part 2).

I. Resources Challenges

A. The Quantitative Dimension and the “Reparations Gap”

Because it is in the nature of international criminal justice to associate guilt with individuals and individuals only, it was inevitable that the reparations regime would be also focused on the individual. However, this does raise a considerable problem a priori, which is that historically so many, if not all, of those who have been convicted have been impecunious (so much so in fact that very many of declared themselves indigent and had to demand a court provided lawyer). There are several reasons for this ranging from the fact that they may never have been rich in the first place or will have gone through impoverishing tribulations before ending up in the international docket; or that, as in the case of some former dictators, they were considerably wealthy but only as a result of a confusion between private and public assets which has often since been exposed, leading to reappropriation by the state. This does not mean that all efforts should not be put in place to access funds that belong to the accused, especially those that are stashed away in foreign bank accounts, but it does suggest that such efforts will not lead to much in the case of the great majority of the accused. One might say that the source of all problems with reparations before the ICC is the nefarious ability that individuals have for causing harm on a magnitude that is incommensurable with their ability to repay it.

On the opposite end, one has to confront the problem of the almost unlimited character of the harm suffered by individuals and groups as a result of mass crimes such as genocide or crimes against humanity, and the great number of victims. In the same way there has long been a strand of skepticism about applying criminal justice to radical evil, there may be skepticism about repairing radical harm either on philosophical or practical grounds (too many victims to identify). This obviously cannot be a reason to not do anything, but it cautions about the limits of what the ICC can achieve. Reparations may amount to very little if, time and time again, impecunious convicted individuals are ordered to pay considerable amounts of reparation for which they lack the resources. There is a reason why traditionally reparations strategies have been targeted at the state’s relatively deep pockets rather than the state’s agents.

The “reparation gap” then, can be analyzed as the shortfall between the harm caused by individuals convicted by the ICC and their ability to provide reparation for it. There is perhaps no more urgent question to be addressed by the ICC than what should be done about that gap, and facile talk about “honoring victims’ right to reparation” will be vacuous until some of the hard questions are addressed. One possible response (see below) is that this is not a problem for the Court to address. It may be that some individuals will not have the means to remedy the harm they have caused but that is simply victims’ misfortune (it should be said that this is, unfortunately, the reality in many legal systems). However, there is something profoundly unappealing, in a system that prides itself on being a sort of laboratory of best practices, about the idea that whether one gets compensated or not and to what extent will depend on whether one’s perpetrator has appropriate resources. It is this sort of injustice which, domestically, has precipitated the creation of various victim compensation schemes

One idea, therefore, is that the Court should try to make up for the shortfall. In particular, one early case on the issue suggests that some of the funds available to the TFV as a result of international donations should be set aside to guarantee reparations.2 The problem is that the basis for such a ruling is dubious as a matter of statutory construction and policy. The TFV is certainly supposed to notify the Court that it intends to initiate programs for the benefit of victims within a situation falling under the Court’s jurisdiction, but it must do so only as a result of the TFV’s own rules. This seems to be inspired by a desire to acknowledge the risk that such programs may in some ways interfere with the presumption of innocence. It is not an open invitation for the Court to otherwise meddle with what assistance is granted, or to tie the authorization of such assistance to contribution to future awards. It seems to be based on a fundamental mistake about the nature of the TFV’s “other resources” which are designed for initiatives for the benefit of victims (which will be referred to here as assistance).3

Although the TFV may eventually decide to affect some of its resources to “topping” reparation awards, there is a delicate arbitrage that only the Fund can make between money rapidly disbursed at the outset on a need-basis when it may make most of a difference in victims’ lives, and money to be awarded following a lengthy trial that may be very precisely tailored to the harm suffered but may come rather late. The theoretical foundation for an obligation to supplement reparation awards, at any rate, seem dubious. The suggestion seems to be that the international community is somehow obliged, even in part, to contribute to reparations as it donates funds to the TFV. However, though this might be desirable in the absolute, there is very little indication that the international community has ever contributed because it somehow felt obliged to, or even that donors intended to prioritize reparations when contributing to the TFV.4

As a matter of policy the current position stands the risk of rendering part of the TFV’s mandate meaningless, as its funds could quickly be entirely absorbed by provisioning for reparations. This detracts from what was meant to be the TFV’s main strength, i.e.: its ability to disburse funds from day 1 within a situation to help victims cope with the immediate consequences of international crimes, very long before they can ever expect reparations. It is a victory of rigid principles over pragmatism that may limit the attractiveness of the Fund to donors, and could very significantly complicate the TFV’s task (how is one to assess in advance what the amount of reparations might be for provisioning purposes?). Moreover, in bringing the TFV’s operation closer to the Court’s it could, ironically, reinforce some of the concerns about how it could affect the presumption of innocence and the right to a fair trial.

The better view is that as far as the Court is concerned the sources of funding for reparation awards are limited to the convicted person’s assets and fines. The TFV is independent and cannot simply serve as a piggybank for the Court. There are, as will be seen, more cogent ways of bridging the reparation gap.

B. The Distributive Dimension and the “Super-Victim”

The fairness and legitimacy of the reparations cannot merely be assed on a case by case basis, it will have to be evaluated and will inevitably be seen on the basis of who gets what in comparison to who. This is a very sensitive issue because reparations have a strong signaling function. In the same way sentencing someone to a more or less harsh punishment sends a discreet signal about the gravity of the facts at stake, awarding more or less reparations sends a signal about the gravity of the harm sustained. Individual victims may end up being more sensitive about how the reparations they receive stands in relation to reparation received by others, than about the amount in the absolute. At a certain level, the distributive impact of reparation may well coincide with perceptions about which community has been most victimized, in the same way that the relative weight of various communities within the indicted population has often been read as a subtle reflection of relative guilt.

There are several specific distributive problems that arise potentially, each of which may cause strong victim reactions and endanger the exemplarity of the reparations process. The most important because it will be, in a sense, the court’s own doing is the fact that only victims of accused who happen to be prosecuted by the Court will receive reparations. Although the focus on those most significantly responsible might in theory protect against this process being too random, it is also already evident that there is something highly selective, discretionary and even idiosyncratic in prosecutorial decisions about who gets indicted. Needless to say, there is nothing particularly meritorious from a victim and reparations point of view, about having been a victim of an accused that happens to be prosecuted by the Court. The risk therefore is that the ICC regime will create two types of victims, “super victims” who, as a result of having suffered at the hands of someone convicted by the Court, benefit from a quite strong victim reparations regime; and “ordinary victims” who, as a result of having suffered at the hands of someone not convicted (or not apprehended) by the Court will have to make do with whatever alternative system of reparation exists, if at all.

Other similar distributive problems may arise between victims of the same accused, but where the ICC Prosecutor has decided to only prosecute (e.g.: for expediency’s sake), some of the crimes of that individual; between victims of several persons convicted before the ICC where some are impecunious and others have ample means. This is not to mention an entire background of distributive conundrums about which the Court can of course not do anything but which may nonetheless magnify the sense of hyper-selectivity: for example, the difference between victims of crimes entering the court’s jurisdiction and crimes committed as a result of the same episode but which do not enter the court’s jurisdiction; or between victims of crimes committed neither on the territory or by nationals of the states parties and victims that enter the Court’s jurisdiction. The problem is that international criminal justice naturally fragments the reparation process by tying it to a few select individuals whose selection has much more to do with prosecutorial decisions and strategy than the need to develop a fully thought-out reparation policy. What makes sense from the point of view of criminal justice may not always make sense from the point of view of reparations.

II. Possible Responses

A. Diversifying Reparations

Rule 97(1) of the Rules of Procedure anticipates that awards can be determined on “an individualized basis or, where it deems it appropriate, on a collective basis or both.” The possibility of collective awards is thus envisaged, but it is not clear “where” the court might deem it appropriate to order such reparations. One argument is that collective reparations will make sense for practical reasons because the court or even the TFV cannot possibly delve into the minute details of a multitude of individual cases, something which would consume too much energy (consider that assessing reparations in an ordinary one-on-one tort case may take months or years; what then of assessing reparations for the 500,000 victims of a head of state’s genocidal policies?). The Court should try to avoid acting as an ordinary domestic tribunal would, dealing with ordinary crimes where the need and suitability of individual to individual reparation is evident. Another argument is that collective reparations may be particularly useful where there is an obvious collectivity in place (an organized community, a nation, a church) for an award to be made to. The temptation is effectively to let that collective manage the award.

But there are also more principled reasons why collective reparations may have a superior claim to justice, which are hardly ever voiced. The idea, that can only be succinctly sketched doctrinally here, is that international crimes are above all crimes committed against groups or categories rather than specific individuals. Of course, individuals undeniably suffer as a result (as evident from the long list of “underlying crimes” that make up international crimes and which include apparently typical interpersonal offences such as murder or rape), but not so much qua individuals as qua members of a group or category. From the point of view of international criminal law, one might say that harm to them is only a means to attack a group or a category (although of course no less real for that). This is most evident in the crime of genocide, which is an effort to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” In fact, the point is precisely that genocide is not causing individuals harm as individuals, but merely as a result of their being members of the group. There is, in a sense, no “personal quarrel” with individual victims, only general hatred of the group. It may make sense not to unravel that penological construct when dealing with reparations.

This sort of reasoning could provide a basis for more systematic and principled resort to collective reparations. The idea is that an optimum reparations policy should aim to put the group in the situation it was before the crime, to make the group whole again, something from which individual community members will inevitably benefit. This does not militate against reparations being paid at some point to individuals, but if anything that should probably be for the group itself to decide. Indeed, a further reason why the Court should resist engaging in too detailed an exercise of ordering individual reparations is the risk of substituting its judgment to group dynamics, at the price quite possibly of further disenfranchising the very group it seeks to help mend itself. Moreover, working on the group level of reparations also underscores a reality which is that groups do not live in isolation. The idea is not simply to give money for the group to reconstruct itself internally. Rather what compromised the group’s existence in the first place will have been a certain rapport with the surrounding society. It is these relationships with society at large or the state and the complex dynamics that gave rise to atrocities that need to be the primary focus of a reparations policy that is as forward looking as it is transitional in its outlook.

The reasoning probably has to be adapted when it comes to collectives that are not so much groups as categories of population. For example, the “civilian population” in crimes against humanity or “protected persons” in war crimes are not groups in the same sense that the targets of genocide are (although defined by common elements, they may lack a sense of community), but they are nonetheless significant, distinct categories within the overall population. There are certainly sound criminological reasons why international criminal law would want to protect these categories as such. Collective reparations to the civilian population at large might seek to reconstruct the civilian-ness of that group, as well as rebuild a sense of that group’s distinctness and claim to immunity from all attacks.

A second axis for diversification of reparations is to ensure that the Court’s reparation policy does not become too mired in a tendency, influenced by the tort model and some international human rights courts’ practices, to reduce reparation to financial compensation, with the attendant risk of “commodification” of suffering. The Court’s enumeration of evidently orderable reparations, including restitution, compensation and rehabilitation, but stops short of including the full list that has come to be expected in the international human rights context. Noticeable absentees are symbolic reparations such as non-repetition and satisfaction. This is partly understandable as these are forms of reparation typical of international human rights law that really need to be ordered against the state to make sense. An individual who has been convicted of a crime cannot give meaningful “guarantees of non repetition” in the way the state might be able to by adopting laws etc. As to “satisfaction” in the form, for example, of apologies it is very dubious that it could be ordered meaningfully and legally against individuals, if only because of freedom of thought issues (even a génocidaire cannot be ordered to recognize his guilt, in the way that a state can and, besides, the idea that one apologizes because one has been ordered to defeats the moral purpose of personal apologies).

However, the non-availability of such discreet symbolic reparations does not exhaust their potential before the ICC. The point is that awards against the accused will be monetary but that money is fungible and that there is no reason why it should be channeled as such, untransformed, to victims. Instead it can be put to work for transitional justice purposes that make sense to victims, especially in contexts where they have expressed a reluctance towards monetary awards as such. The Inter-American Court of Human Rights for example has been a pioneer in ordering that states found responsible for particularly horrendous violations of human rights built commemorative monuments honoring the memory of victims.5 These are symbolic measures but, in the right circumstances, they can arguably have an immense impact on victims’ dignity. They also subtly deal with the selectivity problem since a transitional initiative of this kind, even though it may have been ordered for a specific sub-set of victims, could well end up being appropriated by many others. Using either monetary awards against the convicted or the TFV’s own resources to finance significant transitional justice initiatives for the benefit of victims may be one of the ways in which the Court/TFV can maximize its scarce resources to boost the impact of reparations

B. Contextualizing Reparations

One of the key problems with the ICC reparations regime is its tendency to operate largely in isolation from other regimes that may be geared towards the same or similar goals. This is of course partly unavoidable: the ICC is just tasked with doing what it does best and acts as a sort of “self-contained regime.” Whilst less problematic in relation to issues of guilt, this solipsism can become problematic in relation to issues of reparation.

A first narrow problem arises within the Rome Statute regime itself in relation to the TFV’s activities. To date the question of how reparations and TFV “assistance” should be coordinated is largely unanswered. Yet as a result of its ability to use its own resources to launch actions on behalf of victims of “situations”, significant funds will already have been disbursed by the TFV by the time the first reparation awards are ordered by the Court. There is already some evident overlap between reparation and assistance in the form of rehabilitation. Clearly, it would not seem appropriate for a victim who has already received rehabilitation from the TFV to obtain rehabilitation again as a form of reparation. The same may be true in cases where assistance has been given by the TFV to rebuild property destroyed as a result of crimes, and where reparations are sought subsequently for the destruction of the same property. Especially given the limited nature of funds and the selectivity involved, it should probably be paramount for the Court to avoid this sort of duplication. Although doctrinally the distinction between court ordered reparations and TFV administered assistance is evident, in practice it is much less so. In fact, it may be an even harder to draw distinction given that the same body, the TFV that has administered assistance may be asked to implement reparations. Reparation awards should definitely give some thought to making sure that victims do not receive support under different headings for essentially the same harm.

Problems of contextualization, however, extend to other reparations processes beyond the Rome Statute regime. What if the state involved in some of the crimes that the Court has judged has already or is simultaneously engaged in a large-scale reparation program? Would this not, in a sense, be an ideal situation making sense of the spirit of the complementarity regime and the state’s overarching duty to protect its citizens from crimes, not to mention offering the prospect, perhaps, of much deeper reparations? Should the Court and/or the TFV in such a case ignore the state program even though it may be compensating for very much the same harm by arguing that they are responsible for compensating the totality of the harm suffered regardless of other parallel initiatives? This seems unlikely and would be awkward. Again, there is a risk that some victims might be compensated through several sources for the same harm, for example by several distinct individuals, by non-state actors and by the state. This would undoubtedly produce results that do not conform to justice and would be hard to justify.

Either in deciding the overall amount of reparations or in administering awards, therefore, some provision should be made for taking into account alternative reparation sources, actual or potential. Some degree of coordination in the payment of awards will probably have to occur between the TFV, state funded reparation programs, domestic or transnational legal cases aimed at reparation, etc. Awards by the ICC, moreover, should not merely be calculated taking into account what has already been paid and the compensation that remains due. This might be a bit arbitrary, and it should not make much of a difference in principle “who paid first.” Rather the Court may have no choice than to delve into complex issues of pro-rata of responsibility, to ascertain what share in a particular harm an individual convict has. This seems unavoidable if one is not to make a few individuals shoulder a disproportionate amount of the reparatory burden (needless to say, the justice of reparations should also be justice to those against whom awards are made).

One purist international criminal law argument against this might be that, as the Nuremberg tribunal put it, it is “individuals and not abstract entities” that commit international crimes and that to recognize state reparations, for example, might be an acknowledgment that the individual does not bear full responsibility for the crimes imputed to him (in tension with the non-invocability of superior order or obedience of law defences). But surely international criminal justice does not stand for the proposition that states cannot also have a part in causing harm to victims, whether by instigating, tolerating or ordering the commission of international crimes. The problem here may stem from a conceptual confusion between the notion of guilt and responsibility for reparations. When it comes to issues of guilt, focus on the individual is less problematic because a range of individuals can be each 100% independently guilty of a crime even as the state itself is 100% responsible for it. The criminal law typically does not distinguish (or not much) between the perpetrator as principal, accomplice or aider and abettor, each is as guilty as the others because the focus is on fault at the level of mens rea with only de minimis causal contribution at the level of the actus reus required. In that sense, one could say that guilt is indivisible and that one is as guilty of committing genocide even if others, including the state, obviously had a role in it as well. However when it comes to the harm caused, it is less meaningful to say that each individual is liable for 100% of the harm. Harm is, theoretically and practically speaking, a fixed quantity. From the victim’s point of view, the fact that harm to her was caused by the acts of one, 10, or 100 perpetrators acting in concert does not change anything to the overall amount of harm. Causation of harm, then, is divisible in a way that does not affect the wholeness of each perpetrator’s guilt, and each individual convicted by the ICC should be ordered to repair according to at least a rough understanding of what his contributory share of the overall harm was.

III. Conclusion: Reparations as a Complex Issue of Governance

Beyond the issue of assessing the proper quantum and type of reparations lie what might be more fundamentally described as issues of “governance” of the international victim reparations regime. In fact, rather than emphasizing the “amount” and “sort” of reparation in the abstract, a much more procedural view of reparations would focus on “who” decides and “how.” This is undoubtedly an issue to which States parties, the Statute, the Rules, the Court and the TFV as well as stake holders are sensitive, although no real formula for joint governance of what is bound to be an immensely complex reparation regime has yet emerged.

If we are to have reparations as opposed to simply assistance, it makes sense that the Court should always retain at least a triggering or supervisory role. If nothing else, reparations are tied to a conviction so a role for the Court is inevitable and inherent. Given that it is mandated to exercise its jurisdiction whilst respecting international human rights, it would not be possible for the reparations policy to deviate from the latter, and this justifies the role of the Court as a sort of ultimate guardian of reparation. However, it is already obvious that the Court is not particularly well equipped to administer a mass reparation program, and that to do so would cost it time and energy that could more preciously be invested elsewhere. Moreover, it is only really strictly mandated by the Rome Statute to “adopt principles” regarding reparations, whilst actually ordering them is something that it “may” merely do.

Hence the Statute and the Rules anticipate the possibility that the TFV be given the mandate to implement reparation awards, something which will be particularly appropriate when reparation awards are collective in nature. This is as it should be, as the TFV will have developed a quite unique expertise with victims in a particular situation. Assuming it can distinguish between its general assistance mandate and its implementor-of-reparations mandate, it will be very well placed to, for example, minimize some of the overlaps that have been identified as problematic for reparations. Outsourcing to the TFV does not mean forsaking any control, and the Court would be well advised to see the Fund as a sort of administrative agency whose activities can be the object of some form of judicial review, for example upon complaints of victims.

In many ways, the state might be ideally poised to administer reparations, especially if there has been a radical change of government from the one involved in committing atrocities, or if the atrocities were committed by a non-state actor. The state has at its disposal significant resources, networks of civil servants, access to unique data, etc. For a number of reasons, however, there may be skepticism about the state administering awards including (i) continued identification by victims of the state as the ultimate source of harm suffered, (ii) fear of corruption or mismanagement, (iii) fear that such a role might minimize the state’s obligation to come up with its own reparation regime. Notwithstanding, even if the state does not actually manage reparation awards, the TFV should liaise intelligently with national initiatives, especially if these are broadly congruent with international goals.

Finally, involving victims themselves in reparation awards is perhaps the most fruitful lead and one which, promisingly, the Court itself has expressed interest in. It is an idea that has several things to commend it. First, it is a natural prolongation of the idea of victim participation in the trial. Reparation hearings are part of “proceedings” as defined by article 68(3) of the Statute and therefore the sort where victims’ views ought to be heard. Even if the administration of a reparation award is outsourced to the TFV there should be some legal possibility for victims to be heard, it being quite evident that victims could not have fewer rights as a result of such delegation than they would before the Court. Second, victim participation will at any rate be inevitable for the Court or the TFV to determine what victim needs actually are, something that could not merely be evaluated in top-down fashion. Third, victim participation might be seen to be in and by itself reparative, in that it would more generally empower victims.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    For an analysis of this dichotomy see H. Rombouts & S. Parmentier, The International Criminal Court and its Trust Fund are Coming of Age: Towards a Process Approach for the Reparation of Victims, 16 IRV 149-182 (2009).

  2. 2.

    ICC, Pre-Trial Chamber I, Case No. ICC-01/04-492, Decision on the Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund (Apr. 11, 2008) (“the responsibility of the Trust Fund is first and foremost to ensure that sufficient funds are available in the eventuality of a Court reparation order pursuant to Article 75 of the Statute”).

  3. 3.

    On this issue see the excellent T. Dannenbaum, The International Criminal Court, Article 79, and Transitional Justice: The Case for an Independent Trust Fund for Victims, 28 Wis. Int’l L.J. 234-298 (2010).

  4. 4.

    See Frédéric Mégret, Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons from Domestic Compensation Schemes, 36 Brook. J. Int’l L. 123-337 (2010).

  5. 5.

    Frédéric Mégret, Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice, (2010) 16 Buff. Hum. Rts. L. Rev. 1.

Posner Avatar Image Eric A. Posner Kirkland & Ellis Professor University of Chicago Law School

A Minimalist Reparations Regime for the International Criminal Court

Given its lack of experience in awarding reparations and its vulnerability to charges of bias, the ICC would do well by adopting a minimalist approach to reparations.

Summary

Reparations for victims of mass atrocities committed by people of the type likely to appear before the ICC pose extremely complex and politically sensitive challenges. The ICC will be in a difficult position because in most cases, it will not secure convictions against the vast majority of perpetrators; it will not secure convictions against people who have harmed the vast majority of victims; and it will be able to obtain only a small amount of money from convicted defendants. As a result, its distribution of reparations will frequently seem morally arbitrarily and be politically contentious. Given its lack of experience in awarding reparations and its vulnerability to charges of bias, the ICC would do well by adopting a minimalist approach to reparations. It should interpret complementarity to extend to reparations, and order them only in the last resort—when it believes that nations will refuse to award reparations for bad-faith reasons or cannot be trusted to award reparations in good faith.

Argument

The ICC was given the authority to order reparations to victims of international crimes committed by defendants convicted by the court. The source of the funds for reparations may come from the defendants’ assets or from contributions from states and other entities. The ICC has not yet ordered any reparations, but with the impending conclusion of its first trial, it is time for the ICC to give consideration as to how its reparation regime should be designed.

The major challenge facing the ICC arises from its special role as a court of last resort, which is not to be used unless domestic legal institutions are unable to secure convictions. Typically, the ICC will be used in cases of significant civil disorder, including civil war, which results in mass atrocities, involving both numerous perpetrators and numerous victims. As a result, in most cases the ICC will convict only a small subset of perpetrators, who are responsible for only a subset of the atrocities. Certainly, this has been the case for other international courts, including Nuremberg, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda.

This creates two problems. The first is that the reparations regime will tend to magnify the difference between the sanctions of those convicted by the ICC and those who escape the court’s reach. Historical experience shows that international courts impose harsher sanctions on perpetrators than domestic courts do, at least in cases where perpetrators retain influence in government and society (Germany, Serbia, but not Rwanda). Perpetrators who face domestic prosecution are typically lower-level types, and they may receive a slap on the wrist or avoid conviction altogether. Meanwhile, similar perpetrators who end up in the international criminal tribunal will not only receive a long prison sentence but will forfeit their assets.

The differences in sanctions may create perverse incentives, cause political tensions, and offend notions of justice. The ICC has limited capacities, and so perpetrators always do well by evading capture until others are caught and exhaust the ICC’s resources. The greater the difference in sanctions inflicted by the ICC and by domestic institutions, the stronger the incentive to evade capture. Moreover, groups that continue to sympathize with the perpetrators will complain about unequal treatment; in general, a sense that people who committed the same crimes are punished differently will create political tensions and harm the ICC’s legitimacy. Finally, it may offend justice to impose unequal sanctions based on the happenstance of which forum takes jurisdiction of a defendant.

The second problem is more serious. It is that the reparations will not be awarded fairly. The ICC faces a dilemma. On the one hand, it could award reparations only to the victims of defendants convicted by the ICC, and thus not to other victims—including victims of those convicted in domestic or foreign courts, and victims of people who are not convicted at all. Such an approach would be considered unfair, because the relevant consideration for awarding reparations is whether someone was victimized, not whether someone was victimized by a perpetrator who ended up in one court rather than another.

On the other hand, the ICC could collect the assets of convicted defendants and then distribute them to all victims. But the latter approach would require the ICC to go well beyond its mandate of convicting perpetrators of international criminals, and establish methods for determining who is a victim on the basis of facts beyond those used to secure convictions, and to distribute funds in ways that might offend sovereign states or interfere with their own policies for ensuring a peaceful and just transition to a new regime.

The contours of the problem are familiar from other reparations regimes, such as the U.S. payment of reparations to victims of internment during World War II, Holocaust reparations, and reparations given to victims of communist oppression in eastern Europe.1 Identifying victims turns out to be an enormously complex task. The agency that issues reparations must distinguish victims of the relevant atrocities from victims of other crimes. These often overlap in complex ways. Consider a typical example. Paramilitaries enter a village in order to “cleanse” it of an ethnic group. While the paramilitaries conduct their operations, ordinary criminals who live in the village might take advantage of the chaos and the temporary vulnerability of members of the targeted ethnic groups to commit crimes against those people. Criminal groups may blend, to a greater or less degree, into the paramilitary organizations, which may recruit some of the members or simply permit them to commit crimes against the targeted ethnic group. The reparations agency must sort out these complex facts, so that it does not end up awarding reparations to people who are victims of ordinary street crimes. Many of the distinctions it makes will be, or at least appear, arbitrary.

And then there are problems of differentiating degrees of victimization: torture victims versus the families of murder victims versus people who have lost property versus refugees, etc. Aside from the sheer complexity of sorting out facts, which will often involve investigations in hostile areas, involving hostile witnesses and destroyed archives, there is no straightforward and neutral way to attach valuations to injuries. Whether someone who was forced to leave his village should receive more or less money than someone who was illegally detained is an inherently moral, and hence political, question. If the ICC were required to make these judgments, it would both be required to make moral judgments, to which it is not necessarily well-suited, and political judgments, which will harm the perception of its legitimacy.

There is also a legal question that needs to be addressed, which is that there will often be multiple reparations claims against the assets of a single defendant. In many, perhaps most or all, countries, victims of crimes can obtain reparations or other monetary claims against perpetrators. Thus, when the ICC convicts a defendant, the ICC’s process for obtaining the defendant’s assets and distributing them to potential claimants will conflict with domestic processes. Because domestic reparations regimes are sometimes established in the wake of mass atrocities (rather than preexisting them), it may be that domestic institutions will give effect to domestic processes rather than to the ICC under international law. In any event, there will be legal challenges. It may well be that the domestic processes will be fairer and more effective than the ICC process because the domestic institutions can reach more assets, are trusted more by victims, and have a better sense of domestic moral norms and political sensitivities. So even if domestic courts and institutions were willing to collect assets on behalf of the ICC and turn them over to it, it may well be better if they did not do so.

These logistical and political considerations are likely to overwhelm the ICC, which is both politically vulnerable to charges of bias and subject to financial limitations. Accordingly, it would be best for the ICC to adopt a minimalist approach to reparations. I propose the following approach. Initially, the principle of complementarity should be extended to reparations. The Rome Statute does not explicitly define complementarity so broadly, but a reasonable interpretation of it would permit such a definition.2 Accordingly, when the ICC secures a conviction of a defendant, the ICC should next ascertain whether the country (or countries) in which the victims live or the atrocities took place has established a reparations regime, or otherwise recognizes a legal right on behalf of victims to obtain monetary damages or other payments from perpetrators. Just as in the case of ordinary complementarity inquiries, the ICC will need to make a delicate judgment as to whether a no doubt imperfect reparations regime is adequate. There should be a presumption in favor of deferring to domestic reparations.

Note that the ICC would not have jurisdiction of a defendant in the first place unless it had determined that domestic political institutions could not be trusted to prosecute the defendant under the principle of complementarity. So one might ask how it could be the case that the domestic reparations regime could be considered adequate if the law enforcement regime is not. One answer is that it is possible that prosecutors and judges could be under the control of the government, while an independent reparations-awarding body is independent, or effectively so because it is subject to greater public scrutiny than law enforcement is. Another is that a country may return to normalcy and reestablish the rule of law during the (often lengthy) period during which the ICC takes jurisdiction of a suspect, holds a trial, and produces a conviction. But, of course, this will not always be the case.

Even if the relevant country has not established a reparations regime, the ICC should not necessarily issue its own reparations. Many countries do not establish reparations regimes for legitimate reasons related to the moral and political complexities that attend transitions from authoritarian regimes to democratic regimes. Spain is the usual example, but many other countries that have undergone democratic transitions have chosen to implement no or limited reparations regimes. One reason is that it often seems wrong to single out particular wrongdoers when many thousands of people were complicit in atrocities, and the entire political and legal system supported the wrongful actions. The other reason is that reparations may exacerbate political divisions, splitting supporters of the old regime and its critics, when it is important to achieve political unity.3 When a legitimate democratic government chooses in good faith not to establish reparations in the wake of a political transition, the ICC should not interfere with this judgment by introducing its own reparations regime.

If, on the other hand, the ICC concludes that the national government denied requests for reparations in bad faith, or established a domestic reparations process that cannot be trusted, then the ICC should at that point put into place its reparations machinery. That would involve seizing the defendant’s assets, to the extent that is possible, which it will probably often not be. Once the ICC obtains the assets, then it should make an inquiry as to whether the government in which the atrocities took place is under the control of other perpetrators or their supporters. If not, and if the government otherwise acts in good faith, then the ICC should turn over the funds to the government, which would combine them with general revenues and use them for public projects.

The reason for this approach is that, as noted above, any effort by the ICC to establish a reparations program will create virtually unmanageable logistic and political problems for the ICC, except under extremely favorable conditions that are not likely to prevail. So the ICC should conduct the reparations process itself only as a last resort. Turning over the assets to the government is a far better choice. A sensible intermediate option would be to enter negotiations with the government so as to obtain assurances that the government will use the funds to benefit victims. One possible compromise would be for the ICC to obtain the permission of the government to build a public project (for example, a museum that memorializes the atrocities) that benefits the victims. However, these sorts of ad hoc compromises are risky for the ICC; groups of victims will always complain that the project favors some particular subgroup of victims at the expense of themselves.

But what if the government in place at the time of conviction cannot be trusted to act in good faith? It may be that the government continues to be controlled by the perpetrators of the atrocities. If the ICC were to turn over the defendant’s assets to such a government, the government may use them simply to increase oppression. Indeed, it would be unwise to turn over assets to any kleptocratic government, regardless of its relationship to the convicted defendants and their supporters.

It is not exactly clear what the ICC should do in such circumstances. One possibility—another minimalist option—would be to hold the funds in trust until the government improved. But for many countries, that would involve a very long wait. Another option would be to interpret reparations to mean an apology or other symbolic action. Otherwise, the ICC would have no option except to establish some sort of claims procedure. But expectations should be kept low. Consider that in most if not all cases of mass atrocities, the victims will be poor, displaced people, who will not be able to travel to The Hague or even to another location in their own country, to collect money; and will have no capacity to hire lawyers, provide evidence, and so forth. And such people, if they continue to live under an oppressive government, would likely just be victimized again if it became known that they had received generous reparations. The government may deliberately interfere with evidence-gathering and undermine efforts by the ICC to make contact with victims or victim groups. So for such settings, firm rules probably cannot be established in advance; instead, the ICC will need to approach them with low expectations and in a spirit of pragmatic experimentalism.

Still, in a minimalist spirit, certain questions can be answered in advance. Because the ICC does not have the capacity to serve as an independent reparations commission that evaluates claims from all victims of a mass atrocity, it should make reparations judgments to the extent possible on the basis of facts introduced at trial of defendants who are convicted. A simple approach might be to give a lump sum to anyone who can prove that he or she was victimized by convicted defendants, where there will need to be a threshold of harm set out in advance (for example, murder or torture, but not displacement or temporary detention). It probably makes sense to pool all the seized assets of all convicted defendants, and make them available to all victims, although this may create delay. Simple rules help avoid the appearance of bias, but it must also be acknowledged that they will give the impression of arbitrariness and injustice.

History makes clear that awarding reparations is an inherently political process, one that engages the deepest moral and political sensitivities. Its obligation to award reparations exposes the ICC to even greater challenges to its legitimacy than its existing mandate, which has already raised questions about whether the ICC discriminates against African countries and harbors other western biases. There is no way to avoid these problems, but a minimalist approach—one that defers as much as possible to governments—should keep them from undermining the ICC’s legitimacy.

Another question is how the ICC can ensure that there are sufficient resources available for reparations. The answer is surely that there will almost never be sufficient resources, and the ICC has no means of ensuring that there will be. Most outside parties will have no interest in supplying funds to the ICC so that it can award reparations; if they have any interest at all in the well-being of victims of atrocities, they will try to help them directly. As an unproven and inexperienced institution, the ICC will be regarded as a less suitable vehicle for distributing aid to victims than established national and international aid organizations. At least in the short term, the ICC should accept this limitation on its capacities with good grace.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Colum. L. Rev. 689 (2003).

  2. 2.

    Perhaps some weight could be given to Rome Statute, art. 75(6), which provides that the rights of victims under national law will not be prejudiced, as well as the complementarity provision (art. 1), which, however, refers only to criminal jurisdiction, whereas reparations may fall under civil jurisdiction in some countries.

  3. 3.

    See Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 Harv. L. Rev. 761 (2004).