B. Institutional Perspectives—NGOs

The NGO representatives with whom we met all expressed a preference for either a mixture of collective and individual reparations, or for only collective reparations. They also generally highlighted the need to somehow categorize victims of different crimes into groups when implementing reparations schemes.

Representatives of the Research Center on Environment, Democracy, and Human Rights (Centre de Recherche sur l’Environnement, la Démocratie et les Droits de l’Homme, or CREDDHO) explained the problem of reparations to us from a transitional justice perspective. They believe that it is important for victims to speak out about their suffering in order to fight impunity and to begin a long-term healing process. Reparations awards might encourage this process by giving victims an award in return for an account of their suffering.

At the same time, CREDDHO representatives took the stance that crimes toward individuals cannot be repaired individually, in light of the number of victims and the variety of crimes which have taken place. The situation in the DRC has made victims of many people, both directly and indirectly. Often, it would be difficult to clearly define all individual crimes and victims. For this reason, CREDDHO representatives stated that reparations are best given collectively. Furthermore, from a transitional justice point of view, such a scheme might facilitate the community healing process by recognizing entire groups as victims.

CREDDHO representatives further advocated that victims be organized into different groups for reparations purposes. This organizational scheme would account for the severity of the crime suffered, what the victims need, and what the victims would like to be repaired. They recognized that this type of reparations scheme is no easy task given the number and nature of crimes suffered. Ultimately, however, they prefer this method—a collective scheme in which victims,and awards are organized into different groups.

Representatives of the NGO Heal Africa preferred a dual system of reparations that is both collective and individual. First, they identified the need to recognize individual sufferings in identifying those responsible for the crimes. In this way, they suggested that fostering accountability and establishing an account of the crime is an important element of reparations.

At the same time, the Heal Africa representatives presented several reasons why collective reparations are critical. Like the CREDDHO representatives, they noted that it would be difficult to find all victims of crimes. Again, defining who is a victim can be a difficult task, given the nature of the conflict and its indirect effects on children and families. For instance, they explained that victims of rape often abandon their children or are unable to support them, thus creating a generation of children that could be deemed indirect victims. In such circumstances, a collective award presents the best opportunity to help all who have been victimized. It may also help a broad group of people, without having to make difficult questions baed on who qualifies as a victim.

Heal Africa representatives also noted that in many cases, individual crimes such as rape cause a breakdown of both physical and cultural infrastructure, thus dealing a blow to the community as well. When a married woman is raped, she is viewed as an adulterer and will often be abandoned by her husband. Thus, mass rape destroys families, prevents girls from being marriageable, and victimizes the community as a whole. Therefore, collective reparations may be preferable to individual reparations. Programs that rebuild community infrastructure, in the form of institutions such as hospitals or schools, provide a practical way of administering the benefits that a community needs.

Finally, Heal Africa representatives, as well as others with whom we spoke, emphasized the importance of helping victims of crimes other than sexual violence. Much international attention has justifiably been paid to the extreme problem of rape in the DRC. At the same time, however, other victims have lost property, been displaced or orphaned, or have been recruited as child soldiers. Each of these crimes may call for a different remedy. For most, however, reintegration into society presents an important obstacle that must be overcome. In all cases, a long-term solution with follow-through is critical. For this reason, many victims will benefit from institutional reparations which strengthen and rebuild the community.

C. Victim Perspectives—Bogoro Village

In order to get victim perspectives of the reparations issue, we travelled to the village of Bogoro, outside Bunia, to speak with its inhabitants. Many of these people had been victims of General Katanga’s attacks on Bogoro in 2003, for which the ICC has charged the general with murder, destruction of property, and sexual enslavement.1 The people were largely from the Hema tribe, although the chiefs asserted that there are now also Ngiti and Lendu inhabitants. The Hema tribe is the same tribe to which the recently convicted Thomas Lubanga belonged. Thus, the people were supporters of Lubanga, but hostile to Katanga, Chui, and Bosco Ntaganda. We spoke with a group of men, including the village and regional chiefs.

The chiefs had previously held a village meeting with the victims, from which they gathered information regarding reparations from the ICC. They stated that 80% of victims want individual and not collective reparations awards. In their view, a community award would not sufficiently address the needs of victims. Many people now living in the village are not from Ituri and were not victims of the 2003 attacks. Perhaps more importantly, many perpetrators now live alongside victims in the village. Thus, a community award would benefit victims and perpetrators alike. Although the Bogoro chiefs stated that their people had largely reconciled after the tragedies that had taken place, they did not want a collective award which benefitted those other than the victims.

The chiefs further pointed out the extent of some victims’ loss. They noted that some people had been able to rebuild their property or homes, while others had not. Many families lost their male heads who had served as primary care providers. Widows were left without means of support, or without money to pay for their children’s school. Many children were left orphans, without any money to pay for food or other necessities. Such people still in need, the chiefs argued, should be entitled to individual reparations. They argued that money should be given to them, rather than to the community as a whole. They also noted that some victims had not yet returned to Bogoro, and a collective award would not benefit them at all.

At the same time, the elders did exhibit an interest in limited collective aid. They expressed desire for a television or other means of following ICC trials. Furthermore, they had asked for a village tombstone to be built for victims, and were disappointed that this had never been realized.

When asking victims about their preferences with respect to reparations, the chiefs said that they had mostly talked about whether collective or individual reparations were preferable. They had not discussed how to allocate the awards to victims. However, they suggested two things with respect to those issues. First, the chiefs noted the great difference between the crimes that victims had suffered, both in the severity, type, and amount of crimes that each person had experienced. Like the representatives from CREDDHO and Heal Africa, they indicated that it would be important for a reparations scheme to consider the differences in suffering for victims. Second, the chiefs showed deference to the ICC in implementing reparations schemes. They felt that some issues were up to the Court to decide, including how to value a certain person’s loss.

We also spoke with the chiefs about traditional justice mechanisms, and any role that they might play in a reparations scheme. Within the same tribe, we were told that issues are traditionally resolved in a manner similar to the “under the tree” process followed in other tribes. When two families are involved in a conflict, they will discuss the situation and come to a mutual agreement. One family will pay the other family a fine in an agreed-upon number of cows. In addition, one cow is killed, and its blood spilled upon the ground in atonement. If the families cannot agree, the formal Congolese justice system may be used. Thus, the traditional means of reparations, at least in the Hema tribe, consist of a valuable resource (cows) given to a family as a whole. This resource is likely to be considered primarily the property of the male head of household.

III. Recommendations

It is important to keep in mind the unique perspectives of NGOs and individuals when they are asked for their input on reparations. Common sense dictates that most individuals, when asked, will opt to receive individual as opposed to community awards. Among other things, individual reparations provide a more direct benefit, more control over that benefit, and the ability to exclude others from that benefit. Meanwhile, NGOs may have a more holistic view of a certain situation, as they are generally more removed from any direct benefit. Depending on their mission, they may also have a bias in a certain direction as well.

After speaking with both individuals and NGO representatives, I believe that collective reparations present the best form of reparations in the DRC. This is because individual reparations are a practical impossibility; because of the imperative to rebuild the community; and because the practical needs of many victims in the DRC are best served by collective projects.

Despite the Bogoro community’s strong preference for individual reparations, I believe that the process of identifying all possible victims and determining who will receive reparations awards is an almost impossible task. Even if the ICC had unlimited resources, because of the ambiguity of the definition of “victim,” and because many victims are displaced or of unknown whereabouts, it is extremely difficult to identify which victims may be recipients of awards. Furthermore, individual reparations generally are given by the convicted perpetrator to the victims of his or her crime. Because very few perpetrators of crimes are under arrest in the ICC, a very small and arbitrary portion of victims in the DRC would benefit from a scheme which awarded individual reparations in this way.

In addition, as a Heal Africa representative suggested, the desire for individual reparations seems to derive at least in part from a desire for accountability and individual justice. However, establishing a collective system of accountability or judicial process might make victims feel as though justice has been done as much as an individual award would. Moreover, a collective reparations scheme which helps to create a judicial-type infrastructure might simultaneously serve a community function and address individual grievances. If these schemes thus favor victims, they might alleviate the Bogoro villagers’ concern of perpetrators benefitting from reparations schemes.

A community-based reparations scheme might also best address the needs of the DRC’s victims given the types of crimes committed. Generally, entire villages or communities have been targeted by perpetrators. Acts such as mass rape or murder; destruction of villages and farmland; or mass abduction of children are common crimes in the DRC. Each of these acts obviously creates numerous individual victims, but also destroys communities, both physically and infrastructurally. Thus, reparations schemes targeted at these communities might be preferable in restoring what was destroyed. They may thereby strengthen society and create stability.

Finally, I believe that collective reparations schemes are preferable to individual awards in providing what victims truly need. Given the situation in the DRC, victims live in an environment in which their security is uncertain, the government is politically unsound, and most governmental or institutional infrastructures are ineffective or nonexistent. Thus, overall society requires community-based aid, such as a judicial system, medical centers, educational facilities, or economic institutions. Without such infrastructure, individual awards might lose much of their effectiveness.2

For these reasons, I favor reparations that help to create or rebuild infrastructure in a community. Especially where such projects can benefit a specific group (i.e. orphaned children, the psychologically traumatized, or families with land grievances), victims may thus benefit without the need for individual awards.

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

1. 1.

   Prosecutor v. Katanga & Chui, Case No. ICC-01/04-01/07, Warrant of Arrest, (July 2, 2007), available online. ↩

2. 2.

   For example, giving a monetary award may have diluted effect when a victim’s land is owned by someone else; where there are no banks; where lack of roads drive the price of commodities up to exorbitant levels; or simply when a victim is at risk of being killed or robbed. ↩

I. Defining a Coherent, Shared Narrative

Under Article 75 of the Rome Statute, the International Criminal Court is empowered to demand reparations from criminal violators to assist victims with rebuilding after mass atrocities and to enable victims to reintegrate into society.2 The Court has not yet determined what form reparations will take; however, the Court appears to have broad power to demand various methods which serve “the restitution, compensation and rehabilitation” of victims.3 Monuments and museums can be created to correct the wrongs committed by a violator and can be an effective tool to return dignity to those who have been harmed by mass atrocities. Moreover, monuments and museums can end the cycle of blame for crimes therefore preventing future leaders from using past crimes to justify future aggression. Monuments and museums can promote the restitution, compensation and rehabilitation of victims, therefore, the Court is empowered to create these sites.4

It is important to determine under what circumstances, then, monuments and museums can promote the restitution, compensation and rehabilitation of victims. If monuments and museums are to be effective, the parties to a conflict must come to a coherent, shared understanding of the facts being memorialized. For a narrative to have value, it must be coherent; a narrative which misstates facts or contains bias will be overcome by anyone who seeks to challenge it. Moreover, the narrative must be shared by the parties to a conflict; a one-sided narrative will be ignored by other parties to the crimes. To determine if a shared narrative has emerged, the Court should look to the majority views within the parties to a conflict to determine if there is agreement as to the occurrence of crimes and the roles of the parties in those crimes. While there will be individuals who deny or disbelieve the facts surrounding crimes, the Court must look to the majority of opinion to bind the greatest number of members within each group. Once parties have agreed upon a coherent, shared narrative, the Court may order the creation of monuments and museums to memorialize this narrative.

It is important to determine what is meant by a coherent narrative. A coherent narrative is a narrative which is factually accurate and includes all parties to a conflict. There is little value in a narrative which is agreeable to all parties, but which is clearly contradicted by fact or a narrative which is biased toward one party as future generations will not feel bound by that narrative. As an example, it would be misleading to spread blame for aggression across all groups in a conflict if one group appears to have been the primary aggressor. When future generations can point to inaccuracy in the narrative, they are free to reinterpret the role of their group in past crimes—and it is likely that they will place blame for past crimes on other groups. To ensure that the narrative which monuments and museums seek to communicate is lasting, it is important that the narrative be coherent. Lastly, one must note that a misleading narrative which mischaracterizes members of a certain group is unlikely to become a shared narrative.

A shared narrative is a narrative accepted by the majority of members within the parties to a conflict. The parties must agree to their role in the conflict and recognize the major factual events of the crimes which occurred. A shared narrative may be as simple as an acceptance of responsibility for crimes which occurred and statements acknowledging the horrors of those acts. Moreover, instances where parties cooperate with the Court as well as official statements acknowledging crimes can be seen as evidence of the emergence of a shared narrative.5 While it is likely that there will be individuals who deny or disbelieve the narrative presented by the majority within the parties to a conflict, the Court can rely on the narrative shared by the majority within the parties to a conflict to demonstrate a sufficient shared narrative. Lastly, by meeting with leaders within the parties to a conflict or even through sociological study of the region, the Court can determine if a shared narrative has emerged.

Although the Court cannot impose a narrative on the parties, it can have an active role in fostering the emergence of a narrative within a community. The Court can use the significant amount of time during which it investigates and prosecutes crimes to raise awareness within the affected community—as has been done by the International Criminal Tribunal for the Former Yugoslavia. Through the distribution of literature, a presence in the media and the hosting of conferences, the Court can inform parties to a conflict and therefore encourage the emergence of a shared narrative.

II. Monuments and Museums as Reparations

Only a coherent, shared narrative can end the cycle of blame which might be used to fuel future conflicts. The cycle of blame refers to the tendency of closely situated groups to pass blame for different social, economic and political ills onto members of another group. Oftentimes, differing groups who have lived in close proximity for generations have a narrative of past wrongs which presents the other groups as aggressors. For example, in the former Yugoslavia, parties on all sides of the conflict maintained a narrative of victimization by the other parties and justified recent crimes as retribution for past crimes by other parties. Such a cycle is dangerous because it encourages aggression masked as retribution and presents a threat to the stability of a region. It is important to memorialize the coherent, shared narrative of the parties to mass crimes in the form of monuments and museums to ensure that future generations can witness those findings. Once the parties to mass crimes have formed a coherent, shared narrative, the Court can use monuments and museums to combat the cycle of blame for past crimes wherein past crimes are used to justify future aggression by preserving the facts for future generations against the efforts of leaders seeking to use conflict to enhance their power.

Monuments and museums also bring restorative justice to victims and may be used as a form of reparations which restores the status of victims after mass atrocities. Although a monetary settlement also serves to restore victims, monuments and museums can publicly communicate a shared narrative to a whole community about those who were lost. Victims of mass crimes suffer a loss of status in their community; criminal violators seek to minimize the worth of victims. Monuments and museums might be seen as a way for victims to assert their worth and to restore their status as valuable members of a community. Moreover, victims of mass crimes have been found to express satisfaction from processes which offer little monetary compensation if these processes show a respect for the human losses which resulted from the crimes.6 As such, victims of mass crimes may in some circumstances prefer lesser monetary compensation when placed alongside monuments and museums which recognize their worth rather than the greatest settlement. Money compensation may fall short of the desires of victims of mass atrocities and monuments and museums may be necessary to make victims feel whole.

Monuments and museums also enable the Court to demand respect for the many victims of crimes who cannot be identified. Whereas a money judgment requires a finding by the ICC against a specific defendant in relation to a specific victim, the creation of monuments and museums can recognize the loss of those who cannot be identified or who could not bring their attacker before the ICC. The ICC will focus its efforts on those it finds bear the greatest responsibility for mass crimes therefore the majority of mid—and low-level violators will not be tried before the Court. Moreover, the Court might find it difficult to gain custody over powerful violators or those who can evade arrest. Yet the creation of monuments brings recognition even to those who do see their attacker tried before the ICC or who cannot collect from a judgment against an indigent violator. Monuments and museums also avoid the possibility in which certain victims receive money judgments where as others might be left with nothing. Therefore, monuments and museums offer relief to victims beyond what could be offered simply by money settlements to those who see their violator tried before the ICC.

It is important to note that most scholars agree that there will be a limited—and in many cases insufficient—amount of money available by which the ICC may pursue reparations for victims. On the one hand, some scholars see money held by the criminal violator as assets which should be seized to compensate victims after a finding of guilt by the Court.7 However, few criminal violators have funds available to them which could compensate numerous victims for crimes which occurred over the span of years, and which caused unimaginable destruction. On the other hand, others believe that the Trust Fund for Victims might be used to compensate victims using monies donated to the Fund separate from a finding of guilt by the Court.8 Unfortunately, it is similarly unlikely that the Fund will receive enough in donations to restore entire communities. Regardless of which source the ICC selects to fund victims’ reparations, one can assume that the amount will be limited; therefore, the Court must seek maximal effect with the funding it has available to it.

The creation of monuments and museums does come at a cost, however, and the cost of creating and preserving these sites may outweigh their benefit in certain instances. Where the ICC finds that the immediate needs are greater, such as in a famine or where a community is on the brink of extinction, there is likely no place for monuments or museums in the community. It is most likely that monuments and museums will become relevant only where relations between groups have stabilized and victims are moving forward with their lives; only then can a coherent, shared narrative emerge. However, it is important to look to the successful reparations scheme in South Africa which stressed “material reconstruction and the restoration of dignity” to take those in a desperate condition to greater possibilities.9 Even in instances where there was great physical need, there is also a need to restore dignity of victims to restore their status and enable victims to begin to participate equally in their community.

III. Instances in which Monument and Museums Discourage Reconciliation

The ICC must not demand monuments and museums be created in instances where a coherent, shared narrative does not exist. In such instances, the Court may in fact be creating an obstacle to peace by presenting a narrative which parties are not ready to accept. For example, creating a monument to victims of political violence might be rejected by those who see those victims as dangerous rebels or even as aggressors. Moreover, in instances where all parties feel victimized, to create a monument to some victims might appear to slight others who also feel victimized by either past or present crimes. In such instances, monuments or museums could become a rallying point for those who interpret the sites as blaming the real victim of mass crimes. Such could restart the cycle of distrust between groups and ultimately lead to greater violence. Moreover, to maintain the integrity of the Court, it must not be seen as favoring one party against another or seeking to impose its interpretation of facts on those affected by mass crimes. Recognizing the suffering of victims will be futile if it begins a new cycle of conflict within a community.

Because the ICC must not insert itself into a situation where a coherent, shared narrative does not yet exist, the Court must be cautious and move slowly. In most instances, it will take years before a coherent, shared narrative emerges after mass crimes. In such instances, the long timeframe between the initial investigation and final judgment might enable the Court to observe the relations between groups before making its recommendation. During this time, the Court might also rely on scholars to identify the sentiments of those in the region. Critics will argue that the deliberative movements of the Court could detract from its credibility and leave victims without reparations for too long. However, it is important to note that other avenues exist which could begin the process of making victims whole. For example, the Victims Trust Fund could proceed to deliver reparations before cases have been determined—monuments and museums are not the exclusive remedy for victims.10 Moreover, it will take time to determine the facts of alleged crimes and the Court could exacerbate tensions by rushing to create monuments and museums before first settling the facts necessary to create a coherent narrative. Therefore, the ICC can successfully use its caseload and protracted schedule to ensure that a coherent, shared narrative exists before it proceeds with the creation of monuments and museums.

Another criticism of the use of monuments and museums might suggest that such sites label one party to a conflict the “criminal” group and another party the “victim” group. Some might argue that by recognizing crimes against one group, another group is inherently depicted as the aggressor. However, this criticism reinforces the importance for the Court to wait for a shared narrative to emerge between the parties. Moreover, such a depiction likely oversimplifies the message of monuments and museums; rather than labeling one party, sites might seek to present the human tragedy to viewers and to restore victims to equal status within their community. Lastly, if the monument or museum reinforces an agreed upon narrative it will be a lasting statement of the understanding of the parties to the conflict. In instances where parties have accepted responsibility for their role in crimes and begun to make amends, it is unlikely that a group would feel slighted by monuments or museums which echo their own understanding.

Conclusion

The ICC should use its authority to demand reparations to create monuments and museums which will reinforce the coherent, shared narrative of events created by parties after mass crimes. After crimes have occurred, a shared narrative can break the cycle of blame between parties and therefore make a reemergence of conflict less likely. Moreover, monuments and museums meet the needs of victims who seek to restore their status within a community. Museums and monuments can satisfy the needs of victims who do not see those who harmed them tried before the Court and those victims who cannot be identified. However, the ICC must not demand the creation of monument and museums before a shared narrative has emerged as individuals might feel blamed for crimes for which they do not feel responsible. If the ICC is seen as forcing blame upon a party, the creation of monuments and museums will likely be in vain and may even serve to heighten the divide within a community. Therefore, the Court should demand the creation of monuments and museums only where a coherent, shared understanding of the crimes has emerged between the parties.

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

1. 1.

   I do not argue that monuments and museums should be the sole form of reparations which the ICC should seek; the creation of monuments and museums is simply a unique remedy to be pursued alongside other remedies such as monetary compensation and rehabilitation. ↩

2. 2.

   Rome Statute of the International Criminal Court, art. 75(2), 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]. ↩

3. 3.

   Id. ↩

4. 4.

   See Frédéric Mégret, Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victims Reparations and Assistance Regime to Promote Transitional Justice, 16 Buff. Hum. Rts. L. Rev. 1, 4 (2010). Scholars have suggested different ways to pay for “sites of conscience” such as museums and monuments; some suggest relying on funds seized from violators while others suggest the Trust Fund for Victims. For the purposes of this paper, the source of the funding is not important—however, it is important to note that regardless of the source, funding will likely be limited. ↩

5. 5.

   The emergence of a shared narrative will likely take time. It is possible that this process will take many years, however, it may be years before alleged crimes are presented before the Court. ↩

6. 6.

   Thomas M. Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 285 (2011). ↩

7. 7.

   Mégret, supra note 4. ↩

8. 8.

   Id. ↩

9. 9.

   Carlton Waterhouse, The Good, the Bad, and the Ugly: Moral Agency and the Role of Victims in Reparations Programs, 31 U. Pa. J. Int’l L. 257, 283 (2009). ↩

10. 10.

    Mégret, supra note 4. ↩

Collective awards are often necessary for several reasons. First, the victims of crimes under the ICC’s jurisdiction are usually, sometimes by definition,3 very numerous. Often the number of persons affected is incalculable, and an individual award for each one would be impossible.4 This is both because one may not practically identify all victims, and because limited funds would prohibit such numerous individual awards. Moreover, individual awards are more easily given only to victims of perpetrators who have been tried and convicted.5 Victims of perpetrators who have been killed or who are never arrested could thus be left without remedy. In addition, many victims may not have the knowledge or resources to come forward to request remedies.

Next, collective awards may be best suited to rebuild society as a whole. Individual awards alone may be divisive if given to some victims and not others. This may give a perception that some victims are more “worthy” than others to receive reparations, and thus cause resentment or hostility.6 In addition, since rehabilitative justice aims to repair a society, it often requires larger-scale projects which differ depending on the conditions in any given conflict area. Some areas may need to achieve a cessation of hostilities. More post-conflict areas may need to focus on creating a truthful, widely-accepted narrative of what exactly happened.7 While the societal needs will thus vary, individual awards alone will generally not fulfill these needs. Rather, collective awards will usually prove more adequate than individual awards to address these broader needs of society, which may require the involvement of many people.

The VTF is appropriately positioned to administer a collective, rehabilitative reparations scheme. In addition, it is clearly within its mandate to act as a complement to domestic actors, or to NGO or IGO actors it deems appropriate, to help implement reparations schemes. Article 79 of the Rome Statute creates the VTF. Section (1) provides that a trust fund “shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court and the families of such victims.”8 Section (3) states that it “shall be managed according to criteria to be determined by the Assembly of States Parties.”9 In addition, when awarding reparations, “[w]here appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in Article 79.”10 The prospect of collective reparations could thus be read as an alternative to individual reparations, at the very least by extending to the families of victims. In addition, the language of Article 79 allows for much flexibility in the administration of the VTF, giving the States Parties especial leeway in its control. In this capacity, there is ample room for States Parties and the VTF’s trustees to incorporate domestic actors into a reparations scheme.

The Rules of Procedure and Evidence enacted subsequent to the Rome Statute further elaborate on the structure of the VTF. Rule 98 (1)-(2) outlines procedures through which individual awards may be given through the VTF. Sections (3)-(5) discuss other reparations:

(3.) The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.

(4.) Following consultations with interested States and the Trust Fund, the Court may order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund.

(5.) Other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79.11

Article (3) both acknowledges that collective reparations may sometimes be necessary, and designates the VTF as the organ through which to implement them. Article (4) specifically contemplates the VTF working in conjunction with national systems, as well as with NGOs and IGOs. Finally, Article (5) seems to further emphasize the VTF’s flexibility in administering measures to benefit victims. The VTF’s mandate may thus envision precisely a reparations scheme in which the Fund implements rehabilitative reparations collectively, while working in conjunction with national systems. Furthermore, in addition to receiving funds from fines against perpetrators charged by the Court, the VTF may obtain additional funds for victims from states and donors.12 In the establishment of the VTF, the ICC thus both acknowledges the collective awards are sometimes the most appropriate method of reparations, and also provides the vehicle through which to collect and distribute them.

II. The VTF Should Extend the Principle of Complementarity to Work With Domestic Systems

The Rome Statute’s preamble emphasizes that the Court “shall be complementary to national criminal jurisdictions.”13 The principle of complementarity is a deference for national authority over situations that may otherwise be under the ICC’s jurisdiction.14 It is designed to preserve the sovereignty of the state, as well as to strengthen the state’s justice system by allowing it to develop and to be involved in the proceedings. The issue of complementarity often arises in the context of criminal prosecutions and the ICC’s admissibility to proceed with a case.15 At the same time, the principle of complementarity can be analogized to the method of reparations as well. Rationales similar to those which encourage the ICC to defer to national prosecutions may suitably apply to the reparations context. These include, among other things, domestic systems’ relative ease compared to the ICC in conducting investigations and other fact-finding; the need to build authoritative domestic systems; and the sensitivity of domestic systems to certain cultural factors. Although the principle of complementarity is not entirely transferable to reparations, it serves as a useful parallel when examining a reparations system with many of the same considerations present.

Although the VTF may work with domestic systems when issuing reparations under the Rome Statute and under the Rules of Procedure and Evidence, it is not required by these provisions. However, in keeping with the principle of complementarity to justice systems as a whole, a scheme in which the VTF works with domestic actors could present an ideal mechanism to achieve rehabilitative justice. These actors may be on-the-ground NGOs, government entities, a newly created domestic agency, or some combination of these. The VTF should work with such actors both substantively, procedurally, and financially, for several reasons.

A. Limited Resources

One of the greatest problems faced by the VTF and by the ICC in general when administering reparations is a sheer lack of resources, both monetary and otherwise. Often, a perpetrator under the ICC’s jurisdiction will be charged with crimes so heinous and widespread that it is impossible to ever achieve perfect justice in the aftermath. Moreover, the sheer amount of destruction and victimization that such crimes entail will frequently exceed the perpetrator’s resources to recompense.16 The fines and forfeitures obtained from convicted criminals thus generally fall short of the amount necessary for reparations. Although the ICC may also obtain money from donations to the VTF,17 it is still highly constrained by a lack of funding.18 In addition, the VTF may often lack important non-monetary (i.e. personnel or institutional) resources as well.

In light of these extremely limited resources, the VTF is well-served to work with domestic systems in order to lessen its burden. Procedurally, domestic systems may already have an agency or organization in place which may be suitable to issuing reparations. For instance, a state may have a governmental organ which could work with the VTF to create a common fund for victims, to be used in any number of ways for their benefit. Such an approach could also substantively aid the VTF, for instance in the need to fact-find or conduct determinations of who victims are and what they might need. By working closely with such an organ, the VTF could also gain financial support if the agency has any independent funds it can contribute. Each of these forms of cooperation will reduce the burden on the VTF’s own resources.

B. Strengthening Domestic Systems

Working with domestic agencies could also enhance the VTF’s reparations scheme by providing an opportunity to strengthen domestic systems. Similar to complementarity rationales for criminal proceedings, employing a domestic system to procedurally implement reparations could create a lasting structure for peace-building in a nation. For instance, endowing a domestic financial institution or national NGO with the ability to manage reparations funds could create a stable economic institution, which in turn can maintain reliability in the future. Alternatively, a transitory reparatory scheme undertaken by the VTF could ultimately be transferred to domestic hands, either private or public, thus becoming a literal and symbolic instrument of a changing, renewed society.

Reparations schemes could also create a domestic institution aimed substantively at promoting lasting peace. For instance, the building of a war crimes museum would create a structure dedicated to victims and promote reconciliation. This could contribute to healing the overall society, with the added benefit of being built through domestic actors and contributing to a national identity. Finally, in working with domestic systems, the VTF can give domestic systems needed guidance and training as to how to rebuild that will outlast the VTF’s involvement.

C. Involvement of Victims

One key objective of rehabilitative justice is to include the victims of wrongdoing in the reparative regime. This may often provide psychological benefits which are critical in restoring a society. Victims who desire to participate may feel as though their wrongs have been recognized, and may feel empowered through having a voice in the reparations and rehabilitative regime. Addressing such important psychological needs may provide a more solid foundation for healing a community. Victim involvement can also help to overcome the obstacle of physical and theoretical distance that the ICC faces when prosecutions occur outside the victims’ country.19 Especially in the rehabilitative context, it is important that a society be rebuilt with the involvement and support of its people, particularly its victims.

A reparations scheme in which the VTF works with domestic agencies could also procedurally allow more opportunities for victim involvement than one in which the VTF or ICC acted alone. If administered domestically, victims could voluntarily contribute to the reparations scheme either through their time, or through decisions on how to implement it. Since they are personally involved, victims may feel more satisfied with or restored by such a scheme. This form of rehabilitative reparations would also allow victims to work together for a common purpose, thus promoting integration and reconciliation. Finally, victim involvement would be a valuable asset in determining the most appropriate reparatory measures. By working with a domestic actor, victim input—and by extension societal needs—can easily be noted at every step of the way, enhancing the effect and responsiveness of the scheme.

D. Flexibility in Different Contexts (stages of conflict as well as cultural needs)

Another extremely important benefit to be gained from working with domestic agencies is the high degree of flexibility it allows in implementing reparations schemes. Situations affected by crimes within the ICC’s jurisdiction will vary radically, both in terms of the nature of the conflict and in terms of the society in which it occurs. Procedurally and substantively, the firsthand insight that a domestic actor will have into a certain situation will give the VTF valuable assistance in implementing reparations.

To begin with, the ICC will have jurisdiction over crimes occurring in areas in different stages of conflict. A situation such as that in the former Yugoslavia, where a ceasefire was achieved long ago, will differ greatly from a situation in which a conflict continues. Correspondingly, the needs of victims will differ greatly in considering what restorative reparations regime would be best. In a situation such as the former Yugoslavia, a reparations regime may focus on reducing post-conflict (and centuries-old) hostility and promoting integration. In an ongoing conflict, by contrast, a reparations regime could focus on immediate protection and aid.

In addition, different cultural factors will be extremely important when considering different restorative reparations. What one culture may deem appropriate to restore a victim or society may differ radically from another. For example, in post-apartheid South Africa the use of truth and reconciliation commissions was critical in providing a form of redress to victims and in rebuilding society. Such a harmonious approach to restorative justice will not work in every situation. Again, flexibility is needed to ensure that the reparations regime is most effective to meet the needs of different societies.

Collaboration with a domestic actor will prove extremely valuable to the VTF in light of such varied situations, both procedurally and substantively. First, working with a domestic organization may help the VTF to determine what the factual situation on the ground is. Aid from domestic organizations can provide factual support that the VTF may not be able to obtain (or may not have the resources to obtain), such as victim names. In addition, a domestic actor will be very sensitive to cultural considerations. Especially when working toward rehabilitative justice, such sensitivity is crucial to implementing a scheme that reacts to the cultural needs of victims. Domestic actors will give insight into how to best implement a particular measure, such as the Ugandan mato oput ceremony.20 They may also be sensitive to friction between groups. Therefore, a domestic hand in reparations, especially in rehabilitation, is extremely valuable to providing necessary flexibility and insight.

III. Examples of this principle in action

As already noted, the VTF should work with domestic agencies as much as possible procedurally, substantively, and financially. In practice, there are many different schemes that could be taken along these lines. Inevitably, there will not always be perfect complementarity, and may be situations in which the VTF will be obliged to take the lead in one or more areas. For example, a nation may completely lack financial resources, or national agencies may be disabled by conflict. In these cases, the VTF must take the lead in providing financial or procedural support. However, even in such cases, support may be enlisted from NGOs, IGOs, or other international organizations with an interest in contributing to the nation’s rehabilitation. Since reparations situations will differ radically, the VTF must take a context-specific approach to each one.

Although collaboration between the VTF and domestic agencies may present an ideal scheme, it is also important that the VTF maintain administrative control over each reparations process. As with the principle of complementarity in criminal proceedings, there may be dangers in ensuring that there is some of control over domestic actors—for instance, that a government does not appropriate victim funds for its own devices. Thus, in each reparations scheme, the VTF should always be conscious of its administrative and regulatory role. For instance, a reparations scheme should have some form of oversight mechanism and possible sanctions for noncompliance. Thus, prior to implementing such a complementary domestic reparations scheme, it will be necessary for the VTF to determine the best strategic scheme for each situation. There are several examples, by no means exhaustive, of approaches which the VTF could adopt in conjunction with domestic actors.

A. Microfinance

Anita Bernstein advances a theory of microfinance in issuing monetary reparations.21 Put very simply, in this scheme monetary reparations would be distributed in the form of shares in a microfinance institution. This institution may take a variety of forms, from an established bank, to a credit-providing NGO, to more basic local groups such as moneylenders. The institution could issue loans to other members of society, such as those who need money to farm. In this way, the shareholders become investors, while those who borrow the loans are able to obtain investment money in order to rebuild. Where identified, individual victims could be given shares in a financial institution. In this way, they could both be given a financial share as well as empowered by authority as an investor. If they reject the idea of being a shareholder, they could simply withdraw their share for money. On the other hand, a decision to be a continued shareholder would provide a variety of benefits: a safe place to store money; empowerment through their decisions over the institution’s lending choices; or greater returns on their investment.

This scheme is appropriate for situations in which monetary awards are critical in advancing justice,22 and has both collective and individual elements. Although it is facially an individualized reparations scheme, the collective benefits of such an institution equally render it a societal rehabilitative tool. It is also an excellent way for the VTF to work with domestic agents. The institution could be a national financial institution such as a bank, or an on-the-ground NGO which provides or is willing to provide the framework for such a scheme. Alternatively, the VTF could create a domestic institution from scratch, although more involvement and regulation would likely be necessary. In all cases, however, the VTF would continue to involve itself in planning and oversight mechanisms. This would help to reduce the strain on the new institution and to prevent possible failures.

B. Symbolic Reparations

Many scholars have noted the importance of symbolic reparations when implementing remedial programs.23 These reparations schemes have the benefit of consuming less money than individual monetary awards. They also address the concern of recognizing victims’ suffering on a psychological level. While symbolic reparations schemes may recognize individual victims, they often also can recognize victims collectively, thus ensuring that no victims are left overlooked. Furthermore, such reparations can serve important psychological healing functions. A memorial may serve as a remembrance and a vow of non-repetition for a victim; it may also establish a shared narrative of the conflict. This is often crucial in restoring a broken society and setting the groundwork for lasting peace.

Symbolic reparations may take many different forms. They may be a physical presence such as a memorial or a museum, or a ceremony such as a truth-telling commission or formal apology. Nearly always, symbolic reparations will be culturally-sensitive, and require a carefully-constructed societal understanding of what happened. This is especially true when a society has cultural institutions or practices which traditionally address victims’ rights and remedies. Thus, the VTF would be aided in such instances by working with domestic actors. Again, these domestic actors may already be in place, may be created by the VTF from scratch, or may be created with the help of NGOs or other international actors. For example, a domestic organization dedicated to building a memorial museum could provide an outlet for victims to participate (such as involvement in design committees), or could provide insight into how to best achieve the healing process in that society. Moreover, it may create an institutional framework for further reintegration and peace, if for instance the organization continued to operate afterwards as a peace-building NGO.

C. Services

A final, often-cited mechanism for rehabilitation takes the form of a service-oriented institution.24 The purpose of such a reparations scheme is an active and more practical focus on rebuilding society. Examples include an organization which provides medical or psychological aid to victims, or an agency which helps rebuild homes or other structures which were destroyed. Again, a domestic agent would be extremely important to aid the VTF in administering such a reparations scheme. For example, a reparations scheme could fund a medical clinic. The VTF could work with an on-the-ground organization, whether an existing domestic institution, a NGO, or another international organization. Again, the institution could substantively provide insight into any nuanced cultural views of health and medicine. Most importantly, this domestic agency could become a permanent, stable presence. With the guidance of the VTF of how to procedurally administer such an institution, a medical clinic may eventually become a functional independent entity.

Such a scheme has extremely practical roots: its aim is generally to stop suffering and restore victims’ immediate losses or injuries. However, it is important to remember the justice-serving function of reparations. In other words, the VTF should take care to not blur the line between merely giving aid and serving people reparations for the harm that they have suffered. For instance, the VTF could combine service-oriented schemes with other forms of reparation, such as symbolic gestures. A commemorative hospital could publicly recognize victims, or give them a voice in its direction and management. Such an institution may thus provide a form of justice as well as give medical aid to victims.

Conclusion

Each of the possible complementary reparations systems discussed has flaws and weaknesses. However, this comment offers such schemes as examples, and not fine-tuned solutions for any given situation. Each reparations program must be adapted to the situation to which it seeks to provide remedy. These examples give an idea of how the VTF may create reparations schemes in conjunction with domestic actors. The VTF is well positioned provide such collective awards to victims with the aim of rehabilitation. A complementarity-type system, in which it works with existing domestic agencies, NGOs or IGOs, or newly created domestic organizations, has many benefits. By working with domestic systems to devise a context-specific regime, the VTF can thus successfully help to achieve rehabilitative justice.

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

1. 1.

   Rome Statute of the International Criminal Court, art. 75(1), 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]. ↩

2. 2.

   See Rome Statute, supra note 1, Preamble, which asserts the determination “to put an end to impunity for the perpetrators of these [most serious] crimes and thus to contribute to the prevention of such crimes”. ↩

3. 3.

   For example, genocide is defined in the Rome Statute as certain actions which are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” See Rome Statute, supra note 1, at art. 5. ↩

4. 4.

   For instance, it is estimated that the Lord’s Resistance Army has abducted at least 20,000 children. See Adrian Di Giovanni, The Prospect of ICC Reparations in the Case Concerning Northern Uganda: On a Collision Course with Incoherence?, 2 J. Int’l L. & Int’l Rel. 25, 32 (2006). ↩

5. 5.

   Those convicted by the ICC may be required to make an order for reparations directly to victims, although the term “victim” is not defined. See Rome Statute, supra note 1, at art. 75(2); International Criminal Court, Rules of Procedure and Evidence, Rule 98, 9 September 2002, ICC-ASP/1/3. ; see also Thomas Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 330 (2011). ↩

6. 6.

   Adrian Di Giovanni phrases this danger well: “an overly narrow reparations program, such as a court assessing reparations on a case-by-case basis, risks disaggregating the harm suffered by victims and fragmenting various victims groups…‘what needs to be redressed in the aftermath of systematic crime is not only individual harm but human and social relations that have been violently destroyed.’” Di Giovanni, supra note 4, at 42. ↩

7. 7.

   For instance, in post-apartheid South Africa a Truth and Reconciliation Commission was created to acknowledge the many human rights violations that had occurred, when various parties did not share the same story. See, e.g., Charles Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet, 49 Emory L.J. 205, 218 (2000). ↩

8. 8.

   Rome Statute, supra note 1, at art. 79(1). ↩

9. 9.

   Rome Statute, supra note 1, at art. 79(3). ↩

10. 10.

    Rome Statute, supra note 1, at art. 75(2). ↩

11. 11.

    Rules of Procedure and Evidence, supra note 5. ↩

12. 12.

    Id. ↩

13. 13.

    See Rome Statute, supra note 1, Preamble. ↩

14. 14.

    The ICC is stated to be a court of “last resort.” See International Criminal Court, ICC at a Glance, available online. ↩

15. 15.

    See Rome Statute, supra note 1, at art. 17. ↩

16. 16.

    Even where perpetrators are extremely wealthy, obtaining such funds is often complicated and difficult. See Linda M. Keller, Seeking Justice at the International Criminal Court Victims’ Reparations, 29 T. Jefferson L. Rev. 189, 191 (2007). ↩

17. 17.

    Rules of Procedure and Evidence, supra note 11, at Rule 98(5). ↩

18. 18.

    See Keller, supra note 16, at 191. ↩

19. 19.

    In particular, some scholars have raised concerns of “blood money,” in which monetary reparations to victims may give the impression that they are being paid off without acknowledging their suffering. See Anita Bernstein, Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality, 31 U. Pa. J. Int’l L. 1, 10 (2009). ↩

20. 20.

    Mato oput is a traditional ceremony practiced by the Acholi in Uganda. See Linda M. Keller, Achieving Peace With Justice: the International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 230 (2008). ↩

21. 21.

    See generally Bernstein, supra note 19. ↩

22. 22.

    In some cases, monetary awards may dignify victims’ suffering by giving tangible rewards in recognition for their suffering. For some victims, money may be necessary to avoid trivializing suffering by only awarding symbolic reparations. See Bernstein, supra note 19, at 11. ↩

23. 23.

    See, e.g., Antkowiak, supra note 5; Di Giovanni, supra note 4; Frédéric Mégret, Of Shrines, Memorials, and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice, 16 Buff. Hum. Rts. L. Rev. 1 (2010). ↩

24. 24.

    See, e.g., Antkowiak, supra note 5; Mégret, supra note 23, at 47. ↩

II. Reparations Regimes Should Vary by Context

Every case the ICC adjudicates will be unique—even when some of the victims or culture involved are the same, the combination of factors in each situation ensures a distinctive context with each case before the Court. Additionally, no two perpetrators of atrocity crimes will have access to the same type and quantity of assets, which means the ICC’s reparations funds will inevitably vary with each case. Therefore, the ICC should look at several considerations when developing a reparations regime and tailor the regime to the individual circumstances of each society.

A. Individualist versus Collectivist Society

Most western societies typically focus on individual rights and place a higher value on individualism over the collective society as a whole. In these situations, there tends to be a preference for reparations to individuals before more collective measures are employed. Following World War II, the Allied Powers chose to prosecute Nazi leaders in an international tribunal.10 The reparations regime adopted called for individual compensation to the victims of the war and of the Holocaust.11 Given the emphasis on the individual in western culture, individualized reparations were a natural step to take upon prosecution of Nazi leaders. The context of the conflict and culture of the parties involved contributed to a preference for individualized compensation, which was supplemented in the future by commemorative and symbolic methods. This was an effective way of establishing a reparations regime in the west after World War II.

Not all societies, however, place a major emphasis on compensation for the individual victim. The importance of individualism in the west tends to color the lens with regard to what sort of justice or reparative approach should be used in situations where the society places more value to the community. In these situations, it is important to take culture into account when developing a reparations regime so that the usefulness of the regime is most valuable and meaningful to the society.12 In cases involving mass atrocities, a call has often been made by local community leaders to use traditional justice methods, which are inevitably connected to reparations as a whole.13 Although the potential for fabrication exists,14 these traditional justice methods could provide victims of collectivist societies with more substantive, fulfilling, and widely accepted reparations. These traditional methods, as opposed to foreign forms of reparations, might better reflect the population’s ideas of forgiveness and what is not only desirable, but also necessary to rebuild their society. It is important to note that a call for traditional justice methods does not in and of itself preclude other forms of reparative measures. Traditional justice methods can coexist with other restorative methods in a reparations regime. It is simply essential for the ICC to acknowledge, support, and supplement its reparations regime with traditional methods when appropriate.

In Uganda, the traditional Acholi15 leaders have advocated for and have begun implementing the use of traditional restorative justice methods.16 This has sometimes been seen as a critique of the ICC and as a way of responding to atrocities in a traditional way.17 In this context, the ICC could employ a reparations regime that aims at restoration of the community through traditional methods. The ICC could supplement these methods with other restorative community methods that aim for transitional justice and that are not necessarily individual-centric. An example would be to help provide some of the basic transitional needs of the society, such as food and medical services, which would be a benefit to the community, while also collaborating with local measures of justice. Providing these community essentials does not have to be mutually exclusive from considering traditional justice methods as part of reparations. In societies that value traditional methods that differ from western norms, this fusion can help meet the needs of the society and provide the victims with reparations, while also providing them with the satisfaction that traditional justice has been met. Additionally, this collaboration could legitimize the reparations regime adopted by the ICC as one that listens and supports the methods traditionally used by a society.

B. Timing of ICC Intervention and Enactment of Reparations

The ICC’s various methods of exercising jurisdiction18 and the distinctive nature of individual conflicts ensure that the point in time of involvement by the ICC will vary widely. Depending on what stage of the conflict the ICC becomes involved, there could be different priorities and expectations from the implemented reparations regime. The victims,19 the international community, and the ICC itself will all have a variety of views on the extent the ICC should enact one reparations regime over another, how robust the regime should be, and what most accurately reflects a society’s needs.

When considering the timing factor, it is important to evaluate how early in time the ICC becomes involved in the conflict situation.20 The earlier the ICC becomes involved and engages in some form of adjudication, the more appropriate that the primary focus of reparations should be on accomplishing peace and ending hostilities. The culmination of a case by the ICC does not necessarily coincide with the culmination of a conflict situation. Many conflicts are plagued by a long history of consistent or at times sporadic hostility.21 Although a successful prosecution by the ICC can be a positive step towards ending hostilities, there may be situations in which hostilities continue or where many of those responsible are still at large.22 These situations might call for a reparations regime that primarily aims at ending hostilities. ICC reparations in this context would partly aim at restoring stability and helping to repair the infrastructure and basic functioning of the society. This is partly because these would be the most immediate needs of a society and thus, the most important for the ICC to aid in enacting. National courts or other international organizations might most appropriately handle other reparative measures, such as commemorative or symbolic reparations, later in time.

If the ICC is involved at a later point in time of the conflict situation, however, the focus of the ICC’s reparations regime should be on symbolic measures and reconciliation.23 Helping a society to move on and psychologically recuperate is a more appropriate focus and arguably the “immediate” need of a society in a reparations regime enacted later in a conflict. An example of symbolic reparations includes the building of museums, memorials, and other structures aimed at commemorating the atrocities experienced. To promote reconciliation and community-wide healing, reparations can be intertwined with the enactment of an amnesty process or a truth-telling commission. Amnesty and truth-telling commissions have been employed in various parts of the world, including South Africa24 and Latin America.25 In the past, truth-telling commissions have been presented by the national governments, including some situations where non-state actors were responsible.26 The ICC can work with national governments to employ these methods in an effort to accomplish a “bloodless transition.”27 These symbolic measures are most useful later in time in a conflict situation when the aim of reparations should be to assist a society in moving forward.

C. Practicality of Reparations Due to Funding28

The lack of resources will be a limitation to whatever reparations regime the ICC adopts in any given situation. Funding for reparations will usually be limited to the financial assets of the convicted person and perhaps contributions made to the Victim’s Trust Fund.29 Both of these sources are indeterminate and will vary across prosecutions.

The ICC might have the most trouble fulfilling a fair and equitable distribution when considering individual awards in addition to some form of collective reparations. Given the nature of the crimes under the jurisdiction of the ICC, it is probable that most conflict situations will result in widespread violence and victimization. When there is greater and more extensive damage caused by the perpetrator of crimes, the effectiveness and practical ability of awarding individual awards in addition to collective reparations begins to diminish.30 Having a limited amount of resources available means that the ICC would have to decide whether expending them through individual monetary awards would truly be effective. There would be a tradeoff when deciding to issue monetary awards to victims, especially in the extreme situation of a large number of victims with only a minimal amount of funds collected from the aforementioned sources. This becomes a more difficult issue when dealing with an economically devastated society or an individualist society that would perhaps place greater value to monetary compensation over collective reparations, as discussed in Part IIA. Limited resources inevitably complicate the prospect of individualized reparations to victims especially in the context of widespread atrocities and the existence of a vast number of victims. Consequently, individual reparations might become the exception in comparison to collective awards.31

Another practical consideration when implementing a reparations regime that incorporates individual awards is the probability of disproportion awards. Any attempt to compensate victims will inevitably require an assessment to be made with regards to who is entitled to an award.32 This selection of victims entitled to compensation over other victims may lead to resentment and division, rather than reconciliation.33 More importantly, individual compensation when the infrastructure to satisfy basic needs is missing will split up a healing society even more.34

Although individual awards supplementing collective reparations can be beneficial, the ICC should carefully consider its funding and the ultimate effectiveness individual compensation can have when determining an appropriate regime. Funds tend to be limited in any reparative process, but even in situations when they are not, individual compensation can have a divisive nature when certain victims are preferred over others.35 This is the opposite result of the purpose behind any type of reparations regime

III. Conclusion

The ICC has the opportunity to take a significant step in ensuring justice for the victims of mass atrocities through its ability to adjudicate on reparations. It is vital that the ICC use this power in a way that significantly considers the context of each conflict. The ICC should consider the culture of the society involved and the extent to which the society values the collective over the individual. Where traditional forms of justice are available with regard to reparations, the ICC should consider the effectiveness of incorporating these instead or in addition to other forms of reparations. The ICC should also consider the point in time of its involvement in a particular conflict. Expectations of reparations will vary with the extent of ICC involvement and the needs of the society at the time of resolution. Finally, the ICC should take practical considerations such as resources into account when enacting a reparations regime. Although the ideal situation might include traditional, collective and individual awards, this might not be possible considering the limited sources available to fund the reparations regime of a given conflict situation.

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

1. 1.

   Eva Dwertmann, The Reparation System of the International Criminal Court (Martinus Nijhoff, 2010). Brill, Google Books. ↩

2. 2.

   Id. ↩

3. 3.

   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]. ↩

4. 4.

   Id. at art. 79 (describing the Fund, which can be established to benefit not only the victims of crimes within the jurisdiction of the ICC, but also the families of such victims). ↩

5. 5.

   Rules of Procedure and Evidence, International Criminal Court, Official Records, ICC-ASP/1/3 (Adopted by the Assembly of States Parties, First Session, 3-10 September 2002) [hereinafter cited as “Rules”]. ↩

6. 6.

   Id. at Rule 97. ↩

7. 7.

   Id. at Rule 98. ↩

8. 8.

   I use the term “collectivism” and its variations to refer to societies with cultures that tend to value a strong community over individual liberties. ↩

9. 9.

   I do not purport to list the only considerations the ICC should have when making a decision on a reparations regime. There may be other issues the ICC can or should look at when making this determination. This comment outlines some of the more salient issues the ICC should take into account when deciding on a reparations regime. ↩

10. 10.

    Yael Weitz, Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement, 15 Cardozo J.L. & Gender 357 (2009). Available online. Archived. ↩

11. 11.

    Id. ↩

12. 12.

    Thomas M. Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 283 (2011). Available online. Archived. ↩

13. 13.

    Id. ↩

14. 14.

    Lars Waldorf, Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice, 79 Temp. L. Rev. 1 (2006) (examining the potential that “local justice” can sometimes really be “invented traditions” designed to maintain control over societies and to preserve current political ideologies). ↩

15. 15.

    The Acholi regions of Uganda are some that have experienced many of the abductions by the Lord’s Resistance Army. ↩

16. 16.

    Adrian Di Giovanni, The Prospect of ICC Reparations in the Case Concerning Northern Uganda: On a Collision Course with Incoherence?, 2 J. Int’l L. & Int’l Rel. 25, 37-39 (2006) . HeinOnline paywall. ↩

17. 17.

    Id. ↩

18. 18.

    See Rome Statute art. 13 (the ICC can exercise jurisdiction through the referral by a state party, through the referral by the Security Council of the United Nations, or through the initiation of an investigation by the Prosecutor of the ICC). ↩

19. 19.

    Di Giovanni, supra note 16, at 39. Victims that are aware of the ICC have “exhibited strong expectations of what the Court could accomplish.” Thus, when the ICC has been involved early on and victims are aware of this, they may have high hopes of a comprehensive reparations regime. ↩

20. 20.

    To the extent that the victims’ expectations will have an effect on the ICC’s adopted regime, this assumes that the ICC becomes a more visible body to the population of the conflict zone the earlier it gets involved. ↩

21. 21.

    Id. at 30-35. An example of this is the situation in Uganda, where the conflict with the Lord’s Resistance Army has continued for over 20 years. The violence experienced in Uganda has waxed and waned throughout the years and there is no guarantee that the successful prosecution of Kony or other highly ranked individuals will end hostilities. ↩

22. 22.

    For example, in situations where the victims are also the perpetrators, or where the amount of perpetrators is so big that it is impossible to prosecute all domestically. Consequently, it becomes inevitable for the perpetrators to wind up living alongside many of the victims. ↩

23. 23.

    The later in time the ICC gets involved, the more likely that the national government or other international actors have begun acting to remedy the most immediate concerns of a society. It should be noted that this will not always be the case and there may be situations when the ICC should aid in more immediate concerns before pursuing symbolic reparations. It might also be difficult to accurately discern how close a conflict situation is to ending. ↩

24. 24.

    Richard Falk, Reparations, International Law, and Global Justice: A New Frontier, in The Handbook of Reparations 478, 492 (Pablo De Greiff ed., 2008). ↩

25. 25.

    Cecily Rose, An Emerging Norm: The Duty of States to Provide Reparations for Human Rights Violations by Non-State Actors, 33 Hastings Int’l & Comp. L. Rev. 307 (2010). Lexis/Nexis paywall. ↩

26. 26.

    Id. at 335-36. ↩

27. 27.

    Falk, supra note 24. ↩

28. 28.

    For this section, I assume that some form of collective reparations will be used, and the main issue refers to individual reparations in addition to collective reparations. ↩

29. 29.

    This comment assumes that the Victim’s Trust Fund is employed by the ICC in an effort to increase the resources available in any given situation. ↩

30. 30.

    Dwertmann, supra note 1, at 121. ↩

31. 31.

    Id. ↩

32. 32.

    Falk, supra note 24. ↩

33. 33.

    Dwertmann, supra note 1, at 127. ↩

34. 34.

    Id. ↩

35. 35.

    Id. ↩