II. Background and Goals

A. Background and Goals of the ICC

The ICC has jurisdiction over four primary crimes—genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC works to find a way to hold individual people responsible for the most heinous, systematic, and grave crimes, and therefore regularly sees before it perpetrators of the gravest acts of violence and depravity on earth. If this task sounds challenging, that is because it is. In its almost two decades of work, the ICC has heard thirty cases and issued ten convictions.1 These numbers are modest by the standards of most courts; however, they are indicative of the work the Court has put in, despite staggering obstacles, namely: lack of support from the most powerful states in the world, sovereignty claims, admissibility and practicality issues stemming from trying to hold powerful people accountable, and any number of internal struggles due to funding and resource availability. Despite these struggles, the ICC has done what it can to pursue its vision of justice.

If one looks at the ICC website, the world’s first permanent international criminal court puts itself out as “participating in a global fight to end impunity” by seeking individual criminal justice.2 The ICC seeks “justice” which it defines as a prerequisite to a “future free of violence” sought through “long-term peace, stability, and equitable development in post-conflict societies.”3 Accordingly, the ICC sees justice as one in the same as peace and stability. Basically, the ICC is seeking world peace. While a laudable tagline for a beauty pageant contestant, the ICC has the daunting task of actually trying to create a peaceful world. This task would stop, and does in fact stop, any number of people from accepting the task as a reasonable pursuit. This is however not the stance taken by the many international lawyers who have devoted their life to holding criminals of the worst kind accountable through various international tribunals, and ultimately the ICC.

As a criminal court, the ICC’s pursuit of justice is done through individual criminal accountability and punishment, as well deterrence mechanisms. The focus on this particular definition of justice, fixating on the responsibility of the perpetrators of crimes, makes sense. Individual criminal responsibility is the primary premise of most criminal courts, whether domestic, regional, or international in character. That does not mean it is the only viable avenue through which to pursue this goal of peace and stability.

B. Background and Goals of the Regional Human Rights Systems

The Regional Human Rights System is a term which I use to describe the three institutionalized embodiments of human rights on the regional level. There are three regions that have individually taken on this process of institutionalization—Europe, the Americas, and Africa. The European system is the oldest and has two institutions—the European Court of Human Rights and the Council of Europe—both of which work with and apply the European Convention on Human Rights.4 The Inter-American Regional Human Rights System (Inter-American System) also possess two linked institutions—the Inter-American Commission and the Inter-American Court which apply the American Convention on Human Rights (American Convention)5 as well as the Declaration on the Rights and Duties of Man.6 Finally, the African Regional Human Rights System (African System) is the newest of the three systems. It is composed of the African Commission on Human and People’s Rights (African Commission) and the African Court on Human and Peoples Rights (African Court),7 which apply the African Charter on Human and People’s Rights (African Charter).8

While each of these three regional systems vary and are complex in their own right, for the sake of this comment, I will not discuss much more on the European system as it comes out of largely the same history as the creation of the ICC—World War II and the Nuremberg Trials—and therefore the remedies available to the European Court of Human Rights, such as compensation and investigation, are fairly well reflected in the Rome Statute.9

At the broad level, the goals of the regional human rights systems, while each separate and very different, are collectively focused on the relationship between individuals and states. The overlap, I would point out, between this conception of rights and the pursuits of criminal systems, is that a state only exists as far as individuals create it and give it meaning. Although the human rights system is focused on reform and changes to state institutions to stop ongoing and future atrocities, in order to do this, the responsibility of the leadership of the country—whether entire organizations or individuals—is a key point of reference for this process. Thus, again, the ICC and the regional human rights systems are, ultimately, not so very different.

The regional human rights systems share a common history of having been implemented with the goal of promoting rights that are considered fundamental within the respective regions, not just what the U.N. and the world community as a whole could agree on as the fundamental rights of humanity. Thus, the regional systems allow for a more particularized, as well as a more culturally and historically relevant vision, of rights of individuals. The systems were established largely before the ICC came into existence, during the period during and directly following the Cold War, when, due to the politics of the East-West divide, the work to stop mass atrocities could not be localized into one body.10 Rather, each of these regional systems took on the responsibility to protect individuals in their regions from atrocities perpetrated by states and did so with their particular regional histories and legal and cultural norms in mind. Accordingly, the regional systems have created a wide variety of tools to establish and protect human rights, stop abuses, and successfully pressure and deter future abuses through accountability of violators.11

1. The Inter-American Regional Human Rights System

The Inter-American System was established by the Organization of American States (OAS)—a coalition of the nations of North, Central, and South America created to “strengthen the peace and security of the continent” and settle “disputes that may arise among the member states.”12 As of today, all thirty-five independent states of the America’s are members of the OAS,13 and twenty-four states are parties to the American Convention.14

Historically, every part of the America’s was, at one time, a colony of European nations and, while this common history has resulted in different outcomes amongst the states, this history of colonization and the subsequent de-colonization process during the second half of the twentieth century, is a defining feature of the Inter-American System as it exists today.15 During the 1960s through the 1990s, many of the most influential nations in South America—importantly Argentina, Chile, and Brazil—experienced significant periods of authoritarian military rule which committed gross violations of human rights such as summarily executing, forcibly disappearing, and torturing thousands of their citizens.16 This history has influenced the substantive rights that the American Convention and the Declaration on the Rights and Duties of Man codify.17 Both documents have a strong focus on the rights that were threatened by colonization, decolonization, and the military government regimes unique to many Inter-American states. Even more than the substantive rights though, the remedies and efforts of the system to rectify wrongs done reflect this history and thus creative solutions to uniquely Inter-American issues have been created, as will be discussed in Part III.

2. The African Regional Human Rights System

The African System was created, similar to the Inter-American system, by a coalition of African states. This coalition, originally called the Organization of African Unity (OAU), was created in 1963 as a body primarily dedicated to eradicating colonialism.18 In 2001, the OAU was replaced by the African Union (AU) which today includes all fifty-five African states as members.19 In 1981, the OAU adopted the African Charter which then entered into force in 1986.

The African system, as it looks today, is the newest of the three regional systems, with the court’s establishment in 2006 and the first issuance of a decision on the merits in 2013.20 This novelty is certainly one reason that the African System has seen relatively little action or substantive success, despite the fact that the continent as a whole has seen plenty of mass atrocities and human rights violations that could have resulted in more substantive decisions. It is beyond the scope of this comment to discuss the reasons for Africa’s status as one of the more impoverished and violence-ridden regions of the world. However, a cursory review of history brings most people to the conclusion that the results of mass colonization, complete resource decimation by those colonizers, and the resulting de-colonization process, contributed heavily to the problems much of Africa, as a continent, currently faces.21

Even more then in the Inter-American system, the African system places a substantial degree of importance on sovereignty. To the African system, sovereignty seems to mean not only individual state sovereignty, but also African sovereignty for the continent as a whole. Coming out of a common history of colonization, the African Charter places massive importance on states sovereignty, territorial integrity, and independence.22 While this focus on individual state sovereignty is central to much of the reason for the existence of first the OAU and now the AU, there is simultaneously an underlying refrain of unity and solidarity among African states and importance placed on the non-interference in the internal affairs of member states by non-member states.23 African sovereignty as a whole, and non-interference from other parts of the world, are key features in the system, as it focuses on promotion and education of individuals on their rights as a way to protect people from atrocities and deter future violence. However, this idea of Africa as a collective, leaves open the possibility unseen in other systems, for AU members to work together and interfere in other African states affairs in a manner that would not be considered viable in other regions.24

C. Comparing the ICC to the Regional Systems

The regional human rights systems and the ICC do have some fundamental differences that must be addressed. First, the regional human rights systems typically place more focus on justice for victims, and society as a whole, which is reflected in their remedies. These systems were created with a different pursuit in mind than the ICC. Their focus is on furthering human rights in their regions. By this, I mean promoting, educating, and protecting those rights that through generally accepted principals, norm creation, and international conventions and treaties, are universally 25 accepted as fundamental rights owed to each individual, simply for being human. This focus is inherently positive—assuring rights are received and protected. It therefore places the well-being of individuals and victims at the center of the analysis. Whereas the ICC, as a criminal court, has an inherently negative function—holding individuals liable for crimes, which could also be phrased as invading the human rights of others.

Second, the regional human rights systems are largely focused on the responsibility of states in adhering, or not adhering, to the human rights guaranteed to individuals within the state. The ICC, on the other hand, focuses on the liability of individual perpetrators. This is the primary distinction that protects the ICC from claims of sovereignty invasions. If the ICC were to try to hold an entire country or region responsible for crimes of mass atrocities done within their borders, it might be more reflective of the actual political structure and occurrences in that conflict. But it would also likely lead to the destruction of the ICC as a whole. No country would sign onto a system that could hold the state, as a whole, liable, especially not if there were repercussions for that liability.

Ultimately, the ICC is not trying to hold whole states responsible for the harms done to individuals, while regional human rights systems are doing exactly that, with the goal of protection and promotion, not just retribution. However, both systems work with states directly to repair damage done, compensate victims, implement broad peace and stability, and educate and inform people of their rights and protections. All of this is done with the goal of minimizing mass atrocities and invasions of individuals rights in the future. In this way, while the ICC and the regional systems go about affecting change differently, ultimately, they are not so different. The goal of peace, stability, and creating a better world for future generations with less risk of violence and pain, is shared across systems.

III. Available Remedies

A. International Criminal Court

The ICC is a rigid system with a fairly unimaginative take on remedies. The Rome Statute articulates the remedies recognized by the ICC in only a few articles, found in Parts Six and Seven of the Statute—Articles 75, 77, and 79.26 Article 75 allows for reparations to victims stating that:

The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.27

Further, Article 75 allows the ICC to, “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.”28 Article 77 lays out the applicable penalties for a guilty verdict. The Court may impose a penalty of imprisonment either:

[F]or a specified number of years, which may not exceed a maximum of thirty years; [or for] a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.29

The Court is, in addition to imprisonment, permitted to order a fine under certain circumstances, or “a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties”30 Finally, Article 79 allows for the creation of a trust to be established:

[B]y decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.31

The Court “may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.”32

Based on the Rome Statute, the ICC would seem to only allow for the least creative of remedies—punitive imprisonment and monetary compensation. The Rome Statute is an encompassing document that is the end all and be all of ICC control. Thus, in order for remedies to be implemented, they must somehow find a way to fit into either one of these provisions articulating available remedies, or somewhere else that there is room for the prosecutor to maneuver new methods into, as are discussed in Part IV.

B. Regional Human Rights Systems

The regional systems, partially by their nature focusing on human rights and partially due to their histories of development, are much more focused on holding states accountable, rather than individual liability. However, the remedies used by these systems are transferable in nature in that they could be implemented by a criminal court just as easily as in the regional human rights courts. This is demonstrated, in part, by the fact that movement in the opposite direction already occurs. The regional bodies implement remedies that are traditionally accepted within the realm of human rights mechanisms, but also implement remedial measures that are commonly associated with criminal justice systems. The ability of human rights systems to extend their purview blends the lines between the norms of human rights and criminal jurisprudence in a way that supports the assertion that they are not necessarily so very different or non-transferable.

The regional human rights systems utilize remedies that are indicative of several broad goals being pursued: compensation, deterrence, reconciliatory and restorative reparations, as well as condemnation and retribution.33 Some of the more specific and interesting remedial options that have been utilized and discussed in these systems include: monetary damages, reform or repeal of problematic laws, investigations, requirements for domestic enforcement, and promulgation of rulings to countries. This means that not only must the states where mass atrocities have taken place hold the individuals perpetrating those acts responsible, but they must also disseminate information on the rights that were violated, and the court decisions to the public.

Further, the Inter-American Court can require states to locate and return the bodies of disappeared persons; require medical treatment be provided to those who have been abused; and require states to take responsibility for violative actions in such ways as formally apologizing, claiming responsibility, admitting to violations, and constructing memorials in remembrance of victims and events.34 Meanwhile, the African Court places a special degree of importance on education and dissemination of information, including within the text of the African Charter Article 4535 that the commission is tasked not only with promoting human rights across the continent, but also with disseminating information to the people of the region in order to educate and inform.36

Based on a review of these remedial options, the regional systems focus much more on reparative justice and information spreading about court decisions and rights that people possess. The goal of this seems to be not only to make sure that individuals themselves know that they have rights, and which ones; but also, a form of internal compliance and enforcement—the more people know that they have rights, and the more often that they see those rights being protected by courts and institutions, the more likely they are to demand the upkeep of those rights by utilizing those courts and institutions. It is theoretically, a self-perpetuating cycle.

Monetary compensation, future deterrence, condemnation of conduct, and retribution for perpetrators are the primary processes and goals pursued by the ICC. In this way, the ICC remains conduct and perpetrator focused. Meanwhile, the other options—reconciliation and restorative justice—come in many different forms and provide the option for courts to ask what they can do for victims, not as victims. These options turn the table from the court acting as a conduit of the victim, as though it was itself harmed by the conduct being such a grave violation of global justice; but rather as a form of reconciliation, to facilitate societies moving on by asking victims what they need, what they want to say, and how they want to move forward. These steps are:

[C]losely related to the psychological and sociological impact of violations and are concerned not only with direct victims of human rights violations but also with the society which they form part of.37

Restorative and reconciliatory remedies are examples of courts attempting to help heal the relationships in societies that have been torn to pieces by the atrocious acts, often not just of one person, but of several or even many.38

Restorative justice and reconciliation also deals with the practical problem of what to do in situations of mass atrocities, when there is no one responsible individual (as there so often is not), but rather an institutionalized culture of violence and violations passed from one person down a chain, until it is no longer possible to decipher perpetrators from planners and vice versa. So commonly this is an issue that the ICC sees and is a critical failing of the system as it currently exists. The ICC focuses its attention completely on finding a few discreet individuals that played critical roles in the atrocities, to hold them and them alone accountable. Once it does, the Court tries (and often fails) to find ways to hold these individuals responsible for every harm done. Many of these people are criminally liable for their actions. However, the Court stretches and bends to make things fit actions of others to these people that simply do not fit, and in doing so, deadlocks itself into inaction as seen by the low number of cases heard, and even lower number of convictions.39

If the ICC broadened its views of justice and remedial measures to include some of the remedies that are culturally accepted in these regional systems, then remedies such as reconciliation, truth commissions, and restorative justice could, very viably, help fill some of these gaps and, while controversial, critically assist in reintegrating perpetrators into the harmed communities, especially when it is unrealistic or impossible to hold a large number of perpetrators accountable for every step of the planning and physical conduct of the violations. Thus, reintegration may be less of an option, and more of a distasteful requirement of moving forward. These perpetrators will continue to be there since the ICC cannot always hold all of them accountable. So, the societies that they remain in need a way to move forward, nonetheless. If the ICC focused less on the “blameworthiness of the conduct”40 and focused more on the consequences, it would allow the ICC to compensate victims more properly—meaning in a way that will allow healing and moving forward, according to the desires of those victims—and also more thoroughly pursue the goal of global peace and stability.

As some at the ICC would argue, the trial of a perpetrator itself is the key component of healing for victims who feel deeply the anger and outrage of the injustices done to them and their communities. This may certainly be true. However, just as the regional systems incorporate a degree of criminal conduct into their systems through compensatory monetary awards and, indirectly, in their judgements against states and those involved in the conduct, the ICC can and should incorporate remedial concepts beyond just imprisonment and monetary compensation to effectively pursue the goals it claims to be after.

The problem I see, however, is that the ICC seems to think it must pursue justice—world peace—all on its own. As a court of last resort, the ICC seems to have accepted the idea that it must do things one way, and only that way. It must treat every case the same, every criminal equally, and every victim as interchangeable with another. This is where I believe the ICC’s fault lies. Within the Rome Statute, as it exists right now with no amendment, there are places where the ICC could incorporate the legal mechanisms of other courts and systems. The ICC does not have to stand alone. It could incorporate other ideas, broaden its definition of justice, and support its goals with the ideas and creativity of other systems’ ideas that are already being experimented with and have been proven to work. The ICC would, I believe, be better for it.

IV. Integration

There is no reason that the remedies that are unique to the regional human rights systems must remain only within those regional systems. Any effect that they result in at the regional level, could be transferred to the international system. Further the success of these remedies in the regional systems stem from regional pressure, non-governmental organizations involvement, and both internal and external naming and shaming that could be just as effective on the world scale.41

The most important reforms that I think the ICC must make, are in incorporating systems of reconciliation and restoration. These are broad categories that encompass many possible outcomes but are completely unrepresented in the current ICC system. Examples of what I mean by reconciliatory and restorative remedies mentioned previously are: investigations, reform or repeal of problematic laws, requirements for domestic enforcement, and promulgation of rulings to countries; as well as: truth commissions, locating and returning the bodies of disappeared persons, requiring—and assisting in—providing medical treatment to those who have been abused, and requiring states to take responsibility for violative actions in such ways as constructing memorials, claiming responsibility, admitting to violations, and formally apologizing, whether on behalf of the state, or as individual perpetrators.

The ICC is a fairly rigid system with boxes to check and minimal wiggle room at every step of the process. It is also a system that is trying to work for the world as a whole.42 Because of this, amendment to the Rome Statute—while possible—is infinitely more cumbersome and prohibitive than working within the confines of the Statute’s current remedial options. That being said, there are places within the Rome Statute, as it exists today, where the ICC could feasibly integrate all or some of the remedies found in the regional human rights systems discussed in Part III.B., in order to create a system of justice that is more indicative of the reparations important to victims in various regions and cultures. The places within the Statute where I think integration of these tactics could be implemented are as follows.

A. Sentencing

The first part of the ICC where I see room to integrate these alternative remedial measures is during the sentencing procedures as described in Articles 76 and 78. Article 76 of the Rome Statute is the general permission to the Court to sentence those people it finds guilty and states:

1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence. […]

2. […] the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, […]

4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.43

The drafters seem to have left room for the Court, in sentencing a guilty party, to take into account both mitigating and exacerbating factors such as the degree of involvement and the role played. Article 76(4) also already resembles several of the remedial measures discussed above such as requiring promulgation of rulings and admitting to and claiming responsibility for violations. Bolstering this, Article 78(1), discusses the determination of sentences giving the Court some leeway to “take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.”44 While this Article does go on to discuss primarily the imposition of sentences of imprisonment and the calculations therein, Article 78(1) at no point specifies that imprisonment need be the sole outcome after balancing and weighing the gravity of the crime, and the context of the situation as a whole.

Not everyone who comes before the ICC is necessarily the “biggest fish.” The ICC would like them to be, but sometimes the people it can get—whether jurisdictionally or physically—within its custody are simply the ones that got thrown to the wolves, the ones that got scared or felt guilty and admitted what happened. Thus, the ability of the Court to mitigate not only the time in prison to which it will sentence these people, but also whether there are alternative forms of retribution that could justify the ICC’s going after these smaller players in the eyes of defendants and defense counselors who see the placement of blame for others’ actions on individuals, to be a grave misplacement of justice. This ties into the next place where different forms of justice could come into play through different remedies, punishments, and reparative measures.

B. Remedies and Penalties

The most obvious place for the Court to extend its definition of remedies from solely imprisonment and monetary compensation is in the remedies and penalties that are listed. Article 75 of the Statute handles reparations to victims. Article 75(1) states:

The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.45

Article 75(1) relates to reparations, or reparative damage. By its definition, reparative means repairing, fixing something broken, making something whole. The phrasing following that, of “relating to reparations […] including restitution” indicates that while restitution, compensation and rehabilitation are options which the Court can choose to implement in order to make the broken situation, person, or society whole again, they are not the only options. This “including” language is repeated again in Article 75(2), adding force to the argument that these are options that are not exhaustive.46

Article 75(3) states that:

Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 47

Here, the Court is already allowing those in harmed societies with information either as to the perpetrator or the victims to come forward and give their accounts. Some at the ICC may argue that this is, in and of itself, enough to allow victims the opportunity to tell their stories and for the Court to take that into account in prison sentencing or monetary compensation (as are the only remedies really utilized by the Court presently). However, there is room within this article to take these accounts and not just use them as mitigating or exacerbating factors to a prison sentence, but rather to ask those victims, members of society, and defense witnesses, not only what happened, but where they would like to go from here, and what they need or want to occur in order to become whole again.

I would argue that imprisonment of a single perpetrator, while possibly gratifying for those who have lost friends, family, and parts of themselves, will not alone lead to justice for the victims or help the harmed societies move forward with any positive change. Rather, listening to the needs of victims, not just lashing out against the accused, will allow for movement forward and for these people to feel heard on the international level. This will not only increase actual justice done for the individual—providing them with what they truly need and want—but will also decrease the occurrence of small players taking the entirety of blame not suitable for them. This will increase the protections of due process for defendants who do not deserve all of the blame, while still allowing these trials of smaller players to result in remedies for victims, even if the instigators and planners of the atrocities are not able to be brought to punitive justice. All of this will increase the legitimacy of the ICC in the eyes of victims, defendants, and the world at large.

Next, Article 75(4) states:

In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this Article, it is necessary to seek measures under Article 93, paragraph 1. 48

Article 93 lays out the ways that State Parties are required to cooperate with requests of the Court, such as decisions on remedies under Article 75. Some of these forms of cooperation and assistance are:

(a) The identification and whereabouts of persons or the location of items; and […] (g) The examination of places or sites, including the exhumation and examination of grave sites; [amongst other testimonial, evidentiary, and procedural assistance.]49

Through the combination of Articles 75 and 93, the ICC already allows for cooperation between states and the ICC in determining what has occurred, but also has created an opening in deciding how available remedies will be implemented on a practical level by the Court, and within the States Parties. The Court has thus already laid the groundwork for the work being done in the regional human rights systems to be pulled into the criminal system. The atrocities being looked at in both the human rights and the criminal systems often are, if not the same, at the very least overlapping. Accordingly, having cooperation between the systems, and being able to pull in not only evidentiary and procedural information in investigations and prosecutions, but also cooperation in deciding what victims and societies actually need from the various courts would be vastly beneficial in increasing the efficacy and relevancy of the ICC to local victims for whom a criminal prosecution at a far away court may otherwise mean essentially nothing.

A final place within the remedies and penalties, as they are currently written in the Rome Statute where the ICC could try to extend the remedies available to them and implement more relevant and helpful outcomes for victims, is in the existing penalty articles—Articles 77 and 79. These two articles have to be mentioned for the sake of completeness even though they do not appear to leave much of the wiggle room seen in other areas of the Statute. It is true that Article 77—Applicable Penalties—provides for imprisonment, fines, or forfeiture of property,50 and Article 79 provides for the creation of a trust fund to be established for the benefit of victims and their families.51 These two articles are fairly singularly minded and, I would argue, the epitome of the limitations of the ICC. Article 77 is pecuniary. Article 79 is compensatory. Perpetrators are punished, victims are paid. However, that being said, just because these are the processes most clearly laid out, I do not think they exclude the possibility of other articles providing non-punitive, reparative, and reconciliatory remedies. They are simply the only remedies that could be broadly agreed to by the entire community of the world states. This is where the impacts of the individualized systems and the remedies they offer becomes culturally and regionally relevant.

Yes, Articles 77 and 79 are the universally agreed to available and codified remedies. However, that does not mean that they are exhaustive of the remedies that different regions feel are appropriate. Indeed, that is the whole point of the comparison to the Regional Human Rights systems. These alternative systems demonstrate the mechanisms and efficacy of those mechanisms that are viewed as viable and critical to the communities in the various regions. They represent the cultural and legal norms of the region and pursue forms of justice that are more representative of the needs of the specific victims of that locality. Accordingly, just because the ICC narrowly codifies only a very few remedial options, the ability to bring other remedies into the language of the Statute, can and should be done when the ICC handles cases that fall into one of these regional systems—as that will allow it to reflect the needs, desires, and norms of the various cultures.

C. Plea Bargaining

A final part of the Statute where remedial measures of the regional systems that are otherwise unseen in the ICC system, could be brought in is under Article 64(8)(a) and Article 65, which lay out what, in the United States, we might call a plea-bargaining process. Article 64(8)(a) states:

At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with Article 65 or to plead not guilty.52

Article 65 then specifies that upon an admission of guilt, the Trial chamber will determine whether:

1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8(a), the Trial Chamber shall determine whether:

   1. The accused understands the nature and consequences of the admission of guilt;

   2. The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and

   3. The admission of guilt is supported by the facts of the case that are contained in:

      1. The charges brought by the Prosecutor and admitted by the accused;

      2. Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and

      3. Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused.

2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. […]

5. Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.53

Although maybe not the most obvious place to think about implementing these alternative mechanisms, I think that it may be one of the most promising. This is a special procedure laid out for those circumstances when an accused makes an admission guilt. Article 65(5) expressly stipulates that this admission of guilt might come after discussions between the prosecutor and the defense. Thus, in this way, this article seems to have in mind a procedural process similar to a plea bargain. In this case, a guilty or allegedly guilty party discusses their options with the opposing counsel and comes to a solution that is marginally better for everyone involved—the victims get an admission of guilt, and the accused hopefully avoids the worst of the sentencing options. To me, this sounds (and always has sounded) a bit coercive and unsatisfying for absolutely everybody involved.

However, here, the article gives the Court at this point the power to convict, though not the requirement —the Court “may” convict.54 This is the case even if the Trial Chamber is satisfied that the accused made their admission voluntarily, in accordance with the facts and evidence as known, and with an understanding of their actions and the consequences (a likely guilty verdict). The Court is left with a great deal of leeway in deciding what to do with that guilty admission as nothing beyond the ability to convict is listed. Further Article 65(5) expressly states that these discussion between the prosecutor and the defense counsel—the outcome of the bargaining—will not be binding on the Court itself.

All of this put together, I believe, allows the Court to use their power in a plea-bargaining situation, to implement remedies that have the potential to create a much more satisfying outcome for everyone involved. At this point, the Court has an individual who has stood up and proclaimed their guilt. This proclamation could be the start, or the entirety, of an admission of responsibility, a formal apology, the start of reform in a country, or the beginning of a process of winding back ongoing institutional mechanisms of harm. The admission of guilt could start, essentially, a truth commission process for finding not only what happened with this individual, but more broadly what occurred. And all of this could be done with less punitive measures and more interest in keeping an eye on the needs, desires, and customs of the victims to find a more satisfying remedy to the atrocities they faced.

V. Conclusion

Ultimately, there are certainly other locations within the Statute in which bringing in additional remedies and more effective reparative measures could be implemented. But I believe that the articles brought up and discussed here are the most indicative of changes that could be implemented without really having to change the Statute at all.

The success of the Regional Human Rights systems to protect individuals, create change, and hold accountable individuals and entire state parties, stems largely from state-to-state social pressures, non-governmental organization influences, and material incentives and repercussions between states to hold each other accountable regionally.55 These are, in large part, the cause of the success of the regional system and are reflected in the remedies available and the implementation of those remedies within the systems. Although the regional human rights system and the ICC come about their goals in different ways—one from positive implementation of rights and the other from negative pursuit of punishment—I believe that the ICC could implement many of the remedies and pressure-processes available in these other systems and see an increase in the effectiveness of the system.

The notable problem with the definition of justice pursued by the ICC, as I see it, is the complete lack of attention given to victims of those “gravest crimes of concern to the international community.”56 The Court’s definition of justice is narrowly construed to a particular view of justice focused on punishment of criminals and individual accountability as a means of achieving its goal of peace and stability. However, there are other possible justice mechanisms that are not dictated solely by the ideas of punishment and peace but are rather focused on the definition of justice as defined by the needs, desires, culture, and legal norms of the individual victims and harmed societies. This multi-faceted definition of justice as simultaneously perpetrator, victim, and societally focused, is being employed and explored effectively in the Regional Human Rights systems and could extend to the ICC’s system of individual liability as it currently exists. Societal and victim-based justice, such as the systems of reparations, reconciliation, and reform, seen in the Regional Human Rights Systems could be used in conjunction with the existing perpetrator-based punishment and deterrence systems of justice pursued by the ICC. This would, I believe, enhance the ICC’s effectiveness in both reaching and adhering to its goals of justice, peace, and stability for the world.

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

1. 1.

   About the Court, ICC, available online (last visited Feb. 26, 2022). ↩

2. 2.

   Id. ↩

3. 3.

   Id. ↩

4. 4.

   Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950, entered into force Sep. 3, 1953, as amended), available online. ↩

5. 5.

   Organization of American States, American Convention on Human Rights (Nov. 22, 1969, entered into force Jul. 18, 1978) [hereinafter American Convention], available online. ↩

6. 6.

   Organization of American States, American Declaration of the Rights and Duties of Man (May 2, 1948), available online. ↩

7. 7.

   Organization of African Unity, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Jun. 10, 1998, entered into force Jan. 25, 2004), available online

   (establishing the African Court on Human and Peoples’ Rights). ↩

8. 8.

   Organization of African Unity, African (Banjul) Charter on Human and People’s Rights, 21 Int’l L. Materials 58 (Jun. 27, 1981, entered into force Oct. 21, 1986) [hereinafter Banjul Charter], available online. ↩

9. 9.

   European Court of Human Rights, Guide on Article 13 of the European Convention on Human Rights: Right to an Effective Remedy ¶ 34 (Aug. 31, 2021), available online. ↩

10. 10.

    James L. Cavallaro & Jamie O’Connell, When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1 (2020), available online, archived. ↩

11. 11.

    Id. ↩

12. 12.

    Philip Alston & Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context: Law, Politics, Morals 979 (Sep. 20, 2012), paywall. ↩

13. 13.

    Member States, OAS, available online (last visited Feb. 26, 2022). ↩

14. 14.

    Inter-American Human Rights System, IJRC, available online (last visited Feb. 26, 2022). ↩

15. 15.

    (Although the United States and Canada are members of OAS, it must be said that their activity within the Inter-American commission and court have been minimal). ↩

16. 16.

    Cavallaro & O’Connell, supra note 10, at 57. ↩

17. 17.

    American Convention, supra note 5; Declaration on Rights & Duties of Man, supra note 6. ↩

18. 18.

    Alston & Goodman, supra note 12, at 1025. ↩

19. 19.

    Member States, AU, available online (last visited Feb. 26, 2022). ↩

20. 20.

    Cavallaro & O’Connell, supra note 10, at 55. ↩

21. 21.

    (This is a massive generalization and simplification of the situation in Africa. However as whole papers could be, and have been, written about this topic, I am making the academic decision to leave this assertion at its most simplified form). ↩

22. 22.

    Alston & Goodman, supra note 12, at 1026. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    (The question of the universality of the rights that are accepted as human rights by the international community of states is a massive one that parallels the question on the universality of the ICC principals that we at the forum have been tasked with responding to. Both human rights and the ICC crimes and procedures, on their face, reflect somewhat western and global north centric visions. This can obviously be debated, and the influence of the global south and transitional states should not be understated in the influence they have had on norm evolution, treaty drafting, and the creation of these international systems as wholes. However, the purpose of this comment deals with remedies as a way to broaden the cultural and legal representation seen in this “universal” system. This is a question that arises only after decisions have been decided on the guilt of a criminal at the ICC and as a parallel, the guilt or liability of a human rights’ abuser in the regional human rights courts. As such, I will leave the question of the universality of the rights embodied in the realm of international human rights, and the crimes and procedures pursued under the Rome Statute, untouched. For the sake of this comment, I will assume that those rights, crimes, and procedures pursued are, at the very least, universally accepted if not universally reflective). ↩

26. 26.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Arts. 75, 77, 79, available online. ↩

27. 27.

    Id. at Art. 75. ↩

28. 28.

    Id. ↩

29. 29.

    Id. at Art. 77. ↩

30. 30.

    Id. ↩

31. 31.

    Id. at Art. 79. ↩

32. 32.

    Id. ↩

33. 33.

    Leiry Cornejo Chavez, New Remedial Responses in the Practice of Regional Human Rights Courts: Purposes Beyond Compensation, 15 ICON 372, 373–78 (Apr. 2017), available online, doi. ↩

34. 34.

    Alston & Goodman, supra note 12, ↩

35. 35.

    Banjul Charter, supra note 8, at Art. 45. ↩

36. 36.

    Alston & Goodman, supra note 12, at 1027. ↩

37. 37.

    Chavez, supra note 33, at 375. ↩

38. 38.

    Id. ↩

39. 39.

    About the Court, supra note 3. ↩

40. 40.

    Chavez, supra note 33, at 376. ↩

41. 41.

    Alston & Goodman, supra note 12, at 979–1044. ↩

42. 42.

    (To whatever degree that might be effectively occurring, this is the goal). ↩

43. 43.

    Rome Statute, supra note 26, at Art. 76. ↩

44. 44.

    Id. at Art. 78. ↩

45. 45.

    Id. at Art. 75 (emphasis added). ↩

46. 46.

    Id. (emphasis added). ↩

47. 47.

    Id. (emphasis added). ↩

48. 48.

    Id. (emphasis added). ↩

49. 49.

    Id. ↩

50. 50.

    Id. at Art. 77. ↩

51. 51.

    Id. at Art. 79. ↩

52. 52.

    Id. at Art. 64(8)(a) (emphasis added). ↩

53. 53.

    Id. at Art. 65 (emphasis added). ↩

54. 54.

    Id. at Art. 65(2) (emphasis added). ↩

55. 55.

    Alston & Goodman, supra note 12. ↩

56. 56.

    About the Court, supra note 1. ↩