Among such internationally recognized norms is the importance of allowing victims to participate in and receive reparations from criminal proceedings. The Rome Statute recognizes the right of victims to participate in proceedings not only as witnesses, but as individuals with a valid interest in the outcome.5 The Statute also explicitly recognizes a victim’s right to receive reparations.6 Indeed, the number of victim-centric provisions within the Rome Statute and ICC Rules of Procedure and Evidence clearly suggests that the ICC considers victims’ rights to be an integral component of justice.7 As such, as nation states endeavor to implement the principle of complementarity, they must also endeavor to properly address victims’ rights and reparations within their justice systems.

Unfortunately, under the current state of international criminal law, national jurisdictions tend to narrowly focus on criminal prosecutions while the acknowledgment of victims has taken a backseat.8 Some jurisdictions perceive the recognition of victims as a distraction, while reparations plod forward at a snail’s pace.9 Giving a voice to victims who have “enormous needs and who have suffered unimaginable harms” has been an overwhelming challenge that no state has yet been able to fully redress.10 The lack of organization and resources to properly address and satisfy victims has made it clear that there is a strong need for an institution that will advocate for victims’ rights and reparations as nation states focus on prosecuting crimes.

III. Non-governmental Organizations

NGOs can help alleviate the burden of nation states seeking to implement complementarity by focusing on victims’ rights. NGO is a broad term used to describe a “non-profit, goal-oriented group not founded or controlled by a government.”11 NGOs can focus their efforts on victims’ rights to help nation states implement complementarity by seeking to improve reparations and promoting victim participation.

IV. Focus Efforts on Reparations

Firstly, NGOs can focus their efforts on reparations. Although the right to reparations for victims of international crimes is a well-established principle, it often goes unimplemented and its practical application is fraught with uncertainties.12 Such issues include determining the nature and amount of reparations and scaling reparations to mass amounts of victims.13 Courts have expressed that given the difficulty of implementing reparations, such an endeavor can run “counter to [their] principal objective of prosecuting those responsible for the crimes.”14 Even when reparations are ordered, they have been guided primarily by expediency and victims have felt unsatisfied by the way they are distributed.15 All in all, victims have expressed disappointment by their lack of tangible benefits from criminal tribunals.16

Still, reparations are essential in that they provide tangible measures to survivors that can improve their quality of life.17 They are also symbolic in that they are “as much about the restoration of dignity and the acknowledgement of the harm suffered, as it is about monetary compensation or restitution.”18 Evidently, the delivery of reparations is crucial. This is captured by the idea of reparative complementarity, which mandates that domestic systems create an effective remedy for victims seeking reparations.19 In lieu of the national courts, NGOs can focus their efforts on improving and delivering reparations to victims. This can be done by collecting victim input, consulting with victims throughout all stages of the reparations process and advocating for broader and more inclusive reparations.

A. Incorporating Initial Victim Input into Reparations Planning

Firstly, NGOs can collect and consider victim input at the initial stage of reparations planning to ensure that reparations are designed with a mindfulness of victims’ needs. Consulting with victims during the initial stage serves as an important source of information that is crucial to design an effective reparations program that responds to the kinds of violations suffered, their consequences, and the victims’ current needs and conditions.20 Initial victim consultation can help planners identify a need for more than just monetary reparations during the early stages of planning, such as psychological help for rape victims or memorials commemorating lives lost.21

Engaging in preliminary, victim-centric dialogue with survivors is also a way to honor the real and ongoing impacts to their lives. Victims who have just emerged from conflict may be too fixated on simply returning to their homes and accessing safety to think about reparations, let alone engage in complex discussions of reparations.22 In such situations, it would serve NGOs well to emphasize the victims’ current situations and showing empathy rather than ignorantly forging ahead. This type of victim-centric approach can encourage the later cooperation of these victims who can now trust that NGOs have their best interests in mind.

Ultimately, reparations are most effective when they:

[M]ake sense to victims and if the priorities respond to the real impacts in the lives of victims… To the extent that reparations are not perceived as such by the victims, they fail in their purpose.23

B. Consulting with Victims Throughout All Stages of the Process

Secondly, NGOs can continue to consult with victims and involve them throughout all stages of the reparations process, including in the development and implementation of reparations awards.24 Involving victims with the reparations planning process involves not only the incorporation of victims’ initial input, but also demands continuous consultation to ensure that victims are satisfied with developing changes in the design of the reparations program. Victims deserve transparency throughout the whole reparations process so that their feedback can be incorporated into the ongoing development of reparations. Ultimately, the goal is to ensure that the final reparations program correctly addresses the victims’ initial concerns.25

Once victims approve, continuous consultation of victims can help provide valuable information for the successful implementation of reparations.26 Victims can provide important feedback about the “effectiveness of distribution and the quality of service provided by the agents in charge of reparations.”27 Additionally, involving victims with implementation provides them with information that they can then disseminate among their community to reach victims in more isolated areas.28

Ultimately, encouraging participation of victims through every stage of the reparation process recognizes victim agency and ensures that the priority is victims’ needs.29 There is also a mutually beneficial aspect where victim participation can:

[C]ontribute to strengthening victim organizations, promoting their active presence in the country’s political life, and provid[ing] new foundations for generating public trust.30

C. Advocating for Broader and More Inclusive Reparations

Lastly, NGOs can improve reparations by seeking to increase the number of eligible victims by influencing the government in determining victim eligibility and by assisting claimants with the application process.

First, specialized NGOs can lobby to ensure that certain groups of victims are considered eligible and are not neglected in the administration of reparations. For example, a feminist NGO that specializes in the rights of women victims can pressure a national jurisdiction to ensure that its reparations are also addressing victimization suffered particularly by women.31 Even in the absence of specialized NGOs, general victims’ rights NGOs directly consult with victims and thus are well-situated to identify subgroups of victims who have experienced special forms of victimization, such as women or other minority groups.32 NGOs can bring these groups of victims to the attention of the government.

NGOs can also lobby to broaden reparations by advocating for the recognition of a wider constellation of eligible victims who are connected to crimes rather than just victims who have sought to interact with the court.33 For example, a court may determine that only victims who submit applications will be eligible for reparations rather than attempting to open the process to unidentified victims.34 In such cases, NGOs are better connected within victim communities and have a better chance of identifying such unidentified victims, who they can bring to the attention of the court.35 NGOs can advocate for a more collective entitlement to reparations that benefits a wider range of victims impacted by atrocities.

Secondly, NGOs can assist claimants in satisfying the often-difficult bureaucratic steps required to receive reparations.36 Victims are especially discouraged when they are illiterate or located in physically remote areas.37 NGOs can help these victims by spreading information among victims, providing advice to claimants, assisting them in filling out forms, and helping them gather and present documents.38

V. Promoting Victim Participation

Next, NGOs can advocate for victims’ rights by promoting victim participation in court proceedings. NGOs have historically advocated for the rights of victims to participate in legal proceedings.39 Since its establishment in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) has transformed the ways in which victims participate in proceedings, voice their personal experiences, and obtain relief.40 Feminists have worked to advocate and support policy changes when crimes of sexual violence predominantly impacting women went uncharged.41 Several commissions have been established in Côte d’Ivoire with the purpose of incorporating victim participation and reparations.42 Still, there is potential for greater involvement of NGOs in supporting victims to participate in legal proceedings.43 As Ferstman claims, “greater involvement of NGOs to support victims to participate in the proceedings would be useful.”44 Participation that is respectful, knowledgeable, transparent, and achieved through effective forms of representation is crucial in allowing “victims to feel that they are valued and recognised as rights-holders under the law.”45 NGOs can promote victim participation in legal proceedings by encouraging victim witnesses, advocating for victims who wish to share statements with the court, and serving as direct legal representation.

A. Finding and Encouraging Witnesses

Firstly, NGOs can increase the number of victims who serve as witnesses by helping find hard-to-reach victims and promoting a safe environment for witnesses.

One of the biggest challenges to victim participation is in enabling victims to effectively participate in proceedings.46 Many victims are in inaccessible or insecure locations, cannot access regular media channels, have high levels of illiteracy, and have little to no experience with criminal justice systems.47 When it came to ICC proceedings, victims felt discouraged by the lengthy application forms, poor access to information, and physical and conceptual distance between themselves and the Court.48 To avoid repeating these issues, national courts must not only reach victims, but also find a way to assist and support them throughout the application procedure to participate in proceedings.49

NGOs can serve as an important channel for approaching victims and creating such avenues of participation.50 NGOs are often better positioned within victim communities and can find hard-to-reach victims to connect to the court.51 Historically, NGOs have played an important role as intermediaries between victim communities and the ICC.52 They can use this experience to facilitate the work of national courts seeking witnesses.53

It is also important to note that victims often appear as witnesses at great personal risk.54 Thus, it is important for courts to fully appreciate and respond to these risks by establishing witness protection programs and procedures. NGOs can develop safety proposals for such procedures and provide policymakers with their suggestions for a victim-centric approach that would allow victims to feel safe serving as witnesses. NGOs can strengthen their safety proposals by conducting research that emphasizes the importance of witness protection.55 Through such efforts, NGOs can ultimately improve the relationship between courts and the “local communities [to] encourage greater victim participation in international justice and make criminal accountability more meaningful to the lives of survivors.”56

B. Advocating for Active Participation Greater than Serving as Witnesses

Secondly, NGOs can advocate for victims who wish to participate in proceedings in more than a witness capacity. Prosecutors often depend on witness testimony from victims, who are vital sources of information.57 However, the interests of these victims are often sidelined during criminal proceedings.58 When victims only have roles as witnesses, they are judicially relevant to the extent that they provide legally relevant information, but they do not have a participatory role in their own right.59 For example, a witness may be asked about facts relevant to specific elements of a charge, but she will not be given the opportunity to describe her true feelings about these crimes or their impact on her community.60 On the other hand, active participation would consist of victims pursuing their own interests independent from the parties rather than it being assumed that they are an ally of the Prosecutor.61

NGOs can promote greater victim participation by advocating for victims who wish to share statements of suffering with the court. Victims are usually given few opportunities to present their suffering during trials.62 When survivors do participate in judicial proceedings, prosecutors will often present legal narratives that present a narrow conception of victims’ actual experiences.63 As such, victims have felt that their interests were not given sufficient weight in determinations of substantive justice.64 This grossly undermines the impact to victims and their experiences. Allowing victims to share their personal statements with the court would empower victims to “affirm their suffering with a public historical account of the past.”65 Victim participation ensures that the stories of victims remain central during legal proceedings, minimizing detachment from where mass violence occurred.66

NGOs could advocate for this type of victim participation through quiet diplomacy or loud advocacy.67 Quiet diplomacy would involve direct engagement with the courts where NGOs would negotiate with the court on behalf of victims to allow victims to share their statements in court. If this does not work, NGOs can turn to loud advocacy. Through this method, NGOs would vocally draw public attention to the stifling of victims’ voices. If quiet diplomacy does not work, this type of public pressure could convince courts to allow victims to share their sufferings in the courtroom. Indeed, bringing about such change is not beyond the capacity of NGOs. NGOs have assisted with the first token participation of victims and have historically been extremely effective at lobbying to get such systems into place.68

C. Acting as Direct Legal Representation

Lastly, NGOs can increase victim participation by serving as direct legal representation.69 NGOs can appoint themselves as legal counsel for victims who join as civil parties or as members of a victim group.70 Cases that involve overwhelming numbers of eligible victims, many with contradictory views, can be a logistical nightmare for the ICC who lacks the capacity to provide quality victim representation to thousands of victims.71 On the other hand, an NGO has the flexibility to choose to focus its efforts on victims of certain crimes. By focusing efforts on victims of certain crimes, NGOs have more capacity to provide dedicated and specialized legal representation to qualifying victims. For example, REDRESS helps survivors of torture and other similar crimes to obtain justice.72

Providing direct legal representation to victims gives them the opportunity to present their interests in the justice process and redress their suffering.73 Victim participation can help ensure victims’ rights to “due process and transparency of proceedings, as they are independently motivated to see those responsible brought to justice.”74

Opponents may say that the mass participation of victims is too labor intensive or difficult to manage administratively and procedurally.75 However, NGOs have extensive experience in the mass involvement of victims, whether through truth commissions or a variety of other tried and tested methods. As such, NGOs have already shown that it is possible to accommodate large numbers of victims effectively without causing undue burden to the system.76

VI. Considerations

There are several important considerations as NGOs undertake efforts to improve victims’ rights.

Firstly, NGOs must manage victims’ expectations.77 Victims can have high expectations for reparations that are beyond even the mandate of the ICC.78 Given the capacity and finite resources of NGOs, it is important to acknowledge that they cannot realistically deliver justice to all victims of international crimes.79 As such, it is important for NGOs to be as transparent and realistic as possible when conveying to victims what they can and cannot do. NGOs must also be strategic about their own expectations and take on reparations issues while being mindful of how reparations may fit into a larger picture of victims’ needs and priorities.80

Secondly, there is a concern that victim participation can be manipulated for political ends.81 NGOs face frequent temptation to create links primarily with the groups that are politically closest to them, giving their efforts the appearance of participation and legitimacy without being adequately inclusive.82 NGOs may also feel pressured to help victims with greater presence in the media in order to protect themselves from public criticism.83 However, political manipulation is a vast issue that is certainly not unique to victims’ rights NGOs. Such a concern is far from being a fatal flaw. It is possible to be mindful of such constraints without letting them deter us from actively striving to improve rights for all victims.

VII. Conclusion

In conclusion, NGOs can focus their efforts on victims’ rights to aid the implementation of the principle of complementarity. Specifically, NGOs can improve reparations and promote victim participation in court proceedings. Of course, there are important considerations to bear in mind as NGOs endeavor to improve victims’ rights. Still, we should not let the constraints of reality hinder us from working towards our vision of the ideal.

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

1. 1.

   Christopher D. Totten & Nicholas Tyler, Arguing for an Integrated Approach to Resolving the Crisis in Darfur: The Challenges of Complementarity, Enforcement, and Related Issues in the International Criminal Court, 98 J. Crim. L. & Criminology 1069, 1080–81 (2008), available online. ↩

2. 2.

   Id. at 1081. ↩

3. 3.

   Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 Mil. L. Rev. 20, 62–63 (Mar. 2001), paywall

   (discussing how the ICC can override state jurisdiction). ↩

4. 4.

   Id. ↩

5. 5.

   Carla Ferstman, The Reparation Regime of the International Criminal Court: Practical Considerations, 15 Leiden J. Int’l L. 667, 668 (Sep. 2002), paywall, doi. ↩

6. 6.

   Id. at 668

   (explaining how the ICC can order reparations to or in respect of victims, including restitution, compensation, and rehabilitation).

   See also Stephen Cody, Victims and Prosecutors: Clientelism, Legalism, and Culture at the International Criminal Court, 53 Cornell Int’l L.J. 339, 345 (2020), available online. ↩

7. 7.

   Luke Moffett, Elaborating Justice for Victims at the International Criminal Court: Beyond Rhetoric and the Hague, J. Int’l Crim. Just. 1, 8 (2015), available online, doi. ↩

8. 8.

   See Carla Ferstman, Reparations at the ICC: The Need for a Human Rights Based Approach to Effectiveness, in Reparations for Victims of Genocide, War Crimes, and Crimes Against Humanity 448 (Carla Ferstman & Mariana Goetz eds., 2d ed. Feb. 7, 2020), paywall, doi. ↩

9. 9.

   Id. at 448–49. ↩

10. 10.

    Cristián Correa, Julie Guillerot & Lisa Magarrell, Reparations and Victim Participation: A Look at the Truth Commission Experience, in Reparations for Victims of Genocide, War Crimes, and Crimes Against Humanity 244 (Carla Ferstman & Mariana Goetz eds., 2d ed. Feb. 7, 2020), paywall, doi. ↩

11. 11.

    George E. Edwards, Assessing the Effectiveness of Human Rights Non-Governmental Organizations (NGOs) from the Birth of the United Nations to the 21st Century: Ten Attributes of Highly Successful Human Rights NGOs, 18 Mich. St. J. Int’l L. 165, 170 (2009), available online, archived. ↩

12. 12.

    Ferstman, supra note 5, at 668. ↩

13. 13.

    Id. at 668–69. ↩

14. 14.

    Moffett, supra note 7, at 3. ↩

15. 15.

    Ferstman, supra note 8, at 470; see also Moffett, supra note 7, at 14

    (discussing how in the illustrative Lubanga case, the Court found that reparations should be ordered collectively to the community which dismissed the participating victims’ representations, who wanted individual and collective reparations to alleviate their suffering rather than community awards due to the community supporting and facilitating such crimes). ↩

16. 16.

    Moffett, supra note 7, at 2

    (noting that victims were disappointed by the ICTY and the ICTR). ↩

17. 17.

    Id. at 8. ↩

18. 18.

    Ferstman, supra note 5, at 668. ↩

19. 19.

    Luke Moffett & Clara Sandoval, Tilting at Windmills: Reparations and the International Criminal Court, 34 Leiden J. Int’l L. 749, 766 (2021), available online, doi. ↩

20. 20.

    Correa et al., supra note 10, at 243. ↩

21. 21.

    Id. at 6. ↩

22. 22.

    Id.

    (“A lack of adequate information and grounding on the subject, or an undue emphasis on victims’ situation in the current moment, can also unnecessarily limit expectations and consequently limit reparations […] In one context in Colombia, despite explanations about what reparations might include, people at a meeting insisted that the only reparation needed was simply a cessation of the killings.”). ↩

23. 23.

    Id. at 5. ↩

24. 24.

    Ferstman, supra note 8, at 478. ↩

25. 25.

    Correa et al., supra note 10, at 256

    (noting the cruciality of continuous victim consultation and participation. The situation in Ghana serves as an example of what not to do, where the recommendations on reparations made by the Ghanaian National Reconciliation Commission coincided with the violations raised by victims in their statements). ↩

26. 26.

    Id. at 20. ↩

27. 27.

    Id. ↩

28. 28.

    Id. at 19. ↩

29. 29.

    See Ferstman, supra note 8, at 476. ↩

30. 30.

    Correa et al., supra note 10, at 243. ↩

31. 31.

    Id. at 12. ↩

32. 32.

    Id. at 20. ↩

33. 33.

    Ferstman, supra note 8, at 471. ↩

34. 34.

    Id. at 470. ↩

35. 35.

    See Cody, supra note 6, at 372

    (noting that partner organizations are better-positioned to navigate the community belief systems of victim communities and have extensive networks to introduce victim-representations to regional operators). ↩

36. 36.

    Correa et al., supra note 10, at 265. ↩

37. 37.

    Id. ↩

38. 38.

    See id.

    (discussing the types of bureaucratic steps required in order to receive reparations and how victims’ organizations can help them). ↩

39. 39.

    Charles Chernor Jalloh, The Role of Non-Governmental Organizations in Advancing International Criminal Justice, 1 AJICJ 47, 69 (2015), available online; see also Sara Kendall & Sarah Nouwen, Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood, 76 Law & Contemp. Probs. 235 (2013), available paywall,

    (“International NGOs have also attempted to orient the project of the [ICC] around the interest of victims.”). ↩

40. 40.

    Jalloh, supra note 39, at 70. ↩

41. 41.

    Id. at 69. ↩

42. 42.

    Moffett, supra note 7, at 22. ↩

43. 43.

    Carla Ferstman, Speakers Remarks, NGOs and the Role of Victims in International Criminal Justice (Oslo, Oct. 2, 2006), available online. ↩

44. 44.

    Id. at 7. ↩

45. 45.

    Correa et al., supra note 10, at 242. ↩

46. 46.

    Fiona McKay, Victim Participation in Proceedings Before the International Criminal Court, 15 Hum. Rts. Br. 2, 4 (2008), available online. ↩

47. 47.

    Id. ↩

48. 48.

    Carla Ferstman, International Criminal Law and Victims’ Rights, in Routledge Handbook of International Criminal Law 407, 412 (William A. Schabas & Nadia Bernaz eds., Nov. 2010), paywall, doi. ↩

49. 49.

    McKay, supra note 46, at 4. ↩

50. 50.

    Correa et al., supra note 10, at 246. ↩

51. 51.

    Cody, supra note 6, at 372. ↩

52. 52.

    Ferstman, supra note 43, at 7. ↩

53. 53.

    See Correa et al., supra note 10, at 248

    (discussing that this can be done through building relationships with a wide array of different organizations at national and regional levels in order to build trust, exchange opinions, and receive more informed feedback, criticism and proposals from diverse victims’ organizations). ↩

54. 54.

    Cody, supra note 6, at 340. ↩

55. 55.

    Correa et al., supra note 10, at 244. ↩

56. 56.

    Cody, supra note 6, at 343. ↩

57. 57.

    Id. at 340. ↩

58. 58.

    Id. at 344. ↩

59. 59.

    Kendall & Nouwen, supra note 39, at 5. ↩

60. 60.

    Cody, supra note 6, at 344. ↩

61. 61.

    McKay, supra note 46, at 2–3. ↩

62. 62.

    Cody, supra note 6, at 344. ↩

63. 63.

    Id. ↩

64. 64.

    Moffett, supra note 7, at 13. ↩

65. 65.

    Id. at 7. ↩

66. 66.

    Cody, supra note 6, at 346. ↩

67. 67.

    Ferstman, supra note 43, at 7. ↩

68. 68.

    Id. at 6

    (noting that this includes making recommendations on adequate systems of protection, calling for greater field presence, budget process, providing training to investigators, and general outreach). ↩

69. 69.

    Id. at 7. ↩

70. 70.

    Cody, supra note 6, at 345

    (discussing how regional and national courts have started to permit victims to participate in criminal cases as civil parties or as members of a victim group represented by appointed legal counsel). ↩

71. 71.

    See id. at 347. ↩

72. 72.

    Ferstman, supra note 43, at 1. ↩

73. 73.

    See Moffett, supra note 7, at 25

    (explaining how simply allowing victims to appear as witnesses or make sentencing statements falls short of encouraging victim ownership of the justice process, or giving victims the freedom to present their interests in court, or providing victims with redress for their suffering). ↩

74. 74.

    Moffett, supra note 7, at 19. ↩

75. 75.

    See Ferstman, supra note 43, at 7. ↩

76. 76.

    Id. ↩

77. 77.

    Moffett, supra note 7, at 15. ↩

78. 78.

    See id. ↩

79. 79.

    Id. at 16. ↩

80. 80.

    Correa et al., supra note 10, at 245. ↩

81. 81.

    Id. at 4. ↩

82. 82.

    Id. at 8. ↩

83. 83.

    Id. ↩