I would like to pose the following questions to the experts:

1.) Did the ILC make an error is striking State Responsibility from the Zutphen Drafts? The problem as I see it is that the victims may be awarded a large monetary sum, either collectively or individually, and there is a single defendant; what if he or she judgment proof? And what if the TFV has insufficient funds to meet the award?

2.) Without an overarching body speaking for the Court and not each individual chamber, does the issue of reparations lend itself to fragmentation of awards? To be certain the recent report in December by AMERICAN UNIVERSITY’S WASHINGTON COLLEGE OF THE LAW, WAR CRIMES RESEARCH OFFICE, ENSURING EFFECTIVE AND EFFICIENT REPRESENTATION OF VICTIMS AT THE INTERNATIONAL CRIMINAL COURT,27-33 (Dec. 2011) reveals total inconsistancy as to victim particpartion in the various cases before the chambers highighting fragmentation. One would hope that the issue of reparations does not face the same fate.

3.) Why is there such reluctance to have live victim testimony as a form of restorative justice under Article 76? The defendant is allowed an opportunity to offer remorse and apology as a form of mitigation. Why is the victim precluded from offering live testimony as a form of restoration of dignity which would negate a feeling that justice has not been usurped by the chamber. (Professor Edna Erez has written eloquently on the topic.)

4.) Is there not a direct conflict in the mandate the TFV sees for itself and that of the Chamber which may make reparations under Article 75.

Article 79 of the Statute reads in pertinent part: “A trust fund shall be established by decision of the Assembly of State Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.” A board of directors of five members are elected by the Assembly of State Parties (hereinafter: “ASP”) at least once a year in The Hague. The Trust Fund is an independent body and Schabas articulates its mandate as being the provision of reparations in accordance with Articles 75 para. 2, 79 para. 2, and Rule 98 RPE. “The responsibility of the Trust Fund is first and foremost to ensure sufficient funds are available in the eventuality of a Court reparation order pursuant to Article 75 of the Statute”. In contrast the ASP sees the role of The Trust Fund for Victims (hereinafter: “TFV”) has being broader and says that there are two mandates: (1) administering reparations ordered by the Court against a convicted person, and (2) using other resources for the benefit of victims subject to the provisions of article 79 of the Rome Statute.

Under Article 75 para. 2, the Court may where appropriate order that the award for reparations be made through the Trust Fund. This would happen only if at the time of making the order it was impossible to make the award directly to the victim. Here the funds, as a result of the award, would be kept separately from the other funds of the trust account.

The trust is funded by :
(i) Voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of State Parties ;
(ii) Money and other property collected through fines or forfeiture transferred to the Trust Fund if ordered by the Court pursuant to Article 79, paragraph 2 of the Statute;
(iii) Resources collected through awards for reparations if ordered by the Court pursuant to Rule 98 of the Rules of Procedure and Evidence; and,
(iv) Such resources, other than assessed contributions as the Assembly of State Parties (“ASP”) may decide to allocate to the Trust Fund.

Compensation to the trust fund is voluntary by the ASP. The ASP has interpreted the phrase for the ‘benefit of victims’ as consisting of reparations and material support. The Board of Directors has interpreted Article 75 para. 1 as being based on the ‘Basic Principles and Guidelines,’ which includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

Indeed, before any trial had even begun, the Trust Fund began allocating sums of money for projects that were said to be of benefit for the victims. These have been allocated for projects in Uganda, the Democratic Republic of the Congo (hereinafter: “DRC”) and the Central African Republic.

Defendants objected to the aforementioned projects on the grounds that the projects created an inference of guilt and impaired the accused’s presumption of innocence. The defendants’ argument is not well taken.

It is undisputable that Uganda, the DRC, and Central African Republic have been subject to mass-scale gross crimes. But this is not arguendo related to a defendant who is on trial, and the defense argument is tenuous at best. The decision of the Trust Fund to use the funds within its custody, possession and control to provide rehabilitation, psychological rehabilitation, and material support is not a predetermination as to the guilt of the accused. Rather the funding of the projects from monies in the TFV has been used for support of the war torn areas and, at this point in time, is unproblematic as to the accused’s due process rights.

The better argument to be made by defense counsel and the OTP is that the monies expended on these projects should have been kept in reserve for the victims of the mass crimes, upon a guilty verdict. It would be gross mismanagement, now that Lubanga has been convicted, and reparations are to be awarded if the reparations are made and are in excess of the monies expended on the aforementioned projects.

One could cogently argue that the expenditure of the monies on the projects was a breach of a fiduciary duty to the victims to ensure that reparations ordered by the Court against a convicted person are paid. It is not error that the TFV is called a ‘trust fund’ with the obligation of the trustees to ensure that victims are paid pursuant to the instruction of the Court pursuant to Article 75 para. 2 and Rule 98 paras. 2 -4.

It also may also be argued that there is an inherent inconsistency between Article 75 paras. 1 and 2, and Article 79 para. 3. A way to harmonize the two articles is provided in Rule 98 RPE which states “that an award for reparations deposited in the trust fund shall be separated from other resources of the Trust Fund and shall be forwarded to each victim as soon as possible.” This way the Trust Fund cannot use the reparation funds, and inferentially 79 para. 3. applies to administrative issues. Ferstman says that the paragraph refers to the management structure of the Fund and its relationship with other bodies of the Court, voluntary contributions, and the scope of beneficiaries By this measure there is no inconsistency between the two Articles. However, the paradox of the mandate of the TFV alluded to, that of Court ordered reparations and “for the benefit of victims” under Article 79 para. 1 is highly problematic over the long term. Similarly, as to the Regulation of the Trust Fund, there appears to a large amount of discretion vested in the ASP and the Board as to how monies will be spent.

Travelling the path of Schabas, there is an inherent breach of fiduciary duty by spending the money on projects prior to the determination of guilt and an order of reparations as the mandate of the TFV is limited to making reparations upon order of the Court. In contrast the Board of Directors over-reaches in its overbroad reading of “for the benefit of victims” prior to any determination of guilt as fitting within the mandate of TFV pursuant to Article 79 para. 1.

Simply said, the TFV was set up as a means to ensure victim reparations with primacy given to the Court as to how reparations are made. The decision of the Board of Directors, albeit with approval of Chambers, to embark on various domestic projects over the short term is unproblematic, however over the long term it poses serious strategic problems. As the number of verdicts start to rise, the ability of the TFV to maintain these projects is going to become increasingly difficult. The actions of the Board of Directors as to the projects it has embarked on is un-perspicacious, lacks strategic vision and is in all likelihood a breach of fiduciary duty. The Court’s imprimatur on the premature expenditure of funds does not exculpate Boards irresponsibility. The two views as to the TFV’s mandate need to be reconciled as the views are on a collision course.