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- benshea: A region-wide, collective reparations scheme is the best option for several reasons. As nmoley convincingly points out in her June 2012 comment on this issue, individual reparations are impractical because of the difficulties in determining who a "victim" is and for distributional problems. I would add that the amount of available reparations per victim doesn't have as much utility as a collective good such as a school or hospital. As of August 2012, the Trust Fund for Victims had ~$1.5 million... (more)
- ANDREW OATES: It is true that when deciding on reperation the ICC should decide on each case, on its individual context. Individual claims for reparation are made directly against the convicted person. This limits the exposure of states and potentially the level of reparation. It is a factor that the best person to determine what ICC reparation regime would be most appropriate for addressing attrocities and war crimes are those directly affected by the crimes. It is in the nature of international criminal... (more)
- nmoley: Reparations in the Democratic Republic of Congo I. Abstract The Rome Statute of the International Criminal Court (“ICC”) provides for reparations to victims of crimes under the ICC’s jurisdiction, but does not specify to whom they are to be made, what kind they are to be, or how they are to be provided. During our February 2012 trip to the Democratic Republic of the... (more)
- BBM: 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... (more)
- grant2012: Monuments and Museums as Reparations after Mass Atrocities Argument: The International Criminal Court should utilize monuments and museums as a form of collective reparations once a coherent, shared narrative has emerged after mass atrocities. To determine if a 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... (more)
- jonathan.tobin: Argument: The International Criminal Court may be ill-equipped to make reparations decisions in all cases. Instead of seeking to make these specific determinations, the ICC should focus its resources on creating a set of standards and guidelines that local reparations committees—drawn from local governments, organizations and victims’ groups—can use to make decisions about how reparations funds will be distributed. The... (more)
- nmoley: Argument: In seeking to achieve rehabilitative justice, the ICC should implement reparative schemes through the Victim’s Trust Fund (VTF). When doing so, an approach which parallels the principle of complementarity in the criminal prosecution context also provides a good model for reparations. By working in conjunction with domestic agencies to issue reparations schemes, the VTF can conserve resources,... (more)
- Kimia: Allocation of Voluntary Contributions of the Trust Fund for Victims Argument—Because a defendant’s assets usually do not provide for adequate resources to compensate his victims, the TFV’s “other resources” mechanism needs to be used effectively. Following a ravaged conflict, the term “victim” should be defined to include individuals who are not directly linked to the crimes of the defendant undergoing... (more)
- elio: When deciding on a reparations regime to implement, the International Criminal Court should evaluate each context individually. The ICC should then tailor the reparations regime it adopts to best fit the society, culture, and particular circumstances of each case while taking account of practical limitations. I. Introduction Reparations provisions are a relatively new development in the context of international criminal law... (more)
- Sean.Lowe: How to Disentangle State Assets from Reparation Funds Argument: Assuming the implementation of a reparations regime pursuant to Article 75 of the Rome Statute, the ICC will face a particularly daunting task: how to treat the assets of the convicted when these are commingled with those misappropriated from the state. I propose the creation of a judicial mechanism giving the trial division a degree of... (more)
Comment on the Reparations Question: “What International Criminal Court reparations regime would be most appropriate for addressing mass atrocities and war crimes?”
A region-wide, collective reparations scheme is the best option for several reasons. As nmoley convincingly points out in her June 2012 comment on this issue, individual reparations are impractical because of the difficulties in determining who a "victim" is and for distributional problems. I would add that the amount of available reparations per victim doesn't have as much utility as a collective good such as a school or hospital. As of August 2012, the Trust Fund for Victims had ~$1.5 million (online). Given that there are easily hundreds of thousands, if not millions, of victims to the conflict, each victim would receive at most $10 (a generous estimate). While such an amount might help families in the short term, it won't make a huge difference in their lives. Alternatively, $1.5 million can go a lot farther if used to build a collective good such as a school or hospital. These institutions would generate tangible, long-term benefits for large portions of the community.
A reparations scheme that benefits only a portion of the community might also fuel tensions in the region. In October of 2012, I traveled with Professor Richard Steinberg and a group of students to the Ituri region of the DRC to interview victims as to their reparations preferences. According to my translator (Hema) and several other locals that I spoke with, the conflict in Ituri was largely influenced by wealth inequality. Traditionally, both Hema and Lendu followed a community property system, sharing land with each other. When colonialists came and brought their private property rights regime, the Lendu refused to follow the system, believing that land belonged to the community. Hema, on the other hand, cooperated with the new property system, resulting in Hema obtaining much more wealth compared to the Lendu. This wealth disparity led to feelings of resentment and largely contributed to the conflict between the two groups. Any reparations scheme that is viewed as helping one community over another could lead to more resentment. Several victims that I talked to (typically those with more education and elder victims) expressed such a belief. In their opinion, collective reparations that benefitted the entire region - both Hema and Lendu - would be best.