II. Reparations Regimes Should Vary by Context

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

A. Individualist versus Collectivist Society

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

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

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

B. Timing of ICC Intervention and Enactment of Reparations

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

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

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

C. Practicality of Reparations Due to Funding28

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

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

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

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

III. Conclusion

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

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

1. 1.

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

2. 2.

   Id. ↩

3. 3.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

4. 4.

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

5. 5.

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

6. 6.

   Id. at Rule 97. ↩

7. 7.

   Id. at Rule 98. ↩

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

    Id. ↩

12. 12.

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

13. 13.

    Id. ↩

14. 14.

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

15. 15.

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

16. 16.

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

17. 17.

    Id. ↩

18. 18.

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

19. 19.

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

20. 20.

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

21. 21.

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

22. 22.

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

23. 23.

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

24. 24.

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

25. 25.

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

26. 26.

    Id. at 335-36. ↩

27. 27.

    Falk, supra note 24. ↩

28. 28.

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

29. 29.

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

30. 30.

    Dwertmann, supra note 1, at 121. ↩

31. 31.

    Id. ↩

32. 32.

    Falk, supra note 24. ↩

33. 33.

    Dwertmann, supra note 1, at 127. ↩

34. 34.

    Id. ↩

35. 35.

    Id. ↩