Collective awards are often necessary for several reasons. First, the victims of crimes under the ICC’s jurisdiction are usually, sometimes by definition,3 very numerous. Often the number of persons affected is incalculable, and an individual award for each one would be impossible.4 This is both because one may not practically identify all victims, and because limited funds would prohibit such numerous individual awards. Moreover, individual awards are more easily given only to victims of perpetrators who have been tried and convicted.5 Victims of perpetrators who have been killed or who are never arrested could thus be left without remedy. In addition, many victims may not have the knowledge or resources to come forward to request remedies.

Next, collective awards may be best suited to rebuild society as a whole. Individual awards alone may be divisive if given to some victims and not others. This may give a perception that some victims are more “worthy” than others to receive reparations, and thus cause resentment or hostility.6 In addition, since rehabilitative justice aims to repair a society, it often requires larger-scale projects which differ depending on the conditions in any given conflict area. Some areas may need to achieve a cessation of hostilities. More post-conflict areas may need to focus on creating a truthful, widely-accepted narrative of what exactly happened.7 While the societal needs will thus vary, individual awards alone will generally not fulfill these needs. Rather, collective awards will usually prove more adequate than individual awards to address these broader needs of society, which may require the involvement of many people.

The VTF is appropriately positioned to administer a collective, rehabilitative reparations scheme. In addition, it is clearly within its mandate to act as a complement to domestic actors, or to NGO or IGO actors it deems appropriate, to help implement reparations schemes. Article 79 of the Rome Statute creates the VTF. Section (1) provides that a trust fund “shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court and the families of such victims.”8 Section (3) states that it “shall be managed according to criteria to be determined by the Assembly of States Parties.”9 In addition, when awarding reparations, “[w]here appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in Article 79.”10 The prospect of collective reparations could thus be read as an alternative to individual reparations, at the very least by extending to the families of victims. In addition, the language of Article 79 allows for much flexibility in the administration of the VTF, giving the States Parties especial leeway in its control. In this capacity, there is ample room for States Parties and the VTF’s trustees to incorporate domestic actors into a reparations scheme.

The Rules of Procedure and Evidence enacted subsequent to the Rome Statute further elaborate on the structure of the VTF. Rule 98 (1)-(2) outlines procedures through which individual awards may be given through the VTF. Sections (3)-(5) discuss other reparations:

(3.) The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.

(4.) Following consultations with interested States and the Trust Fund, the Court may order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund.

(5.) Other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79.11

Article (3) both acknowledges that collective reparations may sometimes be necessary, and designates the VTF as the organ through which to implement them. Article (4) specifically contemplates the VTF working in conjunction with national systems, as well as with NGOs and IGOs. Finally, Article (5) seems to further emphasize the VTF’s flexibility in administering measures to benefit victims. The VTF’s mandate may thus envision precisely a reparations scheme in which the Fund implements rehabilitative reparations collectively, while working in conjunction with national systems. Furthermore, in addition to receiving funds from fines against perpetrators charged by the Court, the VTF may obtain additional funds for victims from states and donors.12 In the establishment of the VTF, the ICC thus both acknowledges the collective awards are sometimes the most appropriate method of reparations, and also provides the vehicle through which to collect and distribute them.

II. The VTF Should Extend the Principle of Complementarity to Work With Domestic Systems

The Rome Statute’s preamble emphasizes that the Court “shall be complementary to national criminal jurisdictions.”13 The principle of complementarity is a deference for national authority over situations that may otherwise be under the ICC’s jurisdiction.14 It is designed to preserve the sovereignty of the state, as well as to strengthen the state’s justice system by allowing it to develop and to be involved in the proceedings. The issue of complementarity often arises in the context of criminal prosecutions and the ICC’s admissibility to proceed with a case.15 At the same time, the principle of complementarity can be analogized to the method of reparations as well. Rationales similar to those which encourage the ICC to defer to national prosecutions may suitably apply to the reparations context. These include, among other things, domestic systems’ relative ease compared to the ICC in conducting investigations and other fact-finding; the need to build authoritative domestic systems; and the sensitivity of domestic systems to certain cultural factors. Although the principle of complementarity is not entirely transferable to reparations, it serves as a useful parallel when examining a reparations system with many of the same considerations present.

Although the VTF may work with domestic systems when issuing reparations under the Rome Statute and under the Rules of Procedure and Evidence, it is not required by these provisions. However, in keeping with the principle of complementarity to justice systems as a whole, a scheme in which the VTF works with domestic actors could present an ideal mechanism to achieve rehabilitative justice. These actors may be on-the-ground NGOs, government entities, a newly created domestic agency, or some combination of these. The VTF should work with such actors both substantively, procedurally, and financially, for several reasons.

A. Limited Resources

One of the greatest problems faced by the VTF and by the ICC in general when administering reparations is a sheer lack of resources, both monetary and otherwise. Often, a perpetrator under the ICC’s jurisdiction will be charged with crimes so heinous and widespread that it is impossible to ever achieve perfect justice in the aftermath. Moreover, the sheer amount of destruction and victimization that such crimes entail will frequently exceed the perpetrator’s resources to recompense.16 The fines and forfeitures obtained from convicted criminals thus generally fall short of the amount necessary for reparations. Although the ICC may also obtain money from donations to the VTF,17 it is still highly constrained by a lack of funding.18 In addition, the VTF may often lack important non-monetary (i.e. personnel or institutional) resources as well.

In light of these extremely limited resources, the VTF is well-served to work with domestic systems in order to lessen its burden. Procedurally, domestic systems may already have an agency or organization in place which may be suitable to issuing reparations. For instance, a state may have a governmental organ which could work with the VTF to create a common fund for victims, to be used in any number of ways for their benefit. Such an approach could also substantively aid the VTF, for instance in the need to fact-find or conduct determinations of who victims are and what they might need. By working closely with such an organ, the VTF could also gain financial support if the agency has any independent funds it can contribute. Each of these forms of cooperation will reduce the burden on the VTF’s own resources.

B. Strengthening Domestic Systems

Working with domestic agencies could also enhance the VTF’s reparations scheme by providing an opportunity to strengthen domestic systems. Similar to complementarity rationales for criminal proceedings, employing a domestic system to procedurally implement reparations could create a lasting structure for peace-building in a nation. For instance, endowing a domestic financial institution or national NGO with the ability to manage reparations funds could create a stable economic institution, which in turn can maintain reliability in the future. Alternatively, a transitory reparatory scheme undertaken by the VTF could ultimately be transferred to domestic hands, either private or public, thus becoming a literal and symbolic instrument of a changing, renewed society.

Reparations schemes could also create a domestic institution aimed substantively at promoting lasting peace. For instance, the building of a war crimes museum would create a structure dedicated to victims and promote reconciliation. This could contribute to healing the overall society, with the added benefit of being built through domestic actors and contributing to a national identity. Finally, in working with domestic systems, the VTF can give domestic systems needed guidance and training as to how to rebuild that will outlast the VTF’s involvement.

C. Involvement of Victims

One key objective of rehabilitative justice is to include the victims of wrongdoing in the reparative regime. This may often provide psychological benefits which are critical in restoring a society. Victims who desire to participate may feel as though their wrongs have been recognized, and may feel empowered through having a voice in the reparations and rehabilitative regime. Addressing such important psychological needs may provide a more solid foundation for healing a community. Victim involvement can also help to overcome the obstacle of physical and theoretical distance that the ICC faces when prosecutions occur outside the victims’ country.19 Especially in the rehabilitative context, it is important that a society be rebuilt with the involvement and support of its people, particularly its victims.

A reparations scheme in which the VTF works with domestic agencies could also procedurally allow more opportunities for victim involvement than one in which the VTF or ICC acted alone. If administered domestically, victims could voluntarily contribute to the reparations scheme either through their time, or through decisions on how to implement it. Since they are personally involved, victims may feel more satisfied with or restored by such a scheme. This form of rehabilitative reparations would also allow victims to work together for a common purpose, thus promoting integration and reconciliation. Finally, victim involvement would be a valuable asset in determining the most appropriate reparatory measures. By working with a domestic actor, victim input—and by extension societal needs—can easily be noted at every step of the way, enhancing the effect and responsiveness of the scheme.

D. Flexibility in Different Contexts (stages of conflict as well as cultural needs)

Another extremely important benefit to be gained from working with domestic agencies is the high degree of flexibility it allows in implementing reparations schemes. Situations affected by crimes within the ICC’s jurisdiction will vary radically, both in terms of the nature of the conflict and in terms of the society in which it occurs. Procedurally and substantively, the firsthand insight that a domestic actor will have into a certain situation will give the VTF valuable assistance in implementing reparations.

To begin with, the ICC will have jurisdiction over crimes occurring in areas in different stages of conflict. A situation such as that in the former Yugoslavia, where a ceasefire was achieved long ago, will differ greatly from a situation in which a conflict continues. Correspondingly, the needs of victims will differ greatly in considering what restorative reparations regime would be best. In a situation such as the former Yugoslavia, a reparations regime may focus on reducing post-conflict (and centuries-old) hostility and promoting integration. In an ongoing conflict, by contrast, a reparations regime could focus on immediate protection and aid.

In addition, different cultural factors will be extremely important when considering different restorative reparations. What one culture may deem appropriate to restore a victim or society may differ radically from another. For example, in post-apartheid South Africa the use of truth and reconciliation commissions was critical in providing a form of redress to victims and in rebuilding society. Such a harmonious approach to restorative justice will not work in every situation. Again, flexibility is needed to ensure that the reparations regime is most effective to meet the needs of different societies.

Collaboration with a domestic actor will prove extremely valuable to the VTF in light of such varied situations, both procedurally and substantively. First, working with a domestic organization may help the VTF to determine what the factual situation on the ground is. Aid from domestic organizations can provide factual support that the VTF may not be able to obtain (or may not have the resources to obtain), such as victim names. In addition, a domestic actor will be very sensitive to cultural considerations. Especially when working toward rehabilitative justice, such sensitivity is crucial to implementing a scheme that reacts to the cultural needs of victims. Domestic actors will give insight into how to best implement a particular measure, such as the Ugandan mato oput ceremony.20 They may also be sensitive to friction between groups. Therefore, a domestic hand in reparations, especially in rehabilitation, is extremely valuable to providing necessary flexibility and insight.

III. Examples of this principle in action

As already noted, the VTF should work with domestic agencies as much as possible procedurally, substantively, and financially. In practice, there are many different schemes that could be taken along these lines. Inevitably, there will not always be perfect complementarity, and may be situations in which the VTF will be obliged to take the lead in one or more areas. For example, a nation may completely lack financial resources, or national agencies may be disabled by conflict. In these cases, the VTF must take the lead in providing financial or procedural support. However, even in such cases, support may be enlisted from NGOs, IGOs, or other international organizations with an interest in contributing to the nation’s rehabilitation. Since reparations situations will differ radically, the VTF must take a context-specific approach to each one.

Although collaboration between the VTF and domestic agencies may present an ideal scheme, it is also important that the VTF maintain administrative control over each reparations process. As with the principle of complementarity in criminal proceedings, there may be dangers in ensuring that there is some of control over domestic actors—for instance, that a government does not appropriate victim funds for its own devices. Thus, in each reparations scheme, the VTF should always be conscious of its administrative and regulatory role. For instance, a reparations scheme should have some form of oversight mechanism and possible sanctions for noncompliance. Thus, prior to implementing such a complementary domestic reparations scheme, it will be necessary for the VTF to determine the best strategic scheme for each situation. There are several examples, by no means exhaustive, of approaches which the VTF could adopt in conjunction with domestic actors.

A. Microfinance

Anita Bernstein advances a theory of microfinance in issuing monetary reparations.21 Put very simply, in this scheme monetary reparations would be distributed in the form of shares in a microfinance institution. This institution may take a variety of forms, from an established bank, to a credit-providing NGO, to more basic local groups such as moneylenders. The institution could issue loans to other members of society, such as those who need money to farm. In this way, the shareholders become investors, while those who borrow the loans are able to obtain investment money in order to rebuild. Where identified, individual victims could be given shares in a financial institution. In this way, they could both be given a financial share as well as empowered by authority as an investor. If they reject the idea of being a shareholder, they could simply withdraw their share for money. On the other hand, a decision to be a continued shareholder would provide a variety of benefits: a safe place to store money; empowerment through their decisions over the institution’s lending choices; or greater returns on their investment.

This scheme is appropriate for situations in which monetary awards are critical in advancing justice,22 and has both collective and individual elements. Although it is facially an individualized reparations scheme, the collective benefits of such an institution equally render it a societal rehabilitative tool. It is also an excellent way for the VTF to work with domestic agents. The institution could be a national financial institution such as a bank, or an on-the-ground NGO which provides or is willing to provide the framework for such a scheme. Alternatively, the VTF could create a domestic institution from scratch, although more involvement and regulation would likely be necessary. In all cases, however, the VTF would continue to involve itself in planning and oversight mechanisms. This would help to reduce the strain on the new institution and to prevent possible failures.

B. Symbolic Reparations

Many scholars have noted the importance of symbolic reparations when implementing remedial programs.23 These reparations schemes have the benefit of consuming less money than individual monetary awards. They also address the concern of recognizing victims’ suffering on a psychological level. While symbolic reparations schemes may recognize individual victims, they often also can recognize victims collectively, thus ensuring that no victims are left overlooked. Furthermore, such reparations can serve important psychological healing functions. A memorial may serve as a remembrance and a vow of non-repetition for a victim; it may also establish a shared narrative of the conflict. This is often crucial in restoring a broken society and setting the groundwork for lasting peace.

Symbolic reparations may take many different forms. They may be a physical presence such as a memorial or a museum, or a ceremony such as a truth-telling commission or formal apology. Nearly always, symbolic reparations will be culturally-sensitive, and require a carefully-constructed societal understanding of what happened. This is especially true when a society has cultural institutions or practices which traditionally address victims’ rights and remedies. Thus, the VTF would be aided in such instances by working with domestic actors. Again, these domestic actors may already be in place, may be created by the VTF from scratch, or may be created with the help of NGOs or other international actors. For example, a domestic organization dedicated to building a memorial museum could provide an outlet for victims to participate (such as involvement in design committees), or could provide insight into how to best achieve the healing process in that society. Moreover, it may create an institutional framework for further reintegration and peace, if for instance the organization continued to operate afterwards as a peace-building NGO.

C. Services

A final, often-cited mechanism for rehabilitation takes the form of a service-oriented institution.24 The purpose of such a reparations scheme is an active and more practical focus on rebuilding society. Examples include an organization which provides medical or psychological aid to victims, or an agency which helps rebuild homes or other structures which were destroyed. Again, a domestic agent would be extremely important to aid the VTF in administering such a reparations scheme. For example, a reparations scheme could fund a medical clinic. The VTF could work with an on-the-ground organization, whether an existing domestic institution, a NGO, or another international organization. Again, the institution could substantively provide insight into any nuanced cultural views of health and medicine. Most importantly, this domestic agency could become a permanent, stable presence. With the guidance of the VTF of how to procedurally administer such an institution, a medical clinic may eventually become a functional independent entity.

Such a scheme has extremely practical roots: its aim is generally to stop suffering and restore victims’ immediate losses or injuries. However, it is important to remember the justice-serving function of reparations. In other words, the VTF should take care to not blur the line between merely giving aid and serving people reparations for the harm that they have suffered. For instance, the VTF could combine service-oriented schemes with other forms of reparation, such as symbolic gestures. A commemorative hospital could publicly recognize victims, or give them a voice in its direction and management. Such an institution may thus provide a form of justice as well as give medical aid to victims.

Conclusion

Each of the possible complementary reparations systems discussed has flaws and weaknesses. However, this comment offers such schemes as examples, and not fine-tuned solutions for any given situation. Each reparations program must be adapted to the situation to which it seeks to provide remedy. These examples give an idea of how the VTF may create reparations schemes in conjunction with domestic actors. The VTF is well positioned provide such collective awards to victims with the aim of rehabilitation. A complementarity-type system, in which it works with existing domestic agencies, NGOs or IGOs, or newly created domestic organizations, has many benefits. By working with domestic systems to devise a context-specific regime, the VTF can thus successfully help to achieve rehabilitative justice.

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

1. 1.

   Rome Statute of the International Criminal Court, art. 75(1), 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]. ↩

2. 2.

   See Rome Statute, supra note 1, Preamble, which asserts the determination “to put an end to impunity for the perpetrators of these [most serious] crimes and thus to contribute to the prevention of such crimes”. ↩

3. 3.

   For example, genocide is defined in the Rome Statute as certain actions which are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” See Rome Statute, supra note 1, at art. 5. ↩

4. 4.

   For instance, it is estimated that the Lord’s Resistance Army has abducted at least 20,000 children. See 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, 32 (2006). ↩

5. 5.

   Those convicted by the ICC may be required to make an order for reparations directly to victims, although the term “victim” is not defined. See Rome Statute, supra note 1, at art. 75(2); International Criminal Court, Rules of Procedure and Evidence, Rule 98, 9 September 2002, ICC-ASP/1/3. ; see also Thomas Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 330 (2011). ↩

6. 6.

   Adrian Di Giovanni phrases this danger well: “an overly narrow reparations program, such as a court assessing reparations on a case-by-case basis, risks disaggregating the harm suffered by victims and fragmenting various victims groups…‘what needs to be redressed in the aftermath of systematic crime is not only individual harm but human and social relations that have been violently destroyed.’” Di Giovanni, supra note 4, at 42. ↩

7. 7.

   For instance, in post-apartheid South Africa a Truth and Reconciliation Commission was created to acknowledge the many human rights violations that had occurred, when various parties did not share the same story. See, e.g., Charles Villa-Vicencio, Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet, 49 Emory L.J. 205, 218 (2000). ↩

8. 8.

   Rome Statute, supra note 1, at art. 79(1). ↩

9. 9.

   Rome Statute, supra note 1, at art. 79(3). ↩

10. 10.

    Rome Statute, supra note 1, at art. 75(2). ↩

11. 11.

    Rules of Procedure and Evidence, supra note 5. ↩

12. 12.

    Id. ↩

13. 13.

    See Rome Statute, supra note 1, Preamble. ↩

14. 14.

    The ICC is stated to be a court of “last resort.” See International Criminal Court, ICC at a Glance, available online. ↩

15. 15.

    See Rome Statute, supra note 1, at art. 17. ↩

16. 16.

    Even where perpetrators are extremely wealthy, obtaining such funds is often complicated and difficult. See Linda M. Keller, Seeking Justice at the International Criminal Court Victims’ Reparations, 29 T. Jefferson L. Rev. 189, 191 (2007). ↩

17. 17.

    Rules of Procedure and Evidence, supra note 11, at Rule 98(5). ↩

18. 18.

    See Keller, supra note 16, at 191. ↩

19. 19.

    In particular, some scholars have raised concerns of “blood money,” in which monetary reparations to victims may give the impression that they are being paid off without acknowledging their suffering. See Anita Bernstein, Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality, 31 U. Pa. J. Int’l L. 1, 10 (2009). ↩

20. 20.

    Mato oput is a traditional ceremony practiced by the Acholi in Uganda. See Linda M. Keller, Achieving Peace With Justice: the International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 230 (2008). ↩

21. 21.

    See generally Bernstein, supra note 19. ↩

22. 22.

    In some cases, monetary awards may dignify victims’ suffering by giving tangible rewards in recognition for their suffering. For some victims, money may be necessary to avoid trivializing suffering by only awarding symbolic reparations. See Bernstein, supra note 19, at 11. ↩

23. 23.

    See, e.g., Antkowiak, supra note 5; Di Giovanni, supra note 4; Frédéric Mégret, Of Shrines, Memorials, and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice, 16 Buff. Hum. Rts. L. Rev. 1 (2010). ↩

24. 24.

    See, e.g., Antkowiak, supra note 5; Mégret, supra note 23, at 47. ↩