I. Limitations and Challenges of the ICC Reparations Program

Article 75 of the Rome Statute gives the ICC the ability to offer reparations to victims of crimes committed under the ICC’s purview. The key language of that article states that “[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”1 As such, the ICC is empowered to distribute funds from either the perpetrator or from funds contained within the Trust Fund for Victims, as established in Article 79 of the Rome Statute.2 However helpful, these provisions do not give specific guidance as to the form or extent of reparations. The process of determining who merits reparations has been left largely to the discretion of the Court.

The crucial questions in designing a reparations system tend to fall in the broad categories of “the form of payment, the identity of the beneficiaries, the identity of the parties who will bear the costs of payment.”3 Except for the third, most of these questions are more appropriately answered by the members of the society in question rather than the ICC.4 The ICC should guide, but not necessarily lead, the process of determining the form of reparations and the identity of the recipients.

This paper began with the idea of having victims and victims’ groups determine the form that reparations should take. Being so close and so affected by the crimes committed by the convicted would give victims the deepest insight into the problems that can be addressed by a reparations scheme. However, this approach had the limitation of putting to great a burden upon a single group (here “victims”, however classified), thus the circle of participants has been widened to include governmental organizations, non-governmental organizations, international organizations and representatives of civil society. These are the parties who would comprise any reparations committee.

The ICC would be the best positioned as a shepherd of the process of bringing these groups together. By establishing guidelines, criteria and timetables, the ICC can ensure that the means of distributing reparations are equitable, without having to weigh in directly upon the ends.

The ICC’s ability to create a comprehensive one-size-fits all framework for reparations is limited because conflicts and crimes differ. In some cases, the crimes are state-sponsored, and in others they are committed by rebel factions. Some conflicts are localized, others permeate society. Some are one-sided, others have multiple participants and each side may have group members convicted by the Court. This variability makes it difficult for the ICC to adopt a comprehensive framework favoring a certain form of reparations ex ante. One can imagine that each situation will merit a blended approach to reparations and that the blend called for differs depending on a large number of local factors.5

Although it may seem that this approach merely shifts the burden of making the hard choices to local groups and governments, it does so only to the extent that these local participants are better able to engage in fact-finding and in coming to agreements between the parties. In this case, the division of labor is such that the ICC writes the rules, and the local participants play the game. By allowing the local participants to shape outcomes, the ICC avoids making political calculations and mistakes that may arise from a lack of a comprehensive understanding of the local situation.6 Rather than abdicating responsibility, the ICC makes an affirmative statement that, as a court, they are not most able to lead the process of societal reconstruction, only to guide that process in a way that honors the Court’s obligations under the Rome Statute.

II. The Role of the ICC in Guiding the Reparations Process

If the ICC is not making determinations on the form and extent of reparations, then what should the ICC’s role in the reparations process be? The goal of the ICC should be to facilitate a victim-centered approach to restorative justice.7 Here, the process matters most.8 The general concerns that the ICC should deal with would include: establishing the composition of the local reparations committee, ensuring that forward-looking and backwards-looking concerns are addressed, that any process includes victims to a great degree and defining the various groups.

First, the ICC can establish the composition of a local reparations committee which would make the ultimate determinations about the form and recipients of reparations. In general, the ICC could determine who from government, NGOs and victims groups should be involved. The goal of the ICC would be to create a mix of voices, while ensuring that the victims are appropriately represented. The ICC would ideally have a representative as a part of this committee.

Second, the ICC would work with the parties to establish milestones and timetables for key determinations. This would require disbursal of VTF and other funds on a staged basis; funds would only be released when concrete, mutually agreed-upon goals are met. For example, the committee might be required to create a list of parties likely to be most-affected. The ICC should also take an active role in encouraging governments to exert influence on perpetrators such that the underlying situation changes in a manner that reduces the possibility of future hostilities.9

This approach assumes that disbursal of reparations seeks a restoration rather than retribution.10 Presumably, retribution has been had to whatever degree possible and in accordance with the appropriate provisions of the Rome Statute. Here, the ICC would seek to guide a restorative process that has the potential to bolster domestic institutions and re-establish or repair national sovereignty after a conflict. As David C. Gray noted, the situations addressed by the ICC can be considered as a form of “extraordinary justice” in which the correspondence between individual wrongdoer and victim is relaxed such that the needs of larger societal groups are addressed in the reparations program.11 Similarly, this role would underscore a conception of the ICC as a forward-looking institution that seeks not only to provide redress for past crimes, but also seeks to change the environment such that these crimes do not recur.12

The above idea of extraordinary justice seems to be a bit in tension with utilitarian model of reparations outlined by Eric Posner and Adrian Vermeule, which would tend to constrain the types of reparations afforded to victims to those types of reparations that can be said to be backward-looking. Their contention is that reparations are not meant to make society as a whole better off, but to correct particular wrongdoings done by particular criminals to particular victims.13 If we accept this notion, then the ICC should constrain its reparations scheme to groups that are most directly affected by perpetrators—the ICC should avoid “mission creep” and look to address as many particular wrongdoings as possible. This does not necessarily mean that the ICC will pursue individual reparations, but instead that it will consider which unit is most affect and in what proportion—the group or the individual?

The ICC would also work to find a balance between group and individual reparations as a form of balancing forward-looking and backward-looking concerns.14 A number of papers have discussed the merits and shortcomings of either individual or group reparations schemes, with the general idea that the ICC should favor one over the other in most cases.15 However, this is a somewhat premature question because the facts of each conflict and each crime will differ, as will the cultures in which the parties are embedded. In some of these cases, collective reparations will hit the mark exactly and in others, individual reparations will be needed.16 The ICC should not bias itself in favor of one or the other beforehand, but understand that both options may be called for.

Since Rule 75 provides a means for victims to submit claims as well as a means for victims and defendants to have a say in the merits of a claim, any committee dealing with reparations should be seen as an adjunct to this process of victim-involvement.17 Specifically, Rule 75(3) provides that “[b]efore making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.”18 This language would appear to provide a basis for the creation of some type of body to established to account for the views of victims and “other interested persons”. In fact, it seems to be imperative as the statute mandates that “the Court may invite and shall take account”.19 Although I have not had a chance to examine the relevant travaux préparatoires, my instinct and that of more than a few commentators is that this language places the concerns of victims rather centrally in the determination of penalties and attendant reparations.

The ICC also has the ability to assert its unique commitment to victim involvement in the process of dispensing justice. Using procedures similar to those used at trial, the ICC can support victim participation at the reparations stage.20 This involvement should play a crucial role in the decisions made by the reparations committee, and any regulations governing that committee would need to specify the exact channels through which victims might be heard, as well as which victims should be represented. The overall goal would be to espouse a “victim-centered” reparations regime, which Thomas Antkowiak and others have discussed in some detail.21 As M. Cherif Bassiouni points out, the definition of victims in Rule 85 of the ICC Rules of Procedure and Evidence defines “victim” broadly enough to encompass those who have suffered indirect as well as direct harms.22 This broad definition provides a legal basis for the ICC to focus its efforts upon creating guidelines by which the exact composition of the class of victims will be determined.

Similarly, the language of Article 79 of the Rome Statute may be construed to give broad leeway to the use of Victims’ Trust Fund resources.23 Article 79 states that the VTF will benefit the victims, but does not necessarily constrain the use of funds to those who have been directly affected by the acts of criminal defendants.24

Conclusion

This paper only skims the surface of the larger issues that the ICC will need to confront as it develops and completes trials. In the coming years, the issue of reparations will take on a renewed importance as violators are convicted and victims seek redress. The ICC would do well to work now, in concert with the Assembly of State Parties to the ICC to develop appropriate guidelines that will provide a framework for setting up local reparations committees composed of representatives of government, civil society and victims’ groups. The role of the ICC should be to facilitate the decision-making of those committees by supplying investigatory, administrative and logistical support. The ICC would seek to insure that appropriate voices are heard and that resolutions are equitable.

While this approach leaves many questions unanswered, it does establish grounds for a reasonable first step. It will also give the Court flexibility to change its approach and involvement should the situation merit such change. The overall purpose here is to put the power in the hands of those people most affected by atrocities. However, this is not to say that all of the power should go to these groups. The ICC still has a responsibility to oversee and ratify decisions and to broker any negotiations that might take place between relevant bodies.

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.

   Id., art. 79. ↩

3. 3.

   Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Colum. L. Rev. 689 (2003). ↩

4. 4.

   The answer to the third question concerns more the source, rather than the recipient of the funds and is therefore somewhat off-topic for this brief discussion. ↩

5. 5.

   See Linda M. Keller, Seeking Justice at the International Criminal Court: Victims’ Reparations, 29 T. Jefferson L. Rev. 189, 212 (2007). The overall “blend” referred to here is composed of a balance between forward-looking and backward-looking remedies and collective and individual reparations. This is discussed in a little more detail in Part II. ↩

6. 6.

   In fact, dangers might arise from over-involvement in outcomes by the ICC. See, e.g., 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, 54 (2010) (discussing the danger of a court—in this case the IACHR—taking on too much authority as architect of commemorative monuments). ↩

7. 7.

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

8. 8.

   See Id. at 282 (noting that the process used to provide redress greatly influences the outcomes achieved). ↩

9. 9.

   Antkowiak, supra note 7 (pointing out that without government involvement, the effectiveness of reparations is curtailed). ↩

10. 10.

    Much has been written on the role of restorative justice, and most interestingly this type of approach seeks to take into account multiple facets of the victim, beyond legal remedy to be dispensed. ↩

11. 11.

    David C. Gray makes the compelling point that “What makes transitional justice extraordinary is the need to address an abusive paradigm in a constructive way. Thus, the justice gap is not merely a material disparity between needs and resources; it is also a cognitive gap, reflecting the distance between an abusive paradigm and the paradigm that must be achieved for the new state to survive and vindicate its commitments to democracy, human rights, and the rule of law.” David C. Gray, Extraordinary Justice, 62 Ala. L. Rev. 55, 76 (2010). ↩

12. 12.

    Id. This echoes the point made by David C. Gray that transitions are “Janus-faced,” that “transitions are called upon to account for the past as a part of the effort to go forward toward an aspirationally described future.” M. Cherif Bassiouni makes a similar point, see M. Cherif Bassiouni, International Recognition of Victims’ Rights, 6 Hum. Rts. L. Rev. 203, 231 (2006) (contending that reparations should seek to rehumanize victims as a means of establishing peace and security within a state). ↩

13. 13.

    However, Posner and Vermeule do recognize that in certain cases these conditions may be relaxed such that an exact correspondence is not necessary or even desirable. ↩

14. 14.

    In essence, individual reparations are considered to be backwards-looking as they seek a correspondence between specific action and specific reparations, while group reparations tend to have a more forward-looking aspect as they seek to rehabilitate societies by reestablishing group cohesion. These categorizations are by no means absolute, however. ↩

15. 15.

    See generally, Keller, supra note 5; Mégret, supra note 6 (arguing that the ICC reparations scheme supports “sites of conscience” as a rehabilitative form of reparation). ↩

16. 16.

    Roy L. Brooks makes a cogent distinction between individual and group reparations by categorizing reparations as either “compensatory” or “rehabilitative”: “Compensatory measures are directed toward the individual victim or his or her immediate family. Such redress is intended to be compensatory only in a symbolic sense, because nothing can undo the past or truly return the victim to the status quo ante. In contrast, rehabilitative redress is directed toward the victim’s group or community. It is designed to benefit the victim’s group, to nurture the group’s self-empowerment and, thus, aid in the nation’s social and cultural transformation.” Roy L. Brooks, Getting Reparations for Slavery Right—A Response to Posner and Vermeule, 80 Notre Dame L. Rev. 251, 270 (2004). ↩

17. 17.

    Whether or not done as part of the procedures set forth in the Rome Statute. ↩

18. 18.

    Rome Statute, supra note 1, art. 75(3). ↩

19. 19.

    Id. ↩

20. 20.

    Id. ↩

21. 21.

    See Antkowiak and others. ↩

22. 22.

    Bassiouni, supra note 12, at 243. The text of Rule 85 includes the language: “Natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the court”. Presumably, the words “as a result of” creates establishes claims by those who may not have been directly affected by hostilities but who have nonetheless suffered harm. See also International Criminal Court, Rules of Procedure and Evidence, Rule 85, 9 September 2002, ICC-ASP/1/3. ↩

23. 23.

    Peter G. Fischer, The Victims’ Trust Fund of the International Criminal Court-Formation of A Functional Reparations Scheme, 17 Emory Int’l L. Rev. 187, 206 (2003). ↩

24. 24.

    Id. ↩