The Reparations Question — Comments
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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?”
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 discretion to determine which funds are available for reparations. The procedure of this judicial inquiry will include two conjunctive steps with differing standards of proof. These will most appropriately balance obstacles to evidence collection as well as equity and legitimacy considerations, thus providing the most appropriate tool for determining which assets to collect for reparations.
I. Introduction
Convictions have the important effect of providing closure to a victim and a sense of justice for a community. Meting out prison time, however, cannot rehabilitate the physical destruction left in the wake of war crimes or some other crime against humanity. In some instances, nothing can, as victims will have lost their lives as a result of egregious brutality. But even with the loss of precious life, a victim’s family will undoubtedly be altered in a painfully significant way. And for victims who survive with the scars of atrocities, they too will have to live with the difficult aftermath of war crimes. All of which begs an important, and already answered, question: should these victims received reparative compensation of some kind? The State Parties to the ICC, by signing the Rome Statute creating the ICC, answered affirmatively in Article 75: “The Court may make an order directly against a convicted person specifying appropriate reparations.”1
The authorization by State Parties to provide a reparative remedy to victims creates a whole host of implementation issues that I will avoid addressing, save for one. The issue I will focus on stems in part from the general nature of contemporary, alleged war criminals. Most of these alleged perpetrators wield power in nations where their own assets remain commingled with assets stolen from the state.2 This failure to distinguish between personal and state assets might not serve as a substantial obstacle to obtaining funds for reparations if careful records existed to allow investigators to classify these assets separately ex post. Unfortunately, another common characteristic of modern day alleged perpetrators of war crimes involves deceptive or shoddy record keeping.3
Resolving the difficulties presented by this context also raises an ethical dilemma: whose assets should be eligible for reparations? If, for instance, the answer includes revenues obtained illegitimately, the specter of ethical collectivism4 is raised as funds effectively misappropriated from the country will fund reparations. If these funds are ineligible, though, penetrating analysis will remain necessary to partition these assets from those available for reparations. Article 75 does not provide a definitive response to this question. It only offers that the “Court may make an order directly against a convicted person specifying appropriate reparations.”5 The controversial prospect of a state’s stolen assets being distributed as reparations suggests, though, that only assets derived from legitimate activities of the convicted should be awarded to victims. Consequently, I will proceed by assuming the need to differentiate between illegitimately and legitimately obtained assets, notably those rightfully belonging to the state—no easy task.
Section II will closely examine relevant sections of the Rome Statute itself, before briefly offering a guide to distinguishing between the categories of available, and unavailable, assets for reparations. Next, I will propose a judicial mechanism for determining disputes over qualifying assets. I will then finish with concluding remarks.
II. Discussion
A. Principles, and ambiguities, of Article 75.
Not unsurprisingly, Article 75 does not answer many of the salient questions that will necessarily arise when fleshing out and installing a reparations regime.6 Most relevantly, though, this section of the Rome Statute does provide one significant convention and two important tools for structuring reparations. Article 75 also includes built-in protections for stakeholders concerned that the ICC will issue orders without a full and impartial review of the evidence.7
The convention comes from paragraph two, where the treaty explicitly states that the “Court may make an order directly against a convicted person specifying appropriate reparations.”8 That language largely eliminates the possibility that a collective society can directly bear the costs from an order for reparations. Further, as briefly mentioned above, making a country pay for the sins of its unelected leaders would fundamentally alter the obligations of State Parties. Consequently, the ICC is unlikely to foist this additional responsibility upon State Parties through its interpretation of Article 75, which could jeopardize its own legitimacy. Thus, while many distinguished scholars support the proposition that reparations directly from a society are justified because a society indirectly, and thus unlawfully, benefited from the heinous acts of a leader,9 the Rome Statute, by its exclusive focus on “a convicted person,”10 probably does not.
The regime by which the ICC will exact reparations from a convicted perpetrator, however, is left up the Court. As such, the ICC has discretion in crafting “principles related to reparations to, or in respect of, victims, including restitution, compensation, and rehabilitation.”11 In other words, while the Court must articulate its rationale for reparations, it has wide latitude in the details of both the analytics for determining the appropriate level of reparations, in addition to the actual decision concerning the proper reparations for any given case.
The mechanisms for effectively carrying out that task, in addition to deciding other issues incident to a reparations order, come from paragraphs four and five: which call upon State Parties to assist both in the process of determining the appropriate level of reparations, in addition to enforcing any forfeiture orders of the ICC.12 Paragraph four of Article 75 grants the Court the power to enlist support from State Parties pursuant to the different means available in paragraph one of Article 93.13
Taken together, the paragraphs of Article 75 give the ICC a vast canvas to develop a reparations regime. With that in mind, the stage is set for considering how the ICC should, pursuant to Article 75, handle stolen state assets commingled with the personal assets of the convicted.
The introduction attempted to display the difficulty involved with determinations of both asset ownership and origin. The previous paragraphs argued that the ICC will not allow stolen state assets included in reparations—for the simple reason that State Parties will not stand for it (and the ICC’s legitimacy remains more important than ever). Thus, the ICC, after concluding that reparations are owed and following the discovery of available assets to finance those reparations, must answer the following two questions. First, did the convicted personally own a particular asset? If not, because the ICC will interpret Article 75 as a grant of authority to enter a reparations order only against the convicted perpetrator, those assets must be considered unavailable. On the other hand, if the Court finds personal ownership of an asset by the convicted perpetrator, a second, much more vexing inquiry, arises: did the convicted obtain this asset through legal (and/or legitimate) means? The definition of “legal” presents a challenge here precisely because the law, if it even existed on point, may have given the convicted perpetrator’s absolute authority to do as he or she wished.14 Consequently, the ICC must also ask a related question: did the convicted perpetrator obtain assets through internationally accepted norms of contract? While fraught with some ambiguity, failing to inquire also as to this latter transactional question may well cause many assets that were effectively stolen from both individuals and the people of the country to be included as reparations. Even as that makes the reparations process more difficult, and probably ensures that less money will be able available for victims, this second, critical inquiry protects the growing legitimacy of the ICC.
To summarize, that leaves two possibilities if assets are found to be personally owned by a convicted perpetrator. First, the asset class originating from both legal and legitimate, contractual means remains available for reparations. Second, the asset class not originating from legal and/or legitimate, contractual means is unavailable for reparations.
In light of these challenges, I propose a reparations regime to decide, most effectively, the availability of assets. I do so keeping in mind the authority that Article 75 has already delegated to the ICC to accomplish this task.
B. A procedural regime to decide disputes over whether assets qualify for reparations.
One thing is certain: Best practices in financial record keeping must take a dramatic turn for the better in countries where war criminals tend to reside or the ICC will find itself in an endless search of illusory financial records. Despite that reality, I propose an analytical framework that takes into account that difficulty, inter alia. This regime proceeds utilizing the ICC organ especially suited for the task: the trial division.
The trial division of the ICC is uniquely positioned to decide issues of fact. It will have the experience, not simply with these issues generally, but also with the facts surrounding the actual conviction itself. Concerns of judicial expertise and economy, then, support the trial division’s role as the finder of fact. A look to the alternatives15 confirms that conclusion, as the only other possible judicial division within the ICC, the pre-trial division, would face a steeper learning curve, thereby prolonging the proceedings beyond what is necessary. That also assumes, of course, that the appeals division is available for judicial review.
The trial division would proceed by making findings of fact according to the following procedure. First, it would handle questions of personal ownership—which includes concepts of possession. This definition would not deploy a legal doctrine known as constructive possession. Consequently, assets which a convicted person only had the ability to exercise dominion and control over will be excluded from the analysis. The importance of utilizing a narrower definition of possession, particularly one that does not focus on influence, stems in part from a recognition that a top governmental official likely exercises influence over many state assets. I have declined to adopt a collectivist ethic, however—and I believe the ICC will concur in that decision—so that doctrine has no use given the choice to exclude state assets from payment as reparations.
This inquiry of ownership will involve traditional determinations of physical control, including an examination of the other bundle of rights which provide that control.16 Without getting too fixated on these details, though, it is worth noting that the ICC will not be breaking new legal ground in determining ownership of assets. Notably, as mentioned previously, the sparse records that tend to exist when conventional means of proving ownership are absent make this process particularly difficult. After all, why bother with documentation when no practical need to prove ownership is present? Consequently, this analysis will likely turn on evidence of physical control—a form of evidence much easier to obtain than hidden paper records.
That presents an interesting quandary. One possibility includes employing a traditional preponderance of the evidence standard. The expectation here, though, is that evidence will be sparse. But because this process involves divesting a portion of a convicted perpetrator’s assets to victims, I suggest implementation of a strong procedural safeguard to protect the legitimacy of the ICC in this process: requiring prosecutors to bear the burden of proof by a standard of clear and convincing evidence. Undoubtedly, given the evidentiary difficulties in this context,17 that represents a high bar. But if the ICC, a still very young and developing international criminal tribunal, decides to redistribute a convicted perpetrator’s assets to victims, it will face fierce attacks on its legitimacy—especially when little documentation exists. This high bar also protects a State Party from an order that includes assets that should remain with a state.
This first step, then, identifies the pool of potentially available assets for reparations. The second, and final, category of inquiry examines the origins of ownership. More specifically, the trial division should decide, based upon the evidence before it, whether a convicted perpetrator obtained an asset according to international norms of contract—including principles of acceptance, consideration, fraud, and duress, inter alia.18 This transactional analysis will ensure that governmental assets or revenues that were simply captured by a convicted leader, as opposed to those obtained through legitimate means (as exemplified through international norms of contract), will be returned to the true owners—the state itself.19 Forensic accountants will likely prove crucial for the ICC to have any sense of how a convicted perpetrator obtained an asset.
If, as expected, transactional evidence in these situations remains in the control of convicted perpetrators and State Party interveners, a rule placing a small burden of proof on these parties makes good sense—which explains why I structure the procedure regime in this fashion.20 As opposed to the first step of this analysis, this second conjunctive stage requires a convicted perpetrator and/or a State Party intervener to demonstrate a valid transaction by a preponderance of the evidence. Because contractual evidence heavily relies upon paper proof (unlike the first step where proof of ownership will generally turn on showing physical control), which likely resides in the hands of convicted perpetrators, placing the burden on prosecutors would create a perverse incentive to conceal. It is worth emphasizing the character of evidence in these situations: a strong likelihood exists that convicted perpetrators and State Party interveners possess relevant evidence in a manner that makes it unavailable to the public. Ergo, I propose that the convicted perpetrator, and any interveners opposed to the prosecution, should bear the burden of proof here by a preponderance of the evidence.
This standard addresses the proof problem, by forcing those with the evidence to display it (or risk losing their assets). It does so with a lower standard than the ownership examination, though, given the remaining legitimacy and equity concerns. Both of these counsel against setting a high bar for convicted perpetrators and State Party interveners, especially since these parties already have meaningful incentives to present proof.
III. Conclusion
My proposal seeks to strike the right balance between proof problems and equity and legitimacy concerns. It also remains precisely—and solely—focused on identifying the convicted perpetrator’s assets. Undoubtedly, given the expected complications, forensic accounting will be relied upon to a large extent by the trial division. Of course, the limits of forensic accounting will also be exposed. At bottom, though, the ICC is trying to understand minute financial details in locations where accounting follows anything but best practices. This procedural framework attempts to work, most effectively, within these constraints.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Rome Statute of the International Criminal Court, art. 75(2), 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]. ↩
See, e.g., John Edlin, Zimbabwe’s Deadly Cancer, The Toronto Star, April 17, 1988, at H4 (indicating that Nkrumah was virtually penniless in 1957 when he became the leader of the newly independent Ghana, but had amassed millions of dollars and ran up large government debts by the time he was overthrown nine years later in a military coup.). ↩
See Kate Devlin, Hunt for Gadhafi Billions, The Herald (Glasgow), Oct. 22, 2011, at 1 (“Experts fear that many of the assets will be hard to trace.”). ↩
See Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Colum. L. Rev. 689, 690 (2003). ↩
Rome Statute, supra note 1, art. 75(2). ↩
See David Scheffer, The Rome Statute of the International Criminal Court, 93 Am. J. Int’l L. 22, 39 (1999). ↩
See Rome Statute, supra note 1, art. 75(3) (“Before 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.”). ↩
Rome Statute, supra note 1, art. 75(2). ↩
See, e.g., Alfred L. Brophy, Reconsidering Reparations, 81 Ind. L.J. 811, 834-35 (2006). ↩
Rome Statute, supra note 1, art. 75(2). ↩
Id. ↩
Id., art. 75(4)-(5). ↩
Id., art. 75(4). ↩
See Abdelaziz Barrouhi, Gaddafi says Libya should have a head of state, Reuters, Mar. 2, 2000 (Seeing as “the green book” represented the closest thing to any legal authority in pre-civil war Libya, Libyan leader Muammar Gaddafi arguably possessed the legal authority to do as he pleased). ↩
Theoretically, the ICC might be able to appoint some type of a special master to advise it on these sorts of issues, but even then the judges would (presumably) still render an independent judgment. ↩
See generally 73 C.J.S. Property § 43 (explicating the contours of “ownership”). ↩
See Devlin, Rome Statute, supra note 3, at 1. ↩
See, e.g., International Institute for the Unification of Private Law (UNIDROIT), Principles of International Commercial Contracts (1994). Available online. ↩
Naturally, a debate will surround “who” should receive the returned spoils. This answer, in my view, should turn on finding legitimate representatives of a state to steward these resources. ↩
The obvious reason being that if the prosecution can prove ownership through clear and convincing evidence, then the convicted most likely has the evidence to show the origins of ownership. A State also likely possesses key evidence which, for a variety of reasons, it may be reluctant to bring forward. The burden of proof here provides it some incentive to overcome that hesitation. ↩
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. The Statutes of the ICTY and ICTR have some authority for reparations in the form of restitution; however, neither court has ever ordered restitution to be paid.1 Additionally, compensation and other remedies have usually been left up to the jurisdiction of national courts.2 The Rome Statute of the International Criminal Court (ICC) went a step further in this area of law, and has created a somewhat novel question as to the implementation of a reparations regime.
The ICC has broad discretion in the execution of a reparations regime and the form that reparations can take in a given case. Article 75 of the Rome Statute states that “[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”3 Furthermore, under the same provision, the ICC has authority to order reparations through the Victim’s Trust Fund,4 whenever it deems it appropriate. Expanding on the Rome Statute, the Rules of Procedure and Evidence further give the ICC more discretion.5 Rule 97 explains that the ICC can order reparations on an individual or collective basis, or both.6 Rule 98 gives the ICC discretion to use the Victim’s Trust Fund when awarding reparations on an individual basis.7
Given this broad discretion, the ICC should implement a reparations regime that varies by context and by society. There are several factors that should be considered by the ICC when evaluating each situation before it. First, the ICC should consider the particular culture of the society in conflict, and assess the degree of importance traditionally given to individualism or collectivism8. This helps ensure that the society is comfortable with the methods used and that the methods of justice employed are not biased by western points of view. Additionally, it helps legitimize the role the ICC plays in its determination of reparations before the eyes of the victims and the international community. Second, the ICC should consider the point in time of its involvement in the conflict, and evaluate what type of reparations best address the society’s needs at that time. This highlights the varying degrees of ICC involvement and the effect that timing can have on the selection of a most effective and efficient reparations regime. Finally, the ICC should take into account the practicality of certain reparations regimes. Given that the ICC may have more funds available in some cases than in others, the ICC should be practical in what it can hope to achieve through the reparations process.
Part II of this comment will analyze how the ICC’s selection of a reparations regime should vary by context. The situations before the ICC will be unique and will require reparations tailored to a particular conflict and society. I will discuss the non-exclusive factors summarized above as special considerations for the ICC when implementing a reparations regime, and the effects these factors can or should have on the ICC’s decision.9 Part III of this comment will conclude.
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).
Eva Dwertmann, The Reparation System of the International Criminal Court (Martinus Nijhoff, 2010). Brill, Google Books. ↩
Id. ↩
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]. ↩
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). ↩
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”]. ↩
Id. at Rule 97. ↩
Id. at Rule 98. ↩
I use the term “collectivism” and its variations to refer to societies with cultures that tend to value a strong community over individual liberties. ↩
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. ↩
Yael Weitz, Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement, 15 Cardozo J.L. & Gender 357 (2009). Available online. Archived. ↩
Id. ↩
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. ↩
Id. ↩
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). ↩
The Acholi regions of Uganda are some that have experienced many of the abductions by the Lord’s Resistance Army. ↩
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. ↩
Id. ↩
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). ↩
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. ↩
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. ↩
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. ↩
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. ↩
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. ↩
Richard Falk, Reparations, International Law, and Global Justice: A New Frontier, in The Handbook of Reparations 478, 492 (Pablo De Greiff ed., 2008). ↩
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. ↩
Id. at 335-36. ↩
Falk, supra note 24. ↩
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. ↩
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. ↩
Dwertmann, supra note 1, at 121. ↩
Id. ↩
Falk, supra note 24. ↩
Dwertmann, supra note 1, at 127. ↩
Id. ↩
Id. ↩
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 prosecution. These victims should receive individual reparations from the TFV in an aim to allocate resources efficiently and restore society to one that is “functional.”
I. Introduction
Unlike other ad hoc international tribunals, the International Criminal Court (the “ICC”) is unique in its mandate to provide victims’ reparation rights.1 Although Article 75 of the Rome Statute provides for reparations to victims of crimes that fall within the jurisdiction of the ICC, the term “victim” has not be sufficiently defined, and clear guidelines are not set forth in the Statute. It is often difficult to speak of reparations generally, rather than on a case-by-case basis. This is because the nature of the reparation and also the class of beneficiaries often depend on the timing during which reparations are distributed after the conflict, the type of the conflict, and the nature of the society. In a conference held at the Peace Palace in the Hague in May 2011, Judge Sang-Hyun Song, President of the ICC, made clear in his opening remarks that the exact form of future reparations is unknown, since each case and each victim provides unique circumstances that lead to tailored forms of reparations.2 Thus, it is rather difficult to generalize without making a direct application to a specific nation or conflict.
However, my goal is to allocate resources to areas where they can be most effectively utilized. Waiting until after a conflict has completely settled to allocate TFV funds to a museum is not the manner in which we should be expending these resources. Instead, I will argue that we should be assisting individuals immediately to restore their lives so that they can function and contribute to a more productive post-conflict society. Generally, there are two broad groups of victims: (1) those whose perpetrator is a defendant before the ICC and (2) victims who have suffered crimes that are not directly linked to any defendant.3 My argument focuses on individuals whose perpetrator is not being prosecuted by the ICC using the TFV’s “other resources” provision.4 In these instances, the TFV has an independent role and can choose to benefit victims even absent Court-ordered reparations.5 Only very few of the total number of victims receive direct awards against convicted defendants. Most victims receive recourse through the “other resources” mechanism of the TFV, or in other words, from voluntary contributions.6 Thus, my focus is on the victims, which includes families of injured persons, who receive these funds and who have suffered crimes within the Court’s jurisdiction, not only crimes of the convicted defendants.7 Application of this model also depends on the type of conflict. This model is more effective in conflicts that have ended or will end soon as opposed to those where violence is not an imminent threat to the reparations given.
Finally, this model assumes that reparations will be paid immediately following a cessation of hostilities. There are several stages of repair in a post-conflict society, similar to the disarmament, demobilization, and reintegration (“DDR”) framework set forth by the United Nations Integrated Disarmament Demobilization and Reintegration Standards (“IDDRS”) in undergoing peace building and reconstruction. DDR occurs in societies that are insecure and lawless, those that require social services and social cohesion. The first stage consists of conflict and humanitarian relief, the second stage is post-conflict stabilization, the third is the society’s transition and recovery stage, and finally, the peace and development stage.8 My model focuses on the first two early stages of repair: humanitarian relief and post-conflict stabilization. Reparations should aid DDR efforts. In essence, the TFV must provide emergency relief before societies can look forward to long-term economic development and consider such policies as revenue reform, trade and currency reform, financial sector reform, and the like. To experience economic advancement and benefit from sound economic policies, the population must have confidence in the economy. This cannot occur until a sense of justice and loyalty is instilled in as many victims as possible. There are many problems in a post conflict society such as alienation, loss of family, resort to violence, return to combat, gangs, difficulty of reintegration, disease, and post-traumatic stress disorder (PTSD). Reparations should be focused on these areas. Local knowledge is extremely important. For example, DDR could take place in reference to the Lord’s Resistance Army (“LRA”) in Uganda. Reparation directly and individually to these victims may be their only hope to recovery in an effort to contribute to societal healing and functionality, apology, and reconciliation.
II. Categories of Beneficiaries and the TFV
Article 75(1) provides that “the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”9 However, the Statute is vague as to who exactly constitutes a “victim.”10 One possible interpretation is that “victim” includes direct and indirect victims of crimes within the jurisdiction of the ICC.11
Furthermore, Article 79 provides for the establishment of a Trust Fund for Victims (the “ TFV”). The TFV is a depository under Article 79(2) in that the Court can order money and other property collected through fines or forfeitures to be transferred to the TFV, which gathers these funds and distributes them for the benefit of victims. Thus TFV funds can be used for anything deemed beneficial to victims. On the other hand, the TFV is an intermediary under Article 75(2) such that the ICC can directly order a convicted individual to pay reparations to victims and can specify that this award must be made through the TFV. In other words, the TFV is bound to disburse funds only for victims of particular convicted defendants and in the form decided by the court.12 Article 79(2) specifies the distribution of power to determine how funds from finds and forfeitures should be allocated. First, it should be determined by the Court, then by the Trust Fund. The Rome Statute omits any reference to voluntary contributions as one of the TFV’s means of funding. Thus, nothing prohibits the Assembly of States Parties (the “ASP”) from allowing voluntary contributions.13
The TFV fulfills two mandates for victims of crimes under jurisdiction of the ICC: (1) Reparations: implementing Court-ordered reparations awards against a convicted person when directed by the Court to do so, and (2) General Assistance: using voluntary contributions from donors to support victims and their families in situations where the Court is active with physical rehabilitation, material support, and/or psychological rehabilitation. This second role of the TFV is specified in Rule 98(5) of the Rules of Procedure and Evidence,, where “other resources of the Trust Fund may be used for the benefits of victims.” The second mandate is implemented in accordance with Regulation 48, to benefit “victims of crimes as defined in rule 85 of the Rules of Procedure and Evidence, and, where, natural persons are concerned, their families, who have suffered physical, psychological and/or material harm as a result of these crimes.”14
The Rome Statute does not specify the structure of the TFV. Instead, it leaves the details to the ASP.15 The TFV is independent from the Court and is headed by the Executive Director of the Secretariat, Andre Laperriere, and a five member Board of Directors.16 The TFV receives voluntary contributions from states, inter-government organizations, individuals, and corporations. These funds can be awarded at the Fund’s discretion, independent of Court orders.17 Again, it is in the discretion of the ASP to decide when, from whom, the form, and how the funds are used.
Before any contemporary society can be functional, the individuals that compose the society must be healthy enough to work, to obtain education, and to live productive lives on a daily basis. Not all of the victims of genocide, rape, and other crimes against humanity and war crimes will be in a position to identify their perpetrator. Not all identified perpetrators will be prosecuted before the ICC. Perhaps evidentiary concerns may prohibit merited conviction. Because of these various concerns, there are individual victims in dire need of assistance who nonetheless have no recourse since their perpetrators will never be defendants before the ICC. In these common situations, there must be a mechanism to help alleviate the dire circumstances in which these victims find themselves. This is where the TFV’s “other resources” mechanism comes in. According to the Executive Director of the Secretariat of the Trust Fund, Pieter de Baan, “The main objective of the Trust Fund for Victims is to achieve ‘justice and rehabilitation’ for the most vulnerable victims of international crimes and to safeguard their dignity and hopes.”18
III. Needs of Beneficiaries
A. Need is an important factor to consider when allocating TFV funds
The TFV funds must be allocated with the goal of making individuals as healthy as possible so that they can then work and operate productively in a functional society. The term “functional” refers to a baseline of living whereby individuals can be self-supporting and live painlessly from day to day in order to be capable of working and being educated. With the aid of the TFV, we must provide emergency relief before we can look forward to long-term economic development. Priority should be given to the “rehabilitation” component of Article 75(1).19 This includes, for example, reparations aimed at decreasing disease transmission, treating psychological disorders from alienation and loss of family, and caring for orphans, survivors, victims of rape and sexual violence, and those left in poverty. Other allocations of reparations can be very difficult. For example, restitution in the form of property, employment, and non-monetary losses may counterproductively return the victim back to the discrimination previously suffered due to oppression and harassment from the aggressor group.
Individual need should be considered when allocating TFV funds. The problem with neglecting to do so is that those deemed “unworthy victims” tend to receive inappropriately limited resources.20 One scholar has proposed potential theoretical foundations of the TFV.21 One rationale for the TFV is that it is a “public charity.” This provides for moral obligation to suffering victims whereby need is the determining variable in considering reparation. Need and urgency of the victim is emphasized under this rationale in an effort to halt pain, suffering, and re-victimization.22 Because the TFV accepts resources and voluntary contributions from generous donors and private individuals, this suggests that need should matter.23
Again, the primary focus should be on the rehabilitation of victims by focusing on psychological, physical and emotional needs. As I mentioned before, certain types of reparations are more relevant to this class of victims than others.24 For example, restitution in the form of property, liberty, and employment may not be sustainable at the humanitarian aid and post-conflict stabilization stages of repair and may actually turn out to be more discriminatory to the victim. Similarly, satisfaction in the form of truth-telling, official recognition and apology, though often less costly, may not be genuine and may be difficult to force upon an ethnic population that experiences intense hatred, as was the case with Bosnians and Serbs. The same goes for guarantees of non-repetition.
Thus, the most urgent and plausible form of reparation at this stage is rehabilitation in the form of medical and psychological care, as well as legal and social services. For example, although all genocide victims reparation, the effective distribution of reparations is arguably more urgent for victims of rape than for other victims. Using Rwanda as an illustration, females are frequently five times more likely than male victims to be widowed or rendered head of household and yet have fewer adequate resources.25 “Women suffer not just from the mental and physical harm that was inflicted upon them, but from increasing poverty and dependency on their communities.”26 Thus, they are more vulnerable and more in need of financial support.27 The United Nations DDR framework re-emphasizes this point, stating that women, in becoming heads of households, and dealing with alternative coping strategies, are “more vulnerable to sexual and gender-based violence and poverty.”28
Furthermore, many of these women become infected with HIV and suffer from AIDS. In the Rwanda example, for instance, seventy percent of the raped women are HIV positive, and a majority of these women will eventually die from AIDS.29 Although the ICC does not have jurisdiction over the Rwandan genocide and cannot give reparations to Rwandan rape victims, this example illustrates the types of people we need to be compensating from the TFV. Similarly, Paolina Massidda, Principal Counsel of the Office of the Public Counsel for Victims of the ICC, stated that it is imperative to recognize the real needs of victims. This depends on the type of victim; for example, victims of gender crimes or victims of economic crimes. She explained that some national courts consider the moral harm that gender crime victims suffer and/or give priority to certain types of victims, such as the elderly or those affected by HIV/AIDS.30 Indeed, the TFV has done a wonderful job focusing on this very area in its recent programme launched in the Central African Republic. Despite the TFV’s limited resources, this campaign focused on victims of sexual violence and the fight against AIDS, which followed a need assessment that the TFV carried out in 2009.31 The TFV has targeted vulnerable groups thus far, such as victims of rape, the disfigured, children and the elderly.32 This suggests that reparations are being awarded to victims on the basis of humanitarian needs, as I argue they should be.
Moreover, the language of the Procedures of Rules and Evidence allow such an interpretation of reparations being allocated to individuals in urgent need. The language of Rule 97 specifies how reparations are to be assessed. Rule 97(1) provides: “Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.” This language makes room to contemplate taking need into account, such as scope or extent of damage, loss or injury. Furthermore, experts can be appointed, under Rule 97(2), to facilitate the process of determining the scope of damage and injury to certain victims.
Furthermore, there are no practical impediments to assigning individual reparations to those with the most urgent need. The method of individual application to get access to the TFV is readily available to applicants on the ICC’s website.33 The ASP agreed during its fourth meeting that the TFV Board was empowered to “provide physical or psychological rehabilitation or material support for the benefit of victims and their families.” The board must inform the relevant Chamber of the Court of its conclusion to undertake specified activities, and the intended activities may not pre-determine any issue to be determined by the Court, violate the presumption of innocence, or be prejudicial to or inconsistent with the rights of the accused and affair and impartial trial.34 Claims need to be evaluated objectively, with the help of experts, and quickly. The speed to access the TFV is key.
For example, victims from Uganda, Darfur, and the Democratic Republic of Congo (DRC) may seek voluntary contributions from the fund, or the Board may decide to provide rehabilitation and compensation for victims during the early stages of a case, subject to the veto of the Court.35 In reaction to Libyan leader Gaddafi’s death, Ravina Shamdasani, spokeswoman for the United Nations High Commission for Human Rights, said, “This is not a time for revenge, but for healing and rebuilding.”36 If the aim is healing and rebuilding, then the victims must be given the care and attention necessary for basic needs.
B. Objections to providing individual reparations to beneficiaries in need
Some may argue that first, the process of identifying who constitutes a true victim and deserves individual reparation may be difficult, complex, and time-intensive. They may also point out that resources are so limited that collective reparation may be more appropriate. Furthermore, these individuals may posit that individual reparation is divisive and unfair to those who do not receive what they lost, and in cases where some receive more than others. The thinking goes that symbolic reparations therefore alleviate these two concerns due to increased speed, efficiency, and fairness inherent in collective reparation awards.
C. Shortcomings of objections and reasons why individual reparations provide a better allocation of resources
First of all, the process is not so taxing. The current method for victims to recover from the TFV is quite simplified and easy to retrieve on the website. Victims can apply for reparations by filing a written application with the Registry, which must contain the information laid down in Rule 94 of the Rules of Procedure and Evidence,. The Victims Participation and Reparation Section has prepared standard forms to make this easier for victims. When submitting an application using the standard form, victims may request participation, reparations, or both.37 The standard form provides a compilation of basic and simplified questions regarding the crime and identity of the victim, posed in an easy-to-read manner that greatly facilitates recovery for the individual.
A lower standard of proof for victims also facilitates recovery. In reparation proceedings, the standard of proof is lower than the proof beyond a reasonable doubt standard. A claim of redress is similar to a civil claim whereby the relevant standard is usually preponderance of the evidence, balance of probabilities, or “conviction intime.” It is unjust to apply a high standard of proof given that victims may be struggling with refugee status, homelessness, and lacking medical care.38 Paolina Massidda has stated that the United Nations Claims Commission, for example, established a different standard of proof for individuals to address the concern that some individuals will not be able to prove ownership or provide evidence of loss. Furthermore, due to cultural concerns and associated social stigma, lower evidentiary standards for rape and torture are permitted.39
As Massidda has suggested, an objective test must be developed to determine who is a victim eligible to receive reparations, and it ought to take into account not only the law, but also the experiences and real needs of victims.40 Sampling methods, representation and other innovative mechanisms can assist in achieving at least some redress in every case when the number of claimants is too large to allow individualized hearings and determinations of reparations.41 Moreover, expert assistance can be fully utilized. Rule 97(2) of the Rules of Procedure and Evidence, gives authority to allow experts to determine the scope of reparation and injury of victims.42 Victims are allowed to observe expert reports. Thus, the drafters clearly intended to make this process as individualized as possible, to serve the needs of individuals, and to see that justice is served.
The ASP has created a process to oversee the TFV that is quite operational. It established a Board of Directors whose duties include consulting with victims, their families, and experts about potential projects to pursue. Also, the Board determines the activities and projects of the TFV and how to allocate its property and money. Further, it approves voluntary contributions to match the goals of the TFV. In 2004, the ASP formed a Secretariat for the TFV, which carries out administrative functions. This greatly facilitated the process and improved efficiency in approving contributions, identifying victims, distributing awards, and overseeing awards administered by organizations. The Secretariat also aids the Board in managing the TFV.43 Thus, the process of administering individual awards to victims in need is really not so taxing and also not currently as complex as it used to be.
Moreover, resources are not so limited. As of 2007, voluntary contributions received by the TFV were €2,370,000. Governments and organizations have provided most of the contributions. Initially, contributions came almost exclusively from celebrities like Janeane Garofalo and Susan Sarandon’s charitable foundation. While only Namibia contributed in the early years, Belgium, Finland, and France contributed at least €100,000 as of 2007.44 Furthermore, the budget for the first TFV campaign in the Central African Republic focusing on the fight against AIDS is 600,000 euros. The official website of the Trust Fund for Victims has recently announced a steady increase in the Fund’s income. For instance, the United Kingdom donated half a million British pounds in March 2011. Over 80,000 beneficiaries in northern Uganda and the DRC receive assistance from the TFV. Earmarked voluntary contributions by Norway, Finland and Germany also benefit victims of sexual and gender based violence.45 In 2010, the Netherlands contributed 57,000 US Dollars to the TFV, earmarked for child victims. In August 2011, the Netherlands announced another voluntary contribution of €250,000 to the TFV. This contribution will be devoted to the TFV’s rehabilitation mandate.46 Moreover, the resources available to the TFV significantly increased recently when the Swedish International Development Agency (Sida) announced a voluntary contribution of 10 million Swedish crowns to the TFV, which is approximately 1.1 million Euros. This donation by the Swedish government is the largest single contribution in the history of the Fund. The contribution is not earmarked or restricted, allowing flexibility, and it sets a new precedent for future donors.47 Furthermore, victims’ expectations must be managed so as to make clear that the TFV does not have unlimited funds that will reach all needs.
Following up on this managing expectations point, to address the divisiveness concern, in its operations and campaigns, the TFV must make a clear disclaimer to applications and NGOs that the purpose of the TFV is not to make victims in war-ravished societies one hundred percent whole again. The goal, instead, is to save as many lives as possible, to restore society, and to put individuals in a position to carry on functional lives from day-to-day. Only in this way can the society start building itself. Again, victim’s expectations must somehow be managed in this respect.
Finally, collective reparations would not be adequate to address many of the concerns that individual reparations to victims in urgent need would. For instance, collective reparations would not be effective in certain conflicts where hostility and ongoing violence result in the bombing of monuments or museums that represent or commemorate the suffering party. More specifically, certain types of collective reparations would not effectively allocate resources. For example, at the humanitarian relief stage or post-conflict stabilization stage of repair, a museum in post-conflict Bosnia would likely have been bombed by the Serbs due to ongoing ethnic conflict and inability to reconcile. Other types of collective reparations, on the other hand, could be more effective in a post-conflict society, such as providing for hospitals and health care, because this would likely contribute to the functionality of victims suffering from PTSD and other physical trauma. Other effective reparations might include education, orphan centers, and medical training programs depending on the conflict case.
Individual reparations are preferable to collective reparations in this context because justice must first be achieved before peace can be championed. Reparations must first be given to individuals in order to create some basis for reconciliation.48 Human nature makes it likely that victims will not feel vindicated without individual awards. Apologies and reconciliation must be heartfelt and sincere rather than forced. These individualistic types of reparations are essential for social harmony and peace. According to Mia Swart, Assistant Professor of public international law at Leiden University, who also recommends individual reparations, collective reparations may create a feeling among victims that governments are escaping the real issue of reparation.49 For example, collective reparations such as services or infrastructure are not really dedicated to the victimized segment of society and may instead even provide benefit to perpetrators. Thus, as was the case in South Africa, limiting reparations to those distributed in a collective way may give victims the unfortunate feeling that the real issue of providing reparations to individuals in dire need is being avoided.50
Although Keller asserts that the “ TFV should consider favoring collective awards to a broader class of victims,”51 in order to reach more victims, I argue that not putting resources in the most effective places may result in an inefficient allocation and waste. It is victims who are sick, depressed, and consequently unable to work and provide for themselves that are in most dire need. Hospitals and schools could help them, but who would run, maintain and support them when the individuals composing the society are in such bad shape and victims are on the streets suffering? We need individuals to be as physically and as emotionally healthy as possible before they can work and effectively support the operations of institutions such as hospitals and schools and therefore adequately absorb knowledge. I am not arguing that symbolic reparations should never be used. However, as I mentioned before, the beneficiaries and method of allocation should depend on the timing and context of each particular conflict. At the two early stages of repair I discuss, individual reparations will often be more optimal.
Furthermore, symbolic reparations will eventually be inevitable and will result from other sources outside of the TFV. For example. NGOs, governments, and private donors, when the time is right, will provide contributions for the purpose of building commemorative museums. When society and individuals can contribute funds and support the operations, individuals will be in a position to pursue occupations such as doctors and teachers within the education and medical forums. However, when lives are in shambles and society’s morale is shattered, the TFV must contribute to building lives so that they can then contribute to the economy. The TFV should not be used to fix the economy of a region. Instead, the TFV is a unique opportunity and mechanism to attempt to make individuals more functional on a personal level.
IV. Why should the ICC be an institution administering this aid?
Some may argue that the functions of social services should be carried out by the United Nations and other organizations, not the ICC. First of all, TFV funds can be distributed independent of Court orders. Thus, it is not actually the Court making these awards, particularly if we are taking about TFV funds through its “other resources” mechanism from voluntary contributions under Rule 98(5). Second, I am not arguing that the social services role should be primarily given to the ICC as opposed to other organizations. Obviously, some of these services such as treating PTSD are quite costly, and it is impossible for the TFV to carry this burden on its own. The TFV must work in conjunction with other organizations and the United Nations to administer relief. More partnerships lead to more effective aid and care.
Furthermore, it is plausible for the ICC to be involved in emergency relief and humanitarian aid because it is not an ordinary court. It is an extremely unique international tribunal, quite different from domestic courts, whose mandate differs from local courts and whose boundaries are still opening doors to interpretation, for the first time in history, as the first cases before the ICC draw to a close. This is a unique opportunity for interpreters to capitalize on, recognize the areas of need where resources require efficient allocation, and shape the ICC and the TFV in the most appropriate way. The ICC should expand its relief base to millions of victims who have never seen help or promise before and whose perpetrators will never be prosecuted, because they may never benefit from any other recourse. A small number of total defendants are undergoing prosecution but yet they damaged thousands of lives, tearing apart families, and conducting mass killings and rapes. Thus, it is implausible to function as a domestic court would and rely on a defendant’s resources to provide recourse to this mass amount of victims.
Moreover, the ICC reparations scheme can be analogized to the damages scheme that is currently in place in many national courts. Awarding damages are an essential function of courts. Reparations are comparable to damages in the sense that victims are being compensated or given restitution in an effort to be made whole again. In a domestic tort claim trial, for example, a victim may be awarded damages for physical injury. This is deemed to be recovery of human capital. What the ICC is doing here in regards to emergency relief or medical and psychological care parallels this recovery of human capital. Victims are being awarded for the trauma suffered or loss of consortium, in the domestic context, due to criminal actions. Thus, although the ICC reparations scheme expands the term “damages” as it is known in the national court context, it is not such an exotic idea to expand it in the unique venue of the ICC so as to be implausible.
The TFV’s purpose is to compensate a large range of victims. As noted on the TFV’s website and mission, “Solutions cannot be imported; peace has to be built by the people themselves. Countries emerging from long-term violent conflict are troubled societies that may develop destructive social and political patterns. In such cases, fundamental psychological adjustments in individual and group identity—aided by reconstruction processes—are essential to reconciliation. If we do not get it right through justice, reparations and rehabilitation initiatives, we will not be able to secure peace, security and development for future generations.”52 The TFV operates under this purpose and exists, accepting voluntary contributions, so it can provide to a broader class of victims.
In conclusion, we can see from the TFV’s efforts to date that resources have been allocated, as I argue, to communities and conflict-affected areas that need emergency and health relief. For example, the TFV has committed 600,000 Euros to combat AIDS in the Central African Republic this year.
The TFV currently has 34 approved projects. These projects embody three approaches to general assistance: physical rehabilitation, psychological rehabilitation, and material support.53 For example, the TFV has provided medical treatment for victims with disfiguring injuries to reduce the stigma they face and to facilitate their reintegration, rehabilitated and reintegrated child soldiers, including girl combatants and abductees, through education, family reunification, foster placement, and vocational training. Further the TFV has improved access to reproductive health services, counseling, and psychosocial support for survivors of rape. It provides assistance to improve quality of life through agricultural and micro-credit initiatives, promoting radio for justice, and acknowledging atrocities and promoting reconciliation through projects that bring community members together to express their trauma and build solutions.54 To date, the TFV has provided physical and psycho-social rehabilitation services to over 80,000 victims in northern Uganda and the DRC.55 Thus, we can see that the Board of Directors and Secretariat of the TFV has indeed deemed such allocations appropriate and necessary.
V. Conclusion
Due in part to the ICC’s unique mandate, the Court has an exceptional opportunity to shape victim relief in an effective and meaningful way. Although it may not be conventional for a court to play such a role, the sheer volume of victims suggests that a different approach must be taken. It must be accepted that all victims cannot be compensated adequately. Collective reparations, although sometimes helpful, cannot be solely relied upon. Instead, the ICC and TFV must innovatively seek to allocate resources to direct and indirect victims in most urgent need. Physical and psychological conditions resulting from war must be treated with priority in the humanitarian relief and post-conflict stabilization stages. By contributing to a foundation by combating an individual’s vulnerability to pain and suffering, the TFV can be more effective in slowly enabling a society to move forward through transition and recovery and then through the peace and development stages. Concerns about individual evaluation of victims with the help of experts and concerns of time and complex processes can and have been overcome, as seen by the TFV’s current campaigns and projects. Therefore, the TFV’s “other resources” mechanism can indeed and must be used to contribute to functionality.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Dinah L. Shelton & Thordis Ingadottir, The ICC Reparations to Victims of Crimes and the Trust Fund, Recommendations for the Court Rules of Procedure and Evidence (prepared for the Center on International Cooperation at NYU) (1999), available online. ↩
Reparations at the International Criminal Court: Issues and Challenges, Redress Conference Report (The Hague, 12 May 2011), available online at 5. ↩
Rule 98 of the Code of Procedures refers to awards to victims made directly against the convicted person, while Rules 98(2)-(4) provide for ways to allocate or distribute TFV funds for reparations awards by the ICC to victims. Rule 98(5) refers to awards to victims who suffered crimes that are not directly linked to a defendant. See Carla Ferstman, The Reparation Regime of the International Criminal Court: Practical Considerations, 17 Leiden J. Int’l L. 667, 675-76 (2002). ↩
Rule 98(5) provides that the “other resources of the TFV may be used for the benefit of victims subject to the provisions of Article 79.” See Ferstman at 676. See also Linda M. Keller, Seeking Justice at the International Criminal Court: Victims’ Reparations, 29 T. Jefferson L. Rev. 189, 198 (2006-2007), footnote 45, “Rule 98 of Rules of Procedure and Evidence, provides that TFV can use ‘other resources’ for the benefit of victims.” ↩
Keller, supra note 4, at 198. ↩
Id. at 203. ↩
Id. at 190. ↩
Post Conflict Stabilization, Peace-building and Recovery Frameworks, United Nations Disarmament, Demobilization, and Reintegration Resource Center, at IDDRS Framework Section 4, available online. ↩
Ferstman, supra note 3, at 669. ↩
Id. at 674. ↩
Shelton, supra note 1, at Part III: Conclusions. ↩
Ingadottir, supra note 1, at Part II: The Trust Fund. ↩
Id. at Part II: Voluntary Contributions. ↩
The Two Roles of the TFV, available online. ↩
Shelton, supra note 1, at Prologue; See also Ferstman, supra note 3, at 676, footnote 31, which indicates that Article 79(3) gives ASP the responsibility for developing the criteria for management of the TFV. ↩
Frédéric Mégret, Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons from Domestic Compensation Schemes, 36 Brook. J. Int’l L. 123, 125 (2010). ↩
Id. at 126. ↩
Trust Fund for Victims Launches Programme in the Central African Republic, June 1, 2011, at News, available online. ↩
Reparations at the International Criminal Court, supra note 2, at 5. ↩
Keller, supra note 4, at 209-10 (Keller defines “unworthy victims” as victims seen as undeserving of reparations, or at least certain types of reparation. For example, a wealthy landowner who lost some land may receive the limited resources, even though he maintains a higher standard of living than other victims). ↩
Mégret, supra note 16, at 29-31. ↩
Id. ↩
Id. ↩
Keller, supra note 4, at 194, (lists the different types of reparations I discuss here). ↩
Yael Weitz, Rwandan Genocide: Taking Notes from the Holocaust Reparations Movement, 15 Cardozo J.L. & Gender 357, 369-70 (2009). ↩
Id. ↩
Id. ↩
Post-Conflict Stabilization, supra note 8, at Section 3.2. ↩
Weitz, supra note 25, at 370. ↩
Reparations at the International Criminal Court, supra note 2, at 6. ↩
Trust Fund for Victims Launches Programme, supra note 18. ↩
Mégret, supra note 16, at 31. ↩
Forms, available online. ↩
Coalition for the International Criminal Court: Trust Fund for Victims, available online. ↩
Keller, supra note 4, at 202-03. ↩
Libya’s NTC Orders Probe into Gaddafi’s Killing, Al Jazeera, Oct. 24, 2001, available online. ↩
Reparation for Victims, available online. ↩
Shelton, supra note 1, at Part II: Recommendations for the Processing of Claims under the Rome Statute. ↩
Reparations at the International Criminal Court, supra note 2, at 6. ↩
Id. ↩
Shelton, supra note 1, at Part I: Conclusions. ↩
Ferstman, supra note 3, at 675. ↩
Keller, supra note 4, at 198-99. ↩
Id. at 200. ↩
Pieter de Baan, TFV Sixth Programme Progress Report Summer 2011, Aug. 22, 2011, at News, available online. ↩
The Netherlands Contributes €250,000 to the Trust Fund for Victims, Aug. 24, 2011, at News, available online. ↩
Swedish Donation is Significant Boost to Resources Trust Fund for Victims, Dec. 19, 2011, at News, available online. ↩
Keller, supra note 4, at 190 footnote 7; see also Pablo de Greiff and Marieke Wierda, “The Trust Fund for Victims of the International Criminal Court: Between Possibilities and Constraints” in Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations by Marc Bossuyt, Paul Lemmens, Koen de Feyter, and Stephan Parmentier (Antwerp: Intersentia, 2006) (footnote 7), asserting that the TFV “reflects a growing international consensus that reparations play an important role in achieving justice for victims.” ↩
Mia Swart, Reparations at the International Criminal Court, supra note 2, at 8. ↩
Id. ↩
Keller, supra note 4, at 191. ↩
The Two Roles of the TFV, supra note 14. ↩
Id. ↩
Id. ↩
Swedish Donation is Significant Boost, supra note 47. ↩
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, strengthen domestic systems, allow victim involvement, and will have a high degree of flexibility in adapting to the context-specific needs of different situations. There are several different examples of this principle in action, which will differ greatly depending on the given situation.
Introduction
When implementing reparations schemes for victims of crimes under the jurisdiction of the International Criminal Court (ICC), it is important to consider the need to restore and rebuild a broken society. In this respect, broad reparations schemes to communities are often appropriate. The Victims Trust Fund (VTF) is well positioned to administer reparations which provide rehabilitation after conflict to a large number of victims. In implementing these schemes, the VTF would be well served by working in conjunction with domestic agencies, in a manner similar to the that of complementarity in the criminal prosecution context. Such cooperation may achieve many benefits, such as conserving resources, strengthening domestic systems, allowing opportunities for victim involvement, and providing flexibility to work in different situations. With this structure in mind, this comment offers several different examples, by no means exhaustive, which illustrate such benefits. These include reparations schemes which create financial organizations, those which provide practical service or aid, and those which establish symbolic reparations to victims. While each of these provides only an example which must be adapted to the differing needs of different situations, they can all be administered by the VTF in conjunction with domestic agencies.
I. The ICC’s prerogatives for rehabilitative justice should be pursued through the VTF
Article 75(1) of the Rome Statute states that “the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”1 Rehabilitative justice may be understood as a form of reparations which focuses on the restoration of communities or groups of people who have been victims of grave crimes. Rather than punishing perpetrators or returning to victims what was lost, rehabilitative justice aims to rebuild by providing the groundwork for peace and stability. This may be in the form of psychological healing, reconciliation between groups hostile to one another, or fixing structures or organizations that have been ravaged by war. By seeking to heal broken people and societies, rehabilitative justice aims to provide lasting peace and prevent future atrocities from occurring. Absent this effort to repair society, the danger of repeated perpetrations may increase, either from the original offending party or in the form of civil unrest from dissatisfied people. In reparations schemes, therefore, rehabilitative justice is extremely important to the ICC’s mandate of ending impunity by perpetrators of war crimes and of deterring future atrocities.2 It is also a highly practical way of recognizing a society’s suffering and providing tangible support as a remedy.
Because rehabilitative justice focuses on rebuilding communities on a larger scale, collective awards are often an integral part of the remedial scheme. Collective reparations are funds or other support which are given to a community or group of people, rather than to individual victims, in recognition of their loss. While direct victims of criminal perpetrators are generally the target of these schemes, a broader segment of society may also receive direct or indirect benefits from collective awards.
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:
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).
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]. ↩
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”. ↩
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. ↩
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). ↩
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). ↩
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. ↩
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). ↩
Rome Statute, supra note 1, at art. 79(1). ↩
Rome Statute, supra note 1, at art. 79(3). ↩
Rome Statute, supra note 1, at art. 75(2). ↩
Rules of Procedure and Evidence, supra note 5. ↩
Id. ↩
See Rome Statute, supra note 1, Preamble. ↩
The ICC is stated to be a court of “last resort.” See International Criminal Court, ICC at a Glance, available online. ↩
See Rome Statute, supra note 1, at art. 17. ↩
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). ↩
Rules of Procedure and Evidence, supra note 11, at Rule 98(5). ↩
See Keller, supra note 16, at 191. ↩
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). ↩
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). ↩
See generally Bernstein, supra note 19. ↩
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. ↩
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). ↩
See, e.g., Antkowiak, supra note 5; Mégret, supra note 23, at 47. ↩
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 ICC would serve as a guide that would ensure that the process of determining reparations is fair and properly inclusive.
Introduction
To do reparations most effectively, the International Criminal Court should seek to guide a victim-centered process of restorative justice rather than make ex ante decisions about the form or recipients of reparations. In practice, this would mean that the ICC would move to establish reparations committees in the areas where crimes have occurred within the Court’s jurisdiction. These reparations committees would do all of the heavy lifting associated with making the determinations of who would receive reparations, and in what form. Rather than looking at this as an abdication of any responsibility by the ICC, one should see this as an affirmative division of labor by the Court.
The ICC may be remote from the conflicts and societies that gave rise to the crimes committed. This means that there will be social, cultural and political nuances that the ICC will not be able to immediately grasp. There are dangers in ignoring these nuances, and the ICC can minimize this danger by putting more decision-making power in the hands of locals.
That is not to say that the ICC will take any sort of hands-off approach. The ICC would be very involved in every step of the process. Firstly, the ICC would create general guidelines that would dictate the composition of reparations committees. Secondly, the ICC would be involved in the activities of the committees. Third, the ICC would make initial determinations regarding the involvement of victims and the definition of affected groups. Finally, the ICC would ratify any decisions made by the reparations committees before disbursing funds from the Victims’ Trust Fund or other sources.
This paper first details the limitations of the ICC in terms of making decisions regarding the final form and extent of reparations to victims. The goal in exploring these limitations is to create a principled basis for setting up the division of labor in the second part of this paper. This second part will explore the types of guidance that the ICC will offer to reparations committees. These guidelines will not only conform to the provisions of the Rome Statute, but will seek a goal of victim-centered, restorative justice by creating rules regarding the involvement of victims, defining groups and balancing forward-looking and backward-looking concerns.
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).
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]. ↩
Id., art. 79. ↩
Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 Colum. L. Rev. 689 (2003). ↩
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. ↩
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. ↩
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). ↩
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). ↩
See Id. at 282 (noting that the process used to provide redress greatly influences the outcomes achieved). ↩
Antkowiak, supra note 7 (pointing out that without government involvement, the effectiveness of reparations is curtailed). ↩
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. ↩
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). ↩
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). ↩
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. ↩
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. ↩
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). ↩
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). ↩
Whether or not done as part of the procedures set forth in the Rome Statute. ↩
Rome Statute, supra note 1, art. 75(3). ↩
Id. ↩
Id. ↩
See Antkowiak and others. ↩
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. ↩
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). ↩
Id. ↩
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 parties in those crimes. However, the Court must not create monuments and museums before a narrative has emerged as these spaces might become a rallying point which further divide a community.
Introduction
After mass crimes have occurred, it is important for a community to create a narrative which identifies the victims, perpetrators and cause of the crimes. A coherent, shared narrative ends the cycle of blame for past wrongs; disagreement as to the nature or occurrence of crimes might encourage or continue conflict. The International Criminal Court (ICC) should utilize monuments and museums as a form of collective reparations once a narrative has emerged.1 Monuments and museums can be used to bolster a narrative by presenting specific events and a coherent narrative to viewers. Although monuments and museums do not address the immediate needs of victims after mass atrocities, such sites restore the dignity and status of victims within the community and can serve as a first line of defense against the next generation of leaders who might seek to use past animosity to rise to power.
The ICC must not demand the creation of monuments and museums before a narrative has emerged. To determine if a coherent, shared 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 role of the parties in those crimes. The slow pace at which the Court determines cases could in fact benefit the tribunal by allowing time for the efforts of the Court to investigate and inform parties to effect the beliefs within parties to a conflict. However, if the Court imposes a narrative on parties, such might heighten division within a community as parties feel blamed for crimes for which they do not feel responsible. In such instances, monuments and museums could further divide a community or even encourage open conflict. Monuments serve to not only restore the dignity of victims of crimes, but also to end the cycle of blame for crimes which enables leaders to rely on past history to justify future aggression.
I. Defining a Coherent, Shared Narrative
Under Article 75 of the Rome Statute, the International Criminal Court is empowered to demand reparations from criminal violators to assist victims with rebuilding after mass atrocities and to enable victims to reintegrate into society.2 The Court has not yet determined what form reparations will take; however, the Court appears to have broad power to demand various methods which serve “the restitution, compensation and rehabilitation” of victims.3 Monuments and museums can be created to correct the wrongs committed by a violator and can be an effective tool to return dignity to those who have been harmed by mass atrocities. Moreover, monuments and museums can end the cycle of blame for crimes therefore preventing future leaders from using past crimes to justify future aggression. Monuments and museums can promote the restitution, compensation and rehabilitation of victims, therefore, the Court is empowered to create these sites.4
It is important to determine under what circumstances, then, monuments and museums can promote the restitution, compensation and rehabilitation of victims. If monuments and museums are to be effective, the parties to a conflict must come to a coherent, shared understanding of the facts being memorialized. For a narrative to have value, it must be coherent; a narrative which misstates facts or contains bias will be overcome by anyone who seeks to challenge it. Moreover, the narrative must be shared by the parties to a conflict; a one-sided narrative will be ignored by other parties to the crimes. To determine if a shared 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 parties in those crimes. While there will be individuals who deny or disbelieve the facts surrounding crimes, the Court must look to the majority of opinion to bind the greatest number of members within each group. Once parties have agreed upon a coherent, shared narrative, the Court may order the creation of monuments and museums to memorialize this narrative.
It is important to determine what is meant by a coherent narrative. A coherent narrative is a narrative which is factually accurate and includes all parties to a conflict. There is little value in a narrative which is agreeable to all parties, but which is clearly contradicted by fact or a narrative which is biased toward one party as future generations will not feel bound by that narrative. As an example, it would be misleading to spread blame for aggression across all groups in a conflict if one group appears to have been the primary aggressor. When future generations can point to inaccuracy in the narrative, they are free to reinterpret the role of their group in past crimes—and it is likely that they will place blame for past crimes on other groups. To ensure that the narrative which monuments and museums seek to communicate is lasting, it is important that the narrative be coherent. Lastly, one must note that a misleading narrative which mischaracterizes members of a certain group is unlikely to become a shared narrative.
A shared narrative is a narrative accepted by the majority of members within the parties to a conflict. The parties must agree to their role in the conflict and recognize the major factual events of the crimes which occurred. A shared narrative may be as simple as an acceptance of responsibility for crimes which occurred and statements acknowledging the horrors of those acts. Moreover, instances where parties cooperate with the Court as well as official statements acknowledging crimes can be seen as evidence of the emergence of a shared narrative.5 While it is likely that there will be individuals who deny or disbelieve the narrative presented by the majority within the parties to a conflict, the Court can rely on the narrative shared by the majority within the parties to a conflict to demonstrate a sufficient shared narrative. Lastly, by meeting with leaders within the parties to a conflict or even through sociological study of the region, the Court can determine if a shared narrative has emerged.
Although the Court cannot impose a narrative on the parties, it can have an active role in fostering the emergence of a narrative within a community. The Court can use the significant amount of time during which it investigates and prosecutes crimes to raise awareness within the affected community—as has been done by the International Criminal Tribunal for the Former Yugoslavia. Through the distribution of literature, a presence in the media and the hosting of conferences, the Court can inform parties to a conflict and therefore encourage the emergence of a shared narrative.
II. Monuments and Museums as Reparations
Only a coherent, shared narrative can end the cycle of blame which might be used to fuel future conflicts. The cycle of blame refers to the tendency of closely situated groups to pass blame for different social, economic and political ills onto members of another group. Oftentimes, differing groups who have lived in close proximity for generations have a narrative of past wrongs which presents the other groups as aggressors. For example, in the former Yugoslavia, parties on all sides of the conflict maintained a narrative of victimization by the other parties and justified recent crimes as retribution for past crimes by other parties. Such a cycle is dangerous because it encourages aggression masked as retribution and presents a threat to the stability of a region. It is important to memorialize the coherent, shared narrative of the parties to mass crimes in the form of monuments and museums to ensure that future generations can witness those findings. Once the parties to mass crimes have formed a coherent, shared narrative, the Court can use monuments and museums to combat the cycle of blame for past crimes wherein past crimes are used to justify future aggression by preserving the facts for future generations against the efforts of leaders seeking to use conflict to enhance their power.
Monuments and museums also bring restorative justice to victims and may be used as a form of reparations which restores the status of victims after mass atrocities. Although a monetary settlement also serves to restore victims, monuments and museums can publicly communicate a shared narrative to a whole community about those who were lost. Victims of mass crimes suffer a loss of status in their community; criminal violators seek to minimize the worth of victims. Monuments and museums might be seen as a way for victims to assert their worth and to restore their status as valuable members of a community. Moreover, victims of mass crimes have been found to express satisfaction from processes which offer little monetary compensation if these processes show a respect for the human losses which resulted from the crimes.6 As such, victims of mass crimes may in some circumstances prefer lesser monetary compensation when placed alongside monuments and museums which recognize their worth rather than the greatest settlement. Money compensation may fall short of the desires of victims of mass atrocities and monuments and museums may be necessary to make victims feel whole.
Monuments and museums also enable the Court to demand respect for the many victims of crimes who cannot be identified. Whereas a money judgment requires a finding by the ICC against a specific defendant in relation to a specific victim, the creation of monuments and museums can recognize the loss of those who cannot be identified or who could not bring their attacker before the ICC. The ICC will focus its efforts on those it finds bear the greatest responsibility for mass crimes therefore the majority of mid—and low-level violators will not be tried before the Court. Moreover, the Court might find it difficult to gain custody over powerful violators or those who can evade arrest. Yet the creation of monuments brings recognition even to those who do see their attacker tried before the ICC or who cannot collect from a judgment against an indigent violator. Monuments and museums also avoid the possibility in which certain victims receive money judgments where as others might be left with nothing. Therefore, monuments and museums offer relief to victims beyond what could be offered simply by money settlements to those who see their violator tried before the ICC.
It is important to note that most scholars agree that there will be a limited—and in many cases insufficient—amount of money available by which the ICC may pursue reparations for victims. On the one hand, some scholars see money held by the criminal violator as assets which should be seized to compensate victims after a finding of guilt by the Court.7 However, few criminal violators have funds available to them which could compensate numerous victims for crimes which occurred over the span of years, and which caused unimaginable destruction. On the other hand, others believe that the Trust Fund for Victims might be used to compensate victims using monies donated to the Fund separate from a finding of guilt by the Court.8 Unfortunately, it is similarly unlikely that the Fund will receive enough in donations to restore entire communities. Regardless of which source the ICC selects to fund victims’ reparations, one can assume that the amount will be limited; therefore, the Court must seek maximal effect with the funding it has available to it.
The creation of monuments and museums does come at a cost, however, and the cost of creating and preserving these sites may outweigh their benefit in certain instances. Where the ICC finds that the immediate needs are greater, such as in a famine or where a community is on the brink of extinction, there is likely no place for monuments or museums in the community. It is most likely that monuments and museums will become relevant only where relations between groups have stabilized and victims are moving forward with their lives; only then can a coherent, shared narrative emerge. However, it is important to look to the successful reparations scheme in South Africa which stressed “material reconstruction and the restoration of dignity” to take those in a desperate condition to greater possibilities.9 Even in instances where there was great physical need, there is also a need to restore dignity of victims to restore their status and enable victims to begin to participate equally in their community.
III. Instances in which Monument and Museums Discourage Reconciliation
The ICC must not demand monuments and museums be created in instances where a coherent, shared narrative does not exist. In such instances, the Court may in fact be creating an obstacle to peace by presenting a narrative which parties are not ready to accept. For example, creating a monument to victims of political violence might be rejected by those who see those victims as dangerous rebels or even as aggressors. Moreover, in instances where all parties feel victimized, to create a monument to some victims might appear to slight others who also feel victimized by either past or present crimes. In such instances, monuments or museums could become a rallying point for those who interpret the sites as blaming the real victim of mass crimes. Such could restart the cycle of distrust between groups and ultimately lead to greater violence. Moreover, to maintain the integrity of the Court, it must not be seen as favoring one party against another or seeking to impose its interpretation of facts on those affected by mass crimes. Recognizing the suffering of victims will be futile if it begins a new cycle of conflict within a community.
Because the ICC must not insert itself into a situation where a coherent, shared narrative does not yet exist, the Court must be cautious and move slowly. In most instances, it will take years before a coherent, shared narrative emerges after mass crimes. In such instances, the long timeframe between the initial investigation and final judgment might enable the Court to observe the relations between groups before making its recommendation. During this time, the Court might also rely on scholars to identify the sentiments of those in the region. Critics will argue that the deliberative movements of the Court could detract from its credibility and leave victims without reparations for too long. However, it is important to note that other avenues exist which could begin the process of making victims whole. For example, the Victims Trust Fund could proceed to deliver reparations before cases have been determined—monuments and museums are not the exclusive remedy for victims.10 Moreover, it will take time to determine the facts of alleged crimes and the Court could exacerbate tensions by rushing to create monuments and museums before first settling the facts necessary to create a coherent narrative. Therefore, the ICC can successfully use its caseload and protracted schedule to ensure that a coherent, shared narrative exists before it proceeds with the creation of monuments and museums.
Another criticism of the use of monuments and museums might suggest that such sites label one party to a conflict the “criminal” group and another party the “victim” group. Some might argue that by recognizing crimes against one group, another group is inherently depicted as the aggressor. However, this criticism reinforces the importance for the Court to wait for a shared narrative to emerge between the parties. Moreover, such a depiction likely oversimplifies the message of monuments and museums; rather than labeling one party, sites might seek to present the human tragedy to viewers and to restore victims to equal status within their community. Lastly, if the monument or museum reinforces an agreed upon narrative it will be a lasting statement of the understanding of the parties to the conflict. In instances where parties have accepted responsibility for their role in crimes and begun to make amends, it is unlikely that a group would feel slighted by monuments or museums which echo their own understanding.
Conclusion
The ICC should use its authority to demand reparations to create monuments and museums which will reinforce the coherent, shared narrative of events created by parties after mass crimes. After crimes have occurred, a shared narrative can break the cycle of blame between parties and therefore make a reemergence of conflict less likely. Moreover, monuments and museums meet the needs of victims who seek to restore their status within a community. Museums and monuments can satisfy the needs of victims who do not see those who harmed them tried before the Court and those victims who cannot be identified. However, the ICC must not demand the creation of monument and museums before a shared narrative has emerged as individuals might feel blamed for crimes for which they do not feel responsible. If the ICC is seen as forcing blame upon a party, the creation of monuments and museums will likely be in vain and may even serve to heighten the divide within a community. Therefore, the Court should demand the creation of monuments and museums only where a coherent, shared understanding of the crimes has emerged between the parties.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
I do not argue that monuments and museums should be the sole form of reparations which the ICC should seek; the creation of monuments and museums is simply a unique remedy to be pursued alongside other remedies such as monetary compensation and rehabilitation. ↩
Rome Statute of the International Criminal Court, art. 75(2), 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]. ↩
Id. ↩
See Frédéric Mégret, Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victims Reparations and Assistance Regime to Promote Transitional Justice, 16 Buff. Hum. Rts. L. Rev. 1, 4 (2010). Scholars have suggested different ways to pay for “sites of conscience” such as museums and monuments; some suggest relying on funds seized from violators while others suggest the Trust Fund for Victims. For the purposes of this paper, the source of the funding is not important—however, it is important to note that regardless of the source, funding will likely be limited. ↩
The emergence of a shared narrative will likely take time. It is possible that this process will take many years, however, it may be years before alleged crimes are presented before the Court. ↩
Thomas M. Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 285 (2011). ↩
Mégret, supra note 4. ↩
Id. ↩
Carlton Waterhouse, The Good, the Bad, and the Ugly: Moral Agency and the Role of Victims in Reparations Programs, 31 U. Pa. J. Int’l L. 257, 283 (2009). ↩
Mégret, supra note 4. ↩
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.
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 Congo (“DRC”), we spoke with approximately twenty representatives of NGOs, as well as members of the Bogoro community of victims, about reparations schemes. While there was general agreement among the NGOs that collective reparations are preferable, the elders of Bogoro expressed a strong preference for individual reparations. Neither the NGO representatives nor the Bogoro victims expressed a clear preference for how a reparations scheme should be implemented. However, the NGO representatives with whom we met generally believed that reparations funds should be committed to institutions such as medical facilities, schools, or other types of aid for victims. Given the extreme difficulty of administering an effective reparations scheme for individuals, the importance of community rehabilitation, and the urgent need for institutional, collective aid, a collective reparations scheme which creates lasting institutions may be preferable.
II. Findings
A. Existing Reparations Schemes
Multiple sources stated that Congolese law provides for the state to create a fund for victims of crimes. Although there is thus a legal framework supporting a domestic reparations scheme for victims, this has yet to become a reality in the DRC. This is because of general corruption, or because the perpetrator often has little or no funds with which to pay fines. A representative of one NGO noted that this contributes to the distance that most Congolese feel from their formal justice system. Instead of going to court to receive damages, victims of crimes often will instead resort to traditional justice processes. In such “arrangements,” two parties will come to a resolution in which a wronged family is paid in goats or other livestock. In the current situation in the DRC, this is often more effective than any formal scheme, at least for small-scale crimes.
In addition, no person with whom we spoke was aware of any activity by the ICC’s Trust Fund for Victims (TFV) in the DRC. This could result from a general lack of awareness, or from the fact that its activities are conducted in areas far from Goma or Bogoro. Alternatively, it was suggested to us that the TFV may keep such projects secret. Regardless, we found no knowledge of any existing international reparations scheme either in Goma or in Bogoro.
B. Institutional Perspectives—NGOs
The NGO representatives with whom we met all expressed a preference for either a mixture of collective and individual reparations, or for only collective reparations. They also generally highlighted the need to somehow categorize victims of different crimes into groups when implementing reparations schemes.
Representatives of the Research Center on Environment, Democracy, and Human Rights (Centre de Recherche sur l’Environnement, la Démocratie et les Droits de l’Homme, or CREDDHO) explained the problem of reparations to us from a transitional justice perspective. They believe that it is important for victims to speak out about their suffering in order to fight impunity and to begin a long-term healing process. Reparations awards might encourage this process by giving victims an award in return for an account of their suffering.
At the same time, CREDDHO representatives took the stance that crimes toward individuals cannot be repaired individually, in light of the number of victims and the variety of crimes which have taken place. The situation in the DRC has made victims of many people, both directly and indirectly. Often, it would be difficult to clearly define all individual crimes and victims. For this reason, CREDDHO representatives stated that reparations are best given collectively. Furthermore, from a transitional justice point of view, such a scheme might facilitate the community healing process by recognizing entire groups as victims.
CREDDHO representatives further advocated that victims be organized into different groups for reparations purposes. This organizational scheme would account for the severity of the crime suffered, what the victims need, and what the victims would like to be repaired. They recognized that this type of reparations scheme is no easy task given the number and nature of crimes suffered. Ultimately, however, they prefer this method—a collective scheme in which victims,and awards are organized into different groups.
Representatives of the NGO Heal Africa preferred a dual system of reparations that is both collective and individual. First, they identified the need to recognize individual sufferings in identifying those responsible for the crimes. In this way, they suggested that fostering accountability and establishing an account of the crime is an important element of reparations.
At the same time, the Heal Africa representatives presented several reasons why collective reparations are critical. Like the CREDDHO representatives, they noted that it would be difficult to find all victims of crimes. Again, defining who is a victim can be a difficult task, given the nature of the conflict and its indirect effects on children and families. For instance, they explained that victims of rape often abandon their children or are unable to support them, thus creating a generation of children that could be deemed indirect victims. In such circumstances, a collective award presents the best opportunity to help all who have been victimized. It may also help a broad group of people, without having to make difficult questions baed on who qualifies as a victim.
Heal Africa representatives also noted that in many cases, individual crimes such as rape cause a breakdown of both physical and cultural infrastructure, thus dealing a blow to the community as well. When a married woman is raped, she is viewed as an adulterer and will often be abandoned by her husband. Thus, mass rape destroys families, prevents girls from being marriageable, and victimizes the community as a whole. Therefore, collective reparations may be preferable to individual reparations. Programs that rebuild community infrastructure, in the form of institutions such as hospitals or schools, provide a practical way of administering the benefits that a community needs.
Finally, Heal Africa representatives, as well as others with whom we spoke, emphasized the importance of helping victims of crimes other than sexual violence. Much international attention has justifiably been paid to the extreme problem of rape in the DRC. At the same time, however, other victims have lost property, been displaced or orphaned, or have been recruited as child soldiers. Each of these crimes may call for a different remedy. For most, however, reintegration into society presents an important obstacle that must be overcome. In all cases, a long-term solution with follow-through is critical. For this reason, many victims will benefit from institutional reparations which strengthen and rebuild the community.
C. Victim Perspectives—Bogoro Village
In order to get victim perspectives of the reparations issue, we travelled to the village of Bogoro, outside Bunia, to speak with its inhabitants. Many of these people had been victims of General Katanga’s attacks on Bogoro in 2003, for which the ICC has charged the general with murder, destruction of property, and sexual enslavement.1 The people were largely from the Hema tribe, although the chiefs asserted that there are now also Ngiti and Lendu inhabitants. The Hema tribe is the same tribe to which the recently convicted Thomas Lubanga belonged. Thus, the people were supporters of Lubanga, but hostile to Katanga, Chui, and Bosco Ntaganda. We spoke with a group of men, including the village and regional chiefs.
The chiefs had previously held a village meeting with the victims, from which they gathered information regarding reparations from the ICC. They stated that 80% of victims want individual and not collective reparations awards. In their view, a community award would not sufficiently address the needs of victims. Many people now living in the village are not from Ituri and were not victims of the 2003 attacks. Perhaps more importantly, many perpetrators now live alongside victims in the village. Thus, a community award would benefit victims and perpetrators alike. Although the Bogoro chiefs stated that their people had largely reconciled after the tragedies that had taken place, they did not want a collective award which benefitted those other than the victims.
The chiefs further pointed out the extent of some victims’ loss. They noted that some people had been able to rebuild their property or homes, while others had not. Many families lost their male heads who had served as primary care providers. Widows were left without means of support, or without money to pay for their children’s school. Many children were left orphans, without any money to pay for food or other necessities. Such people still in need, the chiefs argued, should be entitled to individual reparations. They argued that money should be given to them, rather than to the community as a whole. They also noted that some victims had not yet returned to Bogoro, and a collective award would not benefit them at all.
At the same time, the elders did exhibit an interest in limited collective aid. They expressed desire for a television or other means of following ICC trials. Furthermore, they had asked for a village tombstone to be built for victims, and were disappointed that this had never been realized.
When asking victims about their preferences with respect to reparations, the chiefs said that they had mostly talked about whether collective or individual reparations were preferable. They had not discussed how to allocate the awards to victims. However, they suggested two things with respect to those issues. First, the chiefs noted the great difference between the crimes that victims had suffered, both in the severity, type, and amount of crimes that each person had experienced. Like the representatives from CREDDHO and Heal Africa, they indicated that it would be important for a reparations scheme to consider the differences in suffering for victims. Second, the chiefs showed deference to the ICC in implementing reparations schemes. They felt that some issues were up to the Court to decide, including how to value a certain person’s loss.
We also spoke with the chiefs about traditional justice mechanisms, and any role that they might play in a reparations scheme. Within the same tribe, we were told that issues are traditionally resolved in a manner similar to the “under the tree” process followed in other tribes. When two families are involved in a conflict, they will discuss the situation and come to a mutual agreement. One family will pay the other family a fine in an agreed-upon number of cows. In addition, one cow is killed, and its blood spilled upon the ground in atonement. If the families cannot agree, the formal Congolese justice system may be used. Thus, the traditional means of reparations, at least in the Hema tribe, consist of a valuable resource (cows) given to a family as a whole. This resource is likely to be considered primarily the property of the male head of household.
III. Recommendations
It is important to keep in mind the unique perspectives of NGOs and individuals when they are asked for their input on reparations. Common sense dictates that most individuals, when asked, will opt to receive individual as opposed to community awards. Among other things, individual reparations provide a more direct benefit, more control over that benefit, and the ability to exclude others from that benefit. Meanwhile, NGOs may have a more holistic view of a certain situation, as they are generally more removed from any direct benefit. Depending on their mission, they may also have a bias in a certain direction as well.
After speaking with both individuals and NGO representatives, I believe that collective reparations present the best form of reparations in the DRC. This is because individual reparations are a practical impossibility; because of the imperative to rebuild the community; and because the practical needs of many victims in the DRC are best served by collective projects.
Despite the Bogoro community’s strong preference for individual reparations, I believe that the process of identifying all possible victims and determining who will receive reparations awards is an almost impossible task. Even if the ICC had unlimited resources, because of the ambiguity of the definition of “victim,” and because many victims are displaced or of unknown whereabouts, it is extremely difficult to identify which victims may be recipients of awards. Furthermore, individual reparations generally are given by the convicted perpetrator to the victims of his or her crime. Because very few perpetrators of crimes are under arrest in the ICC, a very small and arbitrary portion of victims in the DRC would benefit from a scheme which awarded individual reparations in this way.
In addition, as a Heal Africa representative suggested, the desire for individual reparations seems to derive at least in part from a desire for accountability and individual justice. However, establishing a collective system of accountability or judicial process might make victims feel as though justice has been done as much as an individual award would. Moreover, a collective reparations scheme which helps to create a judicial-type infrastructure might simultaneously serve a community function and address individual grievances. If these schemes thus favor victims, they might alleviate the Bogoro villagers’ concern of perpetrators benefitting from reparations schemes.
A community-based reparations scheme might also best address the needs of the DRC’s victims given the types of crimes committed. Generally, entire villages or communities have been targeted by perpetrators. Acts such as mass rape or murder; destruction of villages and farmland; or mass abduction of children are common crimes in the DRC. Each of these acts obviously creates numerous individual victims, but also destroys communities, both physically and infrastructurally. Thus, reparations schemes targeted at these communities might be preferable in restoring what was destroyed. They may thereby strengthen society and create stability.
Finally, I believe that collective reparations schemes are preferable to individual awards in providing what victims truly need. Given the situation in the DRC, victims live in an environment in which their security is uncertain, the government is politically unsound, and most governmental or institutional infrastructures are ineffective or nonexistent. Thus, overall society requires community-based aid, such as a judicial system, medical centers, educational facilities, or economic institutions. Without such infrastructure, individual awards might lose much of their effectiveness.2
For these reasons, I favor reparations that help to create or rebuild infrastructure in a community. Especially where such projects can benefit a specific group (i.e. orphaned children, the psychologically traumatized, or families with land grievances), victims may thus benefit without the need for individual awards.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Prosecutor v. Katanga & Chui, Case No. ICC-01/04-01/07, Warrant of Arrest, (July 2, 2007), available online. ↩
For example, giving a monetary award may have diluted effect when a victim’s land is owned by someone else; where there are no banks; where lack of roads drive the price of commodities up to exorbitant levels; or simply when a victim is at risk of being killed or robbed. ↩
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 justice to associate guilt with individuals only. There is a reason why traditional reperation strategies have been targeted at the states reletively deep pockets rather than the state agents.
The ICC statute apply only to crimes committed by individuals not by states themselves. There is not a single international instrument which extends criminal resposibility to states. Even for Genocide and crimes against humanity. This is less than satisfactory and the jurisprudence of the ICC should be extended. The court must acknowledge that governments that might have delayed in bringing perpetrators to justice. And that governments gave comfort to criminals or because they might have intervened and prevented atrocities. Surely international criminal justice does not stand for the proposition that states cannot also have part in causing harm to victims whether by instigating, tolerating or ordring the commission of crimes. One reason cases have to be looked and judged on their individual context, is that it often seems wrong to single out individual perpetrators when many were complicit in atrocities and the entire political and legal system supported the unlawful actions.
Therefore it is vital that the case/charge selection and reparation truly reflects the full extent of the victimization and nature of the atrocities. Therefore the is not one approach which is the most suitable to crimes within the jurisdiction of the court. The court must consider all the factors in a given case to come up with an award which might include several components that is meaningful and appropriate in light of all the circumstances. For instance if there are grounds to take civil actions against the state within crimes against humanity. Then the reparation must realistically mirror what would be awarded within domestic court where the atrocities where committed. And literally charged to the government or state implicated. If the crimes were committed within a stable democratic framework. And it is proven that the government or previous government and state agencies were complicit, Within Systematic crimes against humanity.
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.