Reparations for victims at the International Criminal Court: a new way forward?

ABSTRACT

Reparations at the International Criminal Court (ICC) raise victims’ expectations that they would have an avenue of redress in the face of domestic impunity. This article examines the purpose of reparations at the ICC, which notably move away from the international-law state-centric modes of liability for reparations to more private-law individual liability and even developmental or subsidiary responsibility when provided by the Trust Fund for Victims. At the crux of the debate on reparations at the ICC rests the challenge of delivering justice to victims of international crimes against the limited capacity and jurisdiction of the Court. To overcome these limitations and to better realise expectations of reparations at the ICC, this article explores the promise of transformative reparations in trying to widen the benefits of reparations beyond those victims who suffer crimes by a convicted person, as well as tackling the causes of such crimes. Likewise this article will posit the role of complementarity and state responsibility in filling the gap between expectations and possibilities of reparations. In concluding it will also examine future prospects and challenges of a separate reparations chamber.

KEYWORDS:

• Reparations
• victims
• complementarity
• Trust Fund for Victims
• International Criminal Court
• state responsibility

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Dr Luke Moffett joined the School of Law, Queen's University Belfast, as a lecturer in September 2013. Luke's research interests are in the role of reparations in addressing past violations, and the construction of victims’ rights in domestic and international processes. His book Justice for Victims before the International Criminal Court was published by Routledge (2014). His current research explores victim identity and responsibility in reparation mechanisms and the obligations of non-state actors.

ORCID

Luke Moffett http://orcid.org/0000-0003-2567-0118

Notes

1 As per Article 75, Rome Statute.

2 Luke Moffett, ‘Meaningful and Effective? Considering Victims’ Interests through Participation at the International Criminal Court’, Criminal Law Forum 26, no. 2 (2015): 255–89.

3 Report of the International Law Commission on the Work of its 44th Session, 4 May to 24 July 1992, Official Records of the General Assembly, 47th session, Supplement No. 10, paras. 88–92.

4 Article 53(4), Report of the International Law Commission on the Work of its 45th Session, UN Doc. A/48/10 (1993), 125.

5 Draft Article 73, Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1, 14 April 1998, pp. 116–18.

6 See Fiona McKay, ‘Are Reparations Appropriately Addressed in the ICC Statute?’, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court, ed. Dinah Shelton (New York: Transnational Publishers, 2000), 163–74, 167; and Christopher Muttukumaru, ‘Reparations to Victims’, in The International Criminal Court: The Making of the Rome Statute; Issues, Negotiations, Results, ed. Roy S. Lee (The Hague: Kluwer Law International, 1999), 262–70.

7 Resolution ICC-ASP/1/Res.6, adopted at the 3rd plenary meeting, 9 September 2002.

8 See Articles 52 and 706–742 of the French Criminal Code; Articles 85–91, 371–375, and 418–426 of the French Code of Criminal Procedure; Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Oxford and Portland: Hart, 2008), 310.

9 Letter dated 12 October 2000 from the President of the International Tribunal for the Former Yugoslavia, addressed to the Secretary-General, S/2000/1063, 3 November 2000; Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda, addressed to the Secretary-General, S/2000/1198, 15 December 2000.

10 Prosecutor v Lubanga, Decision Establishing the Principles and Procedures to Be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012; and Prosecutor v Lubanga, Judgment on the Appeals against the ‘Decision Establishing the Principles and Procedures to Be Applied to Reparations’ of 7 August 2012, ICC-01/04-01/06-3129, 3 March 2015.

11 Louise Chappell, this special issue; Luke Moffett, Justice for Victims before the International Criminal Court (London and New York: Routledge, 2014), 120–1.

12 Prosecutor v Lubanga, Prosecution’s Submissions on the Principles and Procedures to Be Applied in Reparations, ICC-01/04-01/06-2867, 18 April 2012, paras.19–20.

13 Carsten Stahn, ‘Reparative Justice after the Lubanga Appeal Judgment’, Journal of International Criminal Justice 13 (2015): 801–13, 806.

14 Principle 9, UN Basic Principles 2005.

15 Stahn, ‘Reparative Justice’, 807.

16 Ibid., 809–10.

17 Prosecutor v Katanga, Ordonnance de Réparation en vertu de l’Article 75 du Statut, 24 March 2017, ICC-01/04-01/07-3728, para. 264.

18 Sarah Williams and Emma Palmer, ‘Transformative Reparations for Women and Girls at the Extraordinary Chambers in the Courts of Cambodia’, International Journal of Transitional Justice 10, no. 2 (2016): 311–31, 330.

19 ICC-01/04-01/06-2904, para. 266.

20 ICC-01/04-01/06-3129, para. 160.

21 ICC-01/04-01/06-3129, para. 160.

22 ICC-01/04-01/06-2904, para. 274.

23 Prosecutor v Lubanga, Decision Rejecting the Application for Leave to Appeal of the Legal Representatives of the 01 Group of Victims, ICC-01/04-01/06-3263, 17 January 2017.

24 Prosecutor v Lubanga, Information Regarding Collective Reparations, ICC-01/04-01/06-3273, 31 February 2017, paras. 130–34.

25 Trust Fund for Victims, (Draft) Scope of Work, Collective Reparations Projects in Relation to the Conviction of Thomas Lubanga Dyilo before the International Criminal Court, Annex A, ICC-01/04-01/06-3273-AnxA, 13 February 2017.

26 See Prosecutor v Lubanga, Réponse des Représentants des Victimes aux Observations de la Défense à la Première Transmission des Formulaires de Réparation Expurgés du 8 mars 2017, ICC-01/04-01/06-3296, 24 April 2017.

27 ICC-01/04-01/07-3728, paras. 226–39.

28 Lubanga, Trust Fund’s Observations on Reparations in Response to the Scheduling Order of 14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, para. 250; and Katanga, Trust Fund Observations on Reparations Procedure, ICC-01/04-01/07-3548, 13 May 2015, para. 121.

29 Prosecutor v Katanga, Notification Pursuant to Regulation 56 of the TFV Regulations Regarding the Trust Fund Board of Director’s Decision Relevant to Complementing the Payment of the Individual and Collective Reparations Awards as Requested by Trial Chamber II in its 24 March 2017 Order for Reparations, ICC-01/04-01/07-3740, 17 May 2017.

30 ICC-01/04-01/07-3740, para. 35.

31 Prosecutor v Lubanga, Observations of the Trust Fund for Victims on the Appeals Against Trial Chamber I’s ‘Decision Establishing the Principles and Procedures to be Applied to Reparations’, ICC-01/04-01/06-3009, para. 171.

32 ICC-01/04-01/06-3009, para. 170.

33 ICC-01/04-01/06-3129, para. 199 and paras. 269–73, in light of Rule 98(5), Rules of Procedure and Evidence, and Regulation 56 of the Regulations of the Trust Fund.

34 See Emily L. Camins, ‘Needs or Rights? Exploring the Limitations of Individual Reparations for Violations of International Humanitarian Law’, International Journal of Transitional Justice 10, no. 1 (2016): 126–45, 134.

35 ICC-01/04-01/06-3129, para. 182.

36 Prosecutor v Bemba, Defence Submissions on Sentence, ICC-01/05-01/08-3376-Red, 26 April 2016, fn. 232.

37 Peter Dixon, ‘Reparations, Assistance and the Experience of Justice: Lessons from Colombia and the Democratic Republic of the Congo’, International Journal of Transitional Justice 10, no. 1 (2016): 88–107, 105.

38 Prosecutor v Ruto and Sang, Public Redacted Version of Decision on Defence Applications for Judgments of Acquittal, ICC-01/09-01/11-2027-Red, 5 April 2016, para. 149.

39 Ibid., para. 150.

40 Reasons of Judge Eboe-Osuji, Ibid., paras. 58–254.

41 Ibid., para. 201.

42 Ibid., para. 202.

43 Ibid., para. 464.

44 Section 20, International Crimes Act 2008. ICC-01/09-01/11-2035, 15 June 2016, paras. 8 and 13.

45 ICC-01/09-01/11-2035, paras. 40–41.

46 Ibid., paras. 49–54.

47 Prosecutor v Ruto and Sang, Decision on the Requests regarding Reparations, ICC-01/09-01/11-2038, 1 July 2016. See Dissenting Opinion of Judge Eboe-Osuji, ICC-01/09-01/11-2038-Anx, 1 July 2016.

48 See Luke Moffett, ‘Elaborating Justice for Victims at the International Criminal Court: Beyond Rhetoric and The Hague’, Journal of International Criminal Justice 13 (2015): 281–311.

49 See Anne Saris and Katherine Lofts, ‘Reparation Programmes: A Gendered Perspective’, in Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems in Place and Systems in the Making, ed. Carla Ferstman, Mariana Goetz, and Alan Stephens (Leiden: Brill, 2009), 79–99; Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, March 2007, para. 4: ‘reparation must drive post-conflict transformation of socio-cultural injustices, and political and structural inequalities that shape the lives of women and girls; that reintegration and restitution by themselves are not sufficient goals of reparation, since the origins of violations of women’s and girls’ human rights predate the conflict situation’’. UN Guidance Note of the Secretary-General Reparations for Conflict-Related Sexual Violence, para. 4.

50 Ruth Rubin-Marín, ‘The Gender of Reparations in Transitional Societies’, in The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations, ed. Ruth Rubin-Marín (Cambridge: Cambridge University Press, 2009), 63–120, 66. See also UN Guidance Note of the Secretary-General Reparations for Conflict-Related Sexual Violence, June 2014.

51 Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Rashida Manjoo, A/HRC/14/22, 23 April 2010, para. 32; and UN Guidance Note of the Secretary-General Reparations for Conflict-Related Sexual Violence (June 2014), 8.

52 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, para. 3.

53 ICC-01/04-01/06-2904, para. 236.

54 Prosecutor v Lubanga, Observations on Reparations in Response to the Scheduling Order of 14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, para. 77.

55 ICC-01/04-01/06-2904, para. 240.

56 Ibid., paras. 202–03.

57 Andrea Durbach and Louise Chappell, ‘Leaving Behind the Age of Impunity: Victims of Gender Violence and the Promise of Reparations’, International Feminist Journal of Politics 6, no. 4 (2014): 543–562, 550.

58 Leila Ullrich, ‘Can Reparations Transform Societies? The Practice of “Transformative Justice” at the International Criminal Court (ICC)’ (presentation at the Oxford Transitional Justice Research Seminar, 9 March 2016).

59 Durbach and Chappell, ‘Leaving Behind the Age of Impunity’.

60 Margaret Urban Walker, ‘Transformative Reparations? A Critical Look at a Current Trend in Thinking about Gender-Just Reparations’, International Journal of Transitional Justice 10, no. 1 (2016): 108–25, 110.

61 CVR Final Report, Vol. LX, section 2.2.2.1, p. 148, cited and translated by Lisa Magarrell, ‘Reparations for Massive or Widespread Human Rights Violations: Sorting out Claims for Reparations and Social Justice’, Windsor Yearbook of Access to Justice 22 (2003): 85–98, 95.

62 Prosecutor v Katanga, Registry’s Report on Applications for Reparations in Accordance with Trial Chamber II’s Order of 27 August Annex 1, ICC-01/04-01/07-3512-Anx1-Red2, 21 January 2015.

63 ICC-01/04-01/07-3728, para. 300.

64 Prosecutor v Lubanga, Appeals Chamber Order for Reparations, ICC-01/04-01/06-3129-AnxA, 3 March 2015, para. 37; and Principle 20, UN Basic Principles A/RES/60/147, 16 December 2005.

65 Prosecutor v Ruto and Sang, Common Legal Representative for Victims’ Comprehensive Report on the Withdrawal of Victims from the Turbo Area by Letter Dated 5 June 2013, ICC-01/09-01/11-896-Corr-Red, 5 September 2013, para. 12.

66 Principle 16, UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005.

67 ICC-01/04-01/06-2904, para. 239.

68 ICC-01/04-01/07-3728, paras. 323–25.

69 John T. Holmes, ‘The Principle of Complementarity’, in The International Criminal Court: The Making of the Rome Statute; Issues, Negotiations, Results, ed. Roy S. Lee (The Hague: Kluwer Law International, 1999), 41–78.

70 Luke Moffett, ‘Reparative Complementarity: Ensuring an Effective Remedy for Victims in the Reparation Regime of the International Criminal Court’, The International Journal of Human Rights 17, no. 3 (2013): 368–90.

71 See UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005; Article 2(3), International Covenant on Civil and Political Rights; Article 13, European Convention on Human Rights; Articles 10 and 25, American Convention on Human Rights; Article 7(1)(a); African Charter on Human and Peoples’ Rights; and Article 31, Articles on State Responsibility for Internationally Wrongful Acts.

72 Durbach and Chappell, Leaving Behind the Age of Impunity’, 554.

73 Rome Statute, Article 93(1)(g) and (k).

74 ‘Trust Fund for Victims Decides to Launch Assistance Programme in Côte d’Ivoire’, TFV Press Release, 17 May 2017.

75 See Cristián Correa and Didier Gbery, ‘Recommendations for Victim Reparations in Côte d’Ivoire’, International Center for Transitional Justice, August 2016. https://www.ictj.org/publication/recommendations-victim-reparations-cote-ivoire (accessed 24 April 2017).

76 See Ciara Hackett and Luke Moffett, ‘Mapping the Public–Private Law Divide: a Hybrid Approach to Corporate Accountability’, International Journal of Law in Context 12, no. 3 (2016): 312–36.

77 Stahn, ‘Reparative Justice’, 811; and Christine Van den Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’, Case Western Reserve Journal of International Law 44 (2011): 475–96, 495–6.

78 See Moffett, ‘Meaningful and Effective’.

79 Article 63(2), American Convention of Human Rights. See Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Oxford: Oxford University Press, 2013), 251–98.

80 See Prosecutor v Bemba, Submission by QUB Human Rights Centre on Reparations Issues Pursuant to Article 75 of the Statute, ICC-01/05-01/08-3444, 17 October 2016.

81 Rome Statute, Articles 34, 38 and 75. ICC Rules of Procedure and Evidence, Rule 95 on ‘Procedure on the Motion of the Court’ does not stipulate what chamber reparation proceedings will be heard.

82 ICC Rules of Procedure and Evidence, Rule 97(2).