Principles of Reparations at the International Criminal Court: Assessing Alternative Approaches

Abstract

While the Rome Statute of the International Criminal Court requires the judges of the Court to establish principles of reparations, the existing case law is developing on shaky doctrinal foundations, failing to take into account legal sources, particularly from national civil torts systems, that offer vital law and practice that could inform the Court’s reparations orders. This article evaluates the legal basis of the existing reparations case law of the Court, arguing that undue prominence has been given to soft law human rights instruments while a lack of reference to the framework methodology in Article 21 of the Rome Statute has left the reparations principles weakly articulated. There are alternatives that the Court could consider in future, notably an increased role for and coordination with national justice systems, the potential for drawing on reparation rules from national torts systems, and the relevance of the lex loci damni principle. The article assesses these alternatives and proposes routes forward for the Court’s reparations practice based on the Rome Statute’s legal mandate.