Abstract
AbstractMore than 20 years on from the signing of the Rome Statute, delivering victim-centred justice through reparations has been fraught with legal and practical challenges. The Court’s jurisprudence on reparations only began to emerge from 2012 and struggles to find purchase on implementation on the ground. In its first few cases of Lubanga, Katanga, and Al Mahdi the eligibility and forms of reparations have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity. This is perhaps felt most acutely in the Bemba case, where more than 5,000 victims of murder, rape and pillage were waiting for redress, and the defendant was not indigent, but where he was later acquitted on appeal, thereby extinguishing reparation proceedings. This article critically appraises the jurisprudence and practice of the International Criminal Court (ICC) on reparations. It looks at competing principles and rationales for reparations at the Court in light of comparative practice in international human rights law and transitional justice processes to consider what is needed to ensure that the ICC is able to deliver on its reparations mandate. An underpinning argument is that reparations at the ICC cannot be seen in isolation from other reparation practices in the states where the Court operates. Reparative complementarity for victims of international crimes is essential to maximize the positive impact that the fulfilment of this right can have on victims and not to sacrifice the legitimacy of the Court, nor quixotically strive for the impossible.
Highlights
Reparations for international crimes seem quixotic given the harm caused and the multitude of victims, making them difficult to place within the frameworks of international criminal tribunals.1 Judges at ad hoc tribunals for the former Yugoslavia and Rwanda were unable to award reparations,2 instead they recommended it should be delivered through an international claims commission that never materialized.3 In the early drafts of the International Criminal Court (ICC) Statute there were concerns thatDownloaded from https://www.cambridge.org/core
At the ICC, reparations can be ordered against the convicted person, for the extent of his/her criminal liability, and to those that are recognized as victims by the Court
There is a growing frustration amongst victims of the length reparations are taking at the Court, the convoluted disagreements and the ‘divergence’ of the TFV from victims’ preferences in operationalizing such measures, which separate is impacting on the legitimacy of the ICC.156
Summary
Reparations for international crimes seem quixotic given the harm caused and the multitude of victims, making them difficult to place within the frameworks of international criminal tribunals. Judges at ad hoc tribunals for the former Yugoslavia and Rwanda were unable to award reparations, instead they recommended it should be delivered through an international claims commission that never materialized. In the early drafts of the ICC Statute there were concerns that. This article contributes to the literature on how to improve the work of the ICC on reparations, reflecting on the past, present, and future role of reparations within the Court bearing in mind the comparative practice, and adopting a more holistic approach to reparations that builds on the concept of reparative complementarity To this end, the article begins by outlining the evolving jurisprudence of reparations at the ICC, paying particular attention to the Court’s determinations on three areas of contention: criminal responsibility; victimhood; and reparation measures. The last section of this article considers the future of the Court’s reparation process, examining the issues of security, funding and the work of the Trust Fund, a tripartite breakdown of concerns constraining the work of the Court today It critically situates these issues in light of the broader theoretical concern of reparative justice at the ICC as a set of responses on reparation including domestic practice where the Court has jurisdiction, to enhance the fulfilment of this right for victims of international crimes. This is a natural consequence of reparative complementarity, but it is the way forward in concretizing reparations for victims before the ICC
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