Academic journal article Australian International Law Journal

The ICC Regime of Victims' Reparations: More Uncertainties and Inconsistencies Brought to Light by Recent Cases

Academic journal article Australian International Law Journal

The ICC Regime of Victims' Reparations: More Uncertainties and Inconsistencies Brought to Light by Recent Cases

Article excerpt

I Introduction

With the gained conviction that participation and reparations play an important role in achieving justice for victims, (1) the Rome Statute of the International Criminal Court ('Rome Statute (2) ) has enabled victims, for the first time in history, to move 'from a passive and marginalised position to an active and central one'. (3) As 'reparations to the victims of the most serious international crimes are critical components of the Rome Statute', (4) ensuring 'meaningful reparations and a successful implementation of reparation orders including coherent principles for victims' reparations stands among the strategic goals of the International Criminal Court ('ICC'). (5) This ambitious victim-centred approach has been recommended by the United Nations ('UN') as this process is due to be 'empowering and transformative'. (6) From the beginning, the ICC has affirmed the success of the reparations would be crucial to the success of the Court itself, (7) a statement shared by regional Human Rights Courts. If the importance of reparations is unanimously acknowledged, the hybrid regime set up by the Rome Statute has seemed rather awkward and shaky, relying exclusively on the individual criminal responsibility and drawing on two bodies, the ICC on the one hand and the Trust Fund for Victims ('TFV') on the other hand. (8) Previous academics, while supporting this new regime, have quite unanimously been sceptical, to say the least. (9)

The aim of this article is thus to consider, in light of the most recent practise by the ICC, (10) whether this hybrid and bizarre regime has been successful at providing victims with remedies. The methodology used is traditional black-letter law, focusing on the analysis of all the documents available on the website of the ICC concerning the reparations stage. The first leading decision was the Lubanga case delivered on 7 August 2012, with two very different views given by the Trial Chamber and the Appeals Chamber. (11) The Trial Chamber decision on principles and procedures on reparations had been strongly criticised and rejected for outsourcing 'the reparation regime largely to the Trust Fund for Victims', (12) while the Appeals Chamber 'adopted a more perpetrator-centred model'. (13) On 24 March 2017 the Trial Chamber II rendered the reparation Order in another case nearly three years after the judgment sentencing Katanga to 12 years' imprisonment for crimes committed in 2003. (14) Moreover on 17 August 2017 a Reparations Order was delivered in the Al Mahdi case. (15)

This author suggests to assess the current regime in the light of three dimensions: the determination of eligible victims, the types of reparations allocated and the implementation issue. Informed by her expertise in repairing victims of violations of human rights, (16) her demonstration turns around the idea that the recent practise has even exacerbated the already existing inconsistencies, uncertainties and conflicting views between the ICC, the Defence, the TFV and Victims. She recommends the ICC to adopt a less ambitious profile in order to achieve this rather complex challenging issue.

II From an Inclusive to a Manageable Definition of Eligible Victims

The definition of victims given by rule 85(a) of the Rules of procedure and Evidence ('the ICC Rules') (17) is quite broad, covering any 'natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court'. Under rule 85(b), it may also include 'organisations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes'. Rule 86 adds that the ICC, 'in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence'. …

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