Essay: Reparations in international criminal law

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1.1 Theoretical framework

The theoretical framework of reparations in international criminal law is mainly based in Human Rights Law (IHRL). However, several human rights treaties provide for reparations for individuals that suffered harm from states, rather than from other individuals. This thesis will discuss the right to reparations for victims that suffered harm from individuals, with regards to the core crimes under the jurisdiction of the International Criminal Court. This concerns the most serious crimes under international human rights law, as well as humanitarian law, namely crimes against humanity, war crimes, genocide and the crime of aggression.1

Reparation for victims can be defined as “a principle of international law that the breach of an 2

engagement involves an obligation to make reparation in an adequate form”. This principle has, informally, existed for centuries. It consists of an obligation to redress the damage a wrongdoing party has caused to an injured party. The purpose of reparation is that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”.3 In other words: the victim’s situation must be repaired to how it was before the harm was done.

Under international law, the right to reparation generally has a dual dimension. The first dimension is substantive, which can be translated into the duty to provide redress and can take the form of compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition. The second dimension is procedural and can be translated into an instrument for securing redress.

The UN General Assembly Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“the Basic Principles”), can be regarded as a result of a “lengthy process of consideration and review by non-governmental and governmental experts and that the significance of the document was considerably enhanced by its adoption by the UN

1 Rome Statute of the International Criminal Court (further: Rome Statute), Art. 5.

2 Judgment No 13, PCIJ Series A No 17, ICGJ 255 (PCIJ 1928) (Chorzow Factory Case (Ger. V. Pol.)). 3 Ibid.

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General Assembly without a dissenting vote”.4 This illustrates the complexity of the concept of

reparations. The Basic Principles define several accepted forms of reparations. The first form is

restitution. The purpose of restitution is to “restore the victim to the original situation before the

gross violations (…) occurred”.5 Examples of restitution are the restoration of identity, family life,

liberty, enjoyment of human rights and citizenship. Other examples are the return to one’s place of

residence or the return of property, and the restoration of employment. Restitution is often not

suitable for the more heinous crimes, because it seems impossible in such situations to restore the

victim’s original situation.6 Other forms of reparation are then necessary. The second form is

compensation, which is often provided if the damage is economically assessable. The compensation

should be proportional and appropriate to the specific circumstances and the gravity of the

violation. The damage can be the result of “physical or mental harm; lost opportunities, including

employment, education and social benefits, material damages and loss of earnings, including loss

of earning potential; moral damage or costs required for legal or expert assistance, medicine and

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medical services, and psychological and social services”. The third form is rehabilitation, which

has the purpose to provide medical care, psychological care, and legal and social services.8 These means of rehabilitation should make it possible, or at least easier, to restore the victims’ original situation. The last form is reparation as satisfaction and guarantees of non-repetition. Satisfaction can include, for example, public apologies and acknowledgement, public disclosure of the truth, effective measures that are aimed at cessation of continuing violations, sanctions, tributes to the victims, etc.9 Guarantees of non-repetition contributes to prevention as well. Examples are the strengthening of the independence of the judiciary, protecting persons in the medical and health- care and legal professions, providing education on international human rights law and international humanitarian law, promoting mechanisms to prevent and monitor social conflicts, etc.10 Note that

4 Theo van Boven, Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines, (Martinus Nijhoff 2009), p. 32 ; UNGA Res. 60/147 2006, p. 3.

5 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 (further: Basic Principles and Guidelines), para. 19.

6 <http://www.redress.org/what-is-reparation/what-is-reparation> accessed 16 January 2017. 7 Basic Principles and Guidelines, para. 20.

8 Basic Principles and Guidelines, para. 21.

9 Basic Principles and Guidelines, para. 22.

10 Basic Principles and Guidelines, para. 23.

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these forms are established by the Basic Principles, and the International Criminal Court (ICC) does not have its own principles to acknowledge all of them.

The Rome Statute of the ICC represents a step towards the acknowledgement of the right to reparations for victims, which is laid down in Article 75 as follows: “the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.” This article constitutes an obligation for the Court to create a framework with regards to the right to reparations for victims.

Another institution that has a mandate towards victims, under the Rome Statute, is the Trust Fund for Victims (TFV).11 In 2002 the TFV was established as a separate institution.12 The mandate of the TFV is twofold: the mandate concerning reparations and the implementation of reparation awards13, and the mandate to provide general assistance to victims and their families concerning material support, psychological and physical rehabilitation. The resources for this assistance come from voluntary contributions by donors such as international organizations or governments.

1.2 Realization within the ICC

The ICC is, according to Article 1 of the Rome Statute, complementary to national criminal jurisdictions and therefore they can only exercise jurisdiction in a case where a national court fails to act.14 The ICC can be considered as the first international criminal tribunal that recognizes the right to reparation for victims as a legal remedy by an individual against another individual. However, the ICC has not developed principles regarding this matter yet and this raises the question how the right to reparation should be realized. With problems such as economic inequalities, poverty, the likelihood of the ICC being approached by victims, the number of victims to receive reparations and a lack of economic resources, the ICC copes with challenges in realizing the right to reparations. The establishment of principles, and therefore a judicial framework, could make it easier in the future to give the victims a realistic overview of the procedure and what is likely to happen, or what their possibilities are. However, currently the framework is more broad and flexible than clear and evident, which means victims do not know what to expect, and the realization of

11 Rome Statute, Art. 79.

12 ICC-ASP/1/Res6.

13 Rome Statute, Art. 75 (2). 14 Rome Statute, Art. 1.

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reparations is not always certain or sufficient. Realization of the right to reparation within the ICC therefore forms a challenge, as there is a lack of principles and uncertainty for the victims.

1.3 Focus

In chapter 2 the Lubanga case, the first case on reparations decided by the ICC, will be analyzed and it will serve as an illustration for the process on reparations. The roles of the convicted individuals as well as the scope of beneficiaries and other victims will be discussed. Then, in chapter 3, the lack of principles and therefore the importance of a judicial framework will be pointed out, as the realization of the right to reparations is highly dependent on those factors. The importance lies in budgetary reasons, expectations for victims and creating a steady framework that provides for a clear basis. Further on, in chapter 4, the crucial collaboration between the ICC and the Trust Fund for Victims (TFV) will be analyzed. The overlapping mandates of these two actors will be discussed and how this makes the process even more complex. Furthermore, chapter 4 points out the issue whether it is preferable to deal with reparations as a separate trial, or to combine it with the main criminal trial. In the last chapter, chapter 5, the relationship between the ICC and jurisdictions on the national level will be outlined. Generally states have their own obligation to provide remedies to victims, but the ICC takes over this obligation if a state fails to investigate and prosecute. The question in this chapter is whether the principle of complementarity is also applicable to the context of reparations under the Rome Statute.

This thesis focuses on how the reparations provisions of the Rome Statute can be translated into practice, in order to make it a “living law”. The main topics that will rise in this thesis are the lack of general principles, the consequences for realization of reparations, the complementarity between States parties and the ICC, and the responsibilities of the ICC and the TFV. The research question can therefore be formulated as follows: “What are the challenges for the ICC to make the right to reparations a living law?”.

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2 – DEFINING SCOPES

The Lubanga case is the first case on reparations the ICC decided on. In this chapter, the Lubanga case therefore serves as an illustration for the process on reparations and the roles of the convicted individuals as well as the scope of beneficiaries or other victims.

2.1 The Lubanga case

The first ICC-case on reparations was formed in the Lubanga case. In this case the Trial Chamber did not rule on individual claims, but it did establish procedures and principles that should be followed.15

2.1.1 Overview of events

On 14 March 2012 the Court found Mr. Lubanga guilty for co-perpetration of enlisting, conscripting and the use of child soldiers, under the age of 15, during the Ituri conflict in the Democratic Republic of Congo (DRC).16 Later that year, on 10 July 2012, Mr. Lubanga received the sentence of 14 years imprisonment.17 He appealed the conviction as well as the sentence. Eventually, on 1 December 2014, both the conviction and the sentence became final.18

On 7 August 2012, the decision on reparation was issued by the Trial Chamber.19 The Chamber established principles on reparation and endorsed the Trust Fund’s plan to implement these reparations.

In its decision the Trial Chamber stated that the reparation would be implemented by the Trust Fund for Victims (TFV), which had to propose an accurate and suitable form of reparation in accordance with Article 75(2) of the Rome Statute. This reparation tends to be collective. Individual

15 Decision establishing the principles and procedures to be applied to reparations, 07 August 2012, ICC-01/04- 01/06-2904, available at <http://www.icc-cpi.int/iccdocs/doc/doc1447971.pdf> accessed on 17 January 2017 ; Robert Cryer, Hakan Friman, Darryl Robinson and Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, (Cambridge University Press 2014), p. 495.

16 Judgment pursuant to Article 74 of the Rome Statute, 14 March 2012, ICC-01/04-01/06-2842, available at <http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf> accessed on 17 January 2017.

17 Decision on Sentence pursuant to Article 76 of the Statute, 10 July 2012, ICC-01/04-01/06-2901, available at <http://

www.icc-cpi.int/iccdocs/doc/doc1438370.pdf> accessed on 17 January 2017.

18 Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, 01 December 2014, available at <http://www.icc-cpi.int/iccdocs/doc/doc1876833.pdf> accessed on 17 January 2017.

19 Decision establishing the principles and procedures to be applied to reparations, 07 August 2012, ICC-01/04- 01/06-2904, available at <http://www.icc-cpi.int/iccdocs/doc/doc1447971.pdf> accessed on 17 January 2017.

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applications would be passed on to the TFV, in stead of being considered by the Judges. Also, formulating and implementing the reparation awards appropriate for the victims of gender-based and sexual violence should be done by the Court. Furthermore, Mr. Lubanga could only contribute to non-monetary reparation (such as apologies) and was not responsible for paying reparation.

This decision was appealed by the participating victims in the case, as well as the Defence of Mr. Lubanga. The arguments of the victims’ legal representatives were as follows. First, the Chamber should have considered the victims’ claims because it was the victims’ right to have Judges consider their claims. The Chamber should not have refused considering the claims. Second, the consideration of the claims should not have been delegated to the TFV. Third, the Chamber should have allowed more victims to apply for reparation, and to make submissions. Last, the victims argued that Mr. Lubanga should have been found liable to at least contribute to the reparations. If he later obtains money, Mr. Lubanga could reimburse the funds that were advanced by the TFV.20

The Defence (Mr. Lubanga) argued that the Chamber was wrong in enabling reparation for victims of sexual violence as well, given the fact that this crime was not one which he was convicted for. Also, Mr. Lubanga argued that the Chamber’s approach was too broad. The evaluation of the harm of the victims, as well as the determination of suitable measures of reparation and the identification of beneficiaries were delegated to the Registry (and experts). Furthermore, by delegating several functions to the TFV, the Chamber violated the Rome Statute.21

On 3 March 2015, the ICC Appeals Chamber gave its final decision on the reparations appeal. It found that the decision of Trial Chamber I contained errors, which resulted in an amendment of the order for reparation. The order must have been made against Mr. Lubanga, since he was the convicted person. The order for reparations must also inform Mr. Lubanga about his liability. In other words: Mr. Lubanga should know what his responsibilities are when it comes to paying, and how much he needs to pay. The Appeals Chamber now asked the TFV to determine the required reparations of the harm Mr. Lubanga caused. The type of awarded reparations (either individual, collective, or both) should be specified by the order for reparations. The Appeals Chamber made clear there were only collective reparations. The types of repairable harm need to be defined as well and there must be a link between the crimes Mr. Lubanga is convicted for, and the harm suffered by

20 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, available at <http://www.icc-cpi.int/iccdocs/doc/doc1919024.pdf> accessed on 16 January 2017.

21 Ibid.

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those crimes. The final amendment of the order for reparations is that it has to identify the beneficiaries and it has to set out criteria of being eligible. The Appeals Chamber made clear that the victims eligible for for reparation were only those who suffered from the crimes for which Mr. Lubanga was convicted.22

In the case of Lubanga the Chamber expressed several different objectives regarding reparations. It can be concluded that reparations have (according to the Chamber) two explicit purposes, which are laid down in the Statute. One purpose is that reparations give those responsible for grave and serious crimes, the obligation to repair the harm they caused with their wrongdoing. At the same time, reparations make it possible for the Chamber to ensure accountability. Furthermore, reparations cannot only be directed at specific individuals, but they also contribute, in a more broad way, to the affected communities. The purposes of reparations in the case of Lubanga are that they must relieve the suffering, afford justice, deter future violations, and they must contribute to the reintegration of the children who used to be child soldiers. Also, assisting in the promotion of reconciliation between the victims (and others who are affected) and the convicted person, is one of the purposes of reparations.23

The final view of the Chamber is that the application of reparations should take place in a flexible and broad manner. Principles of non-discrimination, non-stigmatization and dignity need to be respected.24 Furthermore the TFV is identified as the principal agency for dealing with reparations and the Chamber recommended that assistance to the Court will be provided by a multidisciplinary team of experts.25

2.1.2 How further: realization

The decision of the Appeals Chamber clearly set out instructions to the TFV with regards to the next steps. However, with regards to the draft implementation plan, the TFV did not receive instructions whatsoever. In November 2015 the TFV submitted a draft implementation plan.26 TheTrial

22 Ibid.

23 Ibid. para. 179.

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