Current Question on Reparations What International Criminal Court reparations regime would be most appropriate for addressing mass atrocities and war crimes?

The Rome Statute provides for a scheme of reparations for victims of crimes under the jurisdiction of the Court, a key innovation for an international criminal court.

Under article 75 of the Statute, the Court may make an order directly against the convicted persons specifying appropriate reparations to, or in respect of, victims, such as restitution, compensation or rehabilitation. The Court may also order reparations to be paid through the Trust Fund for Victims (TFV), established by the Assembly of States Parties. The Court has the option of granting reparation awards to individual victims or collective awards through the TFV to an inter-governmental, international or national organization. According to the Regulations of the TFV, it may use voluntary contributions from governments, international organizations, individuals, corporations and other entities to provide physical, psychological or material support to victims of crimes within the jurisdiction of the Court.

Beyond such general framework, article 75(1) gives the Court broad powers to lay down the principles relating to reparation for victims. As the first case before the Court, The Prosecutor v. Lubanga, approaches its closing, a number of questions are being raised regarding the scope of reparations, e.g. the beneficiaries, the type of reparations and sources of funding for reparations.

Crimes under the jurisdiction of the Court are typically massive crimes committed in a systematic and/or widespread manner, resulting in a significant number of victims. It is the policy of the Office of the Prosecutor to select for prosecution a limited number of incidents and charges reflective of the full extent of the victimization. As a result there will be a number of victims not linked to crimes that the accused is convicted of, but which qualify as crimes under the ICC jurisdiction. Are these victims excluded? Can the Court order reparations only to those who apply for it and ignore thousands of other victims?

What type of reparation, if any, can be granted to victims of other crimes committed in the same situation as that investigated by the ICC? Should the reparations be to individual victims or collectively to a category of victims?

What types of reparation are most appropriate to address the needs of victims of massive crimes? Will it be better to order community reparations such as the building of a school or a hospital? Can the Court consider ordering types of reparation other than restitution, compensation or rehabilitation, such as symbolic reparation in the form of admission of guilt or an apology by the convicted person? What measures can be taken to ensure sufficient resources are available for reparation?

Introduction To Forum

Click for Welcome Video by Luis Marino-Ocampo, Prosecutor, International Criminal Court

Click for a Video Introduction by ICC Prosecutor Luis Moreno-Ocampo.

This Forum is run by Dr. Richard H. Steinberg of the Sanela Diana Jenkins Human Rights Project at UCLA School of Law with the support of the Office of the Prosecutor of the International Criminal Court. The purpose of the Forum is to allow members of the legal community, governments, academics, and others to debate complex issues of international criminal law faced by the Office of the Prosecutor in the course of its work at the ICC. Membership and participation in this Forum are open to everyone. We welcome you to express your opinion, and we request a civil debate which directly addresses the legal issue set forth in the current question. (more)

Forum Schedule

All issues are open for comment.

The Reparations Issue

What International Criminal Court reparations regime would be most appropriate for addressing mass atrocities and war crimes?

The Opinions of the Invited Experts
1. Bassiouni
2. Ferstman
3. Levmore
4. Mégret
5. Posner
Discussion

Background Materials
The Prevention Issue

What measures should be taken to maximize the crime prevention impact of the International Criminal Court?

The Opinions of the Invited Experts
1. Anderson
2. Broude
3. Burke-White
4. Goldstone
5. Scheffer
Discussion

Background Materials
Special Member Debate: The Libya Issue

Should Saif al-Islam Gaddafi be tried by the National Transitional Council of Libya or by the International Criminal Court?

Discussion

Background Materials
The Oversight Issue

This debate addresses a constitutional issue: What is the proper balance between the independence of the International Criminal Court and the oversight role of the Assembly of States Parties regarding the Court’s administration under Article 112 of the Rome Statute?

The Opinions of the Invited Experts
1. Alvarez
2. Cowdery
3. du Plessis
4. Khan
5. van der Wilt
Discussion

Background Materials
The Darfur Issue

What are the obligations of Contracting Parties to the Genocide Convention to implement arrest warrants for genocide issued by the ICC, and of African Union State Parties to implement ICC arrest warrants generally?

The Opinions of the Invited Experts
1. Akande
2. Gaeta
3. Mutua
4. Schabas
5. Sluiter
Discussion

Background Materials
The Gaza Jurisdiction Issue

Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?

The Opinions of the Invited Experts
1. Fletcher
2. Glasius
3. Kearney
4. Quigley
5. Ronen
Discussion

Background Materials

Featured Comments

BBM: I would like to pose the following questions to the experts: 1.) Did the ILC make an error is striking State Responsibility from the Zutphen Drafts? The problem as I see it is that the victims may be awarded a large monetary sum, either collectively or individually, and there is a single defendant; what if he or she judgment proof? And what if the TFV has insufficient funds to meet the award? 2.) Without an overarching body speaking for the Court and not each individual chamber, does the... (more)
grant2012: Monuments and Museums as Reparations after Mass Atrocities Argument: The International Criminal Court should utilize monuments and museums as a form of collective reparations once a coherent, shared narrative has emerged after mass atrocities. To determine if a narrative has emerged, the Court should look to the majority views within the parties to a conflict to determine if there is agreement as to the occurrence of crimes and the roles of the... (more)
jonathan.tobin: Argument: The International Criminal Court may be ill-equipped to make reparations decisions in all cases. Instead of seeking to make these specific determinations, the ICC should focus its resources on creating a set of standards and guidelines that local reparations committees—drawn from local governments, organizations and victims’ groups—can use to make decisions about how reparations funds will be distributed. The... (more)
nmoley: Argument: In seeking to achieve rehabilitative justice, the ICC should implement reparative schemes through the Victim’s Trust Fund (VTF). When doing so, an approach which parallels the principle of complementarity in the criminal prosecution context also provides a good model for reparations. By working in conjunction with domestic agencies to issue reparations schemes, the VTF can conserve resources,... (more)
Kimia: Allocation of Voluntary Contributions of the Trust Fund for Victims Argument—Because a defendant’s assets usually do not provide for adequate resources to compensate his victims, the TFV’s “other resources” mechanism needs to be used effectively. Following a ravaged conflict, the term “victim” should be defined to include individuals who are not directly linked to the crimes of the defendant undergoing... (more)
elio: When deciding on a reparations regime to implement, the International Criminal Court should evaluate each context individually. The ICC should then tailor the reparations regime it adopts to best fit the society, culture, and particular circumstances of each case while taking account of practical limitations. I. Introduction Reparations provisions are a relatively new development in the context of international criminal law... (more)
Sean.Lowe: How to Disentangle State Assets from Reparation Funds Argument: Assuming the implementation of a reparations regime pursuant to Article 75 of the Rome Statute, the ICC will face a particularly daunting task: how to treat the assets of the convicted when these are commingled with those misappropriated from the state. I propose the creation of a judicial mechanism giving the trial division a degree of... (more)