Trial and (Potential) Error: Conflicting Visions on Reparations Within the ICC System

Abstract

Twenty years ago, the International Criminal Court (hereinafter ICC or the Court) was established holding the aim of placing victims at the heart of international criminal justice proceedings and delivering justice to them through, among others, reparations. Article 75 of the Rome Statute lays out the reparations regime, and, in practice, court-ordered reparations are a means of delivering such justice. Focusing on Court decisions on reparations, our analysis takes stock of all developments before the ICC and attempts to highlight the mismatch between characteristics inherent to the objectives of international criminal trials such as providing accountability and punishment of the accused and delivering justice for victims of mass crimes—the so-called procedural challenges. We also submit that the Court is facing conceptual challenges, related to an apparent misunderstanding of the various concepts at stake: reparations as such and the various modalities and channels of enforcing them. We conclude that although the ICC’s reparation regime may not be the best reparative response to provide justice to victims in conflict situations affected by mass victimization, we suggest that improving the ICC’s approach includes, at a minimum, tackling these challenges.

Between idealism and realism: a comparative analysis of the reparations regimes of the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia

“…However, it was only in April 2017, 5 years after its first decision on reparations that the first step of the implementation plan for reparations was finally approved by the Trial Chamber (Prosecutor v. Thomas Lubanga Dylio, 2017). As we previously argued, the underlying reason for the clash on the implementation plan was that the Trial Chamber of the ICC and the TFV did not agree on the required level of specificity (Balta et al, 2018). On the one hand, the ICC is bound in its specificity by respect for the rights of the offender, which need to be taken into account, particularly in view of his liability for reparations (Trial Chamber, ICC 2015a).…”

“…As such, the latter function is reflective of what Kendall (2015, p. 362) called "the restorative justice turn" of the ICC. Indeed, the ICC is the first ICL-based court where doing justice was conceived to refer not only to the prosecution and punishment of perpetrators of international crimes, but to also cover the provision of justice to victims through participation and especially through reparations (Balta, Bax, & Letschert, 2018;Moffett, 2015;Stover, Balthazard, & Koenig, 2011). In legal scholarship, different scholars attempt to justify the inclusion of "justice for victims" as one of the goals of the ICC.…”

“…In the case against Al Mahdi, the Trial Chamber went even further and indicated that the implementation of individual reparations, in the form of compensation, should be prioritised (Prosecutor v. Ahmad Al Faqi Al Mahdi, 2017, para., p. 140). This shift of the ICC's approach and its subsequent variation in the ordered reparative modalities appear to be driven by an alteration in the weighing of the demands in the situation at hand; with, on the one hand, a high number of victims and a lack of resources, and on the other hand the requests for individual reparations echoed by the victims participating in the proceedings (Balta et al, 2018). In these cases, the balance tilted towards the latter, by emphasising the individual victims' needs and requests, or in the words of the Trial Chamber: "the order for reparations would, for the most part, be missing its markdelivery of justice to and reparation of the harm done to the victims as a result of the crimes committed by Mr. Katangawere it to disregard their almost unanimous preference, by awarding only collective reparations" (Prosecutor v. Germain Katanga, 2017a, para., p. 339).…”

“…On the one hand, the ICC is bound in its specificity by respect for the rights of the offender, which need to be taken into account, particularly in view of his liability for reparations (Trial Chamber, ICC 2015a). 38 On the other hand, the TFV operates under specific procedural and operational realities which make it impossible for the TFV to reveal the details requested by the ICC (Balta et al, 2018). Similarly, the Trial Chamber ordered reparations in the cases against Katanga and Al Mahdi.…”

“…Not only do they need to wait for many years for a conviction to be rendered in order to benefit from reparations, 41 but also, when they are finally entitled to reparations, they need to wait yet again for the implementation plan to pass the tests imposed by the ICC. 42 Realistically speaking, the entire reparations process at the ICC, from adjudication to implementation, is hardly providing justice to victims (Balta et al, 2018). The once ambitious ICC, reflective of the highest ideals in ICL relating to victims' rights and their protection, has not managed yet to make them a reality in practice.…”