CREATIVE POTENTIAL OF REPARATIONS AT THE INTER-AMERICAN COURT OF HUMAN RIGHTS AND THE INTERNATIONAL CRIMINAL COURT.

• Author: Aksenova, Marina

1. INTRODUCTION

   Due to a number of historical factors, the Inter-American Court of Human Rights (IACtHR or Court) is quite innovative when it comes to the form and intended meaning of its reparation orders. One of the "vehicles" the court uses to express itself creatively is its elaborate practice of symbolic reparations. Symbolic reparations can be seen as an "expressive tool" in the field of international law because they allow courts to empathetically transmit an intended message. (3) Tangible objects ordered as symbolic reparations solidify the event in collective memory, signaling to future generations the devastating effects of abuse suffered by the victims. In contrast, "[i]ntangible objects, such as commemoration ceremonies or artistic performances, work more with the present moment by invoking art's healing potential to bring to the surface, relive, and let go of trauma." (4)

   As will be seen in the following sections, by arriving at a later stage in legal proceedings, reparations aim to repair the damage caused by the violation. Creative expression is one way that allows shaping reparations to reflect the circumstances of a particular case and the collective interests of victims as an injured group. However, to espouse the creative potential of certain forms of reparations means to balance the law's analytical and formulaic structure, with the need to embrace complexity and trauma. While certain legal outcomes, such as the final judgements attributing responsibility, operate in strict dualistic categories of "guilty'V'not guilty" or "responsible'V'not responsible," other legal tools, such as reparations, are more remedial in nature and seek to embrace the multitude of perspectives in an attempt to bring some form of relief or closure, admittedly limited in nature, to the individual victims or larger communities they target. (5)

   The eyes are now on the ICC as it develops its unique approaches to reparations in the context of the fight against impunity and its mandate to assign individual criminal responsibility for mass atrocities. Based on the limited available case law, one may cautiously assume that the ICC's recent reparation orders are early examples of a broader vision of justice encompassing symbolization and creativity. (6) In Prosecutor v. Lubanga Dyilo (7)--the case dealing with the recruitment of child soldiers--the judges expressly upheld the value of symbolic reparations. (8) In particular, the ICC ruled that "rehabilitation measures ought to include the means of addressing the shame that child victims may feel," and may take the form of "commemorations and tributes." (9) Such measures can only be implemented through creative means and their specific form is currently being debated.

   It is argued here that the practice and experience of the IACtHR is helpful in addressing some of the constraints naturally flowing from the current victim reparation and assistance regime pursuant to the Rome Statute of the ICC. (10) The paper by Frederic Megret, Of Shrines, Memorials and Museums, skillfully outlines these constraints." In this work, Megret points out the discrepancy between the process of attribution of individual criminal responsibility and the need to rectify larger collective wrongs through reparations. (12) Another problem is the limited scope of reparations that can be ordered by the ICC due to financial and institutional constraints. (13)

   The IACtHR is quite skilled at measures aimed at public commemoration to honor both individual victims and groups of victims, especially in case of violations against a large number of persons, such as massacres. Throughout the last fifteen years, the court has been ordering the construction of monuments, (14) churches, and parks as a form of reparation to memorialize traumatic events, such as the massacre by the Guatemalan Army of the indigenous Mayan people (15) and the forced disappearance of children in El Salvador, perpetrated by the armed forces in the course of counter-insurgency operations. (16) The reception of these measures has been somewhat mixed, but this does not detract from their importance as a form of acknowledgement. At times, the respondent states displayed significant delays in the construction of monuments. (17) Other times, segments of the local population expressed negative sentiment towards their symbolic measure. (18)

   The table at the end of this paper lists tangible symbolic reparations with artistic value ordered by the court. This table is the result of a comprehensive search of all the reparation orders by the IACtHR. It provides information on twenty of the most relevant cases by including the name of the case, type of violation, state acceptance or non-acceptance of responsibility, the type of tangible reparation ordered, and status of its construction. The focus of the table is on tangible objects for illustrative purposes only. It must be mentioned, however, that it is difficult to disentangle the purpose driving the order to commemorate from its physical manifestation. The form--physical or nonphysical--is thus not of the essence for the argument made in this paper. Both types of reparations of this kind are designed to fulfill the duty to remember. (19) An artistic component can accordingly be found in orders relating to intangible forms of reparation, such as an apology.

   In sum, it is argued that symbolic reparations with creative value have capacity to connect legal findings with the broader emotional landscape of the specific case at issue and beyond. Section II briefly outlines the legal framework for reparations at the ICC and the IACtHR, respectively. It also brings to light trends common to both regimes, which arguably militate in favor of cross-comparison. Section III examines distinctive features of symbolic reparations with creative value ordered by the IACtHR. It draws parallels with the work of the ICC and presents arguments supporting a broader conception of reparations, and how the ICC could utilize some of the experiences of the IACtHR in its practice or reasoning pertaining to reparations. Section IV concludes that symbolic reparations have enhanced capacity, compared to a deterministic legal judgment, to embrace complexity inherent in conflict that led to a violation.

2. LEGAL FRAMEWORKS FOR REPARATIONS AT THE ICC & IACTHR CONTRASTED

   1. ICC Legal Framework

      While the old generation of international criminal courts and tribunals placed little emphasis on reparations and victim participation, the ICC together with the Extraordinary Chambers in the Courts of Cambodia (ECCC) is pioneering the idea of inclusivity of victims' concerns in international criminal proceedings. Pursuant to Article 75(1) of the Rome Statute of the ICC, the court may order reparations to victims in the form of "restitution, compensation, and rehabilitation." (20) Additionally, the court may impose reparations with symbolic, preventative and transformative value. (21) The nature of reparations is thus to be defined on a case by case basis. For this reason, the court is not limited to ordering a specific type of reparations expressly mentioned in the Rome Statute, such as financial compensation. (22)

      Where appropriate, the ICC may order that the award for reparations be made through the Trust Fund for Victims (TFV). (23) Article 79 of the Rome Statute refers to the TFV, which is a body established by the Assembly of State Parties. (24 ) Within Article 79 is the mandate to serve as an intermediary between victims and the ICC. (25) This particularly applies to matters relating to accumulating fines or forfeiture ordered by the ICC to be later used for reparations. (26) While the ICC orders symbolic reparations in abstract terms, it is up to the implementing body-TFV-to ensure the practical execution of the order. Rule 98 of the ICC Rules of Procedure and Evidence specifies that the ICC may order reparations to be deposited with TFV when it "is impossible or impracticable to make awards directly to each victim," or when the number of the "victims and the scope, forms and modalities of reparations makes a collective award more appropriate." (27) As is clear from recent case law, the precise role of the TFV in managing reparations is still in the process of being defined. For instance, Prosecutor v Al Mahdi (28 ) Appeals Chamber judgment on reparations affirmed the discretion of trial chambers under Article 75(1) of the Rome Statute when making reparations orders. (29) Furthermore, the judges confirmed their supervisory role over the TFV. (30)

      It is important to note that besides formal reparations, the TFV has the mandate of victims' assistance. (31) This feature significantly expands TFV's ability to respond creatively to victims' needs. The Rome Statute of the ICC clarifies that "[a]ctivities undertaken under the assistance mandate are distinct from the judicial proceedings of the court and do not require the conviction or even the identification of the perpetrator(s) of the harms suffered by victims." (32)

   2. IA CtHR Legal Framework

      In human rights law, the term "reparations" is rather generic, "cover[ing] the various ways in which a state can redress the international responsibility it has incurred." (33) The IACtHR specified that the purpose of "reparation for damage caused by a breach of an international obligation requires, wherever possible, full restitution." (34) It includes "compensation, satisfaction, and assurances that the violations will not be repeated." (35)

      In the Americas, the IACtHR may order reparations in cases where "the State charged with the violation of the Inter-American Convention [on Human Rights (Convention)] accepts responsibility or [when the court] attributes responsibility for the violation." (36) Article 63(1) of the American Convention on Human Rights provides the following:

      If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court...