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

• Author: Alina Balta,Manon Bax,Rianne Letschert
• Date: 01 September 2019
• DOI: 10.1177/1057567718807542
• Published date: 01 September 2019
• Subject Matter: Articles

Article

Trial and (Potential) Error:

Conflicting Visions

on Reparations Within

the ICC System

Alina Balta

1

, Manon Bax

1

,

and Rianne Letschert

2

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 develop-

ments 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.

Keywords

International Criminal Court , international criminal procee dings, mass victimization, jus tice for

victims, reparations, reparative justice

Introduction

The International Criminal Court (ICC) came into existence with the novel approach of com-

plementing international criminal justice proceedings with “justice for victims.” Before the ICC

emerged, the then existing international criminal justice proceedings, depending on their respective

1

Tilburg Law School, Tilburg University, Tilburg, the Netherlands

2

Maastricht University, Maastricht, Limburg, the Netherlands

Corresponding Author:

Alina Balta, Tilburg Law School, Tilburg University, Warandelaan 2, 5037 AB Tilburg, the Netherlands.

Email: a.d.balta@uvt.nl

International CriminalJustice Review

2019, Vol. 29(3) 221-248

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DOI: 10.1177/1057567718807542

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mandates, were solely accused orientated; their objectives included the prosecution of those respon-

sible for the most serious crimes of concern to the international community, holding them accoun-

table and putting an end to impunity (for instance, United Nations [UN] Security Council, 1993,

1994). When the ICC was established, the negotiators aimed to invest its mandate with a dual

purpose to maintain the accused-orientated character of an ICC, while at the same time placing the

victims of international crimes at the heart of proceedings (ICC. Final report by the focal points

[Chile and Finland], para. 15; The Office of Public Counsel for Victims, 2010) and delivering justice

to them.

1

Indeed, the ICC is the first Court that moved away from an exclusively accused-oriented

model as to include an extensive package of victims’ rights under its mandate, such as the right to

present victims’ views and concerns (see also Evans, 2012; UN General Assembly, 1998) as well as

the right to claim and receive reparations.

2

To be precise, Article 75 of the Rome Statute lays out the

reparations regime and, in the practice of the Court, delivering justice to victims is intended to be

achieved, among others,

3

through reparations awards ordered by th e Court.

4

The meaning and

content of justice for victims is not easy to clearly delineate, as victims do not form a homogenous

group with similar justice perceptions. After all, perceptions of justice are informed by personal (for

instance, prior victimization or earlier justice experiences), social, religious, or cultural experiences

and perspectives and, in addition, may change over time (Moffett, 2014a).

5

Reparations, for that

matter, are often generally directed at redressing the victims’ harm and aiming to contributing to

their perceptions of justice (McCarthy, 2012a; Pemberton, Letschert, de Brouwer, & Haveman,

2015). Moreover, as often cited, “justice is seen to be done when it is seen in the eyes of the

victimized population.”

6

Simply put, it is the victims who should determine whether reparations

have contributed to their achievement of justice.

7

Thus, while it may be impossible to bring justice to

all victims falling within the ICC’s jurisdiction, in this article, we argue that the Court should,

according also to its own ambitions put forward in the Statute, play an important role in contributing

to justice. We believe that justice before the ICC should include, at a minimum, the enforcement and

implementation of the rights attributed to victims according to the Statute, including the right to

reparation which aims to redress their harm and while doing so, avoid further harm and secondary

victimization (Groenhuijsen & Pemberton, 2011).

As this article will expose, 20 years after the ICC was established, achieving justice for victims

through ICC interventions appears to be extremely intricate. At this moment, there are three cases at

the ICC in the reparations phase: the cases against Thomas Lubanga Dylio, Germain Katanga, and

Ahmad Al Faqi Al Mahdi. As will be c ontended, the Court’s novel mandat e incorporates two

purposes difficult to reconcile. A close examination of the three cases illustrates the complexities

involved in the process of, on the one hand, navigating the international criminal justice objectives

of accountability and punishment of the accused, and on the other hand, delivering victims’ justice

through reparations. To be precise, the Court’s attempt to strike a balance between the two purposes,

results, more often than not, in a compromise at the expense of justice for victims. In the cases where

reparation awards are eventually ordered, each o f the chambers within the ICC seems to have

conflicting ideas on what reparations should entail and how they should be implemented. Moreover,

the Trust Fund for Victims (hereinafter TFV) and the Court define and apply reparations differently.

This incoherent approach appears to be mainly generated by the different interpretations, meanings,

and priorities attached to the reparations regime, by both the TFV and the chambers within the ICC.

In practice, this toing and froing within the ICC system tends to extend the length of the trial

unreasonably, with serious implications for the parties in the trial, including the victims and poten-

tially negatively affecting their justice needs and rights.

8

Against this background, we argue that the enforcement of reparations, which plays an important

role in providing justice for victims at the ICC, is hampered by two sets of challenges: procedural

and conceptual. Procedural challenges refer to challenges arising out of a disconnect between

procedural intricacies inherent to international criminal justice and the goal of bringing justice to

222 International Criminal Justice Review 29(3)