Monday, June 7, 2010

Kampala launch of ICC reparations report

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – The adoption in 1998 of the Rome Statute of the International Criminal Court marked the first time that an international criminal body was authorized to award against individual perpetrators of mass atrocities a range of reparations for the benefit of their victims. In the years since, the ICC’s reparations scheme has generated a high level of expectations. Indeed, some have gone so far as to suggest that the very success of the Court will depend on its ability to effectively implement the Statute’s reparations regime. Nevertheless, little is known about how the scheme will work in practice. This is due in part to the fact that the documents governing the ICC establish the scheme in very general terms, and in part to the fact that the scheme is sui generis in that it is the first international process designed to award reparations to victims of mass atrocities in the context of criminal proceedings against individual perpetrators.
The aim of the latest in a series of ICC reports by the War Crimes Research Office (for which I serve as Director) of American University Washington College of Law, entitled Case-Based Reparations at the International Criminal Court, is, 1st, to highlight the need for the Court to establish principles relating to the operation of this scheme outside of the context of any single case; and 2d, to offer a number of proposals for the Court to consider when drafting these principles.
Among the issues that the Report suggests that the Court should consider when drafting its principles on reparations are the following:
Timing. As a general matter, the report recommends that the Trial Chamber hold a separate reparations phase, after the Chamber has made a determination that an accused is guilty for one or more crimes under the jurisdiction of the Court.
Definition of victims. The report proposes that, consistent with the definition of victim for purposes of participation, the Court make clear that “harm” may include material, physical, and psychological harm, and can attach to both direct and indirect victims; causation should be based on a standard of “proximate cause”; and the standard of proof should be something akin to preponderance of evidence/balance of probabilities. Importantly, the report suggests that the principles should make clear that the Chambers have wide discretion with regards to the evidence they may consider in evaluating whether the standard has been met.
Types of available reparations. The report emphasizes that the Court should expressly recognize that there is no one-size-fits-all approach to reparations. Rather, the individual circumstances of each case must be considered and any combination of the different forms of reparations may be awarded, including both collective and individual. Significantly, some commentators have distinguished between perpetrators with assets and those without assets, suggesting that reparations should take the form of monetary compensation where the perpetrator is found to have resources. The report takes the position that the Court should not necessarily assume this to be true or that other forms of reparations are only appropriate in the case of perpetrators with limited or no resources. Indeed, it argues that there are a number of reasons why dispensing individual compensation payments directly to victims may not be the most appropriate award, even where the Court has access to a perpetrator’s assets.
Use of experts. In all but most straightforward of cases, the report recommends that the Trial Chambers invoke its authority under Rule 97(2) of the ICC Rules of Procedure and Evidence to appoint appropriate experts to assist it in determining the scope and modalities of reparations awards. It further recommends that experts be used not only for processing awards (that is, making findings of fact regarding who qualifies as a victim and the harm suffered), but also for advising the Court on the substance of reparations awards, after extensive consultation with victims and other potential stakeholders.
Role for the Trust Fund for Victims regarding case-based reparations awards. The report recommends that, wherever practicable, a Chamber should designate the Trust Fund for Victims as the “appropriate experts” under Rule 97(2) of the ICC Rules of Procedure and Evidence to assist it in the processing and determination of a reparations award. Several factors support the use of the Trust Fund for Victims in this context:
1st. Because the Trust Fund is authorized to provide assistance to victims of crimes falling within the jurisdiction of the Court outside the context of case-based reparations, it will often be the case that, by the time a Trial Chamber issues a final judgment convicting a particular perpetrator, the Trust Fund will have already conducted significant activity for the benefit of victims of the more general situation from which the individual case arose.
2d. Moreover, in determining which projects to implement under its general assistance mandate, the Trust Fund engages in many of the activities that will need to be undertaken in the processing and determination of case-based reparations awards.
3d. Finally, the report suggests that the use of the Trust Fund for Victims as the “appropriate experts” envisioned under Rule 97(2) is warranted because the Fund is a permanent institution that will have an ongoing relationship with the Court, which offers a benefit over the use of ad hoc bodies of experts appointed on a case-by-case basis in two ways. The Trust Fund will benefit from institutional knowledge and lessons learned in the implementation of both its general assistance and, over time, court-ordered reparations awards. And as a permanent institution, the Fund will be able to develop processes that its staff will follow across cases and situations, thereby increasing the likelihood that reparation awards will be perceived as fair.
The launch of the report – the twelfth in the ICC Legal Analysis and Education Project of the War Crimes Research Office (prior post) – was held on Friday evening, at the end of the first week of the Review Conference of the Rome Statute of the International Criminal Court near Kampala, Uganda. The panel discussion included remarks by Miia Aro-Sánchez (Embassy of Finland in The Hague) and Elena Bornand (Embassy of Chile in The Hague) – both of whom served as focal points on the impact of the Rome Statute system on victims and affected communities – Elizabeth Rehn, the Chairperson of the Trust Fund for Victims, yours truly and Katherine Cleary, Assistant Director of the War Crimes Research Office. The launch was attended by representatives of States Parties and nongovernmental organizations as well as ICC officials, including Kristin Kalla, the Acting Director of the Trust Fund for Victims and Paulina Massida, head of the ICC’s Office of Public Counsel for Victims.

(Cross-posted at ASIL Blog - ICC Review Conference)

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