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About Reparation Law
The Trust Fund for Victims (TFV)
The Trust Fund for Victims is the first of its kind in the global movement to end impunity and promote justice. The Trust Fund is capable of transforming Court-ordered reparations into credible and tangible forms of redress for victims of crimes adjudicated by the ICC.
The delivery on this promise will be in the hands of the ICC â€“ and of the Trust Fund for Victims (TFV), another creation of the Rome Statute. The Trust Fund has a crucial role to play in the implementation of Court-ordered reparations. Victims have an important stake in proceedings before the International Criminal Court (ICC). Next to the right to participate in proceedings, they also have a right to reparations, once an accused person has been convicted. This important innovation of international criminal law by the Rome Statute holds the promise of an unprecedented avenue of international reparative justice, for victims of the most serious crimes.
Next to its reparations mandate, the Trust Fund for Victims is also mandated to provide various forms of assistance to victims, and their families, in as far as they have been harmed by crimes within the jurisdiction of the Court. In contrast to reparations, which are always linked to a conviction in a particular case before the ICC, the Trust Fundâ€™s victim assistance mandate allows it to respond to the needs of victims in the entire territory of the situation that is recognized within the jurisdiction the ICC. The Trust Fund has administered this mandate since 2008 in northern Uganda and the DRC.
As the first verdict(s) in cases before the ICC are on the horizon, the triggering of the Rome Statuteâ€™s reparation regime is now widely anticipated. This briefing paper â€“ which is not a legal document â€“ focuses on how, considering the Trust Fundâ€™s implementation mandate, such reparations may translate into reality. Key questions are: Who decides on what? Who stand to benefit? Who delivers? And - who pays?
Who decides on what? Structures and forms of ICC reparations
The crux of the Rome Statute is individual criminal responsibility. Article 75, the central norm of the Rome Statute guiding â€śReparations to victimsâ€ť before the Court, states that reparation for victims may include restitution, compensation, and rehabilitation. Accordingly, the Court may enter an order against a convicted person stating the appropriate form of reparation for the victims or their families. The Court may order reparations be made through and implemented by the Trust Fund. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005) may provide guidance and meaning to the applicable terms. They state:
Restitution; should, whenever possible, restore the victim to their original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution may include as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to oneâ€™s place of residence, restoration of employment and return of property.
Compensation; should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation within the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
Rehabilitation; should include medical and psychological care as well as legal and social services.
The wording of Article 75 clearly indicates that the list of reparation forms is not an exclusive articulation. Additional forms of reparations recognized in the above mentioned instrument include; Satisfaction (e.g. public apology, an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim) and Guarantees of Non-Repetition. In the Trust Fundâ€™s view, the Court may consider adopting these other forms for reparations within the context of constructing appropriate reparation remedies.
Section III of the ICCâ€™s Rules of Procedure and Evidence (RPE), articulate in detail the substance and procedure of reparation proceedings before the Court. The rules proscribe the various forms that a reparation order may take:
- a) Individual awards, individual reparations serve as recognition of specific individual harm, and of an individualâ€™s worth as a rights-bearing citizen. Such recognition, which is integral to (re)gaining civic trust, may not be otherwise satisfied. In addition, individual reparations are able to respond with particularity to the traumatic and intimate experience that each victim suffered.
- b) Collective awards, collective reparations respond to the shared experience that has manifested itself in both the form of shared suffering and in the form of offering reparations to redress the shared suffering that characterizes collective infliction of harm.
- c) Awards for reparations made through the Trust Fund to an intergovernmental, international or national organization.
The Regulations of the Trust Fund for Victims (RTFV), adopted by the Assembly of States Parties, contain a detailed legal regime on reparations, which are binding on the Court and the Trust Fund. Differing forms of reparations call for different procedural requirements. The RTFV require a mandatory verification process for individual awards. Collective awards may require the Trust Fund to hold consultations with victims and other interested stakeholders, in addition to procedures before the Court. In practice, the difference between an â€śindividualâ€ť or â€ścollectiveâ€ť form of reparation may be quite subtle and be distinguished by the role that the beneficiaries play in the design, implementation, and oversight of their awards. It is important to note that reparations are not limited to cash compensation - they may also be both material and symbolic.
In providing guidance to the Trust Fund in its reparations decision, the Court may leave some discretion to the Trust Fund as to how implementation will be accomplished. In particular in the case of collective forms of reparations, this will allow the Trust Fund to consult with victims on the most appropriate form of reparations for various categories of victims â€“ and so ensure that Court-ordered reparations will not only respond to their rights but also, in as far as possible, to their expectations. In this scenario, the Trust Fund for Victims will submit a reparations implementation plan to the Court for its approval and will regularly report to the Court on progress.
Victim and Reparations: Who stand to benefit?
Reparations need not be limited to those victims participating in judicial proceedings and may be awarded by the Court to all victims that have suffered injury and harm from the particular crimes for which a perpetrator is convicted.
The Court may award reparations to victims, as defined in Rule 85 of the Rules of Procedure and Evidence as â€śpersons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Courtâ€ť and or â€śorganization or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes [â€¦]â€ť. Eligible victims to benefit from reparations are those persons or organizations/institutions that have suffered injury and harm caused by the specific crimes over which the perpetrator is convicted. The conviction of a perpetrator for particular crimes is a therefore a precondition to the reparation of that harm or injury.
Within the ICC system, the Judges presiding over the case define the scope of victims affected directly and indirectly for the purposes of benefiting from reparations. The Court shall also establish what forms of harm suffered and, in the case of indirect victims, what level of causality should be applied for reparation purposes. The Court will decide which type of victims are eligible for reparations and the Court may defer to the Trust Fund the task of individually identifying victims and or groups of victims in accordance with established criteria.
Who delivers? The roles of the Trust Fund for Victims
The Trust Fund may have four distinct roles in relation to reparation awards before the ICC.
- 1. Implement the reparations award. The Court may make an order directly against a convicted person and â€śwhere appropriate, the Court may order that the award for reparations be made through the Trust Fundâ€ť.
- 2. Reparation awards â€śmade through the Trust Fundâ€ť, shall require the Trust Fund to take on the role of a financial administrator, holding and administering any resources collected through fines or forfeiture or awards for reparations that are transferred to the Trust Fund in accordance with stipulations or instructions contained in the Courtâ€™s orders, with particular regard as to the scope of beneficiaries and the nature and amount of the award(s).
- 3. The Trust Fund may itself be a source to fund reparation awards where the collected fines and forfeited resources of the convicted perpetrator are insufficient. The Board of Directors of the Trust Fund shall determine whether to complement resources collected through awards for reparations with â€śother resources of the Trust Fundâ€ť and shall advise the Court accordingly. The â€śother resourcesâ€ť as defined in the RTFV are voluntary contributions, donations received in accordance with Regulations.
- 4. The Trust Fund shall be a source of expertise providing field based knowledge and operational considerations to the Court that will inform their understanding of the context as they deliberate various options to craft reparations awards. Trust Fund implemented victim assistance projects in situation countries bestows valuable insight and practical knowledge on the Trust Fund regarding among other things; qualities of successful projects within a given context, familiarity with the socio-politico environment, and the cultural or religious dimensions within the situation.
The implementation of Court-ordered reparations will require the Trust Fund to work in close collaboration with various sections of the Courtâ€™s Registry, especially the Victims Participation and Reparations Section (VPRS), which during trial proceedings manages the process of receiving individual applications for reparations done by victims.
The Trust Fundâ€™s reparation and assistance mandates may reinforce one another, according to circumstances at hand.Each mandate does possess distinctive intrinsic qualities and independent dynamics and neither should be seen to stand in a hierarchic relationship to the other. There is a distinct advantage to the dual set of mandates of the Trust Fund: The assistance mandate enables the Trust Fund to target victims of crimes within the situation beyond those acts defined by particular trials. As such, it is a tool for timely intervention that may benefit victims in the absence of an arrest or trial. The assistance mandate also provides the Trust Fund with experience that renders it a valuable source of operational knowledge for the Court when devising an award for reparations.
Funding ICC Reparations: Who pays?
The primary source of funding Court-ordered reparations is the convicted person, by way of court ordered seizure of money and property collected through fines and forfeitures. A secondary source may be the Trust Fund for Victims: resources originating from voluntary contributions by States and other interested parties may be allocated for reparatory use.
The Regulations of the Trust Fund stipulate that without prejudice to the assistance mandate of the Trust Fund, the Trust Fund must ensure the availability of adequate resources to complement payments for reparation awards. In the event that a convicted perpetrator is deemed indigent, the Trust Fundâ€™s Board of Directors may determine to make available complementary financial means from its voluntary contributions. To that end, a reparations reserve of 1 million Euros has been set aside for use in the cases currently pending before the Court. This amount is roughly one third of the resources currently available to the TFV. The remaining two-thirds are dedicated to the Fundâ€™s victim assistance mandate currently implemented in Uganda, Democratic Republic of Congo, and Central African Republic (2012).
A strong collaborative partnership between the Court and the Trust Fund for Victims will be required to successfully administer the reparations phase. The Board of Directors of the Trust Fund is mindful of their roles and responsibilities and fully prepared to help make victim reparations before the ICC successful and credible venture.
For more information, visit: http://www.trustfundforvictims.org/
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Prospects:- International human rights treaties and instruments provide that victims of international crimes have the right to seek and obtain effective remedies for the violation of their rights. In honouring the victimsâ€™ right to benefit from remedies and reparation, the international community keeps faith with the plight of victims, survivors and future human generations and reaffirms international law in the field...International Courts and Tribunals
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