International Criminal Court
One of the key features of the ICC is the possibility for victims to benefit from reparations. Provisions regarding reparations appear in Article 75 of the Statute and Rules 94-98 of the Rules of Procedure and Evidence. Article 75 (1) provides that the Court shall ''establish principles relating to reparations to, or in respect of, victims'' and, based on these principles, the Court may ''determine the scope and extent of any damage, loss and injury to, or in respect of, victims''. Paragraph (2) authorizes the Court either to ''make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation'' or, where appropriate, to ''order that the award for reparations be made through the Trust Fund provided for in article 79''.
Paragraph (3) provides that before making an order for reparations, the Court "may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States." Victims' requests for reparations would be filed with the Registrar, who would duly notify the person named in the request or identified in the charges and, to the extent possible, any interested persons or any interested States, subject to any protective measures.(2) Rule 95 of the Rules of Procedure and Evidence provides that the Court, when determining orders for reparations on its own motion, would request the Registrar to notify the persons against whom the order may be made, and to the extent possible, victims, interested persons and interested States.
While those interested in making representations regarding reparations are required to file written requests with the Registrar in accordance with Rules 94 and 95, it is envisioned that oral representations could be made in certain circumstances. These representations would be made during the sentencing hearing or subsequent hearings scheduled by the Trial Chamber.(3)
Rule 97 specifies how reparations are to be assessed. Paragraph 1 provides that "Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both," and Paragraph 2 allows for the appointment of "appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations. The Court shall invite, as appropriate, victims or their legal representatives, the convicted person as well as interested persons and interested States to make observations on the reports of the experts." The reparations provisions are without prejudice to the rights of victims under national or international law and are without prejudice to the responsibility of States under international law.
The possibility for the Court to award collective reparations is likely to have a significant effect in shaping and developing new jurisprudence on creative means and mechanisms for reparations. There is likely only to be a limited amount of funds for reparations awards when compared with the rights and needs of victims, and therefore collective awards may be, at times, the only method to bring a certain measure of justice to victims.
Paragraph (1) of Rule 98 provides that "individual awards for reparations shall be made directly against a convicted person", and paragraphs (2) - (4) detail modalities for using the Trust Fund for Victims to allocate or distribute the reparations awards made by the Court to victims. Paragraph (2) provides that the Court may order that awards for "reparations against a convicted person be deposited with the Trust Fund where at the time of making the order it is impossible or impracticable to make individual awards directly to each victim," whereas paragraphs (3) and (4) provide that awards for reparations be made through the Trust Fund, "where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate", or when made "to an intergovernmental, international or national organization approved by the Trust Fund." Paragraph (5) provides that "other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79." At the time of writing, the Board of Directors of the Trust Fund continued to discuss the modalities for the operation of the Trust Fund for Victims.
The Court may decide to request assistance from States Parties such as the execution of searches and seizures and the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes, for the purposes of facilitation of forfeiture proceedings.(4) States Parties would have the obligation to give effect to fines and forfeitures ordered by the Court, as well as reparations orders.(5) In this regard, Rule 217 of the Rules of Procedure and Evidence provides that: "the Presidency shall, as appropriate, seek cooperation and measures for enforcement, as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person's assets and property or with which the victim has such connection." Rule 218(3) provides that "in order to enable States to give effect to an order for reparations, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) In respect of reparations of a financial nature, the identity of the victims to whom individual reparations have been granted, and, where the award for reparations shall be deposited with the Trust Fund, the particulars of the Trust Fund for the deposit of the award; and (c) The scope and nature of the reparations ordered by the Court, including, where applicable, the property and assets for which restitution has been ordered." In accordance with rule 219, national authorities do not have the ability to modify the reparations specified by the Court, the scope or extent of any damage, loss or injury determined by the Court or the principles stated in the order. However, parties adversely affected can appeal orders for reparations.(6)
The initial draft statute relating to the International Criminal Court, prepared by the International Law Commission made no provision for reparation, other than to propose that the Court be empowered to order that fines paid be transferred to a trust fund established by the UN Secretary General for the benefit of victims of crime.(7) There was strong resistance to the call for a reparation regime for the ICC. It will be difficult enough for the ICC to meet what was understood to be its core mandate - bringing perpetrators of crimes within the jurisdiction of the Court to justice. Reparations could potentially cloud procedures before the Court, and there will be practical challenges for the ICC to decide on the form and extent of reparations, exacerbated by the fact that judges come from a wide array of legal jurisdictions.(8) There was also concern that the introduction of reparations provisions would somehow invoke principles of State responsibility,(9) when the Court had a clear focus on individual responsibility. Some feared that the exercise would be futile, in that many individual perpetrators who might be called upon to pay reparations would be without the means to pay.(10)
The influence and practice of the ad hoc tribunals in the development of the statute and rules of the Court cannot be underestimated. Many of the challenges of the ad hoc tribunals in relation to victims stem from their lack of direct voice in, and their inability to impact upon, procedures before the Court.
The manner in which national jurisdictions will enforce the reparations orders of the ICC is left open,(11) and it is not clear how national courts will deal with competing claims for assets. Will they prioritise orders emanating from the ICC? To what extent will the Court inquire into the adequacy or effectiveness of domestic reparations regimes, where they exist?
The Trust Fund for Victims
Although the Statute does not refer to the potential role of States Parties in providing victims with compensation for injuries when the perpetrators cannot, it does provide in Article 79 for the establishment of a Trust Fund for Victims, "for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims." This Trust Fund could in principle step in to provide relief to those victims for whom reparations orders had been awarded but where no enforcement of the awards was possible due to the insolvency of the perpetrator or the inability to recover his/her assets. Its precise scope of activities has not yet been defined, though this may well be one of the desirable usages for the Fund.(12) It is clear, however, that the Fund will be under-resourced, at least at the outset and the demands for funds will be far greater than what could feasibly be supplied. Individual victims may look to other, possibly more solvent debtors (aside from or in addition to the individual perpetrators convicted by the Court) to ensure that they receive some form of redress. This may require that they lodge actions for reparation before national courts.(13)
- Article 57(3)(e) provides that the Pre-Trial Chamber may "seek the cooperation of States pursuant to Article 93, paragraph 1(k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims." This provision may well be of critical importance to the realisation of reparations awards, in those instances where there are assets and they are traceable. Rule 99(1) of the Rules of Procedure and Evidence specifies that: "the Pre-Trial Chamber, pursuant to article 57, paragraph 3(e), or the Trial Chamber, pursuant to Article 75, paragraph 4, may, on its own motion or on the application of the Prosecutor or at the request of the victims or their legal representatives who have made a request for reparations or who have given a written undertaking to do so, determine whether measures should be adopted." According to David Donat-Cattin, supra. n. 16 at p. 966, Paragraph 4 of Article 75 could be read as limiting any measures that could be taken, to the post-conviction phase. He states, in reference to the debates regarding the adoption of this Paragraph, that: "Several states participating in the ICC negotiations were nonetheless cautious on the matter. On the one hand, they based their attitude against protective measures on the strict interpretation of the presumption of innocence, and more broadly, the right of the accused not to be potentially damaged by a provisional measure such as freezing of assets. On the other hand, some delegates feared that non-crime related property could have been subject to such measures, thus infringing upon very serious prohibitions related to property rights under their domestic law." He notes, however that Article 57(3)(e) would give rise to protective measures before conviction.
- Rule 94 of the Rules of Procedure and Evidence.
- Article 76(3) of the Statute and Rule 143 of the Rules of Procedure and Evidence.
- Paragraph (5) of Article 75 provides that "the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this Article, it is necessary to seek measures under Article 93, paragraph 1." Article 93(1)(h) deals with searches and seizures and (k) with the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes.
- Article 75(5) specifically refers to the applicability of Article 109 (dealing with the requirements of States Parties to enforce fines and forfeitures, and/or to take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited), to the reparations orders of the Court.
- Article 82(4) of the Rome Statute provides that "A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence."
- Report of the International Law Commission on the Work of its 46th Session, 49 U.N. G.A.O.R., 49th Sess., Supp. No. 10, UN Doc A/49/19 (1994), article 47(3)(c)).
- These issues are discussed at length by Christopher Muttukumaru, Reparations to Victims, in The International Criminal Court The Making of the Rome Statute: Issues, Negotiations, Results, ed Roy S. Lee in Cooperation with the Project on International Courts and Tribunals. Kluwer Law International,1999, at pp. 262-64.
- Ibid., at 267: "It became obvious that a significant number of delegations were not prepared to accept the notion of State responsibility to, or in respect of victims. However, this refusal does not diminish any responsibilities assumed by States under other treaties and will not - self-evidently, prevent the Court from making its attitude known through its judgments in respect of State complicity in a crime."
- See generally, Muttukumaru, Id. See also, David Donat-Cattin, Article 75, in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court. Observers' notes, Article by Article. Nomos Verlagsgesellschaft, Baden-Baden. (1999), at 966.
- The way in which States enforce fines or forfeitures is "in accordance with the procedure of their national law".