The ICC regime of victims' reparations: more uncertainties and inconsistencies brought to light by recent cases.

• Author: Lambert, Elisabeth
• Position: International Criminal Court

I Introduction

With the gained conviction that participation and reparations play an important role in achieving justice for victims, (1) the Rome Statute of the International Criminal Court ('Rome Statute (2) ) has enabled victims, for the first time in history, to move 'from a passive and marginalised position to an active and central one'. (3) As 'reparations to the victims of the most serious international crimes are critical components of the Rome Statute', (4) ensuring 'meaningful reparations and a successful implementation of reparation orders including coherent principles for victims' reparations stands among the strategic goals of the International Criminal Court ('ICC'). (5) This ambitious victim-centred approach has been recommended by the United Nations ('UN') as this process is due to be 'empowering and transformative'. (6) From the beginning, the ICC has affirmed the success of the reparations would be crucial to the success of the Court itself, (7) a statement shared by regional Human Rights Courts. If the importance of reparations is unanimously acknowledged, the hybrid regime set up by the Rome Statute has seemed rather awkward and shaky, relying exclusively on the individual criminal responsibility and drawing on two bodies, the ICC on the one hand and the Trust Fund for Victims ('TFV') on the other hand. (8) Previous academics, while supporting this new regime, have quite unanimously been sceptical, to say the least. (9)

The aim of this article is thus to consider, in light of the most recent practise by the ICC, (10) whether this hybrid and bizarre regime has been successful at providing victims with remedies. The methodology used is traditional black-letter law, focusing on the analysis of all the documents available on the website of the ICC concerning the reparations stage. The first leading decision was the Lubanga case delivered on 7 August 2012, with two very different views given by the Trial Chamber and the Appeals Chamber. (11) The Trial Chamber decision on principles and procedures on reparations had been strongly criticised and rejected for outsourcing 'the reparation regime largely to the Trust Fund for Victims', (12) while the Appeals Chamber 'adopted a more perpetrator-centred model'. (13) On 24 March 2017 the Trial Chamber II rendered the reparation Order in another case nearly three years after the judgment sentencing Katanga to 12 years' imprisonment for crimes committed in 2003. (14) Moreover on 17 August 2017 a Reparations Order was delivered in the Al Mahdi case. (15)

This author suggests to assess the current regime in the light of three dimensions: the determination of eligible victims, the types of reparations allocated and the implementation issue. Informed by her expertise in repairing victims of violations of human rights, (16) her demonstration turns around the idea that the recent practise has even exacerbated the already existing inconsistencies, uncertainties and conflicting views between the ICC, the Defence, the TFV and Victims. She recommends the ICC to adopt a less ambitious profile in order to achieve this rather complex challenging issue.

II From an Inclusive to a Manageable Definition of Eligible Victims

The definition of victims given by rule 85(a) of the Rules of procedure and Evidence ('the ICC Rules') (17) is quite broad, covering any 'natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court'. Under rule 85(b), it may also include 'organisations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes'. Rule 86 adds that the ICC, 'in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence'. This inclusive approach has been supported from the very beginning. Victims must not be applied unfairly or in a discriminatory manner, whether they participated in the trial or not. Yet a gender-inclusive approach has been privileged, for the reason that, for the UN, it leads to 'embrace the concept of transformative reparations'. (18)

This inclusive approach informed by the initial ideal view that repairing victims was the best way to achieve justice, made a perfect fit with the easily measurable goal of attaining a large number of victims. Thus, in 2014, the Assembly of States Parties requested the Court to develop qualitative and quantitative indicators in order to assess its overall performance. The Court, with the assistance of the Open Society Justice Initiative, developed four key goals, (19) only one of which referring to victims under the labelling of 'Victims have adequate access to the Court'. In its first report, the Court held that 'Due to the sheer number of victims of mass criminality, expectation management is a crucial element of the Court's communication strategy'. (20) Two indicators were set up:

'Average time lapse per case between application and a decision on acceptance or otherwise, also considering the number of participating victims per case (b) Percentage of affected populations that are reached in practice through the Court's outreach activities or others involved (e.g. assisting NGOs, Trust Fund for Victims)'. (21) In the second Report, this same goal was measured with the indicator 'number of victims seeking reparations per case vs. accepted'. (22) With the same quantitative approach, the Court considered that the future indicators should include the 'Number of victims for each case benefitting from reparations projects during the reporting period' and the 'number of victims benefitting from assistance mandate-related TFV projects vs. overall estimated number of victims'. (23)

Such indicators look simplistic and focus too much on measuring quantity over quality (a similar remark we made on indicators used to measure the European Court of Human Rights' performance). (24) The Court itself acknowledged that more sophisticated indicators were probably required but that it would be impossible for the Court to undertake victims' surveys using existing resources. (25) The awkward timing was that in 2012, whereas the workload of the Court was dramatically increasing with a larger number of victims, 'the Court had its work cut out to develop a strategy that was both convincing and deliverable'. (26) Other regional human rights Courts, in particular the European Court of Human rights, had to face very similar developments: refusal by governments to adapt resources to an increasing workload and the need to repair more victims. (27) Obviously States strongly fear an increasing role such supranational judicial bodies may play, while they only fill the gap of failed national systems. Yet, as was rightly noted,

'Whenever capacity limits or adjudicative failures of the ICC become apparent, victims are used as argument to defend the legitimacy of the Court. When trial expediency or budget are discussed, victims are presented as an obstacle to the Court's performance or success. This contradiction will never be entirely solved, and might to some extent be a productive tension in the Court's design'. (28) Since the Lubanga case, the ICC has clarified that an order for reparations should have five elements (29), the fifth one being that the identification of eligible victims 'based on the link between the harm suffered by the victim and the crimes for which the person was convicted'. In conformity with article 75(2) of the Rome Statute, eligible victims are limited to victims of the crimes prosecuted and convicted against an individual perpetrator. (30). Therefore 'the limited eligibility of victims can create further problems between victims who receive reparations before the ICC and those who do not, thus creating a "reparation gap" and risking further victimisation or discontent by recognising only certain victims over others'. (31) It is no exaggeration to say that participating victims at the ICC and eligible victims for reparations are only the tip of a very large iceberg. Undoubtedly, many victims are also unwilling to participate for security concerns (32) and/or additional personal reasons.

To this first source of exclusion, another one concerns the difficulties to define eligible indirect victims, the definition of direct victims being quite uncontroversial. (33) The TFV shares the view that a casual cultural approach should be privileged, (34) and that the concept of family should extent 'beyond the spouse and children of a victim'. (35) The broad definition adopted in the Lubanga case (36) (including not only the family members of the direct victim but also those who suffered harm when intervening to protect the direct victims) was inevitably disputed in the Katanga case by the Defence who tried to narrow it down to 'close family members', that is 'family members of direct victims' and 'other persons who suffered personal harm as a result of these offences'. (37) The Defence was relying on the European concept of family and on the international approach as being quite limited to the nuclear family. On another issue, in the Bemba Gombo case, the UN making observations on the Draft Plan suggested that the concept of victims should include children born as a result of pregnancy form rape and victims' dependants more broadly. (38) Because of the crimes against cultural heritage, a quite broad approach has been adopted in the Al Mahdi case to include the whole national and even international community. (39)

Thus there exists a contradiction between the previously announced quantitative approach (the TFV can undoubtedly include a great number of victims in the assistance...