Chapter 2 Historical and Legal Context of Reparations for Victims of Crimes under International Law (Overview)
In this chapter an overview will be provided of the historical and legal context of the ICC reparation system. Generally, the incorporation of the Court’s mandate to order the offender to make reparations to victims is in line with a growing trend both in the national and international law context. e focus of this trend is the right of victims of crimes, including crimes under international law, gross violations of international human rights law and grave violations of international humanitarian law, to repara- tions.
A. National Law
Providing reparations to the victim of a crime has a long history in the domestic sphere. In many ancient communities, reparations awarded by the offender to the victim or his or her tribe was the central element of sanctioning a crime.Also, at the origins of criminal law, victims were responsible for the initiation of proceed- ings against the offender. With the transfer of criminal justice from the private to the public sphere, the role of victims in criminal proceedings progressively faded. While in more traditional societies the victim continued to play a more active role in
See for a general overview e.g. E. Barkan: e Guilt of Nations – Restitution and Negoti- ating Historical Injustices. New York, , pp. et seq.; W. Hassemer; J. P. Reemtsma: Verbrechensopfer – Gesetz und Gerechtigkeit. München, ; M. Joutsen: e Role of the Victim of Crime in European Criminal Justice Systems – A Crossnational Study of the Role of the Victim. Helsinki, , pp. et seq. Regarding pre-colonial African and Aboriginal societies e.g. N. Nsereko: “Uganda”. In: Wiedergutmachung im Kriminalrecht – Internationale Perspektiven – Reparation in Criminal Law – International Perspectives. Eds. A. Eser; S. Walther. Vol. . Freiburg i. Br., , pp. et seq. at pp. et seq. On Western legal history e.g. A. Ashworth: “Some Doubts About Restorative Justice”. In: Criminal Law Forum (), pp. et seq.; C. Roxin: “Strafe und Wiedergutmachung”. In: Festschrift für Werner Lorenz zum . Ge- burtstag. Eds. T. Rauscher; H.-P. Mansel. München, , pp. et seq. For an overview see I. Bottigliero: Redress for Victims of Crimes under International Law. Leiden, , pp. et seq. S. Zappalà: Human Rights in International Criminal Proceedings. Oxford, , p. . Ibid. Chapter II
criminal justice, in most societies of the North, the focus of criminal justice was on the perpetrator of the crime only. Bassiouni assesses that “[f]or reasons of social or- der or because of a social implied “social contract”, organized society has substituted the individual’s right of unilateral vengeance or redress with a social system repre- sented in the twin aspects of legal redress embodied in criminal and civil branches of the law and judicial organizations. In other words, organized society […] separated the right to exact punishment, which devolved from the individual to the state, from the right to civil redress, which remained the individual’s prerogative.” Particularly in jurisdictions with a common law background a tradition was established of a strict separation between criminal prosecution, left in the hand of the state authorities, and civil litigation, being the only context in which victims could present their claims. In traditionally civil law countries, an effort was made to preserve a role for victims in the criminal process in the form of a right to participation in the proceedings (as a partie civile), with the central purpose of obtaining reparation. Starting in the late s, in systems following both legal traditions, greater atten- tion has been paid to the role of victims in criminal trials, and their role and rights have been strengthened. A shift of paradigms can be observed, a move away from
M. Nowak: “ e Right to Reparation of Victims of Gross Human Rights Violations”. In: Reparations – Redressing Past Wrongs. Eds. G. Ulrich; L. Krabbe Boserup. (Human Rights in Development – Yearbook ). e Hague, , pp. et seq. at p. . C. M. Bassiouni: “ e Philosophy and Policy of International Criminal Justice”. In: Man’s Inhumanity to Man – Essays on International Law in Honour of Antonio Cassese. Eds. L. C. Vorah; F. Pocar; Y. Featherstone (et al.). e Hague, , pp. et seq. at pp. et seq.; S. Schafer: Victimology – e Victim and His Criminal. Reston, Virginia, , p. : “As the state monopolized the institution of punishment, the rights of the injured were slowly separated from the penal law: composition, as the obligation to pay damages, became separated from criminal law and became a specific field of civil law”. See e.g. S. Zappalà: Human Rights in International Criminal Proceedings. Oxford, , p. ; M. Heikkilä: International Criminal Tribunals and Victims of Crime. Turku, , pp. et seq. S. Zappalà: Human Rights in International Criminal Proceedings. Oxford, , p. . E.g. numerous victim compensation schemes were established with included methods such as victim-offender mediation, family conferencing, the ability of crime victims to present victim impact statements in the sentencing phase has become widespread, in particular in common law jurisdictions, and other reparative measures. e culmination of many of these initiatives was the unanimous agreement by the UN General Assembly of the Victims Declaration. For further discussion see e.g. M. Joutsen: e Role of the Victim of Crime in European Criminal Justice Systems – A Crossnational Study of the Role of the Victim. Helsinki, , pp. et seq.; S. Garkawe: “Victims and the Inter- national Criminal Court – ree Major Issues”. In: International Criminal Law Review (), pp. et seq. at pp. et seq.; M. Heikkilä: International Criminal Tribunals and Victims of Crime. Turku, , p. ; P. R. Dubinsky: “Human Rights Law Meets Private Law Harmonization – e Coming Conflict”. In: Yale Journal of International Law (), pp. et seq. at p. ; C. Jorda; J. de Hemptinne: “ e Status and Role of the Victim”. In: e Rome Statute of the International Criminal Court – A Commentary. Eds. A. Cassese; P. Gaeta; J. R. W. D. Jones. Vol. . Oxford, , pp. et seq. at p.