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Reparations Before the International Criminal Court: Th E Early Jurisprudence on Victim Participation and Its Impact on Future Reparations Proceedings

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Reparations Before the International Criminal Court: Th E Early Jurisprudence on Victim Participation and Its Impact on Future Reparations Proceedings Reparations before the International Criminal Court: Th e Early Jurisprudence on Victim Participation and its Impact on Future Reparations Proceedings By Carla Ferstman* and Mariana Goetz** A. Introduction Th e Statute of the International Criminal Court (ICC) has gone further than those of other international tribunals in incorporating processes that positively affi rm victims’ dignity, including their right to be kept informed about legal proceedings, special measures of protection and support, the ability of victims to participate in legal proceedings independent from any role they may have as prosecution witnesses, and their right to claim reparations before the ICC for the harm they suff ered. Equally, a specialised trust fund has been estab- lished to both complement the ICC’s reparative mandate and assist with its implementation. Th ese elements are an integral part of the Court’s mandate to mete out justice for the worst crimes. Th e public nature of criminal proceedings, the formal iden- tifi cation of the perpetrator and the assignation of responsibility can help meet victims’ requirements of justice. Bringing perpetrators to justice might also con- tribute to the immediate security of victims and help to prevent future crimes; it can also help clarify the events surrounding the commission of crimes and make clear that a wrong was done. Providing additional forms of relief to victims, such as restitution, compensation and rehabilitation will also help to address victims’ immediate and long term physical and psychological needs, and assist them to re-integrate into society.1 Many victims will have been displaced by confl ict, have * Director, REDRESS. ** ICC Programme Advisor, REDRESS. 1 Y. Danieli, “Preliminary Refl ections from a Psychological Perspective” in Kritz, N.J. (ed.) Transitional Justice: How Emerging Democracies Reckon with Former Regimes. Vol. 1 General Considerations, 1995, United States Institute of Peace Press, Washington. Ferstman et al. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, pp. 313–350. © 2009 Koninklijke Brill NV. Printed in the Netherlands. 314 Carla Ferstman and Mariana Goetz lost their homes and livelihoods, and will literally need to start from scratch to rebuild their lives and fi nancial compensation can help address some of the harm or impairment caused by the crime,2 though it will rarely, if ever, succeed in fully repairing what was shattered or restore the person to their former position.3 Since the ICC came into force in 2002, the Prosecutor has investigated a number of situations giving rise to crimes under the Statute and a number of cases are underway. At the time of writing, investigations have commenced in relation to crimes allegedly committed in the Democratic Republic of Congo, Uganda, Sudan and Central African Republic. Arrest warrants have been issued against Th omas Lubanga Dyilo, Bosco Ntaganda, Germain Katanga and Mathieu Ngudjolo Chui in the Democratic Republic of Congo; Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen in Uganda; Jean- Pierre Bemba Gombo in relation to crimes said to have been committed in Central African Republic and Ahmad Muhammad Harun, Ali Muhammad Ali Abd-Al-Rahman and Omar Hassan Ahmad Al Bashir in relation to Darfur, Sudan. Th omas Lubanga Dyilo, Germain Katanga, Mathieu Ngudjolo Chui and Jean-Pierre Bemba Gombo are in custody in Th e Hague with their cases underway. Victims are already involved in a variety of ways in ICC proceedings. Th ey are in touch with the Offi ce of the Prosecutor and other organs of the Court; their needs for protection and support have been considered and in a number of cases special measures have been aff orded. Th ey are participating in legal proceedings as independent participants and some have lawyers representing their interests in this capacity. Th e Court’s Trust Fund for Victims has also started to function, with its fi rst assistance projects identifi ed for aff ected areas. Th e Court has not yet begun to implement its reparations mandate. Article 75 of the Statute provides that the Court may order reparations following convic- tion,4 and it will be some time still before any of the cases currently before the ICC result in conviction. Nonetheless, there are a number of preparatory steps the ICC can take to make certain that it can determine reparations at the appro- priate time. Th ese steps include establishing the procedures by which victims are informed of the reparations process and invited to apply. Th ey also include devel- oping the wherewithal to eff ectively search for, freeze and seize property and assets for the ultimate benefi t of victims, determining the principles to guide the 2 R. J. Daly, “Compensation and Rehabilitation for Victims of Torture” Danish Medical Bulletin, 27(3): 1980, 245–248. 3 Danieli, supra n. 1. 4 Paragraph 2 of Article 75 provides that: “Th e Court may make an order directly against a con- victed person specifying appropriate reparations to, or in respect of, victims, including restitu- tion, compensation and rehabilitation.”.
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