To what extent our international criminal proceedings able to remedy the harm of victims? Trials contain multiple features that have reparative effects. The revelation of atrocities, the acknowledgement of responsibility and the clarification of facts. Courts like the ICC or the extraordinary chambers in the courts of Cambodia combine the criminal process with reparation to victims. In this video, we will discuss if this makes sense and how this is done. The trend to combine a criminal trial with remedies for victims is grounded in the increasing recognition of the right to reparation under international law. In human rights law, reparation is regarded as a key element of the right to an effective remedy for violations. States have a duty to provide reparation for victims of human rights violations. In case of violations of international humanitarian law, parties to the armed conflict must pay compensation. It is increasingly recognized that duties of reparation arise not only in the relationship between individuals and states but also in the relationship between individuals. In some cases like Karadžić, victims have sued individual perpetrators through civil litigation in foreign courts. The idea to pursue reparation directly through a criminal process may be explained by several considerations. The rise of victims rights, the fact finding powers of the criminal process and the ambition to extend enforcement beyond domestic courts. Specific mass-claims mechanisms of regional human rights courts. It serves at least three important functions from a justice perspective. First, reparations introduce a new type of responsibility. The offender is not only held accountable for the crimes through a public process but faces direct responsibility towards the victims. Second, reparations recognize victims as holder of rights and their individual harm. Third, reparations have a certain redistributive effect that is otherwise lacking in the criminal process, that provide not only symbolic but also certain material benefits to the victims of crime. How do international criminal courts and tribunals approach reparations? Reparation is a relatively new phenomenon. In the context of the UN ad hoc tribunals, or the Special Tribunal for Lebanon, reparation was neglected. It was essentially left to domestic courts. Today, there are at least two major models, a civil model and a criminal model. And the civil model, adjudication of reparation, is essentially an annex to criminal proceedings. The most classical example is Cambodia. Victims were allowed to act as civil parties in the criminal process based on the domestic legal tradition. In the context of Cambodia, the forms of reparation were limited. Chambers were allowed to avoid collective and moral reparation to civil parties, but no direct monetary payment. The criminal model is based on a different premise. Reparation is an integral part of criminal proceedings involving victims and a defendant. It combines retributive and restorative features. Accountability is grounded in the obligation to repair harm, but linked to the punitive dimensions of justice, such as conviction and a culpability for criminal acts. This approach is reflected in the ICC. The ICC regime foresees two mechanisms. Formal determinations of reparations against a convicted person by the Trial Chamber and measures of assistance by the trust fund for victims. The two categories differ fundamentally. Reparations against a convicted person are judicial in nature. They are determined by an order of the Trial Chamber. The modalities of this mechanism were clarified by a landmark decision of the ICC in Lubanga. The appeals chamber made it clear that the establishment of accountability towards victims is an asset, per se, even in cases where the defendant has no financial resources. And, in this case, Lubanga was penniless. The appeals chamber specified that the liability for reparations needs to be established separately in each case in addition to the conviction. It held that the trial chamber must clearly define the harm caused, establish causality, identify the modalities of reparations, and specify the victims eligible. Resources for reparations stem from different sources. Fines against the convicted person. Forfeiture of property and assets derived from the crimes. Potential earnings after conviction and enforcement of the sentence. And general resources of the ICC Trust Fund for Victims, which is supported by voluntary financial contributions. Reparations against a convicted person are distinct from general assistant measures of the trust fund. This is the second mechanism. Such measures are meant to provide an immediate response to the urgent needs of victims and their communities. The are not dependant on prosecutorial charges or conviction. The trust fund used this assistance mandate for instance to provide physical and psychological rehabilitation for victims in the situations in DRC and Northern Uganda, including reconstructive surgery for women and children. Such assistance is exclusively financed through the resources of the trust fund. One of the main dilemmas of reparation is that need and demand exceed capacity. It is virtually impossible to provide full reparation, restitution in integrum to every victim. In some context, such as the case of Jean-Pierre Bemba, the former Vice-President of the DSC, the ICC has managed to seize bank accounts, real estate and property, for purposes of reparation. But in many cases, defendants do not have these resources. They are indigent. The ICC trust fund has a budget of around ten million Euro for all ICC situations. This makes it necessary to apply a broad variety of modalities and forms of reparation. Article 75 of the ICC statute lists three main forms, restitution, that is restoration of the original situation of the victim before the violation. Compensation of economically assessable damage. And rehabilitation, such as provision of medical services and healthcare. These three forms of reparation are geared towards material benefit. There's a need to consider a fuller range of reparation measures available. This includes satisfaction, such as public statements, formal apologies, re-naming of public spaces or memorials, and guarantees of non-repetition. These measures may be just as important as material benefits. For instance, in K001, the trial chamber in Cambodia found that the publication of statements of apologies or expressions of remorse during the trial was the only tangible means by which the accused could acknowledge his responsibility and the collective suffering of the victims. It included the name of all civil parties and their deceased relatives in the judgement. Additionally, there's a strong need to consider collective forms of reparation. That is reparations that benefit a larger collectivity of victims. International crimes are typically collective crimes carried out against specific groups or collectivities. Approaching reparation through the lens of individual rights and entitlements is therefore not always helpful. Collective reparation is particularly relevant with cultural contexts where the role of the individual is closely tied to collective structures like families, communities and environment. The community-based approach was, for example, supported by the ICC in the Lubanga case. Collective reparation includes education, memorials and health programs for the benefit of victim populations. Reparation poses delicate tensions. There are first of all selectivity dilemmas. The ICC system creates at least three different classes of victims. Situation related victims who are recognized but do not receive any material benefit. Victims who benefit from non-traditional assistance measures by the trust fund. And victims who are entitled to reparation. This distinction may cause grievances among collectivities. The Lubanga Case post problems since it involved narrow charges and victimization within one group, namely the Hema population. Harm unrelated to child soldiers and harm suffered by other groups was left unaddressed. Second, reparations must reconcile the rights of victims with the rights of their convicted person. The current regime contains an imbalance. The liability must be proportional to the harm caused and the role of the perpetrator in the commission of the crime. But the perpetrator who is convicted first may bear the responsibility for the entire harm to a community. This dilemma raises fairness and equality concerns. So what have we learned? First, we've seen that reparation was traditionally related to claims by individuals against states. But nowadays, it is rightly acknowledged that duties of reparation for atrocity crimes also arise in the relationship between individuals. Second, we've learned that there are multiple avenues for individuals to pursue such claims. Domestic courts or specific civil mass claims mechanisms are typically the main forum for reparation claims. However, international criminal courts and tribunals have an important complimentary role. They may clarify responsibility, identify harm, and redress certain forms of injury and marginalization. Third, we've seen that adjudicating reparations through a criminal process requires certain adjustments. Human rights law mandates individual consideration of complaints and effective remedies. But these prerequisites cannot be transposed in a linear fashion to reparation proceedings between victims and defendants. This has become evident in Lubanga. There's a risk that participation in criminal proceedings is driven by unrealistic expectations. The ability of perpetrators to do harm is greater than the ability to repair damage. Collective representation and reparation is thus a necessity, in particular if the number of victims moves up from several hundred to several thousands. Fourth, there's a widespread perception among victims that participation leads to reparation. It should thus be made clearer that both procedures, participation and reparation serve different functions. Finally, there are some concerns relating to the effectiveness of judicial procedures. In light of this, some voices argue that reparative measures should be left entirely to the trust fund. We will explore the effectiveness of International Criminal Justice in the next lecture. Please stay tuned.
