The creation of an International Criminal Court provides a unique opportunity to give effect to the right of victims of atrocities to reparations.6 Reparation to victims can take many forms, of which the establishment of the court and punishment of the perpetrators is one crucially important form. But there are other measures, from symbolic acts such as the erection of monuments recognizing that atrocities were committed, to direct acts of restitution or indemnification,7 which play a crucial role in the reparation to individual victims or societies more broadly.8 The making of reparations from perpetrator to victims can play a critical role in the healing process of victims and societies as a whole, and is itself a factorin preventing future violations. Reparation is an essential element in the administration of international justice.
The ICC should have the power to make binding orders for reparation in favor of the victims of crimes within its jurisdiction. It is important that the Court be endowed both with appropriately strong powers to make binding and enforceable reparations orders, and the necessary flexibility to determine the most effective way of providing reparation in each concrete case. While orders will be made against the individuals responsible, upon a finding of guilt, it is extremely important that the statute clarify the obligation of state parties to comply with requests of the Court, to give effect to its judgments, and, where the perpetrator was a state actor, to satisfy the reparation orders.
· Recommendation 1: The Court should have the power to award reparation to victims and their representatives. Delegates should strongly support retaining Article 73, with language empowering the Court, upon finding a defendant guilty, to make orders for reparations against the convicted person in favor of victims or their representatives.9 Reparation should be defined broadly to include restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
Comment: The statute should reflect the rights of victims and their representatives to reparations under international law in respect of serious violations such as those falling within the jurisdiction of the Court. The most efficient way for the international community to realize this right would be through the mechanism of the ICC.10
Consistent with emerging international legal norms,11 reparations must be understood, in a broad sense, to "include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition."12 The current text of Article 73 should therefore be supported in so far as it deals with "reparation," rather than solely compensation, as in earlier incarnations of this Article. We would encourage the inclusion of satisfaction and guarantees of non-repetition in the list of permissible forms of reparation, to reflect the full breadth of types of reparation recognized in the Basic Principles and Guidelines on the right to Reparation for the Victims of [Gross] Violations of Human Rights and International Humanitarian Law.13
The statute should adopt a broad approach to the definition of victim for these purposes. For example, international bodies have recognized that society as a whole can, in certain circumstances, be the victim of violations. Correspondingly, the Court should be able to make such reparations orders as it deems appropriate for the benefit of individuals or broader categories of victims.14
The statute should establish the power of the Court to make such orders and the Rules of Procedure should address practical questions such as the stage at which victims would present their claims, what the form of such claims should be, and the role of the Victim and Witness Protection Unit in facilitating such claims.
· Recommendation: The statute should clarify that reparation orders against individuals, as judgments of the Courts, should be binding on state parties and directly enforced by them. In certain circumstances, state parties may also be obliged to satisfy reparation orders.
Comment: While Article 73(66) establishes that reparation orders are to be made binding against individual perpetrators, these orders constitute judgments of the Court and, as such, states will be obliged by virtue of other provisions of the statute15 to enforce reparation orders. Accordingly, Article 73(5), which currently provides that states parties "assist" victims in the enforcement of orders, should be revised to reflect the mandatory nature of the obligation to enforce the Court's reparation orders.
Article 73 should be understood to be without prejudice to the duty of states to make reparations, as enshrined in international law. Moreover, in the case of defendants acting as state actors, the states should be bound to satisfy the reparation order on behalf of the individual perpetrators. In such cases, states should be given the opportunity to make relevant representations to the Court.16
· Recommendation : Empower the Court, for the purpose of reparation, to order the seizure or forfeiture of assets that are either the objects of crime, or that are owned by or in the possession of the convicted person.
Comment: If the above recommendation concerning reparations is to have practical effect, the Court should be empowered to provisionally forfeit and seize objects of crime or other assets belonging to the convicted person.17 The Court should have the power to provisionally seize property during the investigation pending resolution of a claim for reparations. The Court must also be authorized to permanently retain any such assets in the event of a final judgment against the convicted person.
Article 79(a): Penalties
· Recommendation: The proceeds of fines imposed by the court should benefit the victims of crime.
Comment: This provision should be an addition, rather than alternative, to the above system for reparation. In itself this provision would be insufficient, as it would not necessarily involve any reparations between the perpetrator of a particular crime and the victim thereof. While this provision would not therefore provide for satisfaction of the victim's right to reparation as such, it would have a valuable complementary role, for example where judgements on damages cannot be enforced, or to compensate victims other than those with claims before the ICC. We believe 79(a) to be the only appropriate proposal on allocation of fines.18
9 See also recommendations to Article 75(b) on including fines among the penalties to be added.
10 The statute must recognize the reality that where national systems have, by definition, been unwilling or unable to administer criminal justice, it is unlikely that those systems will be able or willing to give effect to the victims' right to reparations.
11 The Inter-American Court on Human Rights concluded, in its judgment on reparation in the Velasquez Rodriguez case, ibid, that "Reparation of harm brought about by the violation of an international obligation consists on full restitution which includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm."
12 Theo van Boven, "Basic Principles and Guidelines on the Right to Reparation..."
13 Theo van Boven, "Basic Principles and Guidelines on the Right to Reparation..."
14 In these circumstances, given the vast numbers of individuals, their representatives, and groups who may be victims of the crimes within the jurisdiction of the Court, the power of the Court to award forms of reparation of a broader symbolic, rather than purely financial, nature will be of particular importance.
15 See Article 93 on enforcement of judgments.
16 If the individual was a state actor, then by virtue of general principles of vicarious responsibility the state may be bound to satisfy the reparation order on behalf of the individual perpetrator.
17 This proposal was made at the August Preparatory Committee by the French delegation.
18 In the section on penalties in the full report, we argue that fines should not be allocated to trial costs or to states.
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