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The International Journal of Human Rights
ISSN: 1364-2987 (Print) 1744-053X (Online) Journal homepage: http://www.tandfonline.com/loi/fjhr20
Reparations for victims at the International
Criminal Court: a new way forward?
Luke Moffett
To cite this article: Luke Moffett (2017): Reparations for victims at the International
Criminal Court: a new way forward?, The International Journal of Human Rights, DOI:
10.1080/13642987.2017.1360005
To link to this article: http://dx.doi.org/10.1080/13642987.2017.1360005
Published online: 17 Aug 2017.
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Reparations for victims at the International Criminal Court:
a new way forward?
Luke Moffett
School of Law, Queen’s University Belfast, Belfast, UK
ABSTRACT
Reparations at the International Criminal Court (ICC) raise victims’
expectations that they would have an avenue of redress in the
face of domestic impunity. This article examines the purpose of
reparations at the ICC, which notably move away from the
international-law state-centric modes of liability for reparations to
more private-law individual liability and even developmental or
subsidiary responsibility when provided by the Trust Fund for
Victims. At the crux of the debate on reparations at the ICC rests
the challenge of delivering justice to victims of international
crimes against the limited capacity and jurisdiction of the Court.
To overcome these limitations and to better realise expectations
of reparations at the ICC, this article explores the promise of
transformative reparations in trying to widen the benefits of
reparations beyond those victims who suffer crimes by a
convicted person, as well as tackling the causes of such crimes.
Likewise this article will posit the role of complementarity and
state responsibility in filling the gap between expectations and
possibilities of reparations. In concluding it will also examine
future prospects and challenges of a separate reparations chamber.
KEYWORDS
Reparations; victims;
complementarity; Trust Fund
for Victims; International
Criminal Court; state
responsibility
Introduction
Most articles on reparations and other victim provisions at the International Criminal
Court (ICC) often open with how ‘innovative’these provisions are for a criminal court.
However, nearly 20 years on from the agreement on the Rome Statute in 1998, there
has yet to be a shared understanding on how reparations should look at the ICC.
Despite three convictions and one guilty plea at the Court, there have only been two
reparation decisions, in the Lubanga case in 2012 and in the Katanga case in 2017, and
reparations in the Lubanga case have only begun to make it out of the courtroom to
the victims in 2017. The novelty of reparations has faded as the hard reality of translating
meaningful redress for thousands of victims into practice becomes apparent. These chal-
lenges stem from loading reparations for numerous victims on the back of the conviction
of a single person. The ICC remains a criminal court with reparations copied and pasted at
the end, leaving them dependent on which perpetrators and charges are convicted.
1
© 2017 Informa UK Limited, trading as Taylor & Francis Group
CONTACT Luke Moffett l.moffett@qub.ac.uk School of Law, Queen’s University Belfast, 70 University Road, Belfast,
UK, BT7 1NN
THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS, 2017
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Although there were reasonable expectations that the ICC would deliver justice to
victims, the failure to dispense timely, adequate and appropriate reparations continues
to undermine the legitimacy of the Court. More worryingly, there has been limited recog-
nition of certain types of victimisation and access to the court, in particular sexual and
gender-based violence. Despite the factual occurrence of sexual violence in the first four
cases completed before the Court, only the Bemba case saw the first conviction for rape
at the ICC. The lack of convictions for sexual violence has not been due to lack of partici-
pation from victims, but rather due to insufficient evidence or narrow selection of
charges.
2
This article explores the continuing legal wrangles over reparations at the ICC. It begins
by outlining the reparation regime at the Court, including a discussion on the drafters’
intention in including such measures, before moving on to examine three continuing
quandaries of reparations at the ICC: the relationship between the charges a perpetrator
is convicted of and victim eligibility; the role of the Trust Fund for Victims (TFV) and
its assistance mandate; and instances of acquittals and the role of the state where an acquit-
tal occurs. These predicaments reflect the continuing disputed role of reparations at the
Court amongst judges, victims and other organs of the Court. In particular this article ana-
lyses reparations for sexual violence, which were prevalent in the first few cases before the
ICC and in calls for reparations, yet remain limited to assistance programmes by the TFV.
In light of the contested space of reparations at the ICC this article explores three possible
options to find a more settled approach to delivering justice to victims, through such
measures as transformative reparations, reparative complementarity and a reparations
chamber.
Justifying reparations at the International Criminal Court
Reparations in the Rome Statute were one of the cornerstones of the more victim-centred
approach of the ICC, distinguishing it from previous international criminal tribunals. In
the early drafts of the Rome Statute before the International Law Commission, some del-
egates felt that reparations would be inappropriate for a criminal court, owing to their
complexity and the large numbers of victims affected by international crimes.
3
In order
to overcome this a trust fund was included for the ‘benefit of victims of crime’collected
from fines or confiscated property.
4
Subsequently the Preparatory Commission deemed
it was more feasible to make the state responsible for reparations if an individual convicted
person acting in an official capacity was indigent, or, in the case of non-state actors, to
allow the Court to recommend reparations to the affected state.
5
At the Rome Conference there was a general consensus amongst states to prevent the
ICC having the authority to order reparations against a state as this would detract from
punishing individual perpetrators.
6
As a result, Article 75 in the Rome Statute is explicitly
limited to individuals, with the TFV in Article 79 included to act as a stopgap for funding if
the convicted person has no assets. However, Article 79 also provides that it will be for the
‘benefit of victims of crimes within the jurisdiction of the Court’, which has been inter-
preted by the Assembly of State Parties as creating an assistance mandate beyond just facil-
itating reparations.
7
In comparison to other international reparation bodies, such as the Inter-American
Court of Human Rights or the United Nations (UN) Claims Commission, the ICC
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represents a unique reparations system. It is not based on state responsibility and it does
not follow more tort or delicts requirements of private law. Instead the ICC system rep-
resents something closer to the partie civil procedure prevalent in civil-law countries,
where victims join the criminal case to seek compensation.
8
Although the partie civil
analogy may make sense for a criminal court, it is grossly inadequate when addressing
international crimes and reparations, where the issue of numerous victims is also com-
pounded by the complexity of the trial, the political nature of violence and the larger com-
mission of violence by numerous actors, and other crimes that are not captured in the
prosecution of one or a few individuals.
Other international criminal tribunals have highlighted the constraints of containing
reparations within a criminal process. Not long after the adoption of the Rome Statute,
the judges at both ad hoc tribunals for the former Yugoslavia and Rwanda wrote letters
to the UN Security Council supporting victims’claims for compensation before those tri-
bunals, but finding that reparation proceedings would be time consuming, likely to
increase the workload of the Tribunals, and contrary to the defendant’s right to an expe-
ditious trial.
9
Instead, the judges suggested that a separate claims commission established
by the UN Security Council would be better placed to realise victims’rights to reparation.
Effectively, the drafters’intention of the Rome Statute was to give effect to notions of
‘justice for victims’by allowing them to claim reparations against individual convicted
persons, but not to encroach upon state responsibility. As the ICC started to complete
its first few cases, from 2012 onwards, the implementation of this framework ring-
fencing responsibility around convicted individuals only has started to strain the feasibility
of reparations at the Court in practice.
The current quandary: between law and expectations
Despite the overarching goal of doing justice for victims through reparations, there remain
two major fault lines that continue to cause debate amongst ICC judges: the relationship
between the charges of which the perpetrator is convicted and eligibility for victims; and
the role of the TFV and its assistance mandate. A third emerging issue has caused more
confusion in the recent Ruto and Sang case with regards to situations where there is insuf-
ficient evidence to proceed or a defendant is acquitted, leaving it uncertain what role or
responsibility the ICC and the state where the crimes occured have in ensuring ‘justice
for victims’with reparations.
Relationship between convicted charges and victim eligibility for reparations
Article 75(2) clearly states that the ‘Court may make an order directly against a convicted
person specifying appropriate reparations to, or in respect of, victims’. However, it does
not stipulate whether such reparations should be based on the charges of which the per-
petrator is convicted or a broader examination of his/her responsibility assessed against a
lower evidential standard for the purpose of reparations. In the Lubanga case, aside from
the Trial Chamber and Appeals Chamber disagreeing over whether or not Thomas
Lubanga was responsible for reparations, with the latter finding he was, the Chambers
also fundamentally disagreed on which victims were eligible for reparations.
10
As Chappell
also outlines in this special issue, this stems from the narrow charges brought by the
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Prosecutor against Lubanga for only using child soldiers, despite the numerous other
crimes he was allegedly responsible for and the challenges victims made to the Court to
broaden them to include sexual violence.
11
Although the Prosecution called for sexual vio-
lence to be included in the sentencing and reparations decisions, they presented no further
evidence than that which was incidentally raised through witness testimony or questions
by the victims’legal representatives.
12
As a result, reparations in the first case of Lubanga
were limited to those who were child soldiers in his militia. Accordingly, victims’eligibility
for reparations at the ICC is dependent on the Prosecutor’s selection of charges and per-
petrators, effectively a prioritisation of suffering based on evidence and expeditiousness
that creates a stark hierarchy of victimhood in reparation proceedings.
It make legal sense that a person should only be held to account for the crimes of which
they are found guilty and the added expressive dimensions for victims in acknowledging
the convicted person’s responsibility for their suffering.
13
However, this very much reflects
that reparations are an ‘add-on’to the criminal trial. This is contrary to the nature of
reparations, which are intended to be victim-centred in responding to their harm,
rather than being dependent on the identification, prosecution or conviction of an
accused.
14
As Stahn asserts, the Appeals Chamber stipulates a more ‘perpetrator-
centred’vision of reparations at the ICC.
15
This has implications on the burden of
proof, the proportionality of reparations of which the perpetrator is found liable and
the role of victims in the trial proceedings.
16
This can be seen in the Katanga Trial
Chamber decision, where, based on his liability as an accessory to the Bogoro massacre,
he was found to be only proportionally responsible for US $1,000,000 out of US
$3,752,620, for the harm caused to the victims.
17
As Williams and Palmer note, similar
limitations exist with the Extraordinary Chambers in the Courts of Cambodia, and prose-
cutors can be cautious in how they approach or neglect certain crimes, closing or limiting
avenues for victims to obtain redress before international courts.
18
The convoluted nature
of reparations at the ICC and the narrow victim eligibility for such measures is further
obscured by the role of the TFV and its assistance programmes.
Role of the Trust Fund for Victims and its assistance mandate
Despite an Appeals Chamber decision and order on reparations, the role of the TFV and
its mandate for reparations and assistance remain contested. In the Lubanga case the TFV,
which has been funding a number of assistance programmes in the Democratic Republic
of Congo, was held by the Trial Chamber as being ‘well placed’to ‘determine appropriate
forms of reparations and to implement them’.
19
The Appeals Chamber modified the Trial
Chamber’s approach, which made victim participation dependent on whether the TFV
‘considers it appropriate’.
20
Moreover, the Appeals Chamber stipulated that victims
would be consulted on collective reparations before the TFV implements them, clawing
back some of victims’agency in the reparation process.
21
However, the Appeals
Chamber rejected the Trial Chamber’s endorsement of the TFV’s suggestion of commu-
nity-based reparations.
22
As a result, the Appeals Chamber clarified the line between
reparations and assistance, with the former being responsive to victims’rights and the
latter benefitting affected communities, as well as vindicating victims’agency before the
ICC in reparation proceedings. Yet the Court has rejected attempts of the victims in the
Lubanga case to appeal decisions and reparation plans by the TFV, despite Article 75(3)
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envisaging such a right of appeal for victims in reparation proceedings.
23
The Appeals
Chamber’s approach represents a shift from the Trial Chamber’sdecisioninLubanga
that rubber-stamped the TFV’s five-point plan for reparations, which effectively gave
them decision-making powers over it, to the Appeals Chamber’sclosersupervisionof
each stage of the TFV implementation of reparations by a newly constituted Trial
Chamber II. Nevertheless, victims are not parties with complete legal agency to shape
reparation decisions, with the Chamber deferring instead to the TFV in shaping and deliver-
ing reparations.
In the Lubanga case the TFV has begun to implement symbolic measures, such as com-
memoration centres and mobile memorialisation of child soldiers’harm, including radio
programmes and community sensitisation meetings in affected communities in Ituri to
sensitise them to child soldiers’needs before commencing the provision of collective ser-
vices.
24
The TFV has also initatited is collective reparations for child soldier victims that
include psychological and physical medical services, as well as socio-economic develop-
ment programmes, such as vocational and skills-based courses.
25
Many of these measures
mirror assistance programmes already operated by the TFV, so their reparative value for
victims in the long term remains to be seen. Some victims have already voiced their dis-
satisfaction with the process, that even though reparations are being collectively adminis-
tered by the Trust Fund, the defence are still able to check individual applications from
victims, who have to disclose their identity, causing some to withhold such information
out of fear for their security.
26
There has been a sharp turn away from the only symbolic and collective approach in the
Katanga reparation decision to acknowledging that victims do have a right to individual
reparations. As a result of victims’demands for compensation, the Trial Chamber agreed
to award US $250 per victim to acknowledge their suffering.
27
Despite the TFV saying it
was unable to make individual reparations in the Lubanga case,
28
in the Katanga case it
found that under Regulation 56 of its Regulations and Rule 98 of the Court’s Rules of Pro-
cedure and Evidence it could support individual compensation and other reparation
measures to victims. The Trust Fund based this pivot on ‘re-reading’of regulation 56 of
its discretion to complement reparations orders at the Court with other resources
within the fund, provided it did not prejudice funds for assistance, in particular funds ear-
marked by donors.
29
This demonstrates that the TFV is evolving its approach and listen-
ing to victims; as it said itself, in supporting individual awards it takes ‘tremendous
deference [to victims] …. the Trust Fund should, to the extent feasible, facilitate the realis-
ation of the wishes of victims with respect to how best to remedy the harm that they have
suffered’.
30
Since the Appeals Chambers judgment in 2015, the contest concering appropriate roles
has continued with the TFV arguing that community-based reparations are the only way
for reparations to become ‘meaningful for cases of mass atrocities which fall under the jur-
isdiction of the Court’.
31
Furthermore, the TFV asserted that the definition of a victim
under Rule 85 of Court’s Rules of Procedure and Evidence was too narrow, and benefici-
aries of reparations do not need to meet such a standard.
32
The Appeals Chamber noted
that while victims of sexual violence would be ineligible for reparations in the Lubanga
case, it is appropriate for the Board of Directors of the TFV to consider including such
victims within its assistance mandate at its discretion.
33
This exhibits the distinction
between the limits of the reparations regime imagined by the drafters of the Rome
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Statute and the rhetoric and want of ICC actors to expand the benefits of reparations as
assistance to the largest possible group of victims.
The continuing wrangling over reparations between the judges and TFV suggests that
the TFV is struggling to fit into a judicial model its mostly assistance approach, where it is
used to more discretion in distributing funds based on needs rather than responding to
victims’rights.
34
This reflects a critical juncture between reparations as a right to be
claimed by victims with legal standing, and a discretionary needs-based approach. The
TFV’s role in reparations risks diluting victims’‘right’to reparation by merging it with
assistance. The Appeals Chamber only recognised that assistance and reparations may
become blurred where it risks prejudicing the rights of the convicted person, rather
than as a concern for ensuring victims’right to reparation.
35
Effectively, this approach
endangers decades of victims’struggling for redress to seek reparations against responsible
actors. The ‘rebranding’of assistance and reparations is going to undermine the accep-
tance of such measures on the ground by victims and their perceptions of legitimacy of
the ICC in tackling impunity and delivering justice to victims.
It is likely that the vast majority of cases before the ICC that result in reparations will
always be dependent on the TFV for financial support and reparations delivery. In cases
where perpetrators have substantial financial assets these are likely to be depleted through
funding their defence counsel, such as the in Bemba case where the defendant had over €5
million in assets seized, but over €2.79 million had been spent by December 2014, and he is
now a defendant in a witnessing tampering trial.
36
Dixon refers to this as the ‘Swiss cheese
model’whereby the TFV assistance mandate is used to ‘fill in the gaps of reparations
regimes where they are restricted by legal definitions of victims and victimization’.
37
However, the difficulty with reparations at the ICC is that these gaps remain quite
wide, so that even well-coordinated assistance is unlikely to provide sufficiently meaning-
ful redress to victims. In all, the emerging ICC reparations regime is overly elaborate and a
headache even for lawyers. This complex system is likely to change again with the third
case of Bemba where there are not hundreds of victims as in the first two cases, but thou-
sands in the Central African Republic, where violence continues and the TFV has no
presence.
Acquittals and the responsibility of the state
The final contested area of reparations at the ICC involves situations where a defendant is
not found responsible for a crime, such as there being insufficient evidence against them,
the defendant dies or is declared unfit during the trial, or the defendant is ultimately
acquitted, preventing any reparation proceedings. This is the situation that judges faced
in the collapse of the Ruto and Sang case, due to insufficient evidence against the
accused. The judges were divided on whether or not reparations could be ordered
despite no one being convicted. As Judge Fremr bluntly stated:
As a result of the case ending without a conviction, no reparations order can be made by this
Court pursuant to Article 75 for the benefit of victims of the post-election violence. While I
recognise that this must be dissatisfactory to the victims, a criminal court can only address
compensation for harm suffered as a result of crimes if such crimes have been found to
have taken place and the person standing trial for his or her participation in those crimes
is found guilty.
38
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Judge Fremr acknowledged that the post-election violence (PEV) and victims’suffering
was never contested.
39
Yet this position reflects the fatal flaw of reparations at the ICC
that after years of waiting for justice and with the Court being the last resort for
redress, reparations are ultimately dependent on which individuals and charges are
convicted.
It comes as no surprise that one of the other judges was compelled to bridge the gap
between victims’expectations and the mandate of the ICC under the more general
rubric and marketing of the Court of ‘doing justice for victims’. Judge Eboe-Osuji distin-
guished the collapse of the Ruto and Sang case from the Appeals Chamber reparations
decision in the Lubanga case.
40
Although he recognised the value in placing the respon-
sibility for making reparations at the feet of those who cause such harm to victims,
despite their indigence, he suggested that this was not the only basis for reparations at
the ICC.
Judge Eboe-Osuji broke away from the Lubanga case reasoning by stating that, based
on other sources of international law, ‘there is no general principle of law that requires
conviction as a prerequisite to reparation’.
41
He argued that a conviction is an undesirable
prerequisite for reparations, given that victims suffer harm regardless of the individual
responsibility of perpetrators and individual litigation is inefficient, which has often
seen states create no-fault criminal compensation schemes. As such, Judge Eboe-Osuji
asserted that the ICC process establishes victims’victimhood status and reparations
should follow from it, rather than from the finding of guilt of the accused, which is
‘beyond the control of the victims’.
42
That said, his finding in the Ruto and Sang case
being frustrated by a campaign of the Kenyan government and its failure to provide
reparations or effectively investigate the PEV could give rise to an obligation to make
reparations at the international level. Accordingly, while courting the boundaries of expli-
citly limiting reparations to convicted persons, and the drafters’intent to avoid state
responsibility, Judge Eboe-Osuji suggested the reparations be based on the Kenyan gov-
ernment’s lack of cooperation and called upon victims to submit their views and
concerns.
43
In response, the common victims’legal representative (CVLR) Wilfred Nderitu argued
that the Kenyan government has a ‘reversionary national obligation’to make reparations
to victims, and that by ceding to international treaties and the Rome Statute Kenya accepts
the normative obligation to ensure victims’right to reparations. He also suggested that the
Kenyan act implementing the Rome Statute into national law makes provision for ‘any
assistance’, which could be interpreted as including the Court making a request of the
Kenyan government to ensure victims receive reparations.
44
Agreeing with Judge Eboe-
Osuji, the CVLR was able to look past the language of Article 75(2) in requiring a convic-
tion as the sole basis of reparations. Instead, given the failure of the Kenyan government to
investigate and remedy the PEV, it incurs state responsibility. Moreover, the CVLR argued
that despite his own mandate to represent victims in the case, all victims in the Kenyan
situation should be eligible for reparations.
45
Correspondingly, given the Kenyan govern-
ment’s lack of cooperation with the ICC and its failure to fulfil its obligations under the
Rome Statute, the Court should make an order against it or at least refer it to the Assembly
of State Parties for non-compliance.
46
Ultimately, the majority of judges in Trial Chamber
V(A) rejected the standing of the CVLR and Trust Fund to make submissions on
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reparations as the case against Ruto and Sang was terminated, ending the jurisdiction of
the Court.
47
This evolving position in the aftermath of the collapse of the Ruto and Sang case rep-
resents the ambiguous legal boundaries the judges are working within while trying to
attain some form of meaningful justice for victims. The language of Article 75(2) states
that the ‘Court may make an order directly against a convicted person’. There is no explicit
limit on reparations being connected to the convicted person, but in practice after years of
trial proceedings all the evidence will point to the accused, and it is a different proceeding
to examine the responsibility for other actors for reparations. That said, during Lubanga’s
trial Uganda and Rwanda were implicated in training and supporting him, implying their
responsibility in his crimes. Judge Eboe-Osuji postulates the responsibility of states in
reparations before the ICC, but does not go so far as to promise to rule on it. There are
political and financial consequences as the Assembly of State Parties could exert pressure
on the Court by withholding funds or making a finding of failing to cooperate with the
ICC.
48
Overcoming these challenges
Given these limitations and the continued debate over the purpose and legal basis of
reparations at the ICC, where can the Court go from here? There are three possible sol-
utions: transformative reparations, reparative complementarity, and a reparations
chamber.
The promise of transformative reparations at the ICC
Transformative reparations have been increasingly advocated in the aftermath of wide-
spread or systemic sexual violence, where the occurrence of the crime reflects more
ingrained structural discrimination and marginalisation of certain groups that precipitate
such violence. More broadly, transformative reparations have shifted the gaze on the
nature of reparations to examine the gendered impact of conflict on women as well as
social and economic rights.
49
According to Rubin-Marín, reparations can also have a
transformational potential ‘to subvert, instead of reinforce, pre-existing structural …
inequalities and thereby to contribute, however minimally, to the consolidation of more
inclusive democratic regimes’.
50
Yet ruptures in governance and the law may not offer
opportune moments to reform social and cultural perceptions and practices when more
pressing needs of security, peace and redress need to be tackled.
There has been increasing attention to tackle sexual violence in terms of transformative
reparations so as to better address the causes and cultures that precipitate such violence.
51
The Nairobi Declaration 2007 states that reparations
must drive post-conflict transformation of socio-cultural injustices, and political and struc-
tural inequalities that shape the lives of women and girls; that reintegration and restitution by
themselves are not sufficient goals of reparation, since the origins of violations of women’s
and girls’human rights predate the conflict situation.
52
It is within this theoretical space that reparations in the Lubanga case were constructed in
collective terms to victims, as transformative reparations, no matter how limited, could
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contribute to preventing future violence.
53
The TFV drawing from academic research and
the Nairobi Declaration recognised the limits of restitutio in integrum and advocated for
transformative reparations that would eliminate ‘the pre-existing structural inequalities
that have led to or encouraged the violence’.
54
Adopting this approach, the Trial
Chamber stated:
Reparations may include measures to address the shame felt by some former child soldiers,
and to prevent any future victimisation, particularly when they endured sexual violence,
torture and inhumane and degrading treatment following their recruitment. …the Court’s
reparations strategy should, in part, be directed at preventing future conflicts and raising
awareness that the effective reintegration of the children requires eradicating the victimisa-
tion, discrimination and stigmatisation of young people in these circumstances.
55
The Appeals Chamber agreed with such an approach, given that it is for the TFV to deliver
reparations.
56
It may be just hopeful thinking and rhetoric that one reparation award by the ICC can
transform a society and prevent future conflict. Durbach and Chappell note that the trans-
formational reparations proposed by the TFV and Chamber suggest an ‘aspirational’goal,
but it was not challenged by other parties before the Court.
57
Ullrich, in her research of
Court judges and staff, suggests that transformative reparations are superficial and even
neo-colonial.
58
The ICC does not have a democratic mandate to reform State Parties’
societies through reparations. Transformative reparations need to be placed within their
political, economic, social and cultural context.
59
Moreover, using victims’claims for
reparations as a means of social engineering risks exploiting their suffering to improve
the legitimacy of the Court and the State. As Walker suggests, beyond the challenges of
practical realism and political feasibility, transformative reparations risk displacing the
victim-centred nature of reparations in remedying their harm and instrumentalising
them for social justice.
60
As such, transformative reparations can undermine the impor-
tance of the remedial and individual acknowledgement of victims’suffering, by placing
it secondary to improving a society and preventing future victimisation. This tension
between remedial and transformative reparations was noted by the Peruvian Comprehen-
sive Reparations (PIR) that, in developing a reparations programme,
the PIR cannot and should not be considered as one more instrument of social policy. The
PIR does not seek to resolve problems of poverty, exclusion and inequality, which are struc-
tural in nature and respond to the overall operation of the political and economic system.
While some of its programs can and should contribute to improving the quality of life of
victims and their family members, its central objective is the repair and recognition of
victims as human beings, whose fundamental rights have been violated. This does not
mean that the State should not also undertake a policy of social development aimed at attack-
ing poverty and inequality at the root …but the PIR responds to other goals.
61
As such, the transformative potential of reparations rests in their ability to prioritise and
publicise victimisation and underlying structural inequalities that precipitated or com-
pounded violence. Where reparations are used solely to prevent future victimisation,
such as community education or human rights training for armed forces, they may not
redress individual victims’harm. This risks overburdening the expectations of reparations
in affected communities and forces those victimised to forgo their remedy in the wide
hope of reconciliation and peace. In such circumstances victims of past violence are
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silenced or neglected to extend the gaze of the transition to future peace and reconciliation.
This is a result of judicially based reparations being delivered through an assistance-man-
dated TFV, which fundamentally changes the nature and benefit of such reparations to
victims.
Reparations as a vehicle of remedy are victim-centred measures of redress to vindicate
victims’rights. As such victims are in the front passenger seat giving directions on what
reparations are appropriate in redressing their harm, with judges steering the process.
The current Lubanga reparations scheme places the TFV in the driver’s seat, with the
judges as passengers watching the Trust Fund’s advance of its peacebuilding and assistance
mandate, and victims left behind on the side of the road, no better off. In looking forward
to preventing future violence, victims become increasingly distant, shrinking objects in the
rear view mirror as we move closer to tackling wider causes of violence, maximising
welfare or community benefits. Ultimately, the greater the focus on transformative repara-
tions at the ICC, the further we lose sight of redressing the harm of those who suffered the
most. While in the Lubanga case transformative reparations may benefit female child sol-
diers who suffered sexual violence, by including them in rehabilitation or community
awareness schemes, it negates the acknowledgement and more direct remedy of their indi-
vidual harm.
As there is usually not a clear demarcation between transformative and more corrective
or restorative reparations, this academic debate may be moot in practice. The Trial and
Appeals Chambers in the Lubanga case both abdicated their oversight of what reparations
should substantively involve by allowing the TFV to shape reparations, rather than taking
into account what was appropriate for the victims. In the Katanga case the victims are
more at odds with this approach, with the majority demanding individual compensation
and finding collective and transformative measures ineffective as non-victimised members
of the community were able to benefit.
62
The Court took on board the victims’demands,
and despite limited funds, agreed to award a symbolic individual amount of US $250 per
victim.
63
This amount was the same for individuals who lost family members, had their
property pillaged and/or suffered physical or psychological injuries from the massacre.
This may undermine the value of redress and principles established in Lubanga, and
the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation
on appropriate and adequate compensation based on the gravity of the harm an individual
victim suffers.
64
The quandary of reparations at the ICC reflects an existential crisis for the Court,
which, tasked with investigating, prosecuting and punishing perpetrators, is then left at
the end of the process with trying to address the rights of victims. The Court itself does
not have a coherent approach for what reparations should look like; instead the TFV is
able to portray its assistance mandate as reparations, which from the Katanga case is
not what victims want. Framing reparations at the ICC as transformative and through
the TFV as repackaged assistance is likely to cause victims to disengage from the Court,
as their role is reduced to policy legitimisation and facilitation for others rather than
their individual redress. This has already occurred with 47 victims withdrawing their par-
ticipation in the Ruto and Sang case (before it collapsed) on the ground that collective
reparations would benefit the communities that contributed to their victimisation.
65
Ultimately, the TFV reparations construction in the Lubanga case is effectively trying to
deliver guarantees of non-repetition, which are really the responsibility of states. The TFV
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is unlikely to have the capacity to deliver such measures on a large-scale, long-term and
meaningful way. It requires more modesty and realism of the ICC and the TFV in
trying to, as far as possible, acknowledge and alleviate the suffering of the few victims
who are able to make it before the Court’s reparation proceedings. This also requires
the Court to more actively seek state cooperation and rethink the obligations of state
parties and the notion of complementarity.
Revisiting reparative complementarity
If the ICC is an ineffectual or inappropriate locus in delivering transformative repara-
tions, then the state in which the crime occurs is the primary actor to ensure the rights
of victims.
66
In the Lubanga case the judges missed an opportunity to call upon the
Congolese government to establish a national reparations mechanism; instead, they
suggested that the state could cooperate through educational or outreach activities to
acknowledge victims’harm and to increase society’s awareness of the crimes committed
by Mr Lubanga.
67
In the Katanga case, the Chamber recognised that the reparations
order in the case does not absolve the Congolese government of its responsibility for
reparations under other treaties and its obligations to cooperate with the ICC, and
directed the Trust Fund to establish how the state can cooperate with the reparation
process.
68
The relationship between the Court and State Parties is guided by the principle of
complementarity, in that states have the primary obligation to investigate and prosecute
international crimes with the ICC only intervening as a last resort where the state is
unable or unwilling to meet its obligations –so-called ‘negative complementarity’.
69
Positive complementarity is, in narrow terms, how states can be encouraged to inves-
tigate and prosecute international crimes; in broader terms, it is how the ICC can cat-
alyse wider transitional justice processes in a country guided by fair trial practices and
human rights. In terms of reparations, complementarity could begin to fill the gap
between the limited number of victims who will be eligible for redress at the ICC
and the larger population of individuals and groups who have suffered from inter-
national crimes in a situation. This has been termed ‘reparative complementarity’in
that to provide reparations effectively in a situation such as that of the Democratic
Republic of Congo, the State Party needs to create a domestic reparations programme
to complement any reparation awards by the Court.
70
Otherwise, reparations at the
ICC benefit only a few victims in a situation, which could cause tensions within com-
munities or secondary victimisation to those victims excluded from the Court’s awards.
Reparative complementarity does not go so far as a ‘reversionary obligation’,as
suggested by the CVLR in the Ruto and Sang case, but recognises the role states
should actively play in developing domestic reparation programmes given their existing
human rights obligations to provide a remedy for such violations whether committed
by state or non-state actors.
71
What should reparative complementarity look like? In terms of sexual violence,
Durbach and Chappell assert that to achieve gender justice for sexual violence ‘requires
extensive state-sponsored, collective measures to bring about equal gender representation
in decision making, a significant redistribution of economic resources and the removal of
socially and culturally embedded gender-biased practices’.
72
Transformative reparations
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could achieve some of these goals, but even reparations have their limits. It would require
substantial engagement of a multitude of state and non-state actors to tackle the causes
and consequences of violence, that goes beyond simply the formulation of reparations.
Although transformative justice forces us to think about the structural nature of violence,
it cannot by itself replace the work of transitional justice and reparations in remedying the
harm felt by individuals and communities.
To transform the legal regime for sexual violence, laws on rape, domestic violence, and
procedural and evidential rules on vulnerable witnesses and victims would need to be
reformed. This may be too interventionist for the ICC, which was established to investigate
and prosecute international crimes, rather than to catalyse diverse national legal systems
into a strict, uniform approach to addressing atrocities. Moreover, the need for changes in
terms of gender representation and economic redistribution require a substantial rethink-
ing of the constitutional, social and cultural practices of a country. In addition, gender
equality and the impact of crimes against women would need to be substantively
addressed, but so does the structural harm suffered by other victims. There is a danger
of creating a hierarchy of victimhood by only prioritising gender in reparation debates;
while gender is vital, there are other marginalised victims such as children, those left dis-
abled or seriously injured, indigenous or ethnic minorities, or families of those disap-
peared who also acutely require reparations to alleviate their continuing suffering and
to prevent the repetition of such crimes. There has been little engagement on reparations
by situations complementing the work of the ICC. This could be due to the controversial
and costly nature of reparations, which goes to the heart of debates on who is responsible
for the violence, and who deserves to be acknowledged as a victim and their harm
remedied.
In narrow terms, reparative complementarity can ensure that state parties fulfil their
obligations to cooperate with the ICC in terms of identification, tracing and freezing of
assets, or the exhumation of grave sites in returning bodies of those disappeared to
families.
73
A more expansive approach to complementarity as a transitional justice
driver in a country risks overburdening the ICC with a superjudicial function that
requires its jurisprudence has political weight that can override domestic democratic
processes. With the collapse of the Kenyan cases at the ICC, there is a strong
impetus to think about what the cooperation obligations are on states and how best
the ICC and the Assembly of State Parties can enforce such duties. More recently,
the TFV has started to engage with a reparative complementarity approach in its
assistance mandate, with the announcement of its programme in Côte d’Ivoire to col-
laborate with the government to assist victims in ‘articulating their views and desires
with respect to government-provided reparations programmes’.
74
This may be the start
of a long-term approach in delivering reparations at the ICC in collaboration with
states. With the forthcoming cases of Gbagbo and Blé, where there is a domestic
reparation programme in Côte d’Ivoire, it will be interesting to see the interaction
of the Court and the TFV in whether it will refer the victims in this case to the
National Commission for Reconciliation and Compensation for Victims (CONARIV)
in Côte d’Ivoire, rather than award reparations before the Court. A key determiner
will be whether or not CONARIV can effectively satisfy victims’right to reparations
for international crimes, as at the moment it only provides individual compensation
awards.
75
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A reparations chamber
Given the length of trials, the requirements of victims’eligibility for reparations being
limited to those charges and individuals convicted before the ICC, and that victim partici-
pation in the trial is unnecessary to claim reparations, it is perhaps worth thinking about
creating a separate reparations chamber within the ICC, unconnected to criminal convic-
tions. Some may question whether the ICC is best situated to deal with reparations beyond
those who are convicted before it. Yet, given that the Court is often the only international
or external adjudicating body dealing with these situations and is the only permanent
forum for international crimes for 124 state parties, it is well placed to be an avenue for
redress for victims where states are unwilling or unable to provide reparations. Although
regional human rights courts to an extent do this already in Latin America, Europe and
Africa, their jurisdiction is for wider human rights violations and the responsibility of
the state. Increasingly, international crimes are transnational, committed by a range of
non-state armed groups, mercenaries, multi-national corporations and states with
limited or no forums for redress for victims.
76
A reparations chamber at the ICC would
focus on more acute international crimes where state parties are unwilling or unable to
investigate, prosecute or provide a remedy to victims.
Others have advocated for such a separate reparations chamber or commission, due to
the challenges currently facing the ICC reparations regime.
77
This author has been reluc-
tant to advocate for a separate chamber, given that those who have done so before have
intended it to remove victims from participating in trial proceedings at the Court.
Victims participating at the ICC play an important part in ensuring the transparency of
trial proceedings and to effectively protect their interests.
78
A reparations chamber as
suggested here would not remove victims from participating in ICC criminal proceedings,
but would instead provide reparations to victims in situations by directly engaging with
states. The TFV could be used to provide more interim awards to those victims applying
to the Court, such as rehabilitation, similar to the provisional measures of the Inter-Amer-
ican Court of Human Rights to prevent death or irreparable harm.
79
Alternatively, the
TFV assistance mandate could be focused directly on those victims before the ICC
through provisional measures, which could help to concentrate resources on those cases
before the Court.
In terms of procedural and evidential rules, victims’legal representatives would lead the
presentation of evidence, supported by the Office of Public Counsel for Victims and the
Victims Participation and Reparations Section. Victims would have to satisfy the lower
evidential burden of proof on the balance of probabilities common to reparations proceed-
ings. The lower evidential threshold would allow a broader establishment of the harm that
was suffered. Victims’application forms to participate and claim reparations would be
submitted early in proceedings, enabling the chamber to begin to map out the crimes,
harms and views of victims on what reparations would look like. In order to protect
the rights of any later-identified individuals or responsible organisations, they would be
invited to participate and any finding of civil responsibility could not be relied upon as
evidence for a criminal trial, given the lower evidential burden. That said, factual findings
on whether or not certain crimes happened in a location, the nature of conflict, etc. in a
reparations judgment could guide trial chambers’understanding of a conflict, but would
be inadmissible in proving the defendant’s criminal responsibility. Alternatively, if
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reparations proceedings have not commenced, then a criminal conviction would be used
for a basis of reparation as currently is the case under Article 75(2). Individual convicted
persons found guilty would then contribute to reparations through symbolic measures
such as acknowledgments of responsibility or voluntary apologies, or by more material
means through court-ordered seizure of their assets.
80
Under the Rome Statute, the Presidency could create a reparations chamber as part of a
trial chamber.
81
After the Lubanga decision, Trial Chamber II has effectively become a
reparations chamber, given that it is dealing with the implementation of reparations in
the Lubanga case and adjudicated on the reparations in Katanga case. The Appeals
Chamber judgment on reparations in the Lubanga case also sets down clear monitoring
and implementation requirements for the trial chamber and the TFV in carrying out
reparation orders, such as identifying eligible victims. This practice is making Trial
Chamber II increasingly specialised in the adjudication on reparations. Moreover, given
the distinct nature of reparations, lower evidential threshold, increasing participatory
rights for victims and differing legal principles, it makes sense that the expertise gained
by court staff and judges is retained in a specialised reparation chamber. This can be com-
plemented by powers already available to the court in appointing reparations experts ‘to
assist it in determining the scope, extent of any damage, loss and injury to, or in respect of
victims and to suggest various options concerning the appropriate types and modalities of
reparations’.
82
A reparations chamber would allow victims to petition the Court directly for reparations
from the opening of a situation, rather than victims having to wait years for a criminal con-
viction. This solution provides a dual-track approach to providing justice to victims and
ending impunity by at the same time investigating and prosecuting those responsible and
allowing victims to come forward and make their case for reparations. A reparations
chamber would also contribute to facilitating and monitoring states in building capacity
on reparations. As the ICC itself could not deliver reparations to all victims in a situation,
it could highlight the issue and order such awards to be carried out by the state with support
from the TFV and Assembly of State Parties. Such an approach would balance the ICC from
being perpetrator- and retribution-focused to more comprehensively doing justice for
victims. Of course, this proposal could be dismissed as naïve for expanding the scope of a
reparations system which is already overburdened with just two reparation orders so far.
There would be challenges for low-income countries in affording large reparations pro-
grammes, but innovative solutions can be found, such as World Bank or other donor
support reparations, as in Nepal, and countries like Sierra Leone and Ivory Coast have
begun to deliver reparations to such victims despite their low-income status. Given the
ICC’s unique position as a permanent international court on international crimes, it is
well placed to be an avenue of redress for the world’s most serious crimes and to be a
focal point for reparations. States and the ICC have to work together in delivering justice
beyond criminal trials to avoid a hierarchy of victims by delivering reparations to all
those who seriously suffer from international crimes.
Conclusion
Reparations in law are about acknowledging, remedying and alleviating victims’suffering.
The inclusion of reparations in the Rome Statute of the ICC offered the promise of tangible
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and symbolic redress for victims of international crimes. Yet nearly two decades on from
the signing of the Rome Statute and five years since the first reparations judgment, repara-
tions have yet to make it into the hands and hearts of victims. Continuing legal wrangles
on reparations at the ICC are trying to make an unworkable system feasible, but victims
are increasingly losing out as time passes.
The problems with reparations at the ICC stem from pasting it onto the end of a crim-
inal trial, which undermines its victim-centred nature. How far can we go with the current
reparations model at the ICC? How can the Court maintain any sort of legitimacy in the
eyes of victims, that it does not re-victimise them by creating unrealistic expectations or
reparations so convoluted that they make no difference? The alternatives are to drop
reparations from the ICC, or to uncouple reparation proceedings from the criminal
trial and create a reparations chamber or other similar body. This will not be easy, and
states will protest due to the issues of state responsibility it will raise if reform of Article
75 is brought before the Assembly of State Parties.
The diverging positions of judges in the Lubanga,Katanga and Ruto and Sang cases
show the contested space that reparations continue to evoke amongst the ICC judiciary
such that the judges themselves cannot develop a consistent and feasible position on
reparations, even if it did include state responsibility. Although Judge Eboe-Osuji
shared a vision of reparations beyond those convicted at the ICC, it will require the Assem-
bly of State Parties to not only amend Article 75(2) to include state or other actors’respon-
sibility, but also to introduce enforcement mechanisms regarding how states cooperate
with the Court. As such, transformative reparations, reparative complementarity and a
reparations chamber together may start to bridge the gap between victims’right to repara-
tions and redress at the ICC.
Notes
1. As per Article 75, Rome Statute.
2. Luke Moffett, ‘Meaningful and Effective? Considering Victims’Interests through
Participation at the International Criminal Court’,Criminal Law Forum 26, no. 2 (2015):
255–89.
3. Report of the International Law Commission on the Work of its 44th Session, 4 May to 24
July 1992, Official Records of the General Assembly, 47th session, Supplement No. 10, paras.
88–92.
4. Article 53(4), Report of the International Law Commission on the Work of its 45th Session,
UN Doc. A/48/10 (1993), 125.
5. Draft Article 73, Report of the Preparatory Committee on the Establishment of an Inter-
national Criminal Court, A/CONF.183/2/Add.1, 14 April 1998, pp. 116–18.
6. See Fiona McKay, ‘Are Reparations Appropriately Addressed in the ICC Statute?’,inInter-
national Crimes, Peace, and Human Rights: The Role of the International Criminal Court, ed.
Dinah Shelton (New York: Transnational Publishers, 2000), 163–74, 167; and Christopher
Muttukumaru, ‘Reparations to Victims’,inThe International Criminal Court: The Making
of the Rome Statute; Issues, Negotiations, Results, ed. Roy S. Lee (The Hague: Kluwer Law
International, 1999), 262–70.
7. Resolution ICC-ASP/1/Res.6, adopted at the 3rd plenary meeting, 9 September 2002.
8. See Articles 52 and 706–742 of the French Criminal Code; Articles 85–91, 371–375, and 418–
426 of the French Code of Criminal Procedure; Jonathan Doak, Victims’Rights, Human
Rights and Criminal Justice: Reconceiving the Role of Third Parties (Oxford and Portland:
Hart, 2008), 310.
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9. Letter dated 12 October 2000 from the President of the International Tribunal for the Former
Yugoslavia, addressed to the Secretary-General, S/2000/1063, 3 November 2000; Letter dated
9 November 2000 from the President of the International Criminal Tribunal for Rwanda,
addressed to the Secretary-General, S/2000/1198, 15 December 2000.
10. Prosecutor v Lubanga, Decision Establishing the Principles and Procedures to Be Applied to
Reparations, ICC-01/04-01/06-2904, 7 August 2012; and Prosecutor v Lubanga, Judgment on
the Appeals against the ‘Decision Establishing the Principles and Procedures to Be Applied to
Reparations’of 7 August 2012, ICC-01/04-01/06-3129, 3 March 2015.
11. Louise Chappell, this special issue; Luke Moffett, Justice for Victims before the International
Criminal Court (London and New York: Routledge, 2014), 120–1.
12. Prosecutor v Lubanga, Prosecution’s Submissions on the Principles and Procedures to Be
Applied in Reparations, ICC-01/04-01/06-2867, 18 April 2012, paras.19–20.
13. Carsten Stahn, ‘Reparative Justice after the Lubanga Appeal Judgment’,Journal of Inter-
national Criminal Justice 13 (2015): 801–13, 806.
14. Principle 9, UN Basic Principles 2005.
15. Stahn, ‘Reparative Justice’, 807.
16. Ibid., 809–10.
17. Prosecutor v Katanga, Ordonnance de Réparation en vertu de l’Article 75 du Statut, 24 March
2017, ICC-01/04-01/07-3728, para. 264.
18. Sarah Williams and Emma Palmer, ‘Transformative Reparations for Women and Girls at the
Extraordinary Chambers in the Courts of Cambodia’,International Journal of Transitional
Justice 10, no. 2 (2016): 311–31, 330.
19. ICC-01/04-01/06-2904, para. 266.
20. ICC-01/04-01/06-3129, para. 160.
21. ICC-01/04-01/06-3129, para. 160.
22. ICC-01/04-01/06-2904, para. 274.
23. Prosecutor v Lubanga, Decision Rejecting the Application for Leave to Appeal of the Legal
Representatives of the 01 Group of Victims, ICC-01/04-01/06-3263, 17 January 2017.
24. Prosecutor v Lubanga, Information Regarding Collective Reparations, ICC-01/04-01/06-
3273, 31 February 2017, paras. 130–34.
25. Trust Fund for Victims, (Draft) Scope of Work, Collective Reparations Projects in Relation to
the Conviction of Thomas Lubanga Dyilo before the International Criminal Court, Annex A,
ICC-01/04-01/06-3273-AnxA, 13 February 2017.
26. See Prosecutor v Lubanga, Réponse des Représentants des Victimes aux Observations de la
Défense à la Première Transmission des Formulaires de Réparation Expurgés du 8 mars
2017, ICC-01/04-01/06-3296, 24 April 2017.
27. ICC-01/04-01/07-3728, paras. 226–39.
28. Lubanga, Trust Fund’s Observations on Reparations in Response to the Scheduling Order of
14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, para. 250; and Katanga, Trust Fund
Observations on Reparations Procedure, ICC-01/04-01/07-3548, 13 May 2015, para. 121.
29. Prosecutor v Katanga, Notification Pursuant to Regulation 56 of the TFV Regulations Regard-
ing the Trust Fund Board of Director’s Decision Relevant to Complementing the Payment of
the Individual and Collective Reparations Awards as Requested by Trial Chamber II in its 24
March 2017 Order for Reparations, ICC-01/04-01/07-3740, 17 May 2017.
30. ICC-01/04-01/07-3740, para. 35.
31. Prosecutor v Lubanga, Observations of the Trust Fund for Victims on the Appeals Against
Trial Chamber I’s‘Decision Establishing the Principles and Procedures to be Applied to
Reparations’, ICC-01/04-01/06-3009, para. 171.
32. ICC-01/04-01/06-3009, para. 170.
33. ICC-01/04-01/06-3129, para. 199 and paras. 269–73, in light of Rule 98(5), Rules of Pro-
cedure and Evidence, and Regulation 56 of the Regulations of the Trust Fund.
34. See Emily L. Camins, ‘Needs or Rights? Exploring the Limitations of Individual Reparations
for Violations of International Humanitarian Law’,International Journal of Transitional
Justice 10, no. 1 (2016): 126–45, 134.
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35. ICC-01/04-01/06-3129, para. 182.
36. Prosecutor v Bemba, Defence Submissions on Sentence, ICC-01/05-01/08-3376-Red, 26 April
2016, fn. 232.
37. Peter Dixon, ‘Reparations, Assistance and the Experience of Justice: Lessons from Colombia
and the Democratic Republic of the Congo’,International Journal of Transitional Justice 10,
no. 1 (2016): 88–107, 105.
38. Prosecutor v Ruto and Sang, Public Redacted Version of Decision on Defence Applications
for Judgments of Acquittal, ICC-01/09-01/11-2027-Red, 5 April 2016, para. 149.
39. Ibid., para. 150.
40. Reasons of Judge Eboe-Osuji, Ibid., paras. 58–254.
41. Ibid., para. 201.
42. Ibid., para. 202.
43. Ibid., para. 464.
44. Section 20, International Crimes Act 2008. ICC-01/09-01/11-2035, 15 June 2016, paras. 8 and
13.
45. ICC-01/09-01/11-2035, paras. 40–41.
46. Ibid., paras. 49–54.
47. Prosecutor v Ruto and Sang, Decision on the Requests regarding Reparations, ICC-01/09-01/
11-2038, 1 July 2016. See Dissenting Opinion of Judge Eboe-Osuji, ICC-01/09-01/11-2038-
Anx, 1 July 2016.
48. See Luke Moffett, ‘Elaborating Justice for Victims at the International Criminal Court:
Beyond Rhetoric and The Hague’,Journal of International Criminal Justice 13 (2015):
281–311.
49. See Anne Saris and Katherine Lofts, ‘Reparation Programmes: A Gendered Perspective’,in
Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems
in Place and Systems in the Making, ed. Carla Ferstman, Mariana Goetz, and Alan Stephens
(Leiden: Brill, 2009), 79–99; Nairobi Declaration on Women’s and Girls’Right to a Remedy
and Reparation, March 2007, para. 4: ‘reparation must drive post-conflict transformation
of socio-cultural injustices, and political and structural inequalities that shape the lives of
women and girls; that reintegration and restitution by themselves are not sufficient goals
of reparation, since the origins of violations of women’s and girls’human rights predate
the conflict situation’’.UN Guidance Note of the Secretary-General Reparations for Con-
flict-Related Sexual Violence, para. 4.
50. Ruth Rubin-Marín, ‘The Gender of Reparations in Transitional Societies’,inThe Gender of
Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations, ed.
Ruth Rubin-Marín (Cambridge: Cambridge University Press, 2009), 63–120, 66. See also
UN Guidance Note of the Secretary-General Reparations for Conflict-Related Sexual Violence,
June 2014.
51. Report of the Special Rapporteur on Violence against Women, its Causes and Consequences,
Rashida Manjoo, A/HRC/14/22, 23 April 2010, para. 32; and UN Guidance Note of the Sec-
retary-General Reparations for Conflict-Related Sexual Violence (June 2014), 8.
52. Nairobi Declaration on Women’s and Girls’Right to a Remedy and Reparation, para. 3.
53. ICC-01/04-01/06-2904, para. 236.
54. Prosecutor v Lubanga, Observations on Reparations in Response to the Scheduling Order of
14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, para. 77.
55. ICC-01/04-01/06-2904, para. 240.
56. Ibid., paras. 202–03.
57. Andrea Durbach and Louise Chappell, ‘Leaving Behind the Age of Impunity: Victims of
Gender Violence and the Promise of Reparations’,International Feminist Journal of Politics
6, no. 4 (2014): 543–562, 550.
58. Leila Ullrich, ‘Can Reparations Transform Societies? The Practice of “Transformative Justice”
at the International Criminal Court (ICC)’(presentation at the Oxford Transitional Justice
Research Seminar, 9 March 2016).
59. Durbach and Chappell, ‘Leaving Behind the Age of Impunity’.
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60. Margaret Urban Walker, ‘Transformative Reparations? A Critical Look at a Current Trend in
Thinking about Gender-Just Reparations’,International Journal of Transitional Justice 10,
no. 1 (2016): 108–25, 110.
61. CVR Final Report, Vol. LX, section 2.2.2.1, p. 148, cited and translated by Lisa Magarrell,
‘Reparations for Massive or Widespread Human Rights Violations: Sorting out Claims
for Reparations and Social Justice’,Windsor Yearbook of Access to Justice 22 (2003):
85–98, 95.
62. Prosecutor v Katanga, Registry’s Report on Applications for Reparations in Accordance with
Trial Chamber II’s Order of 27 August Annex 1, ICC-01/04-01/07-3512-Anx1-Red2, 21
January 2015.
63. ICC-01/04-01/07-3728, para. 300.
64. Prosecutor v Lubanga, Appeals Chamber Order for Reparations, ICC-01/04-01/06-3129-
AnxA, 3 March 2015, para. 37; and Principle 20, UN Basic Principles A/RES/60/147, 16
December 2005.
65. Prosecutor v Ruto and Sang, Common Legal Representative for Victims’Comprehensive
Report on the Withdrawal of Victims from the Turbo Area by Letter Dated 5 June 2013,
ICC-01/09-01/11-896-Corr-Red, 5 September 2013, para. 12.
66. Principle 16, UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, 2005.
67. ICC-01/04-01/06-2904, para. 239.
68. ICC-01/04-01/07-3728, paras. 323–25.
69. John T. Holmes, ‘The Principle of Complementarity’,inThe International Criminal Court:
The Making of the Rome Statute; Issues, Negotiations, Results, ed. Roy S. Lee (The Hague:
Kluwer Law International, 1999), 41–78.
70. Luke Moffett, ‘Reparative Complementarity: Ensuring an Effective Remedy for Victims in the
Reparation Regime of the International Criminal Court’,The International Journal of
Human Rights 17, no. 3 (2013): 368–90.
71. See UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law, 2005; Article 2(3), International Covenant on Civil
and Political Rights; Article 13, European Convention on Human Rights; Articles 10 and
25, American Convention on Human Rights; Article 7(1)(a); African Charter on Human
and Peoples’Rights; and Article 31, Articles on State Responsibility for Internationally
Wrongful Acts.
72. Durbach and Chappell, Leaving Behind the Age of Impunity’, 554.
73. Rome Statute, Article 93(1)(g) and (k).
74. ‘Trust Fund for Victims Decides to Launch Assistance Programme in Côte d’Ivoire’, TFV
Press Release, 17 May 2017.
75. See Cristián Correa and Didier Gbery, ‘Recommendations for Victim Reparations in Côte
d’Ivoire’, International Center for Transitional Justice, August 2016. https://www.ictj.org/
publication/recommendations-victim-reparations-cote-ivoire (accessed 24 April 2017).
76. See Ciara Hackett and Luke Moffett, ‘Mapping the Public–Private Law Divide: a Hybrid
Approach to Corporate Accountability’,International Journal of Law in Context 12, no. 3
(2016): 312–36.
77. Stahn, ‘Reparative Justice’, 811; and Christine Van den Wyngaert, ‘Victims before Inter-
national Criminal Courts: Some Views and Concerns of an ICC Trial Judge’,Case
Western Reserve Journal of International Law 44 (2011): 475–96, 495–6.
78. See Moffett, ‘Meaningful and Effective’.
79. Article 63(2), American Convention of Human Rights. See Jo M. Pasqualucci, The Practice
and Procedure of the Inter-American Court of Human Rights (Oxford: Oxford University
Press, 2013), 251–98.
80. See Prosecutor v Bemba, Submission by QUB Human Rights Centre on Reparations Issues
Pursuant to Article 75 of the Statute, ICC-01/05-01/08-3444, 17 October 2016.
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81. Rome Statute, Articles 34, 38 and 75. ICC Rules of Procedure and Evidence, Rule 95 on ‘Pro-
cedure on the Motion of the Court’does not stipulate what chamber reparation proceedings
will be heard.
82. ICC Rules of Procedure and Evidence, Rule 97(2).
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Dr Luke Moffett joined the School of Law, Queen’s University Belfast, as a lecturer in September
2013. Luke’s research interests are in the role of reparations in addressing past violations, and
the construction of victims’rights in domestic and international processes. His book Justice for
Victims before the International Criminal Court was published by Routledge (2014). His current
research explores victim identity and responsibility in reparation mechanisms and the obligations
of non-state actors.
ORCID
Luke Moffett http://orcid.org/0000-0003-2567-0118
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