Victims' Reparation: What Lessons Can We Take From the International Criminal Court?

In a piece for the The Stanford Daily, Nadejda Marques, manager of the Program on Human Rights at the CDDRL, writes about victims' reparations and the experience at the International Criminal Court.

As explained by Professor Cherif Bassiouni on Jan. 29 at the CDDRL Program on Human Rights Sanela Diana Jenkins Speakers Series, victims before the International Criminal Court (the ICC) have rights that combine the practice in proceedings of two different legal systems: the Civil Law and the Common Law system.

Through direct victim representation, an important aspect of the civil law system, those who have suffered severe abuses may present to the ICC their points of view to the judges. In the civil system, this is important because it allows the prosecutor to assess harm and damages suffered and request corresponding reparations. In common law systems, victim representation is more central in civil cases, though increasingly the perspective of victims has been relevant during criminal sentencing.

In the ICC, victims are not required to participate in the court proceedings and the court may even decide on its own to make an award for reparations. That is, independent of any motion by the prosecutor, the victim may also seek reparation directly from the ICC through the Trust Fund for Victims, an independent body of the court charged with implementing the court’s decisions and providing physical and psychosocial rehabilitation and material support to victims of crimes within the jurisdiction of the ICC. Furthermore, the Trust Fund for Victims at the ICC can also act to benefit victims of crimes even when there is no conviction.

Why is this a valuable lesson? Suppose that the defendant accused of horrendous crimes does not have sufficient assets to cover the damages imposed onto the victim? In many countries including the United States, reparations are often based on the defendant’s ability to pay. Apart from a few cases of restitution for sex crimes in the United States, governments seldom take responsibility for losses and suffering caused by private individuals, leaving victims to their own resources, their personal insurance and their own means to recover and rehabilitate. When that happens, is justice done?

What do victims want? From years of researching and working with victims of human rights abuse including victims of war crimes in the context of Angola and, more recently, in the Democratic Republic of Congo (DRC), the sentencing of perpetrators is only one of the elements of justice as understood by victims. Victims and survivors usually ask for guarantees that the crimes and violation of rights will not take place again. They want restitution to re-establish the lives they had before the violations took place, and they need support so they and their communities can work to overcome the severe psychological consequences affecting generations of victims’ descendants.

The ICC Trust Fund for Victims needs to raise funds to support the reparations it grants. Contributors to the fund are states, private donors, foundations and individuals that wish to support victims and communities that see the ICC as last resort. The Trust Fund for Victims is far from perfect. It struggles to ensure sufficient funds to sustain victims’ requested reparations, and it is not well equipped to establish reparations in cases of collective application. However, as the idealism that created the ICC in the first place, the ICC Trust Fund sends a signal of great relevance: reparations are an important representation of the justice process for victims of human rights abuse.

When the International Criminal Court (the ICC) issued its first decision on reparations of victims – in the case of Thomas Lubanga Dyilo, convicted in March of 2012 for conscripting, enlisting and using child soldiers in the DRC – it established an important precedent in victims’ agency in the identification of needs and in the design of reparations. This precedent can be a valuable lesson to the justice systems in many countries including the United States. As the ICC enters its second decade, let us learn the lessons that can become pillars in the expansion of international justice and may one day establish jurisprudence that benefits victims within the countries.

Nadejda Marques
Manager of the Program on Human Rights at the Center on Democracy, Development and the Rule of Law (CDDRL)