The right to reparation at the International Criminal Court [1] — Carla Ferstman

Legal Director, REDRESS

One of the key achievements of the Statute of the International Criminal Court is its acknowledgement of the rights of victims. The Statute has importantly recognized the right of victims to participate in proceedings, not only as witnesses of the crimes within the jurisdiction of the International Criminal Court (ICC) but as persons with a valid interest in the outcome. It has also made it possible for the ICC to order reparations to, or in respect of victims, including restitution, compensation and rehabilitation. This is a significant departure from previous international criminal tribunals, and one that is likely to have a major impact on the course of justice before the ICC. Article 75, paragraph 1 of the Statute provides that The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting, These principles are further elaborated upon in the Rules of Procedure and Evidence. [2]

The inclusion of provisions relating to reparation for victims was a significant achievement without precedent in international criminal tribunals. [3] The initial draft statute prepared by the International Law Commission also made no provision for reparation, other than to propose that the Court be empowered to order that fines paid be transferred to a trust fund established by the UN Secretary General for the benefit of victims of crime. [4]

There was strong resistance to the call for a reparation regime for the ICC. It will be difficult enough for the ICC to meet what has been understood to be its core mandate, bringing perpetrators of crimes within its jurisdiction to justice. Reparations could potentially cloud procedures before the Court, and there will be practical challenges for the ICC to decide on the form and extent of reparations, exacerbated by the fact that judges come from an array of legal jurisdictions. [5] There was also concern that the introduction of reparation provisions might somehow invoke principles of state responsibility, when the Court had a clear focus on individual responsibility. [6] Some feared that the exercise would be futile, in that many individual perpetrators who might be called upon to pay reparations would be judgment-proof. [7] How will the reparation provisions play out in practical terms? The flexibility of the Rome Statute and Rules of Procedure and Evidence should allow the ICC to devise mechanisms that suit particular circumstances, though there are a number of associated risks. For example, the manner in which national jurisdictions will enforce the reparation orders of the ICC is left open, and it is not clear how national courts will deal with competing claims for assets. [8] Will they prioritize orders emanating from the ICC? To what extent will the Court inquire into the adequacy or effectiveness of domestic reparation regimes, where they exist? These questions remain to be answered.

The steps in reparation proceedings at the ICC

The reparation procedures at the Court encompass a series of measures. Once a warrant of arrest or a summons has been issued, the Pre-trial Chamber may make an order for protective measures to ensure that any assets which might be the subject of a future reparations order are maintained (art. 57.3. e). This provision may well be of critical importance to the realisation of reparations awards, in those instances where there are assets and they are traceable. Upon a finding of guilt, the Court may proceed to a determination of reparations to victims.

The basic provisions regarding reparations before the Court appear in article 75 of the Statute and rules 94¡V 8 of the finalized draft Rules of Procedure and Evidence. Article 75.1 provides that the Court shall “establish principles relating to reparations to, or in respect of, victims” and, based on these principles, the Court may “determine the scope and extent of any damage, loss and injury to, or in respect of, victims”. Paragraph 2 authorizes the Court either to “make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” or, where appropriate, to “order that the award for reparations be made through the Trust Fund provided for in article 79”.

Paragraph 3 provides that before making an order for reparations, the Court “may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States”. Victims’ requests for reparations will be filed with the Registrar, who will duly notify the person named in the request or identified in the charges, and to the extent possible, to any interested persons or any interested states, subject any protective measures (rule 94). Rule 95 provides that the Court, when determining orders for reparations on its own motion, will request the Registrar to notify the persons against whom the order may be made, and to whatever extent possible, also notify victims, interested persons and interested states.

While those interested in making representations regarding reparations are required to file written requests with the Registrar in accordance with rules 94 & 95, oral representations can be made in certain circumstances. These representations can be made during the sentencing hearing or subsequent hearings scheduled by the Trial Chamber (art. 76.3 & rule 143).

Rule 97 specifies how reparations are to be assessed. Paragraph 1 provides that Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both. Paragraph 2 allows for the appointment of Appropriate 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. The Court shall invite, as appropriate, victims or their legal representatives, the convicted person as well as interested persons and interested States to make observations on the reports of the experts.

The reparations provisions are without prejudice to the rights of victims under national or international law, and also without prejudice to the responsibility of states under international law. The possibility for the Court to award collective reparations is likely to have a significant effect on the shaping and developing of new jurisprudence for reparations. There will only be a limited amount of funds for reparation awards when compared with the rights and needs of victims, and therefore collective awards may be, at times, the only method to bring a certain measure of justice.

Paragraph 1 of rule 98 provides that “individual awards for reparations shall be made directly against a convicted person”, and paragraphs 2¡V 4 detail modalities for using the Trust Fund for Victims to allocate or distribute the reparations awards made by the Court to victims. Paragraph 2 provides that the Court may order that awards for “reparations against a convicted person be deposited with the Trust Fund where at the time of making the order it is impossible or impracticable to make individual awards directly to each victim”. Paragraphs 3 & 4 provide that awards for reparations be made through the Trust Fund “where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate” or when made “to an intergovernmental, international or national organization approved by the Trust Fund”. Paragraph 5 provides that “other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79”. [9]

The Court may decide to request assistance from States Parties, such as the execution of searches and seizures, and the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes, to facilitate forfeiture proceedings. [10]States Parties would be obliged to give effect to fines and forfeitures ordered by the Court, as well as reparation orders. [11] In this regard, rule 217 provides that The Presidency shall, as appropriate, seek cooperation and measures for enforcement¡K as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person’s assets and property or with which the victim has such connection.

Rule 218.3 provides that In order to enable States to give effect to an order for reparations, the order shall specify:

(a) The identity of the person against whom the order has been issued;
(b) In respect of reparations of a financial nature, the identity of the victims to whom individual reparations have been granted, and, where the award for reparations shall be deposited with the Trust Fund, the particulars of the Trust Fund for the deposit of the award; and
(c) The scope and nature of the reparations ordered by the Court, including, where applicable, the property and assets for which restitution has been ordered.

In accordance with rule 219, national authorities do not have the ability to modify the reparations specified by the Court, the scope or extent of any damage, loss or injury determined by the Court or the principles stated in the order. However, parties adversely affected can appeal against orders for reparations. [12]

How will the ICC reparation regime relate to proceedings before domestic courts?

Assets to be forfeited could be located in any number of national jurisdictions. If the Court’s reparations regime is to be effective, it will require significant interaction and coordination with national jurisdictions of States Parties and non-States Parties alike. This will involve a series of hurdles for victims. States Parties have a general obligation to cooperate with the Court, and to ensure that their national legislation enables and facilitates cooperation. [13]This is a positive obligation of all States Parties, which may require significant amendment of national laws. In respect of reparations, States Parties will need to implement the ICC’s requests for provisional and protective measures to trace and freeze assets as appropriate, and to recognize the jurisdiction¡X and enforce the reparations orders¡X of the Court. As an extension to the complementarity principle, they would arguably need to do the same for orders emanating from the national courts of other States Parties. [14]

The Statute does not specify the manner in which states must cooperate on issues related to provisional measures or enforcement of reparation orders. Nevertheless, the duty to implement the reparation orders of the Court would necessarily include the obligation to ensure that there are effective national procedures available, and to create such procedures if they do not exist. States retain a measure of discretion to give effect to this obligation in accordance with their national laws, but the overriding duty to cooperate means that enforcement could not be obstructed or obfuscated. Consequently, procedural bars existing in various national jurisdictions that could have the effect of inhibiting cooperation with the Court may be inconsistent with the Statute and Rules of Procedure and Evidence. However, it is not clear how these inconsistencies will be dealt with by the Court, if at all, and the role that the Assembly of States Parties may have, if any, in ensuring this type of compliance by States Parties. There is no overriding obligation on non-States Parties to cooperate with the Court, though those that wish to cooperate may do so “on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis” (art. 87.5. a). If assets are located in the territory or control of non-States Parties, the Court, or most likely the individual recipients of reparations orders, would need to advocate for the recognition of the ICC order in that jurisdiction. It may be difficult to secure such assets in these circumstances.

Tracing assets and implementing protective measures

The obligation to cooperate will not itself guarantee the implementation of reparation orders. It will be a challenge to trace, freeze and seize assets located in the state where the crime is alleged to have occurred, as it may be in transition from a conflict, or may not wish to support the ICC proceedings, or both. It will also be difficult to locate and trace extraterritorial assets. Mutual assistance in criminal matters is traditionally slow and a major source of frustration for requesting authorities.

This slowness is made worse by the speed with which debtors can move their assets if they learn that a freezing or seizure order is imminent. [15] Even where assets can be traced in the national jurisdiction of a State Party or non-State Party willing to cooperate with the Court, it would need to be conclusively shown that the assets are owned or controlled by the debtor. Proving this will be a continual challenge complicated by bank secrecy laws in those jurisdictions where assets are likely to be located. [16] Most States Parties that have already adopted internal legislation on their cooperation with the Court have dealt with the requirements of the Statute to provide assistance in the identification, tracing and freezing of assets. This has been done by incorporating an executive function into requests for assistance, by involving an Attorney General or Public Prosecutor

in the request, which would then be analysed with varying tests and degrees of discretion. For the most part, implementing legislation has provided that the ICC’s provisional orders or warrants issued in accordance with article 57.3. a are enforceable as if they were domestic orders or warrants.

Implementing reparation orders of the Court

In respect of post-conviction reparation orders or forfeiture and confiscation proceedings relating to assets (these will be located outside of jurisdiction of the Court) States Parties must take all necessary steps to enforce the orders. However, it is not evident how national courts will deal with competing claims for assets, or how they will assign priorities in order to adjudicate between these claims. For instance, it is plausible and likely that in the trial of major leaders or government figures, the state in the jurisdiction where the crimes occurred will have a competing claim against the perpetrator for corruption or misappropriation of state funds, or other economic crimes.

Similarly, there may also be additional corporate creditors or victims who have not applied for reparations through the ICC and whose claims will need to be adjudicated by national courts. [17] Most jurisdictions will have pre-existing rules on related matters, though they may not be sufficiently precise or appropriate, nor will they necessarily give priority to the orders emanating from the Court. International conventions and agreements have also been developed to address some of these problems, but they may not deal with all possible eventualities. [18]

The Statute provides that in those cases when it is not possible for the state to give effect to an order for forfeiture, it “shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties” (art. 109.2). This will require national courts to implement a variety of proceedings traditionally associated with defaulting debtors, such as garnishee orders, liens, and enforced sales of property. However, in keeping with the focus on individual criminal responsibility, the Statute does not go so far as to suggest that states should step in when the individual debtors are judgment-proof. [19] If the debtor has no traceable assets whatsoever, there is little that can be done to recover the amounts owing to victims. Who will intervene when the perpetrator cannot pay? The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power dealt with this problem in its 12th and 13th principles, as follows:

12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;
(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.

13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm. However, these principles have not been specifically incorporated into the Statute. [20]

The Trust Fund for Victims

The Statute does not refer to the potential role of States Parties in providing victims with compensation for injuries when perpetrators cannot, though it does provide in article 79 for the establishment of a Trust Fund “for the benefit of victims of crimes of crimes within the jurisdiction of the Court, and of the families of such victims”. This Trust Fund could in principle provide relief to those victims for whom reparation orders had been awarded but where no enforcement of the awards has been possible due to the insolvency of the perpetrator or the inability to recover his or her assets. [21] Although its precise scope has not yet been defined, at least at its outset the Fund will lack resources, and the demands placed upon it will be far greater than what could feasibly be supplied. Victims may look to other more solvent debtors (aside from or in addition to the individual perpetrators convicted by the Court) to ensure that they receive some form of redress. This may require that they lodge actions for reparation before national courts.

Conclusion

For perhaps the first time in the history of international criminal tribunals, justice for victims is a real possibility. The Rome Statute and Rules of Procedure and Evidence provide a clear opening for victims to assert and realize their rights, though practical uncertainties and impediments abound. These impediments are not restricted to proceedings before the ICC, but reflect the challenges that victims and other judgement-creditors continue to face in a much wider context, particularly when claims pass beyond one jurisdiction.

There are, however, certain specific challenges relating to the ICC reparations regime, which stem from the complex relationship States Parties and non-States Parties will have with the Court and the degree to which the Court can oversee the enforcement of its orders. As States Parties are obliged to cooperate with the Court but not necessarily with the victims or other recipients of awards for reparations, victims will certainly need the assistance of the Court in seeking to enforce orders before national jurisdictions. This should be taken into account in the development of victims’ services at the Court. Much will be learned from the first Court proceedings, and those remaining procedural deficiencies may need to be reviewed as this new and important institution continues to develop.

End Notes

1 This is an abridged version of an article published in the Leiden Journal of International Law, vol. 15, no. 3, 2002. Website to Issue 15-3 (2001):http://www.ljil.leidenuniv.nl/index.php3?c=57

2 Article 97 of the finalised draft Rules of Procedure and Evidence provides: [Back to content]

1. Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.

2. At the request of victims or their legal representatives, or at the request of the convicted person, or on its own motion, the Court may appoint appropriate 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. The Court shall invite, as appropriate, victims or their legal representatives, the convicted person as well as interested persons and interested States to make observations on the reports of the experts.

3. In all cases, the Court shall respect the rights of victims and the convicted person.

3 Neither of the International Criminal Tribunal for the former Yugoslavia or International Criminal Tribunal for Rwanda Statutes provide for reparation to be dealt with by the court itself. The Inter-American Court on Human Rights and the European Court of Human Rights do provide for reparation, though they deal with state responsibility for violations of human rights and therefore are of only limited relevance. [Back to content]

4 Report of the International Law Commission on the Work of its 46th Session, 49 UN GAOR, 49th Sess., Supp. No. 10, UN Doc. A/ 49/ 19, 1994, art. 47.3. c [Back to content].

5 For a discussion on these issues, see Christopher Muttukumaru, ‘Reparations to Victims’, in The International Criminal Court: The making of the Rome Statute; Issues, negotiations, results, Roy S Lee (ed.), in cooperation with the Project on International Courts and Tribunals, Kluwer Law International, The Hague & Boston, c. 1999, pp. 262¡V 4. [Back to content]

6 As Muttukumaru observes, It became obvious that a significant number of delegations were not prepared to accept the notion of State responsibility to, or in respect of victims. However, this refusal does not diminish any responsibilities assumed by States under other treaties and will not ¡V self-evidently, prevent the Court from making its attitude known through its judgments in respect of State complicity in a crime. Muttukumaru, ‘Reparations to victims’, p. 267. [Back to content]

7 See generally, Muttukumaru, ‘Reparations to victims’. See also, David Donat-Cattin, ‘Article 75’, in Commentary on the Rome Statute of the International Criminal Court: Observers’ notes, article by article, Otto Triffterer (ed.), Nomos Verlagsgesellschaft, Baden-Baden, 1999, p. 966. [Back to content]

8 The way in which states enforce fines or forfeitures is “in accordance with the procedure of their national law”. [Back to content]

9 At its final session of 1¡V 12 July 2002, the Preparatory Commission adopted a draft resolution of the Assembly of States Parties calling for the creation of the Trust Fund. The draft resolution provided that the Assembly of States Parties elect a Board of Directors consisting of five persons with relevant experience in order to develop the principle rules and operating procedures of the fund, subject to approval by the Assembly. [Back to content]

10 Paragraph 5 of article 75 provides that “the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this Article, it is necessary to seek measures under Article 93, paragraph 1”. Article 93.1. h deals with searches and seizures and article 93.1. k with the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes. [Back to content]

11 Article 75.5 specifically refers to the applicability of article 109 (dealing with the requirements of states parties to enforce fines and forfeitures, and/ or to take measures to recover the value of the proceeds, property or assets as ordered by the Court) to the reparation orders of the Court. [Back to content]

12 Article 82.4 of the Rome Statute provides that, A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence. [Back to content]

13 Article 86 of the Rome Statute provides that, “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Article 88 specifies that, “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.” [Back to content]

14 This is not spelled out in the Rome Statute of the Rules of Procedure and Evidence, though it is arguably a natural extension of the provisions relating to complementarity. It will depend for the most part on whether or not the states in question have entered into bilateral agreements or treaties. [Back to content]

15 As Guy Stessens observes, The elaborate procedures for lifting banking secrecy and the multiple remedies that are available to those that are accused of not providing information and to any party concerned¡X especially in offshore jurisdictions and large financial centers¡X have become strongly resented by some requesting authorities. Guy Stessens, Money laundering: A new international law enforcement model, Cambridge University Press, Cambridge & New York, 2000, p. 313. [Back to content]

16 For a detailed explanation of how this problem affected the recovery of the Marcos assets, see David Chaikin, Tracking the proceeds of organised crime: The Marcos Case,paper presented at the Transnational Crime Conference convened by the Australian Institute of Criminology in association with the Australian Federal Police and Australian Customs Service, Canberra, 9¡V 10 March 2000, [http://www.aic.gov.au/conferences/transnational/chaikin.pdf]. [Back to content]

17 Victims are not obliged to apply for reparations before the ICC. In fact, article 75.6 specifically provides that reparations proceedings before the ICC will not impact on domestic proceedings: “Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.” [Back to content]

18 See, for example, the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the Vienna Convention), and the Council of Europe 1990 Convention No. 141 on the Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (the Strasbourg Convention). [Back to content]

19 See, for example, principle 11 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA 40/ 34, annex, 40 UN GAOR Supp. No. 53, p. 214, UN Doc. A/ 40/ 53, 1985, which provides that: Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims. [Back to content]

20 Although these principles were not specifically incorporated, the drafters of the ICC Statute intended that the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power would have priority in interpretation of the Statute. A/ CONF. 183/ C. 1/ WGPM/ L. 2/ Add. 7. [Back to content]

21 This has been advocated by a number of organisations and institutes following the deliberations at the meetings of the Preparatory Commission for the ICC. See, for example, REDRESS, ‘Ensuring the Rights of Victims in the ICC: Specific Concerns and Recommendations Relating to the Trust Fund for Victims’, prepared for the 8th Preparatory Commission of the ICC, Sept¡V Oct 2001 [http://www.redress.org/Trustfund.html]. Amnesty International, ‘International Criminal Court: Ensuring an effective Trust Fund for Victims’, IOR 40/ 005/ 2001, 01/ 09/ 2001 [http://web.amnesty.org/ai.nsf/Index/IOR400052001?OpenDocument]. Thordis Ingadottir, ‘The Trust Fund for Victims (Article 79 of the Rome Statute) A Discussion Paper’, Project on International Courts and Tribunals, February 2001 [http://www.pict-pcti.org/publications/publications.html]. [Back to content]

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