(co-hosted by Chile, Finland, Switzerland, Redress and the Trust Fund for Victims (TFV))
Overview by Abby Roberts, Research Associate PILPG NL
Redress views the Rome Statute’s treatment of reparations as comprehensive but feels that more needs to be done with regards to implementation and action.
Many issues remain to be addressed in the reparations process, as it is a slow process in identifying partner organizations and identifying victims, and further efforts are necessary to fulfill the mission of the court.
The assistance mandate of the TFV needs to start much earlier and needs to play a more central role, according to Redress.
Several panelist suggested to look at the primary responsibility of states to provide reparations.
This event began with a brief speech by the Ambassador from Finland outlining their support for the Trust Fund for Victims (TFV), which amounts to 800,000 Euros yearly earmarked for victims of sexual assault and gender-based violence, and urging other member states to consider contributing.
Judge Marc Perrin de Brichambaut, Second Vice President of the ICC, was next to speak and he provided a background and overview of reparations. He began by explaining that the reparations phase takes place after conviction and sentencing and is a written process involving exchanges between the representatives of victims and the defense. The TFV intervenes when it is requested to do so. The reparations phase has had to address a multiplicity of legal questions and there is a managerial dimension when allocating reparations. The key issue is to determine the scope of the defendant’s liability for reparations: the reparations have to be proportionate to the harm caused and extent of the perpetrator’s participation. Moreover, assessing and identifying the victims is a key challenge to awarding reparations. However, being recognized as a victim by the ICC seems to be a positive experience for the victims. Judge Marc Perrin de Brichambaut noted that in order for reparations to materialize, the TFV will have to be involved in aspects of fundraising and motivating states. Another challenge is the determination of the types of reactions as there are both individual and collective reparations. Individual reparations can be tailored to the needs of the victims. All of his exchanges with victims have indicated that this type is preferred by the victims. Collective reparations, benefiting a group or category submitted to a common harm, are supposed to be the default type and are preferred by the Court. Many issues remain to be addressed in the reparations process, as it is a slow process in identifying partner organizations and identifying victims, and further efforts are necessary to fulfill the mission of the court, he concluded.
Lorraine Smith van Lin of Redress followed by referring to a report compiled by Redress outlining what needs to be done to improve the reparations. The report contained numerous general findings, including that the ICC failed to implement the five imperatives of reparations. The ICC reparations system is an interplay of judicial and non-judicial elements and Redress was satisfied that the provisions in the text of the statute reflect the unique role which victims enjoy under the Rome Statute. They were also satisfied that this has been recognized by the chambers and that the ICC has consolidated its case law on reparations. However, the process has been protracted and has not been effective in the provision of reparations. The current system is inconsistent, characterized by delay, and does not allow the victims proper access to reparations. Lorraine emphasized that delivering prompt reparations to victims should be a priority. Redress felt that although significant time has been devoted to interpreting legal texts regarding reparations, the ICC victim’s strategy is outdated and they need a new comprehensive one that takes into consideration of questions such as where the reparations system fits into the broad scheme of complementarity and restorative justice. The general insights from Redress were that the assistance mandate of the TFV needs to begin much earlier and it needs to play a more central role.
Philipp Ambach from the Victims Participations and Reparations Section of the ICC Registry noted that the ICC procedural framework provides liberty for chambers to decide the scope and framing of reparations. He believes this has been done with the idea that the chambers need to be able to tailor the reparations to the case at hand. Here he believes we are looking at a tendency to streamline the technical aspect of the registry. The procedural system that is being applied is a healthy discourse between registry, victims, and chambers.
Pieter de Baan, Executive Director of the TFV, spoke on the role of the TFV. The TFV has a role to the extent it is invited to do so prior to reparations order, but after the order the role expands. The TFV does not represent victims but it always has the responsibility to act in the interest of victims. They are transitioning towards a more distant role under the assistance mandate and working with field partners. However, through direct engagement with counsel and victims, they have come to appreciate that the engagement is highly significant. Much of the focus of the debate has been around reparation proceedings. Hopefully soon the debate will transition to the operational theater in which reparations are implemented, De Baan emphasized. The TFV are looking at conflict and post-conflict situations, which are highly volatile and force the fund to find other ways to interact with victims which may take longer. There have been extensive procedural discoveries since the outset and there will still be new and unforeseen situations. The fund is optimistic they will respond with creative and proactive solutions.
Allan Ngari from the Institute of Security Studies was the last to speak. He noted that we have romanticized the standard set by the ICC for reparations, but states have not fully followed suit despite the fact that it is the primary responsibility of states to provide for these reparations. He suggested that the Kenyan chapter on reparative justice is extremely comprehensive and could be used as a model. Also, truth mechanisms are important due to the participation means for victims to craft their reparations needs. He believes that we cannot only look at the ICC as the frame through which reparative justice is issued, we need to look at it as a complementary method.