Mccarthy 2009

The International Journal of Transitional Justice, Vol.
3, 2009, 250–271,
doi: 10.1093/ijtj/ijp001
Advance Access publication: 17 April 2009
Reparations under the Rome Statute of

the International Criminal Court and
Reparative Justice Theory
Conor McCarthy∗
Abstract1
Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

Modern theories of ‘reparative justice’ have substantial ambitions for the project of crim-
inal justice and, in particular, the relationship between victims and a criminal justice sys-
tem. These theories have, in a variety of ways, proven influential in a number of domestic
criminal justice systems. At the international level, the Rome Statute of the International
Criminal Court has sought to give victims a more central position within the international
criminal justice system. One way in which this has been done is through the creation of a
regime for reparations to victims in Article 75 of the Statute. This article analyses the main
themes of modern reparative justice theory. It goes on to provide a legal analysis of the
main elements of the Rome Statute reparations regime and concludes by asking whether,
given the constraints under which it operates, the regime can meet the needs of victims
in a way that satisfies reparative justice theory.
Introduction
The inclusion of a reparations regime within the competence of the International
Criminal Court (ICC) was the subject of significant controversy both during
the preparatory negotiations and at the Rome Conference itself. Although the
inclusion of this competence was foreshadowed by much more limited powers in
the statutes of the various ad hoc tribunals, the inclusion of such detailed provisions
in the Rome Statute is a novel development in the arena of international criminal
justice.2 The importance of the reparations regime has already been recognized
in the jurisprudence of the Court. In Prosecutor v. Thomas Lubanga Dyilo, the
Pre-Trial Chamber recently stated,
The reparation scheme provided for in the Statute is not only one of its unique features.
It is also a key feature. In the Chamber’s opinion, the success of the Court is, to some
extent, linked to the success of its reparation system.3
∗ PhD candidate, Jesus College, University of Cambridge, UK. Email: cm396@cam.ac.uk

1 The author wishes to thank Dr. Roger O’Keefe, Prof. James Crawford and Kate Parlett for comments
on an earlier draft. The content and views expressed remain the responsibility of the author.
2 See Article 23(3) of the International Criminal Tribunal for Rwanda Statute and Article 105 of the
Tribunal’s Rules of Procedure and Evidence. See also, Prosecutor v. Slobodan Milosević, Pre-Trial
Decision on Conjoined Application for Consequential Orders, Case No. IT-02-54 (24 May 1999).
3 Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor’s Application for a Warrant of
Arrest, Article 58, Case No. ICC-01//04-01/06 (10 February 2006), para. 136.

C The Author (2009). Published by Oxford University Press. All rights reserved.
For Permissions, please email journals.permissions@oxfordjournals.org.

Reparations under the Rome Statute of the ICC and Reparative Justice Theory 251
Before proceeding to a substantive discussion of the concept of reparations

under Article 75 of the Statute,4 this article sets out the main ideas and themes in
reparative justice theory in order to place Article 75 in its wider conceptual context.
It then explores the character and scope of the concept of reparations within the
context of the Rome Statute and, in particular, how the Court may develop and
apply a body of principles relating to reparations in accordance with the mandate
it is given by Article 75(1).5 The article then examines how these principles may
be used by the Court to craft a reparations order and assesses the independent
power of the ICC Trust Fund for Victims to provide support to victims of crimes
within the jurisdiction of the Court. The article concludes by asking whether the
reparations regime created in the Rome Statute meets the needs of victims in a way

that satisfies the central concerns of reparative justice theory.
Reparations and Reparative Justice Theory

That a person who intentionally or recklessly causes harm or loss should pay compensation
or make restitution to his victim may be described as the very essence of corrective justice.
– Andrew Ashworth6
The central principles and themes of reparative justice have exerted a substantial
and enduring influence in modern criminal justice theory, but they are not without
important historical antecedents. In the Roman legal tradition, a strongly positivist
approach predominated that focused on the legislatively prescribed norms, rather
than on the relative morality of the conduct in question. The role of courts was
generally not considered to be one of delivering justice or protecting moral values
as such, but rather to order the prescribed remedy for delinquent conduct. These
available remedies changed over time, but they included a variety of systems of
monetary compensation for certain types of offence.7 In circumstances where
more than one party was involved in the delictum,8 the victim was entitled to bring
4 The term ‘reparations’ is used in the English-language version of the Rome Statute. However, in
general international law and in the particular context of human rights law, the term ‘reparation’
is generally used. The slight difference in terminology used in the English version of the Statute
does not appear to be intended to convey a substantive difference in meaning. This is indicated
by the equally authentic French-language version of the Statute, where the term ‘réparation’ is
used. This mirrors the terminology used in the French-language version of the International
Law Commission’s Articles on State Responsibility. See, Articles on Responsibility of States for
Internationally Wrongful Acts, art. 31 [hereinafter ‘Articles on State Responsibility’], annexed to
UN General Assembly Resolution 56/83 (22 January 2002). For the purposes of consistency, in
the following discussion, the term ‘reparations’ is used in the context of the Rome Statute while
‘reparation’ is used in the context of general international law or international human rights law.
5 The discussion in this article does not seek to provide a comprehensive legal analysis of Article 75.
In particular, there are a variety of important procedural questions regarding the application of
Article 75, which are largely beyond the focus of this article.
6 Andrew Ashworth, ‘Punishment and Compensation: Victims, Offenders and the State,’ Oxford
Journal of Legal Studies 6 (1986): 107.
7 See, Arlette Lebigre, Quelques Aspects de la Responsabilité Pénale en Droit Romain Classique (Paris:
Presses Universitaires de France, 1967).
8 In Roman law, a delictum was a ‘wrongdoing prosecuted through the private action of an injured
individual and punished by a pecuniary penalty paid to the plaintiff.’ Typical private offences
International Journal of Transitional Justice, Vol. 3, 2009, 250–271

252 C. McCarthy
suit against any of the alleged perpetrators to seek compensation or the return of
stolen property.
Many centuries later, Anglo-Saxon law also used reparation as a central element
in its justice system. Private and public wrongs were not treated as distinct forms
of legal wrongdoing, which meant that the same remedy was applicable to both.
Upon the commission of a wrong, compensation, known as the ‘bot,’ became
payable by the transgressor to the victim.9 The sum owed was dependent upon the
character and extent of the harm done.
The Norman Conquest and the pursuit of social quiescence through adminis-
trative and legal centralization, as well as fundamental reform of the Anglo-Saxon
legal system, resulted in the Crown gradually interposing itself into this reparative

framework in the 12th and 13th centuries. Compensation or apology formerly
owed by the transgressor to the victim became transmuted into a fine, or ‘wite,’
payable to the Crown, and apologies were displaced by acts of atonement to God.10
At a broader level, the now familiar distinction between a private wrong and a
wrong so serious as to amount to a crime developed during this period, with the
latter being adjudicated upon and punished under the authority of the sovereign
as interference with the ‘king’s peace.’11 This development appears to have owed
less to doctrinal legal principle and more to the utility of criminal prosecution as
a source of revenue, through forfeiture, for the sovereign, as well as its usefulness
as an assertion of the prestige and authority of the Crown.12
At this point, modern forms of criminal justice began to take shape. Crucially, the
sovereign (and later the state) emerged as the central actor in the criminal justice
process, prosecuting offenders and, in so doing, protecting the interests of society
rather than of the victim as such. At the same time, the needs of victims, arising
from the harm they suffered as a result of the crimes inflicted upon them, became
a matter of less prominence in the criminal justice process. It is this phenomenon
and, in particular, the way in which modern processes of criminal justice arguably
have tended to marginalize the needs of victims that form the central concern out
of which reparative justice theory emerged. The rise to prominence of theories of
reparative justice is intimately connected with the trend towards reasserting the
victim as a central figure in the criminal justice process.
To assess how far the Rome Statute reparations regime goes in addressing some
of the concerns raised by reparative justice theory, it is first necessary to identify
were furtum (theft), rapina (robbery), iniuria (injury to the person) and damnum injuria datum
(injury to property). Adolf Berger, Encyclopaedic Dictionary of Roman Law (Philadelphia: American
Philosophical Society, 1953), 430.
9 Lucia Zedner, ‘England,’ in Reparation in Criminal Law: International Perspectives, ed. Albin Eser
and Susanne Walther (Freiburg: Max Planck Institute, 1996).
10 Ibid.
11 See, Janelle Greenberg, ‘The Victim in Historical Perspective: Some Aspects of the English Experi-
ence,’ Journal of Social Issues 40(1) (1984): 70–102.
12 For a detailed survey, see, Stephen Schafer, Compensation and Restitution to Victims of Crime, 2nd
ed. (Montclair, NJ: Patterson Smith, 1970).

the theory’s central elements.13 In broad terms, a key concern of proponents of

reparative justice theory is the adequacy of the criminal justice process in addressing
the full complexity of the harm inflicted by a crime.14 An exclusively adversarial trial
leading to the custodial punishment of a perpetrator is seen as a wholly inadequate
response to this harm. It is argued that modern legal systems industrialize the
process of criminal justice, classifying and packaging conduct into generalizable
categories that enable the defendant to be expediently processed. This tendency,
it is contended, introduces an unhelpful degree of abstraction and depersonalizes
the justice process by distancing the parties to the conflict from one another.
To ensure that victims’ needs are properly addressed, reparative justice theory
asserts the need for victims to be granted a degree of ownership over the dispute

between them and the alleged perpetrator. Indeed, influential writers on the subject
have even invoked private law language to denote the dispute between the victim
and accused as the ‘property’ of the parties to the conflict.15 It is argued that
a crime should not be treated merely as a wrong against an abstract community
requiring societal sanction but that it should also be dealt with as a dispute between
transgressor and victim.
This analysis has implications not only for the conduct of a criminal trial and
the participation of victims therein but also for the consequences that should flow
from a guilty verdict, in particular the availability of reparations. It is argued that
the traditional outcomes of the criminal justice process, namely the acquittal or
punishment of the accused, are more concerned with society’s needs, most obvi-
ously for incapacitation and deterrence, than with addressing the harm suffered
by victims through the transgressor’s conduct. As a result, the justice process is
said to take insufficient account of, and to respond inadequately to, the needs of
the victim, the character of the harm done to that victim and the complexity of
the harm done to wider social bonds by the transgressor’s conduct.
The application of these kinds of reparative critiques of modern criminal justice
processes has led to arguments for a range of institutional reforms designed to
place victims in a more central position in the legal process.16 One particular, and
13 The following discussion of thinking concerning reparative justice is meant to serve as a broad
overview of the main themes. Naturally, it is not exhaustive, and it does not suggest that all those
who ascribe to broadly reparative critiques of criminal justice would necessarily agree with all
elements of the thinking set out here.
14 On reparative justice theory, see generally, Randy Barnett, ‘Restitution: A New Paradigm of Criminal
Justice,’ Ethics 87 (1978): 279–301; Charles F. Abel and Frank H. Marsh, Punishment and Restitution:
A Restitutionary Approach to Crime and the Criminal (Westport, CT: Greenwood Press, 1984). For
a perspective on the application of ideas of reparative justice theory in the context of human rights
atrocities, see, Ezzat A. Fattah, ‘Is Punishment an Appropriate Response to Gross Human Rights
Violations?’ (paper presented at the conference, ‘The Politics of Restorative Justice in Post-Conflict
South Africa and Beyond,’ Cape Town, South Africa, 21–22 September 2006).
15 Nils Christie, ‘Conflicts as Property,’ British Journal of Criminology 17(1) (1977): 1–15.
16 In an influential and quite prescient article, Nils Christie outlines a four-stage process of criminal
justice. The second stage involves the ‘detailed consideration of the situation of the victim’ and
what could be done for him or her, especially, but not exclusively, by the perpetrator, as well as by
the local community or state, if appropriate. Christie envisages the courts’ powers in this regard to
be a mixture of the traditional civil and criminal approaches. Ibid., 10.

254 C. McCarthy
for present purposes the most important, way in which this has been pursued is
by extending the powers available to courts to tailor flexible measures to seek to
repair, as far as possible, the harm caused to victims by criminal conduct. These
concerns have had specific application in the area of forfeiture, compensation
and restitution, resulting in a range of suggested institutional reforms to make
the system capable of responding to the kinds of concerns outlined above. It has
even been argued that the recalibration of criminal justice should recognize the
ineffectuality of the pursuit of criminal punishment and instead refocus on victim
reparation as a necessary criterion by which to assess the proper fulfilment of the
administration of criminal justice.17
Although the latter view has not found widespread support, even among pro-

ponents of reparative justice theory,18 at a more general level, the broad themes
and concerns at the centre of reparative thinking have been quite influential in
domestic criminal justice reforms. To some extent, these concerns have also had
an influence, in recent times, upon international criminal justice. This is apparent
in the design of the Rome Statute itself, where special prominence is attached to
the needs and interests of victims.19
Several elements of the Rome Statute accord with important themes in repar-
ative justice thinking. For example, the Statute provides victims with substantial
rights of audience and participation in criminal proceedings.20 However, the most
significant way in which the design of the Statute accords with ideas of reparative
justice is by conferring upon the Court the power to develop reparation principles,
to make reparations orders and to order the forfeiture of the proceeds of crime for
the benefit of victims. In addition, the Statute also creates a Trust Fund through
which the Court may make a reparations award,21 and which may independently
provide material support to victims.22 Thus, in line with reparative justice think-
ing, the Statute places a potentially wide range of powers at the Court’s disposal to
craft remedies suited to victims’ needs.
So, the scheme of the Rome Statute and its institutional architecture draw heavily
on ideas of reparative justice. While the application of these ideas in the context
of international criminal law is relatively novel, there is a substantial body of
jurisprudence concerning reparation in international law more generally. This
wider legal context provides a crucial platform for interpretation of the Statute’s
reparations regime, and in particular the establishment of principles relating to
reparations.
17 Barnett, supra n 14.

18 See criticisms in Ashworth, supra n 6.
19 See, Ralph Henham, ‘Some Reflections on the Role of Victims in the International Criminal Trial
Process,’ International Review of Victimology 11 (2004): 201–224.
20 See, Prosecutor v. Thomas Lubanga Dylio, Appeals Chamber, Judgement on the Appeals of the
Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation, Case No.
ICC-01/04-01/06 (11 July 2008).
21 Rome Statute, art. 75(2).
22 International Criminal Court Rules of Procedure and Evidence, rule 98(5).

Key Elements of the Rome Statute’s Reparations Regime

The Duty of the Court to ‘Establish Principles Relating to
Reparations’
Article 75(1) of the Rome Statute places an obligation on the Court to fashion a
body of reparation principles that will form the basis of any reparations order it
may make. The article states,
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 or injury to, or in respect of, victims

and will state the principles on which it is acting.
This provision specifically draws the Court’s attention to the establishment of

principles concerning restitution, compensation and rehabilitation. The use of the
word ‘including’ indicates, however, that the Court’s power to establish reparation
principles is not limited to these forms of redress. Indeed, the absence of express
limitations on the kind of principles that shall be established pursuant to Article
75(1) indicates that the Statute has been designed to confer a significant degree of
discretion upon the Court, enabling it to tailor a body of principles appropriately
suited to the specific context in which it operates.
A key question is what approach the Court may adopt in developing principles
relating to reparations. Reparation is an important concept in general international
law and in many legal regimes within international law. The general principles
concerning reparation in the domain of state responsibility and the specialist
application of these concepts in international human rights law are particularly
worthy of note. Principles emanating from these areas of law provide the Court
with useful guidance in the development of its own reparation principles. However,
the legal context in which reparation principles are developed and applied, both in
general international law and in international human rights law, is quite different
from the legal environment in which international criminal law exists. As a result,
the Court needs to consider the distinct context of international criminal law when
developing its jurisprudence in respect of reparations.
The first important factor to which the Court must have regard in developing its
reparation principles is the criminal character of the conduct in respect of which
these principles are being developed. The very notion that conduct is so harmful
that it requires criminalization and individual censure inevitably gives a certain
moral quality to the determinations of a criminal tribunal.23 With some exceptions,
including serious violations of human rights law, the strong sense of a moral injury
that accompanies the finding of a legal wrong in the criminal law does not usually
arise to the same extent in determinations concerning the internationally wrongful
conduct of states. In building reparation principles arising from violations of
23 See generally, Joel Feinberg, The Moral Limits of the Criminal Law: Vol. 1, Harm to Others (Oxford:
Oxford University Press, 1987).

256 C. McCarthy
international criminal law, the Court needs to craft principles that respond to the
sense of moral wrong, as well as the other, more tangible, forms of harm inflicted
by criminal conduct. Satisfaction is a form of redress that is particularly suited
to responding to the moral injury suffered by victims. As a result, it may have an
important role to play in the principles the Court establishes.
A further crucial consideration to which the Court must have regard is that
international criminal law is premised on the notion of individual criminal re-
sponsibility, and thus any reparative obligations arising through the operation of
Article 75 are those of the individual rather than the state. This is supported by
reference to the legal context of Article 75. Article 25(1) of the Rome Statute states,
‘The Court shall have jurisdiction over natural persons pursuant to this Statute.’

Article 25(4) goes on to state that ‘no provision in this Statute relating to individual
criminal responsibility shall affect the responsibility of States under international
law.’ Thus, the obligation on the Court under Article 75(1) is not to interpret and
apply the concept of reparation in international law as such. Instead, the Court is
required to fashion a range of reparation principles that are appropriate for the
distinctive legal context in which it operates.
Nevertheless, the Court will undoubtedly find principles of international law
useful in guiding the exercise of its discretion under Article 75(1), albeit within
the confines of its jurisdiction and mandate. To examine what the development
of ‘principles relating to reparations’ may entail, it is useful to analyse how the
concept of reparation is used and applied in other contexts of international law.
The following discussion sketches a brief outline of some of the key features of the
concept of reparations in general international law before examining the concept
of reparation in the particular context of international human rights law.
The obligation on states to make reparation in an ‘adequate form’ for interna-
tionally wrongful conduct is ‘the indispensable complement’ of the commission
of an internationally wrongful act.24 A state responsible for a violation of interna-
tional law is therefore under a general obligation to make ‘full reparation for the
injury caused by the internationally wrongful act.’25 The general principle of full
reparation means that
the reparation must, so far as possible, wipe out all the consequences of the illegal act,
and reestablish the situation which would, in all probability, have existed if that act had
not been committed.26
This may include restitution in kind, payment of a sum corresponding to the value
that restitution in kind would bear or the payment of damages where these forms
24 Case Concerning the Factory at Chorzów, Jurisdiction, Permanent Court of International Justice,
Ser. A, No. 9 (1927) [hereinafter ‘Factory at Chorzów’], p. 21, discussed in the International Law
Commission’s commentary to Article 31 in Yearbook of the International Law Commission, vol. 2,
part 2, UN Doc. A/CN.4/SER.A/2001/Add.1 (2001) [hereinafter ‘ILC Commentary’], p. 91. See
also, Articles on State Responsibility, art. 31.
25 Articles on State Responsibility, art. 31.
26 Factory at Chorzów, Merits, Permanent Court of International Justice, Ser. A, No. 17 (1928), p. 47.
See also, ILC Commentary, supra n 24.

of reparation would be insufficient to cover the loss sustained.27 These principles

are clearly set out in Articles 34 to 37 of the Articles on State Responsibility.
Principles relating to reparation are also embodied in a wide range of interna-
tional human rights instruments, including the International Covenant on Civil
and Political Rights, the Inter-American Convention on Human Rights and the Eu-
ropean Convention on Human Rights. The African Charter contains no provision
addressing reparation or redress. In recent years, however, the African Commission
on Human and Peoples’ Rights has begun to develop a body of jurisprudence on
this matter.28
Human rights jurisprudence would also be useful to the Court in establishing
reparation principles. Perhaps the most fundamental issue the Court needs to

address is the purpose of reparations under the Rome Statute. It is notable that the
reparations regime is placed in Part 6 of the Statute, entitled ‘The Trial,’ rather than
Part 7, which is concerned with ‘Penalties.’ Moreover, Article 77 of the Statute is
devoted to ‘applicable penalties’ and does not make reference to reparations, which
are addressed in Article 75. This indicates that reparations under the Rome Statute
are not intended to punish the perpetrator as such, but are instead concerned with
the harm suffered by victims.
The meaning and usage of the term ‘reparation’ (or ‘reparations’) more generally
in international law provides further support for the argument that reparations
under the Rome Statute are not punitive. It will be recalled that in general inter-
national law, the purpose of reparation is to, ‘so far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which would, in all
probability, have existed if that act had not been committed.’29 It follows that the
purpose of reparation is not to punish the responsible party but to address the
harm caused to the injured party. This is the case even in respect of intentional
egregious violations of human rights law or violations of peremptory norms in
international law.30
Perhaps the leading case to treat the question of the purpose of reparation in
international human rights law is Velásquez Rodrı́guez v. Honduras.31 In this case,
the Inter-American Court of Human Rights delineated the scope of reparation for
the purposes of the Inter-American Convention. The Court stated quite explicitly
that, under the Convention, the concept of punitive damages, which it framed as
a largely Anglo-American legal concept, was not applicable.32
27 Factory at Chorzów, Merits, p. 47.

28 In Amnesty International v. Malawi, the Commission stated that Malawi was responsible for repa-
ration in respect of the numerous human rights abuses found in the case. See, Achutan (on behalf
of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v. Malawi, African
Commission on Human and Peoples’ Rights, Communication Nos. 64/92, 68/92, 78/92 (1995),
para. 12.
29 Factory at Chorzów, Merits, p. 47.
30 ILC Commentary, supra n 24.
31 Velásquez Rodrı́guez v. Honduras, Judgement, Reparations and Costs, Inter-American Court of
Human Rights, Ser. C, No. 7 (21 July 1989).
32 Ibid., para. 38.

258 C. McCarthy
The position is similar under the European Convention, where even cases
involving very serious human rights abuses have not given rise to the assessment
of a punitive award. In a series of recent judgements in cases involving serious hu-
man rights abuses, the Grand Chamber of the European Court of Human Rights
has refused applicants’ requests for punitive damages. In the case of Akdivar and
Others v. Turkey, in considering the pecuniary damages owed, the Grand Chamber
explicitly recognized ‘the seriousness of the violations which it has found in respect
of Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 25 (1) of
the Convention.’33 It found Turkey responsible for the destruction of the homes
of Kurdish villagers and for the villagers’ forced displacement. It also found that
Turkey had placed ‘illicit and unacceptable pressure on the applicants to withdraw

their petition,’ in violation of Article 25 granting the right of individual petition.34
The applicants argued that these circumstances justified the imposition of punitive
damages. Although the Court recognized the seriousness of Turkey’s breaches, it
refused punitive damages.35 This refusal has been followed in a series of more
recent judgements.36
The first form of reparation in respect of which the Court is required by Article
75(1) to establish reparation principles is restitution. In general international law,
the obligation to make restitution, if possible, has primacy over other forms of
reparation.37 Restitution is a narrowly defined concept, namely to ‘re-establish
the situation which existed before the wrongful act was committed,’ insofar as
possible.38 This obligation is sometimes also referred to as restitutio in integrum.
Although there are some violations, such as those involving the deprivation of
property, in which restitution is feasible and appropriate,39 in human rights law, as
in international criminal law, there are many other violations in respect of which
restitution is materially impossible. The suffering of a victim of torture or the loss
for a family whose relation has been arbitrarily killed cannot be undone. As a result,
despite in principle adhering to the goal of restitutio in integrum, human rights
courts have acknowledged that the concept is of limited use in many situations. In
33 Akdivar and Others v. Turkey, Just Satisfaction, Grand Chamber, European Court of Human Rights,
App. No. 99/1995/605/693 (1 April 1998), para. 37.
34 Ibid., para. 105.
35 Ibid., paras. 35–38.
36 Ikincisoy v. Turkey, Judgement, European Court of Human Rights (27 July 2004), paras. 147–150;
Selçuk and Asker v. Turkey, Merits, European Court of Human Rights (24 April 1998), para. 119, in
European Human Rights Reports 26 (1998).
37 This can be seen in the Permanent Court’s determination in the Factory at Chorzów case that the
responsible state was under an obligation to restore the undertaking or, if this was not possible,
to pay its value at the time of indemnification, ‘to take the place of restitution which has become
impossible.’ Factory at Chorzów, Merits, p. 48.
38 As opposed to a broader, more hypothetical approach in which restitution would be assessed as the
restoration of the situation that would have existed had the breach not occurred. This definition
blurs the distinction between restitution and the wider concept of reparation. See the discussion in
ILC Commentary, supra n 24.
39 Papamichalopoulos and Others v. Greece, Just Satisfaction, European Court of Human Rights, Ser.
A, App. No. 14556/89, in European Human Rights Reports 21 (1996).

Aloeboetoe et al. v. Suriname, the Inter-American Court of Human Rights stated

that while restitutio in integrum is
one way in which the effect of an internationally unlawful act may be redressed, it is
not the only way in which it must be redressed, for in certain cases such reparation may
not be possible, sufficient or appropriate.40
In Pueblo Bello Massacre v. Colombia, the Court indicated the approach that should
be adopted where restitution is materially impossible. It stated that an
international court must determine a series of measures to ensure that, in addition
to guaranteeing respect for the violated rights, the consequences of the violations are
remedied and, inter alia, compensation is established for the damage caused.41

Where restitution is not possible, human rights jurisprudence has developed
a range of innovative modes of reparation, alongside compensation, to provide
redress for human rights violations. These comprise various species of satisfaction,
including rehabilitation, acts of atonement, commemoration and apology.
It is also necessary for the ICC to develop reparation principles setting out how
harm is to be assessed and quantified. The second sentence of Article 75(1) requires
the Court, on the basis of its reparation principles, ‘to determine the scope and
extent of any damage, loss and injury to, or in respect of, victims.’ The Court is
further required to state the principles on which it is acting. The task of assessing
the extent of harm in respect of which a perpetrator must provide reparations
gives rise to two separate issues. The first concerns whether particular forms of
harm can be causally attributed to a specific perpetrator. The second issue is how
that harm, if attributable to a perpetrator, can be quantified for the purposes of
compensation or other forms of reparation.
Causation is one area where principles derived from general international law
may be of less assistance to the Court in establishing its own jurisprudence on
reparations, as principles of causation in the context of state responsibility tend to
be based on objective standards. As criminal law, by contrast, is concerned with
the actions of individuals, fault-based approaches to causation are usually adopted
(e.g., did the perpetrator intend the harm in question or foresee that it would
arise?). As a result, criteria such as intent and foresight are likely to be more useful
to the Court in assessing whether a sufficient nexus of causality exists to attribute
a particular form of harm to a perpetrator in the context of reparations.
Issues of causation and remoteness are likely to be even more challenging in
the context of certain modes of participation, such as joint criminal enterprise or
aiding and abetting. Such situations may not offer an obvious causal relationship
between the conduct of a perpetrator and any particular body of harm inflicted in
40 Aloeboetoe et al. v. Suriname, Reparations and Costs, Inter-American Court of Human Rights, Ser.
C, No. 15 (10 September 1993), para. 49 (emphasis in original).
41 Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, Inter-American Court of Human
Rights, Ser. C, No. 140 (31 January 2006), para. 228.

260 C. McCarthy
the course of the crime in which he or she jointly participated. Where a defendant
is found to have participated in a (potentially quite vast) joint criminal enterprise,
it will be difficult to determine the course of criminal conduct against which the
loss or damage is to be assessed.
The nonformalist approach to the assessment of damages in international hu-
man rights law – particularly, for example, in the difficult context of violations
concerning torture or the right to life – may be of assistance to the ICC in its
assessment of the compensation owed to victims. The Inter-American Court of
Human Rights has stated that it does not base its assessment of damages on ‘rigid
criteria’ but rather on the facts of each case, applying principles of fairness and
equity.42 The European Court of Human Rights also frequently relies on ‘principles

of equity’ in determining the quantum of compensation owed in respect of both
pecuniary and nonpecuniary harm.43
In international human rights law, damages are awarded for both types of harm.
Recoverable pecuniary harm includes loss of earnings,44 property (including real
property or material possessions),45 loss of material support46 and medical and
funeral expenses.47 In Godı́nez Cruz v. Honduras, the Inter-American Court based
the measurement of the victims’ future earnings on ‘a prudent estimate of the
possible income of the victim’ calculated by reference to probable life span.48
Recoverable nonpecuniary harm includes deprivation of life,49 pain and suffering50
and loss of amenity,51 as well as damage to life plan in some instances.52 The Inter-
American Court has noted that the assessment of damages for such harm cannot
be made using a precise mathematical formula.53 Even though these forms of loss
may be difficult to assess in economic or financial terms, this does not render
them unrecoverable. This was made clear in the Lusitania arbitration. In that case,
42 Velásquez Rodrı́guez v. Honduras, paras. 26–28.

43 See, for example, Akdeniz and Others v. Turkey, Merits, European Court of Human Rights (31 May
2001), para. 134, in Human Rights Case Digest 12 (2001).
44 Ilhan v. Turkey, Merits, European Court of Human Rights, App. No. 22494/93 (27 June 2000), in
European Human Rights Reports 34 (2002); Aloeboetoe et al. v. Suriname.
45 Ituango Massacre v. Colombia, Merits, Reparations and Costs, Inter-American Court of Human
Rights, Case No. 148 (1 July 2006), para. 174.
46 Aloeboetoe et al. v. Suriname, para. 68.
47 Aksoy v. Turkey, Merits, European Court of Human Rights, Case No. 21987/93 (26 November 1996).
48 Godı́nez Cruz v. Honduras, Reparations and Costs, Inter-American Court of Human Rights, Ser. C,
No. 8 (21 July 1989), paras. 29, 47, 50.
49 Aloeboetoe et al. v. Suriname.
50 For example, Z and Others v. the United Kingdom, Merits, Grand Chamber, European Court of
Human Rights, App. No. 29392/95 (10 May 2001).
51 Ahmet Özkan and Others v. Turkey, Merits, European Court of Human Rights, App. No. 21689/93
(6 April 2004), para. 497.
52 Cantoral Benavides v. Peru, Reparations and Costs, Inter-American Court of Human Rights, Ser.
C., No. 88 (3 December 2001), para. 80.
53 Aloeboetoe et al. v Suriname.

the umpire of the arbitral commission stated that there can be no doubt that an
injured person is
under the rules of international law, entitled to be compensated for an injury inflicted
resulting in mental suffering, injury to his feelings, humiliation, shame, degradation,
loss of social position, or injury to his credit or to his reputation.54
According to the Commission,

The mere fact that they are difficult to measure or estimate by money standards makes
them none the less real and affords no reason why the injured person should not be
compensated therefore as compensatory damages.55
Rehabilitation is also an important element of reparation in international human

rights law. It is a form of satisfaction that has proven useful in international
human rights jurisprudence, in particular that of the Inter-American Court of
Human Rights. Rehabilitation involves measures designed to alleviate the physical,
psychiatric or social harm suffered by victims.56 Given the egregious, long-term
harm often inflicted by crimes within the jurisdiction of the ICC, rehabilitation is
a particularly important form of reparation for victims of these crimes.
A wide variety of measures are encompassed by the concept of rehabilitation.
The Inter-American Court of Human Rights has a particularly well-developed
body of jurisprudence in this respect. The measures it has ordered include free
healthcare and medicine for victims,57 the establishment, in communities where
atrocities occurred, of specialist health clinics with capabilities in matters such as
prosthetics,58 the provision of psychiatric counselling59 and psychosocial support
programmes.60 Rehabilitative measures can also include programmes for social
rehabilitation of a community where a serious human rights atrocity has occurred.
Thus, in the Plan de Sánchez Massacre case, which involved the killing of several
54 Lusitania Cases (United States v. Germany), in Reports of International Arbitral Awards 7 (1923): 40.
55 Ibid.
56 The Basic Principles on the Right to Reparation provide that rehabilitation ‘should include medical
and psychological care as well as legal and social services’ (para. 21). See, Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Interna-
tional Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc.
A/RES/60/147 (21 March 2006) [hereinafter ‘Basic Principles’], para. 20(c).
57 Mapiripán Massacre v. Colombia, Merits, Reparations and Costs, Inter-American Court of Human
Rights, Ser. C, No. 134 (15 September 2005), para. 312; Rochela Massacre v. Colombia, Merits,
Reparations and Costs, Inter-American Court of Human Rights, Ser. C, No. 163 (11 May 2007),
para. 302.
58 Plan de Sánchez Massacre v. Guatemala, Merits, Reparations and Costs, Inter-American Court of
Human Rights, Ser. C, No. 105 (29 April 1994), para. 110.
59 Plan de Sánchez Massacre v. Guatemala; Miguel Castro Castro Prison v. Peru, Merits, Reparations
and Costs, Inter-American Court of Human Rights, Ser. C, No. 160 (26 November 2006), paras.
448–450.
60 Nineteen Tradesmen v. Colombia, Merits, Reparations and Costs, Inter-American Court of Human
Rights, Ser. C, No. 109 (5 July 2004), para. 278.

262 C. McCarthy
hundred members of an indigenous community in Guatemala, the Court required

the following measures:
(a) study and dissemination of the Maya-Achı́ culture in the affected communities
through the Guatemalan Academy of Mayan Languages or a similar organization;
(b) maintenance and improvement of the road systems between the said communities
and the municipal capital of Rabinal; (c) sewage system and potable water supply;
(d) supply of teaching personnel trained in intercultural and bilingual teaching for
primary, secondary and comprehensive schooling in these communities; and (e) the
establishment of a health center in the village of Plan de Sánchez with adequate per-
sonnel and conditions, as well as training for the personnel of the Rabinal Municipal
Health Center so that they can provide medical and psychological care to those who
have been affected and who require this kind of treatment.61

These are the kind of individual and collective rehabilitative measures the ICC
Trust Fund may enable by, for example, providing funds to ‘an intergovernmental,
international or national organization’ in accordance with Rule 98(4).62
In summary, the Court needs to be careful to tailor the reparation principles it
establishes to the context of a criminal tribunal that has jurisdiction over individ-
uals and cannot adjudicate upon the responsibility of states or require the latter
to provide reparations. Nevertheless, principles of international human rights law
such as those set out above will be useful to the ICC in elaborating a body of repa-
ration principles pursuant to Article 75(1). They also provide strong indication of
the kind of reparations that the Court may order in due course and what goals
these reparations may be used to achieve.
The Power of the Court to Make a Reparations Order under

Article 75(2)
The framework of reparation principles the ICC establishes is only one element
of the overall reparations regime. Another crucial part of the regime is the power
of the Court to make a reparations order, which is set out in Article 75(2) of the
Rome Statute.
This provision has two limbs. The first provides that the ‘Court may make an
order directly against a convicted person specifying appropriate reparations to, or
in respect of, victims, including restitution, compensation and rehabilitation.’ The
second relates to the Trust Fund for Victims, stipulating that ‘where appropriate the
Court may order that the award for reparations be made through the Trust Fund
provided for in Article 79.’ A range of other provisions under the Statute must
be read alongside Article 75(2), as they inform the ability of the Court to make a
reparations order and to have it enforced. Each of these limbs will be examined in
turn.
61 Plan de Sánchez Massacre v. Guatemala, para. 110.

62 Rule 98(4) provides in full: ‘Following consultations with interested States and the Trust Fund, the
Court may order that an award for reparations be made through the Trust Fund to an intergovern-
mental, international or national organization approved by the Trust Fund.’

The Court’s power in Article 75(2) to order perpetrators to provide reparations

to their victims is reflective of best practice recognized in several nonbinding
international declarations, including the Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power63 and the Basic Principles on the Right
to Reparation. Principle 8 of the Declaration of Basic Principles of Justice states,
Offenders or third parties responsible for their behaviour should, where appropriate,
make fair restitution to victims, their families or dependants. Such restitution should
include the return of property or payment for the harm or loss suffered, reimbursement
of expenses incurred as a result of the victimization, the provision of services and the
restoration of rights.
Principle 18 of the Basic Principles on the Right to Reparation provides, in equally

aspirational terms, that
in accordance with domestic law and international law, and taking account of individual
circumstances, victims of gross violations of international human rights law and serious
violations of international humanitarian law should, as appropriate and proportional
to the gravity of the violation and the circumstances of each case, be provided with full
and effective reparation.
Once the Court has decided to make a reparations order against an accused
person under Article 75(2), a key issue concerns the execution of that order. What
power does the Court have to seek the implementation of a reparations order
under Article 75? In terms of the legal scope of the Court’s competence in this
area, paragraphs four and five of Article 75 are important. Article 75(4) provides
that, after a defendant has been convicted, the Court may ‘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.’ This provision needs to be read
alongside Article 75(5), which provides that ‘a State Party shall give effect to a
decision under this article as if the provisions of article 109 were applicable to this
article.’ Articles 93(1) and 109 of the Statute are therefore crucial to the execution
of any reparations order the Court may make.
Articles 93(1) and 109 place obligations on states parties to comply with certain
requests for assistance in respect of orders made by the Court or requests to states
issued by the Court. The provision that is most relevant to reparations is Article
93(1)(k), which stipulates:
States parties shall in accordance with the provisions of this Part and under procedures
of national law, comply with requests by the Court to provide the following assistance
in relation to investigations or prosecutions: . . .
(k) The identification, tracing and freezing or seizure of proceeds, property and assets
and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice
to the rights of bona fide third parties.
63 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc.
A/RES/40/34 (29 November 1985).

264 C. McCarthy
Article 109 is also important in the context of reparations.64 This provision

addresses the enforcement of fines and forfeiture measures. For present purposes,
the most important provision of the article is paragraph 1:65
States Parties shall give effect to fines or forfeiture measures ordered by the Court under
Part 7, without prejudice to the rights of bona fide third parties, and in accordance with
the procedure of their national law.
As a result of Articles 93(1) and 109, the enforceability of a reparations order is

strongest in respect of the seizure or forfeiture of property or other assets possessed
by the accused. In addition, Article 93(1) appears to provide the Court with the
power to seize and ultimately forfeit the instrumentalities of crimes for the purposes
of a reparations order. Article 93(1)(k) envisages that instrumentalities of crime

may be seized ‘for the purpose of eventual forfeiture.’ However, it is clear that the
Court does not have the power to order the forfeiture of instrumentalities as a
penalty pursuant to Article 77(2)(b). The only other context in which the Court
could order such property to be forfeited is pursuant to the power provided by
Article 75(2) to make a reparations order against the convicted person. Often, such
instrumentalities may have relatively little value, but in some circumstances – for
example, when aircraft has been used by a group in the perpetration of a crime –
instrumentalities may have a more substantial value.66
Other powers enumerated in Article 93(1) may also be valuable in respect of
reparations orders the Court may make. For example, it was noted in the context
of the discussion of the concept of satisfaction in international human rights law
that the provision of information can, in some circumstances, serve as a form
of satisfaction. For example, in the Castro Prison case, the identification of the
whereabouts of the bodies of victims was addressed as a form of satisfaction.67
The ICC may find its powers under Article 93(1)(i) useful in this regard. This
provision requires states parties to comply with requests to provide assistance in ‘the
provision of records and documents, including official records and documents.’
Article 93(1)(g) may also be useful in this situation, as it requires states parties
to cooperate in ‘the examination of places or sites, including the exhumation and
examination of grave sites.’ This is just one example of the ways in which the Court
could use its (rather limited) powers under Article 93(1) to require the cooperation
of states in the enforcement of a reparations order.
In addition, the Court may be able to grant a reparations order that would seek
to assist in providing victims with information as a form of reparation. However,
in making such an order, the Court would have to be careful to ensure that
64 See, Rome Statute, art. 75(2).
65 Paragraph 2 provides for value forfeiture in the event that a states party is unable to give effect
to an order for forfeiture, again without prejudice to the rights of bona fide third parties. Finally,
paragraph 3 of Article 109 requires the states party to transfer property to the Court, which it
obtains as a result of the enforcement of a judgement of the Court.
66 Were the Court to seek to forfeit such an instrumentality, it would need to be careful to tailor the
order so as to respect relevant principles of international law concerning the immunity of states
and their property.
67 Miguel Castro Castro Prison v. Peru, operative paragraph 11 of the judgement, p. 167.

the information sought was related purely to the reparations in question, for
example, information concerning the location of victims’ remains as a form of
satisfaction. In crafting such a reparations order, care would be required to ensure
that this form of reparation did not become a wider ‘truth-finding’ exercise in
which the responsibility of a state may be implicitly judged in a manner contrary
to Article 25(4) of the Statute.
Where a perpetrator’s assets or property form the basis of a reparations award,
the role of the Trust Fund becomes important. Once the perpetrator’s property or
other assets have been secured, the Court may use the Trust Fund to distribute these
funds to victims or to ensure that they are used for the benefit of victims. Article
79(2) provides the Court with the power to ‘order money and other property

collected through fines or forfeiture to be transferred, by order of the Court, to the
Trust Fund.’ It will be recalled that Article 75(2) stipulates that, ‘where appropriate,
the Court may order that the award for reparations be made through the Trust
Fund provided in Article 79.’
The Trust Fund has another source of revenue in addition to money: property
or other assets derived from fines, forfeiture or reparations orders transferred to
it in accordance with Article 79(2) of the Statute. This is referred to in Rule 98(5)
of the Court’s Rules of Procedure and Evidence as the ‘other resources of the Trust
Fund’ and comprises resources derived from voluntary contributions by states or
individuals.
A key question this rule raises is whether the Court may make use of these ‘other
resources’ in reparations awards it makes under Article 75. The answer to this
question centres on the interpretation of Article 75(2). It is not entirely clear from
the wording of the provision what is meant by the Court having the power to award
reparations ‘through’ the Trust Fund. The ordinary meaning of ‘through’ can be
taken as ‘indicating connexion or transmission by an intermediate thing.’68 The
term could therefore be taken to indicate that the Court has the power to make
a reparations award to victims utilizing the resources of the Trust Fund (accrued
through voluntary contributions from states and private individuals) in addition to
resources provided by a perpetrator. Alternatively (and fitting more naturally with
the ordinary meaning), ‘through’ could be more narrowly interpreted to mean that
the Court may use the Trust Fund as a mechanism for the distribution of property
solely derived from the perpetrator, and that the Trust Fund may distribute its
other resources as it sees fit.
To determine precisely what is meant by Article 75(2), it is necessary, in ac-
cordance with Article 31(3)(a) of the Vienna Convention on the Law of Treaties,
to have regard to the agreements that have been reached between states parties
subsequent to the conclusion of the Rome Statute concerning its interpretation
68 Oxford English Dictionary, vol. 8 (Oxford: Clarendon Press, 1933).

266 C. McCarthy
and application.69 These include the ICC Rules of Procedure and Evidence70 and
the Regulations of the Trust Fund.71 The absence of any provision in either the
Rules of Procedure and Evidence or the Regulations of the Trust Fund addressing
the way in which such a power would operate in practice indicates that the Court’s
power in Article 75(2) to make a reparations award through the Trust Fund is
limited to the distribution of resources derived from the perpetrator.
Rule 98 of the ICC Rules of Procedure and Evidence contains five provisions
pertaining to the operation of the Trust Fund. These concern matters such as the
circumstances under which the Court may deposit funds with the Trust Fund,72
when it may make a collective award for reparations through the Trust Fund,73
when the award may be made through the Trust Fund to an intergovernmental

organization74 and, finally, the ability of the Trust Fund to use its ‘other resources’
for the benefit of victims.75 None of these provisions sets out how the Court could
order the Trust Fund to provide additional resources to victims to supplement the
reparations provided by a perpetrator.
The same is true of the Trust Fund Regulations, which were agreed upon by
the ICC Assembly of States Parties pursuant to an obligation placed upon it by
Article 79(3) of the Statute. As with the Rules, the Regulations do not contain
any provision setting out the circumstances in which the Court may order that
the resources of the Trust Fund be used to supplement any reparations order the
Court may make.
The absence of provisions in either the Rules or the Trust Fund Regulations
provides strong indication that Article 75(2) does not, in fact, confer such a power
upon the Court. This is especially telling given that if the Court were to seek to
utilize Trust Fund resources to supplement a reparations award, a mechanism
would surely be needed to ensure adequate consultation between the Court and
the Trust Fund prior to such an award being made. Such consultations would be
necessary to determine whether, for example, the Trust Fund has sufficient available
funds at its disposal to implement a reparations order made by the Court before
the expectations of victims are raised. That the above-mentioned instruments do
not provide for such a mechanism demonstrates that while the Trust Fund is a
useful means by which the Court can distribute reparations from a perpetrator,
the Court cannot require the Trust Fund to provide reparations from resources not
derived from the perpetrator.
69 Article 31(1) of the Vienna Convention on the Law of Treaties states that a treaty is to be interpreted
in accordance with the ‘ordinary meaning to be given to the terms of the treaty in their context
and in light of its object and purpose.’ According to Article 31(3)(a), together with the context,
‘any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions’ shall also be taken into account in interpreting a treaty.
70 ICC Rules of Procedure and Evidence.
71 Regulations of the Trust Fund for Victims, chap. IV.
72 ICC Rules of Procedure and Evidence, rule 98(2).
73 Ibid., rule 98(3).
74 Ibid., rule 98(4).
75 Ibid., rule 98(5).

This is not to suggest that the resources of the Trust Fund will not be used to
supplement the resources provided by the perpetrator. Rather, the way in which the
Rome Statute reparations regime has been structured necessitates collaboration
between the Trust Fund and the Court in developing programmes to provide
reparations to victims in such circumstances.
Trust Fund Regulation 56 is indicative of this collaborative relationship. It stipu-
lates that the Trust Fund’s Board of Directors ‘shall determine whether to comple-
ment the resources collected through awards for reparations with other resources
of the Trust Fund and shall advise the Court accordingly.’ Regulation 56 goes on
to provide that without prejudice to support to victims that the Trust Fund may
provide independently,

the Board of Directors shall make all reasonable endeavours to manage the Fund taking
into consideration the need to provide adequate resources to complement payments
for [the Court’s reparations awards] and taking particular account of ongoing legal
proceedings that may give rise to such awards.
Thus, the Trust Fund and the Court have separate but complementary roles in
respect of reparations.
The Trust Fund’s Independent Power to Provide Support to

Victims
The role of the Trust Fund in providing independent support to victims is not
expressly mentioned in the Rome Statute, but is laid down in the Court’s Rules of
Procedure and Evidence. Rule 98 sets out the main powers of the Trust Fund, and
the fifth paragraph of this rule provides that ‘other resources of the Trust Fund
may be used for the benefit of victims subject to the provisions of article 79.’76 It
is clear, therefore, that the Trust Fund also has the independent power to provide
support to victims outside the context of Court-ordered reparations.
As required by Regulation 50, the Trust Fund has now notified the Court of its
plans to undertake a range of needs assessments leading to a number of specified
projects to provide physical, psychological and material support to victims in two
situations currently before the Court, Uganda77 and the Democratic Republic
of Congo (DRC).78 The Trial Chamber has approved the Trust Fund’s proposed
activities in respect of these situations.79
76 Rules 98(1)–(4) relate to the use of Trust Fund resources derived from reparations orders made
against a convicted person. ‘Other resources of the Trust Fund’ in Rule 98(5) therefore refers to
resources not so derived and includes, in particular, voluntary contributions to the Fund from
states or private parties.
77 Situation in Uganda, Notification of the Board of Directors of the Trust Fund for Victims in accordance
with Regulation 50 of the Regulations of the Trust Fund for Victims, Case No. ICC-02/04 (25 January
2008) [hereinafter ‘Uganda Trust Fund Notification’].
78 Situation in Democratic Republic of the Congo, Notification of the Board of Directors of the Trust Fund
for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund for Victims, Case
No. ICC-01/04 (24 January 2008) [hereinafter ‘DRC Trust Fund Notification’].
79 Situation in Uganda, Decision on Notification of the Trust Fund for Victims, Case No. ICC-02/04 (19
March 2008); Situation in Democratic Republic of Congo, Decision on the Notification of the Board

268 C. McCarthy
In its applications to the Pre-Trial Chamber, the Trust Fund outlined how it
assesses whether it is necessary to provide certain groups of victims with material
support and, when it concludes that such support is necessary, how it determines
the kind of activities it intends to undertake. In respect of each of these situations,
the Trust Fund has undertaken what it describes as ‘livelihood’ assessments. Ac-
cording to the Trust Fund, such assessments are ‘necessary for identifying the needs
of victims and designing the subsequent and appropriate interventions to address
the impact of victimization.’80 The Trust Fund says that the idea of livelihood ‘em-
bodies three fundamental attributes: the possession of human capabilities (such as
education, skills, health, psychological orientation); access to tangible and intan-
gible assets; and the existence of economic activities.’ Elaborating on this, it says

that ‘the interaction between these attributes defines how the Board of Directors
prioritizes support so that victims can cope with and recover from the stress and
shocks of victimization.’81
In both Uganda and DRC, the Trust Fund has established three categories of
programmes, reflecting the three aspects of its independent mandate to provide
support to victims set out in Regulation 48. These are physical rehabilitation,
psychological rehabilitation and material support.82 The Fund’s Board of Directors
has decided that ‘in order to fulfil its mandate in such a way that the maximum
number of persons could benefit of [sic] its assistance,’83 the Fund will provide
such support to groups of victims rather than to individually identified victims.
However, the Trust Fund does not limit the provision of material support to
‘victims who appear before the Court or to the victims who participate in the
proceedings’;84 rather, all victims of crimes within the jurisdiction of the ICC in
Uganda and DRC are potentially eligible for support.85
These support programmes will be implemented through intermediaries to
avoid victims being stigmatized or endangered by being seen to have contact
with the ICC.86 Furthermore, the Fund says that projects will be implemented
in accordance with the principle of nondiscrimination.87 In practice, this could
raise difficult questions of implementation, given that often one ethnic or religious
group will have suffered in a way that is different, and perhaps more difficult
or costly to remedy, than other groups. Tensions surrounding the allocation of
resources between different ethnic groups have proven difficult, for example, in
of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the
Trust Fund, Case No. ICC-01/04 (11 April 2008).
80 Uganda Trust Fund Notification, supra n 77 at para. 22. See also, DRC Trust Fund Notification,
supra n 78 at para. 22.
81 Uganda Trust Fund Notification, supra n 77 at para. 23.
82 Ibid., para. 54.
83 Ibid., para. 34.
84 Ibid., para. 35.
85 Ibid., para. 35.
86 Ibid., para. 43.
87 Ibid., para. 48.

the context of Rwanda’s domestic reparations programmes following the genocide

in that country.88
At a more general level, a degree of caution is necessary in respect of the kind
of support that is provided to victims pursuant to Rule 98(5). In its applications
notifying the Pre-Trial Chamber of its intention to undertake activities to use its
‘other resources’ to provide support to victims pursuant to Rule 98(5), the Trust
Fund placed significant emphasis on the argument that the provision of resources
pursuant to this rule does not amount to ‘reparations’ but concerns a separate,
broader mandate covering the ‘provision of assistance to victims in general.’89
Given that the provision of support pursuant to Rule 98(5) is not tied to the
conduct of trial proceedings, this is a justified and important distinction.

However, a central challenge facing the Trust Fund as it develops is how it can use
this broader mandate to the maximum benefit of victims while at the same time
ensuring that such support provides clear recognition of the harm to which victims
were subjected and thereby respects the important normative role played by Trust
Fund support. It is particularly important, in this regard, that the role of the Fund
does not become conflated with that of a charitable organization providing general
assistance to victims of crimes. Any support provided by the Fund must seek to
redress the harm victims have suffered as a result of the crime to which they or
their loved ones were subjected.
This important distinction is clear from the mandate of the Trust Fund, which is
set out in Article 79(1) of the Statute and elaborated upon in the Regulations. Article
79(1) declares that a ‘Trust Fund shall be established for the benefit of victims of
crimes within the jurisdiction of the Court.’ This must be read in conjunction
with Rule 85, which defines ‘victims’ as persons who have suffered harm resulting
from the commission of a crime within the jurisdiction of the Court. Trust Fund
Regulation 48 provides that ‘other resources of the Trust Fund shall be used to
benefit victims of crimes . . . who have suffered physical, psychological and/or
material harm as a result of these crimes.’
Collectively, these provisions inform and circumscribe the mandate of the Trust
Fund. This mandate does not simply define the constituency to which the Fund
provides support but also indicates the kind of support it should provide. In
particular, when providing support to victims independently, the Trust Fund’s
‘other resources’ are to be used to redress one or more of the three species of harm
identified in Regulation 48. The mandate of the Fund is not to provide wider forms
of socioeconomic assistance to victims, however beneficial this may seem.
Adherence to the scope of this mandate is important for a number of rea-
sons. First, as already noted, if the Trust Fund were to provide wider forms of
88 See, Heidy Rombouts and Stef Vandeginste, ‘Reparations for Victims in Rwanda: Caught between
Theory and Practice,’ in Out of the Ashes: Reparation for Victims of Gross and Systematic Hu-
man Rights Violations, ed. Koen de Feyter, Stephan Parmentier, Marc Bossuyt and Paul Lemmens
(Antwerp: Intersentia, 2005).
89 Uganda Trust Fund Notification, supra n 77 at paras. 15–17. See also, DRC Trust Fund Notification,
supra n 78 at paras. 15–17.

270 C. McCarthy
socioeconomic assistance to victims, this would conflate the role of the Fund with
the work of other humanitarian organizations operating in the same areas. At a
practical level, given the Fund’s limited resources, duplicating the kind of work
already undertaken by other organizations would not be to use those resources in
the way that is most beneficial to victims.
A second, and more important, reason is that, in addition to the practical
assistance Trust Fund support under Rule 98(5) may offer victims, there is a further
crucial function such support serves. In a fundamental sense, through acting as
an acknowledgement of the wrongdoing to which the victim was subjected, the
provision of support to victims by the Trust Fund represents recognition of the
moral status of the individual as a victim of a particular type of wrong, namely,

a crime under the Rome Statute. To amount to such an acknowledgement, it
is essential that the work of the Trust Fund be seen as distinct from general
humanitarian relief assistance. To this end, it is necessary to ensure not simply that
victims ultimately receive practical support but also that such support is provided
in such a way that its broader significance is understood by victims. Indeed, given
the limited support the Trust Fund may be in a position to offer, for many victims
this may often be the most effective contribution the Fund could make to their
recovery.
Conclusion
The point was made at the outset of this article that according to reparative
justice theory, the criminal process should not concentrate solely on the custodial
punishment of the perpetrator as the purpose of the system. Rather, it should seek
to concern itself, as far as possible, with the full range of relationships damaged by
criminal conduct and all the forms of harm inflicted.
While ideas encompassed by reparative justice theory clearly had some influence
upon the schematic design of the Rome Statute, the ability of the ICC to realize all
the ambitions that reparative justice theory has for the criminal process is restricted.
Although Article 75(1) grants the Court significant discretion to develop reparation
principles tailored to the specific context of international criminal justice, the
Court’s ability to implement and enforce those principles is limited by several
important factors.
Whereas reparative justice theory may make the point that it is necessary to
address the full range of relationships harmed by criminal conduct, the ability of
the ICC to achieve this is necessarily limited to the responsibility of individuals for
criminal conduct. This means that various forms of reparation, in particular certain
types of satisfaction – for example, an official apology from a state – are beyond the
Court’s jurisdiction. Moreover, although the Statute’s reparations regime provides
the Court with additional powers to respond to the needs of victims in a more
holistic way than custodial punishment would allow, at a procedural level the
ability of the Court to implement reparation principles is limited. The extent to
which a reparations order is enforceable is largely determined by Articles 93(1)

and 109 of the Rome Statute, which provide the Court with powers that are not
ideally suited to the task of providing reparations to victims.
In light of this, the Trust Fund for Victims has a particularly important role to
play in the overall ICC reparations regime. In line with reparative justice theory, the
Fund provides an important way in which the international community can offer
recognition of the wrong inflicted upon victims by means of practical support,
and thereby offer some degree of acknowledgement of the moral status of victims.
Undoubtedly, with sufficient resources, the Trust Fund can achieve a great deal.
However, the sheer number of victims and the scale of harm falling within the
competence of the Trust Fund mean that although the Fund has a valuable role to
play, its impact will be limited by the scale of the resources at its disposal.

The Rome Statute’s reparations regime creates an important capacity to respond
to the needs of victims in a way not yet seen in international criminal justice.
Despite this, expectations in respect of the regime must be modest. Although the
regime certainly has the potential to make an important contribution to addressing
the needs of victims, given the limitations on the Court’s powers in respect of
reparations, the institutional structure of the ICC only partially addresses the
kinds of concerns voiced in reparative justice theory.

Mccarthy 2009

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Mccarthy 2009

Uploaded by

Copyright:

Available Formats

The International Journal of Transitional Justice, Vol.

Reparations under the Rome Statute of

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

∗ PhD candidate, Jesus College, University of Cambridge, UK. Email: cm396@cam.ac.uk

For Permissions, please email journals.permissions@oxfordjournals.org.

Before proceeding to a substantive discussion of the concept of reparations

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

Reparations and Reparative Justice Theory

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

the theory’s central elements.13 In broad terms, a key concern of proponents of

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

17 Barnett, supra n 14.

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Key Elements of the Rome Statute’s Reparations Regime

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

This provision specifically draws the Court’s attention to the establishment of

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

of reparation would be insufficient to cover the loss sustained.27 These principles

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

27 Factory at Chorzów, Merits, p. 47.

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Aloeboetoe et al. v. Suriname, the Inter-American Court of Human Rights stated

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

42 Velásquez Rodrı́guez v. Honduras, paras. 26–28.

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

According to the Commission,

Rehabilitation is also an important element of reparation in international human

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

hundred members of an indigenous community in Guatemala, the Court required

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

The Power of the Court to Make a Reparations Order under

61 Plan de Sánchez Massacre v. Guatemala, para. 110.

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

The Court’s power in Article 75(2) to order perpetrators to provide reparations

Principle 18 of the Basic Principles on the Right to Reparation provides, in equally

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Article 109 is also important in the context of reparations.64 This provision

As a result of Articles 93(1) and 109, the enforceability of a reparations order is

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

68 Oxford English Dictionary, vol. 8 (Oxford: Clarendon Press, 1933).

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

The Trust Fund’s Independent Power to Provide Support to

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015

International Journal of Transitional Justice, Vol. 3, 2009, 250–271

the context of Rwanda’s domestic reparations programmes following the genocide

Downloaded from http://ijtj.oxfordjournals.org/ at New York University on June 9, 2015