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Reparations, Assistance and Support

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Book cover Victim Participation in International Criminal Justice

Part of the book series: International Criminal Justice Series ((ICJS,volume 11))

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Abstract

Reparations, assistance and support are relatively new features in international criminal law, and the practice remains in a state of flux. Victims’ lawyers can play an important role in shaping and further developing the evolving practice for the ultimate benefit of victims. This chapter focuses on the mandates, rules and procedures, and practice of international criminal courts, in relation to reparations, assistance and support. These aspects are analysed from the perspective of victims’ active engagement with these mandates. At the Extraordinary Chambers in the Courts of Cambodia (ECCC), only those victims that are admitted to participate in the proceedings as civil parties are entitled to apply for and obtain reparations. In contrast, at the International Criminal Court (ICC), victims’ participation and reparations requests are treated distinctly; a victim may apply for and/or obtain reparations without having participated in the proceedings. The Special Tribunal for Lebanon (STL) does not afford reparations to victims. The chapter is split in two parts: (i) reparations and (ii) assistance and support. Each part begins by providing an overview, comparing and contrasting the statutory frameworks, rules and procedures of the various courts. An analysis is then provided of how victims and their lawyers may access their entitlements to reparations and assistance and support, the challenges that have arisen in the practice, as well as the various steps that victims’ lawyers may take to enhance access, bearing in mind the jurisprudence and other relevant factors.

Carla Ferstman is the Director of REDRESS. The views expressed herein are those of the author and do not necessarily reflect the views of the organisation. This chapter contains updates until November 2016.

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Notes

  1. 1.

    See Article 28 of the Charter of the International Military Tribunal: ‘In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany’ (1945 Charter of the International Military Tribunal 82 UNTS 280). Discussed in Moffett 2012, pp. 256–257 who indicates that the provision was never applied. The Tokyo tribunal had no such provision.

  2. 2.

    The Potsdam Declaration made reference to reparation in Article 11: ‘Japan shall be permitted to maintain such industries as will sustain … allow of the exaction of just reparations.’ (The Potsdam Declaration, Proclamation By Heads of Governments, United States, United Kingdom, and China, 26 July 1945). However, this was not taken forward in the framework for the Tokyo Tribunal. See Charter of the International Military Tribunal for the Far East, Adopted at Tokyo, Japan, 19 January 1946.

  3. 3.

    See Rule 106 common to the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ITR/3/Rev. 1, (2015) (the ‘ICTR RPE’)) and the International Criminal Tribunal for Former Yugoslavia (IT/32/Rev. 49, (2013) (the ‘ICTY RPE’)), which provides that judgments establishing guilt are to be binding as to the criminal responsibility of the convicted person for the purpose of an action for compensation, which might be brought by victims in national courts. See also Rule 105 of the SCSL Rules of Procedure and Evidence, Rev. 14 (2012) (the ‘SCSL RPE’) and Statute of the STL, S/RES/1757 (2007) (the ‘STL Statute’), Article 25.

  4. 4.

    See ICTR and ICTY RPE, Rule 61(d). A similar provision is found in STL Rules of Procedure and Evidence STL-BD-2009-01-Rev.7-Corr. 1 (2015) (the ‘STL RPE’), Rule 82(c).

  5. 5.

    See ICTR and the ICTY RPE, Rule 105; SCSR RPE, Rule 104(c).

  6. 6.

    Malmström 2001, pp. 373–384; De Brouwer 2005, pp. 394–400.

  7. 7.

    See, International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission covering its 46th Session, 2 May–22 July 1994 49 UN Doc. A/49/10, Article. 47(3)(c).

  8. 8.

    Ibid.

  9. 9.

    Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the period of Democratic Kampuchea, NS/RKM/1004/006 (2004).

  10. 10.

    For an analysis of the negotiations leading to the inclusion of these provisions see, in relation to the ICC, Muttukumaru 1999, pp. 262–264; Donat-Cattin 1999, pp. 965–978; Ferstman 2002, p. 667. In relation to the ECCC, see Sperfeldt 2012, pp. 457–489; McGonigle 2009, pp. 127–149.

  11. 11.

    See Rome Statute of the International Criminal Court, A/CONF.183/9 (2010) (the ‘ICC Statute’), Article 75; ECCC Internal Rules, Rev. 9 (2015) (the ‘ECCC Internal Rules’), Rule 23.

  12. 12.

    ICC Statute, Article 75.

  13. 13.

    Ibid., Article 79.

  14. 14.

    ECCC Internal Rules, Rule 23quinquies.

  15. 15.

    These standards are set out in a range of texts, including the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc. A/RES/60/147 (2005).

  16. 16.

    ICC Rules of Procedure and Evidence, ICC-ASP/1/3 Corr.1 (Part.II-A) (2002) (the ‘ICC RPE’).

  17. 17.

    See also ICC Statute, Article 75(4). See Discussion by Donat-Cattin 1999, p. 966.

  18. 18.

    ICC, Prosecutor v. Uhuru Muigai Kenyatta, Pre-Trial Chamber II, Decision Ordering the Registrar to Prepare and Transmit a Request for Cooperation to the Republic of Kenya for the Purpose of Securing the Identification, Tracing and Freezing or Seizure of Property and Assets of Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-42, 5 April 2011.

  19. 19.

    ICC, Prosecutor v. Uhuru Muigai Kenyatta, Trial Chamber V(b), Decision on the implementation of the request to freeze assets, ICC-01/09-02/11-931, 8 July 2014, para 12.

  20. 20.

    Ibid., para 12.

  21. 21.

    Ibid., para 14.

  22. 22.

    ICC, Prosecutor v. Uhuru Muigai Kenyatta, Trial Chamber V(b), Decision on the implementation of the request to freeze assets, Dissenting opinion of Judge Henderson, ICC-01/09-02/11-931-Anx, 8 July 2014, para 7.

  23. 23.

    ECCC, Case 002, Pre-Trial Chamber, Decision on Appeal of Co-Lawyers for Civil Parties against Order on Civil Parties’ Request for Investigative Actions Concerning all Properties Owned by the Charged Persons, Case No. 002/19-09-2007-ECCC/OCIJ (PTC 57), 4 August 2010.

  24. 24.

    Ibid., paras 25 and 32.

  25. 25.

    Ibid., para 23.

  26. 26.

    Heindel 2013.

  27. 27.

    ICC, Office of the Prosecutor, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Germain Katanga’s Notice of Discontinuance of his Appeal against his Judgment of Conviction, 25 June 2014, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/pages/otp-statement-25-06-2014.aspx. Accessed 1 June 2015.

  28. 28.

    See ICC Statute, Article 53(1)(c), (2)(c) and 3(b); ICC RPE, Rules 93 and 107.

  29. 29.

    See Ferstman 2012, p. 801.

  30. 30.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I, Decision on the Requests of the Legal Representative for Victims VPRS 1–6 regarding “Prosecutor’s Information on further Investigation”, ICC-01/04-399, 26 September 2007.

  31. 31.

    ECCC Internal Rules, Rule 67(5) and 74(4)(f).

  32. 32.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012.

  33. 33.

    Ibid., para 254.

  34. 34.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public Annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015, para 55.

  35. 35.

    Ibid., paras 69–76, 115.

  36. 36.

    Ibid., para 65. See also, para 99.

  37. 37.

    Ibid., para 196.

  38. 38.

    Ibid., para 198.

  39. 39.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, paras 187, 194–195.

  40. 40.

    ECCC Internal Rules, Rule 23bis.

  41. 41.

    ECCC, Case 001, Trial Chamber, Judgment, Case No. 001/18-07-2007/ECCC/TC, 26 July 2010, paras 642–643.

  42. 42.

    ECCC, Case 001, Supreme Court Chamber, Appeal Judgment, Case No. 001/18-07-2007/ECCC/SC, 3 February 2012, para 418.

  43. 43.

    UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc. A/RES/60/147 (2005), para 22(b).

  44. 44.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision on Victims’ Participation, ICC-01/04–01/06, 18 January 2008, para 122.

  45. 45.

    Ferstman and Goetz 2009, pp. 336–338.

  46. 46.

    ECCC, Case 001, Supreme Court Chamber, Appeal Judgment, Case No. 001/18-07-2007/ECCC/SC, 3 February 2012, para 655.

  47. 47.

    ECCC, Case 001, Trial Chamber, Judgment, Case No. 001/18-07-2007/ECCC/TC, 26 July 2010, para 651.

  48. 48.

    Ibid., para 665.

  49. 49.

    ECCC Internal Rules, Rule 23quinquies(2).

  50. 50.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public Annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015, para 118.

  51. 51.

    These forms are available on the website of the Court, here: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/victims/Pages/forms.aspx. Accessed 1 June 2015.

  52. 52.

    Article 75(1) of the ICC Statute refers to ‘on its own motion in exceptional circumstances’ (emphasis added).

  53. 53.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, para 187.

  54. 54.

    Ibid., para 274.

  55. 55.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public Annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015, para 214.

  56. 56.

    Ibid., para 152.

  57. 57.

    Ibid., para 156.

  58. 58.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, The Trust Fund for Victims, Public redacted version of the Filing regarding symbolic collective reparations projects, ICC-01/04-01/06-3223-Red, 19 September 2016, para 13; ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber II, Order approving the proposed plan of the Trust Fund for Victims in relation to symbolic collective reparations, ICC-01/04-01/06-3251, 21 October 2016. For details on these developments, see Chap. 1.

  59. 59.

    ICC Statute, Article 75(1).

  60. 60.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, para 222.

  61. 61.

    ICC Statute, Article 75(3); ICC RPE, Rule 97(2).

  62. 62.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, paras 269–275.

  63. 63.

    Article 82(4) of the ICC 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.’

  64. 64.

    ICC RPE, Rule 156(4).

  65. 65.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Decision on the admissibility of the appeals against Trial Chamber I’s “Decision establishing the principles and procedures to be applied to reparations” and directions on the further conduct of proceedings, 14 December 2012.

  66. 66.

    Ibid., para 66.

  67. 67.

    Ibid., para 69.

  68. 68.

    Ibid., para 72.

  69. 69.

    ECCC, Case 001, Supreme Court Chamber, Appeal Judgment, Case No. 001/18-07-2007/ECCC/SC, 3 February 2012, para 667.

  70. 70.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public Annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015, paras 102–105.

  71. 71.

    ICC RPE, Rule 219.

  72. 72.

    ECCC Internal Rules, Rule 113(1).

  73. 73.

    ICC, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, ICC-ASP/3/Res.1 (2004).

  74. 74.

    See Regulation 116(2) of the ICC Regulations of the Court, ICC-BD/01-03-11 (2011).

  75. 75.

    ICC Regulations of the Court, Regulation 117.

  76. 76.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public Annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015, para 104.

  77. 77.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06-2904, 7 August 2012, para 71.

  78. 78.

    Ibid., para 272. See also Situation in Democratic Republic of Congo, Pre-Trial Chamber I, Decision on the Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund, 11 April 2008, ICC-01/04-492, p. 7.

  79. 79.

    ICC, Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public Annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015, paras 111–114.

  80. 80.

    ECCC Internal Rules, Rule 23quinquies(3)(b).

  81. 81.

    The development of this narrow ‘recognition’ mandate is explored in Sperfeldt 2012, p. 457.

  82. 82.

    ICTR RPE, Rule 34.

  83. 83.

    See generally, Haslam 2007, pp. 57, 66–69; De Brouwer 2007, pp. 216–217.

  84. 84.

    SCSL RPE, Rule 34(A)(ii) and (iii).

  85. 85.

    See ICTY RPE, Rule 34.

  86. 86.

    See Regulations of the Trust Fund for Victims, Resolution ICC-ASP/4/Res.3 (2005) (the ‘ICC Regulations of the Trust Fund’), Regulation 48.

  87. 87.

    ICC Regulations of the Trust Fund, Regulation 50(a).

  88. 88.

    ICC Regulations of the Trust Fund, Regulation 50(a)(ii) and (iii).

  89. 89.

    ECCC, 7th Plenary Session of ECCC concludes, 9 February 2010. https://www.eccc.gov.kh/en/articles/7th-plenary-session-eccc-concludes. Accessed 30 September 2016.

  90. 90.

    Sperfeldt, Christoph, ‘Collective Reparations at the Extraordinary Chambers in the Courts of Cambodia’, 12 International Criminal Law Review (2012), 466–467.

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    Carla Ferstman

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Ferstman, C. (2017). Reparations, Assistance and Support. In: Tibori-Szabó, K., Hirst, M. (eds) Victim Participation in International Criminal Justice. International Criminal Justice Series, vol 11. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-177-7_13

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