Victim Reparation

Reparations to victims: Article 75 of the Rome Statute

The Rome Statute of the International Criminal Court [1] was based on respect for individual rights and freedoms and included mechanisms to ensure impartial justice, the ICC could not be viewed as an “extraordinary or special court”, the latter being national courts which replace ordinary courts and which do not apply established legal procedures.

Victims have an important stake in proceedings before the International Criminal Court (ICC). Next to the right to participate in proceedings, they also have a right to reparations, once an accused person has been convicted. This important innovation of international criminal law by the Rome Statute holds the promise of an unprecedented avenue of international reparative justice, for victims of the most serious crimes.

The crux of the Rome Statute is individual criminal responsibility. Article 75, the central norm of the Rome Statute guiding “Reparations to victims” before the Court, states that reparation for victims may include restitution, compensation, and rehabilitation. Accordingly, the Court may enter an order against a convicted person stating the appropriate form of reparation for the victims or their families. The Court may order reparations be made through and implemented by the Trust Fund. The 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 (2005) may provide guidance and meaning to the applicable terms. They state:

• Restitution; should, whenever possible, restore the victim to their original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution may include as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.
• Compensation; should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation within the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
• Rehabilitation; should include medical and psychological care as well as legal and social services.

Article 75(2) of the Statute empowers the Court to make a reparations order against a convicted person, specifying reparations to, or in respect of, victims.

1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

2. 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.

3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.

4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1

5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.

6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

The wording of Article 75 clearly indicates that the list of reparation forms is not an exclusive articulation. Additional forms of reparations recognized in the above mentioned instrument include; Satisfaction (e.g. public apology, an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim) and Guarantees of Non-Repetition. In the Trust Fund’s view, the Court may consider adopting these other forms for reparations within the context of constructing appropriate reparation remedies.

Section III of the ICC’s Rules of Procedure and Evidence (RPE), articulate in detail the substance and procedure of reparation proceedings before the Court. The rules proscribe the various forms that a reparation order may take:

• Individual awards, individual reparations serve as recognition of specific individual harm, and of an individual’s worth as a rights-bearing citizen. Such recognition, which is integral to (re)gaining civic trust, may not be otherwise satisfied. In addition, individual reparations are able to respond with particularity to the traumatic and intimate experience that each victim suffered.
• Collective awards, collective reparations respond to the shared experience that has manifested itself in both the form of shared suffering and in the form of offering reparations to redress the shared suffering that characterizes collective infliction of harm.
• Awards for reparations made through the Trust Fund to an intergovernmental, international or national organization.

Author: Anonym (with several changes)

Victim Reparation and the Refugee Issues

As published by the UNHCR in relation to Victim Reparation: Regardless of whether a victim seeks protection in the form of asylum, a temporary visa, or is repatriated, she should have access to methods of reparation for the harm she has suffered as a consequence of her trafficking. The right of an individual to a remedy for violations of international human rights law can be found in several international human rights instruments: the Universal Declaration of Human Rights, Article 8; the International Covenant on Civil and Political Rights, Article 2; the International Convention on the Elimination of All Forms of Racial Discrimination, Article 6; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 14. The UN General Assembly has defined victims of crime for the purpose of reparation as: “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.”216

Victims of trafficking suffer grievous violations of their human rights and fundamental freedoms; thus, the UN TOC Convention calls on Member States to “provide access to compensation and restitution” for victims217 and the Trafficking Protocol provides further that “[e]ach State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.”218 In order to provide victims sufficient access to remedies, the UN High Commissioner for Human Rights explains that several factors must be considered. For example, States must inform trafficking victims of their rights to remedies and provide them with legal and other necessary assistance to guide them in the process.219

Crucial components of ensuring access to remedies involve permitting a victim to remain in the country where the remedy is sought throughout the duration of any criminal, civil or administrative proceedings and providing for the victim’s safety during these proceedings.220 The ability of a victim of trafficking to obtain restitution, compensation or other forms of remedy for the violation of their rights is a vital component of protection. While it is of primary importance to protect a victim’s physical safety, providing them with the means to begin to heal and recover from these grave violations must not be overlooked.

Remedy and Reparation for Victims

States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access. Moreover, victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.

Basic Principles 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.

(United Nations A/RES/60/147 General General Assembly 21 March 2006 Sixtieth session Agenda item 71 (a) Resolution adopted by the General Assembly [on the report of the Third Committee (A/60/509/Add.1)] 60/147. 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 The General Assembly)

I. Obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law emanates from:
(a) Treaties to which a State is a party;
(b) Customary international law;
(c) The domestic law of each State.

2. If they have not already done so, States shall, as required under international law, ensure that their domestic law is consistent with their international legal obligations by:

(a) Incorporating norms of international human rights law and international humanitarian law into their domestic law, or otherwise implementing them in their domestic legal system;

(b) Adopting appropriate and effective legislative and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice;

(c) Making available adequate, effective, prompt and appropriate remedies, including reparation, as defined below;

(d) Ensuring that their domestic law provides at least the same level of protection for victims as that required by their international obligations.

In honouring the victims’ right to benefit from remedies and reparation, the international community keeps faith with the plight of victims, survivors and future human generations and reaffirms the international legal principles of accountability, justice and the rule of law, Convinced that, in adopting a victim-oriented perspective, the international community affirms its human solidarity with victims of violations of international law, including violations of international human rights law and international humanitarian law, as well as with humanity at large.

Author: Anonym

Reparations Law

Reparation has progressively been conceived as a ‘Right’ of victims.

Notes

1. The Rome Statute of the International Criminal Court adopted at Rome on 17 July 1998, in force on 1 July 2002, United Nations, Treaty Series, vol. 2187, No. 38544, Depositary: Secretary-General of the United Nations.

See Also

Rome Statute of the International Criminal Court