Reparative justice at the International Criminal Court: best practice or tokenism?
Traditionally governments have regarded justice for victims as “a complication, an inconvenience and a marginal phenomenon” (Van Boven 1993: 53). In this light, the establishment of the International Criminal Court’s (ICC’s) sui generis regime that enables victims to participate in proceedings and to claim reparation has been a significant achievement (Rome Statute of the International Criminal Court 1998). The ICC Statute establishes a groundbreaking mandate, which brings victims of genocide, war crimes and crimes against humanity to the forefront of the criminal justice process in a manner designed to protect their physical and psychological wellbeing as well as their dignity and privacy (Art. 68.1). The ICC Statute provides a full range of justiciable rights to an effective remedy and reparation, in support of these norms. Its legal framework sets out that victims in general have the right to be informed of decisions that concern them (R. 92.3). Where their interests are affected, they may participate in the justice process by presenting their views and concerns at appropriate stages of proceedings; this is to a certain extent modeled on the civil law notion of partie civile, where civil parties can be enjoined into criminal proceedings with a view to claiming damages (Art. 68.3, Rr. 89-91). They are entitled to protection and support in relation to their appearance before the court (Art. 43.6). In addition, they can be granted legal aid to ensure their legal representation in proceedings through a court-appointed common legal representative (R. 16.1.(b)). Finally, the ICC enables individual victims to claim reparation for harm suffered, which may be awarded on an individual or collective basis (Rr. 94 and 97). A Trust Fund for Victims has been established for the purpose of implementing reparations, having both the function of implementing reparations awards ordered by the court, and providing assistance to victims outside the scope of reparation (Arts. 75; 79). While the ICC’s reparative mandate is enabling and groundbreaking on paper, this chapter questions its effect in practice, considering what reparative justice means and what it should mean in the context of crimes against humanity. To what extent is the ICC’s judicial process able to deliver justice to victims that is “reparative” in practice? On paper, the ICC legal framework not only meets international best-practice standards on victims’ rights, such as those encapsulated in the UN Basic Principles and Guidelines on the Right to a Remedy and
Reparation, it is an example of international best practice in its own right. Nonetheless, it is argued here that without developing an institution-wide understanding of key values that underpin how justice can be reparative for victims in practice, both procedurally and substantively, the court is unlikely to successfully fulfill its mandate in relation to victims. In this regard it is useful to first unpack the notion of reparative justice as well as what is implied by a “victimcentered approach”.