Last week, the Executive Director of the ICC’s Trust Fund for Victims, Pieter de Baan, spoke to the “Group of Friends of the ICC” in New York. This was the first of the Group’s proposed annual “high level meetings” to “highlight the importance of the ICC in relation to accountability, prevention and justice for victims.” This meeting focused on victims’ rights and the need for reparative justice. Mr. De Baan spoke about the work the TFV has carried out under its assistance (or “second”) mandate in northern Uganda and eastern DRC and of the work it may soon carry out under the banner of reparations in Ituri. Other speakers included the trauma expert Yael Danieli and Sandra Uwiringiyimana, a massacre survivor from eastern Congo who came to the U.S. as a refugee. Both Ms. Danieli and Ms. Uwiringiyimana delivered powerful and moving testimonies. The full program is available here.
The meeting did not, however, venture into the tricky details of how exactly reparations will work at the ICC, still a subject of lively debate almost two years after the Court’s first reparations order (there was also a debate over whether the 7 August, 2012 Decision counted as an order or just as a decision on principles, which I don’t go into here). Indeed, despite the TFV’s valuable experience delivering assistance to vulnerable populations in ICC situation countries, the precise role it is supposed to play in a Court-ordered reparations process is still not clear.
Nonetheless, Trial Chamber I ordered the TFV to carry out a range of tasks for the reparations process in Lubanga. These went far beyond the mere implementation of an award: identify and appoint reparations experts (para 265), determine the forms of and implement reparations (para 266), and identify the recipients of reparations and assess their harm (para 283). Indeed, the Chamber more or less fully endorsed the TFV’s proposed reparations plan, which included mapping, consultation, distribution and more (paras 281-2). Both the Defense and the Victims Representatives/Office for Public Counsel of Victims (OPCV), however, appealed this delegation of responsibility. According to the OPCV, “there is no statutory provision for a trial chamber to delegate its own reparations responsibilities to another organ of the Court, particularly a non-judicial organ, or to an independent entity without judicial functions.” In other words, the Chamber itself should take care of the details of reparations – particularly in determining who is eligible to receive them – not the Trust Fund for Victims.
The Rome Statute itself in fact says very little here. Legally, much of the debate over the TFV’s relationship to the Court vis-a-vis reparations boils down to the interpretation of one word in Article 75(2): through. But in highlighting the TFV’s “non-judicial” nature, I would argue there is also a more conceptual (or even cultural) debate going on here. This has to do with what one thinks the symbolic link should be between a conviction and a reparations award. That is, both for the Court and the recipients, what are reparations supposed to mean?
Article 75(2) states: “Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.” So what does “through” mean? It’s not so clear, particularly when the money in question is not coming from the accused but from the TFV’s own resources (see Rule 98(5) of the Rules of Procedure and Evidence). Lubanga was declared indigent, therefore any money used to implement reparations awarded against him would have to come from the Trust Fund’s “other resources”, which are made up mostly of contributions from ICC member states and which the TFV has publicly announced it is saving for such an occasion. Connor McCarthy has published an extensive legal analysis of the TFV’s legal basis and its relationship to the Court. He notes that when a reparations award is not financed by the accused, there are two potential interpretations of 75(2). On the one hand, “through” could imply that the Chamber can in fact require the TFV to implement a reparations award regardless of the money used. A more narrow reading, though, would imply that the Court can only use the TFV to distribute what is taken from the perpetrator. From this angle, the Trust Fund can proceed however it wants when its “other resources” are in question (besides Rule 50(ii) of the TFV’s Rules and Regulations which requires that it not “pre-determine any issue to be determined by the Court”).
McCarthy takes this more narrow view (p. 266):
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.
Interestingly, neither the OPCV nor the Defense made this particular argument. The OPCV did argue that the Chamber does not possess the statutory right to delegate its authority, but they were more concerned that the Chamber was trying to delegate what were in reality its own responsibilities. In their view, the Chamber should be more intimately involved in the reparations process. Trial Chamber I, which had already passed its term limit at the Court, did in fact leave to a to-be-constituted Chamber responsibilities of monitoring and oversight. But the OPCV did not believe this to be sufficient. (For more on this, also see this interview with Paolina Massidda, OPCV’s Principal Counsel.) The Defense argued that in delegating responsibilities to a “non-judicial organ” the Chamber had in effect nullified the Defense’s right to appeal.
Again, I would argue that there is also a more conceptual/cultural debate here, particularly in the OPCV’s appeal. This is a debate not about how judicial the TFV is, but about how judicial reparations should be. From a legal standpoint, this may seem like a non-issue, but it does not take long to find in the Chamber’s order a host of issues related to both design and implementation that are simply too complicated to approach from a strictly legal framework. To name a few: should reparations be limited to the victims of Thomas Lubanga as they were defined in his trial? What standard of proof is required to assess the harm of recipients of collective reparations? How should a reparations award that is ordered against an individual, but which is financed without his money, be explained to its recipients? How should the difference between “assistance” and “reparations” be explained, in the likely event they are distributed alongside each other?
To me, these questions imply more of a continuum of “judiciality” than a binary of judicial versus non-judicial. Along these lines, the OPCV is right in questioning the Chamber. These are issues that require careful reflection and, in my view, oversight from a Chamber. This is particularly true in the absence of more general reparations principles, which the Statute mandates in Article 75(1) but which the Court has not yet established. Not only will such issues set the bar for future reparations orders, they will determine how reparations are received and comprehended by recipients and their communities.