Perspective

Human history is replete with the tragedy of genocide, war crimes, crimes against humanity and other massive crimes. In almost all cases victims have been denied any form of redress for their suffering. Victims of the brutal massacres and rapes committed during Bangladesh's 1971 war of liberation, of massive atrocities committed during the Khmer Rouge regime in Cambodia, of the 1994 genocide in Rwanda, or of other violations in other countries, have mainly been unable to receive adequate redress, not even in the form of a "simple" official apology from the individual, government or state responsible.

On July 1, 2002, with the entry into force of the Rome Statute of the International Criminal Court (ICC), the international community inaugurated a new era of international criminal justice as well as new avenues for victims' redress in situations involving massive violations, where domestic courts are unwilling or unable to deal with the volume and severity of the crimes.

Despite some strong opposition to its establishment, at present 139 states have signed the ICC Statute and 89 have ratified it--a great success in terms of participation.

The ICC has been set up as a permanent institution to prosecute and punish individuals responsible for genocide, war crimes, crimes against humanity and, eventually, the crime of aggression. The ICC Prosecutor, states party to the Rome Statute and the Security Council can refer "situations" to the Court in which one or more of the crimes under the jurisdiction of the Court appear to have been committed. Because the Court does not work retrospectively, only crimes committed after July 2002 can be brought before it. Also, according to the principle of complementarity, the Court will be able to exercise jurisdiction over a case only when domestic courts are unwilling or unable to prosecute. The 18 judges sworn in at the ICC's Inaugural Session on March 11 this year, 11 males and 7 females, represent the main legal systems of the world and have been selected according to the principle of "equitable geographic representation."

Unlike the International Court of Justice, which is a United Nations organ, set up mainly for the peaceful settlement of disputes between states, the ICC is independent of the United Nations, and its criminal jurisdiction extends exclusively over individuals rather than states, groups, corporations or other collective entities. With its strong deterrent potential, the ICC is expected to play a major role in the prevention of some of the more horrible crimes against human dignity and in providing victims with prompt and adequate redress for their sufferings.


Victims' Needs

Redress for victims of "ordinary" crimes has formed a basic principle of justice since time immemorial. From early tribal societies to Roman times to the present, legal systems around the world have recognized that victims of crime must receive some form of redress. However, usually it has not been easy for crime victims to receive fair and adequate redress. While in early tribal societies and, to a lesser extent, in Roman law, victims enjoyed a key place in justice administration, the centrality of victims was gradually eroded by a wave of retributivism originating in the Middle Ages that often made punishment of the offender the only form of victims' redress. With a few exceptions, such as the Native American legal tradition, retributive principles shaped legal systems worldwide until very recently.

During the 1960s and 1970s, victims' movements and awareness campaigns highlighted the issue of victims' redress, and today, many states address victims' compensation for "ordinary" crimes in their law and practice. In most European countries, crime victims are entitled to receive compensation either from the offender or through supplementary state compensation schemes, under the umbrella of the Council of Europe. Also in the Americas and in many Asian and African countries, crime victims can benefit from reparation programs. In addition, many domestic legal systems have been experimenting with restorative justice programs which go beyond monetary compensation and focus instead on alternative remedies such as victims' rehabilitation and mediation between the offender and the victim, as well as customary forms of legal justice before traditional fora.


Lack of Compensation

Despite domestic and international efforts to ensure that victims of "ordinary" crimes receive basic redress, our society still faces a troubling paradox. While it is relatively easy for victims of "small" crimes to obtain redress either from the offender or from the state, victims of major crimes such as genocide, war crimes or crimes against humanity have been left mainly uncompensated. Victims of the most heinous violations of human dignity have had little or no voice at all in inter-state war settlements or in peace agreements following civil war or unrest, and in too many cases victims simply have not been able to enjoy basic redress. 

Some 1,300 Rwandan genocide suspects have been interred in this makeshift prison since 1994. [Jean-Manuel Simoes]

As a result, thousands of victims of genocide, war crimes, crimes against humanity and other massive crimes under international law have been left with very little option but to seek compensation in scattered, unsystematic and often ineffective ways, mostly through legal claims in domestic courts that are not necessarily tailored to deal with crimes of such magnitude or to provide victims with adequate redress in such circumstances.

Until the establishment of the ICC, the question of victims' redress for such violations has not received proper attention at the international level. When faced with massive and systematic violations, the international community has focused its efforts on the punishment of perpetrators rather than on victims' redress. The Nuremberg and Tokyo tribunals did not award any reparations to the millions of victims of atrocities committed in connection with the tragic events of World War II. In terms of redress, the two ad hoc tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) only cover the restitution of unlawfully taken property, and neither the ICTY nor the ICTR provides for direct compensation for victims. Rather, all issues related to compensation are left to national courts or other competent bodies. 

Regrettably, none of the final judgments rendered to date at either the ICTY or the ICTR has ordered any restitution or deferred compensation matters to domestic courts.

Fortunately, the establishment of the new ICC provides hope for victims of the most egregious crimes, no matter where they are committed or who is the perpetrator. 

The ICC Statute provides for a completely new procedure for victims' redress and participation. Victims are entitled to seek and obtain reparations directly from the Court, and they are granted a central role in the proceedings with the support of a Victims and Witnesses Unit. Also, they may access a Trust Fund instituted especially for the benefit of victims and their families.


Active Role for Victims

The first innovation of the ICC Statute concerns the role victims can play in the Court's proceedings. Victims, among others, can provide the Prosecutor with relevant information on a situation they wish to bring to the Court's attention. Based upon information received, the Prosecutor may proceed with an investigation, on the condition that approval for such action be given by the Pretrial Chamber. The ICC Statute also provides victims with the unique opportunity to make representations to the Pretrial Chamber and to express their views and concerns on particular situations.

The second innovation of the ICC Statute concerns the right of victims to seek and obtain redress. Once an individual has been found guilty of one of the crimes under ICC jurisdiction, the Court may determine the scope and extent of damages, losses and injuries suffered by the victims on the basis of principles relating to reparations, including restitution, compensation and rehabilitation. In line with relevant principles and guidelines developed through the United Nations, the Court is not limited to awarding monetary compensation, and it may opt for other forms of redress, including restitution of unlawfully taken property or the setting up of rehabilitation programs.

After the determination of the damages, the Court has two possible ways to award victims' reparations. It may choose to make a reparation order directly against the convicted person specifying "appropriate reparations" to victims, possibly including restitution, compensation and rehabilitation. Alternatively, the Court may order damages to be awarded through the ICC Trust Fund. The establishment of the Trust Fund represents a fundamental innovation for victims' redress, since one of the main problems victims have encountered in seeking and obtaining redress has been the lack of effective enforcement of reparation orders. 

As judicial practice at the domestic and international levels shows, even victims who have been fortunate enough to have been awarded reparation from the offender tend to remain actually uncompensated because of the legal and practical hurdles encountered in the enforcement process. In other words, even where victims or families of victims of torture, arbitrary detention, disappearances or other serious human rights violations have won at court, in many cases they have never actually received a penny of the enforcement award.


ICC Trust Fund

As for the operation of the Trust Fund, the Court may channel a reparation award against a convicted person through the Fund, in which case the Fund could be used almost as an intermediary for the transfer of awards, for example, in the case of mass claims. In a broader context, the Court may also use money or property collected from fines or forfeiture for the benefit of victims of crimes within the Court's jurisdiction. Since the Trust Fund operates on a separate budget from that of the ICC, voluntary contributions by states, international organizations, NGOs and civil society will likely prove fundamental for the Fund's effective functioning.

After the genocide in Rwanda [Corinne Dufka]

Also, the ICC Statute establishes a Victims and Witnesses Unit to help both victims and witnesses cope with the judicial process and to provide them with protective measures, security arrangements, counseling and other assistance at all stages of the proceedings as may be necessary. The ICC Statute makes it an obligation for the Court to take appropriate measures to protect the privacy, dignity, physical and psychological well-being and security of victims and witnesses, especially where the crimes involve sexual or gender violence.

Finally, it is worth mentioning that the ICC reparation regime does not work in a vacuum. State parties are under the obligation to cooperate fully with the Court in relation to investigations or prosecutions and to ensure that reparation orders are fully enforced. It is now up to states to make the ICC reparation system work at its best and to provide it with adequate means to keep its promise of hope for victims worldwide.

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