Reparations at the ICC: The Need for a Human Rights Based Approach to Effectiveness
This Chapter will appear in: Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd ed, Brill, 2019) (Forthcoming)
41 Pages Posted: 19 Sep 2019
Date Written: August 1, 2019
This chapter focuses on the effectiveness of reparations at the ICC. It analyses the work of the ICC and the Trust Fund for Victims in awarding and implementing reparations to victims. It considers the process as well as the outcomes on reparations in those cases where reparations orders have been made as well as the assistance mandate of the Trust Fund. It does not review all aspects of the reparations process, but instead focuses on key trends from which patterns can be ascertained and goes on to consider what steps might be taken to improve effectiveness.
The chapter concludes that the competing approaches to the purpose of reparations have led to vastly different perspectives on what would constitute effective reparations. These different perspectives have made it difficult for the Court to adopt a unified vision to improve reparations outcomes. The lack of unity has hampered the kind of strategic thinking and decision-making necessary to make reparations work effectively, taking into account the built-in constraints of the Statute. The more the failings become evident, the more pressure is on the system to find quick fixes or to narrow the objectives which ultimately reduce the prospects for effectiveness further. This is a cyclical problem which does not end well for the victims who continue to await – with growing impatience – reparations.
Adopting a human rights based approach to effectiveness would help the Court to develop victim-centred thinking, which is essential for effective reparations. It would also assist to inculcate a culture of institutional accountability and transparency towards the victim stakeholders of reparations. Despite the sui generis character of ICC proceedings, recognising that victims should have a right to expect effective reparations procedures and clear outcomes, and that the ICC is accountable to deliver them, may help reorient the process.
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