The Emerging Reparations Case-Law of the ICC Appeals Chamber in Comparative Perspective

Reparations for victims of international crimes or serious human rights violations have received increasing attention from international courts. The most recent example is the Judgment on the Appeals against the “Decision establishing the principles and procedures to be applied to reparations” rendered by the Appeals Chamber (AC) of the International Criminal Court (ICC) in Lubanga on 3 March 2015. (See this previous post.) The present contribution compares how three key reparations issues are addressed by the ICC Appeals Chamber and by two other courts: the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Inter-American Court of Human Rights (IACtHR). Besides the ICC, the ECCC is the only international or hybrid criminal court where victims can claim reparations. The IACtHR’s reparations case-law has been seminal for decades, and references to its case-law by the ICC and ECCC reflect an ongoing dialogue. The three issues on which the courts are compared are: who can claim reparations, who is obliged to pay reparations, and what reparations can victims obtain

Who can claim and benefit from reparations?

Under rule 85(a) of the ICC Rules of Procedure and Evidence (RPE), victims are “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. Only victims who suffered harm as a result of the crimes for which the accused was convicted are eligible to claim reparations against him/her (AC Judgment, para. 8). At the ECCC, rule 23bis(1) is the equivalent rule 85(a) defining victims. However, unlike the ICC, the ECCC rules and case-law require a direct causal link between the victim’s harm and the crimes for which the accused was convicted (rule 23bis(1); Case 002/01, Trial Chamber Judgment, para. 1114).

Given the absence of a direct causal link requirement before the ICC, the AC should have considered sexual and gender-based violence as harm resulting from the crimes for which Lubanga was convicted (AC Judgment, paras. 196-198). During his trial, there was robust evidence of sexual exploitation of minors by armed forces or groups. The UN Special Representative for Children and Armed Conflict considered such sexual exploitation as providing essential support to the armed groups and, thus, as active participation in hostilities (Lubanga, Trial Judgment, para. 630). Accordingly, this sexual exploitation was arguably linked to the child soldiers-related crimes for which Lubanga was convicted. The AC should therefore have upheld the Trial Chamber’s finding of reparable harm from sexual and gender violence (paras. 207-209).

Under article 63(1)) of the American Convention of Human Rights (ACHR), the injured party  or victim is the person whose rights under the ACHR (J, para. 387), or another Inter-American human rights treaty (IACtHR, Rules of Procedure, article 2(25)) were violated. Whereas the IACtHR is rights-focused, the ECCC and ICC are injury-focused (ECCC Supreme Court Chamber, Case 001, Appeals Judgment, paras. 431-433). Accordingly, the IACtHR has a higher margin of discretion than do the criminal courts when determining reparations beneficiaries. The IACtHR’s rights-focused approach gives more discretion because it uses a more relaxed standard and burden of proof concerning, inter alia, causality in reparations. Also, under the injury-focused approach, the ICC and ECCC must as criminal courts limit the reparable harm only to that linked to the crimes for which the accused was found guilty.

The ICC and the other two courts permit claims by indirect victims, i.e., those who suffer harm as a result of the harm inflicted on direct victims (e.g., AC Judgment, para. 190). Thus, the category of indirect victims includes family members and successors, those who tried to prevent the commission of the crime, and those harmed when helping/intervening on direct victims’ behalf (AC Judgment, para. 6.b). Paying attention to the specific social and cultural contexts of the victims is welcome as an important number of victims before the three courts come from societies, ethnic groups and/or indigenous communities where close extended family relationships are prevalent. Additionally, the three courts have considered material, physical, and psychological harm. Furthermore, after highlighting the critical difference between identifying the harm and assessing its extent, the AC defined sub-categories of harm specific to either direct or indirect victims (AC, paras. 181, 191). The ECCC should follow similar level of precision in its future case-law.

Finally, concerning an award for collective reparations to attacked communities, the AC clarified that, to be reparations beneficiaries, community members must meet the eligibility criterion, i.e., they must have suffered harm resulting from the crimes for which the accused was found guilty (AC Judgment, para. 214). Thus, the AC distinguished between members of a community who can be reparations beneficiaries from those who cannot. The IACtHR has followed a more flexible community-based reparations approach. It has ordered reparations for the whole community in large-scale violations cases and massacres (Plan de Sánchez Massacre, Reparations, para. 86). At the ECCC, reparations beneficiaries are civil parties. However, some ECCC collective and moral reparations, e.g., a national remembrance day or permanent audio-visual exhibitions, benefit all victims and not only civil parties.

Who is obligated to provide reparations?

The ICC reparations system is based upon the principle of ensuring that the offenders account for their acts (AC Judgment, para. 65). As the ICC establishes individual criminal liability, convicted individuals are the subjects of reparations orders (AC Judgment, paras. 65 and 76]; ICC Statute, article 75(2)). Accordingly, although the Trust Fund for Victims (TFV) may advance resources when needed, the convicted person remains liable and must refund the TFV (AC Judgment, para. 115).

Conversely, the IACtHR only determines state responsibility. If such responsibility is found, the IACtHR can only order a State to grant reparations to victims (ACHR (article 63 (1)), as it did in judgements involving forced disappearance and torture (Rodríguez Vera, Rochac Hernández). Like the ICC, the ECCC can address its reparations order only against the convicted person. However, unlike the ICC, the ECCC reparations regime contains an alternative to the traditional civil party claim (rule 23quinquies(3)(b)): reparations can be provided using external sources, as first ordered in Case 002/01 (Judgment, para. 1113). Unlike at the ICC, the accused is not expected to provide reimbursement. This structure is more realistic given that the first convicted persons before both courts were indigent. Indeed, the original ECCC reparations regime was amended because only the accused could bear the reparations, which seriously limited reparations in Case 001.

Overall, although reparations orders by international criminal courts are directed against the accused, funding them via the TFV (ICC) or external funding mechanisms (ECCC) is necessary to make reparations real.

What can victims obtain?

At the ICC, there is an individual reparations procedure (RPE, 94-95) and a collective reparations procedure (RPE, 97(1), 98(3)) (AC Judgment paras. 147-149). When only collective reparations are granted, there is no need to decide on individual reparations requests and these applicants may participate in collective reparations programmes (AC Judgment, paras. 152 and 155). There is no international human right to consideration of individual applications if the applicable law provides for individual and collective reparations, and collective reparations are granted (AC Judgment, para. 155).

In turn, the ECCC can order only collective and moral reparations (rule 23quinquies(1); Case 001, Appeals Judgment, paras. 658-659). When granting reparations for serious human rights violations, the IACtHR has normally rendered both individual and collective reparations but has focused on collective reparations in cases involving indigenous communities or massacres (e.g., Dos Erres Massacres).

Having summarized the situation at the three courts, an underlying question is which types of reparations, i.e., collective and/or individual, are more suitable for international crimes cases. Collective reparations are more suitable as: i) international crimes are of a collective nature; ii) victims may find them more valuable; iii) there may be some implementation difficulties with individual reparations; and iv) some collective reparations may benefit victims who could not claim reparations. Nonetheless, individual reparations can also play an important role because: i) victims may have expectations and preferences about them; ii) collective reparations may overlook the individual dimension of the harm; and iii) individual awards may better reflect the victim’s status as a right holder. Therefore, the best approach is to focus on collective reparations but without excluding individual reparations since they are not mutually exclusive.

As the ICC Appeals Chamber detailed, using IACtHR’s case-law, reparations modalities include restitution, compensation, and rehabilitation, as well as others (AC Judgment, para. 659). However, modalities such as guarantees of non-repetition (e.g., legislative amendment), and some satisfaction measures (e.g., national remembrance day) require state implementation. To achieve realistic results, it is important to adapt those modalities originally crafted for state implementation to the setting of international and hybrid criminal courts. This is necessary because the ICC’s and ECCC’s inability to issue reparations orders against States limits their ability to implement reparations. Finally, the ECCC sources (rule 23quinquies(1), Case 001, Appeals Judgment, para. 659) exclude compensation.

Concluding remarks

Reparations for victims of international crimes or serious human rights violations before the ICC, the ECCC, and the IACtHR are grounded in shared general principles such as dignity, non-discrimination, non-stigmatisation and accessibility (AC Order for Reparations, paras. 12-32) and have characteristics in common. These characteristics concern victims’ status as reparations claimants and beneficiaries, reparable harm, types and modalities of reparations. Nonetheless, there are also important differences due to each court’s mandate. Nonetheless, a dialogue among the three courts could help them all determine the best standards and practices. There is also complementarity on reparations between international/hybrid/national criminal courts and human rights bodies as hinted in the ICC Statute (article 75(6)): “Nothing in this article shall be interpreted as prejudicing the rights of victims under national and international law”. The ICC AC’s case-law may play a pivotal role in crafting principles and guidelines on reparations for international crimes and serious human rights violations, especially as the permanent international judicial with the broadest subscription that has competence over such reparations.

The ICC AC and the other two courts have in their case law referred to the UN Basic Principles 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. Adoption of a treaty and model laws reflecting these courts’ reparations practices could help States better implement international standards domestically. After all, based upon the principle of complementary/subsidiarity, victims should normally first try to seek justice before national mechanisms.