VICTIMS REPARATION AND

PARTICIPATION UNDER
INTERNATIONAL CRIMINAL
LAW
ICTY, ICTR & ICC

Dr.Garima Pal
 International Criminal Court
(Permanent Court established
1998/2002) Cambodia
Bosnia and (since 2003)
Herzegovina
(since 2005)

Ad-hoc Sierra
Ad-hoc Leone
tribunal for
tribunal for (since
the Former
Kosovo (since Rwanda 2002)
Yugoslavia
2000) (since 1995)
(since 1993)

East Timor
Nuremberg Tokyo (1999-2005)
Tribunal Tribunal
(1945-46) (1946-48)
 The Nuremberg Principles
 Politicians, Head of State, Government
officials etc., are personally responsible and
accountable for crimes committed under
International law.
 Crimes against peace, war crimes and
crimes against humanity.
 The safeguarding of international peace and
respect for human rights prevail over
national sovereignty.
 Fausto Bocar, ICTY’s Completion
Strategy: Continuing Justice in the
Region, 103 ASIL (2009)
 Established - May 1993
 Key objective of the ICTY: a) try individuals most
responsible for appalling acts such as murder,
torture, rape, enslavement, destruction of property
and other crimes listed in the ICTY Statute b) aims
to deter future crimes and render justice to
thousands of victims and their families
 ‘Completion Strategy’ (2004 to date)- recognizes
that the international courts are complementarian in
nature and encourages the transition of adjudication
from international to national regimes.
 Mechanism for International Criminal Tribunals
(2010)
Francois Xavier Nsanzuwera, The ICTR Contribution to
National Reconciliation, 3 Journal of International
Criminal Justice (2005)
 Established in 1995 and formally closed on 31st
December 2015
 Key objectives of ICTR: “to prosecute persons
responsible for genocide and other serious violations of
international humanitarian law committed in the
territory of Rwanda and neighbouring States, between 1
January 1994 and 31 December 1994”
 MICT branch for ICTR began to function in 2012:
“should not leave room for impunity”.
 Three core processes for bringing justice to victims of
genocide: judicial, outreach and capacity building efforts.
National Court
Gacaca Court System
System
 Reparation for Victims under
International Criminal Law
 Shift from state responsibility to individual responsibility is
inherently dangerous.
 Recognition of victim’s right to reparation:
UN 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 (2006)
 Draft Article XIII of the Convention of the Crime of
Genocide 1947 stated: When genocide is committed in a
country by the government in power and by sections of
the population, and if the government fails to resist it
successfully, the State shall grant to the survivors of the
human group that is a victim of genocide redress of a
nature and in an amount to be determined by the United
Nations.
 Reparation and the Ad-hoc
Tribunals: Critical Analysis
 The aim and objectives of the ad-hoc tribunals are
not clear (In cases of Prosecutor v Tadic Case No IT-
96-21-Y and Prosecutor v Akayesu Case No ICTR-96-4-
T, the primary objectives of the Tribunals seem to
be deterrence and retribution).
 Lack of consistency in the formulation of principles
relating to the objectives of punishment.
 Victims are referred to as only witnesses and as
passive contributors to the criminal proceedings
 Lack of emphasis on Restorative Justice
 Victims are left at the mercy of their
domestic/national legislation and political policy to
render them capable to present their claim.
 IMPORTANT PROVISIONS
 Article 15 of the Statute of ICTY (mirrored by Article 14 of
ICTR)- Rules of Procedure and Evidence
 Article 20 (1) ICTY (mirrored by Article 20 (1) of ICTR)
established that trials be conducted with “full respect for the
rights of accused and due regard for the protection of victims
and witnesses.”
 Article 24 (3) of ICTY (mirrored by Article 23 (3) of ICTR)
reads- “In addition to imprisonment, the Trial Chamber may
order the return of any property and proceeds acquired by
criminal conduct, including by means of duress, to their rightful
owner”.
 Rule 105 in the Rules of Procedure and Evidence- the request
for restitution cannot be initiated by the victim but must be
presented by the Prosecutor or the Chamber.
 Rule 106- up to the victims themselves to claim compensation
before national courts “pursuant to the relevant national
legislation”.
 Report UN. doc. S/2000/1063, 3
November 2000 – Emphasized on
(i) the Tribunal’s lack of authority to deal with
compensation for victims
(ii) The Tribunal’s Statute and Rules should not
be amended to incorporate a
compensation mechanism, as it would
further lengthen already protracted ICTY
proceedings, instead the Security Council
must create a separate and independent
body to operate as an international
compensation commission
VICTIMS AND WITNESS SUPPORT
UNIT
 Both the ad hoc Tribunals have a Victims and
Witness Support Unit, establishes by Rule 34
of RPEs.
 Provide advice, assistance and protection
arrangements during the trial period.
 . Rule 34 has an exception in the case of
ICTR- Paves way to Victim Assistance
Program and Reparation.
 This Unit is to (i) recommend protective
measures for victims and witnesses in
accordance with Article 22 of the Statute and
(ii) provide counseling and support for them,
in cases of rape and sexual assault.
 RIGHTS OF RAPE VICTIMS AND
WITNESSES UNDER ICTY AND ICTR

 Rule 79: Safeguard the privacy and security of

victims and witnesses. Including in-camera
proceedings, non-disclosure to the public of
any record that might identify the victims
(Article 22 ICTY & Article 21 ICTR), image
or voice altering devices, closed circuit
television or the use of pseudonyms.
 Rule 69: In exceptional circumstances, the
Prosecutor may apply to a Trial Chamber to
order the non-disclosure of the identity of
the victim or witness who may be in danger
or at risk until such person is brought under
the protection of the Tribunal.
 Ray of Hope
 National Transitional Justice Strategy in Bosnia and
Herzegovina (in short BiH) 2011
 Program for Improvement of the Status of Women
Victims of Wartime Rape, Sexual Violence and other
Forms of Torture (Yet to be adopted as a formal
policy by the Council of Ministers in BiH)
 Kosovo War Crime Institute (Kosovo/UNSC 1244):
To provide redress for all victims of international
crimes
 Regional Truth Commission (RECOM) 2008: It is a
coalition of NGOs to determine the facts relating
to victims and international crimes committed
during the Yugoslav wars. E.g. “Sarajevo process”
2011-2012 (This falls under the concept of
‘collective reparation’)
 CONCLUSION
 Victim’s rights in proceedings of the ad hoc
Tribunals has been inadequate and mainly focused
on urgent protection measures for witnesses.
 Attention has been dedicated mainly to the rights
of the accused to a fair trial.
 Human Rights law regarding victims rights has
developed significantly but such provisions were
not reflected in the Statutes and Rules of
Procedure and Evidence.

 https://medium.com/@justice_hub/former-icty-
judge-victims-in-the-kenyan-icc-cases-got-a-raw-
deal-b47c9e5cf46f (Former Judge ICTY)
 Presentation Outline
 History of ICC
 Structure and Functioning of ICC
 Trust Fund for Victims
 Victim Participation – And Challenges
 Victim Reparation
 Conclusion
John Winterdyk, The International Criminal
Court: A Brief History, 31 LawNow, 45 (2007)
 1898 world’s first International Peace Conference
in the Hague, Netherlands
 The Declaration under the Conference included
adapting key principles of the Geneva Convention
August 22, 1864
 The Hague Convention IV adopted in 1907, for
the first time referred to liability for state breaches
of international law
 Article 227 of the Treaty of Versailles authorized
the creation of a special tribunal for the trial of
Kaiser Wilhelm II but no trial took place
 Nuremberg and Tokyo trials – Victors justice
Laura Barnett, The International Criminal
Court: History and Role, 2002-11-E,
Library of Parliament, (2008)
 In 1990, when there the international
community was facing problems of
international drug trafficking and its
prosecution – the idea of an International
Criminal Court was again brought up
 This was followed by the setting up of ad-
hoc tribunals – ICTY and ICTR
 ICTY and ICTR did not include victim
participation, reparation or compensation
 ICTY and ICTR evolved the concept of an
independent Prosecutor’s Office
ROME STATUTE
 Adopted in Rome on 17th July, 1998
 Impunity for war crimes, crimes against
humanity, genocide and aggression
 Victims of families of crimes can access
the Court to express their views and
concerns (Article 68 of the Rome Statute)
 Victims can claim reparation for the
wrongs suffered that is restorative justice
against individual perpetrators of crimes.
(Article 75)
 Article 79 provides for Trust Fund for
Victims of crimes
 Elevates victims into full legitimate
participants in the judicial process
 Victims of international crimes can now
claim reparation on their own behalf and
not through a State as a representative.
ICC Head Quarters – Hague,
Netherlands
 STRUCTURE OF ICC
International
Criminal Court

Office of
The Presidency Judicial Division Prosecutor The Registry
 Responsible for the overall administration of the court except the
The Presidency office of the prosecutor and for specific functions assigned under
the Statute

Made up of chambers consisting of 18 judges organized into pre-

Judicial Division trial, trial and appeals division. The chambers have to conduct
proceedings of the court on specific cases at different stages of
the judicial procedure.

The OTP is responsible for receiving referrals and any

Office of the substantiated information on crimes within the jurisdiction of the
Prosecutor court. The OTP examines the referrals and information received,
conducts investigation followed by prosecution before the court.

Provides judicial and administrative support to all organs of the

The Registry court and carries out its specific responsibility in areas of defense,
victims and witnesses, outreach and detention
Victims Involvement in Cases
 Article 15 (3): Victims may make representation
to pre-trial chamber
 Article 19 (3): When deciding on questions of
jurisdiction and admissibility, victims are also
allowed to make submissions to the court
 Article 43 (6): the Registrar shall set up a Victims
and Witnesses Unit within the Registry
 Article 68: provides for protection of victims and
witnesses and their participation in proceedings
 Articles 68 (1): the court shall take measures to
protect victims but the measures shall not be
prejudicial to the rights of the accused
 Article 68 (2): provides for in-camera proceedings to
protect victims, witnesses or accused
 Article 68 (3): where personal interests of victims have
been affected, permits victims to present their views
and concerns to the court
 Article 68 (4): the Victims and Witnesses Unit may
advise the Prosecutor and the Court on appropriate
protective measures, security arrangements, counselling
and assistance as referred to in Article 43 (6)
 Article 82 (4): a legal representative of a victim,
convicted person….. Affected by an order of reparation
may file an appeal as per the rules of procedure and
evidence.
Victim Participation - Imperative
 Velasquez Rodriguez v Honduras (1988 Inter-Am
Ct. H.R. (cer C.) No. 4, 174 (July 29, 1988) –
provided 2 propositions: 1) a State’s duty t
prosecute serious crimes is also a private right
that is owed to victims and; 2) the participation of
victims is necessary to enforce this private right.
 Victims should have greater access to the criminal
process to ensure that criminal prosecutions are
effective and that States are accountable to
victims.
 ECHR criticizes governments for not requiring
prosecutors to justify their decision of not
prosecuting – (Kelly and Ors. V U.K., 2001-III Eur.
Ct. HR 1, 32)
Victim Participation through
Common Legal Representative
 Practical, financial or other constraints dictate the
appointment of lawyers as common legal
representatives of victims (CLRV) by the ICC.
 Rule 90 of the Rules of Procedure and Evidence
provides for victims choice for appointment of a legal
representative. Only when victims fail to choose a
representative, the Chamber is to appoint one for
them.
 However lack of resources and paucity of time are
major barriers to the implementation of such
provision enabling victims choice.
 In the Prosecuor v William Samoei Ruto and Joshua Arap
Sang (ICC-01/09-01/11-307) the Chamber endorsed
the Registry’s choice of CLRV without inquiring into
whether the victims had been given a genuine
opportunity to choose the counsel.
Trust Fund for Victims
 The Trust Fund’s dual mandate serves victims
of crimes that fall within the court’s
jurisdiction through the provisions of:
1. General assistance including physical
rehabilitation and psychological
rehabilitation, and/or material support and
2. Implementation of reparations awards
ordered by the Court against a convicted
person.
 Reparations - linked to accountability, arising from
individual criminal responsibility of a convicted
person
 Assistance mandate -enables victims and their
families to receive assistance prior to a conviction by
the court. Focused on helping to repair the harm that
victims have suffered, by providing assistance:
1. in a timelier manner than the judicial process may
allow;
2. to a more extensive range of victims who are
affected by the broader situations before the court,
regardless of whether the harm they suffered stems
from particular crimes charged in a specific case.
The Prosecutor v Thomas Lubanga
Dyilo ICC-01/04-01/06.
 Thomas Lubanga first person to be
arrested under a warrant issued by the
ICC and also the first one to be
prosecuted and convicted.
 The ICC in 2017 awarded reparation to
the tune of $ 10 million.
 ICC identified 425 victims as eligible for
compensation ($ 3.4 million) and the
remaining $ 6.6 million to cater for
additional victims yet to be identified.
The Prosecutor v. Germain
Katanga. (ICC-01/04-01/07)
 ICC awarded collective compensation for
projects to help victims with housing,
education and “income-generating activities”
as well as counselling.
 Collective reparations are intended to
address injuries at societal level, and thus
may benefit victims of perpetrators not
convicted by ICC. (Adrian Di Giovanni, The
Prospect of ICC Reparations in the Case
Concerning Norther Uganda: On a Collision
Course with incoherence?, 2 J. Int’l & Int’l Rel.
42 (2006))
Emily Haslam; Rod Edmunds, Victim Participation, Politics and the
Construction of Victims at the International Criminal Court:
Reflections on Proceedings in Banda and Jerbo, 14 Melb. J. Int'l L. 727
(2013)
 In the case of Prosecutor v Banda and Jerbo concerns
were raised that victim participation was being used to
further a political agenda
 Extent of political influence on victim participation
 Victim autonomy during ICC proceedings
 Reposition victims in proceedings from mere objects to
active participants
 High volume of victim participation at ICC – A major
challenge
 Distinct representation of victims grievances – an
aspiration
Hans Peter Kaul, Victims Rights and
Peace
 System of victim participation and reparation
influenced by the French System
Challenges to victim participation
 Victims cannot be regularly present at hearings
 Victims large in number
 Inconsistent communication with victims
 Insufficient representation of individual victims
and their rights
Conclusion
Victim participation and victim reparation are
concepts that became popular in the 21st
century. But so is international criminal law.
The ICC is grappling with implementing
schemes and reaching out to victims of various
human rights violations. But above all it is still
attempting to define the parameters as to who
is a victim. In such a situation, it can be
concluded that the concept of victim
reparation being invaluable, also needs to find
a way around the challenges that plague its
effective implementation.