Reparations in International Criminal Prosecutions: The Congo Situation at the International Criminal Court

Abstract

From a critical perspective, the thesis studies the role of the International Criminal Court (the ICC) in the provision of reparations to victims of international crimes. The study focuses on the Democratic Republic of Congo as a situation country at the ICC. Victims of human rights violations have a right to enforceable remedies. International law demands that reparations ordered must have an enforceability element for them to be certain, meaningful, and effective. The study demonstrates that the implementation framework for the ICC reparations suffers from two major shortcomings. First, impecunious defendants, and, secondly, scarcity of resources. From the standpoint of legal pragmatism, I posit that the ICC’s practice of ordering reparations against indigent defendants and seeking to enforce them through the Trust Fund for Victims (The TFV) creates uncertainty. The uncertainty stems from the failure of the Court to appreciate the fact that; first, the impossibility of providing meaningful reparation through impecunious defendants, and secondly, the need to develop a reparation mechanism that ensures full accountability by extending enforcement responsibilities to other complicity actors such as states and organisations. The right to an effective remedy is satisfied when the court’s decisions or judgments are fully enforced. It is argued that a formal existence of the right to reparation under Article 75 of the ICC Statute is of no relevance to the victims if the court’s reparation orders are inexecutable. As held in the European Court of Human Rights decision in Airey, positive international law guarantees rights that are ‘practical and effective’. To make the victim’s right to reparation practical and effective, the ICC needs to craft an enforcement mechanism that would deplete the effects of defendant’s indigence and scarce resources at the TFV. A case is made for reparative complementarity that presupposes an active role for states in redressing the victims. The ICC Statute recognises that individual criminal responsibility does not absolve states of their responsibilities under international law. To enforce reparative complementarity through the ICC reparation system, I present state-defendant reparative co-responsibility as an enforcement mechanism under Article 75(3) of the ICC Statute to mitigate limitations of conviction-based reparations. Considering that Article 75 is a human rights provision, it could be interpreted broadly to respond to pragmatic challenges facing the ICC reparation system. An evolutive approach to reparation adjudications under Article 75 would not be averse to the fact that individuals are not mere perpetrators of core crimes. Reparative accountability at the ICC should be reflective of potentially multi-layered perpetration dynamics of core international crimes. That underscores the significance of state-defendant partnership in providing redress to the victims. In justifying my proposal, I respond to the question as to whether state-defendant reparative co-responsibility for reparations would be inconsistent with the ICC Statute and international law as alluded to under Article 21(1)(c) of the ICC Statute; and whether it would affect rights of defendants. I argue that, state-individual joint liability for reparations in atrocity crime cases is legally justifiable on account of the following reasons. First, the ICC is not legally obligated to order reparations against the defendants. The use of the word ‘may’ under Article 75(2) of the ICC Statute is indicative that ordering reparations against defendants is a “discretionary power as opposed to the mandatory cause of action”. Victims could still receive reparations even when there is no court order against the defendants. The relevant Article 75(2) is not a source of substantive rights for the victims but a mere procedural provision on how to effectuate a reparations award for the victims. Victims’ substantive right to reparation is captured under Article 75(1) of the ICC Statute which obligates the Court to establish reparation principles in respect of reparations to the victims. Since Article 75(1) does not espouse as to when, how, and under what circumstances can the Court establish such reparation principles, the Court may establish reparative accountability precepts that can also be applied to complicity states or organisations. Secondly, state obligation to provide reparation under international law does not depend on the result of a criminal trial. Whether there is a conviction or an acquittal, territorial states are obligated to provide reparations to the victims. Thirdly, the drafting history of the ICC Statute and even the current reparation framework of the ICC point to the fact that states are indispensable in the provision of meaningful reparations to the victims in mass crime situations. Fourthly, co-responsibility is not an introduction of a new norm under international law, but a modality on how state responsibility could be operationalised under the ICC legal regime without upsetting the individuality of criminal responsibility. Fifthly, the prevailing international criminal tribunal’s jurisprudence is unanimous that large scale reparations for mass crime victims can only be successfully implemented by governments and not individual defendants. State-defendant reparative co-responsibility could be operationalised in two ways. First, it would be legally acceptable for the ICC to order reparations against states or directly requesting state assistance in implementing reparation orders if a particular state has voluntarily accepted responsibility and participated in reparation proceedings pursuant to Article 75(3) of the ICC Statute and Rule 98(4) of the Rules of Procedure and Evidence (the ICC RPE). Similarly, Rule 98(4) of the ICC RPE provides for judicial consultations in consequence to which the Court may order that reparations be implemented by national authorities. Therefore, the basis of a court’s reparation order against a state would be its voluntary acceptance of responsibility to provide redress to the victims under the auspices of the ICC. Secondly, State’s Reparative Responsibility could be invoked by Recommendatory Orders. Considering that individual criminal responsibility does not negate state responsibility, and in response to the state’s violation of the duty to prevent and protect territorial people against violations, the ICC could invoke international human rights law principles through Article 21(3) of the ICC Statute by demanding that territorial states should provide redress to the victims. When a territorial state does not trigger the Article 75(3) mechanism to accept responsibility, the ICC could issue semi-binding recommendatory orders by requesting such states to, first, implement certain complex and resource-intensive reparations measures, and secondly, ask them to cooperate effectively in the enforcement of reparation judgments against defendants. I refer to such orders as semi-binding recommendations as they would not emanate from the court’s express statutory powers, but from customary international law. Alternatively, recommendatory orders for reparations could also be issued under the obligation to cooperate provision. Since the obligation to cooperate provisions are meant to ensure that international tribunals operate smoothly, the Court could use Article 86 of the ICC Statute to ask for state participation in specific reparation measures for the victims.