REALISING VICTIMS’ RIGHT TO REPARATION: DEBATES AROUND THE ICC

This study is about debates concerning the right to reparation and the politics of reparations, in the broad sense, under ICC mechanisms. In particular, the study aims to reflect on the difficulties of realizing reparations from an International Criminal Law perspective in the context of conflict and post-conflict situations and to provide a basis for further research and discussion. Using Ehrlich’s perspective on the ‘living law’, this study suggests that practices are being informed by the existing limitations of reparations mechanisms under the ICC, including limitations of resources, and the scope of which victims should be included. One unavoidable problem is that some victims will not be included in ICC reparation orders. A number of key debates are identified. The first concerns the lack of a framework for deciding on reparations, and how that has affected a range of actors and practitioners concerned with reparations processes. The lack of principles can in turn create tensions between State Parties and the Court concerning their respective responsibilities for reparations. The second key debate is the tension between the Trust Fund for Victims and the ICC, and how their respective mandates for working with victims are inter-related. Finally, the study raises the whole question of what part complementarity might play in making reparations for victims of international crimes practicable and more just in future. The study explores these key debates on the basis of interview material and a range of secondary sources (academic, NGO, ICC documentation). In exploring a range of views about these issues, the study contributes to the processes currently taking place around ICC reparations, which can be defined as part of the ‘living law’ of realising the Rome Statute.