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The conclusion of the International Criminal Court’s first trial this summer was duly noted in global media and political circles. Yet little attention was paid to the equally landmark move by the court mandating reparations for victims of the atrocities committed by the man who was sentenced for the war crimes case, Thomas Lubanga of the Democratic Republic of Congo.
The promise of the court and seemingly endless controversy around it have centered on its powers to adjudicate – which can extend beyond state sovereignty through various means — and its political possibilities, especially in the realm of conflict and security. Its supporters contend that the court forecloses the option of mass atrocity crimes as a war strategy or as a repressive tactic. Critics see the court as a dangerous means of coercion wielded by prominent Western countries.
Few note the ICC’s role in shaping global norms and politics after a warrant has been issued or the person accused is delivered to The Hague. Yet the ICC Trial Chamber’s order of reparations has the potential to directly affect populations in a way that the court’s other activities have not. The order also reveals the extent of the court’s work regarding victims’ rights. This work occurs alongside judicial and investigatory activities.
The Rome Statute, the court’s governing treaty, explicitly calls for attention to be paid to victims of the crimes being tried and institutionalizes the directive in the Trust Fund for Victims. The statute also empowers the court to call for reparations for specific victims and communities after a conviction.
These efforts are for the most part admirable. The trust acknowledges the need for reparations that extend beyond helping specific victims and includes people and communities who assisted them and recognizes the need to address the needs of victims by age and gender. In addition, the trust links reparations to broader social goals, such as national recognition, public apology and social and national reconciliation.
But the resources of the court and the trust complicate these goals. The trust’s work is financed mostly by member-state contributions and private donations. Countries’ contributions vary; so far, their donations alone cannot finance all the activities of the trust, which has only begun to provide general assistance to victims and communities in situations that the ICC has investigated since 2007. Moreover, it has just about $1.6 million available right now for reparations (a third of the trust’s total budget), while other awards have gone to such projects as local health care and education programs as well as advocacy training.
Lubanga, who was declared indigent by the court, is unable to pay his victims. But other convicts could potentially have the money to compensate their victims, though it might be impossible for any single criminal to have enough to actually finance the extensive costs associated with caring for victims and entire communities long after the crimes are committed.
Naming victims of mass atrocity crimes, part of the overall reparations process, also carries the danger of inciting tensions and possibly more conflict. Given the socially embedded nature of such crimes, parsing victim from aggressor, may prove difficult. Community-based reparations can be helpful in easing social divisions after a conflict; however, wide-ranging reparations plans can represent an incursion of the court into civil society that may be viewed as an infringement on state sovereignty.
Missteps by the trust that increase local tensions may provoke countries to withdraw their support for the trust and the ICC. The norm of justice may also suffer, should states fear that reparations present a threat of unrest. After all, nongovernmental work that aims to alleviate pain in conflict zones or even nonconflict areas can sometimes end up being politicizing.
To date, reparative projects elsewhere have been the focus of heated debate — in the US on slavery, to cite one example — but also of enduring importance. The ICC Trust for Victims is now tasked with creating proposals for reparations to be presented to the Trial Chamber for approval. Given the speed of international justice, it is likely that the proposals will be enacted long after a given conflict has stopped, though the trust fund does not have to wait to carry out its work before a verdict. And despite emerging research suggesting that timing, strategy, local involvement and multiple viewpoints are necessary for post-conflict social change, a three-person panel of judges with no regional ties will determine the merit of the reparations proposals.
In the case of Lubanga, judicial debate on rewards will likely occur without the involvement of a single Congolese victim, though representatives have and will continue to make statements to the court on the matter.
The court is poised to make a contribution to people who have been gravely affected by mass atrocities and war crimes, like the use of child soldiers in Lubanga’s case. As the ICC and the UN — through the Security Council’s relationship with the court and the UN Human Rights Council’s newly created special rapporteur on justice and reparations issues — inscribe the role of reparations into customary international practice, it is critical that the focus remains on the needs of communities that were affected so that the victims do not suffer more so and the efforts do not undermine global justice gains.