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THE ISSUE OF REPARATIONS BEFORE THE INTERNATIONAL CRIMINAL COURT
on the international level, requires the reimbursement of every quantifiable harm,
irrespective of whether it is an economic, mental or moral injury. Rehabilitation
includes measures such as necessary psychological or medical care, together with social
and legal support. Finally, the satisfaction and guarantees of non-recurrence, which
are the broadest categories, encompass dissimilar measures, – for instance cessation of
violations, official apologies, full public disclosure of the truth, efforts at institutional
reform, such as judicial or law reforms, or application of judicial/ administrative
sanctions for perpetrators.
3
To sum up, the concept of reparation involves multiple
actions and activities which seek to restore the
status quo ante,
being that state which
had been before the conflict occurred and the damage was done. Furthermore, with
the exception of guarantees of non-repetition, which is mainly political in nature,
the components of reparation are legalistic and usually involve transfers of money.
4
Finally, the issue of reparation cannot be detached from the concepts of ‘corrective
justice’, which refers to acknowledging and repairing past harm, and of ‘distributive
justice’, referring to distributing property in a fair manner.
5
Legal framework
As can be observed in recent decades, there has been a shift in international
criminal law towards the greater recognition and centrality of victims, usually parallel
to the rise of victim’s rights and restorative justice.
6
The UN has issued a number of
legal documents, such as the
Basic Principles on the Use of Restorative Justice Programmes
in Criminal Matters
, adopted under Resolution 2002/12,
7
Handbook on Restorative
Justice
, or the
2006 Basic principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Humanitarian Law,
8
which
recognize the rights of the victims to be treated with compassion and respect for their
dignity, access to justice, and redress mechanisms, along with the encouragement
of national funds for compensation and the development of appropriate rights and
remedies.
9
The framework provided by the
Rome Statute of the International Criminal
Court
(RS) follows this pattern and establishes its own structure. Article 75(1)
RS requires the creation of principles relating to reparations, including ‘restitution,
compensation and rehabilitation’. Accordingly, the ICC may determine, either at the
victim’s request or its own motion, the scope and extent of any damages, loss and
3
J. Miller, R. Kumar,
Reparations: Interdisciplinary Inquires
, Oxford University Press, New York, 2007,
p. 154.
4
K. De Feyter, S. Parmentier,
Out of the Ashes. Reparation for Victims of Gross and Systematic Human
Rights Violations
, Intersentia, Antwerpen- Oxford, 2005, p. 38.
5
Kyle Logue,
Reparations and Redistribution
, B.U.L. Rev. 1319, 2004, p. 84.
6
C. Hoyle, L. Zedner, The Oxford Handbook of Criminology, 4th ed., Oxford University Press, 2007,
pp. 461-495.
7
Economic and Social Council E/2002/INF/2/Ass.2, July 2002.
8
General Assembly Resolution 147, A/RES/60/147, 21 March 2006.
9
W. Schabas,
Introduction to the International Criminal Court
, Cambridge University Press, 2012, xiv,
p. 548.