236 / 350
AGATA FOKSA
CYIL 4 ȍ2013Ȏ
injury to, or in respect of, victims.
10
Furthermore, the Rome Statute provides for
two ways of making an order for reparations, either directly against a convicted
person by the ICC, or through the Trust Fund under Article 75(2) after inviting and
taking into consideration of the representations from or on behalf of the convicted
person, victims, or other interested parties.
11
In the light of Rule 97(1) of the Rules
of Procedure and Evidence, the reparations may be awarded either on an individual
or collective basis, with States Parties required to give effect to all decisions taken by
the ICC on the basis of Article 75(6) of the RS.
Trust Fund for Victims
The establishment of theTrust Fund forVictims (TFV) is undeniablyunprecedented
in international law. It was created as a tool which could be used by the victims of crimes
before the Court to be compensated for the harm suffered.
12
Moreover, it operates
under the legal framework of the Rome Statute, Rules of Procedure and Evidence,
and Regulations of the Assembly of States Parties (ASP).
13
Articles 75 and 79 set
out two different functions of the TFV, namely a means through which the Court
grants reparations under the former, and a body that collects punitive damages and
voluntary contributions established by the latter.
14
In the light of Rule 85, victims
are those natural persons who have suffered harm as a result of the commission of
any crime within the jurisdiction of the Court, and may include organizations or
institutions that have sustained direct harm to any of their property.
15
As regards
sources of funding, the TFV is authorized to receive funds based on: (a) voluntary
contributions made by Governments, international organizations, individuals,
corporations and other entities; (b) money and other property collected through
fines or forfeitures pursuant to Article 79(2); (c) resources collected through awards
for reparations if ordered by the Court; and (d) resources, other than assessed
contributions, allocated to the TFV by the ASP.
16
It is important to notice that the
TFV is independent from the administration of the Court and the development
of the relations between these two bodies can be based either on a direct order of
reparations by the Court from the convicted person without the involvement of the
TFV, or situations included in Rules 98(2)-98(4), when the awards will be ordered
through the TFV. In the second scenario, the Court may either identify the amount
of reparations and the group of recipients, or call upon the TFV to advise on the
these matters. The order may also take a form of framework principles, leaving the
10
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998), Article 75(1).
11
ibid, Article 75(3).
12
Peter G. Fischer,
The Victims’ Trust Fund Of the International Criminal Court- Formation of a Functional
Reparations Scheme
, Emory International Law Review, Spring 2003, p. 189.
13
K. De Feyter, S.Parmentier,
Out of the Ashes. Reparation for Victims of Gross and Systematic Human Rights
Violations
, Intersentia, Antwerpen- Oxford, 2005, p. 228.
14
Rome Statute of the International Criminal Court, UNDoc. A/CONF.183/9 (1998), Articles 75 and 79.
15
International Criminal Court, Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1
(2000) Rule 85.
16
Resolution ICC-ASP/1/Res.6.