239 / 350
THE ISSUE OF REPARATIONS BEFORE THE INTERNATIONAL CRIMINAL COURT
should not have been limited to mere financial contribution, but should have
included satisfaction in the form of disclosure of the truth, a search for individuals
who disappeared, a public apology as well as public commemorations and tributes
to victims.
26
Other NGOs also stressed the importance of the symbolic reparations
and the role they played in the Inter-American Court of Human Rights and by the
Extraordinary Chambers in the Courts of Cambodia (ECCC), as this would allow
the ICC to provide redress for victims despite the limited funds of the Court.
27
In
light of the above-mentioned, the decision of the Trial Chamber to order voluntary
apology seems to be incomplete and leaves the impression that there is more that
could have been done. Since satisfaction does not require any financial resources
and Mr. Lubanga will not contribute in any other way, it appears that the victims
deserve, and perhaps also desire, an official apology from the person who has caused
inconceivable harm to them, their families and their community as a whole.
There is another issue which needs to be acknowledged with regard to the
problem of declaring the accused indigent. Due to the lack of cooperation between
the States Parties and the Court, as well as the governments and the banks within the
particular country, and the absence of clear procedures allowing for the identifying,
seizure and freezing of assets of the tried persons, it is very likely that all the assets
which belong to the suspects would be moved and be untraceable as soon as there is
a risk of losing them. An ability to prevent such a situation would allow for gathering
necessary financial means which could later be used by the Trust Fund for reparations
and would not leave the accused unpunished also in financial terms.
It can be claimed that the only measure for the effectiveness of the TFV, and
consequently the Court itself, is their ability to provide just restitution for people
who suffered harm.
28
Therefore, the process of implementing reparations must be
conducted carefully with close monitoring by the Chamber, NGOs and civil society
actors. When speaking of disbursing reparations to the victims, being the practical
connection between the rights guaranteed and the actual recovery, fundamental
issues which need to be assessed are: who will benefit, and how the awards will be
dispersed.
29
While there are no doubts as to the former category, pursuant to Article 79
RS, Rule 85 of the Rules (RoPE) and the Decision establishing the principles and
procedures to be applied to reparations, the method of assessing the awards can be
more problematic as it is more elusive and vague. It is not an easy task to determine
the level and amount of money to be granted to each affected person and their
relatives, to prioritize between these who suffered the most harm and who are the
most destitute and to return their lives to the way they were before. From this point
of view, taking into consideration lack of experience, the collective, rather than the
26
ICC-01/04-01/06-2904, para. 110.
27
ibid, para. 115.
28
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. 201.
29
ibid., p. 221.