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individual approach, seems to be appropriate solution. However, there is a need for
a clearly defined and precise system through which the Trust Fund would assess the
needs of each individual, family, town, or community. Decision ICC-01/04-01/06
concerning the Trust Fund for Victims’ First Report on Reparations can undeniably
be considered an important and necessary step; but it is rather a beginning of what
still needs to be established. It is believed that quantifying loss never accurately
calculates the loss suffered.
30
Redress, an international victims advocacy watch group,
expressed an opinion that ‘
no organization has proven capable of consistently ensuring
that just and adequate reparation is made in all cases to those whose fundamental rights
have been violated’;
31
therefore one of the main challenges which the TFV will face is
to ensure just and adequate compensation as closely as possible.
Due to the fact that Rule 97 of the Rules (RPE) does not take account of non-
monetary reparations or restitution for intangible items, the TFV should provide
a form of compensation for all tangible as well as intangible loss, including liberty,
family life, citizenship, and, as postulated by Amnesty International, harm to reputation
and dignity, lost opportunities and other factors included in its recommendation list.
32
Even though the need to award non-pecuniary damages is widely recognized by the
international community, up till now there has been no clear solution to the problem
of how the TFV should assess these losses.
33
The fund could take an example from the
ECHR, which compensates for any non-pecuniary damage that can be proven to
have diminished an individual’s life, such as distress, abandonment, impaired way of
life or humiliation,
34
or from the IACHR, which takes an even broader interpretation
by assuming that any person subject of state aggression and abuse will experience
moral suffering.
35
The TFV should create mechanisms allowing for the assessment of
those non-monetary damages that were not determined in the Court proceedings.
Moreover, these should be awarded as a lump sum distinct from the pecuniary
awards and should not in any case be used as punitive devices against the wrongdoer,
but rather be standardized to the extent possible according to the loss of faculty and
moral condition of each victim, taking account of examples such as the IACHR and
the ECHR.
The key element in providing reparations for victims is consistency, as it prevents
arbitrary and unfounded awards.To guarantee this, compensation bodies tend tomake
uniform grants to each victim within a given class, instead of trying to make various
30
ibid., p. 223.
31
Stuart Maslen,
Promoting the Right to Reparation for Survivors of Torture: What Role for a Permanent
International Criminal Court
, Redress- ICC Report Summary <
http://www.redress.org/rep1sum.html>
last accessed 20 December 2012,15
37
.
32
Mark Jennings,
Article 79: Trust Fund, Commentary On the Rome Statute of The International Criminal
Court: Observer’s Notes
, Otto Triffterer ed., Nomos Verlagsgesellschaft, 1999.
33
Peter G. Fischer, The Victims’ Trust Fund of the International Criminal Court- Formation of
a Functional Reparations Scheme,
Emory International Law Review
, Spring 2003, pp. 226-229.
34
Konig
v. The Federal Republic of Germany (1978) 36 Eur Ct. H.R (ser.A) at pp.16-17.
35
Douglas Laycock,
Modern American Remedies: Cases and Materials
175 (2nd ed. 1994).