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AGATA FOKSA
CYIL 4 ȍ2013Ȏ
in the Kenya proceedings a common legal representation was designated to determine
who the victims are. Article 68 serves as a basis for the determination of who can
participate in the proceedings; there is, however, a problem of how to group the
victims – for instance according to harm suffered in a similar way, or whether the
attack took place in a collective or individual manner. Owing to the fact that every
year more victims are willing to participate in proceedings, there is a need for more
discussion and thoughts to be given before any proposals concerning changing the
legal framework can be made. Issues which are still not clear include: possibilities
to participate in the legal process (individual or collective), the registration process,
the division of work between the Registry and legal representatives, as well as the
review of the application system. It should be remembered that the victims should be
consulted regarding those changes which will affect them.
Conclusions
The judgment issued on 14 March 2012 by the International Criminal Court
in the
Prosecutor v. Thomas Lubanga Dyilo
case sets a precedent under international
criminal law with regard to the issue of reparations. It emphasized the priority of
reparations as a means to provide justice for victims, confirmed that the ICC is
a body having real powers, unlike
ad hoc
tribunals, and constituted a departure from
the common practise of usually leaving the process of reparations to states.
Following the statement of Mr. Ruben Carranza, the ICC should remember
that the recognition of the right to reparations is only a first step
,
and it should
pay close attention to possible challenges the Trust Fund for Victims will face while
implementing the reparation decision. It is important to have a clear and precise
assessment system which will provide just and adequate compensation as closely
as possible to the harm suffered, bearing in mind that there is no one-size-fits-
all solution. Following the example of the ECHR or the IACHR, the TFV should
also take into account non-pecuniary damages, even though non-monetary damages
were not determined in the Court proceedings. After assessing the damages, another
challenging step is the disbursement of the awards. Bearing in mind the examples
of the September 11th Fund and the Liberty Fund of the International Red Cross,
widely criticized for not getting the money directly to the victims, and, on the other
hand, the need of rebuilding those community structures without which the process
of reparations cannot be completed, the TFV will have to find a solution which will
balances these two interests.
The
Prosecutor v. Lubanga
case proves the significance of the Court as a body of
international law and, on the other hand, reveals that there is still a lot to be done
with regard to the issue of reparations, as well as the victims’ participation. It should
be remembered that the way the reparation process will be conducted will be closely
monitored by the international community and will definitely determine the Court’s
viability. Therefore the Trust Fund must do everything possible to not follow the
mistakes described above and to tackle the obstacles wisely.