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Brill Academic Publishers, Inc.
The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations

The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations

by Eva Dwertmann


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The Reparation System of the International Criminal Court: Its Implementation, Possibilities and Limitations

When the Rome Statute for the International Criminal Court was adopted in 1998, one of its great innovations was that victims were granted an active role in the proceedings. In its early jurisprudence on victims' rights, the International Criminal Court stated that 'the success of the Court is, to some extent, linked to the success of its reparation system.' This book is among the first to focus on the International Criminal Court's power to order reparations to victims. It provides a comprehensive analysis of the legal framework of the reparation system, taking into account relevant Court decisions. Possibilities for its implementation are drawn up, providing potential solutions for its multiple challenges, including the distinct asymmetry between the individualized responsibility to provide reparations and the collective nature of the crime and its consequences. With its practical approach, this book is particularly valuable for practitioners, but also for students and researchers.

Product Details

ISBN-13: 9789004178106
Publisher: Brill Academic Publishers, Inc.
Publication date: 03/02/2010
Pages: 362
Product dimensions: 9.50(w) x 6.60(h) x 1.00(d)

About the Author

Eva Dwertmann, Ph.D. (2009) in Law, Humboldt University of Berlin, practiced international law with the German Red Cross and currently works for the German Federal Ministry of the Interior. She has published on Holocaust reparations including Zeitspiele. Die späte Entschädigung ehemaliger Ghettoarbeiter, in Frei/Brunner/Goschler (Eds.), Die Praxis der Wiedergutmachung (Wallstein, 2009).

Table of Contents

Acknowledgments xi

Table of Abbreviations xiii

Chapter 1 Introduction 1

A Aims of the Study 1

B Structure and Methodology of the Study 5

C The Term "Reparations" 10

Chapter 2 Historical and Legal Context of Reparations for Victims of Crimes under International Law (Overview) 13

A National Law 13

B International Law 15

I Reparations in the Context of State Responsibility 15

II State Reparations to Individuals and Groups 17

III Reparations from Individual Perpetrators of International Crimes to Individual or Collective Victims 22

C International Criminal Law 23

Chapter 3 Purpose of Reparations in International Criminal Law 29

A Victims and the Purposes of International Criminal Justice 29

B Interests Protected by International Criminal Law 32

C Purposes of Reparations 37

D Assessment 43

Chapter 4 Reparation Principles and Determination of the Scope and Extent of any Damage, Loss and Injury to, or in Respect of, Victims (Art. 75 (1) ICC Statute) 45

A Establishing Principles Pursuant to Art. 75 (1) s. 1 ICC Statute 45

I Purpose of Reparation Principles 45

II Organ Responsible for Establishing Reparation Principles and their Legal Nature 46

III Scope and Content of Principles 48

IV Who Can the Reparation Principles Be Addressed to? 51

1 States 51

2 Corporations and other Judicial Persons 56

3 International Community 59

V Assessment 61

B Determination of Damage, Loss, Injury (Art. 75 (1) s. 2 ICC Statute) 62

Chapter 5 The ICC Reparation Order (Art. 75 (2) ICC Statute) 67

A Liability for Reparations 68

I The Conviction as a Pre-Condition for an ICC Reparation Order 68

II Determination of Liability 71

B Eligibility for Reparations Ordered by the ICC 75

I Qualification as a Victim under Rule 85 76

1 Individual Victims (Rule 85 (a)) 78

a Natural person 78

b Harm 78

1 Forms of Harm 79

i Emotional Suffering 80

ii Physical and Mental Injury 82

iii Economic Loss/Material Harm 82

iv Other Damage 83

v Assessment 84

2 Direct and Indirect Harm 84

i Determination of Indirectly Harmed Persons Eligible for Reparations 87

ii Assessment 89

c Crime within the Jurisdiction of the Court 90

d Causation 92

2 Organizations and Institutions 96

II Collective Beneficiaries of Reparations 98

III Other Eligibility Criteria 102

1 Neediness 102

2 Exclusion of Eligibility 104

3 Time Limits 107

IV Reparations "in Respect of, Victims" 111

1 International and National Law and Human Rights 113

2 Assessment

V Discretionary Decision of the Court to Order Reparations to Victims 114

VI Assessment 116

C Content of ICC Reparation Orders 118

I Type of Reparations: Individual and Collective Awards 119

1 Individual Reparations 120

2 Collective Reparations 121

a Appropriateness of Collective Awards 121

b Content of Collective Awards 124

3 Assessment 127

II Form of Reparations 129

1 Restitution 129

a International and National Law and Human Rights 130

b Assessment 132

2 Compensation 133

a Types of Compensable Harm 134

1 Pecuniary or Material Damage 135

i ICC Reparation System 135

ii International and National Law and Human Rights 136

2 Non-Pecuniary or Moral Damage 137

i ICC Reparation System 137

ii International and National Law and Human Rights 138

3 Assessment 141

b Compensation and Causation 141

1 International and National Law and Human Rights 142

2 Assessment 145

3 Rehabilitation 146

a ICC Reparation System 146

b International and National Law and Human Rights 146

c Assessment 146

4 Other Forms of Reparations 149

a Symbolic and Non-Monetary Forms of Reparations 150

1 ICC Reparation System 150

2 International and National Law and Human Rights 151

i Cessation of Violations, Exposition of Truth, Punishment of Perpetrators 152

ii Guarantees of Non-Repetition 153

iii Acknowledgment of Responsibility 153

iv Apology 154

v Commemoration 155

vi Monetary Measures to Benefit the Harmed Community 156

3 Assessment 157

b Punitive Damages 159

5 Assessment 161

III Standard of Reparations 162

IV Scope of the Compensation Order 166

1 Valuation and Calculation of Damages 167

a ICC Reparation System 167

b International and National Law and Human Rights 168

1 Calculating Non-Pecuniary and Pecuniary Harm 168

i Pecuniary Harm (Material Damage) 168

ii Non-Pecuniary Damage (Moral Damage) 169

2 Standardization and Estimation of Damage 172

c Assessment 178

2 Other Factors Potentially Impacting the Compensation Order 181

a Degree of Fault of the Convicted Person 181

b Financial Capacity of the Convicted Person 183

1 ICC Reparation System 184

2 International and National Law and Human Rights 185

3 Assessment 186

c Impact on the Scope of the Reparation Order When Several Persons Caused the Harm 187

3 Assessment 192

Chapter 6 ICC Reparations Proceedings 195

A Procedural Requirements for a Reparation Order (Art. 75 (1), (2) ICC Statute) 196

I Initiation of the Reparations Proceedings by, or on Behalf of, Victims 196

1 Victims' Requests for Reparations 196

a Claim to be a Victim 196

b Who can Claim to be a Victim? 197

c Do Collectives Have the Right to Claim Reparations? 198

2 Form of the Request for Reparations 202

3 Content of the Request for Reparations 203

a Information about the Claimant, the Damage and Kind of Reparations Requested 203

b Identification of the Person Believed to be Responsible for the Damage 203

4 Documentation of the Data Contained in the Request 204

5 Other Procedural Requirements 205

a Unavailability of Reparations in Other Fora (Complementarity) 205

b Participation in the Court Proceedings 207

II Court-Initiated Reparations Proceedings 208

III Assessment 210

B Communications of the Court in the Reparations Proceedings (Art. 75 (3), Art. 76 (3) ICC Statute) 211

I Notification and Publication of Reparations Proceedings 211

1 Notification 211

2 Publication 214

II Expert Consultation 216

III Participation in the Reparations Proceedings 217

1 Victims 217

2 Parties other than Victims 222

IV Assessment 224

C Standard and Burden of Proof 226

I ICC Reparation System 227

1 Standard of Proof 227

2 Burden of Proof and Demonstration of Facts 231

II International and National Law and Human Rights 233

III Assessment 242

D Reparations and Penalties (77 (2), 78 (1) ICC Statute) 245

I Reparations and the Determination of Sentence 247

1 Impact of the Offender's Behavior towards Victims on the Sentence 247

2 Reparations and the Imposition of Fines and Forfeiture Orders 251

a Fines 251

b Forfeiture Orders 255

3 Review Concerning the Reduction of Sentence and the Impact of the Offender's Post-Conviction Behavior Towards Victims 257

II Use of Money or Property Collected through Orders of Reparations, Fines and Forfeiture and the Role of the Victims Trust Fund 258

III Assessment 260

E Appeal against a Reparation Order (Art. 82 (4) ICC Statute) 261

F Implementation of ICC Reparation Awards (Art. 75 (2), Art. 79 ICC Statute) 265

I ICC Reparation System 265

1 Role of the ICC and the Trust Fund for Victims 265

2 Reparations 266

a Direct Awards (Art. 75 (2) 1. Alt., Rule 98 (1)) 267

b Awards through the Trust Fund (Art. 75 (2) 2. Alt., Rule 98 (2) and (3)) 267

1 Individual Awards 268

2 Collective Awards 270

c Distribution through Organizations (Rule 98 (4)) 271

3 Complementing Reparation Awards with "Other Resources of the Trust Fund" 272

G Protective Measures and Enforcement of Reparation Orders (Art. 75 (4) and (5) ICC Statute) 277

I Protective Measures 277

II Enforcement 279

III Assessment 281

Chapter 7 Assistance to Victims and Their Families by the Trust Fund (Art. 79 ICC Statute, Rule 98 (5)) 285

A Funding 286

B Measures for the Benefit of Victims and their Families other than Reparations 287

C Relation between the Court and the Trust Fund for Victims 289

D Assessment 291

Chapters 8 Summary and Conclusion 295

A Towards the Implementation of the ICC Reparation System (Summary) 295

B Potential of the ICC Reparation System 299

C Conclusion 302

Appendix 303

A Bibliography 303

B Table of Cases 321

D Materials 331

Index 357

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