1 Victims and Reparations in the ICL Article 68(3) of the Rome Statute of the ICC: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented, and considered, at stages of the proceedings determined to be appropriate by the Court, and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

2 Participating in proceedings should be distinguished from being called to testify as a witness. Some victims may be called as witnesses by one of the parties to give evidence that goes to the culpability or innocence of the accused, whereas appearing as a victim participant is entirely voluntary. In participating, victims are pursuing their own interests, independent from the parties. Before the ICC victims are not treated as full parties. The judges sitting in relation to any particular phase of proceedings have a duty to manage the participation of victims during that phase and to ensure that it does not prejudice the rights of the accused or impede the efficiency of the proceedings. The ICC’s Rules envisage that a legal representative of a victim might question a witness, or even the accused, but only after seeking specific authorization from the Chamber. The Rules also provide that where there are a number of victims, a Chamber may order them to join together and choose a common legal representative, in the interests of ensuring the efficiency of the proceedings.

3 In ICC victim participation. Victims may present their views and concerns to the ICC, where their interests are affected, potentially at any stage of the proceedings, from investigations to appeal. If an accused is convicted, the ICC may award reparations. Before the ICC, victims may present their views to the ICC from a much earlier stage. This gives victims a voice in the proceedings and to address one of the deficiencies for which the ad hoc international criminal tribunals, such as those for Former Yugoslavia and Rwanda, were criticized, namely the sense of alienation that many victims felt as a result of being left out of the proceedings. It was also intended to reflect developments in international standards that recognize greater rights for victims of crimes, including the right to reparation

4 Fundamental needs expressed by victims regarding criminal proceedings:  making their voice heard;  participating in the handling of the case that concerns them;  being treated with respect and fairness;  obtaining information on the progress and outcome of the case concerning them; obtaining economic and emotional redress. Retribution might not be as important to victims as is generally thought:  restitution or compensation,  opportunity to make a fresh start, to recover and to be protected from further victimization.

5 The Victims Participation and Reparations Section (VPRS) is one of several units in the ICC concerned with victims. The VPRS was established within the Registry of the ICC to assist victims and facilitate their access to the ICC, as well as to serve as the entry point for applications to participate in proceedings and to process such applications. Another unit of the ICC is responsible for protection and support (the Victims and Witnesses Unit), and two independent bodies have been established — an Office of Public Counsel for Victims to provide legal assistance and representation, and a Trust Fund for Victims of crimes within the ICC’s jurisdiction and their families.

6 The ICC’s Statute and Rules victims may present their views and concerns in relation to decisions whether to proceed with an investigation or prosecution, in the context of challenges to jurisdiction or admissibility, and during a hearing to consider whether to confirm the charges against a person. The Rules of Procedure and Evidence give only a very general definition of who will be considered a victim before the ICC — a natural person who has suffered harm as a result of the commission of a crime within the jurisdiction the ICC. An organization or institution that suffered harm to its property dedicated to religion, education or similar purposes, or to monuments, hospitals or other places used for humanitarian purposes may also be considered a victim. The question of which victims should be allowed to participate in relation to a specific case— as opposed to the broader Situation that is before the ICC — is the subject of a pending appeal.

7 At the pre-trial stage of the Lubanga case, the judges of the Pre-Trial Chamber decided that only those victims able to demonstrate a direct causal link between the harm they allege to have suffered and the crimes in the arrest warrant would be entitled to participate in proceedings in relation to the case at that stage. When the case moved to the Trial Chamber, that Chamber departed from this approach, finding that indirect as well as direct victims of a crime may be accepted, and that the range of victims who might be authorized to participate in the trial would not be limited to those linked to the crimes contained in the charges; rather that whether the interests of a victim are affected by the trial will be determined instead by reference to whether the victim can establish a link with evidence the ICC will be considering during the trial, or is affected by an issue arising during the trial because his or her personal interests are “in a real sense engaged by it.” The Trial Chamber also noted that victims may have very general and wide-ranging interests, such as in being allowed to express their views and concerns, verifying particular facts, protecting their dignity and ensuring their safety, and being recognized as victims, and that their interests were not limited to receiving reparations. As a result of applications from both the prosecution and the defence, the Appeals Chamber is currently considering the question of whether the harm alleged and the concept of “personal interests” must be linked with the charges against the accused.

8 The ICC’s rules relating to victim participation envisage that victims may give opening and closing statements at trial, and may request authorization to make interventions, including questioning witnesses. During the confirmation of charges hearing in the Lubanga case, a legal representative of a victim was permitted to put a question to a witness. Another issue currently on appeal is whether victims participating in proceedings will be able to introduce evidence during trial. The Trial Chamber, in its decision on victims’ participation of January 2008, held that victims participating in proceedings may be allowed to introduce and examine evidence if the Chamber finds it will assist in the determination of the truth.

9 Reparations Article 75 Reparations to victims 1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. 6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

10 1.It has to be directed against the convicted person, even if they cannot pay for the reparations. 2.The convicted person is obliged to remedy the harm caused by the crimes for which they are convicted. 3.The order must specify the type of reparations ordered—either collective, individual or both. It must also outline the reasons for ordering the type of reparations. 4. It must define the harm caused to direct and indirect victims as a result of the crimes. The Trial Chamber must identify the modalities of reparations (i.e. compensation, restitution, rehabilitation or other) that it considers appropriate for each case. 5.The reparations order must identify the victims who are eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted.

11 Reparation orders are made against a particular offender for the benefit of the victims of his crimes. Three types of reparation are envisaged:  Restitution consists in the return of property seized in the course or as a result of the commission of the crime;  Compensation is for economically assessable damage resulting from physical or psychological harm;  Rehabilitation covers medical and psychological care and legal and social services. Traditional forms of reparation like satisfaction (e.g., apologies) and guarantees of non-repetition are not mentioned, perhaps because they are more appropriate in the case of states, but nor are they excluded (the list is non-exhaustive).

12 Reparations target only individuals. The ICC does not have the power to order reparations from states, even if the accused was the head of state or involved in the implementation of a state policy. Perhaps partly to remedy that shortcoming, a Victims Trust Fund was created which is independent from the ICC. The VTF has a dual role: it is part implementer of reparation awards ordered by the ICC and which, for example, have an enforcement or collections aspect making it too burdensome for the ICC to manage; but it is also part distributor of moneys received from international donors which it can dedicate to the rehabilitation of victims. It has already started distributing money in areas where investigations are undertaken, much earlier and entirely separately from reparations that may eventually be obtained. Given the dire situation in which many victims of atrocities find themselves and the sheer difficulty of evaluating the amount of reparations, not to mention finding someone who can pay for them, it may well be that the VTF will end up being the most important dimension of assistance to victims.