Exploring the legal complexities of the reparations mandate of the International Criminal Court under Article 75(1) and (2) of the Rome Statute: a jurisprudential critique

Abstract

The traditional approach to ensuring justice for victims of serious crimes has always been about the prosecution and punishment of perpetrators. The adoption of the Rome Statute of the International Criminal Court in 1998 set the stage for bringing justice to victims as individuals and collectives of communities that suffered harm. The Rome Statute portrays an inherently unique framework for the protection and participation of victims. This framework includes reparations in their favour. As such, reparations in the Rome Statute signifies progress with regards to 'repairing' harm suffered by victims. It transcends the predominantly retributive approach, and by including reparations, it takes a restorative and inclusive process that can be described as victim-centric justice. One of the central mandates of the Rome Statute is to provide reparations, as articulated in article 75(1) and (2). Article 75(1) and (2) expounds on the mandate given to the International Criminal Court (hereafter ICC or the Court) to develop principles governing the award for reparations. It also bestows discretionary power on the Court to make orders for reparations against convicted individuals. The Court's reparations mandate, as provided in the Rome Statute, remains novel and unprecedented in the domain of international criminal justice: the reparations mandate is the first explicit provision on the imposition of reparations against individual perpetrators. However, the Court's reparations mandate causes friction between, on one hand, the prosecution and punishment of perpetrators of serious crimes, and the civil dimension of reparations for victims, on the other hand. This friction arises from a doctrinal blurriness in the practical divide between the civil dimension of reparations and the criminal dimension of punishing individual perpetrators. The reparations mandate puts the Court in a situation in which it must provide retributive justice, and reparation measures that appropriately address the harm done to victims (both natural and juristic persons). These two conceptions have sparked interesting debates in legal scholarship, particularly because retributive justice is a fundamental element of international criminal justice. The challenges presented by civil and criminal aspects of the Court's reparations mandate interest legal scholars, although there is limited literature on the legal complexities pertaining to the fulfilment of this developing mandate of the Court. This thesis examines the legal complexities that arise in the implementation of the reparations mandate by the Court. It investigates the provisions as articulated in article 75(1) and (2) of the Rome Statute, and how they practically provide reparations for victims. In this context, the thesis analyses the principles of reparations developed in the jurisprudence of the Court through case law. These cases include: The Prosecutor v Thomas Lubanga Dyilo, The Prosecutor v Germain Katanga; The Prosecutor v Ahmad Al Faqi Al Mahdi; and The Prosecutor v Bosco Ntaganda. Further, the thesis submits an analysis drawn from the implementation of reparation principles in the above-mentioned cases. It also explores the ensuing legal complexities, which include the implications of reparation orders against convicted individuals, the definition of harm and causation in relation to reparations, and the relationship between the Trust Fund for Victims and the Court in cases where convicted persons are indigent. This thesis unpacks both procedural and substantive legal complexities arising from the execution of the reparations mandate by the Court. It also explores how the Court gradually shaped and developed principles on reparations on a case-by-case basis and the central role that the Trust Fund for Victims has played in the implementation of reparation orders. It is expected that findings derived at the end of the thesis will make a crucial contribution to legal scholarship with reference to holding individual perpetrators accountable by, inter alia, providing reparations for victims.