International Law Week Side Event: Panel discussion
„Ensuring justice and accountability for the victims of atrocity crimes. The important role of providing remedies and rehabilitation.“
24 October 2023, UNHQ
Delivered by Mr Andres Parmas, Member of the Board of Directors of the Trust Fund for Victims of the ICC, Estonia’s candidate for judge of the ICC
Let me start by thanking the previous speakers for inspiring ideas and discussion points raised. My gratitude also goes to the co-sponsors for organizing today’s event where I am honoured to share my experience from working with the Trust Fund for Victims at the ICC.
The Rome Statute has been a revolutionary instrument in many respects. One of them being the fact that for the first time in the history of the international criminal law, victims have been considered as something more than possible witnesses that might need special protection during the proceedings. The Rome Statute recognises victims as a party to the criminal proceedings, but it also specifically recognises the right of the victims of serious crimes to get reparations for the harm caused to them.
According to the Rome Statute, a special body has been created within the ICC for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims – the Trust Fund for Victims. The Trust Fund has been vested with a twofold mandate: 1) to implement Court-ordered reparation awards directed against a convicted person; 2) to enable victims of crimes under investigation of the ICC and their families who have suffered physical, psychological and/or material harm, to receive assistance separately from, and prior to, a conviction by the Court.
The key difference between the assistance and reparations mandates is that reparations are linked to accountability, arising from individual criminal responsibility of a convicted person, whereas the assistance mandate is not.
There are good reasons why the TFV must deviate from only implementing the court-ordered reparations. As underlined in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted by the UN GA already in 2005, a person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted. The ICC as any other criminal jurisdiction concentrates on establishing the individual responsibility of an indicted person. This means that within the criminal process only a fraction of actual situation victims might be embraced. It is also inevitable, that criminal proceedings take time, sometimes a lot of time. At the same time, the lives of the victims cannot be put on hold until one day justice is finally delivered, and the court can finally decide on the reparations. … and then there is always a chance that the defendant will be acquitted – an acquittal unfortunately does not mean that the victims have not suffered.
Another issue is the disproportionate lack of attention and finances available to victims as compared to the perpetrators. So far, the system of international criminal law has mainly concentrated on retribution and left the reparative justice orphaned. This attitude is mirrored both in the ASP budget debates, the structure of the ICC and the statements of the representatives of the Court. E.g judges van den Wyngaert and Morrison expressed in the Bemba acquittal appeal: “It is emphatically not the responsibility of the International Criminal Court to ensure compensation for all those who suffer harm as a result of international crimes. We do not have the mandate, let alone the capacity and the resources, to provide this to all potential victims in the cases and situations within our jurisdiction…” It poses a question whether the ICC can uphold its image as the court that is victim’s orientated, whether the ICC system needs to take a stronger focus on victims as a parallel to the investigation and prosecution of the perpetrators. I’m talking about the need to discuss strengthening of the TFV, which is the main arm of the ICC system to effectuate restorative justice to the victims.
The TFV of course cannot operate alone, but in an integrated manner with the Registry, the Cambers, and the Office of the Prosecutor. That is true both for court-ordered reparations, as well as for the country programmes that the TFV can conduct in situation-countries and that many states ask the Fund to carry out. With these programmes the TFV can deepen and extend the footprint of the ICC in ICC situation countries – for example, in Côte d’Ivoire and CAR, the Fund is conducting programmes even though the relevant accused persons were acquitted for lack of proof that they were responsible for the crimes that occurred. But the crimes occurred, and victims demand justice. Therefore, in Côte d’Ivoire the TFV is the only body active in relation to bringing justice to the victims for the atrocity crimes – and with a lot of impact.
The TFV can bring in its expertise early in ICC situation countries to help establish reparation mechanisms. If they exist, the TFV can use them once a reparation order is issued, often years after the start of an investigation. I recall in this context that rule 98(4) of the ICC RPE provides that the Chamber can, through the TFV, request national or international organisations to implement reparations. Therefore, the TFV has a mandate to work early on for this goal.
In addition, early programmes in situation countries can be accessible for victims that had contact with the Court and address incidents or injuries that may be of great significance to the people but that the Prosecutor may not have chosen to pursue. This is more so relevant, if no other national reparation mechanism has yet been established in this country. These are not humanitarian programmes that the TFV is running, but programmes that fall within the context of justice, for reparations require, as a precondition, that the beneficiaries have suffered of Rome Statute crimes.
It is important for the Court, in particular the Registry and the Prosecutor to work with the Trust Fund for Victims to make use of its expertise in situation countries and to increase the visibility of the TFV.
TFV and ICC in general act based on the overarching principle of complementarity. This also affects directly the operations of the TFV. The possibility of the TFV to step in either through court-ordered reparations or through its broader programmes to repair the damages suffered by the victims in situation countries does not replace or displace a State’s own responsibility to repair. They may complement and/or strengthen a government’s own reparative programmes or activities, if possible, in alignment with other efforts of the international community.
Both the reparations brought to the victims through the self-initiated programmes of the TFV, and those ordered by the Chambers, have so far been solely based on voluntary contributions of states. It is paramount that states continue and enhance their support for the TFV, as the number of situations where the TFV needs to be engaged, has been increasing. At the same time also, the reparations awarded by the Chambers have grown considerably.
In recent decades, there has been a strong focus of the international community to bring about a credible system of criminal responsibility for the atrocity crimes. While there is still a lot more to be done in that respect, it is also high time to start putting much more emphasis on the other side of justice – namely the need to address the harm caused to the victims of atrocity crimes. This is something that must not only come second to the investigation, prosecution and conviction, but should be considered as an equal priority.
Thank you.