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ARTICLES

Victim Redress andInternational Criminal Justice

Competing Paradigms, or Compatible Forms

of Justice?

Conor McCarthy*

Abstract

A growing number of international criminal justice institutions, most notably the

International Criminal Court, have been equipped with a regime of victim redress.

In the coming years, alongside international legal regimes based on principles of

state responsibility, international criminal law may perhaps provide a significant

legal framework through which the harm suffered by victims of atrocities can be re-dressed. However, incorporating a regime for dealing with questions of victim redress

within the framework of an international criminal justice institution is not, it is

argued, an obvious extension of ‘international criminal justice’, the traditional

focus of which has been the prosecution and punishment of individuals and not ad-

dressing the consequences of their conduct. Instead, the consequences of conflict

have traditionally been dealt with at the interstate level through lump sum settle-

ments, claims processes such as the Eritrea-Ethiopia Claims Commission or, on oc-

casion, under the auspices of international human rights mechanisms, all based on

principles of state rather than individual responsibility. But does the creation of aregime of victim redress in the context of international criminal law have a contribu-

tion to make to the administration of criminal justice at the international level?

With this question in mind, the article critically examines whether and how the in-

corporation of a regime of victim redress within the framework of an international

criminal justice institution may be justified in principled terms.

* Visiting Fellow, British Institute of International and Comparative Law. The author wishes tothank Sandesh Sivakumaran, Marko Milanovic and Jordan Blair Woods for comments on an

earlier draft of this article. Any errors remain the responsibility of the author. The present art-

icle develops ideas discussed in a book by the present author entitled Reparations and

Victim Support in the International Criminal Court (Cambridge University Press, 2012).

[[email protected]]

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Journal of International Crimi nal Justice 10 (2012), 351^372 doi:10.1093/jicj/mqs014Advance Access publication 29 March 2012

Oxford University Press, 2012, All rights reserved. For permissions, please e mail: [email protected]

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1. Introduction

In Obrenovic¤, a trial concerning the massacre of Bosnian Muslims at

Srebrenica, the International Criminal Tribunal for the former Yugoslavia

(ICTY) Trial Chamber observed that ‘[i]ndividual accountability for the crimescommitted and commensurate punishment is the aim of criminal proceedings

involving such grave crimes’.1 The idea that international criminal proceedings

are, and should be, focused upon the punishment of individual perpetrators

has been prevalent in international criminal law since its inception. In perhaps

the most famous passage of its judgment, the International Military Tribunal

(IMT) at Nuremberg declared that ‘crimes against international law are com-

mitted by men, not by abstract entities, and only by punishing individuals

who commit such crimes can the provisions of international law be enforced’.2

The legal framework created by the Rome Statute of the InternationalCriminal Court (ICC) has, however, supplemented this traditional approach.

Alongside procedures for the trial and punishment of individuals, the Statute

provides for two distinct forms of victim redress, namely reparations ordered

by the Court and support provided to victims independently by the Trust

Fund established by Article 79 of the Statute. As to the first of these, Article

75(2) of the Statute empowers the Court to make a reparations order against

a convicted person, specifying reparations to, or in respect of, victims.

The Trust Fund is also a crucial element of the Statute’s regime for victim re-

dress. The Trust Fund may use its resources to provide ‘physical, psychologicalrehabilitation and/or material support’3 to those who have suffered ‘physical,

psychological and/or material harm as a result of crimes [within the jurisdic-

tion of the Court]’.4 Such support may be furnished regardless of whether an

individual in a particular situation before the Court has been convicted by it.5

In addition to resources derived from the forfeited property of perpetrators,

the Trust Fund may receive voluntary contributions from a range of sources

including governments, international organizations, individuals, corporations

and other entities. These resources may be used by the Fund to supplement re-

sources available for Court-ordered reparations.6

A growing body of literature has developed, in particular in respect of the

Rome Statute’s regime of victim redress,7 dealing, for example, with how the

1 Judgment, Obrenovic¤ (IT-02-60/2-S),Trial Chamber I, 10 December 2003, x 46.

2 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14

November 1945-1 October 1946, vol. I (International M ilitary Tribunal, 1947), at 223.

3 Regulation 49, Regulations of the Trust Fund for Victims (TFV Regulations).

4 Regulation 48, TFV Regulations.

5 As to when victim support may be provided by the Trust Fund, see Regulation 50, TFV

Regulations.

6 Regulation 56, TFV Regulations.7 Notable contributions to this debate include L. Zegveld, ‘‘‘Victims’’ Reparations Claims and

International Criminal Courts’, 8 Journal of International Criminal Justice ( JICJ ) (2010) 79;

C. Ferstman, ‘The Reparation Regime of the International Criminal Court: Practical

Considerations’, 15 Leiden Journal of International Law (2002) 667; and E. Kristja ¤ nsdo ¤ ttir,

‘International Mass Claims Processes and the ICC Trust Fund for Victims’, in C. Ferstman et al.

352 JICJ 10 (2012), 351^372


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regime will operate in practice, considering the practical and legal obstacles it

will face and exploring emergent practice. However, the interposition of a

regime of victim redress within the institutional framework of an international

criminal tribunal, a central task of which is the prosecution and punishment

of individual perpetrators, raises an important underlying issue of principle.This is whether, in conceptual terms, such a regime has a principled role in

the administration of international criminal justice, the traditional focus of

which has been on the prosecution and punishment of individuals rather

than addressing the consequences of their conduct.

2. Individual Punishment and the Traditional

Conception of International Criminal JusticeThe idea of contributing to ‘justice for victims’ is now commonly invoked as

offering explanatory force for the role of international criminal law and its insti-

tutions and, in recent years, a substantial body of academic literature has de-

veloped exploring international criminal law from the perspective of victims.8

For their part, international criminal justice institutions also often invoke the

language of justice for victims. In opening the prosecution’s case in Katanga

and Chui, the ICC Deputy Prosecutor, declared: ‘[O]ur mandate is justice, justice

for the victims: the victims of Bogoro; the victims of crimes in Ituri; and the

victims in the DRC.’9 Although prevalent in modern discourse concerning inter-

national criminal justice, the idea of bringing ‘justice to victims’ was not of cen-

tral concern to international criminal law at the formative stage of its

development. Instead, international criminal law developed at a time when

the position of individuals who suffered harm as a result of violations of

international law was very limited within the international legal system.

(eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Martinus

Nijhoff, 2009) 167.

8 Monographs on the topic include M. Funk, Victims Rights and Advocacy at the International Criminal Court (Oxford University Press, 2010); and G. Musila, Rethinking International

Criminal Law: Restorative Justice and the Rights of Victims in the International Criminal Court

(Lambert Academic Publishing, 2010). Scholarly articles include S. Karstedt, ‘From Absence to

Presence, From Silence to Voice: Victims in Transitional Justice Since the Nuremberg Trials’, 17

International Review of Victimology (IRV ) (2010) 9; R. Henham, ‘Some Reflections on the Role of

Victims in the International Criminal Trial Process’, 11 IRV (2004) 1; and R. Henham,

‘Conceptualising Access to Justice and Victims’ Rights in International Sentencing’, 13 Social

and L egal Studies (2004) 27. See also contributions to the victims’ symposium in 8 JICJ (2010)

75, and contributions, on the same topic, in 16 IRV (2009) 123, and in 91 International Review

of the Red Cross (2009) 215.

9 ICC Press Release, ‘ICC Cases an Opportunity for Communities in Ituri to Come Together andMove Forward’, (ICC-OTP-20080627-PR332), 27 June 2008, available online at http://www.icc-

cpi.int/menus/icc/structure%20of%20the%20court/outreach/democratic%20republic%20of

%20the%20congo/press%20releases/icc%20cases%20an%20opportunity%20for%20

communities%20in%20ituri%20to%20come%20together%20and%20move%20forward

(visited 18 January 2012).

Victim Redress and International Criminal Justice 353


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Placing the position of victims in international criminal law in historical

context, the following discussion charts the position of victims both within

the classical framework of international law and within the framework of inter-

national criminal law. Through exploration of this material, it is argued that

the incorporation of a regime of victim redress within the framework of aninternational criminal tribunal is not an obvious extension of international

criminal law but rather represents a potentially significant shift in the way in

which criminal justice at the international level is conceptualized. This raises

the question as to whether there exists a coherent principled justification for

such a potentially significant departure from the way in which international

criminal law has traditionally been conceived; a matter that will be addressed

in the succeeding sections of this article.

A. The Position of ‘Victims’ within the Classical Framework of

International L aw

The starting point for considering the evolving position of victims in interna-

tional criminal law must be the international legal context prevailing during

the formative stage of the field’s development in the period immediately follow-

ing the Second World War. At this time the very concept of a ‘victim’ (in the

sense of a private individual with a legal status under international law by

virtue of having suffered injury or harm in consequence of a violation of its

rules) was largely unknown to the international legal system.

Summarizing the position of individuals who suffered injury through viola-

tion of international law, Dionisio Anzilotti, who sat on the International

Court of Justice at the time of its seminal Factory at Chorzo¤w judgment, wrote

that ‘the conduct of a state, however contrary it may be to the rules of interna-

tional law, can in no circumstances give rise to an individual right to repar-

ation in respect of harm suffered’.10 Within the classical framework of

international law it was for the state to protect the interests of its citizens on

the international plane where they suffered injury by violation of international

law through acts attributable to a foreign sovereign.11 In accordance with this

principle, the general position under international law was (and in many

fields of international still remains) that where individuals suffer harm as a

result of a violation of the rules of international law the ‘injury’ resulting is

not that of the harmed individual but rather that of the state. Thus in espous-

ing the claim of a national and seeking reparation for the harm he or she has

10 D. Anzilotti, La responsabilite¤ internationale des e¤tats a raison des dommages soufferts par des e¤tran-gers, 13 Revue ge¤ne¤rale de droit internationale public (1906) 5, at 5, translation by present author

from original French text which reads: ‘La conduite d’un Etat, toute contraire qu’elle soit au droit

internationale ne saurait jamais donner naissance a ' un droit de l’individu a la re¤ paration du dommage

souffert.’

11 E. Vattel, The Law of Nations, Vol. II (J. Newbury, 1759) Ch. VI.

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suffered, a state is asserting its own rights on the international plane and not

those of the natural or legal person in question.12

Exceptions to this general framework have only developed, over time, in a

limited number of fields of international law; a process which began most not-

ably through the creation of the international human rights framework in theperiod following the Second World War. The development of the idea that an in-

dividual could acquire a legal status under international law by reason of

having suffered harm through violation of certain of its rules was slow to take

hold. The Universal Declaration of Human Rights adopted by the United

Nations General Assembly in 1948,13 (some two years after, the judgment of

the IMT in Nuremberg had affirmed the principle of individual criminal re-

sponsibility under international law) provided a declaration of the rights of in-

dividuals under international law but was merely hortatory in character and

did not purport to confer any particular status under international law uponthose who were harmed by violation of the rights declared therein.

It was not until the European Convention of Human Rights (ECHR) entered

into force in 1953 that those who had suffered harm as a result of a violation

of international law were first recognized as having the status of ‘victim’

within an international legal regime and were, in certain circumstances, ac-

corded a limited number of rights to protect their own interests, on this basis.

Article 25(1) of the ECHR (now amended) provided that the now defunct

European Commission of Human Rights ‘may receive petitions ::: from any

person, non-governmental organisation or group of individuals claiming to bethe victim of a violation ::: of the rights set forth in this Convention provided

[that the state in question] has declared that it recognizes the competence of

the Commission to receive such petitions’. Similar provisions were later incor-

porated into the American Convention on Human Rights14 in 1969 and now

also in the African Charter on Human and Peoples’ Rights15 and its Optional

Protocol on the Establishment of an African Court on Human Rights.16 At the

level of universal human rights protection the 1966 Optional Protocol to the

International Covenant on Civil and Political Rights (ICCPR)17 and the

12 Mavrommatis Palestine Concessions (Greece v. United Kingdom), 1924 PCIJ Series A, No. 2, at 12.

See also Draft Articles on Diplomatic Protection, annexed to GA RES. 62/67, 6 December 2007

(‘Articles on Diplomatic Protection’).

13 Universal Declaration of Human Rights, adopted in GA Res. 217 A (III), 10 December 1948.

14 American Convention on Human Rights, 22 November 1969, 1144 UNTS 123. Art. 45(1) permits

individuals to petition the American Commission on Human Rights where a State Party to

the American Convention has declared the Commission competent to receive and consider

communications from individuals. In contrast to the position under the ECHR, under Art.

61(1) of the American Convention only the Commission and States Parties have the right to

submit a case to the Inter-American Court of Human Rights.15 See Arts 55 and 56 of the African Charter on Human and Peoples’ Rights, adopted on 27 June

1981, 217 UNTS 1520.

16 See Art. 5 of the Optional Protocol, 9 June 1998.

17 Optional Protocol to the International Covenant on Civil and Political Rights, 16 December

1966, 171 UNTS 999.



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subsequent raft of optional supervisory mechanisms to other universal human

rights treaties18 confer a status under international law on those harmed by

violation of the treaty in question as ‘victims’ and permits such persons to com-

plain to the relevant human rights monitoring body where the State Party

against which a complaint is made has ratified the relevant protocol or madethe necessary declaration pursuant to the terms of the Convention.

The concept of a ‘victim’, as a legally meaningful status, has been even

slower to take root in international humanitarian law. Although individuals

were often the ultimate beneficiaries of the obligations imposed by interna-

tional humanitarian law, these interests have traditionally been protected and

enforced on a classic interstate basis. The Geneva Conventions of 1949 are

striking for the absence of any reference to the concept of victims of war,

much less provisions conferring any general status or rights upon such per-

sons. Although the two 1977 Additional Protocols to the Geneva Conventionsof 1949 do refer, on a number of occasions, to ‘war victims’, this terminology

is generally used to denote those affected by conflict in general, rather than

to refer to those persons injured by violations of the laws of war as such

and, as with the 1949 Geneva Conventions, no general rights or legal status is

conferred upon such persons.19

In sum, within the classical framework of international law, it was for states

to protect the interests of their nationals on the international plane and, if

they chose to do so, to intercede with other states to claim reparation in respect

of any harm wrongfully inflicted upon them. In the period following theSecond World War individuals became the holders of limited rights and, in the

domain of international criminal law, the bearers of certain obligations under

international law. For its part, international criminal law developed at a time

during which the orthodoxy of the classical framework remained largely

intact, with the concept of a ‘victim’, in the sense of a private individual with

a recognized status under international law by virtue of having suffered

injury or harm in consequence of a violation of international rules, being lar-

gely unknown to the international legal order.

18 See e.g. Optional Protocol to the Convention on the Rights of Persons with Disabilities,

13 December 2006, adopted in GA Res. 61/106, 13 December 2006; Optional Protocol to the

Convention on the Elimination of All Forms of Discrimination Against Women, 6 October

1999, 83 UNTS 2131; Art. 22, Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, 18 December 2002, 237 UNTS 2375; and Art. 14,

International Convention on the Elimination of All Forms of Racial Discrimination, 21

December 1965, 195 UNTS 660.

19 In recent years, it has been argued that individuals have obtained an individual right to repar-ation where they are harmed by violations of international humanitarian law. Whether this is

the case or not remains a matter of controversy. See F. Kalshoven, ‘State Responsibility for

Warlike Acts of the Armed Forces’, 40 International and Comparative Law Quarterly (1991) 827;

and C. Greenwood, ‘International Humanitarian Law (Laws of War)’, in F. Kalshoven (ed.), The

Centennial of the First International Peace Conference (Kluwer, 2000) 161, at 250.

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B. Victims and the Genesis of International Criminal Law

It was in the context of the traditionally limited position of individuals injured

by violations of international law that international criminal law and its most

fundamental tenet, individual criminal responsibility under international law,developed. In keeping with this framework, for the leading intellectual propon-

ents of international criminal law at the formative stage of its development,

the individuation of responsibility under international law was not advocated

as part of an abstract notion of victim’s justice but rather was, in large meas-

ure, seen as a means of attenuating the limitations of a system of law trad-

itionally based on the responsibility of states rather than individuals.

Summarizing the classic position regarding the enforcement of the laws of

war, Hans Kelsen, writing in 1943, explained that ‘the difference between the

punishment provided by national law and the specific sanctions of interna-

tional law:::

consists of the fact that punishment in criminal law constitutes

individual responsibility, whereas the specific sanctions of international law

constitute collective responsibility.20 The effect of this, according to Kelsen,

was that,‘since the demand to punish war criminals aims at the individual re-

sponsibility of the [Axis leaders] who by their own conduct have performed

the crimes, it seems impossible to satisfy this demand on the basis of general

international law’.21 Moved by the events of the mid-20th century, international

law was not, however, standing still. In November of 1945 the surviving Nazi

leadership faced trial at Nuremberg pursuant to the London Charter22 and

within a year most were convicted and sentenced for their individual role inthe atrocities perpetrated prior to and during the Second World War.

Even prior to the events of the Second World War, however, prominent publi-

cists had viewed with dissatisfaction the orthodox position that the laws of

war and the rules of jus ad bellum were to be enforced exclusively through the

imposition of obligations upon states rather than individuals. Commenting on

the effect of this position, John Westlake, Whewell Professor of International

Law at the University of Cambridge and a founding member of the Institut de

Droit international , wrote that it ‘may weaken the sense that the action of a

state is the action of those within it who help to guide it’.23

He observed that‘the same tone of thought will again be evil if it allows us to forget that ::: the

action of our state is that of ourselves’.24

This critique was later forcefully adopted by Sir Hersch Lauterpacht.

Lauterpacht played an important role in the process that culminated in the

20 H. Kelsen,‘Collective and Individual Responsibility in International Law with Particular Regard

to the Punishment of War Criminals’, 31 California Law Review (1943) 530.

21 Ibid . See also G. Schwarzenberger, ‘The Judgment of Nuremberg’, 21 Tulane Law Review (1947)

329, at 349.

22 London Agreement for the Prosecution and Punishment of the Major War Criminals of theEuropean Axis Powers and Charter of the International Military Tribunal, 8 August 1945, 8

UNTS 279.

23 L. Oppenheim (ed.), The Collected Papers of JohnWestlake on Public International Law (Cambridge

University Press, 1914), at 411.

24 Ibid .



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creation of the London Charter. In the months prior to the International

Conference on Military Trials in 1945 (‘London Conference’) and during the

conference itself he held discussions on the subject with Robert Jackson, Chief

Justice of the US Supreme Court and representative of the United States to the

London Conference. His ideas were undoubtedly highly influential in thedesign of the military trials and in the development of international criminal

law more generally. Indeed, the denomination of ‘crimes against humanity’,

only occasionally used in the earlier half of the 20th century, was included in

Article 6(c) of the London Charter as a result of a suggestion put forward by

Lauterpacht himself.25

Lauterpacht’s central argument was that international criminal law provided

a means of ensuring that individuals are not shielded by a state’s responsibility

for decisions and actions that were ultimately theirs and that by imposing obli-

gations and, where necessary, punishment on individuals, the rules of interna-tional law could be better enforced. He argued that ‘[i]t is the current

personification of the State, which artificially distinguishes between the associ-

ation and the members comprising it, that has been a contributing factor in

suggesting the anarchical principle of legal and moral irresponsibility’.26 He

warned that ‘[t]here is little hope for international law if an individual, acting

as an organ of the state, can in violation of international law, effectively shelter

behind the abstract and artificial notion of the state’.27 According to

Lauterpacht such a course would permit those associated with a state to ac-

quire ‘a degree of immunity’.28

‘This’, he cautioned,‘would be an immunity cov-ering acts which, because they are collective and aided by the nearly infinite

power of a modern state, could unleash virtually unlimited destructive

power’.29 In support of his position Lauterpacht also highlighted the role that

international criminal law and individual punishment could play in the en-

forcement of the rules of international law through deterrence, arguing that

individual ‘punishment, in contrast to [interstate] reparation, satisfies ::: the

need for guarantees against future infractions of the law’.30 For Lauterpacht

the conclusion was clear: ‘The rules of warfare ::: are binding not upon imper-

sonal entities, but upon human beings’,31

a statement that would later famouslybe echoed in the judgment of the IMT itself.32

A central preoccupation for those who provided intellectual support for the

development of international criminal law was therefore the question of state

25 M. Koskenniemi, ‘Hersch Lauterpacht and the Development of International Criminal Law’, 2

JICJ (2004) 810, at 811.

26 H. Lauterpacht, ‘Re ' gles ge ¤ ne ¤ rales du droit de la paix’, 62 Recueil des cours (1937) 95, at 351

(translation by author).

27 Ibid ., at 352 (translation by author).

28 Ibid ., at 350 (translation by author).29 Ibid. (translation by author).

30 Ibid ., at 352 (translation by author).

31 H. Lauterpacht,‘The Law of Nations and the Punishment of War Crimes’, 21 BritishYear B ook of

International Law (1944) 58, at 64.

32 Supra note 2, at 223.

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sovereignty and its limitations. International criminal law, in particular the

related concepts of individual responsibility and punishment were seen as

ways of addressing the limitations of a system of law based on the responsibil-

ity of states by providing a means of better enforcing certain fundamental

rules of international law. In this sense international criminal law was concep-tualized as a system of law little concerned with victims but rather one which

was concerned with perpetrators and the enforcement of the rules of interna-

tional law itself.

For their part, the interests of those individuals who had been harmed by

violation of international law, if they were to be protected by the international

legal system at all, were protected by the state of nationality of those who

were injured or killed under traditional principles of diplomatic protection.33

To this end, numerous lump sum settlement agreements and claims processes

were established (albeit largely on a one-sided basis) in the years followingthe Second World War to address the harm suffered by states34 including that

of their injured nationals.35 In a system of law based on state sovereignty, it

was for each state to look after those of its nationals who had been harmed

by violations of international law rather than such matters being dealt with

in the context of proceedings dealing with the responsibility of individuals

under international law.

The creation of a regime of victim redress in international criminal law to

deal with the harm suffered by individual victims is not therefore an obvious

extension of international criminal law but rather represents a potentially sig-

nificant shift in methodology for the administration of international criminal

justice. This raises a fundamental question as to the purpose to be served by

such a regime and, in particular, whether it has a meaningful principled role

in the administration of criminal justice at the international level.

3. A Principled Role for Victim Redress as Part of the

System of International Criminal Justice?

It is convenient at this juncture to outline the essential features of the ICC’s

regime of victim redress. Alongside procedures for the trial and punishment

of individuals, the Statute provides for two distinct forms of victim redress,

33 See E. Borchard, The Diplomatic Protection of Citizens Abroad: The Law of International Claims

(Banks Law Publishing, 1919). See also Articles on Diplomatic Protection.

34 See generally, P. D’Argent, Les re¤ parations de guerre en droit international public: la responsabilite¤

internationale des E¤tats a ' l’e¤ preuve de la guerre (L.G.D.J., 2002) and R. Lillich, and B. Weston,

International Claims: Their Settlement by Lump-Sum Agreement, vol. I (University Press of

Virginia, 1975). For a voluminous body of state practice, see J. Henckaerts and L. Doswald-Beck(eds), Customary International Humanitarian Law , Vol. II (Cambridge University Press, 2005), at

3530 et seq.

35 Under the law of diplomatic protection, the injury of the nationals of a state is assimilated to the

‘injury’ of that state for the purposes of international law. See C.F. Amerasinghe, Diplomatic

Protection (Oxford University Press, 2008).



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namely reparations ordered by the Court and support provided to victims inde-

pendently by the Trust Fund established by Article 79 of the Statute.

Reparations ordered against a perpetrator may be supplemented by the Trust

Fund with the resources at its disposal.36

It is important to note that the possibility of victim redress under the Statuteis not, however, limited to victims of crimes the perpetrators of which have

been prosecuted and found guilty by the Court. Crucially, the Trust Fund also

possesses an independent power to provide support to victims outside the con-

text of Court-ordered reparations where the Board of Directors of the Trust

Fund ‘considers it necessary’,37 the Trust Fund may use its resources to provide

‘physical, psychological rehabilitation and/or material support’38 to those who

have suffered ‘physical, psychological and/or material harm as a result of

crimes [within the jurisdiction of the Court]’.39 Resources for the provision of

this form of redress are derived from voluntary contributions from a range of sources including governments, international organizations, individuals, cor-

porations and other entities, as well as from funds derived from fines or the for-

feited proceeds of crime.40

Procedures for victims to obtain redress in the context of criminal proceed-

ings are familiar to many national legal systems, both in civil law jurisdictions

which make available to victims the possibility of participating in criminal pro-

ceedings as a partie civile to seek reparation41 and certain common law juris-

dictions, like the UK, which empower criminal courts to award reparation

to victims in the absence of their participation.42

This, however, does notmean that the transposition of similar such arrangement to the distinct con-

text of international criminal justice is necessarily appropriate or justified.

International crimes are often characterized by mass participation and victim-

ization. The scale and gravity of crimes typically prosecuted at the interna-

tional level is also very different from the kind of conduct in respect of which

reparation tends to be awarded in domestic criminal proceedings. In conse-

quence a much smaller proportion of perpetrators are prosecuted internation-

ally and only a fraction of victims are likely to be able to obtain some form of

redress. In addition, the institutional framework which exists at the interna-tional level is also quite different from that which exists domestically, with the


37 Regulation 50 (a)(i), TFV Regulations.



40 See Art. 77(2) ICCSt.

41 For a detailed comparative survey see J.R. Spencer and M. Delmas-Marty, European Criminal

Procedures (Cambridge University Press, 2002). See further J. Larguier, ‘The Civil Action for

Damages in French Criminal Procedure’, 39 Tulane Law Review (1964) 687; P. Campbell, ‘A

Comparative Study of Victim Compensation Procedures in France and the United States: AModest Proposal’, 3 Hastings International and Comparative Law Review (1979) 321; C. Howard,

‘Compensation in French Criminal Procedure’, 21 The Modern Law Review (1958) 387; and

P. Lapie, ‘The Partie Civile in the Criminal Law of France’, 10 Journal of Comparative Legislation

and International Law (1928) 33.

42 See e.g. Powers of Criminal Courts (Sentencing) Act 2000, ss 130^132.

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ICC Trust Fund being able to supplement any reparation provided by a perpet-

rator and also being able to provide redress outside the context of criminal

proceedings.

In light of these factors the creation of a regime of victim redress in the con-

text of a criminal justice institution operating at the international level re-quires distinct examination. The purpose of the following discussion is

therefore to critically examine whether there are ways in which the inclusion

of a regime of victim redress in the Rome Statute could be justified in prin-

cipled terms notwithstanding the fact that a central (arguably the central)

task of the ICC, is to prosecute and, where appropriate, punish individual per-

petrators brought before it.

A. The Irrelevance of Retributivism

Although criminal justice processes, including those concerned with crimes

under international law, are often justified in retributivist terms,43 such ac-

counts provide little by way of justification for the creation of a regime of

victim redress of the form envisaged in the ICC. As regards reparations, under

the Rome Statute these are not regarded as punitive in character. On the con-

trary, the Statute expressly distinguishes the role that the reparations provi-

sions play within the scheme of the Statute from its penalty provisions. Unlike

Article 77 (which concerns applicable penalties), Article 75 (addressing the

Court’s power to award reparations) is not placed in Part 7 of the Statuteentitled ‘Penalties’, but is instead placed in Part 6 of the Statute, which deals

with matters relating to trial proceedings.

The non-punitive character of reparations is confirmed by the negotiating

history of the Statute, which indicates that the decision not to treat reparations

as a penalty under the Statute was a conscious decision on the part of those

who negotiated it. During the Rome Conference and in the Preparatory

Committee negotiations prior to the Rome Conference, France and the UK

were the states most active in pursuing the inclusion of reparations provisions

within the Statute. In 1997, the UK proposed a text to the PreparatoryCommittee, which addressed reparations to victims.44 It suggested that repar-

ations include a ‘monetary award’ and that this would comprise ‘a punitive

element, a compensatory element or both’. In February 1998, France and the

43 Retribution can be defined as a form of criminal justice involving the infliction of punishment

upon a perpetrator who is considered to be deserving of punishment. In the literature in this

area a number of different theories have been put forward to explain when and why punish-

ment may be deserved. See R. Nozick, Philosophical Explanations (Harvard University Press,

1981), at 374^384; D. Cooper, ‘Hegel’s Theory of Punishment’, in Z. Pelcynski (ed.), Hegel’s

Philosophy: Problems and Perspectives (Cambridge University Press, 1971) 151; and A. VonHirsch, ‘Punishment, Penance and the State’, in M. Matravers (ed.), Punishment and Political

Theory (Hart Publishing, 1999) 48, at 69.

44 Proposal of the UK to the Preparatory Committee (A/AC.249/1997/WG.4/DP.13), 10 December

1997. See also Proposal of France to the Preparatory Committee (A/AC.249/1997/WG.4/DP.3), 5

December 1997.



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UK submitted a joint proposal to the Preparatory Committee, which also

included an option for a punitive reparations award.45 The possibility of repar-

ations representing an applicable penalty under the Statute was subsequently

retained in the Draft Statute published by the Preparatory Committee immedi-

ately prior to the Rome Conference.46 At the Conference itself, the WorkingGroup on Penalties produced a proposal that reparations be included as a form

of penalty under the Statute.47 However, around the same time, France and the

UK submitted a further proposal on reparations that did not specify a punitive

element to reparations awards.48 Shortly thereafter, the Working Group on

Penalties revised its provisions on applicable penalties and the reference to rep-

arations was removed. A power to impose the penalty of a fine was, however,

created.49 The travaux of the Rome Statute therefore confirm a textual inter-

pretation of the Statute that its reparations regime is not punitive in character.

As regards the redress provided independently by the ICC Trust Fund, retri-bution also provides little by way of principled explanation for the work of the

Trust Fund for Victims, since the Fund’s victim support arrangements will be

funded almost exclusively through the voluntary contributions of third parties

rather than through the imposition of financial burdens upon perpetrators.

Thus, although there may be cases where substantial financial burdens can be

imposed upon a perpetrator, retribution, that is to say the infliction of punish-

ment upon a perpetrator because it is seen as deserved, cannot provide the basis

for a principled justification of the role to be played by the Statute’s regime of

victim redress. If a principled justification for the role of the Rome Statute’sregime of victim redress is to be found it is necessary to look elsewhere for it.

B. The Insufficiency of Restorative Justice as a Principled Justification

Although reparative (or ‘restorative’) justice50 is not without use in under-

standing the role of victim redress as part of a system for the administration

of international criminal justice, on its own it is inadequate in providing a co-

herent and convincing principled justification for the creation of the Rome

Statute’s regime of victim redress.

45 Proposal by France and the UK to the Preparatory Committee (A/AC.249/1998/WG.4/DP.19), 10

February 1998.

46 Draft Statute for the International Criminal Court (A/CONF.183/2/Add.1), 14 April 1998.

47 Committee of the Whole, Rome Conference, Working Group on Penalties, Chairman’s Working

Paper on Article 75 (A/CONF.183/C.1/WGP/L.3), 30 June 1998.

48 Committee of the Whole, Rome Conference, Proposal by France and the UK (A/CONF.183/C.1/

WGPM/L.28), 26 June 1998.

49 Committee of the Whole, Rome Conference, Report of the Working Group on Penalties

(A/CONF.183/C.1/WGP/L.14), 4 July 1998.50 On reparative justice theory see A. Eser et al. (eds), Reparation in Criminal Law: International

Perspectives (Max Planck Institute, 1996); and G. Davis, Making Amends: Mediation and

Reparation in Criminal Justice (Routledge, 1992). See further L. Zedner, ‘Reparation and

Retribution: Are they Reconcilable?’ 75 The Modern Law Review (1994) 228, and R. Barnett,

‘Restitution: A New Paradigm of Criminal Justice’, 87 Ethics (1978), at 279^301.

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Reparative justice theory originally grew out of a concern that the state and

its institutions had monopolized responses to crime, turning them into a

purely public matter and thereby failing to address the full complexity of the

harmful consequences to which crimes give rise.51 For proponents of reparative

justice theory, an adversarial trial leading to the punishment of a perpetratoris seen as an inadequate response to this harm. It is argued that the traditional

outcomes of the criminal justice process, in particular the custodial punish-

ment of a perpetrator, are more concerned with society’s needs, most obviously

for incapacitation and deterrence, than with addressing the harm suffered by

victims as a result of a perpetrator’s conduct. In consequence, trial and punish-

ment, on their own, are said to take insufficient account of, and to respond in-

adequately to, the needs of the victim, the character of the harm done to that

victim and the complexity of the harm done to wider social bonds by the trans-

gressor’s conduct. To ensure that victims’ needs are properly addressed, repara-tive justice theory asserts that a crime should not be treated merely as a

wrong against an abstract community requiring societal sanction but that it

should also be dealt with as a dispute between transgressors and victims as

part of a process in which the relationships between victims, offenders and so-

ciety are restored through the criminal justice process, thereby repairing the

social fabric that has been harmed by the crime.52 Restoration need not neces-

sarily be done by means of reparation (or even in the context of a criminal

trial).53 In this sense restorative justice is a theory of ends rather than means.

Indeed, a criminal justice system in which reparation is provided is not neces-

sarily restorative in character. It can only properly be understood in restorative

terms if it seeks to, and is capable of, transforming relationships among vic-

tims, offenders and society in line with the ideals of reparative justice theory

by whatever means it employs to do this.

Although there is nothing which, in principle, prevents the ICC’s system of

victim redress from aspiring to the ideals of reparative justice, whether, given

the limitations under which the regime presently labours, the ambitious, trans-

formative requirements of reparative justice can be seen as providing a convin-

cing principled justification for the regime is more questionable. Within the

framework of the Rome Statute, even in a situation in which the victims

number in the tens of thousands and perpetrators are similarly numerous,

few individuals in practice are prosecuted, not least because of the immense

51 See N. Christie, ‘Conflicts as Property’, 17 British Journal of Criminology (1977) 1; Barnett, ibid.;

C.F. Abel and F.H. Marsh, Punishment and Restitution: A Restitutionary Approach to Crime and

the Criminal (Greenwood Press, 1984).

52 The idea of reparative justice does not necessarily exclude the use of retribution. See Zedner,

supra note 50, and also D. Watson and J. Boucherat, ‘Reparation for Retributivists’, in M. Wright

and B. Gallaway (eds), Mediation and Criminal Justice: Victims, Offenders and Community (Sage,

1989) 212.53 At the domestic level, criminal injuries compensation schemes may also assist in repairing the

harm caused to victims and, in so doing, provide a measure of justice. See generally M.

Groenhuijsen, ‘Public Damage Funds: European Developments and Some Comparative

Observations’, in E. Fattah and S. Parmentier (eds), Victim Policies and Criminal Justice on the

Road to Restorative Justice (Leuven University Press, 2001) 83.



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cost of international criminal proceedings. This serves substantially to limit the

potential for the Rome Statute’s reparations regime to meaningfully mediate

the relationship between transgressors and victims in line with reparative just-

ice theory.54 Furthermore, in a society divided or torn by ethnic or social con-

flict, the idea of restoring the social fabric of that society to that whichexisted before grave crimes were committed may often not be a particularly at-

tractive aspiration, even if it were possible by means of measures of reparation.

Finally, for the Court and its regime of victim redress to serve as a thera-

peutic system of social catharsis in line with reparative justice theory would

be an enormously ambitious undertaking and one for which the Court is not,

at present, well equipped.

Assessing and remedying the harm caused by crimes under international

law is a difficult enough task for a criminal court at the international level to

undertake. But taking responsibility for meaningful social catharsis throughreparation is a challenge of an altogether different order of magnitude. Given

the huge range of politicized polycentric issues that would have to be con-

sidered in devising programmes of victim redress apt to create appropriate so-

cially cathartic effects in the aftermath of mass violence, it is doubtful

whether judicial processes provide an appropriate forum in which such com-

plex issues could be determined.

Moreover, as regards resources, few perpetrators before the Court will have

anything like the kind of resources necessary to redress even a proportion of

the harm they have caused. As a result it will commonly be necessary for theTrust Fund to use resources derived from voluntary contributions to supple-

ment those otherwise available for reparations. As regards victim support, pro-

grammes for redress established under the Trust Fund’s independent mandate

will always be funded in this way. But the resources of the Trust Fund are

very limited indeed. Since its inception the Fund has received on average con-

tributions totalling somewhere between approximately five hundred thousand

and 2 million euros annually (with an increased level of contributions in

recent years),55 and the fund presently has in the region of 3.5 million euros

in reserves.56

The vast bulk of these funds have been contributed by StatesParties to the Rome Statute. In assessing the principled role served by the

Statute’s regime of victim redress these practicalities cannot be ignored. This

is all the more so with regard to the theory of reparative justice in which the

ends, in particular the creation of restorative effects, are as important, if not

more important, than the means employed in pursuit of those ends.

All in all, as things stand it is doubtful whether the regime is procedurally

equipped or financially resourced to play the kind of transformative, socially

cathartic role which would, even in modest terms, satisfy theories of reparative

54 See generally, A. Du Bois Pedain, Transitional Amnesty in South Africa (Cambridge University

Press, 2007), at 281 et seq.

55 See Report to the Assembly of States Parties on the Activities and Projects of the Trust Fund for

Victims for the Period 1 July 2009 to 30 June 2010 (ICC-ASP/9/2), 28 July 2010, at 7.

56 Ibid .

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justice. Thus, even if the regime were to aspire to some of the ideals of repara-

tive justice theory, the inability of the regime meaningfully to discharge the

kind of role reparative justice theory envisages, means that the ideals of re-

storative justice cannot alone provide a convincing principled justification for

the creation of the Rome Statute’s regime of victim redress.

C. An Expressivist Account of Victim Redress: The Role of Vindicative

Satisfaction and Moral Denunciation

A more modest account of the principled role served by a regime of victim re-

dress within the context of the ICC is, however, conceivable. Retributivist or

reparative accounts of criminal justice are not the only ways in which criminal

justice processes can be understood. Henry Hart, the prominent American pro-

fessor of criminal law of the 1950s, wrote that a ‘crime is ::: conduct which, if

duly shown to have taken place, will incur a formal and solemn pronounce-

ment of the moral condemnation of the community’.57 In its modern form, the

idea that criminal justice may serve an expressivist purpose is commonly

traced to a seminal article by Joel Feinberg, one of the leading social philoso-

phers of the 20th century,58 according to which the authoritative disavowal of

criminal conduct as well as vindication of the law and the rights of victims of

crime were among the important ideas to which symbolic expression is given

through criminal justice processes. Although not attracting the same degree

of attention as consequentialist or retributivist explanations for the function

of criminal justice processes, a notable literature has developed providing

expressivist59 (and more recently communicative)60 accounts of criminal just-

ice, as practiced at the national level. Recently, a discussion has also developed

which seeks to understand the punishment meted out by international crim-

inal tribunals in terms of its expressivist or communicative role.61

57 H.M. Hart, ‘The Aims of the Criminal Law’, 23 Law and Contemporary Problems (1958) 401.

58 J. Feinberg, ‘The Expressive Function of Punishment’, in J. Feinberg (ed.), Doing and Deserving:

Essays in the Theory of Responsibility (Princeton University Press, 1970) 95.59 R.A. Duff, Trials and Punishments (Cambridge University Press, 1986); R.A. Duff, Punishment,

Communication, and Community (Oxford University Press, 2001); A. von Hirsch, Censure and

Sanctions (Oxford University Press, 1993); A. Skillen, ‘How to Say Things With Walls’, 55

Philosophy (1980) 509; and I. Primoratz, ‘Punishment as Language’, 64 Philosophy (1989) 187.

60 Rather than merely giving expression to an idea or proposition, communicative accounts of

criminal justice argue that criminal justice processes should do so in a way that elicits an ap-

propriate response from perpetrators (or perhaps others) such as contrition or repugnance.

See Duff, Punishment, Communication and Community, supra note 59, and A. Duff,‘Punishment,

Retribution and Communication’, in A. Ashworth et al. (eds), Principled Sentencing: Readings on

Theory and Policy (Hart, 2009) 126.

61 See B. Wringe, ‘Why Punish War Crimes? Victor’s Justice and Expressive Justifications of Punishment’, 25 Law and Philosophy (2006) 159; R.A. Duff, ‘Authority and Responsibility in

International Criminal Law’, in S. Besson and J. Tasioulas (eds), The Philosophy of International

Law (Oxford University Press, 2010) 289; and A. Duff, ‘Can we Punish the Perpetrators of

Atrocities?’ in T. Brudholm and T. Cushman (eds), The Religious in Response to Mass Atrocities:

Interdisciplinary Perspectives (Cambridge University Press, 2009) 79.



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Although individual punishment is the conventional means by which recog-

nition or denunciation may be given expression there is no a priori reason

why this must be so. Other measures could communicate such ideas with simi-

lar force and clarity. For its part, victim redress, alongside individual punish-

ment, can readily serve an expressivist function. The provision of redressprovides with it recognition. This recognition is twofold. Certainly, it provides

recognition of the fact of the recipient’s injury or harm. But the provision of re-

dress has an expressive significance going beyond the mere recognition of suf-

fering. What is significant about a crime (and perhaps especially a crime

under international law) is not merely its harmful character but also its wrong-

ful character. Consequently, a ‘victim’ is not merely a person who has suffered

harm but someone who has suffered harm by virtue of a wrong.62 Providing

redress to the ‘victim’ of a crime, therefore, provides recognition that the vic-

tim’s position is not merely the result of some act of misfortune or hardshipbut that the harm they suffered resulted from a wrong. When viewed in this

light the provision of victim redress arguably also serves to provide some

degree of, what could be termed, ‘vindicative satisfaction’, to those to whom,

or in respect of whom, it is offered.

Indeed, in the specific context of the ICC, since such redress can only be pro-

vided to ‘victims’63 of the crimes under international law enumerated in the

Statute, the provision of redress represents an authoritative pronouncement

that the conduct to which the victim was subjected was a specific, and particu-

larly grave type of wrong, namely a crime under international law. Whenviewed in this light, the provision of victim redress arguably acquires an appre-

ciable symbolic significance alongside the practical assistance it provides to

victims of crimes under international law. In fact, given the limited resources

available for redress not to mention the collective harm often inflicted by

crimes such as genocide or persecution, it seems probable that collective

forms of redress will often be the mainstay of Court-ordered reparations and

victim support alike. Forms of redress like public commemorations, museums,

shrines, public monuments and the establishment of programmes to aid col-

lective memory fit well with expressivist ideas of criminal justice and sufferless from problems of selectivity or inconsistency resulting from the prioritiza-

tion of very limited resources. In truth, for many victims such recognition

may be at least as meaningful as the prosecution and punishment of a

high-level perpetrator, often far removed hierarchically, socially and geograph-

ically from the crime suffered by the victim and in a trial likely held many

years after the atrocity occurred.

62 This is reflected in the definition of ‘victim’ under the Rome Statute, set out in Rule 85(a) ICC

RPE which states that, victims are ‘natural persons who have suffered harm as a result of the

commission of any crime within the jurisdiction of the Court’. Certain cultural, religious, scien-tific or social organizations may also be a victim under the Statute if they have sustained

‘direct harm’ to their property. See ICC RPE, Rule 85(b).

63 See Art. 75(1) and (2) ICCSt. (regarding reparations). See further Art. 79(1) ICCSt., Rule 98(5) ICC

RPE; and Regulations 48 and 50, TFV Regulations (regarding the provision of victim support).

See also Rule 85 ICC RPE.

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As well as expressing recognition, victim redress can also give expression to

denunciation. As has been seen, in international criminal law, as in many na-

tional legal systems, individual punishment has been the traditional mechan-

ism for the denunciation of certain forms of egregious conduct. Great

importance was attached to the denunciatory role of individual punishmentby Immanuel Kant, who, making this argument by means of a characteristic-

ally vivid metaphor, observed that if a desert island community were to dis-

band, its members should first punish the last murderer left in its jails, so as

to disavow his acts, ‘for otherwise they might all be regarded as participants

in the [unpunished] murder ::: ’.64 But, as Feinberg observes, ‘[t]o say that the

physical treatment [of punishment] itself expresses condemnation is simply to

say that certain forms of hard treatment have become the conventional

symbol of public reprobation’.65 The denunciation of particular conduct need

not necessarily be signified exclusively by punishment. Indeed, for some theprosecution of one or a handful of individuals may seem hollow, insincere or

even disingenuous as a means of denouncing a campaign of violence or mass

atrocity the consequences of which affected hundreds or thousands of individ-

uals, if the process by which these acts are denounced ignores the harm they

have caused. As Philip Allott notes, ‘[t]he moral effect of the law is vastly

reduced if the human agents involved are able to separate themselves person-

ally both from the duties that law imposes and from the responsibility which

it entails’.66

Against this, the provision of different forms of redress, such as individualand collective rehabilitation programmes or public commemorations may com-

municate the disavowal of egregious acts with greater clarity and immediacy

for victims than would the prosecution of a high-level perpetrator long after

an atrocity occurred and in a location far removed from where it occurred.

Similarly, as regards the victim support provided by the Trust Fund, since the

very fact of providing redress to ‘victims’ has the effect of characterizing the

conduct to which victims were subjected as crimes under international law,

the decision by the Trust Fund to provide support to victims (which, as has

been seen, unlike reparations, is not predicated on the conviction of a perpetra-tor and may consequently be provided to any ‘victim’) may also provide a

means for the denunciation and disavowal of criminal conduct, especially

when supplemented by resources voluntarily contributed for that purpose by

third parties out of solidarity with victims.

In sum, alleviating the human consequences of grave crimes is unquestion-

ably a laudable and noble goal. But the incorporation of a regime of victim re-

dress within the framework of an international criminal justice institution is

not an obvious extension of the role of international criminal law, giving rise

64 I. Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the

Science of Right, transl. by W. Hastie (T & T Clark, 1887), at 198.

65 Feinberg, supra note 58, at 100.

66 P. Allott, ‘State Responsibility and the Unmaking of International Law’, 29 Harvard International

Law Review (1988) 1, at 14.



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to the question as to whether the creation of a regime of victim redress within

the framework of an international criminal tribunal can be explained and jus-

tified in principled terms. This is not a straightforward matter. Retribution

fails entirely to capture the purpose to be served by the regime since it is not

intended to be punitive in character. A more promising explanation may seemto be that of reparative justice. But in practice its explanatory force is also lim-

ited since the transformative ideals of reparative justice theory hardly fit with

what must be acknowledged as the likely modest scope and scale of redress

provided in practice. On their own, ideals of reparative justice cannot therefore

provide a solid principled justification for the creation of the Rome Statute’s

regime of victim redress. This does not mean, however, that the regime is left

entirely devoid of sensible principled justification. Just as the punishment of a

handful of those who commit grave crimes under international law can be

seen to give expression to certain ideas or values, so too can victim redressserve a similar purpose, providing both a measure of vindication for victims

and denunciation of the barbarities in question. Although perhaps a modest

claim for the principled role to be served by the Statute’s remedial framework,

its significance should not be lightly dismissed. For many victims affirmation

coupled with a degree of practical assistance may be at least as significant as

the trial of a high-level perpetrator, far removed in every sense from his ultim-

ate victims and tried long after the atrocities in question occurred.

4. Victim Redress and the Prosecution and Punishment

of Individuals: Competing or Compatible Paradigms?

The inclusion of a regime of victim redress within the framework of an interna-

tional criminal justice institution is therefore po

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