The International Criminal Court or Domestic Jurisdictions; A Quest for A Victim-Centered Reparations Regime

Research on reparations for victims of international crimes is replete with discussions about the International Criminal Court’s (ICC) reparations regime. It is not surprising, given that the ICC is the first permanent international criminal court, to include reparations as part of its justice system. Reparations being an important component, that determines in part, the success of the court. Human Rights Courts such as the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) in their rich jurisprudence and case law, have demonstrated a far more developed reparative regime in comparison to the ICC. This is evident in both their wide range of cases touching upon a diversity of crimes, including torture, terrorism, enforced disappearance, and sexual and gender-based violence (SGBV), as well as in their innovative reparations. The International Criminal Court on the other hand, has only dealt with reparations in three cases. The fourth and fifth cases at the ICC that warranted a discussion on reparations were the Ruto and Sang, and the Bemba cases. The latter being of crucial significance as it would have been the first case to address reparations for SGBV crimes’ victims. With the acquittal of Bemba, victims are left bereft of justice and reparations; some may even refer to this as a double denial. It therefore begs the question as to what the ICC and concerned state parties can do, in order to provide reparations to victims of crimes, with or without securing the guilt of an accused, especially given how both jurisdictions complement each other. A sub-question attached to this question is, “if reparations are available at both jurisdictions, how victim-centered are they? Aware of the fact that the three forms of reparations provided under Article 75 of the Rome Statute of the ICC include; Restitution, Compensation and Rehabilitation, considering the cultural and traditional subjectivity of outlook towards SGBV crimes, understanding that restitution and compensation may be incompatible with acceptable remedies for harm suffered by SGBV victims in different societies, and acknowledging that reparations proceedings at the ICC can only begin at the end of a criminal trial which secures the guilt of an accused, this paper aims to explore three themes. Firstly, this paper will explore the justice fate of SGBV victims of crimes tried by the ICC, and what happens to them, upon the failure of the Prosecutor to secure a guilty verdict that warrants the commencement of reparations proceedings. Secondly, it will explore reparative options available in concerned State Parties’ domestic jurisdictions for such victims. Thirdly, it will analyze the traditional and innovative forms of reparations, beyond what the ICC reparations regimes have so far accomplished in three of its cases that has reached reparations. This analysis which will compare select domestic and international reparations case law, aims to achieve two things; 1) highlighting the need for a victim-centered reparations regime, at both the ICC and the domestic jurisdictions, as well as 2) identifying which jurisdiction (if any) is best suited for providing such victim-centered reparations, powerful enough to achieve the much needed healing, compensation and rehabilitation of victims (especially of SGBV crimes). Because for such victims, restitution does little, since the crimes committed against them are of an irreversible nature.