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The International Criminal Court's Trust Fund for Victims: challenges and opportunities1

Published online by Cambridge University Press:  17 February 2009

Carla Ferstman
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Extract

The historic International Criminal Court Statute has come into force against a backdrop of massive atrocities being committed in different parts of the world. Looking at the situations currently under investigation by the Office of the Prosecutor, in the Democratic Republic of the Congo it is estimated that 3.5 million children, women and men have died as a result of the conflict in that country, while in Uganda, the brutal conflict between the rebel Lord's Resistance Army (LRA) and government forces has been characterised by abduction of children to join LRA contingents and for sexual enslavement and large-scale displacement of civilians, among other heinous acts. It is likely that future situations to be dealt with by the Court will similarly impact on hundreds of thousands of victims.

The scale of these atrocities presents a unique challenge for the Court. Thousands of alleged perpetrators may fall within its jurisdiction, although for optimal efficiency and impact the Office of the Prosecutor will need to find a way to focus on the responsibility of key individuals, but without being perceived as detracting from the complexities of any given situation.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 6 , December 2003 , pp. 424 - 434
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2003

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References

3. Archbishop Desmond Tutu, Member of the Board of the Trust Fund for Victims, speaking at the inaugural ceremony of the Trust Fund for Victims, The Hague, April 2004. The statement is available on the website of the International Criminal Court <http://www.icc-cpi.int>.

4. ‘Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo’, UN Doc, S/2002/1146, 16 October 2002, para. 96.

5. As stated in a policy paper released by the Office of the Prosecutor: ‘[i]n light of its permanent and global nature, the Office might be seized with more than one situation at a time, some or all of them involving an untold number of victims as well as many alleged perpetrators. Some of these situations could indeed be similar in magnitude to those that precipitated the establishment of the ad hoc Tribunals’. The paper goes on to state that ‘[t]he global character of the ICC, its statutory provisions and logical constraints support a preliminary recommendation that, as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes’. See ‘Paper on some policy issues before the Office of the Prosecutor’, 09 2003Google Scholar, Doc. ICC-OTP 2003, pp. 6–7 <http://www.icc-cpi.int/library/organs/otp/030905_Policy_Paper.pdf>.

6. Res. ICC-ASP/l/Res.6, 9 September 2002, Doc. ICC-ASP/1/3, p. 340 <http://www.icc-cpi.int/library/about/officialjournal/basicdocuments/asp_records(e).pdf>.

7. Res. ICC-ASP/1/Res.7, 9 September 2002, Doc. ICC-ASP/1/3, p. 342 <http://www.icc-cpi.int/library/about/officialjournal/basicdocuments/asp_records(e).pdf>.

8. Arts. 75 and 79 Rome Statute.

9. Art. 75 of the Rome Statute refers to restitution, compensation and rehabilitation.

10. Supra n. 3.

11. See Art. 75(2) Rome Statute and Rule 94 of the Rules of Procedure and Evidence.

12. Draft Regulations of the Trust Fund for Victims, Doc. ICC-ASP/3/14/Rev.l, Annex A, p. 3 <http://www.icc-cpi.int/library/asp/ICC-ASP-3-14-Rev.1-English.pdf>.

13. Res. ICC-ASP/1/Res.6, para. 2, supra n. 6.

14. In accordance with Res. ICC-ASP/1/Res.7, supra n. 7.

15. Res. ICC-ASP/1/Res.6, Annex, para. 7, supra n. 6, p. 341.

16. Res. ICC-ASP/3/Res.7, 10 September 2004, Doc. ICC-ASP/3/25, Part III, p.336 <http://www.icc-cpi.int/library/asp/ICC-ASP-3-25-III_English.pdf>.

17. Draft Regulations of the Trust Fund for Victims, para. 4, supra n. 12, p. 4.

18. Ibid., para. 14, supra n. 12, p. 5.

19. Res. ICC-ASP/3/Res.7, para. 6, supra n. 16, p. 337.

20. Res. ICC-ASP/l/Res.6, para. 3, supra n. 6.

21. Draft Regulations of the Trust Fund for Victims, para. 15, supra n. 12, p. 5.

22. Res. ICC-ASP/l/Res.6, Annex, para. 5, supra n. 6, p. 341.

23. Ibid., para. 6.

24. This is the approach that was taken in respect of the Sierra Leone Truth and Reconciliation Commission, where ‘during the course of its operations, the Commission may provide information or recommendations to or regarding the Special Fund for War Victims …, or otherwise assist the Fund in any manner the Commission considers appropriate but the Commission shall not exercise any control over the operations or disbursements of that Fund’. Art. 7(6) Sierra Leone Truth and Reconciliation Commission Act 2000.

25. Res. ICC-ASP/l/Res.6, Annex, para. 11, supra n. 6, p. 341.

26. Report to the Assembly of States Parties on the activities and projects of the Board of Directors of the Trust Fund for Victims 2003–2004, Doc. ICC-ASP/3/14, Annex B, p. 15 <http://www.icc-cpi.int/library/asp/ICC-ASP-3-14-Rev.1-English>.

27. Draft Regulations of the Trust Fund for Victims, para. 21, supra n. 12, p. 6.

28. Res. ICC-ASP/1/Res. 6, para. 2, supra n. 6.

29. Draft Regulations of the Trust Fund for Victims, paras. 25–27, supra n. 12, pp. 6–7.

30. Most of the defendants at the Tribunals for the former Yugoslavia and Rwanda qualified for legal aid.

31. For example, the government of the Philippines continues to compete against individual victims for assets of the Marcos regime. Elsewhere, former Yugoslav President Milošević was initially arrested in Belgrade on charges of corruption and abuse of power. If he is ever convicted by the Yugoslav Tribunal, and had there been a reparations regime before that Tribunal, the potential beneficiaries of reparations orders would have competed with other potential creditors for any seized assets, including the government of Serbia and Montenegro.

32. See comments on earmarking, infra.

33. Res. ICC-ASP/l/Res.6, Annex, para. 9, supra n. 6, p. 341.

34. Draft Regulations of the Trust Fund for Victims, para. 29, supra n. 12, p. 7.

35. Res. ICC-ASP/l/Res.6, Annex, para. 10, supra n. 6, p. 341.

36. Draft Regulations of the Trust Fund for Victims, para. 31, supra n. 12, p. 7.

37. Ibid., para. 33 provides that ‘… the Board may adopt specific measures allowing for a more equitable distribution of funds among groups of victims’, supra n. 12, p. 7. These could include, for example, tracked and flagged inequities so that potential donors could be encouraged to donate to under-funded projects that might meet their criteria or further restricting earmarking.

38. Ibid., para. 32, supra n. 12, p. 7.

39. Res. ICC-ASP/l/Res.6 Annex, para. 7, supra n. 6, p. 341.

40. Res. ICC-ASP/l/Res.6, para. 2, supra n. 6.

41. Draft Regulations of the Trust Fund for Victims, paras. 46–49, supra n. 12, p. 9.

42. Ibid., para. 53, supra n. 12, p. 10.