Realizing Reparative Justice for International Crimes: From Theory to Practice

Description

This book provides a timely and systematic study of reparations in international criminal justice, going beyond a theoretical analysis of the system established at the International Criminal Court (ICC). It originally engages with recent decisions and filings at the ICC relating to reparation and how the criminal and reparative dimensions of international criminal justice can be reconciled. This book is equally innovative in its extensive treatment of the significant challenges of adjudicating on reparations, and proposing recommendations based on concrete experiences. With recent and imminent decisions from the ICC, and developments in national courts and beyond, Miriam Cohen provides a critical analysis of the theory and emerging jurisprudence of reparations for international crimes, their impact on victims and stakeholders. Cover Half-title page Title page Copyright page Dedication Contents Foreword Acknowledgments Table of Cases List of Abbreviations Prologue Introduction I.1 General Parameters I.2 Themes and the Scope of the Book I.2.1 Themes and Key Concepts I.2.2 Scope and Limitations I.2.3 Book Structure 1 Punishment and Reparation: Construing the Legal Basis of a Duty to Repair in International Criminal Law 1.1 Of Crimes and Punishment 1.2 Victims, Reparation, and Restorative Justice Theory 1.3 The Genesis of International Criminal Law and the Shift from State Responsibility to Individual Accountability 1.4 Paving the Way to Reparations for Mass Crimes: Overview of the Legal Duty of Reparations in Other Fields of International Law 1.4.1 The Purposes of Reparations 1.4.2 The Multifaceted Dimensions of Reparations 1.4.3 The Duty of Reparation in International Law from a State Responsibility Dimension 1.4.4 International Human Rights Law and the Principles Developed in the Jurisprudence of the Inter-American Court of Human Rights 1.4.5 International Humanitarian Law: Reparation and its Enforcement 1.4.6 The Legal Duty of Reparations 1.4.7 The Beneficiaries of Reparations Under International Law 2 Reparative Justice at International and Hybrid Criminal Tribunals 2.1 Historical Account: Reparations and the Nuremberg and Tokyo Trials 2.2 The Ad Hoc Tribunals for the Former Yugoslavia and Rwanda 2.3 Other International or Hybrid Criminal Tribunals 2.3.1 The Special Tribunal for Lebanon 2.3.2 The Special Court for Sierra Leone 2.3.3 Parting with the Trend: The Cambodian Extraordinary Chambers’ (ECCC) Approach to Victims’ Redress 2.4 The Development of the Long Road to Reparations 3 The Construction of a Reparative Dimension of International Justice Before the International Criminal Court (ICC) 3.1 The Codification of Reparations Within the Rome Statute 3.2 The Search for Victims’ Justice Before the ICC: Recent Case Law on Reparations 3.2.1 The Trailblazing Case of The Prosecutor v. Thomas Lubanga Dyilo 3.2.2 The Prosecutor v. Germain Katanga Case: Individual Awards for the First Time 3.2.3 The Prosecutor v. Ahmad Al Faqi Al Mahdi Case: Individual, Collective, and Symbolic Reparations 3.2.4 The Prosecutor v. Jean-Pierre Bemba Case: The Unfortunate Reparations Outcome 3.2.5 A Reparative Dimension in Terminated Cases? 3.3 Assessing the Case Law on Reparations to Date: Inconsistencies, Delays, and the Need for Change 3.3.1 Key Features of the Reparations System at the ICC 3.3.2 Tackling the Difficult Dilemmas: Reconciling Reparations Before the ICC with Conflicting Perspectives and Paradigms 3.4 Conclusions 4 Victims of International Crimes Within Administrative Mechanisms: The Example of the ICC Trust Fund for Victims (TFV) 4.1 The Road to the TFV and its Legal Framework 4.1.1 Relevant Legal Provisions 4.1.2 The Mandates of the TFV 4.1.3 Functioning of the TFV: Budget and Programs 4.1.4 Rationales for Channeling Reparations Through the TFV 4.2 The Reparations Mandate: Lessons From First Cases 4.3 Bridging the Gap: The TFV’s Assistance Mandate 4.4 The Road Ahead: The Challenges of the TFV and Administrative Mechanisms in the Aftermath of Mass Victimization 5 The Role of National Courts and Mechanisms in Realizing Reparative Justice for International Crimes 5.1 Diverging Domestic Approaches to Reparations Within Criminal Law Proceedings 5.1.1 Romano-Germanic Systems 5.1.2 Common Law Systems 5.2 Domestic Case Study: Missed Opportunities in the Former Yugoslavia 5.2.1 International Mechanisms 5.2.2 Seeking Redress Domestically: Mechanisms in Bosnia and Herzegovina 5.2.3 Proceedings Before Domestic Courts in Bosnia and Herzegovina 5.3 Reparations for Victims of Hissène Habré and Beyond: Breaking New Ground? 5.4 Fostering Civil Redress for International Crimes in Domestic Courts: Rationales and Challenges 5.5 Universal Civil Jurisdiction as an Alternative Avenue to Seek Redress for International Crimes? 5.5.1 The Doctrine of Universal Criminal Jurisdiction 5.5.2 Towards a Victim-Orientated Approach: A Civil Dimension of Universal Jurisdiction? 5.5.3 Assessing Universal Civil Jurisdiction as a Way to Seek Redress for Victims of International Crimes 5.6 Conclusions 6 Conclusions 6.1 The Theory and Practice of Reparative Justice for International Crimes 6.2 Key Themes: The Emerging Reparative Dimension of International Justice and New Paradigms 6.2.1 Reparation Is Only One Facet of the Broader Goal of Delivering “Justice for Victims” of International Crimes 6.2.2 Individual Perpetrators Have a Legal Duty to Provide Reparations to Victims of International Crimes, in Certain Circumstances, and Victims Have a Corollary Right to Receive Reparations 6.2.3 The Contents of the Legal Duty to Repair Imposed on Individual Perpetrators are Still Under Formation in International Criminal Justice and Lessons Can Be Learned from Other Reparations Initiatives 6.2.4 An Individualized Approach to Reparations Remains Complementary to State Responsibility for Reparations for International Crimes 6.2.5 Disconnect Between the Rhetoric that Included Reparations in International Criminal Justice, Supported by the Idea of Justice for Victims, and the Substantive Realization of Reparations 6.2.6 A Reparative Dimension of International Criminal Justice, Including Reparations for Victims of International Crimes, Is Not Limited to the ICC 6.2.7 In the ICC Context, Expectations with Regards to Reparations Have to Be Measured 6.2.8 Victims’ Provisions at the ICC Have a Significant Symbolic Value and Could Be a Catalyst for the Implementation of Reparations in Other Fora 6.2.9 Adding a Civil Dimension to Universal Jurisdiction May Provide an Avenue for Victims’ Claims for Reparation 6.3 Realizing Reparative Justice: The Road Ahead 6.3.1 A New Phase of International Justice: The Need to Move Reparative Justice Forward 6.3.2 Realizing Reparative Justice for International Crimes Requires Global Efforts 6.3.3 To Be Effective, Reparative Justice Needs to Be Expeditious 6.3.4 Seeing the Victims, Not the Perpetrators: Reparations Unconditioned to Convictions 6.3.5 At the ICC, There Should Be a Collaborative Effort Towards Realizing the Reparations Mandate 6.3.6 More Efforts Have to Be Put into Bridging Informational Gaps and Managing Victims’ Understanding and Expectations of the Mandate and Limitations of the ICC 6.3.7 States Parties Should Engage in Realizing Reparations 6.3.8 The Context in Which Reparation Is Sought Is Important 6.4 Final Remarks Bibliography Index