Armed conflict leads to vast destruction and devastation, the kind of harm that can only be attempted to be corrected but can never actually be fully repaired. When punishing individuals of the grave transgressions as are under the subject matter jurisdiction of the International Criminal Court, it is necessary that the Court decide what function of punishment it wants to pursue - is it deterrence, retribution, punitive, restoration or reparation.
While the International Military Tribunals at Nuremberg and Tokyo was largely retributive and there was no mention of victims at all, the International Criminal Tribunals for Yugoslavia and Rwanda acknowledged the purposes of punishment as deterrent and retributive as was illustrated in the case of Prosecutor v. Tadic (Case No. IT-96-21-Y, Judgment, 16 November 1998) and Prosecutor v. Akayesu (Case No. ICTR-96-4-T, Sentence, 2 October 1998), while some have recognized the reconciliation to be a purpose of punishment, Prosecutor v. Furundzija (Case No. IT-95-17/1-T, Judgment, 10 December 1998) being a case in point. These Tribunals recognized the very fact of the trial itself to be a vindication for those wronged and sufficient to ensure international peace and security. The advent of the Rome Statute has seen an increased importance being given to reparative justice as it acknowledges victims to be the significant stakeholders of the conflict situation and subsequent trial proceedings. The treatment of victim rights under the Rome Statute is starkly different from the Charters of the IMTs and to some extent the Charters of the ICTY and ICTR.
The provisions for victims in the Rome Statute are ground breaking, but also a long time coming in light of the developments in rendering reparations as seen under International Human Rights and Humanitarian Law. There is now a direct reference to victims in the preamble of the said Statute which states. ‘during this century millions of children, women, and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity' ( Rome Statute, Preambular paragraph 2) and thus victims were officially recognized as stakeholders within the international criminal justice framework.
This Article primarily focuses on the reparative theory of justice and addresses the question of whether non-state actors have an obligation to pay reparation and it is a review of the present and applicable law. The well-established principle in International Law is that reparations are the sole responsibility of the State and the reason accorded for this is logical; the party liable for a violation must be made responsible for its actions. This principle was affirmed in the case of ICJ Advisory Opinion on the Palestinian Wall (Advisory Opinion, 7 July 2004, ICJ Report.). However, at a time when International Law recognizes non-state actors to be a subject of international law as well and confers on them certain rights, this article addresses whether it also imposes corresponding obligations. Armed conflict and resistance is no longer only the monopoly of a vile State and non-state actors have become new elements in the ever changing paradigm of war. Therefore, the need to impose legal sanctions on such instrumentalities becomes important. The International Criminal Court is a historic institution, one that affirms that impunity for the great crimes is not acceptable at any place or at any time. If it affirms this much, it must also affirm that impunity will not be afforded to any responsible person, whether it is the State or not.
One of the measures by which the ICC ensures the protection of victims is by pursuing justice through reparative mechanisms. The reparative theory of justice is one wherein the Court by way of avoiding compensation (or any of the four other species of reparation) to the Victims aims to put back the affected in the state it was before the break out of armed conflict and therefore achieve restituto in integrum. The foundation of reparative justice was laid out in the Factory at Charzow case which stated the species of reparation to be restitution and compensation. Human rights jurisprudence has further broadened the scope of reparations and today International Law recognizes 5 forms of reparations.
UN Basic Principles on Reparation and The ICC Framework
The UN Basic Principles on the Right to Reparation for Victims under Principles 19 to 23 state the principles of reparation to be compensation, restitution, reconciliation, satisfaction, and guarantee of non-repetition. The ICC draws on the Van Bowen Principles when passing reparation orders in addition to the provisions under Article 75 of the Statute. A. 75 states “The Court shall establish principles relating to reparations to, or in respect of victims, including restitution, compensation, and rehabilitation.”
Within the International Criminal Court framework, A. 75 states the forms of reparation to be compensation, restitution, and reconciliation. Additionally, the Court can only make reparation orders directly against the convicted person.
“The Court may make an order directly against a convicted person”
The above words imply that reparations in International Criminal Law do not retain an element of state responsibility in them as is held by other branches of International Law. They give practical implementation to the individual criminal responsibility provisions. The convicted person may well be a non-state actor.
Is there a requirement for the convicted person to be an instrumentality of the State – A look at the elements of crime
Nothing in the definition of genocide under Article 6 of the ICC Statute and the elements of the crime of genocide suggests that it cannot be committed by a non-state actor. In the case of Crimes against Humanity, the elements of CAH within the Rome Statute states, “..the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or Organization.” Therefore, it is not necessary that the person be an instrumentality of the State, it is sufficient if he knows that the prohibited conduct was a part of a widespread or systematic attack against a civilian population, of the organizational or State policy that exists and acts in furtherance of this policy. Therefore, even of the accused is, for example, a baker and not part of the military, paramilitary forces or the Government and he attacks the relevant group of people that are being targeted within the knowledge of the wider State policy to target such a group, he will be held liable. Further with respect to the policy element, it is not necessary that the policy be a policy of the State.
Therefore, the ICC does not require the wrongdoer to be the State or an instrument of it. As the ICC can only award reparations against individuals it can be inferred that reparation orders can be issued against non-state actors. The former President of the ICTY, Claude Jorda concluded that “reparations for those who have suffered such harm is a ‘sine qua non’ for the establishment of deep rooted and lasting peace”. Provisions for reparation orders to be made against non-state actors is a step in the right direction for a just and lasting peace.
1) Luban, David, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law, in Samantha Besson & John Tasioulas, The Philosophy of International Law, Oxford University Press, 2010, pp. 569 - 589
2) Permanent Court of International Justice, Factory at Chorzow Case (Germany v Poland), 1927. Series A, No. 9.
3) UN 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, UN Doc. A/RES/60/147. They are also known as the Van Bowen / Bassiouni Principles, named after Theo Van Bowen and M. Cherif Basiounni whose work inspired the Principles.
4) David Luban, Julie R. O’Sullivan, David P. Stewart, International and Transnational Criminal Law, 2010, Aspen Publishers, pp. 962. This example is similar to the “problems on crimes against humanity” which is based on the allegations in Prosecutor v. Tadic.
5) Jorda and Hemptinne, ‘The Status and Role of the Victim’. p. 1398 as quoted by Evans, Christie, The Right to Reparation in International Law of victims of Armed Conflict, Cambridge Studies in International and Comparative Law, 2012, pp.98
About the Author:
Surabhi Sharma is a 4th year law student at Symbiosis Law School, Pune. She particularly enjoys International Criminal Law and International Humanitarian Law and wishes to pursue a career in academia and research in the field of ICL.She also loves to read biographies of celebrities (shout out to Mindy Kaling!). Surabhi enjoys reading the works of David Luban and Kevin Jon Heller and hopes to sit in their classrooms one day.