THE SEARCH FOR JUSTICE: REPARATIONS IN

THE INTERNATIONAL CRIMINAL COURT

Jilliane Joyce R. De Dumo-Cornista*

Abstract

Reparations in the International Criminal Court (ICC) are both a tool and a
process – a tool to usher transitional justice, but also a technical process that
guides the ICC in deciding when to award them. This paper argues that the ICC,
although a criminal judicial tribunal, plays a crucial in developing a reparations
framework within the context of transitional justice. It discusses the theory of
reparation in the fields of international law and transitional justice; and examines
the ICC and Trust Fund for Victims’ (“TFV”) practices in awarding reparations,
particularly in the Lubanga case. The paper concludes with proposals on how the
ICC and the TFV may improve its handling of reparation claims, such as the
retention of the TFV’s dual mandates; improving victim recognition and
engagements; utilizing presumptions and other standards of proof; and addressing
the resource gaps of the TFV.

I. Introduction

The word “justice” always connotes some level of consequence both for the
aggrieved and aggressor. Whether this sense of justice comes in the form of
retributive, restorative, and sometimes, economic and social transformation,1 it

*
She has a B.S. Business Administration (cum laude) and Juris Doctor (Dean’s Medal for Academic
Excellence and Leadership Awardee), both from the University of the Philippines. She obtained
her LL.M. in National Security Law and Certificate in International Human Rights Law as a
National Security Scholar at Georgetown University, graduating with distinction (Honors) and
as recipient of the Dorothy M. Mayer Award.
1
Alexander L. Boraine, Transitional Justice: A Holistic Interpretation, 60 J. INT’L AFF. 1, 18 (2006),
https://www.jstor.org/stable/24358011.

93
94____Philippine Yearbook of International Law

must always respond to the victims’ rights and needs resulting from the violation
committed.2
Any judicial tribunal, whether domestic or international in nature, must use
a variety of tools to “serve the ends of justice,” such as accountability measures
through a guilty verdict, imprisonment, fines, and reparation.3 The mandate of the
International Criminal Court (“ICC”), as a criminal court, is no different. While the
ICC does deliver imprisonment verdicts, its recent foray in the area of reparation
through the Lubanga4 case has put into focus the ICC’s role in advancing
transitional justice.
Reparations in the ICC are aimed at “relieving the suffering and affording
justice to victims not only through the conviction of the perpetrator by this Court,
but also by attempting to redress the consequences of genocide, crimes against
humanity and war crimes…”5 Here, reparations are both a tool and a process – a
tool to usher transitional justice, but also a technical process that guides the ICC
in deciding when to award them. This dynamism is precisely what makes
reparations such a powerful tool for empowerment, healing, and change for the
survivors and victims’ families.
This paper argues that the ICC, although it functions as a criminal judicial
tribunal, is also crucial institution in developing a reparations framework within
the context of transitional justice. It is divided into four parts. The first part focuses
on the general theory of reparation and will contextualize it as a tool in
international law and transitional justice. The second and third parts will examine
the ICC and Trust Fund for Victims’ (“TFV”) principles and practices in awarding
reparations, and as specifically applied in the Lubanga case. The paper will

2
International Center for Transitional Justice, Reparation (n.d.), https://www.ictj.org/our-
work/transitional-justice-issues/reparations.
3
See Drazan Dukic, Transitional justice and the International Criminal Court – in ‘‘the interests of
justice’’?, 89(867) INT’L REV. RED CROSS (Sept. 2007), https://international-review.icrc.org/
sites/default/files/irrc-867-9.pdf.
4
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-3129-AnxA, Order for Reparations,
amended (Mar. 3, 2015), https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/04-01/06-
3129-AnxA.
5
ICC, THE ROLE OF THE TFV AND ITS RELATIONS WITH THE REGISTRY OF THE ICC, ICC Press Kit (2004);
see also Linda M. Keller, Seeking Justice at the International Criminal Court: Victims' Reparations,
29 T. JEFFERSON L. REV. 189 (2006-2007), https://www.tjsl.edu/sites/default/files/files/
Keller_reparations_ICC_final.pdf.
 Reparations in the International Criminal Court____ 95

conclude with proposals on how the ICC and the TFV may further improve its
handling of claims relating to victims’ reparations.

II. Reparation as a Concept in Law and Transitional Justice

It has been said that the “concept of reparations, the making amends for
wrongs, is an ancient, universal and basic institution of justice.”6 In legal terms,
reparation is often expressed as a right to restitution, compensation, or damage
for loss or injury.7 It is also sometimes confused with retributive justice, a focal
point in modern forms of criminal justice which emphasizes the need to punish
individuals who have committed a wrong,8 and restorative justice, which
promotes victim-offender mediation, with the offender taking the necessary steps
to repair the harm they have caused.9
But reparation or reparative justice differs because it is anchored on key
principles that determine “how victims experience the justice process in terms of
how far the specific harm they have suffered is repaired.”10 These principles
include the substantive outcome of an award aimed at repairing harm suffered by
victims, the victims’ procedural rights such as rights to access proceedings and
rights to protection and support in the judicial process, and the victims’
perceptions of the overall justice mechanism such as fairness and the restoration
of dignity.11
In international law, these principles are often co-mingled, but with a focus
on state responsibility,12 and not just on the victims’ sense of justice vis-à-vis
individual liability. The history of reparation began as an inter-state affair, with

6
Malin Åberg, The Reparation Regime of the International Criminal Court, DIGITALA VETENSKAPLIGA
ARKIVET, 10 (2015), http://www.diva-portal.org/smash/get/diva2:801293/ FULLTEXT01.pdf.
7
Id. at 11.
8
Id. at 10-11.
9
Id.
10
Id. at 11.
11
Id.
12
Id. at 14 (“Accepted forms of reparation to be made between states include restitution,
compensation and satisfaction, either singly or in combination, with cessation and guarantees
of non-repetition as appropriate, constituting separate consequences of a breach of an
international obligation”); see also ILC Articles on Responsibility of States, art. 31. (“The
responsible State is under an obligation to make full reparation for the injury caused by the
internationally wrongful act”).
96____Philippine Yearbook of International Law

payments being made by the losing state to another, such as in the Versailles
Treaty. The Holocaust experience slightly veered from this mechanism, with a
nationally (state) sponsored reparations program made in favor of individuals. 13
Other instances of reparation in the global stage are those paid by Japan to Korean
comfort women, by South Africa to victims of apartheid in its own country, and by
the United States to Japanese Americans and others confined in internment
camps in the United States during World War II.14
This trend went on and is embodied in the 2005 United Nations General
Assembly Resolution on the 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 (“Basic
Principles”).15 Largely applied to international human rights law and international
humanitarian law, the Basic Principles require states to comply with their
obligation under international and domestic law to make available adequate,
effective, prompt, and appropriate remedies, including reparation, to the victims. 16
States must then provide access to information and develop procedures that allow
groups of victims to present claims for and receive reparation.17 Under the Basic
13
Boraine, supra note 1, at 24; see also Annabelle Timsit, The blueprint the US can follow to finally
pay reparations, QUARTZ (2020), https://qz.com/1915185/how-germany-paid-reparations-for-the-
holocaust/. (“In 1951, West German chancellor Konrad Adenauer committed to paying “moral
and material indemnity” for the “unspeakable crimes…committed in the name of the German
people” during World War II. The following year the government signed a set of reparations
agreements with Israel (pdf) and an umbrella group of advocates known as the Conference on
Jewish Material Claims Against Germany, or Claims Conference. Over the next 20 years
Germany committed to compensating other countries, Jewish and non-Jewish victims of the
Holocaust, and former forced laborers. While it’s difficult to estimate the exact amount of
money, in today’s dollars, that was paid in deutsche mark over all this time, Germany says it has
distributed over €77.8 billion [$91.9 billion].”).
14
David C. Gray, A No-Excuse Approach to Transitional Justice: Reparations as Tools of
Extraordinary Justice, 87 WASH. U. L. REV. 1053 (2010), https://openscholarship.wustl.
edu/law_lawreview/ vol87/iss5/3/.
15
G.A. Res. 60/147 (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 (Dec. 16, 2005), https://www.ohchr.org/en/professional
interest/pages/remedyandreparation.aspx.
16
Id. at I(c); see also IX.15 (“In cases where a person, a legal person, or other entity is found liable
for reparation to a victim, such party should provide reparation to the victim or compensate the
State if the State has already provided reparation to the victim”).
17
Id. at VIII13.
 Reparations in the International Criminal Court____ 97

Principles, these reparations may take the form of restitution, compensation,

rehabilitation, satisfaction, and guarantees of non-repetition.18
In transitional justice, the theory of reparative justice finds a perfect fit,
regardless of state or individual responsibility. Indeed, the focus is not on the
offender, but on the victim, as the rise of transitional justice amid a community’s
search for true justice in the wake of “undemocratic, often oppressive and even
violent systems”19 has brought to focus how victims and their families try to
confront their perpetrators in the name of peace and healing.
From the lens of transitional justice, the usual form of trial and punishment
system in criminal law may be seen as fraught with challenges. As scholars would
put it, “there are clearly limits to law.”20 For one, it may be difficult to prosecute all
perpetrators in the case of widespread culpability. This often leads to a subjective
selection process in which those with the greatest responsibility for human rights
violations are first prosecuted. There are also considerable political restraints that
tend to hamper the arrest, evidence gathering, and prosecution of the offenders.
An often-overzealous prosecution can also prevent a lasting sustainable peace and
stability in a war-torn community.21
But instead of treating justice as the antithesis of peace, one should think
that justice goes hand-in-hand with healing. Processing the trauma through
activities that document the truth helps in restoring the dignity of the survivors
and victims’ families, as they seek to find justice through formal legal proceedings.
Here, transitional justice and the theory of reparative justice are holistic.
Post-conflict situations are both difficult for the state and its citizens, and there is
no one-size-fits-all framework that may be recommended because of the unique
circumstances of each case and the culture of the community involved. 22
Transitional justice thus combines the twin goals of justice and peace. It strives for
accountability in holding perpetrators liable; gives redress for survivors and
victims in the form of reparation; provides an avenue for truth seeking and giving
a chance for survivors and victims to reconcile with the past; aims for prevention
that serves as a deterrence for individual perpetrators to repeat similar injuries;

18
Id. at IX19-23.
19
Boraine, supra note 1, at 18.
20
Id. at 19.
21
Id. at 20.
22
Jane E. Stromseth, Peacebuilding And Transitional Justice: The Road Ahead, MANAGING CONFLICT
IN A WORLD ADRIFT, 577 (2015).
98____Philippine Yearbook of International Law

and finally, gives reconciliation a chance so that the divisions and antagonisms
among contending factions are highlighted and overcome.23
More importantly, transitional justice views justice from the eyes of the
offended. By offering a plethora of initiatives (mechanisms) to an engaged
community, transitional justice veers away from the politics and looks to
community participation “for catalyzing local support for fair-minded judicial
remedies.”24
But these considerations do not necessarily mean that criminal law and its
concept of retributive justice need to be disregarded. Instead, it may be argued
that criminal justice complements transitional justice in a way that gives
“considerable benefit in the establishment of a just society.”25 And reparations may
be seen as the missing link between retributive justice and transitional justice,
because it is the single most tangible manifestation of a perpetrator’s effort to
remedy the harms inflicted upon the survivors and victims.26 Pablo de Greiff said
that “a freestanding reparations program, unconnected to other transitional
justice processes, is also more likely to fail, despite its direct efforts for victims, [so
that] [t]he provision of reparations without the documentation and
acknowledgement of truth can be interpreted as insincere, or worse, the payment
of blood money.”27 Because “all transitions are characterized by a disparity
between needs and resources,”28 transitional regimes are often confronted with
this “justice gap.”29 The most common gap-filling measure deployed are truth
commissions and reparations, with the latter “providing recognition and partial
redemption for victims while imposing on abusers direct or derivative liability.”30
Reparations, therefore, play an important role in achieving justice.

23
Id. at 573.
24
Id. at 577.
25
Boraine, supra note 1, at 19.
26
Id. at 24.
27
Id. at 25.
28
Gray, supra note 14, at 1051.
29
Id. at 1052.
30
Id.
 Reparations in the International Criminal Court____ 99

III. Reparations in the ICC and the TFV

A. Legal Regime under the ICC

In a 2018 conference conducted by the ICC on the Colombia situation,

Deputy Prosecutor to the ICC Mr. James Stewart emphasized the role of the
tribunal in transitional justice, underscoring the need for justice and
accountability to achieve sustainable peace in post-conflict situations.31 He
explained that the term “transitional justice system” embraces a wide array of
measures (i.e., “criminal justice, mechanisms for the establishment of the truth,
reparations programs and guarantees of non-recurrence”) that deal with post-
conflict situations, but with the ICC relating mainly to the criminal justice
component.32 This, however, does not necessarily mean that there is no significant
engagement between the ICC’s processes on criminal justice and the other
measures stated.
Generally, ICC-ordered reparations are often only seen as the extension of
retributive justice, inasmuch as only those found guilty and punished may be
made liable for reparations. This goes into the notion of “blame and
responsibility,”33 a concept commonly seen in criminal or tort law.34 However, this
mistake – appreciating reparations as a species of tort claim35 – only undermines
the possible benefits of reparations in serving the ends of transitional justice.
The reality is that reparations in the ICC are both a tool and a process – they
are a tool to usher transitional justice, but they also involve a technical process
that guides the ICC in deciding when to award them.
In its technical sense, reparation is a legal framework and mandate which
allow the Court to directly order a convicted person to pay compensation to the
victims. Article 75 of the Rome Statute gives this power to the ICC, including a
wide latitude of discretion on how reparations may be made. In fact, the Trial
Chamber may, either upon request or on its own motion in exceptional

31
See James Stewart, The Role of the ICC in the Transitional Justice Process in Colombia, (2018), ICC,
https://www.icc-cpi.int/iccdocs/otp/201805SpeechDP.pdf.
32
Id. at item 42.
33
Gray, supra note 14, at 1048.
34
Id. at 1071.
35
Id. at 1050.
100____Philippine Yearbook of International Law

circumstances, determine the scope and extent of any damage, loss, and injury to,
or in respect of, victims and state the principles on which it is acting.36
In determining whether to award reparations, the ICC must first grapple
with the principles of proportionality and causality, in keeping with the Chorzow
Factory case which said that “reparation must, as far as possible, wipe out all
consequences of the illegal act and reestablish the situation which would, in all
probability have existed if that act had not been committed.”37
The principle of proportionality states that reparation must be proportional
to the injury caused by the wrongful act, with the injury not necessarily resulting
to some form of material damage upon the victim.38 This definition was further
enhanced in the Lubanga case by including the element of participation by the
convicted person in the commission of the crime for which he or she was found
guilty. In Lubanga,39 the proportionality principle may be restated as “[a]
convicted person’s liability for reparations… [which is] proportionate to the harm
caused and, inter alia, his or her participation in the commission of the crimes for
which he or she was found guilty, in the specific circumstances of the case.”40
Similarly, the principle of causality eliminates other damages that are not the
result of the wrongful act, and so requires a “link between the illegal act and the
harm suffered.”41
While these two principles appear generally in international law, one must
proceed with caution so as not to confuse international human rights law with
international criminal law. The ICC, as a criminal tribunal, is still mandated to
“craft principles that respond to the sense of moral wrong, as well as the other,

36
Art. 75(1): “The Court shall establish principles relating to reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. On this basis, in its decision the Court
may, either upon request or on its own motion in exceptional circumstances, determine the
scope and extent of any damage, loss and injury to, or in respect of, victims and will state the
principles on which it is acting.”
37
Case concerning the Factory at Chorzow (Ger. v. Pol.), Merits, 1928 P.C.I.J. (ser. A) No. 17, at 47.
38
Octavia Amezcua-Noriega, Reparation Principles under International Law and their Possible
Application by the International Criminal Court: Some Reflections, UNIVERSITY OF ESSEX, 3 (2011),
https://www1.essex.ac.uk/tjn/documents/Paper_1_General_Principles_ Large.pdf.
39
Prosecutor v. Thomas Lubanga Dyilo (Order for Reparations), supra note 4, at 5/20, item 21.
40
Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 A A 2 A 3, Judgment with Amended Order
for Reparations, at 43/97, item 118 (Mar. 3, 2015), https://www.icc-cpi.int/CourtRecords/
CR2015_02631.pdf.
41
Amezcua-Noriega, supra note 38, at 3.
 Reparations in the International Criminal Court____ 101

more tangible, forms of harm inflicted by criminal conduct.”42 Moreover, the ICC’s
jurisdiction over individual criminal responsibility instead of states requires the
institution to “fashion a range of reparation principles that are appropriate for the
distinctive legal context in which it operates.”43
Reparations in the ICC, however, are not punitive. Instead, they are meant
to “so far as possible, wipe out all the consequences of the illegal act, and
reestablish the situation which would, in all probability, have existed if that act
had not been committed.”44 Reparations, therefore, are not meant “to punish the
responsible party, but to address the harm or injury caused to the victims.”45
Victims are legally defined in the Rome Statute. These are “natural persons
who have suffered harm as a result of the commission of any crime within the
jurisdiction of the Court,” 46 as well as institutions such as religious, education, and
humanitarian organizations which may have sustained direct harm in the course
of the illegal conduct.47 The Court may also order reparation in respect of victims,
which references to those indirectly harmed collectively such as family members
or those filing on behalf of deceased victims.48
The damage, loss, or injury suffered must also emanate as a result of a crime
for which the perpetrator is responsible,49 leading to the conclusion that
reparation in the ICC is only concerned with the harm to which a convicted
person’s criminal responsibility relates to.50

42
Conor McCarthy, Reparations under the Rome Statute of the International Criminal Court and
Reparative Justice Theory, 3 INT’L J. TRANSITIONAL JUST., 251 (2009), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1422417.
43
Id. at 255.
44
Id. at 256 (citing Factory at Chorzow, supra note 37, at 47.
45
Id. at 257.
46
ICC, Victims, (n.d.), https://www.icc-cpi.int/about/victims.
47
Aberg, supra note 6, at 19; cf. Aberg, at 20. (“Could indirect victims, such as family members who
are linked to the direct victim, also receive victim status? They may in fact have suffered harm
as a result of a crime within the Court’s jurisdiction. When drafting Rule 85 no agreement to
expressly include family members of direct victims could be reached, but this should not be
interpreted as to exclude family member only because of the fact that they are not explicitly
mentioned in Rule 85.”).
48
Id. at 21.
49
Id. at 19.
50
Id. at 20.
102____Philippine Yearbook of International Law

These parameters are set out in the Rome Statute and the ICC’s Rules of
Procedure and Evidence. In fact, Article 75(1) of the Rome Statute practically gives
the Court the leeway to determine the scope and extent of any damage, loss and
injury in reparation procedures. Although only three modalities of reparations are
mentioned in the Rome Statute (i.e., restitution, compensation, or
rehabilitation),51 satisfaction and guarantees of non-repetition, as listed in the
Basic Principles, have been recognized by the ICC as permissible forms of
reparation.52

1. Forms of Reparation

While reparation programs can be a complex topic, it can generally be

organized into two groups: material and symbolic, and individual and collective.53
It may also be categorized according to who contributes to the reparation fund.
The paper No-Excuse Approach to Transitional Justice54 uses a similar approach and
posits a four-pronged matrix that best describes the form of reparation awarded,
categorizing them according to who benefits, who contributes, and what is
awarded.
More often than not, various forms of reparation are combined to maximize
resources and cover a large number of victims.55 Since there are different types of
victims with specific needs, having a variety of options means reaching out to
more of them.56
The most common form of reparation is the material type, which includes
the payment of compensation in cash and provision of tangible benefits like

51
Rome Statute of the International Criminal Court (last amended 2010), art. 75(1), July 17, 1998,
2187 U.N.T.S. 3: “The Court shall establish principles relating to reparations to, or in respect of,
victims, including restitution, compensation and rehabilitation. On this basis, in its decision the
Court may, either upon request or on its own motion in exceptional circumstances, determine
the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the
principles on which it is acting.”
52
Aberg, supra note 6, at 23, citing Prosecutor v. Lubanga, supra note 40.
53
OUN-HCHR, infra note 55, at 9.
54
Gray, supra note 14, at 1054.
55
Office of the United Nations High Commissioner for Human Rights (OUN-HCHR), Rule-Of-Law
Tools For Post-Conflict States: Reparations Programme, 22 (2008), https://www.ohchr.org/
Documents/ Publications/reparationsProgrammes.pdf.
56
Id.
 Reparations in the International Criminal Court____ 103

housing, education, and health services.57 The non-tangible or symbolic ones are
“return of property, rehabilitation or symbolic measures such as apologies or
memorials.”58 These measures are seen as “carriers of meaning”59 and therefore
help survivors reconcile their painful past with the future that is before them. 60
They also disburden the survivors with the “sense of obligation to keep the
memory alive and allow them to move on”61 and be recognized to be more than
victims, but also as citizens and rights holders.62

Figure 1. Four-Pronged Matrix63

57
Id. at 23-25.
58
ICC, Reparations/Compensation stage (n.d.), https://www.icc-cpi.int/Pages/ReparationCompen
sation.aspx#:~:text=At%20the%20end%20of%20a,such%20as%20apologies%20or%20memo
rials.
59
OUN-HCHR, supra note 55, at 23.
60
Id.
61
Id.
62
Id. at 25.
63
Gray, supra note 14, at 1056.
104____Philippine Yearbook of International Law

In terms of who contributes to the reparation fund, the four-pronged matrix

earlier mentioned may alternatively be viewed as a spectrum, since both states,
corporations, and private individuals may contribute to reparations funds to fill in
the void.64 In the case of state-sponsored reparations, there is a blurring of lines
between the state as a caretaker of reparation and the state in its previous role as
an abuser.65 It also perpetuates the continued dominance of the state, as the
survivors and victims remain dependent upon state support and the subjective
judgment of who may be considered as rightful recipients of reparation. 66 Until
and unless a state in transition has a genuine desire to move forward from past
atrocities, it will not be motivated enough to pursue reparation and instead delay,
stop or constrain it altogether.67
The award may also be done on an individual or collective basis, the decision
being made on which is the most appropriate for the victims of a particular case.68
The strength of individual reparation is the recognition of a specific harm to an
individual. This personal approach to reparation empowers an individual, as
compared to collective reparation which responds to collective harms and
sometimes negatively perceived as a political largesse or mass dole outs.69 But
individual reparations are also susceptible to critique such as line drawing 70
because not all applicants may qualify, given the limited resources.
Meanwhile, collective reparations may establish social cohesion and
solidarity while maximizing the limited resources dedicated to reparations.71 One
of the advantages cited by the ICC in setting up a collective reparation is the
community appeal that it gives, which allows the members of the community to
“rebuild their lives [collectively], such as the building of victim services centres or
the taking of symbolic measures.”72 It is also said that collective reparations

64
Id.
65
Id. at 1064.
66
Id.
67
Id. at 1065.
68
ICC, Reparations/Compensation stage, supra note 59.
69
Naomi Roht-Arriaza and Katharine Orlovsky, A Complementary Relationship: Reparations and
Development, INT’L CTR. TRANSITIONAL JUST. RES. BRIEF, 3 (2009), https://www.ictj.org/
publication/complementary-relationship-reparations-and-development.
70
Gray, supra note 14, at 1066.
71
Roht-Arriaza & Orlovsky, supra note 69, at 3.
72
ICC, Reparations/Compensation stage, supra note 59.
 Reparations in the International Criminal Court____ 105

promote reconciliation among divided communities73 by reinforcing activities

that yield individual benefits, such as medical or psychological care, vocational
training, and other income-generating activities.74
While group reparations are also criticized for failing to distinguish between
victims and non-victims, such as those belonging to different generations (the
issue of privity),75 in the end, the form of reparations must be contextual and fit to
the needs of the beneficiaries.

B. Legal Regime under the TFV

What is fitting to the needs of the beneficiaries is still a vague standard to

base reparations on, leading the Court to rely on and employ experts in assessing
a pool of evidence.76 This is where the TFV comes in. Established by the states
parties to the Rome Statute, the TFV serves as a lifeline of funds for the victims and
their families should the convicted person be unable to compensate them out of
his personal funds.77 Specifically, the TFV has a two-fold mandate: “(i) to
implement Court-Ordered reparations and (ii) to provide physical, psychological,
and material support to victims and their families.”78 This is also called the
reparations mandate and the assistance mandate, respectively.
While the ICC and the TFV are complementary institutions, they are distinct
in terms of mandate, objectives and context of work. The ICC is focused on
balancing the rights of the accused and the aim of delivering justice to the victims,
while the TFV has an equal dual mandate in terms of reparations and assistance.

73
The Trust Fund for Victims (TFV), Reparation Implementation, (n.d.), https://www.trustfund
forvictims.org/index.php/en/what-we-do/reparation-orders.
74
Id.
75
Gray, supra note 14, at 1063. (“Privity also suggests that only those who suffered direct or indirect
harm may claim a right to reparation. Group reparations frequently threaten this intuition by
failing to distinguish between victims and nonvictims. Privity is particularly relevant in the case
of historical claims, such as proposals for slavery reparations in the United States. In this context,
critics ask how ‘a claimant (or alleged victim) [can] establish privity between himself (or his
group) and the perpetrator when the latter belongs to a different era’ and judges point out that
"there is a fatal disconnect between the [slaves] and the plaintiffs.”)
76
Amezcua-Noriega, supra note 38, at 8.
77
Id.
78
ICC, Trust Fund for Victims, (n.d.), https://www.icc-cpi.int/tfv.
106____Philippine Yearbook of International Law

The ICC is also in a “legal reality” that is dictated by law and rules created by a
political body, whereas the TFV deals with the realities of war on the ground.79
The hook of the TFV under its reparations mandate is that while the
perpetrator is generally made liable to pay for the costs of reparation, more often
than not, their indigency hampers the implementation of a reparation order. The
personal nature of the ICC-imposed liability, however, does not detract from states
and private donors contributing to reparation programs and freeing up resources,
80
which the TFV manages.
Should the ICC order an award for reparations be made through the Trust
Fund, the TFV will be compelled to use its resources collected through fines or
forfeiture and awards for the satisfaction of the same.81 But the TFV’s Board of
Directors is free to determine whether it should complement the resources for
awards with “other resources of the Trust Fund.”82 Because of lack of funding, the
TFV is sometimes constrained to look for a variety of funding sources, including
from the “fines and forfeitures of convicted persons, and through voluntary
donations by member states and individual donors.”83 It also partners with
national and international partners and, as with any other international
organization, is also guided by procurement and bidding rules.84
On the other hand, the TFV’s assistance mandate (i.e., to provide physical,
psychological, and material support to victims and their families) is outside the
scope of reparations. There is a deliberate decision by the drafters of the TFV
Regulation to exclude the term “reparation” within this context, which signifies
their intention to conceptually separate reparations within the meaning of Article
75 of the Rome Statute from the use of the TFV’s other resources, which should be
used to benefit victims. This enables the TFV to provide assistance to the victims

79
Alina Balta, Manon Bax & and Rianne Letschert, Trial and (Potential) Error: Conflicting Visions
on Reparations Within the ICC System, 29(3) INT’L CRIM. JUST. REV. 221, 225 (2019), https://journals.
sagepub.com/doi/pdf/10.1177/1057567718807542.
80
Roht-Arriaza & Orlovsky, supra note 69, at 4.
81
Aberg, supra note 6, at 31.
82
ICC Assembly of States Parties, Regulations of the Trust Fund for Victims ICC-ASP/4/Res.3, ICC,
Section III.56 (Dec. 3, 2005), https://www.icc-cpi.int/NR/rdonlyres/0CE5967F-EADC-44C9-
8CCA-7A7E9AC89C30/140126/ICCASP432Res3_English.pdf.
83
TFV, Reparation Implementation, supra note 73.
84
Id.
 Reparations in the International Criminal Court____ 107

even prior to a trial and employ various modalities, both individual and collective,
to be able to assist the victims.85
This assistance mandate also puts into perspective the role of the TFV
similar to an international aid organization, especially when it is able to address
the needs of the victims that otherwise would not have been addressed by any
government agency.86 Against this backdrop is a perception that the TFV’s
assistance mandate acts as a “safety net” to its reparation mandate, as the Trial
Chambers rely on the former to extend some form of assistance for victims outside
the scope of the identified beneficiaries.87 Scholars have sometimes likened this
principle to the “Swiss cheese model in which the assistance mandate is seen as
the filling in the gap that the limited reparations process was not able to provide.”88
What these observations point out is the need for the ICC and the TFV to be
able to cohesively work together and choose a mode of reparations and assistance
that will best suit the needs of the victims who have suffered both direct and
indirect harms, and the post-conflict situation they are in.

IV. Assessment of Court-Ordered Reparations in Lubanga

The seminal case of Lubanga tried before the ICC lays out the core
principles and procedures of reparation to be observed by the tribunal.89 While the
ICC and the TFV has so far dealt with three Court-ordered reparations in the
Lubanga, Katanga and Al Mahdi cases,90 it is the Lubanga case which first
“establishes a liability regime for reparations that is grounded in the principle of
accountability of the convicted person towards victims.”91 Thus, the so-called
“principle of liability to remedy harm” ties in both the punitive aspect of a criminal

85
Balta, et. al., supra note 79, at 233.
86
Aberg, supra note 6, at 33.
87
Balta, et. al., supra note 79, at 234.
88
Id.
89
Carsten Stahn, Reparative Justice after the Lubanga Appeals Judgment on Principles and
Procedures of Reparation, BLOG EUR. J. INT’L L. (Apr. 7, 2015), https://www.ejiltalk.org/reparative-
justice-after-the-lubanga-appeals-judgment-on-principles-and-procedures-of-reparation/.
90
See Anne Dutton & Fionnuala Ní Aoláin, Between Reparations and Repair: Assessing the Work of
the ICC Trust Fund for Victims under Its Assistance Mandate, 19 CHI. J. INT'L L. 490 (2018-2019),
https://chicagounbound.uchicago.edu/cjil/vol19/iss2/4/.
91
Stahn, supra note 89.
108____Philippine Yearbook of International Law

proceeding,92 while addressing the harms suffered by the victims.93 It has even
been said that the Lubanga decision presented a “warning”94 to future perpetrators
that they will not only face incarceration, but also the consequences of their
actions towards the victims of atrocities. The portion below focuses on the
Lubanga case and its reparation orders.
Thomas Lubanga Dyilo (Lubanga) was a founder and once president of
the Union des patriotes congolais (Union of Congolese Patriots or UPC), and
Commander-in-Chief of the Forces patriotiques pour la libération du
Congo (Patriotic Forces for the Liberation of the Congo or FPLC).95 He was found
guilty, on Mar. 14, 2012, of the war crimes of enlisting and conscripting children
under the age of 15 years and using them to participate actively in hostilities (child
soldiers); he was sentenced, on July 10, 2012, to a total of 14 years of imprisonment.
The ICC issued a Reparations Order setting the amount of Lubanga’s
liability for collective reparations at USD 10,000,000. The Chamber examined a
sample of 473 representative victims’ applications and concluded that 425 of them
were “most likely direct or indirect victims of the crimes of which Lubanga was
convicted.”96 The Chamber, however, acknowledged that there may be thousands
more victims of Lubanga, some of whom were not able to or are no longer willing
to participate in the reparation proceedings.97
Because of Mr. Lubanga's indigence, the Chamber instructed the TFV to
determine whether earmarking or raising additional amounts are necessary to
implement the collective reparations, as well as to coordinate with the
Government of the Democratic Republic of the Congo (DRC) if the latter can
contribute to the process.98
As far as allowable (due to confidentially conducted proceedings), the TFV
has declared that it has implemented or will be implementing the following
collective reparations: (a) symbolic reparations such as the construction of
92
Id.
93
Serge Makaya, Critical Considerations Regarding Reparations in the Thomas Lubanga Case at the
ICC, INT’L JUST. MONITOR (Sept. 19, 2016), at https://www.ijmonitor.org/ 2016/09/critical-
considerations-regarding-reparations-in-the-thomas-lubanga-case-at-the-icc/.
94
Id.
95
ICC, Lubanga case: Trial Chamber II issues additional decision on reparations (Dec. 15, 2017),
https://www.icc-cpi.int/Pages/item.aspx?name=pr1351.
96
Id.
97
Id.
98
Id.
 Reparations in the International Criminal Court____ 109

symbolic structures and holding of a mobile programme to host interactive

symbolic activities and to reduce stigma against former child soldiers; and (b)
service-based reparations such as mental and physical health services to address
the trauma and bodily harm suffered, vocational training to account for the
absence of skills learned during development years, and income-generating
activities to enable their life project.99 So far, the TFV has identified 854
beneficiaries, but is struggling to complete the total amount of reparations
needed. The TFV has been able to complement half of the award and is currently
seeking contributions for the remaining 4.25 million euros.100

A. Elements of a Reparation Order

The Lubanga decision noted that a judicially-issued reparation order must

contain, at the minimum, five essential elements: “1) it must be directed against
the convicted person; 2) it must establish and inform the convicted person of his
or her liability with respect to the reparations awarded in the order; 3) it must
specify, and provide reasons for, the type of reparations ordered, either collective,
individual or both, pursuant to rules 97 (1) and 98 of the Rules of Procedure and
Evidence; 4) it must define the harm caused to direct and indirect victims as a
result of the crimes for which the person was convicted, as well as identify the
modalities of reparations that the Trial Chamber considers appropriate based on
the circumstances of the specific case before it; and 5) it must identify the victims
eligible to benefit from the awards for reparations or set out the criteria of
eligibility based on the link between the harm suffered by the victims and the
crimes for which the person was convicted.”101
These requirements illustrate the tie-in approach earlier mentioned, that is,
it balances the rights of the convicted person (through the requirement of
specificity) which is an element of a criminal proceeding, with the need for victim
accountability.102 It also reinforces that “responsibility for reparations is markedly

99
TFV, The Lubanga Case, (n.d.), https://www.trustfundforvictims.org/what-we-do/ reparation-
orders/lubanga.
100
Id.
101
The Prosecutor v. Thomas Lubanga Dyilo (Judgment with Amended Order for Reparations), supra
note 40, at 7/97, item 1.
102
Stahn, supra note 89.
110____Philippine Yearbook of International Law

different from the determination of individual criminal responsibility,”103 and in

the view of this paper, exemplifies best the role of the ICC in transitional justice.104

B. Standard of Proof

Likewise, the standard of proof in the reparation proceeding is more lenient

than the criminal trial owing to the “‘fundamentally different nature of reparation
proceedings’ and the potential ‘difficulty victims may face in obtaining
evidence.’”105 In Lubanga, there need not be a proof beyond reasonable doubt that
there is a causality between the crime proven and the harm suffered. Instead, the
ICC merely required a “sufficient proof of causal link between the crime and harm
suffered, based on the specific circumstances of the case.”106

C. Criticisms to the Reparation Order

There were also criticisms of the reparations order in Lubanga. The first
concern is the determination of who may be considered as victims. The Trial
Chamber held that direct victims are the child soldiers, and the indirect victims
are the parents of the child soldiers. Excluded in the indirect victims’ category are
persons attacked by a child soldier because this loss, damage, or injury is not
linked to the harm inflicted on the child soldier. Victims of sexual- and gender-
based violence were also excluded.107 Against the TFV’s initial estimation of 3,000
103
Id.
104
Id. (“A second major contribution of the judgment is its articulation of the link between criminal
conviction and reparation under Article 75. The ICC reparations regime differs from civil claim
models due to its nexus to the criminal case, and specifically the focus on conviction. The
judgment clarifies that ‘reparation orders are intrinsically linked to the individual whose
criminal responsibility is established in a conviction and whose culpability for these criminal
acts is determined in a sentence’ [AC, para. 65])”
105
Id.
106
Prosecutor v. Thomas Lubanga Dyilo (Order for Reparations), supra note 4, at 5/20 item 22.
107
Balta, et. al., supra note 79, at 227; see also endnote 43. (“Whereas the Trial Chamber I held that
the Court “should formulate and implement reparations awards that are appropriate for the
victims of sexual and gender-based violence,” the Appeals Chamber amended this Decision. See
Lubanga Decision establishing Principles and Procedures, supra note 25, para. 207. Under the
Assistance Mandate, however, the TFV developed several projects in the DRC to address the
needs of victims, survivors of sexual- and gender-based violence. xxx In addition, it made
reference to the Lubanga Sentencing Judgment, whereby acts of sexual violence could not be
 Reparations in the International Criminal Court____ 111

direct and indirect victims eligible for reparations, the Trial Chamber only sifted
through a sample of 473 applications, of which 425 were found to be eligible.108
Limiting the number of beneficiaries despite the recommendations of the TFV
creates a notion that there is a high threshold for victims to overcome before being
able to access the ICC. It also reinforces the notion that a harm or suffering is only
personal to the victims, and do not have a larger impact on society.109
Second, the Trial Chamber based Lubanga’s liability (estimated to 8,000
euro per victim) to the harm caused even to nonidentified victims, ergo the
nonidentified beneficiaries.110 While it may appear to be a turnaround from the
limitations the Court placed on who may be eligible beneficiaries, the amount is
not something that can be realistically met by the convicted person due to his
indigency. Therefore, although it is asserted that reparations ensure that the
offenders account for their acts, the extent of accountability is at the moment
limited to an apology.111
Moreover, because of the obvious limitation in resources, reparation may
not be immediately implemented.112 This results in a prolonged state of material
and social inequality,113 making the search for justice elusive and painful to the
survivors and victims. An often-cited example by scholars is the “forty acres and a
mule” reparation promised by General Sherman to former American slaves, which
was not paid, and the lesser grants of land, goods, and money did not give a sense
of justice to the former slaves.114 Other examples cited are the South African and

attributed to Lubanga, and neither could he be held responsible for the harm ensuing from these
crimes. The Chamber referred the victims who did not meet the eligibility criteria to the
assistance mandate.”)
108
Id. at 229. (“In setting the monetary liability of Lubanga, in addition to the harm caused to the
425 beneficiaries, which was estimated to 8,000 euro per victim, in a first of its kind, the Court
also factored in the harm caused to nonidentified victims.”)
109
See also Balta, et. al., supra note 79, at 230.
110
Id. at 229-230.
111
Id. at 231; c.f. Stahn, supra note 89. (“The Chamber held expressly that the indigence of the
convicted person is not an obstacle to the “imposition of liability for reparations” (AC, para. 104).
This reading of Article 75 is a clear victory for victims who sought express judicial
acknowledgment of accountability, independently of the perpetrator’s indigence. It strengthens
the expressivist dimensions of ICC reparations which are of key importance, in light of the
limited resources of the Trust Fund.”)
112
Gray, supra note 14, at 1049.
113
Id.
114
Id.
112____Philippine Yearbook of International Law

Argentinian experiences, where even if the amount of reparation is quite

significant, “political realities and abiding guilt among survivors concerned with
spending ‘cursed money’ limit the capacity of reparations to significantly change
the lot of victims or recipients.”115
Third and relatedly, monetary reparations, regardless of the amount, are
sometimes seen as an “equivalent” of the harms suffered by the survivors and
victims. But how can one measure the monetary value of a harm suffered? As in
tort law, material reparations are also criticized as a “‘one-time pay-off trap’ [that]
essentially closes the door on any subsequent justice claims,”116 with an
unspecified or unreachable threshold that needs to be met through evidence.
The quick solution of the ICC and the TFV in the Lubanga case was to
exclude individual reparations and instead provide for a collective one.117 This was
recommended by the TFV in light of the “limited number of victims participating
in the trial and the time- and resources-consuming process of locating other
victims was cumbersome for the purpose of individual reparations.”118 The TFV
also believed that “collective reparations consisting of community-based
programs and rehabilitation are most effective in this situation.”119
In a way, non-material and symbolic reparations such as apologies and
public monuments may not be necessarily enough for a given set of survivors and
victims. It is this feeling of inadequacy that the recipients may feel trapped and
feel that the system has failed them.120 The victims in the Lubanga case have
specifically requested for individual instead of collective reparations and the order
of the ICC caused frustration to some, leading to the withdrawal of their
participation from the proceedings.121 There was also a belief that community-
based services such as the construction of schools and hospitals would benefit the
perpetrators who lived in the same community, so the victims instead sought for
compensation, even though it may be limited to a small symbolic amount.122 Both

115
Id. at 1050.
116
Id. at 1059.
117
Balta, et. al., supra note 79, at 232.
118
Id.
119
Id.
120
Gray, supra note 14, at 1061.
121
Balta, et. al., supra note 79, at 232.
122
Id. at 233.
 Reparations in the International Criminal Court____ 113

the ICC and the TFV recognized that they indeed “missed the mark”123 by awarding
collective reparations despite the clear preference of the victims, resulting in the
revision of the reparation order to grant the symbolic amount of 8,000 euro per
victim.
Nevertheless, the TFV noted that it remained bound by the criteria of
feasibility and declared that collective reparations shall be prioritized over
individual ones.124 This is not an unusual scenario, considering the circumstances
that the TFV operates on the ground: a huge gap in resources but with a mandate
to provide both reparations and assistance to a large group of victims. 125 The TFV
is then constrained to follow a “pragmatic approach… [by helping] more victims,
within both mandates, in case it uses collective reparations such as community-
based assistance and symbolic projects that pursue reconciliation.”126 In a way, this
can be seen as the blurring of the lines between the TVF’s reparation and
assistance mandates, and it acting as if it were an international aid organization.
Along this line of reasoning, it can be argued that reparation tends to
inundate the role of development institutions. Development is generally
described as that process by which a community and its members experience
prosperity and welfare through various activities spearheaded by various
institutions, such as infrastructure building, so that the members have “at least a
minimum level of income or livelihood for a life with dignity.”127
Even from an economic perspective, it is natural to confuse the notions of
reparation and development in resource-poor areas. They may be different
conceptually but are actually complementary within the context of transitional
justice. Because both take place in post-conflict areas where state institutions tend
to be weak,128 reparation can increase the community’s awareness of their rights
and needs, which development can then support in the short and medium term.
The caveat here is that reparations programs must complement
development efforts instead of duplicating them.129 This could only happen if there
is a community-centric plan that focuses on social integration and the needs of

123
Id.
124
Id.
125
Id. at 234.
126
Id.
127
Roht-Arriaza & Orlovsky, supra note 69, at 1.
128
Id. at 2.
129
Id. at 3.
114____Philippine Yearbook of International Law

the members, instead of merely focusing on what activities may be done at the get-
go.
Similarly, reparation should never replace long-term development
strategies.130 Reparation is meant to develop the trust and confidence among
survivors and the families of the victims – values that are intended to “set the stage
for a more positive long-term interaction between the state and [its] citizens.”131
Reparations cannot go on forever, and genuine development must take over at
some point.
Fourth and finally, the element of time is always an enemy of a court-
ordered reparations program. As the ICC awards the reparation and sets the
framework, it is incumbent upon the TFV to draft an implementation plan to be
approved by the former. The succeeding back-and-forth of the document and the
specificity which is required by the Trial Chamber in the Lubanga case (i.e., “the
plan should consist of a list of potential beneficiaries, an evaluation of the harm
suffered by the victims, proposals for the reparative projects, the expected costs of
these projects, and the monetary amount that the TFV could potentially allocate
to the reparations”132) somehow contributed to the decline in victim participation
in the proceedings for fear of revealing their identities or having waited too long
to receive reparation.133

V. Strengthening Reparations in the ICC as

A Form of Transitional Justice

It has been said that the Rome Statute framework is “uniquely receptive to
balancing the rights of victims with the rights of the accused in criminal justice
processes.”134 As the ICC takes a more proactive role in transitional justice with its
groundbreaking decision in Lubanga, there is a plethora of principles and
practices that both the ICC and TFV can look into to strengthen its reparations
regime. These recommendations are premised on the need for the ICC and the

130
Id.
131
Id.
132
Balta, et. al., supra note 79, at 235.
133
Id. at 236.
134
Marissa R. Brodney, Implementing International Criminal Court-Ordered Collective Reparations:
Unpacking Present Debates, 2016(1) J. OXFORD CTR. SOCIO-LEGAL STUD. 1, 35, http://nrs.harvard.
edu/urn-3:HUL.InstRepos:34818043.
 Reparations in the International Criminal Court____ 115

TFV to actively work together and deliver a reparation regime that is responsive to
the needs of the victims.

A. Assistance Mandate

In a research study conducted by scholars Anne Dutton and Fionnuala Ní

Aoláin in the work of the TFV under its assistance mandate in Northern Uganda,
certain indicators of success were identified “in hopes of illuminating best
practices on repair, at both a conceptual and operational level [by] using the
assistance mandate as a lever to explore broader themes and practicalities.”135 The
study was driven by the request of the ICC during the conclusion of the Lubanga
criminal trial to states, organizations and other stakeholders to provide the Court
with “information to inform its judicial decision-making on past and current
reparations projects for former child soldiers and on collective reparations.”136
The result was a comprehensive list of indicators, drawn upon from
numerous interviews with the victims and their families, communities and staff of
the TFV, implementing partners and the government. Some of these indicators
include the following: (a) indicators of success in individuals, including
establishing connection with others, participation in economic activity, self-
accept and of past experiences, feeling a restored sense of hope, increased use of
healthy coping mechanisms, experiencing fewer/lesser symptoms of mental
illness, and improvement in physical health; (b) indicators of success in families,
including decreased stigma within families, improved family relationships,
reconciliation of spouses, and increase in economic power; (c) indicators of
success in communities, including culture of togetherness and supportive
communities; (d) indicators of success in implementing partners, including
implementing partners seen as trusted leaders and increased professionalization
among the ranks; and (e) indicators of success in government, including
government empowerment and accountability, and long-term programmatic
success.137

135
Dutton & Aoláin, supra note 90, at 9.
136
Id.
137
See Dutton & Aoláin, supra note 90.
116____Philippine Yearbook of International Law

Figure 2. List of Indicators of Success

• Establishing connection with others

• Participation in economic activity
Indicators of • Self-accept and of past experiences
Success in • Feeling a restored sense of hope
Individuals • Increased use of healthy coping mechanisms
• Experiencing fewer/lesser symptoms of mental illness
• Improvement in physical health
• Decreased stigma within families
Indicators of • Improved family relationships
Success in Families • Reconciliation of spouses
• Increase in economic power
Indicators of • Culture of togetherness
Success in
Communities • Supportive communities

Indicators of
Success in • Implementing partners seen as trusted leaders
Implementing • Increased professionalization among the ranks
Partners
Indicators of • Government empowerment and accountability
Success in
Government • Long-term programmatic success

Taking off from these indicators, it appears that the assistance mandate of
the TFV, when done correctly, posits a great deal of benefits in accomplishing a
sense of justice familiar to the victims. While an argument can be made (and has
certainly been posited by several scholars in the past) that the assistance mandate
has no place in the ICC’s framework as a criminal tribunal and because it competes
with the reparations mandate on the allocation of the Fund’s limited resources,138
there is considerable value for the TFV to provide this form of general assistance.
138
See Regina E. Rauxloh, Good intentions and bad consequences: The general assistance mandate of
the Trust Fund for Victims of the ICC, 34(1) LEIDEN J. INT’L L. 203 (2021), https://www.cambridge.
org/core/journals/leiden-journal-of-international-law/article/abs/good-intentions-and-bad-con
sequences-the-general-assistance-mandate-of-the-trust-fund-for-victims-of-the-icc/F4831BF9D
BB0C617AB1FD8DE70B5D7DB. (“Indeed, the victim is understood to be at the heart of ICL. But
this argument overlooks the fact that there must be a clear distinction between victims as
protagonists of a trial and victims in the sense of beneficiaries of the Trust Fund’s general
assistance mandate. This article does not advocate limiting rights of the former, nor does it deny
 Reparations in the International Criminal Court____ 117

One, the TFV is seen as the human face of the ICC139 and helps build
credibility for the court. As most victims may not have the capacity to understand
the legal hermeneutics in a reparation order, the assistance mandate may be the
institution’s best response in engaging not just the victims, but also the state and
other interested parties. This also ties in with the role of the TFV during a
reparation proceeding in which it is asked to evaluate circumstances on the
ground and propose an implementation plan. Without such significant
engagement, the implementation plan cannot be crafted realistically.
Second, because the assistance programs can precede the reparation
proceedings, they can serve as a cushion to victims who might be burdened over
the technical thresholds required by the ICC or who may not have the capacity to
wait for so long before an implementation plan may be approved. This also
complements the view that “the earlier the intervention which engages directly
with trauma and the direct physical and psychological legacies of violence for
victims will be more likely to ensure that victims can move forward positively with
their lives.”140
Finally, as the ICC itself in the Lubanga case acknowledged that there can
be more (thousands even) victims141 than what it was able to examine, limiting the
award of reparation to those who were only able to file a claim and able to keep
up with the process (i.e., those identified under the reparation mandate) may run
counter to the principles of justice that the ICC espouses.

that the survivors of mass atrocities are in dire need of concrete support. What is argued here is
that any support coming from the Court needs to be limited to those victims who have been
identified by the Court as victims of the specific case. The general assistance mandate on the
other hand extends the concept of victim to all those who have severely suffered in the atrocities.
xxxx The ICC is only one part in the range of international and national responses to gross
human rights violations. Due to its financial and jurisdictional limitations it will only ever be a
symbolic court that can only deal with a small part of atrocities. But this symbolic value depends
on the legitimacy of the Court and its procedures. The general assistance mandate is not only a
drain on scarce resources but more importantly, severely impacts on the legitimacy the Court.
Needs-based assistance for victims and the justice mandate of the ICC are incompatible and
therefore need to be institutionally separated.”)
139
Katharina Peschke, The Role and Mandates of the ICC Trust Fund for Victims, in THORSTEN
BONACKER, VICTIMS OF INTERNATIONAL CRIMES: AN INTERDISCIPLINARY DISCOURSE 13 (Jan. 2013),
https://www.researchgate.net/publication/291242359_The_Role_and_Mandates_of_the_ICC_
Trust_Fund_for_Victims.
140
Dutton & Aoláin, supra note 90, at 59.
141
ICC, Lubanga case: Trial Chamber II issues additional decision on reparations, supra note 95.
118____Philippine Yearbook of International Law

B. Reparation Mandate

In terms of the thresholds imposed by the ICC on the application for

reparation and the TFV’s reparations mandate, there is a need to re-examine these
principles and take cue from some practices outside the scope of the ICC.

1. Definition of “Victim” and “Harm”

One of the limitations of an ICC-ordered reparation is the need to comply

with the essential elements earlier noted,142 specifically that the order must
identify the direct and indirect victims of the crimes for which the perpetrator was
convicted from. This involves a link among the identified victims, the harm they
suffered, and the crime established, and necessarily requires that the crime be first
established before the victims may be able to prove their standing in court.
In contrast, the Extraordinary Chambers in the Courts of Cambodia
(“ECCC”) took on a different approach by allowing the victims to choose between
the reparation ordered or those that may be achieved through third parties. In the
latter case, the ECCC amended its rules so that victims were “afforded the status
of civil parties as long as they proved that the harm visited on them was directly
related to the factual circumstances set out in the Introductory and
Supplementary Submissions.”143 This means that the crimes alleged were
determined at a later time, resulting in a lower threshold (i.e., the link between the
crime proved and the harm to the victims) than that imposed by the ICC.144 It also
frees up a tribunal from deciding on the admissibility of victims as civil parties,
enabling as many victims as possible to participate in the proceeding.145 Those who
choose reparation through third parties are then endorsed to the ECCC Victims
Support Section to participate in the drafting of an implementation plan.146 This is
similar to the TFV’s present practice of also seeking funding from donors to
implement both its assistance and reparation mandate.

142
Prosecutor v. Thomas Lubanga Dyilo (Judgment with Amended Order for Reparations), supra
note 101.
143
Balta, et. al., supra note 79, at 231.
144
Id.
145
Id.
146
Id.
 Reparations in the International Criminal Court____ 119

If this mechanism is adopted by the ICC, claimants will be given the two
viable options: “[r]eparations ordered against indigent accused, which must abide
by strict procedural rules to safeguard the rights of the accused, or through
donations by third parties, [which] might be more worthwhile in terms of
delivering meaningful justice to victims.”147 Either way, casting a wide net on who
may be considered as victims does away with the criticism that the ICC only
provides selective justice.

2. Standard of Proof

Perhaps aware of the limitations of the ICC in hearing all the claims, as well
as due regard to the difficulties faced by the victims, the Court had rightly veered
away from the usual standard of proof used in criminal proceedings (i.e., proof
beyond reasonable doubt), and used the rather flexible “sufficient proof of causal
link”148 from the crime committed and the harm suffered.
There are, however, suggestions on numerous scholarships that the ICC can
further relax this standard by using certain presumptions in favor of the victims.149
After all, a reparation proceeding is distinct from the trial relating to criminal
liability.

147
Id. at 233; c.f. Brodney, supra note 134, at 12. (“However, reparations claimants at the ECCC are
civil parties to proceedings, unlike prospective reparation beneficiaries at the ICC who may
qualify for reparations but may not have applied for reparations or participated in the context
of proceedings that precede authorization of an award.”)
148
Prosecutor v. Thomas Lubanga Dyilo (Order for Reparations), supra note 4, at 5/20, item 22.
149
Even the Prosecution in Lubanga attempted to use the presumption method, but the Trial
Chamber proceeded to assess the evidence instead. See Prosecutor v. Thomas Lubanga Dyilo ICC-
01/04-01/06 A 5, Judgment, 163/193, item 454 (Dec. 1, 2014), https://www.icc-cpi.int/Court
Records/CR2014_09844.PDF. (“Mr Lubanga’s latter arguments are analysed elsewhere in this
judgment. With respect to the first argument, the Prosecutor contends that, even applying the
standard of a “virtually certain consequence”, the Trial Chamber would have found that
conscription, enlistment and use of children under the age of fifteen years to actively participate
in hostilities was a virtually certain or almost inevitable consequence of the implementation of
the common plan. xxxx Accordingly, the Appeals Chamber finds that the Trial Chamber,
contrary to Mr Lubanga’s allegation, sufficiently addressed the underlying evidence and finds
that the Trial Chamber’s conclusion was not unreasonable.”)
120____Philippine Yearbook of International Law

In Suarez Rosero v. Ecuador,150 the Inter-American Court of Human Rights

(“IACHR”) did not require any proof of suffering from the victim, his wife, and
daughter to be awarded damages, holding that “it is human nature to suffer in the
circumstances he had been through,”151 given the totality of circumstances in the
case. Mr. Suarez Rosero here was arrested without warrant in Ecuador for illegal
drug trafficking, but was not, at any given stage, summoned to appear before a
judicial authority or informed of the charges against him.152 In the Plan de Sanchez
Massacre,153 the IACHR stated that “taking into account, inter alia, the
circumstances of the case… there are sufficient grounds for presuming the
existence of damage,”154 and proceeded to award damages to the identified
members of the community. In 1982 and during Guatemala’s civil war, several
people of Achi Maya descent were abused and murdered by the members of the
armed forces in the town of Plan de Sanchez.155 Similarly, the truth telling
commission in Chile, the National Commission on Illegal Detention and Torture,
indicated that “victims who were able to prove detention in certain detention
facilities in Chile at a certain time were presumed to have been tortured due to
evidence of systematic torture being used in those facilities at that time.”156
Another principle that may be used is the cy-pres doctrine (“as near as
possible”)157 to endow certain groups when the original intended beneficiaries can
no longer be found or has ceased to exist. There is a generational component in
the doctrine, in that reparations could be extended to the children of the victims

150
Suarez Rosero v. Ecuador, Merits, Judgment, Inter-Am. Ct. H.R. (Nov. 12, 1997), https://www.
corteidh.or.cr/corteidh/docs/casos/articulos/seriec_35_ing.pdf.
151
Dinah Shelton & Thordis Ingadottir, The International Criminal Court Reparations to Victims of
Crimes (Article 75 of the Rome Statute) and the Trust Fund (Article 79): Recommendations for the
Court Rules of Procedure and Evidence, Center on International Cooperation, at 8 (1999),
available at http://www.vrwg.org/downloads/reparations.pdf.
152
Suarez Rosero v. Ecuador, supra note 150.
153
Plan de Sanchez Massacre v. Guatemala, Reparations, Judgment, Inter-Am. Ct. H.R. (Nov. 19,
2004), https://www.corteidh.or.cr/docs/casos/articulos/seriec_116_ing.pdf.
154
Id. at 74.
155
Id. at 24.
156
REDRESS, Justice for Victims: The ICC’s Reparations Mandate, 66 (2011), https://redress. org/wp-
content/uploads/2018/01/REDRESS_ICC_Reparations_May2011.pdf.
157
Id. (“Footnote 301: The cy-près doctrine is a legal doctrine that first arose in courts of equity in
relation to the execution of trusts. The term is translated ‘as near as possible’ or ‘as near as may
be.’ The doctrine has been applied in the context of class action settlements in the United States
as well as international mass claims processes in the post conflict context.”)
 Reparations in the International Criminal Court____ 121

in post-conflict situation. The doctrine was also used in the United States where a
trust fund was established for the abolition of slavery; but once the purpose was
achieved, the funds were instead appropriated for individuals of African descent
needing assistance.158 So, the doctrine could be appropriate where “collective
awards or fixed lump sums are foreseen for a large number of victims, and where
the extent of individual harm and suffering within a given category is
immaterial.”159

3. Engagement of Victims and Stakeholders

The criticisms with the ICC somehow tie up to how well the court and the
TFV prioritizes victim participation in the reparation proceedings, vis-à-vis the
protection of the rights of the accused. Apart from that balancing act, it can be
seen in the Lubanga case that victim participation can be resource intensive for
both the victims and the ICC, to the point that critics have remarked that the
claimants have been “relegated to mere third parties.”160 Moreover, because of the
volume of claims, victim participation also affects the ICC’s procedural efficiency,
which in turn disappoints the victims and limits their “legal agency to exercise
their rights” at the court.161
While there are both substantive and procedural challenges to victim
participation in a reparation proceeding, justice from the lens of the victims
cannot be simply disregarded. The ICC should, in its broad powers under Article
75(1), consider formalizing a participation regime where the victims can air their
concerns for the consideration of the court, as well as “encourage victim-oriented
complementarity through domestic mechanism that enable victim participation
(which in itself would improve the public transparency of investigations and
trials).”162
158
Id. at 67.
159
Id.
160
Juan-Pablo Perez-Leon-Acevedo, Victims and appeals at the International Criminal Court (ICC):
evaluation under international human rights standards, INT’L J. HUM. RTS. (2021), available at
https://www.tandfonline.com/doi/full/10.1080/13642987.2020.1859483.
161
Id.
162
Luke Moffett, Meaningful and Effective? Considering Victims’ Interests Through Participation at
the International Criminal Court, 26(2) CRIM. L. F. 255, 24 (2015), https://pureadmin.qub.
ac.uk/ws/portalfiles/portal/15375987/Journal_article_Meaningful_and_effective_Considering_v
ictims_interests_through_participation_at_the_International_Criminal_Court.pdf.
122____Philippine Yearbook of International Law

The matter of complementarity can also be an important tool in ensuring

“sustainability and effectiveness” of a reparation program163 amid the backdrop of
stakeholder engagement. The reality is that there is a need for the TFV to form
broad political coalitions, as well as exercise creative judgment that combines
legal, political, social and economic approaches164 to be able to ensure that
reparations are able to serve their purpose. An example of this is the Truth
Commission in Guatemala in which a National Reparations Committee was
created by legislation. The Guatemalan government representatives publicly
affirmed the commitment of the state to recognize responsibility for human rights
violations committed during the armed conflict, which led to a snowball of
government efforts in facilitating reparation applications.165

4. Modality of Reparations

A point to consider by the ICC and the TFV is that the form of reparation,
whether in the assistance or reparations mandate, depends on a variety of factors,
including “cultural attitudes towards money or the lost goods, and social
structures of gender, class, urbanizations, age, education, and access to capital.” 166
The ICC and TFV can take cue from several best practices which exist in
other transitional justice mechanisms. For instance, the reparation program in
Nepal’s Internal Armed Conflict is one that “acknowledges the importance of
reparations to women victims.”167 Thus, the wives of the disappeared individuals
or desaparacidos were not repeatedly required to prove their status, but instead
prioritized in programs relating to access to education, scholarships, land
distributes, and asset ownership.168 The point of the reparation program is that a

163
REDRESS, No Time To Wait: Realising Reparations for Victims Before the International Criminal
Court, 14, 65 (2019), https://redress.org/wp-content/uploads/2019/02/ 20190221-Reparations-
Report-English.pdf.
164
Boraine, supra note 1, at 25.
165
E. Christine Evans, The Right to Reparations in International Law for Victims of Armed Conflict:
Convergence of Law and Practice? LSE THESES ONLINE, 150 (2010), http://etheses.lse.ac.uk/2215/
166
Roht-Arriaza & Orlovsky, supra note 69, at 3.
167
Amrita Kapur, Overlooked and invisible: the women of enforced disappearances, OPENDEMOCRACY
(Apr. 14, 2015), https://www.opendemocracy.net/en/opensecurity/ overlooked-and-invisible-
women-of-enforced-disappearances/; see also International Center for Transitional Justice,
Reparations, (n.d.), https://www.ictj.org/our-work/transitional-justice-issues/reparations.
168
Id.
 Reparations in the International Criminal Court____ 123

gender-responsive reparation program should also address pre-existing gender

discrimination.169
This is in stark contrast to the experience in Sri Lanka where reparations for
internally displaced resettlement did not reach women beneficiaries because
“customary practices of holding property in men’s names meant that women had
few legal protections to buttress their reparations claims;”170 in Rwanda where war
widows are not awarded reparations because local laws do not include women
with inheritance rights;171 or in the Philippines during the martial law reparations
proceedings when the calculation of damages was based on the loss of earnings
that are pegged at the women-victims’ salary, which is considerably lower
compared to male workers.172
Meanwhile, the Truth Commission in East Timor resorted to a grassroots
approach in which a high percentage of its staff were hired locally, thus
“enhanc[ing] its legitimacy and sense of national ownership.”173 The Commission
worked closely with the community and went as far as proposing that 50% of the
reparations should go to women in an effort to balance their underrepresentation
during the proceedings.174
A word of caution: while it has been said that reparations can sometimes
infringe on the role of developmental aid, this can only happen if there is a lack of
a community-centric plan that does not consider existing development efforts and
proceeds to duplicate instead of complementing them. Stakeholder engagement
is key to avoiding this pitfall.

5. Resources

The limited resources of the TFV, can and remains to be a bane to its
potential. Experts have pointed out that for all its reparation programs to be
considered as sustainable, the TFV must raise a total of €40 million in voluntary

169
Id.
170
Vasuki Nesiah, Truth Commissions and Gender: Principles, Policies, and Procedures, Gender Justice
Series, International Center for Transitional Justice, ICTJ, 35 (2006), https://www.ictj.org/sites/
default/files/ICTJ-Global-Commissions-Gender-2006-English_0.pdf.
171
Id.
172
Id. at 36.
173
E. Christine Evans, supra note 165, at 188.
174
Nesiah, supra note 170, at 36.
124____Philippine Yearbook of International Law

contributions and private donations by 2021.175 This is a tall order that the TFV does
not seem to meet year in, year out.
A good financial management plan is necessary for the TFV to be able to
address its resource needs. For example, to be able to expand its fundraising
capacity, the TFV must enhance its present communication plan and raise
awareness to its objectives.176 The TFV can emphasize to its stakeholders that they
have a buy-in in supporting the peace and healing of communities in post-conflict
situations and point out the long-term effects of reparation to future generations.
The TFV must also improve its capability in tracing, freezing and seizing of
the perpetrator’s assets.177 The ICC must be able to closely cooperate with states
parties and develop effective mechanisms that will ensure the capture of the
perpetrator’s assets for reparation purpose.178 The 2018 Resolution on
Strengthening the International Criminal Court and the Assembly of States Parties
(“Omnibus Resolution”) articulates this position and must be immediately
adhered to.179

6. Precautions

Outside the ICC are also precautionary examples. One of this is the Special
Court and Truth Commission in Sierra Leone.180 Here, the Truth Commission
provided a Final Report “with in-depth analysis of human rights violations, their
consequences for victims, elements of state responsibility and clear proposals for
the establishment of a reparations programme.”181 But the Special Court did not
take advantage of these information and recommendations, and the “lack of
coordination between the two transitional justice institutions was a missed
opportunity to leave a stronger legacy in favour of [the] victims.”182 As for the ICC,

175
REDRESS, No Time To Wait, supra note 163, at 12, 34.
176
Id. at 34.
177
Id.
178
Id.
179
Id.
180
Christine Evans, Case Study, Reparations in Sierra Leone, in CHRISTINE EVANS, THE RIGHT TO
REPARATION IN INTERNATIONAL LAW FOR VICTIMS OF ARMED CONFLICT 164 (2012).
181
Id. at 184.
182
Id. at 164.
 Reparations in the International Criminal Court____ 125

the TFV must remain a key player in providing recommendations to the court on
the appropriate reparations program for a given context.
Similarly, the Colombian experience provides a stronger case for the ICC to
separate its reparations program from the criminal proceeding and provide the
TFV with enough leeway to navigate its mandate freely without the burden of
dealing with the said proceeding. The Colombian precedent here involved “de-
linking” reparations from the prosecution stage because of the collusion between
state agents and armed groups.183

VI. Conclusion

It has been said that the ICC “occupies a unique space as a forum to discuss
[and advance] both criminal and transitional justice, and the Court’s different
institutional players give voice to concerns of each field in legal debates about
transitional justice measures in a criminal justice context.”184 While the court to
this day grapples with legitimate balancing concerns between the rights of the
accused and the needs of the victims, its pronouncements in Lubanga is a step in
the right direction, by setting a different standard for the reparations regime from
those of the criminal proceedings.
Nevertheless, there is always room for improvement. The broad discretion
given to the ICC under Article 75(1) of the Rome Statute should enable it to craft
policies and processes that will enhance its coordinative relationship with the TFV
and empower victims to not only to be able to participate, but also fully take
advantage of reparations awarded to them. A summary of these recommendations
is outlined below.

a. To strengthen the role of the ICC in propagating a viable reparations

regime as a tool of transitional justice, it must first reconcile the
seemingly competing mandates of the TFV. Both the ICC and the TFV
should strongly advocate for the retention of the TFV’s assistance
mandate, as it provides a great deal of benefits in accomplishing a
sense of justice familiar to the victims. It does not compete, but
instead complements, the reparations mandate of the TFV.

183
E. Christine Evans, supra note 165, at 207.
184
Brodney, supra note 134, at 35.
126____Philippine Yearbook of International Law

The assistance mandate is the ICC’s best response in engaging

not just the survivors and victims, but also the state and other
interested parties, and provides the TFV an opportunity to craft a
realistic implementation plan based on these interactions. Also,
because the assistance programs can precede the reparations
proceedings, they can serve as a cushion to victims who might be
burdened over the technical thresholds or long waiting time for a
reparation proceeding to conclude.
b. As regards the ICC’s reparations mandate, the ICC should consider
widening its net in recognizing victim-claimants. The Court can take
cue from the ECCC which offers the option of a court-ordered
reparation against the accused (and uses the standards of a criminal
proceedings) or one offered by third parties (and provides an efficient
means of delivering justice).
c. The ICC can also consider utilizing presumptions and lower
standards of proof (e.g., the cy-pres doctrine) in the interest of
delivering justice that is no more burdensome than the difficulties
already experienced by the victims in filing a claim and gathering
evidence. It has, in Lubanga, already rightly adopted a more flexible
approach in the standard of proof required from victims to make a
causal link between the crime proven and the harm suffered, and the
proposition to use presumptions and lower standards of proof are
very much aligned to this flexible approach.
d. The ICC should improve its engagement with the victims and other
stakeholders by formalizing a participation regime where the victims
can air their concerns for the consideration of the court, as well as
encourage victim-oriented complementarity through domestic
mechanisms.
e. The ICC should be creative and consider various forms of reparation
that is responsive to the needs of the victims. For instance, it can
adopt a reparation program that is not only gender-sensitive, but also
addresses gender discrimination. But to be able to do this, a grassroots
or community-centric approach is necessary to be able to understand
such cultural context, avoid duplication of existing developmental
efforts, and enhance the legitimacy and sense of national ownership
of the reparation program implementors.
 Reparations in the International Criminal Court____ 127

f. To address the resource gaps, the TFV should devise a sustainable

financial management plan that expands its fundraising capacity
through a series of communication programs. The TFV should also
improve its capability in tracing, freezing and seizing of the
perpetrator’s assets to be able to meets its funding goals.
g. Finally, there is also a plethora of precautions outside the ICC which
should put the institution into notice on how to best coordinate with
the TFV. One of these examples is the Sierra Leone experience in
which the Special Court disregarded the findings of the Truth
Commission. Translated into the work of the ICC, it should give due
regard to the recommendations of the TFV, as the latter is expected
to do the groundwork to ensure that the implementation plan is both
viable and responsive to the needs of the victims.

It was earlier argued that reparation is the missing link between retributive
justice and transitional justice, giving the ICC not just the human face, but also a
tangible way, to deal with the sufferings of the victims amid a protracted criminal
trial. With the Lubanga milestone at the forefront of this reparation regime and
perhaps, a willingness by the ICC to consider emerging reparation trends outside
its scope, the Court’s potential as a cog in transitional justice may soon be realized.