The right to reparations under the Rome Statute of the International Criminal Court (ICC) : the content of the right and its implementation in the light of the early case law of the Court /
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| Author / Creator: | Kabalira, Stanislas, author. |
|---|---|
| Imprint: | ©2016 |
| Description: | 394 pages ; 24 cm |
| Language: | English |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/10993043 |
Table of Contents:
- Acknowledgements
- Abstract
- List of select cases and related documents
- List of abbreviations and acronyms
- General Introduction
- I. Background information
- II. General and specific objectives of the study
- III. The structure of the book
- Part I. ICC Statute and Recognition of the Right to Reparations for Victims of Core Crimes
- Introduction
- Single chapter: Exploring the path that led to the right to reparations for victims before the ICC
- Introduction
- I. International law traditionally conceiving reparations for victims of crimes as an affair between States
- II. International human rights law imposing obligation upon or urging States to provide for victims' right to reparations under their domestic laws: The coaching stage
- III. Judicial and non-judicial human rights bodies granting victims reparations from States
- IV. International law privileging prosecution against individual perpetrators
- A. Absence of the victim before international criminal tribunals: Nuremberg and Tokyo Tribunal cases
- B. Victim rights under the ICTY and the ICTR regimes
- VI. The Rome Statute of the ICC: A victim-centred system
- A. Establishment of the International Criminal Court with a mandate to decide on reparations to victims
- B. The access of individual victims to an international criminal court
- Conclusion
- Part II. Understanding the Substantive Law Applicable to Reparations Under the ICC Regime
- Introduction
- Chapter I. The nature and the scope of the task given to the Court to establish the principles relating to reparations
- Introduction
- I. The nature of the power of the Court to establish principles to be applied to reparations
- II. Limits to the power of the Court to establish the principles relating to reparations
- III. The purpose and content of the principles relating to reparations
- A. Ensuring legal certainty and fairness in reparations decision-making
- B. Shaping the substantive (am to be applied to reparations
- Conclusion
- Chapter II. Principles emerging from the early case law of the Court
- Introduction
- I. Principles related to reparations in general
- A. Determination of the purposes of reparations before the ICC
- 1. A tool to oblige convicted persons to repair the harm they caused and account for their acts: Achieving true justice?
- 2. Achieving restoration to victims and deterrence for future violations
- 3. Promoting reconciliation
- 4. Exclusion of punitive damages and double recovery
- a. Non-relevance of punitive damages
- b. Avoiding double recovery
- B. The indication of the applicable law to reparations
- C. The scope of the principle of non-discrimination
- 1. The purpose of the principle of non-discrimination: Equality for all before, the law
- 2. Exceptions to the principle of non-discrimination
- a. Victims of sexual violence and gender-based violence
- b. Child victims: Considering the principle of 'best interests of the child'
- c. Priority for certain victims in a particularly vulnerable situation
- D. The principle of proportionality and promptness of reparations
- 1. Victims to receive proportional reparations
- 2. The principle of restitutio in integrum
- 5. The promptness of reparations
- E. The impact of indigence of a convicted person on liability for reparations
- II. Principles related to the standard of causation and recoverable harm
- A. Proximate cause and but /for test as a standard of causation
- 1. The criterion of proximate cause
- 2. 'The 'but/for test'
- B. Recoverable harm encompasses all forms of damage, loss and injury
- 1. The scope of physical harm
- 2. The scope of moral harm
- 3. The scope of material harm
- 4. Lost opportunities
- III. Principles relating to types of reparations
- 4. Restitution
- 1. 'Restitution' conceived as 'reparations' in general
- 2. Restitution as recovering in kind what a victim lost
- B. Compensation
- 1. Compensation as a form of economic relief
- 2. Factors required for compensation
- a. Existence of an economic harm sufficiently quantifiable
- b. Appropriateness and proportionality of compensation
- c. Availability of funds
- C. Rehabilitation and its scope
- 1. The concept of rehabilitation
- 2. Medical rehabilitation
- 3. The social rehabilitation
- 4. Rehabilitative measures within the context, of individual responsibility
- D. Other types of reparations contemplated by the Court
- 1. Conviction and sentence deemed as reparative measures
- 2. Wide publication of conviction and sentence decisions
- 3. Voluntary apology
- 4. Variety of other possible innovative measures for reputation
- E. Possible combinations of the various types of reparations
- Conclusion
- Part III. Procedural Law Applicable to Reparations
- Introduction
- Chapter I. The scope of the ICC's judicial mandate in respect of victims' right to reparations
- Introduction
- I. The principle of complementarity and individual liability for reparations
- A. The principle of complementarity from a criminal perspective
- B. Principle of complementarity and individual liability for reparation
- 1. The obligation of States to hold individuals liable for reparations
- 2. Principle of res judicata and individual liability for reparations
- II. The non-applicability of statutes of limitations to victims' requests for reparations
- III. Understanding the discretionary power of the Court to decide on reparations
- A. The Court's discretionary power to act on its own motion
- B. The Court's power to act upon requests
- Conclusion
- Chapter II. The initiation of reparation proceedings before the ICC
- Introduction
- I. Reparation proceedings as a result of a victim's request
- A. The notion of the victim for the purpose of reparation proceedings
- 1. Distinction between 'victim of a situation', 'victim m a case' and 'victim of a convicted person'
- 2. Natural persons as victims entitled to claim reparations
- a. The notion of direct and indirect victims
- b. The case of deceased and disappeared persons
- c. Can a group of persons be classified as victims?
- 3. Organisations and institutions as victims entitled to reparations
- B. Application procedure for reparations
- 1. When may a victim apply for reparations?
- 2. A victim's request shall be made in writing and tiled with the Registrar
- C. Prerequisite factors for a comprehensive request for reparations
- 1. Information on identification of victim
- 2. Information on the harm allegedly suffered
- 3. Indication of types of reparations sought
- D. The role of the Registry in facilitating victims' requests
- II. Reparation procedure on the motion of the Court
- III. Notification and publicity of reparation proceedings
- A. The methods and purpose of notification of reparation proceedings
- B. Publicity of reparation proceedings
- IV. The place of reparation proceedings within the whole trial before the ICC
- A. Reparation proceedings as a separate post-conviction procedure
- B. Advantages for victims seeking reparation to participate in criminal proceedings
- Conclusion
- Chapter III. Protective measures as a guarantee to the effectiveness of future reparation orders
- Introduction
- I. The stage of necessity determination to seek protective measures
- A. Protective measures sought after conviction
- B. Protective measures sought at the pre-trial stage
- II. Property and assets to be targeted by protective measures
- Conclusion
- Chapter IV. The purpose of reparation hearings: Adjudicating on liability for reparations
- Introduction
- I. Parties to reparation proceedings
- II. Administration of evidence in reparation proceedings
- A. The burden and standard of proof
- 1. The burden of proof resting on the victim
- 2. The 'balance of probabilities' as the standard of proof
- B. Types of admissible evidence in reparation proceedings
- C. Experts assisting in judicial assessment of reparations
- 1. Appointment of the expert
- 2. The mission and modus operandi of experts
- a. The scope of assistance of experts
- b. The modus operandi of experts
- 3. The experts' report and its effect on a Judicial decision on reparations
- III. Issuance of an order for reparations
- A. The nature of decisions determining the scope and extent of damage, loss and injury to, or in respect of victims
- B. The main content of an order for reparations
- 1. The specific content of an order for reparations pursuant to Rule 218(3) of the RPE
- a. The identity of parties and possible particulars of the TFV
- b. The scope and nature of reparations
- 2. The decision of the Court to deposit, an award for reparations by the TFV
- 3. The decision of the Court to make an award for reparations through the TFV
- 4. Determination of the modalities of reparation: A reparation order on the individual or collective basis
- a. Appropriateness of reparation order on an individualised basis
- b. Issuance of reparation orders on a collective basis
- IV. Legal remedies against an order for reparations
- A. The right to appeal against an order for reparations
- 1. Requirements for the admissibility of an appeal
- a. "Having been" a party to reparation proceedings
- b. "Having been" affected by an order for reparations
- c. An order for or a decision on reparations
- 2. Effects of appeals on a reparations order
- a. The suspensive effect of an appeal against an order for reparations
- b. The effect of an appeal against a conviction on a reparation order
- c. Other possible legal remedies against an order for reputations
- Conclusion
- Chapter V. Implementation of reparation orders and assistance to victims
- Introduction
- I. Stakeholders and their role in implementing reparation orders
- A. Foreseeable scenario of voluntary compliance with a reparation order by a convicted person
- B. The role of the Court in implementing its reparation orders
- C. The scope of the States' obligation to give, effect to reparation orders
- 1. The obligation imposed upon State parties to give effect to reparation orders
- a. Recognition and enforcement of reparation orders by State parties
- b. Procedures of enforcement, established by national laws in compliance with the ICC Statute
- 2. The legal framework for third states to give effect to reparation orders
- 3. Dealing with enforcement challenges
- a. The rights of bona fide third parties as incident to enforcement procedure
- b. Inability of a requested State to give effect to an order for reparation
- c. Failure of a requested State to cooperate with the Court
- 4. Destination of the property or proceeds of the sale of real or other property
- D. The implementation of reparation orders by the TFV
- 1. Introduction to the status of the TFV
- a. The relationship between the TFV and the Court
- b. 'The TFV's independence of its contributors
- 2. The role of the TFV in implementing reparation orders
- a. The TFV as a depository of indirect individual awards for reparations
- b. The TFV as a direct implementer of collective awards for reputations
- c. The TFV using intermediaries to implement reparation orders
- 3. The allocation of resources collared through fine and forfeiture by the TFV
- II. Assistance to victims and their families as the TFV's specific mandate
- A. Difference between assistance to victims and court-ordered reparations
- B. Resources allocated to the TFV for the assistance to victims and their utilization
- C. The competence of the TFV to decide on assistance to victims
- D. The preventive role played by the Court
- Conclusion
- Part IV. Reflexions on ways to strengthen the MECHANISMS of THE implementation of THE RIGHT to reparations
- Introduction
- Single chapter: Revisiting and improving procedural and organizational aspects of the ICC
- I. Challenges due to the cumbersome nature of procedures: Learning from the early practices of the Court
- II. Privileging a collective approach in dealing with mass victim cases
- A. The formula of consolidated groups of victims with a common intervener and victims' associations
- 1. The consolidated groups of victims under the current legal framework of the ICC
- 2. Discussing the possibility of victims' associations to represent their members before the ICC
- B. The desirability of a Lead Common Legal Representative for victims
- III. Lead Expert and mission of facilitating reconciliation between parties
- A. The opportunity to appoint, a Lead Expert in reparation proceedings
- B. Lead Expert's mission of facilitating reconciliation between parties
- IV. The establishment of a Special Division for reparations within the Court
- A. Current debate on alternative solutions
- B. A Single-judge Chamber for proper administration of justice
- C. Jurisdiction of the Special Chamber for reparations
- Conclusion
- General conclusions
- I. The development of the substantive and procedural law applicable to reparations on a case by case basis
- II. A right whose exercise is ancillary to prosecution
- III. A right strictly conceived in the context of individual responsibility
- IV. State cooperation as a key factor for the effective implementation of the right to reparations
- V
- Select Bibliography
- Index
