JURISPRUDENCE ON REPARATIONS AT THE INTERNATIONAL CRIMINAL COURT: BETWEEN RHETORIC AND PRACTICE

Abstract

20 years ago, when the International Criminal Court (ICC) started functioning, victims of atrocity crimes were promised that the ICC would not only punish the perpetrators, but also deliver ‘justice for victims’, inter alia, through reparations. After 20 years, only four cases – Lubanga, Katanga, Al Mahdi and Ntaganda – have reached the reparations stage. ICC’s reparation regime, which deservedly attracts praise as an unprecedented and historic step, was designed with inherent limitations– it excluded state responsibility and developed the conviction-based regime. Yet, the rhetoric surrounding the ICC’s reparation system and the promises of more victim-centred justice created a wave of unreasonably high expectations among the victims. Drawing on the ICC’s emerging practice on reparations, this article intends to analyse the main judicial developments and practical challenges the ICC faces in fulfilling its promise of victim-centred justice through reparations. It is submitted that ICC’s structurally constrained and carefully negotiated reparation mandate, its implications and other impeding factors brought to light by the case law, should always be taken into account when ascertaining the success of the ICC in repairing the harm suffered by victims. Otherwise, the rhetoric accompanying the ICC’s reparative justice will always lead to the unrealistic expectations.