ARTICLES

Victim Redress and

International Criminal Justice

Conor McCarthy*

Abstract
A growing number of international criminal justice institutions, most notably the
International Criminal Court, have been equipped with a regime of victim redress.
In the coming years, alongside international legal regimes based on principles of
state responsibility, international criminal law may perhaps provide a significant
legal framework through which the harm suffered by victims of atrocities can be redressed. However, incorporating a regime for dealing with questions of victim redress
within the framework of an international criminal justice institution is not, it is
argued, an obvious extension of international criminal justice, the traditional
focus of which has been the prosecution and punishment of individuals and not addressing the consequences of their conduct. Instead, the consequences of conflict
have traditionally been dealt with at the interstate level through lump sum settlements, claims processes such as the Eritrea-Ethiopia Claims Commission or, on occasion, under the auspices of international human rights mechanisms, all based on
principles of state rather than individual responsibility. But does the creation of a
regime of victim redress in the context of international criminal law have a contribution to make to the administration of criminal justice at the international level?
With this question in mind, the article critically examines whether and how the incorporation of a regime of victim redress within the framework of an international
criminal justice institution may be justified in principled terms.

Visiting Fellow, British Institute of International and Comparative Law. The author wishes to
thank Sandesh Sivakumaran, Marko Milanovic and Jordan Blair Woods for comments on an
earlier draft of this article. Any errors remain the responsibility of the author. The present article develops ideas discussed in a book by the present author entitled Reparations and
Victim Support in the International Criminal Court (Cambridge University Press, 2012).
[conormccarthy1000@gmail.com]

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Journal of International Criminal Justice 10 (2012), 351^372
doi:10.1093/jicj/mqs014
Advance Access publication 29 March 2012

Oxford University Press, 2012, All rights reserved. For permissions, please email: journals.permissions@oup.com

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Competing Paradigms, or Compatible Forms

of Justice?

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JICJ 10 (2012), 351^372

1. Introduction

1 Judgment, Obrenovic (IT-02-60/2-S), Trial Chamber I, 10 December 2003, x 46.

2 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14
November 1945-1 October 1946, vol. I (International Military Tribunal, 1947), at 223.
3 Regulation 49, Regulations of the Trust Fund for Victims (TFV Regulations).
4 Regulation 48, TFV Regulations.
5 As to when victim support may be provided by the Trust Fund, see Regulation 50, TFV
Regulations.
6 Regulation 56, TFV Regulations.
7 Notable contributions to this debate include L. Zegveld, Victims Reparations Claims and
International Criminal Courts, 8 Journal of International Criminal Justice (JICJ) (2010) 79;
C. Ferstman, The Reparation Regime of the International Criminal Court: Practical
Considerations, 15 Leiden Journal of International Law (2002) 667; and E. Kristjansdottir,
International Mass Claims Processes and the ICC Trust Fund for Victims, in C. Ferstman et al.

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In Obrenovic , a trial concerning the massacre of Bosnian Muslims at

Srebrenica, the International Criminal Tribunal for the former Yugoslavia
(ICTY) Trial Chamber observed that [i]ndividual accountability for the crimes
committed and commensurate punishment is the aim of criminal proceedings
involving such grave crimes.1 The idea that international criminal proceedings
are, and should be, focused upon the punishment of individual perpetrators
has been prevalent in international criminal law since its inception. In perhaps
the most famous passage of its judgment, the International Military Tribunal
(IMT) at Nuremberg declared that crimes against international law are committed by men, not by abstract entities, and only by punishing individuals
who commit such crimes can the provisions of international law be enforced.2
The legal framework created by the Rome Statute of the International
Criminal Court (ICC) has, however, supplemented this traditional approach.
Alongside procedures for the trial and punishment of individuals, the Statute
provides for two distinct forms of victim redress, namely reparations ordered
by the Court and support provided to victims independently by the Trust
Fund established by Article 79 of the Statute. As to the first of these, Article
75(2) of the Statute empowers the Court to make a reparations order against
a convicted person, specifying reparations to, or in respect of, victims.
The Trust Fund is also a crucial element of the Statutes regime for victim redress. The Trust Fund may use its resources to provide physical, psychological
rehabilitation and/or material support3 to those who have suffered physical,
psychological and/or material harm as a result of crimes [within the jurisdiction of the Court].4 Such support may be furnished regardless of whether an
individual in a particular situation before the Court has been convicted by it.5
In addition to resources derived from the forfeited property of perpetrators,
the Trust Fund may receive voluntary contributions from a range of sources
including governments, international organizations, individuals, corporations
and other entities. These resources may be used by the Fund to supplement resources available for Court-ordered reparations.6
A growing body of literature has developed, in particular in respect of the
Rome Statutes regime of victim redress,7 dealing, for example, with how the

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353

regime will operate in practice, considering the practical and legal obstacles it
will face and exploring emergent practice. However, the interposition of a
regime of victim redress within the institutional framework of an international
criminal tribunal, a central task of which is the prosecution and punishment
of individual perpetrators, raises an important underlying issue of principle.
This is whether, in conceptual terms, such a regime has a principled role in
the administration of international criminal justice, the traditional focus of
which has been on the prosecution and punishment of individuals rather
than addressing the consequences of their conduct.

The idea of contributing to justice for victims is now commonly invoked as

offering explanatory force for the role of international criminal law and its institutions and, in recent years, a substantial body of academic literature has developed exploring international criminal law from the perspective of victims.8
For their part, international criminal justice institutions also often invoke the
language of justice for victims. In opening the prosecutions case in Katanga
and Chui, the ICC Deputy Prosecutor, declared: [O]ur mandate is justice, justice
for the victims: the victims of Bogoro; the victims of crimes in Ituri; and the
victims in the DRC.9 Although prevalent in modern discourse concerning international criminal justice, the idea of bringing justice to victims was not of central concern to international criminal law at the formative stage of its
development. Instead, international criminal law developed at a time when
the position of individuals who suffered harm as a result of violations of
international law was very limited within the international legal system.
(eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Martinus
Nijhoff, 2009) 167.
8 Monographs on the topic include M. Funk, Victims Rights and Advocacy at the International
Criminal Court (Oxford University Press, 2010); and G. Musila, Rethinking International
Criminal Law: Restorative Justice and the Rights of Victims in the International Criminal Court
(Lambert Academic Publishing, 2010). Scholarly articles include S. Karstedt, From Absence to
Presence, From Silence to Voice: Victims in Transitional Justice Since the Nuremberg Trials, 17
International Review of Victimology (IRV) (2010) 9; R. Henham, Some Reflections on the Role of
Victims in the International Criminal Trial Process, 11 IRV (2004) 1; and R. Henham,
Conceptualising Access to Justice and Victims Rights in International Sentencing, 13 Social
and Legal Studies (2004) 27. See also contributions to the victims symposium in 8 JICJ (2010)
75, and contributions, on the same topic, in 16 IRV (2009) 123, and in 91 International Review
of the Red Cross (2009) 215.
9 ICC Press Release, ICC Cases an Opportunity for Communities in Ituri to Come Together and
Move Forward, (ICC-OTP-20080627-PR332), 27 June 2008, available online at http://www.icccpi.int/menus/icc/structure%20of%20the%20court/outreach/democratic%20republic%20of
%20the%20congo/press%20releases/icc%20cases%20an%20opportunity%20for%20
communities%20in%20ituri%20to%20come%20together%20and%20move%20forward
(visited 18 January 2012).

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2. Individual Punishment and the Traditional

Conception of International Criminal Justice

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JICJ 10 (2012), 351^372

A. The Position of Victims within the Classical Framework of

International Law
The starting point for considering the evolving position of victims in international criminal law must be the international legal context prevailing during
the formative stage of the fields development in the period immediately following the Second World War. At this time the very concept of a victim (in the
sense of a private individual with a legal status under international law by
virtue of having suffered injury or harm in consequence of a violation of its
rules) was largely unknown to the international legal system.
Summarizing the position of individuals who suffered injury through violation of international law, Dionisio Anzilotti, who sat on the International
Court of Justice at the time of its seminal Factory at Chorzow judgment, wrote
that the conduct of a state, however contrary it may be to the rules of international law, can in no circumstances give rise to an individual right to reparation in respect of harm suffered.10 Within the classical framework of
international law it was for the state to protect the interests of its citizens on
the international plane where they suffered injury by violation of international
law through acts attributable to a foreign sovereign.11 In accordance with this
principle, the general position under international law was (and in many
fields of international still remains) that where individuals suffer harm as a
result of a violation of the rules of international law the injury resulting is
not that of the harmed individual but rather that of the state. Thus in espousing the claim of a national and seeking reparation for the harm he or she has

10 D. Anzilotti, La responsabilite internationale des e tats a raison des dommages soufferts par des e trangers, 13 Revue ge ne rale de droit internationale public (1906) 5, at 5, translation by present author
from original French text which reads: La conduite dun Etat, toute contraire quelle soit au droit
internationale ne saurait jamais donner naissance a' un droit de lindividu a la re paration du dommage
souffert.
11 E. Vattel, The Law of Nations, Vol. II (J. Newbury, 1759) Ch. VI.

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Placing the position of victims in international criminal law in historical

context, the following discussion charts the position of victims both within
the classical framework of international law and within the framework of international criminal law. Through exploration of this material, it is argued that
the incorporation of a regime of victim redress within the framework of an
international criminal tribunal is not an obvious extension of international
criminal law but rather represents a potentially significant shift in the way in
which criminal justice at the international level is conceptualized. This raises
the question as to whether there exists a coherent principled justification for
such a potentially significant departure from the way in which international
criminal law has traditionally been conceived; a matter that will be addressed
in the succeeding sections of this article.

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355

12 Mavrommatis Palestine Concessions (Greece v. United Kingdom), 1924 PCIJ Series A, No. 2, at 12.
See also Draft Articles on Diplomatic Protection, annexed to GA RES. 62/67, 6 December 2007
(A rticles on Diplomatic Protection).
13 Universal Declaration of Human Rights, adopted in GA Res. 217 A (III), 10 December 1948.
14 American Convention on Human Rights, 22 November 1969, 1144 UNTS 123. Art. 45(1) permits
individuals to petition the American Commission on Human Rights where a State Party to
the American Convention has declared the Commission competent to receive and consider
communications from individuals. In contrast to the position under the ECHR, under Art.
61(1) of the American Convention only the Commission and States Parties have the right to
submit a case to the Inter-American Court of Human Rights.
15 See Arts 55 and 56 of the African Charter on Human and Peoples Rights, adopted on 27 June
1981, 217 UNTS 1520.
16 See Art. 5 of the Optional Protocol, 9 June 1998.
17 Optional Protocol to the International Covenant on Civil and Political Rights, 16 December
1966, 171 UNTS 999.

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suffered, a state is asserting its own rights on the international plane and not
those of the natural or legal person in question.12
Exceptions to this general framework have only developed, over time, in a
limited number of fields of international law; a process which began most notably through the creation of the international human rights framework in the
period following the Second World War. The development of the idea that an individual could acquire a legal status under international law by reason of
having suffered harm through violation of certain of its rules was slow to take
hold. The Universal Declaration of Human Rights adopted by the United
Nations General Assembly in 1948,13 (some two years after, the judgment of
the IMT in Nuremberg had affirmed the principle of individual criminal responsibility under international law) provided a declaration of the rights of individuals under international law but was merely hortatory in character and
did not purport to confer any particular status under international law upon
those who were harmed by violation of the rights declared therein.
It was not until the European Convention of Human Rights (ECHR) entered
into force in 1953 that those who had suffered harm as a result of a violation
of international law were first recognized as having the status of victim
within an international legal regime and were, in certain circumstances, accorded a limited number of rights to protect their own interests, on this basis.
Article 25(1) of the ECHR (now amended) provided that the now defunct
European Commission of Human Rights may receive petitions ::: from any
person, non-governmental organisation or group of individuals claiming to be
the victim of a violation ::: of the rights set forth in this Convention provided
[that the state in question] has declared that it recognizes the competence of
the Commission to receive such petitions. Similar provisions were later incorporated into the American Convention on Human Rights14 in 1969 and now
also in the African Charter on Human and Peoples Rights15 and its Optional
Protocol on the Establishment of an African Court on Human Rights.16 At the
level of universal human rights protection the 1966 Optional Protocol to the
International Covenant on Civil and Political Rights (ICCPR)17 and the

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JICJ 10 (2012), 351^372

18 See e.g. Optional Protocol to the Convention on the Rights of Persons with Disabilities,
13 December 2006, adopted in GA Res. 61/106, 13 December 2006; Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination Against Women, 6 October
1999, 83 UNTS 2131; Art. 22, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 18 December 2002, 237 UNTS 2375; and Art. 14,
International Convention on the Elimination of All Forms of Racial Discrimination, 21
December 1965, 195 UNTS 660.
19 In recent years, it has been argued that individuals have obtained an individual right to reparation where they are harmed by violations of international humanitarian law. Whether this is
the case or not remains a matter of controversy. See F. Kalshoven, State Responsibility for
Warlike Acts of the Armed Forces, 40 International and Comparative Law Quarterly (1991) 827;
and C. Greenwood, International Humanitarian Law (Laws of War), in F. Kalshoven (ed.), The
Centennial of the First International Peace Conference (Kluwer, 2000) 161, at 250.

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subsequent raft of optional supervisory mechanisms to other universal human

rights treaties18 confer a status under international law on those harmed by
violation of the treaty in question as victimsand permits such persons to complain to the relevant human rights monitoring body where the State Party
against which a complaint is made has ratified the relevant protocol or made
the necessary declaration pursuant to the terms of the Convention.
The concept of a victim, as a legally meaningful status, has been even
slower to take root in international humanitarian law. Although individuals
were often the ultimate beneficiaries of the obligations imposed by international humanitarian law, these interests have traditionally been protected and
enforced on a classic interstate basis. The Geneva Conventions of 1949 are
striking for the absence of any reference to the concept of victims of war,
much less provisions conferring any general status or rights upon such persons. Although the two 1977 Additional Protocols to the Geneva Conventions
of 1949 do refer, on a number of occasions, to war victims, this terminology
is generally used to denote those affected by conflict in general, rather than
to refer to those persons injured by violations of the laws of war as such
and, as with the 1949 Geneva Conventions, no general rights or legal status is
conferred upon such persons.19
In sum, within the classical framework of international law, it was for states
to protect the interests of their nationals on the international plane and, if
they chose to do so, to intercede with other states to claim reparation in respect
of any harm wrongfully inflicted upon them. In the period following the
Second World War individuals became the holders of limited rights and, in the
domain of international criminal law, the bearers of certain obligations under
international law. For its part, international criminal law developed at a time
during which the orthodoxy of the classical framework remained largely
intact, with the concept of a victim, in the sense of a private individual with
a recognized status under international law by virtue of having suffered
injury or harm in consequence of a violation of international rules, being largely unknown to the international legal order.

Victim Redress and International Criminal Justice

357

B. Victims and the Genesis of International Criminal Law

20 H. Kelsen,Collective and Individual Responsibility in International Law with Particular Regard

to the Punishment of War Criminals, 31 California Law Review (1943) 530.
21 Ibid. See also G. Schwarzenberger, The Judgment of Nuremberg, 21 Tulane Law Review (1947)
329, at 349.
22 London Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis Powers and Charter of the International Military Tribunal, 8 August 1945, 8
UNTS 279.
23 L. Oppenheim (ed.), The Collected Papers of John Westlake on Public International Law (Cambridge
University Press, 1914), at 411.
24 Ibid.

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It was in the context of the traditionally limited position of individuals injured

by violations of international law that international criminal law and its most
fundamental tenet, individual criminal responsibility under international law,
developed. In keeping with this framework, for the leading intellectual proponents of international criminal law at the formative stage of its development,
the individuation of responsibility under international law was not advocated
as part of an abstract notion of victims justice but rather was, in large measure, seen as a means of attenuating the limitations of a system of law traditionally based on the responsibility of states rather than individuals.
Summarizing the classic position regarding the enforcement of the laws of
war, Hans Kelsen, writing in 1943, explained that the difference between the
punishment provided by national law and the specific sanctions of international law ::: consists of the fact that punishment in criminal law constitutes
individual responsibility, whereas the specific sanctions of international law
constitute collective responsibility.20 The effect of this, according to Kelsen,
was that, since the demand to punish war criminals aims at the individual responsibility of the [Axis leaders] who by their own conduct have performed
the crimes, it seems impossible to satisfy this demand on the basis of general
international law.21 Moved by the events of the mid-20th century, international
law was not, however, standing still. In November of 1945 the surviving Nazi
leadership faced trial at Nuremberg pursuant to the London Charter22 and
within a year most were convicted and sentenced for their individual role in
the atrocities perpetrated prior to and during the Second World War.
Even prior to the events of the Second World War, however, prominent publicists had viewed with dissatisfaction the orthodox position that the laws of
war and the rules of jus ad bellum were to be enforced exclusively through the
imposition of obligations upon states rather than individuals. Commenting on
the effect of this position, John Westlake, Whewell Professor of International
Law at the University of Cambridge and a founding member of the Institut de
Droit international, wrote that it may weaken the sense that the action of a
state is the action of those within it who help to guide it.23 He observed that
the same tone of thought will again be evil if it allows us to forget that ::: the
action of our state is that of ourselves.24
This critique was later forcefully adopted by Sir Hersch Lauterpacht.
Lauterpacht played an important role in the process that culminated in the

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JICJ 10 (2012), 351^372

25 M. Koskenniemi, Hersch Lauterpacht and the Development of International Criminal Law, 2

JICJ (2004) 810, at 811.
26 H. Lauterpacht, Re'gles generales du droit de la paix, 62 Recueil des cours (1937) 95, at 351
(translation by author).
27 Ibid., at 352 (translation by author).
28 Ibid., at 350 (translation by author).
29 Ibid. (translation by author).
30 Ibid., at 352 (translation by author).
31 H. Lauterpacht, The Law of Nations and the Punishment of War Crimes, 21 British Year Book of
International Law (1944) 58, at 64.
32 Supra note 2, at 223.

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creation of the London Charter. In the months prior to the International

Conference on Military Trials in 1945 (London Conference) and during the
conference itself he held discussions on the subject with Robert Jackson, Chief
Justice of the US Supreme Court and representative of the United States to the
London Conference. His ideas were undoubtedly highly influential in the
design of the military trials and in the development of international criminal
law more generally. Indeed, the denomination of crimes against humanity,
only occasionally used in the earlier half of the 20th century, was included in
Article 6(c) of the London Charter as a result of a suggestion put forward by
Lauterpacht himself.25
Lauterpachts central argument was that international criminal law provided
a means of ensuring that individuals are not shielded by a states responsibility
for decisions and actions that were ultimately theirs and that by imposing obligations and, where necessary, punishment on individuals, the rules of international law could be better enforced. He argued that [i]t is the current
personification of the State, which artificially distinguishes between the association and the members comprising it, that has been a contributing factor in
suggesting the anarchical principle of legal and moral irresponsibility.26 He
warned that [t]here is little hope for international law if an individual, acting
as an organ of the state, can in violation of international law, effectively shelter
behind the abstract and artificial notion of the state.27 According to
Lauterpacht such a course would permit those associated with a state to acquire a degree of immunity.28 This, he cautioned,would be an immunity covering acts which, because they are collective and aided by the nearly infinite
power of a modern state, could unleash virtually unlimited destructive
power.29 In support of his position Lauterpacht also highlighted the role that
international criminal law and individual punishment could play in the enforcement of the rules of international law through deterrence, arguing that
individual punishment, in contrast to [interstate] reparation, satisfies ::: the
need for guarantees against future infractions of the law.30 For Lauterpacht
the conclusion was clear: The rules of warfare ::: are binding not upon impersonal entities, but upon human beings,31 a statement that would later famously
be echoed in the judgment of the IMT itself.32
A central preoccupation for those who provided intellectual support for the
development of international criminal law was therefore the question of state

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359

3. A Principled Role for Victim Redress as Part of the

System of International Criminal Justice?
It is convenient at this juncture to outline the essential features of the ICCs
regime of victim redress. Alongside procedures for the trial and punishment
of individuals, the Statute provides for two distinct forms of victim redress,
33 See E. Borchard, The Diplomatic Protection of Citizens Abroad: The Law of International Claims
(Banks Law Publishing, 1919). See also Articles on Diplomatic Protection.
34 See generally, P. DA rgent, Les reparations de guerre en droit international public: la responsabilite
internationale des Etats a' le preuve de la guerre (L.G.D.J., 2002) and R. Lillich, and B. Weston,
International Claims: Their Settlement by Lump-Sum Agreement, vol. I (University Press of
Virginia, 1975). For a voluminous body of state practice, see J. Henckaerts and L. Doswald-Beck
(eds), Customary International Humanitarian Law, Vol. II (Cambridge University Press, 2005), at
3530 et seq.
35 Under the law of diplomatic protection, the injury of the nationals of a state is assimilated to the
injury of that state for the purposes of international law. See C.F. Amerasinghe, Diplomatic
Protection (Oxford University Press, 2008).

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sovereignty and its limitations. International criminal law, in particular the

related concepts of individual responsibility and punishment were seen as
ways of addressing the limitations of a system of law based on the responsibility of states by providing a means of better enforcing certain fundamental
rules of international law. In this sense international criminal law was conceptualized as a system of law little concerned with victims but rather one which
was concerned with perpetrators and the enforcement of the rules of international law itself.
For their part, the interests of those individuals who had been harmed by
violation of international law, if they were to be protected by the international
legal system at all, were protected by the state of nationality of those who
were injured or killed under traditional principles of diplomatic protection.33
To this end, numerous lump sum settlement agreements and claims processes
were established (albeit largely on a one-sided basis) in the years following
the Second World War to address the harm suffered by states34 including that
of their injured nationals.35 In a system of law based on state sovereignty, it
was for each state to look after those of its nationals who had been harmed
by violations of international law rather than such matters being dealt with
in the context of proceedings dealing with the responsibility of individuals
under international law.
The creation of a regime of victim redress in international criminal law to
deal with the harm suffered by individual victims is not therefore an obvious
extension of international criminal law but rather represents a potentially significant shift in methodology for the administration of international criminal
justice. This raises a fundamental question as to the purpose to be served by
such a regime and, in particular, whether it has a meaningful principled role
in the administration of criminal justice at the international level.

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JICJ 10 (2012), 351^372

36
37
38
39
40
41

Regulation 56, TFV Regulations.

Regulation 50 (a)(i), TFV Regulations.
Regulation 49, TFV Regulations.
Regulation 48, TFV Regulations.
See Art. 77(2) ICCSt.
For a detailed comparative survey see J.R. Spencer and M. Delmas-Marty, European Criminal
Procedures (Cambridge University Press, 2002). See further J. Larguier, The Civil Action for
Damages in French Criminal Procedure, 39 Tulane Law Review (1964) 687; P. Campbell, A
Comparative Study of Victim Compensation Procedures in France and the United States: A
Modest Proposal, 3 Hastings International and Comparative Law Review (1979) 321; C. Howard,
Compensation in French Criminal Procedure, 21 The Modern Law Review (1958) 387; and
P. Lapie, The Partie Civile in the Criminal Law of France, 10 Journal of Comparative Legislation
and International Law (1928) 33.
42 See e.g. Powers of Criminal Courts (Sentencing) Act 2000, ss 130^132.

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namely reparations ordered by the Court and support provided to victims independently by the Trust Fund established by Article 79 of the Statute.
Reparations ordered against a perpetrator may be supplemented by the Trust
Fund with the resources at its disposal.36
It is important to note that the possibility of victim redress under the Statute
is not, however, limited to victims of crimes the perpetrators of which have
been prosecuted and found guilty by the Court. Crucially, the Trust Fund also
possesses an independent power to provide support to victims outside the context of Court-ordered reparations where the Board of Directors of the Trust
Fund considers it necessary,37 the Trust Fund may use its resources to provide
physical, psychological rehabilitation and/or material support38 to those who
have suffered physical, psychological and/or material harm as a result of
crimes [within the jurisdiction of the Court].39 Resources for the provision of
this form of redress are derived from voluntary contributions from a range of
sources including governments, international organizations, individuals, corporations and other entities, as well as from funds derived from fines or the forfeited proceeds of crime.40
Procedures for victims to obtain redress in the context of criminal proceedings are familiar to many national legal systems, both in civil law jurisdictions
which make available to victims the possibility of participating in criminal proceedings as a partie civile to seek reparation41 and certain common law jurisdictions, like the UK, which empower criminal courts to award reparation
to victims in the absence of their participation.42 This, however, does not
mean that the transposition of similar such arrangement to the distinct context of international criminal justice is necessarily appropriate or justified.
International crimes are often characterized by mass participation and victimization. The scale and gravity of crimes typically prosecuted at the international level is also very different from the kind of conduct in respect of which
reparation tends to be awarded in domestic criminal proceedings. In consequence a much smaller proportion of perpetrators are prosecuted internationally and only a fraction of victims are likely to be able to obtain some form of
redress. In addition, the institutional framework which exists at the international level is also quite different from that which exists domestically, with the

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A. The Irrelevance of Retributivism

Although criminal justice processes, including those concerned with crimes
under international law, are often justified in retributivist terms,43 such accounts provide little by way of justification for the creation of a regime of
victim redress of the form envisaged in the ICC. As regards reparations, under
the Rome Statute these are not regarded as punitive in character. On the contrary, the Statute expressly distinguishes the role that the reparations provisions play within the scheme of the Statute from its penalty provisions. Unlike
Article 77 (which concerns applicable penalties), Article 75 (addressing the
Courts power to award reparations) is not placed in Part 7 of the Statute
entitled Penalties, but is instead placed in Part 6 of the Statute, which deals
with matters relating to trial proceedings.
The non-punitive character of reparations is confirmed by the negotiating
history of the Statute, which indicates that the decision not to treat reparations
as a penalty under the Statute was a conscious decision on the part of those
who negotiated it. During the Rome Conference and in the Preparatory
Committee negotiations prior to the Rome Conference, France and the UK
were the states most active in pursuing the inclusion of reparations provisions
within the Statute. In 1997, the UK proposed a text to the Preparatory
Committee, which addressed reparations to victims.44 It suggested that reparations include a monetary award and that this would comprise a punitive
element, a compensatory element or both. In February 1998, France and the
43 Retribution can be defined as a form of criminal justice involving the infliction of punishment
upon a perpetrator who is considered to be deserving of punishment. In the literature in this
area a number of different theories have been put forward to explain when and why punishment may be deserved. See R. Nozick, Philosophical Explanations (Harvard University Press,
1981), at 374^384; D. Cooper, Hegels Theory of Punishment, in Z. Pelcynski (ed.), Hegels
Philosophy: Problems and Perspectives (Cambridge University Press, 1971) 151; and A. Von
Hirsch, Punishment, Penance and the State, in M. Matravers (ed.), Punishment and Political
Theory (Hart Publishing, 1999) 48, at 69.
44 Proposal of the UK to the Preparatory Committee (A/AC.249/1997/WG.4/DP.13), 10 December
1997. See also Proposal of France to the Preparatory Committee (A/AC.249/1997/WG.4/DP.3), 5
December 1997.

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ICC Trust Fund being able to supplement any reparation provided by a perpetrator and also being able to provide redress outside the context of criminal
proceedings.
In light of these factors the creation of a regime of victim redress in the context of a criminal justice institution operating at the international level requires distinct examination. The purpose of the following discussion is
therefore to critically examine whether there are ways in which the inclusion
of a regime of victim redress in the Rome Statute could be justified in principled terms notwithstanding the fact that a central (arguably the central)
task of the ICC, is to prosecute and, where appropriate, punish individual perpetrators brought before it.

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B. The Insufficiency of Restorative Justice as a Principled Justification

Although reparative (or restorative) justice50 is not without use in understanding the role of victim redress as part of a system for the administration
of international criminal justice, on its own it is inadequate in providing a coherent and convincing principled justification for the creation of the Rome
Statutes regime of victim redress.
45 Proposal by France and the UK to the Preparatory Committee (A/AC.249/1998/WG.4/DP.19), 10
February 1998.
46 Draft Statute for the International Criminal Court (A/CONF.183/2/Add.1), 14 April 1998.
47 Committee of the Whole, Rome Conference, Working Group on Penalties, Chairmans Working
Paper on Article 75 (A/CONF.183/C.1/WGP/L.3), 30 June 1998.
48 Committee of the Whole, Rome Conference, Proposal by France and the UK (A/CONF.183/C.1/
WGPM/L.28), 26 June 1998.
49 Committee of the Whole, Rome Conference, Report of the Working Group on Penalties
(A/CONF.183/C.1/WGP/L.14), 4 July 1998.
50 On reparative justice theory see A. Eser et al. (eds), Reparation in Criminal Law: International
Perspectives (Max Planck Institute, 1996); and G. Davis, Making Amends: Mediation and
Reparation in Criminal Justice (Routledge, 1992). See further L. Zedner, Reparation and
Retribution: Are they Reconcilable? 75 The Modern Law Review (1994) 228, and R. Barnett,
Restitution: A New Paradigm of Criminal Justice, 87 Ethics (1978), at 279^301.

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UK submitted a joint proposal to the Preparatory Committee, which also

included an option for a punitive reparations award.45 The possibility of reparations representing an applicable penalty under the Statute was subsequently
retained in the Draft Statute published by the Preparatory Committee immediately prior to the Rome Conference.46 At the Conference itself, the Working
Group on Penalties produced a proposal that reparations be included as a form
of penalty under the Statute.47 However, around the same time, France and the
UK submitted a further proposal on reparations that did not specify a punitive
element to reparations awards.48 Shortly thereafter, the Working Group on
Penalties revised its provisions on applicable penalties and the reference to reparations was removed. A power to impose the penalty of a fine was, however,
created.49 The travaux of the Rome Statute therefore confirm a textual interpretation of the Statute that its reparations regime is not punitive in character.
As regards the redress provided independently by the ICC Trust Fund, retribution also provides little by way of principled explanation for the work of the
Trust Fund for Victims, since the Funds victim support arrangements will be
funded almost exclusively through the voluntary contributions of third parties
rather than through the imposition of financial burdens upon perpetrators.
Thus, although there may be cases where substantial financial burdens can be
imposed upon a perpetrator, retribution, that is to say the infliction of punishment upon a perpetrator because it is seen as deserved, cannot provide the basis
for a principled justification of the role to be played by the Statutes regime of
victim redress. If a principled justification for the role of the Rome Statutes
regime of victim redress is to be found it is necessary to look elsewhere for it.

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51 See N. Christie, Conflicts as Property, 17 British Journal of Criminology (1977) 1; Barnett, ibid.;
C.F. Abel and F.H. Marsh, Punishment and Restitution: A Restitutionary Approach to Crime and
the Criminal (Greenwood Press, 1984).
52 The idea of reparative justice does not necessarily exclude the use of retribution. See Zedner,
supra note 50, and also D. Watson and J. Boucherat, Reparation for Retributivists, in M. Wright
and B. Gallaway (eds), Mediation and Criminal Justice: Victims, Offenders and Community (Sage,
1989) 212.
53 At the domestic level, criminal injuries compensation schemes may also assist in repairing the
harm caused to victims and, in so doing, provide a measure of justice. See generally M.
Groenhuijsen, Public Damage Funds: European Developments and Some Comparative
Observations, in E. Fattah and S. Parmentier (eds), Victim Policies and Criminal Justice on the
Road to Restorative Justice (Leuven University Press, 2001) 83.

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Reparative justice theory originally grew out of a concern that the state and
its institutions had monopolized responses to crime, turning them into a
purely public matter and thereby failing to address the full complexity of the
harmful consequences to which crimes give rise.51 For proponents of reparative
justice theory, an adversarial trial leading to the punishment of a perpetrator
is seen as an inadequate response to this harm. It is argued that the traditional
outcomes of the criminal justice process, in particular the custodial punishment of a perpetrator, are more concerned with societys needs, most obviously
for incapacitation and deterrence, than with addressing the harm suffered by
victims as a result of a perpetrators conduct. In consequence, trial and punishment, on their own, are said to take insufficient account of, and to respond inadequately to, the needs of the victim, the character of the harm done to that
victim and the complexity of the harm done to wider social bonds by the transgressors conduct. To ensure that victims needs are properly addressed, reparative justice theory asserts that a crime should not be treated merely as a
wrong against an abstract community requiring societal sanction but that it
should also be dealt with as a dispute between transgressors and victims as
part of a process in which the relationships between victims, offenders and society are restored through the criminal justice process, thereby repairing the
social fabric that has been harmed by the crime.52 Restoration need not necessarily be done by means of reparation (or even in the context of a criminal
trial).53 In this sense restorative justice is a theory of ends rather than means.
Indeed, a criminal justice system in which reparation is provided is not necessarily restorative in character. It can only properly be understood in restorative
terms if it seeks to, and is capable of, transforming relationships among victims, offenders and society in line with the ideals of reparative justice theory
by whatever means it employs to do this.
Although there is nothing which, in principle, prevents the ICCs system of
victim redress from aspiring to the ideals of reparative justice, whether, given
the limitations under which the regime presently labours, the ambitious, transformative requirements of reparative justice can be seen as providing a convincing principled justification for the regime is more questionable. Within the
framework of the Rome Statute, even in a situation in which the victims
number in the tens of thousands and perpetrators are similarly numerous,
few individuals in practice are prosecuted, not least because of the immense

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54 See generally, A. Du Bois Pedain, Transitional Amnesty in South Africa (Cambridge University
Press, 2007), at 281 et seq.
55 See Report to the Assembly of States Parties on the Activities and Projects of the Trust Fund for
Victims for the Period 1 July 2009 to 30 June 2010 (ICC-ASP/9/2), 28 July 2010, at 7.
56 Ibid.

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cost of international criminal proceedings. This serves substantially to limit the

potential for the Rome Statutes reparations regime to meaningfully mediate
the relationship between transgressors and victims in line with reparative justice theory.54 Furthermore, in a society divided or torn by ethnic or social conflict, the idea of restoring the social fabric of that society to that which
existed before grave crimes were committed may often not be a particularly attractive aspiration, even if it were possible by means of measures of reparation.
Finally, for the Court and its regime of victim redress to serve as a therapeutic system of social catharsis in line with reparative justice theory would
be an enormously ambitious undertaking and one for which the Court is not,
at present, well equipped.
Assessing and remedying the harm caused by crimes under international
law is a difficult enough task for a criminal court at the international level to
undertake. But taking responsibility for meaningful social catharsis through
reparation is a challenge of an altogether different order of magnitude. Given
the huge range of politicized polycentric issues that would have to be considered in devising programmes of victim redress apt to create appropriate socially cathartic effects in the aftermath of mass violence, it is doubtful
whether judicial processes provide an appropriate forum in which such complex issues could be determined.
Moreover, as regards resources, few perpetrators before the Court will have
anything like the kind of resources necessary to redress even a proportion of
the harm they have caused. As a result it will commonly be necessary for the
Trust Fund to use resources derived from voluntary contributions to supplement those otherwise available for reparations. As regards victim support, programmes for redress established under the Trust Funds independent mandate
will always be funded in this way. But the resources of the Trust Fund are
very limited indeed. Since its inception the Fund has received on average contributions totalling somewhere between approximately five hundred thousand
and 2 million euros annually (with an increased level of contributions in
recent years),55 and the fund presently has in the region of 3.5 million euros
in reserves.56 The vast bulk of these funds have been contributed by States
Parties to the Rome Statute. In assessing the principled role served by the
Statutes regime of victim redress these practicalities cannot be ignored. This
is all the more so with regard to the theory of reparative justice in which the
ends, in particular the creation of restorative effects, are as important, if not
more important, than the means employed in pursuit of those ends.
All in all, as things stand it is doubtful whether the regime is procedurally
equipped or financially resourced to play the kind of transformative, socially
cathartic role which would, even in modest terms, satisfy theories of reparative

Victim Redress and International Criminal Justice

365

justice. Thus, even if the regime were to aspire to some of the ideals of reparative justice theory, the inability of the regime meaningfully to discharge the
kind of role reparative justice theory envisages, means that the ideals of restorative justice cannot alone provide a convincing principled justification for
the creation of the Rome Statutes regime of victim redress.

C. An Expressivist Account of Victim Redress: The Role of Vindicative

Satisfaction and Moral Denunciation

57 H.M. Hart, The Aims of the Criminal Law, 23 Law and Contemporary Problems (1958) 401.
58 J. Feinberg, The Expressive Function of Punishment, in J. Feinberg (ed.), Doing and Deserving:
Essays in the Theory of Responsibility (Princeton University Press, 1970) 95.
59 R.A. Duff, Trials and Punishments (Cambridge University Press, 1986); R.A. Duff, Punishment,
Communication, and Community (Oxford University Press, 2001); A. von Hirsch, Censure and
Sanctions (Oxford University Press, 1993); A. Skillen, How to Say Things With Walls, 55
Philosophy (1980) 509; and I. Primoratz, Punishment as Language, 64 Philosophy (1989) 187.
60 Rather than merely giving expression to an idea or proposition, communicative accounts of
criminal justice argue that criminal justice processes should do so in a way that elicits an appropriate response from perpetrators (or perhaps others) such as contrition or repugnance.
See Duff, Punishment, Communication and Community, supra note 59, and A. Duff, Punishment,
Retribution and Communication, in A. Ashworth et al. (eds), Principled Sentencing: Readings on
Theory and Policy (Hart, 2009) 126.
61 See B. Wringe, Why Punish War Crimes? Victors Justice and Expressive Justifications of
Punishment, 25 Law and Philosophy (2006) 159; R.A. Duff, Authority and Responsibility in
International Criminal Law, in S. Besson and J. Tasioulas (eds), The Philosophy of International
Law (Oxford University Press, 2010) 289; and A. Duff, Can we Punish the Perpetrators of
Atrocities? in T. Brudholm and T. Cushman (eds), The Religious in Response to Mass Atrocities:
Interdisciplinary Perspectives (Cambridge University Press, 2009) 79.

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A more modest account of the principled role served by a regime of victim redress within the context of the ICC is, however, conceivable. Retributivist or
reparative accounts of criminal justice are not the only ways in which criminal
justice processes can be understood. Henry Hart, the prominent American professor of criminal law of the 1950s, wrote that a crime is ::: conduct which, if
duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community.57 In its modern form, the
idea that criminal justice may serve an expressivist purpose is commonly
traced to a seminal article by Joel Feinberg, one of the leading social philosophers of the 20th century,58 according to which the authoritative disavowal of
criminal conduct as well as vindication of the law and the rights of victims of
crime were among the important ideas to which symbolic expression is given
through criminal justice processes. Although not attracting the same degree
of attention as consequentialist or retributivist explanations for the function
of criminal justice processes, a notable literature has developed providing
expressivist59 (and more recently communicative)60 accounts of criminal justice, as practiced at the national level. Recently, a discussion has also developed
which seeks to understand the punishment meted out by international criminal tribunals in terms of its expressivist or communicative role.61

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62 This is reflected in the definition of victim under the Rome Statute, set out in Rule 85(a) ICC
RPE which states that, victims are natural persons who have suffered harm as a result of the
commission of any crime within the jurisdiction of the Court. Certain cultural, religious, scientific or social organizations may also be a victim under the Statute if they have sustained
direct harm to their property. See ICC RPE, Rule 85(b).
63 See Art. 75(1) and (2) ICCSt. (regarding reparations). See further Art. 79(1) ICCSt., Rule 98(5) ICC
RPE; and Regulations 48 and 50, TFV Regulations (regarding the provision of victim support).
See also Rule 85 ICC RPE.

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Although individual punishment is the conventional means by which recognition or denunciation may be given expression there is no a priori reason
why this must be so. Other measures could communicate such ideas with similar force and clarity. For its part, victim redress, alongside individual punishment, can readily serve an expressivist function. The provision of redress
provides with it recognition. This recognition is twofold. Certainly, it provides
recognition of the fact of the recipients injury or harm. But the provision of redress has an expressive significance going beyond the mere recognition of suffering. What is significant about a crime (and perhaps especially a crime
under international law) is not merely its harmful character but also its wrongful character. Consequently, a victim is not merely a person who has suffered
harm but someone who has suffered harm by virtue of a wrong.62 Providing
redress to the victim of a crime, therefore, provides recognition that the victims position is not merely the result of some act of misfortune or hardship
but that the harm they suffered resulted from a wrong. When viewed in this
light the provision of victim redress arguably also serves to provide some
degree of, what could be termed, vindicative satisfaction, to those to whom,
or in respect of whom, it is offered.
Indeed, in the specific context of the ICC, since such redress can only be provided to victims63 of the crimes under international law enumerated in the
Statute, the provision of redress represents an authoritative pronouncement
that the conduct to which the victim was subjected was a specific, and particularly grave type of wrong, namely a crime under international law. When
viewed in this light, the provision of victim redress arguably acquires an appreciable symbolic significance alongside the practical assistance it provides to
victims of crimes under international law. In fact, given the limited resources
available for redress not to mention the collective harm often inflicted by
crimes such as genocide or persecution, it seems probable that collective
forms of redress will often be the mainstay of Court-ordered reparations and
victim support alike. Forms of redress like public commemorations, museums,
shrines, public monuments and the establishment of programmes to aid collective memory fit well with expressivist ideas of criminal justice and suffer
less from problems of selectivity or inconsistency resulting from the prioritization of very limited resources. In truth, for many victims such recognition
may be at least as meaningful as the prosecution and punishment of a
high-level perpetrator, often far removed hierarchically, socially and geographically from the crime suffered by the victim and in a trial likely held many
years after the atrocity occurred.

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64 I. Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the
Science of Right, transl. by W. Hastie (T & T Clark, 1887), at 198.
65 Feinberg, supra note 58, at 100.
66 P. Allott, State Responsibility and the Unmaking of International Law, 29 Harvard International
Law Review (1988) 1, at 14.

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As well as expressing recognition, victim redress can also give expression to

denunciation. As has been seen, in international criminal law, as in many national legal systems, individual punishment has been the traditional mechanism for the denunciation of certain forms of egregious conduct. Great
importance was attached to the denunciatory role of individual punishment
by Immanuel Kant, who, making this argument by means of a characteristically vivid metaphor, observed that if a desert island community were to disband, its members should first punish the last murderer left in its jails, so as
to disavow his acts, for otherwise they might all be regarded as participants
in the [unpunished] murder ::: .64 But, as Feinberg observes, [t]o say that the
physical treatment [of punishment] itself expresses condemnation is simply to
say that certain forms of hard treatment have become the conventional
symbol of public reprobation.65 The denunciation of particular conduct need
not necessarily be signified exclusively by punishment. Indeed, for some the
prosecution of one or a handful of individuals may seem hollow, insincere or
even disingenuous as a means of denouncing a campaign of violence or mass
atrocity the consequences of which affected hundreds or thousands of individuals, if the process by which these acts are denounced ignores the harm they
have caused. As Philip Allott notes, [t]he moral effect of the law is vastly
reduced if the human agents involved are able to separate themselves personally both from the duties that law imposes and from the responsibility which
it entails.66
Against this, the provision of different forms of redress, such as individual
and collective rehabilitation programmes or public commemorations may communicate the disavowal of egregious acts with greater clarity and immediacy
for victims than would the prosecution of a high-level perpetrator long after
an atrocity occurred and in a location far removed from where it occurred.
Similarly, as regards the victim support provided by the Trust Fund, since the
very fact of providing redress to victims has the effect of characterizing the
conduct to which victims were subjected as crimes under international law,
the decision by the Trust Fund to provide support to victims (which, as has
been seen, unlike reparations, is not predicated on the conviction of a perpetrator and may consequently be provided to any victim) may also provide a
means for the denunciation and disavowal of criminal conduct, especially
when supplemented by resources voluntarily contributed for that purpose by
third parties out of solidarity with victims.
In sum, alleviating the human consequences of grave crimes is unquestionably a laudable and noble goal. But the incorporation of a regime of victim redress within the framework of an international criminal justice institution is
not an obvious extension of the role of international criminal law, giving rise

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4. Victim Redress and the Prosecution and Punishment

of Individuals: Competing or Compatible Paradigms?
The inclusion of a regime of victim redress within the framework of an international criminal justice institution is therefore potentially justified on grounds
quite different to those pertaining to the prosecution and punishment of individuals by international tribunals. The resultant heterogeneous justifications
for different aspects of the powers exercised by the ICC gives rise to the question as to whether the principled bases on which the existence of a regime of
victim redress are justified is ultimately incompatible with retribution involving the prosecution and punishment of individuals.
With regard to crimes under international law, a key challenge faced by
criminal justice processes dealing with such crimes, is that they often involve
mass scale conduct perpetrated by many individuals, at times, even involving
persons who collectively comprise a substantial section of a society as a
whole. This is illustrated nowhere more vividly than in Rwanda where, in the
years immediately following the genocide, approximately one hundred thousand individuals were detained and prosecuted for crimes associated with it.67
Such was the scale of participation that the Rwandan authorities considered
67 Report on the Situation of Human Rights in Rwanda Submitted by the Special Representative,
Mr Michel Moussalli, Pursuant to Resolution 1998/69, UN Doc. E/CN.4/1999/33, 8 February
1999.

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to the question as to whether the creation of a regime of victim redress within

the framework of an international criminal tribunal can be explained and justified in principled terms. This is not a straightforward matter. Retribution
fails entirely to capture the purpose to be served by the regime since it is not
intended to be punitive in character. A more promising explanation may seem
to be that of reparative justice. But in practice its explanatory force is also limited since the transformative ideals of reparative justice theory hardly fit with
what must be acknowledged as the likely modest scope and scale of redress
provided in practice. On their own, ideals of reparative justice cannot therefore
provide a solid principled justification for the creation of the Rome Statutes
regime of victim redress. This does not mean, however, that the regime is left
entirely devoid of sensible principled justification. Just as the punishment of a
handful of those who commit grave crimes under international law can be
seen to give expression to certain ideas or values, so too can victim redress
serve a similar purpose, providing both a measure of vindication for victims
and denunciation of the barbarities in question. Although perhaps a modest
claim for the principled role to be served by the Statutes remedial framework,
its significance should not be lightly dismissed. For many victims affirmation
coupled with a degree of practical assistance may be at least as significant as
the trial of a high-level perpetrator, far removed in every sense from his ultimate victims and tried long after the atrocities in question occurred.

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68 A. Meldrum, One Million Rwandans to Face Killing Charges in Village Courts, The Guardian, 15
January 2005, available online at http://www.guardian.co.uk/world/2005/jan/15/rwanda
.andrewmeldrum (visited 20 January 2012); J. Fierens, Gacaca Courts: Between Fantasy and
Reality, 3 JICJ (2005) 896.
69 The biennial budget of the ICTY, for instance, is in the region of 200^300 million USD and, to
date, it has indicted 161 individuals. The figures for the ICTR are similar, although it has tried
fewer cases. See Programme Budget of the ICTY and ICTR for Biennium 2010^2011 (A/64/
478), 6 October 2009. The budget for the ICC for the year 2009^2010 is approximately 100 million euros, although it is presently trying many fewer cases than either the ICTY or ICTR,
(four cases in 2010). See ICC Programme Budget for 2010 (ICC-ASP/8/Res. 7), 26 November
2009.

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it necessary to establish the Gacaca judicial process, an adaptation of customary Rwandan forms of justice. But in the months following its establishment
rather than providing swift closure, Gacaca in fact revealed an almost unimaginable level of genocidal participation, with estimates suggesting that perhaps a million individuals (in a country with a population of around seven
million) were implicated in the genocide.68
In such situations, the investigation, prosecution and punishment of all
transgressors is simply not likely to be feasible. This is almost certainly the
case where national authorities are unwilling or unable to play a significant
role in the prosecution of crimes under international law since the cost of
trials before international tribunals is immense.69 Moreover, even where individuals are indicted by an international court, a lack of cooperation on the
part of certain states may well mean that a significant number of such persons
do not in the end face prosecution and punishment. Furthermore, at the national level, in a society transitioning from conflict, the need to move beyond
past events may arguably render the prosecution and imprisonment of all of
those bearing a degree of criminal responsibility undesirable. The punishment
of individual perpetrators therefore provides only a limited means of administering justice in respect of crimes under international law and, in such situations, victim redress, as a form of expressivist justice, can have a significant
role to play.
For its part, victim redress, in particular that provided independently by the
Trust Fund, can be offered to a much wider range of victims than those
harmed by crimes successfully prosecuted before the ICC. Alongside the prosecution and punishment of individuals, it enables a broader approach to justice
for victims of such crimes than is possible merely through retribution involving the custodial punishment of individual perpetrators. The ICCs Trust
Fund will have a particularly significant role in this regard since it can provide
redress to victims of crimes that are never brought before the ICC or, for that
matter, any other court. The provision of redress in the form of victim support
as part of a criminal justice process can ensure that, for the many victims
who never see retributive justice being meted out, a significant number may
at least receive some measure of justice in the form of the redress they receive
and the vindication that this provides.

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70 As a matter of prosecutorial policy, the ICC Prosecutor concentrates investigative resources on

the prosecution of those who appear to be most responsible for crimes within in the jurisdiction
of the Court. See Paper on Some Policy Issues Before the Office of the Prosecutor, September
2003, at 3 available online at www.icc-cpi.int/Menus/ICC/StructureoftheCourt/
OfficeoftheProsecutor/PoliciesandStrategies (visited 30 January 2012). See also
Regulation 34, Regulations of the Office of the Prosecutor (ICC-BD/05-01-09), 23 April 2009.
71 See Report to the President from Justice Robert H. Jackson, Chief Counsel for the United States
in the Prosecution of Axis War Criminals, June 7 1945, 39 American Journal of International
Law (1945) 178.
72 Note, however, that although Art. 3(1) ICCSt. specifies that the seat of the ICC is The Hague,
according to Art. 3(3) the Court may sit elsewhere whenever this is desirable. But security and
logistical problems may limit the extent to which the latter provision is used.

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The sizable, often enormous, number of victims who are excluded from the
benefits of the prosecution and punishment of perpetrators at the international
level is not the only problem facing international criminal justice processes
relying on the prosecution and punishment of individuals. Even for the victims
of crimes perpetrated by individuals who are, in the end, prosecuted, such
trials function far from ideally. The trial of individual high-ranking offenders70
lacks immediacy and relevance for victims. High-level perpetrators will often
be many steps removed from the harm inflicted upon the ultimate victims of
their crime. In addition, the scope of a perpetrators criminal responsibility
dealt with at trial may cover a very broad factual scenario with the result that
the findings contained in a Trial Chambers judgment may bear little relation
to the experience of victims individually. As Justice Robert Jackson, Chief
Prosecutor for the United States at Nuremberg, put it in a letter to President
Truman in June 1945: Our case against the Major defendants is concerned
with the Nazi master plan, not with individual barbarities or perversions
which occurred independently of any central plan.71
While the focus on the overarching scheme of violence may be an inevitable
consequence of a trial concerned with overall responsibility for a systematic
campaign of violence, for the victims of the individual barbarities which comprised that campaign, the sense of justice gained through the trial and punishment of a perpetrator may be significantly lessened, or even undermined, by
the hierarchical, temporal and physical remoteness of the individual prosecuted from the atrocities for which he or she bore ultimate responsibility. This
potential dislocation between the trial and punishment of a high-level perpetrator at the international level and the ultimate victims of that perpetrator
may be accentuated where, as will often be the case,72 the trial process occurs
in a location geographically far removed from the locality where the crime
occurred and uses procedures, processes and an institution quite different
than those with which victims may be familiar.
In the above light, it is clear that, particularly where a national legal system
is unwilling or unable to prosecute, many victims perhaps the vast majority
are unlikely to see justice in the form of retributive punishment being
meted out to the perpetrators of the crimes inflicted upon them. Indeed, for
some, the prosecution and punishment of one or a handful of individuals for
a widespread atrocity may entirely fail to reflect the gravity of a mass atrocity

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5. Conclusion
Although international criminal justice has traditionally been conceptualized
almost exclusively in terms of the prosecution and punishment of individual
perpetrators, there is no reason why this must necessarily be so. There exists
a great diversity of ways in which criminal justice can be administered in addition to the prosecution and punishment of individuals, significant as the
latter may be. Indeed, given the particular context in which international criminal justice institutions exist, including the phenomenon of mass participation
and (likely) responsibility, the selectivity of international prosecutions, and the
seeming inadequacy, or worse, irrelevance, of individual punishment in the
face of the grave harm caused by mass atrocity, a broader, more diverse approach to the administration of international criminal justice may seem
desirable.
This is not to suggest that measures of redress geared towards the vindication of victims or the denunciation and disavowal of conduct inflicted upon
them, can or should supplant the prosecution and punishment of those responsible for grave atrocities, where such measures are possible. But in a
system of justice which is, at best, only able to offer the prosecution and punishment of a handful of individuals (especially where national authorities
refuse all cooperation), the worth of vindicative satisfaction, manifested in
the form of programmes for different forms of redress, as a means of providing
some meaningful measure of criminal justice cannot be easily discarded.
As Martti Koskenniemi observes, often victims do not so much expect punishment (though of course that is not insignificant) but rather a recognition
of the fact that what they were made to suffer was wrong, and that their
moral grandeur is symbolically affirmed.73 The creation of a regime for victim
redress offers with it the possibility of this form of symbolic affirmation and
has the potential to provide a measure of justice to a much wider range of victims than is possible merely through the prosecution and punishment of
73 See M. Koskenniemi,Between Impunity and Show Trials, 6 Max PlanckYearbook of International
Law (2002) 1, at 11.

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and its consequences. Moreover, where trials do occur, they are likely to take
place many years after atrocity occurred and relate to an overarching scheme
of events of which the victims own personal experiences and those of their
family or community may comprise a miniscule component. In contrast, reparations and victim support potentially provide a more tangible and concrete
form of justice and one that can readily be made manifest in the localities
where victims live. Thus, to some extent, reparations and victim support provide a measure of redress for victims with an immediacy and relevance,
which may be lacking where an international criminal justice process relies
solely on a small number of criminal trials involving the prosecution and custodial punishment of individual, high-level perpetrators.

372

JICJ 10 (2012), 351^372

individual perpetrators. Although perhaps a modest claim for the principled

role to be served by the Statutes remedial framework, its significance should
not be lightly dismissed. For many victims affirmation together with a measure
of practical assistance may be as significant as the prosecution of a political
leader or military commander, perhaps many years after an atrocity occurred,
for an overarching scheme of events of which the victimsown personal experiences and those of their family or community may comprise a miniscule
component.

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