1. Introduction
I claim that ICC reparations orders are (also) punitive in nature.Footnote 1
Discussions on reparations matter, for victims are playing an increasingly prominent role in international criminal law.Footnote 2 In confirmation, the Rome Statute allows the ICC to make a reparations order directly against a convicted person.Footnote 3 This mandate aligns with the Court’s normative move towards ‘victim-oriented justice’,Footnote 4 heralded as one of the ICC’s greater innovations.Footnote 5 The added value of the ICC reparations regime for international criminal law is rightly lauded, and it is not my intention to challenge the utility of this regime,Footnote 6 nor draw attention away from victim needs and interests.
Yet, the focus on the virtues of reparations orders has somewhat overshadowed the discussion in regards to their nature. Are reparations punitive or remedial measures?Footnote 7
The Statute itself provides for a rather loose framework, which does not explicitly answer this query. Article 75 allows the Court to order reparations on its own motion,Footnote 8 stipulating that it is to respect the rights of victims at all times.Footnote 9 The Trust Fund for Victims (TFV) is also involved, as the ICC may order that the award for reparations be made through the TFV;Footnote 10 the TFV may also complement a reparations award, using its own funds.Footnote 11 These issues are clearly addressed by the Statute. Further details are to be fleshed out by the Court itself, as empowered to establish principles relating to reparations. These are to include restitution, compensation, and rehabilitation. Indeed, the ICC has successfully issued five reparations orders issued to this day: Ongwen,Footnote 12 Ntaganda,Footnote 13 Al Madhi,Footnote 14 Katanga,Footnote 15 and Lubanga. Footnote 16 In these, the ICC has consistently maintained that reparations orders are entirely non-punitive in nature, a position that has found support in literature as well. This is justified by the alleged lack of punitive intent. Reparations are awarded solely to acknowledge and redress the harm suffered by the victims, providing restitution, compensation, and rehabilitation. This is contrasted to the ICC penalties, which set out to punish the perpetrator, seeking punitive objectives, in particular retribution. Unlike penalties, reparations are not implemented, designed, or understood to punish. Due to their distinct purpose, reparations are entirely non-punitive – so goes the argument.Footnote 17 This understanding has underpinned the entire ICC apparatus and gone relatively unchallenged in the ICC literature,Footnote 18 taking the form of a mantra.
It is precisely the task of this article to challenge the dominant position. It is maintained that the current discourse that treats ICC penalties and reparations as parallel lines is legally erroneous and problematic. While acknowledging the compensatory function of reparations orders, it is proven that reparations are also punitive in nature.
This observation is of paramount importance, as it calls for a normative reconceptualization of the entire regime. More practically, acknowledging reparations as punitive measures means that they should be complemented with due consideration to procedural rights and sentencing principles, if not reformed altogether.Footnote 19 In this fashion, a comprehensive examination of the nature of reparations orders is doubly justified.
To this end, the article proceeds as follows. Section 2 outlines the prevalent view in the ICC and scholarship, which takes reparations to be altogether distinct to penalties, due to a lack of punitive intent on the part of ICC judges and drafters. Section 3 revisits the nexus between penalties and reparations. It is maintained that the arguments advanced by the orthodox view do not suffice to disprove the punitive nature of reparations. On the contrary, an analysis of the reparations orders themselves proves that the purposes and functions of reparations are in fact indistinguishable from those of ICC penalties. Section 4 underlines the problematic consequences of the current reparations regime, and offers some thoughts on how to move forward. Section 5 summarizes and concludes.
2. The orthodox position: Reparations as non-punitive measures
This section outlines the prevalent discourse and its justifications. It is maintained that the ICC, alongside a considerable number of literature contributions, regards reparations as exclusively remedial, non-punitive measures. This stance is justified, according to its proponents, as it aligns with judicial practice, regulation, and context.
Subsequent sections proceed to discuss my antithesis, criticisms, and alternative propositions.
2.1 The ICC case law
The prevailing position in current discourse recites that reparations orders do not carry punitive force.
It is important to recognize that the ICC itself subscribes to this discourse. This is made clear in the reparations orders themselves. In Ntaganda, the Trial Chamber declared that ‘the goal of reparations is not to punish the person but indeed to repair the harm caused to others, the objective of reparation proceedings being remedial and not punitive’.Footnote 20 This was recently confirmed in Ongwen.Footnote 21 Similar affirmations are found in other reparations orders, with Lubanga noting that ‘[t]he Statute and the Rules of Procedure and Evidence introduce a system of reparations that reflects a growing recognition in international criminal law that there is a need to go beyond the notion of punitive justice’.Footnote 22
The ICC has maintained the non-punitive design of reparations orders in the second instance, in appeals made against reparations orders. Both Katanga and Lubanga declare that ‘[t]he goal of reparations is not to punish the person but indeed to repair the harm caused to others’.Footnote 23 In Katanga, the Appeals Chamber found that ‘as long as a convicted person is held liable for the costs that it takes to repair the harm caused, there is no punitive element’.Footnote 24 In Lubanga, the appellant argued for the reduction of his reparation liability. He stated that such a reduction would be justified in light of his good behaviour, and in light of the necessity of his actions. Yet, the Appeals Chamber dismissed such claims, finding them altogether unrelated to the purposes of reparations, which are not punitive.Footnote 25 Similarly, when the appellant in Ntaganda challenged the reparations order, claiming it failed to account for his degree of individual culpability, the Appeals Chamber responded that ‘other persons’ contribution to the harm resulting from the crimes for which the person has been convicted is irrelevant to that person’s liability’.Footnote 26 This detachment of reparations from individual culpability is evident also in the Ntaganda reparations order, where the ICC found that:
[i]n determining the amount of the convicted person’s liability, the primary consideration should be the extent of the harm and the costs to repair it. Other criteria, such as modes of liability, gravity of the crimes, or mitigating factors are not relevant to this determination.Footnote 27
The ICC clearly treats reparations as altogether independent to individual culpability, further subscribing to a non-punitive reading of reparations.Footnote 28
In sum, all reparation orders and appeal judgments consistently maintain that reparations are non-punitive measures. A plethora of scholars have aligned to the ICC stance, making this position well-established and with a wide array of arguments to justify it.
It is to these arguments the analysis turns.
2.2 Justification: ICC practice, statute, and context
Proponents of the orthodox view have utilized a series of arguments to justify the non-punitive nature of reparations. These may be broadly grouped in three categories: the ICC practice; the regulatory framework; and the interpretive context provided by the ordinary meaning of the term, alongside the delegates’ deliberations leading to the Statute.Footnote 29
First, the orthodox position stands on the simple fact that the ICC itself consistently finds reparations to be non-punitive measures. Of particular importance here is the Ntaganda line of detaching reparations from individual culpability, in clear juxtaposition to penalties, which are firmly anchored to individual culpability.Footnote 30 Rather than striving towards punitive objectives and seeking to repair the harm as caused by the defendant, reparations strive to repair the harm caused to victims.Footnote 31 In light of their disregard for offender culpability, clear victim orientation, and remedial objectives, reparation orders are declared non-punitive.Footnote 32
Second, the regulatory framework itself, composed of the Rome Statute and the ICC Rules of Procedure and Evidence, betrays the non-punitive nature of reparations.
The penalties that the ICC may impose are expressly enumerated within Article 77 of the Rome Statute, constituting part and parcel of Part 7, entitled ‘Penalties’. In contradistinction, the provisions governing reparations are situated within Article 75 of Part 6 of the Statute, denoted as ‘The Trial’, and chiefly concerned with procedural aspects, rather than sentencing issues.Footnote 33 This strategic arrangement of reparations provisions inherently underscores the intention of the Rome Statute drafters to dissociate reparations from the concept of punishment.Footnote 34
In similar fashion, the Statute distinguishes forfeiture of property as penalty, as being altogether separate from forfeiture of property as a compensatory measure. This becomes evident in light of Articles 75(5) and 109 of the Statute, read in conjunction. Article 109 obliges ICC state parties to give effect to a forfeiture ordered as penalty. Article 75(5) obliges state parties to give effect to a reparations orders ‘as if’ the provisions of Article 109 were applicable. The inclusion of the terms ‘as if’ clearly implies that there are two distinct types of forfeiture orders: reparative, and punitive. This is echoed in Rule 218 of the ICC Rules, which lists the minimum requirements to be included in the body of forfeiture orders. This Rule specifies one set of requirements in respect of forfeiture measures awarded as a penalty,Footnote 35 and an altogether distinct set regarding forfeitures that result from a reparations order.Footnote 36 Such provisions further demonstrate the disparity between reparations orders and punitive measures.Footnote 37
In addition, both Statute and Rules allocate discrete objectives to each measure. Reparations are to be made ‘to, or in respect of, victims’,Footnote 38 and their objectives are ‘restitution, compensation and rehabilitation’.Footnote 39 In this fashion, reparative forfeiture of property measures pivot towards a victim-centric perspective, seeking to acknowledge and address the needs of those who have suffered. This is opposed to the offender-centric punitive forfeiture measures, which primarily aim to punish the offender by divesting them of financial gains.Footnote 40
Another factor of relevance is to be found in the intrinsic connection between reparations and the Trust Fund for Victims (TFV). Article 75 of the Statute allows the ICC to order that the award for reparations be made through the TFV;Footnote 41 further, the TFV may complement a reparations award, using its own funds.Footnote 42 The TFV has a clear restorative and rehabilitative mandate. Consequently, the reparations–TFV nexus serves to further emphasize the non-punitive nature of reparations.Footnote 43
Third, an interpretation of reparations in light of (i) the ordinary use of the term,Footnote 44 and (ii) the delegates deliberations leading to the Rome Statute,Footnote 45 serves to further underline their non-punitive nature.
The ordinary meaning of the term in everyday language signifies ‘reparation’ as ‘the action of making amends for a wrong done’, the ‘compensation for, remedying of, some loss’, or the ‘repair of an injury’.Footnote 46 Such definitions singularly encompass the act of redressing inflicted harm. There is no indication, within customary linguistic usage, that ‘reparations’ concurrently convey the notion of penalizing a perpetrator for inflicting said harm. The very meaning of the term conveys its non-punitive nature.
This understanding aligns with the judicial practice on reparations in international law.Footnote 47 This is exemplified in the Chorzów case, where the Permanent Court of International Justice held that ‘reparation must, 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’.Footnote 48 This formulation does not imply any notion of reparations serving a punitive purpose whatsoever. Subsequent case law from the Permanent Court of Arbitration, the Inter-American Court of Human Rights, and the European Court of Human Rights, reveals that these international tribunals all subscribe to the same non-punitive reading of reparations.Footnote 49
The committee deliberations leading to the adoption of the Rome Statute also underline the drafters’ intent to demarcate reparations from punitive modalities. As revealed by the travaux préparatoires, national delegations originally set out to structure a reparations regime that would include ‘a punitive element, a compensatory element or both’.Footnote 50 Yet, the final proposal on reparations did not outline a punitive facet within the framework of reparations awards.Footnote 51 This omission marks a shift in direction, revealing that the parties implicitly yet clearly desire to steer away from punitive reparations. This attitude was likewise mirrored in the proceedings of the Working Group on Penalties. Originally, the Group cited reparations as a penalty.Footnote 52 Yet, no allusion to reparations was incorporated during the final revision of the relevant pertaining to enforceable penalties.Footnote 53 Consequently, the drafters of the Rome Statute considered, and ultimately discarded, the notion of punitive reparations.Footnote 54
2.3. Reparations as purely remedial measures
On the basis of these arguments, the orthodox position concludes that the purpose of reparations is compensatory. Their justifications are restitution, compensation, rehabilitation, and other modalities that seek to acknowledge and redress victim harm, and ‘where possible … restore the status quo ante’.Footnote 55 Most importantly, reparations are taken to pursue these objectives in lieu of punishment – compensation is the sole purpose of reparations. In this fashion, reparations and penalties are taken to be ‘as incompatible as oil and vinegar’,Footnote 56 an understanding that has been entrenched in ICC practice and literature.
3. Antithesis: Reparations as punitive measures
I take no issue with the claim that reparations have a compensatory objective – this, to me, appears apparent, and very much laudable. Yet, the shibboleth that reparations are exclusively compensatory finds me in opposition.
I am not alone in my claim. Others have considered the punitive character of ICC reparations before. Characteristically, O’Shea notes that ‘ordering the accused to pay compensation is a punitive measure’.Footnote 57 Fisher underlines the expressive condemnatory function of reparations, noting that ‘when compelled, reparations can be similar to punishment in that both punishment and reparations can help to communicate the community’s understanding of the respective standings of the victim and perpetrator’Footnote 58 – though Kirsten does not place the point in the specific context, does not examine the nature of reparations, does not argue that reparations are (also because of their condemnatory expressive capacity) punitive or (despite their condemnatory expressive power) civil. Drumbl, noting that ICC reparations escape the label ‘retributive justice’, does not further comment on their nature, yet suggests that:
the Rome Statute’s conceptual approach to reparations as restorative justice should not be universalized … there may also be occasion … to conceptualize reparations as poena, in particular when they take the form of fines and financial damages directly ordered against human rights abusers.Footnote 59
Drumbl concludes that impunity should be understood as ‘freedom from harmful consequences, recrimination, reparations, shame, or pain’,Footnote 60 advocating for a more elastic understanding of punishment that includes reparations – though his focus does not lie on the ICC specifically. Stahn observes that the ICC reparations regime ‘differs from classical civil claim models due to its nexus to the criminal case and specifically the focus on conviction’.Footnote 61 Shelton admits that the exact determination of the nature of ICC reparations is a challenging matter and does not discount the possibility of exemplary reparations (though neither expands nor endorses this).Footnote 62 Dwertmann considers the notion, before ultimately dismissing it.Footnote 63 Birte argues that there are punitive elements in reparations orders, though concludes that the nature of the reparations is very unclear. He suggests that, in practice, it would be more convenient for ICC state parties to treat reparations as sanctions – nevertheless, such a suggestion is meant to address practical issues, rather than serving as the conclusion of a thorough examination on the nature of reparations.Footnote 64 In the current edition of An Introduction to International Criminal Law and Procedure, Cryer, Robinson and Vasiliev note that ‘reparations are grounded in individual criminal responsibility of the convicted person and hence are an extension of penal sanction rather than a form of civil damages’.Footnote 65 Yet, in previous editions of the same book it is noted that ‘[w]hile it could be argued that the reparations are a penal sanction - as it presupposes a conviction - they are rather of a civil nature’.Footnote 66 Interestingly, both statements note the nexus between reparations and individual liability confirmed by prior criminal conviction, yet proceed to reach antipodean conclusions.
These findings reveal that the orthodox position is not without dissent. Nevertheless, it is regrettable that such observations have been made mainly en passant. A comprehensive, detailed analysis identifying the exact reasons that made ICC reparations punitive, mounting a properly developed and sustained assault to the many arguments presented by the orthodox position, has been so far missing.
Against this backdrop, I proceed in three steps. First, I contend that the justification of the orthodox position rests principally on volition: the argument is that reparations are not punitive for they are not meant to pursue punitive objectives neither by design (as conceptualized by the Statute drafters) nor practically (as imposed by the ICC judges). Second, I dismantle the former string of arguments, showing that, by design, reparations are allowed to fulfil both remedial and punitive goals. Third, I prove the concurrency of objectives and functions between the ICC-imposed penalties and reparations orders.
Once successfully defended, my antithesis proves that the orthodox position is erroneous, and that reparations are simultaneously remedial and punitive.
3.1 Punitive intent as the disputed point
The narrative of the orthodox position focuses on intentFootnote 67 – or rather, lack thereof. Reparations orders are taken to not be punishment, for they are not meant to be punishment. It is not the will of the Statute’s draftersFootnote 68 nor the ICC judgesFootnote 69 to equip ICC reparations with any punitive purpose. On the contrary, they wish to focus exclusively on the victim, and use reparations to achieve solely compensatory objectives. The singular trait that distinguishes reparations from penalties revolves around volition.
No other aspect of reparations is disputed. It is unclear whether any other aspect of reparations could convincingly be disputed. In all other aspects, reparations and penalties ordered by the ICC converge. In both cases, the authoritative Court compels an individual offender to suffer an unpleasant consequence as response to a crime committed under the Rome Statute. Both are dependent on a previous determination of guilt. The outcome is also identical: the individual has to comply and suffer the unpleasant consequence.Footnote 70 In punishment, this involves loss of liberty, and (potentially) material loss; in reparations, it involves material loss. To an outside observer with no knowledge of the ICC judges’ or drafters’ intent, it would be impossible to separate reparations orders from penalties, particularly penalties of pecuniary nature, such as forfeiture measures.Footnote 71
In light of such observations, the focus of the orthodox position on intent is hardly surprising – no other route seems viable.
The analysis now turns to disputing the orthodox position. First, I advance rejoinders to the contextual assertions presented above, contending that the nature of reparations is, by regulatory design, ambiguous. Then, I revisit ICC reparations orders, proving that the ICC judges utilize reparations to achieve both remedial and punitive objectives – I also note that reparations are often better equipped to achieve primarily the latter.
3.2 The ambiguous nature of reparations orders by design
A key pillar of the orthodox position, as already outlined, rests on the drafters’ design of reparations. Based on the placement and textual interpretation of specific provisions, as interpreted in light of the ordinary meaning and travaux, orthodoxy concludes that delegates at Rome did not see reparations as part of the Court’s punitive apparatus.
I take exception to this stance, and submit the following points in response.
The fact that the regulatory framework explicitly acknowledges the compensatory nature of reparations, does not ipso facto preclude their exemplary nature. Both the Statute and the Rules alike are silent on the matter. All that is stated clearly is that ‘[t]he Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’. That reparations have a restorative, compensatory, rehabilitative objective is definitive. Yet, nowhere does the regulatory framework explicitly denounce the potential of reparations to fulfil punitive functions.
Reparations do indeed fall under Part 6 of the Rome Statute, which concerns the conduct of trial proceedings. Yet, this does not mean that reparations are to be counted as part and parcel of some airtight compartment altogether distinct from sentencing and punishment. Article 75 of the Statute declares that individual reparations orders are to be made ‘directly against a convicted person’. This is repeated in Rule 98 of the ICC Rules.Footnote 72 Both the Statute and the Rules are explicit in this point: the addressee of reparations orders must actually be a convicted individual. Conviction is one of two outcomes (the other being acquittal) of the trial itself, signalling the curtain fall. A guilty verdict is established at the very end of the proceedings. The determination and enforcement of reparations follows. Consequently, reparations belong firmly within the post-trial phase, the same phase where the ICC considers sentencing and penalties. The argument is only strengthened once we consider that Rule 98 falls under Chapter 4, entitled ‘[p]rovisions relating to various stages of the proceedings’.
Both reparations and penalties are conditional on conviction. Before imposing reparations against the individual offender, the ICC must find the person guilty.Footnote 73 Previous conviction is paramount, even if this is ‘dissatisfactory to the victims’.Footnote 74 In case of acquittal, reparations cannot be issued.Footnote 75 Opposing voices have been raised, claiming that reparations should be ordered regardless of a guilty verdict; yet, such arguments have fallen short.Footnote 76 This observation serves to remind us that the ICC remains a criminal court – not a civil tribunal, not an arbitrator, nor a restorative justice mediator. Its nature is reflected on all aspects, including reparations.
Regarding the TFV and its non-punitive mandate, which allegedly carries over to reparations. Reparations may be implemented and/or complemented by the TFV, yet they are determined and issued by the ICC, which remains a criminal court. In addition, and besides handling reparations, the TFV may also deal with money and property collected through punitive forfeiture measures and fines.Footnote 77 While the ICC orders such measures as punishment, it may nevertheless transfer them to the TFV, to be used towards victim compensation. This does not change the nature of either forfeiture orders or fines – nor should it dictate the nature of reparations. The Trust Fund may well have a non-punitive mandate and utilize its funds towards a purely reparative purpose, yet this does not mean that ICC reparations orders must share such traits.
Turning to the arguments stemming from a contextual interpretation.
It shall be recalled that the orthodox position claims that the ordinary usage of the term ‘reparations’ underlines its non-punitive nature. Two points prove relevant here. First, the ICC has six official languages;Footnote 78 a focus on the term as used in English is too narrow to draw any definitive conclusions. Second, and though I concur that the term ‘reparations’ is commonly associated with redress, it would be excessive to claim that this marks a departure from the notion of the ICC punishment. This is because punishment in the ICC is also understood primarily in terms of redress. Indeed, the primary justification of the ICC penalties is retribution,Footnote 79 understood as condemnation of the crime, and acknowledgment of the harm.Footnote 80 In this fashion, retribution serves to redress international society’s and victims’ ‘need for truth and justice’,Footnote 81 and may be viewed also as an expression of solidarity to the victims.Footnote 82 This understanding of retribution matches the dictionary definition of the term: ‘to redress or repay a debt to society’.Footnote 83 In this light, reparation is not too detached a notion from retribution – since retribution is the primary objective and justification of ICC punishment, it may also be said that reparation is not far off the concept of the ICC punishment.
Regarding the understanding of the concept in international practice: it shall be recalled that the orthodox position utilizes examples stemming from the Permanent Court of Arbitration, the Inter-American Court of Human Rights, and the European Court of Human Rights case law. The claim is that such case law provides for an appropriate context in which to assess the nature of ICC reparations. In response, it should be noted that the non-punitive nature of reparations in these courts is far from undisputed truism.Footnote 84 Even if that were so, it is doubtful whether such comparisons have the potential to prove fruitful in the first place. The ICC is not an arbitrator tasked with resolving tensions between parties, it is not a human rights tribunal, nor does it address its reparations orders to state actors. Instead, the ICC is a criminal court,Footnote 85 with a mandate of retributive justice, and preoccupied with addressing individual criminal liability.Footnote 86 It follows that any comparison should focus on the reparation regimes of similar courts and tribunals.Footnote 87 Yet, even such a comparison would be challenging, and it remains doubtful whether it could provide for a useful source of cross-pollination. As has been rightly noted, the ICC marks the ‘first real attempt to develop a reparation regime in the context of international criminal justice’.Footnote 88 Indicatively, the Nuremberg and Tokyo Charters did not mention victims.Footnote 89 The International Criminal Tribunals for Former Yugoslavia (ICTY) and Rwanda (ICTR) included scarce references to victim rights and reparations, of minimal practical importance.Footnote 90 The Special Court for Sierra Leone (SCSL) reparations regime has been similarly characterized as a missed opportunity, failing to substantially advance reparations.Footnote 91 While the Extraordinary Chambers in the Courts of Cambodia (ECCC) attach reparations to individual liability, they nevertheless never permitted individual reparations awards, opting instead for a civil claims approach.Footnote 92 In this light, ICC reparations orders are unique. The claim that international tribunals assign a solely compensatory nature to reparations (even if accurate) should not preclude any further examination of the ICC regime.
Concerning the argument deriving from the travaux analysis. It is true that early proposals explicitly referred to a punitive element of reparations, whereas later ones did not incorporate such references. However, the mere silence of the late proposals on the matter should not be taken to signal a concession (much less clear intent) to deprive reparations of any punitive function. It would be more accurate to read the omission of clarifying the nature of reparations as expressing the drafters’ desire to leave the final determination of the issue to the ICC itself. This would reflect the well-known tensions that arose in the negotiations process, and the general tendency of the drafters to allow a range of contradictions and ambiguities to remain in the ICC regulatory framework, ‘pushing problem solving into the future’.Footnote 93 In other words: the drafters strived to reach a negotiation consensus, which would allow for the finalization of the Statute. To this end, and instead of making concessions and explicitly dictating one way or another, they left the thorny matter of reparations to be decided in the future, by the ICC, on a case-by-case basis. This is reflected in today’s Article 75(1), which declares that it is the task of the Court to ‘establish principles relating to reparations’. Granted, the Court is explicitly obliged to account for victim restitution, compensation and rehabilitation objectives – yet is otherwise unfettered in its task. The travaux never prohibited reparations from pursuing a punitive goal, on top of their compensatory one.
The volition of the drafters and the intentional community – as inferred by the regulatory framework, travaux, and context – expressly equips reparations with compensatory goals, yet is not at all clearly excluding exemplary objectives. Claiming that regulatory and contextual arguments establish the non-punitive nature of the ICC individual reparations is a feeble claim. On the contrary, the nature of reparations remains ambiguous, open to interpretation – and definitely far from renounced.
I have shown that the nature of reparations remains ambiguous, in light of the regulatory framework and context. Yet, this argument alone remains insufficient to establish the article’s premise. To successfully undertake such a task, one would necessarily have to also consider the practical implementation of reparations by the ICC judges themselves. It is to this task the analysis now turns.
3.3 The dual nature of reparations orders in practice
An analysis of the reparations orders themselves reveals that the ICC imposes reparations pursuing the same objectives with penalties; and, similar to punishment, reparations are often better equipped to achieve primarily retributive functions.Footnote 94
Punishment in the ICC is traditionally understood as seeking retributive, deterrent, rehabilitative, and expressive goals.Footnote 95 I shall be first sketching each objective, before explaining how they apply to reparations.
Retribution, as already noted, justifies punishment by viewing it as the condemnation of the international community. Penalties hold the perpetrator accountable for their acts,Footnote 96 simultaneously acknowledging the harm caused to the victims.Footnote 97 Now, if reparations do not have any punitive objective, the following statement must hold true: ‘reparations orders do not hold the perpetrators accountable, nor acknowledge the harm caused’. Yet, this is simply untrue. Such orders are dependent on the culpable commission of a codified crime that merits retribution.Footnote 98 More importantly, and as made evident in the latest reparations order, reparations seek to ‘oblige those responsible for serious crimes to repair the harm they have caused and enable the Court to ensure that offenders account for their acts’.Footnote 99 In this fashion, reparations acknowledge both the victim suffering and the perpetrator responsibility, fulfilling the retributive purpose of punishment.Footnote 100
Deterrence strives to ensure that similar crimes do not occur in the future. Punishment is justified as it instils fear and deters both potential offenders in abstracto and the individual perpetrator in concreto. Footnote 101 Once more, if reparations do not fulfil any punitive objective (as per the orthodox understanding), it follows that reparations orders are not in place to deter offenders. Yet, the ICC explicitly states that ‘[r]eparations also aim, to the extent possible and achievable, to … deter future violations’.Footnote 102 Once more, the phrasing of the Court is rather straightforward, confirming that deterrence forms one of the purposes of reparations, similar to penalties.
Punishment is also meant to rehabilitate. The objective here is to reconcile offender, community, and victim, so that the offender may be reintegrated and re-join society in conditions of peace.Footnote 103 This exact purpose is fulfilled by reparations as well. This is made evident by Article 75 of the Statute, which explicitly acknowledges rehabilitation as one of the purposes of reparations. The ICC adopts the same stance. Characteristically, Ntaganda notes that reparations ‘may assist in promoting reconciliation between the victims of the crime, the affected communities, and the convicted person’,Footnote 104 a position echoed in previous reparations orders too.Footnote 105
Punishment holds an expressive purpose too, aligning with the well-known Durkheimian notion that sentencing reflects and confirms society’s ‘moral opprobrium’.Footnote 106 Punishment is justified as a pedagogical tool,Footnote 107 which may ‘show victims that their wrongs are taken seriously and demonstrate respect for perpetrators by treating them as responsible agents’.Footnote 108 In similar fashion, reparations orders are addressed to the convicted person, while acknowledging the harm suffered by the victims. In this manner, reparations acknowledge harm and suffering in a meaningful, personal way,Footnote 109 appreciating ‘the individual dimension of the crimes’Footnote 110 and underscoring the value of each human being by recognizing victims as rights-holders.Footnote 111 Simultaneously, reparations orders are made in public, imposed by a criminal tribunal in the aftermath of prosecution and conviction, obliging the defendant to suffer an unpleasant consequence. It follows that reparations orders have a high potential to stigmatize the individual offender, while also sending a message to potential future victims and perpetrators alike. Similar to punishment, ICC reparations orders reflect the judgment of international society in its entirety.Footnote 112
On the basis of such observations, it becomes clear that the ICC employs reparations to address also retributive, deterrent, rehabilitative, and expressive concerns. Such considerations are not merely incidental, an afterthought to compensatory objectives. On the contrary, the exemplary purposes of reparations are indispensable. Reparations orders must, by definition and design, hold the convicted individual accountable, acknowledge the harmful consequences suffered by the victims, entail consequences that seek to dissuade future offenders, pursue the reconciliation between offender, society, and victim(s), and express the international community’s condemnation of the crime, and sympathy towards the victim. A reparations order that does not pursue these goals is no reparations order at all. One may no longer convincingly claim that reparations orders aim solely towards acknowledging and remedying victim harm, as suffered by the defendant’s hands. The ICC reparations regime blends reparative and punitive rationales, in theory and in practice. In short, punitiveness emerges as a conditio sine qua non of reparations.
Two considerations, as potential rejoinders to my argument, remain to be addressed.
One may stand as a non-punitive reading of reparations, claiming that the ICC itself treats them as such, especially after Ntaganda detached reparations from individual liability. Yet, this argument is circular. It claims that reparations are non-punitive because they are detached from individual liability – yet reparations are detached from individual liability exactly because they are deemed non-punitive. To escape this fallacy, and to clearly establish the non-punitive nature of reparations orders, one would need to justify both points cumulatively, presenting reasons as to why: (i) the determination of reparations should exclude individual liability and focus solely on victim harm, and; (ii) an exclusive focus on victim harm renders reparations entirely non-punitive, in spite of the punitive purposes pursued. The argument presented above falls short of satisfactorily fulfilling both tasks.
Perhaps more convincingly, one may focus on the practical impact of reparations orders on the convict. Reparations orders have been faced with implementation issues, no less because those convicted by the ICC prove indigent, with no assets to pay over to their victims.Footnote 113 Indeed, so far none of the five individuals has paid. In this light, one may argue that the arguments I have outlined before are moot: a reparations order that has no impact on the perpetrator, and hence fails to effectively achieve any retributive objectives, is no punishment at all.
Such an argument may be rebutted on the basis of three observations. First, it is probable that, in the future, an individual offender will not be found indigent.Footnote 114 Second, the fact that the convict is indigent at the moment of proclamation does not absolve them of any responsibility. Instead, they still bear the burden of paying to the TFV – reparations orders do not expire, but rather remain in force ad infinitum, hanging over the individual’s head as the proverbial sword of Damocles.Footnote 115 Third, and while the indigent convict may well escape the narrow consequences of deprivation of property, the expressive condemnation and retributive force of the reparations order remains.Footnote 116 In other words: while the compensatory purpose of reparations orders may never be fulfilled (since the convict will never pay to the victims), their retributive purpose is always satisfied.
This last point is particularly important, as it marks another parallel between reparations and penalties. Indeed, it has been noted that sentencing and punishment in the ICC often fulfil primarily retributive functions.Footnote 117 Non-retributive concerns remain normatively relevant, yet often prove largely impossible to achieve.Footnote 118 The same holds true for reparations, as made clear in the reparations orders themselves. Characteristically in Ntaganda, it was noted that holding those responsible accountable for their acts is, in fact, the main purpose of reparations.Footnote 119 Other objectives, including deterrence, rehabilitation, and, most importantly, achieving victim-oriented justice, remain equally important, normatively – yet practically, they are to be pursued to the extent possible and achievable.Footnote 120 Similar observations are to be found in all reparations orders.Footnote 121 It becomes clear that reparative goals such as the relief of victim suffering, while normatively important, may practically assume a more ancillary role.Footnote 122 Accountability via retribution, while not the sole nor absolute priority, is often the principal role that reparations effectively fulfil.Footnote 123 Simply put, the ICC has been ‘primarily established to try an accused, not to award reparations to victims’Footnote 124 – a reality that is clearly reflected in judicial practice.
In light of such considerations, reparations remain punitive, regardless of the financial status of their addressee.
3.4 Reparations as simultaneously remedial and punitive measures
It is maintained that reparations are not at all incompatible or distinct to penalties, as the orthodox position would have it. Reparations are linked to criminal prosecution, trial, and proclamation of guilt, and inexorably pursue punitive goals identical to penalties – often fulfilling primarily retributive functions. Reparations and penalties do not stand opposite one another. They are, rather, complementary, contributing equally towards ending impunity.Footnote 125 Instead of being incompatible as oil and vinegar, compensatory and exemplary objectives and functions ‘combine to make an acceptable salad dressing’.Footnote 126
4. Implications and the need for reform
Revealing that the orthodox position is out of kilter with reality has clear and profound implications for the understanding and application of reparations against individual convicts.
The analysis has shown that punishment is also a purpose of reparations orders. Yet, currently reparations are not treated as a (at least quasi-) punitive measure. This disparity is problematic for the individual convict. The (intended) onus of the ICC financial penalties and reparation orders is identical. Reparations have, or at least strive to have, equally adverse consequences for the offender, regardless of their official classification as punishment (or lack thereof).Footnote 127 Acknowledging that the victims have suffered adequately justifies the remedial pursuit of reparations orders, yet it does not explain why this remedy must come at the offender’s expense.Footnote 128 This becomes possible only if we acknowledge the offender’s guilt. This guilt is determined by a criminal court that obliges the individual to suffer a series of unpleasant consequences in response to criminal wrongdoing.
Despite this, current ICC practice detaches them from individual culpability, focusing solely on the harm inflicted to the victims. This is problematic, as it creates an unwarranted distinction. ICC penalties must meet certain requirements, in accordance with the principles of legality and proportionality. Imposing punitive measures (i.e., measures that serve punitive objectives and functions) that are not codified as such by the Statute goes against Article 23 that enshrines the nulla poena sine lege principle. Similarly, punitive reparations should be assessed under the lens of the ne bis in idem (prohibition of double jeopardy) principle.Footnote 129 As for proportionality: punishment should fit the crime, and ICC judges should strive to calibrate sentencing decisions to the individual culpability of the offender.Footnote 130 Reparations orders are punitive in nature, yet do not match the culpability of the perpetrator. To be just, principles should be laid out that ensure that ICC reparations orders should equally adhere to these principles. There must be clear limits and rationales produced by the ICC and followed consistently. This would also ensure that everything is in line with the principle of legality, as it would allow defendants to have sufficient notice, and avoid the risk of wide, unwarranted disparities.
It follows that the current reparations regime needs to be reconsidered. The ICC needs to account for the current clash between the punitive aspects of reparations, on the one hand, and individual prerogatives and good sentencing principles, on the other.Footnote 131 Two potential avenues are briefly sketched here. First, the ICC could formally acknowledge the punitive nature of reparations, bringing them firmly under the penalties framework.Footnote 132 A scenario where the Court formally imposes reparations as punishment would solve the tension with sentencing principles, while also fulfilling the purposes of reparations, retribution, deterrence, rehabilitation, and condemnation.Footnote 133 Such a course of action should also revisit procedural and evidentiary principles relating to victim participation in reparations proceedings.Footnote 134 Second, as an alternative, the ICC could detach individual reparations from criminal proceedings and the need for a guilty verdict altogether.Footnote 135 As suggested elsewhere, the ICC could establish the principles relating to the scope and extent of damages, and appropriate form of reparations – yet avoid issuing reparation orders against accused and convicted individuals.Footnote 136 Detaching reparations from prosecution would move the reparations mandate towards fully restorative justice.Footnote 137 Instead of the Court acting proprio motu, it could attach the entire regime to prior consent of both offender and victim, who would meet in a non-adversarial, collaborative setting. Rather than obliging individuals to pay, the ICC should instead extend an invitation to this end. The offender could either refuse, or voluntarily accept responsibility and seek to make sincere amends, instead of being forced to by the Court.Footnote 138
My remarks here are not meant to be exhaustive – further reflection should yield alternative paths. Importantly, it should be noted here that ICC judges remain bound by the Statute limitations. Any formal changes to the current statutory and procedural framework can only be enacted by the Assembly of States Parties (ASP),Footnote 139 which shall likely prove a significant practical hurdle.Footnote 140
5. Conclusion
Reparations are a useful tool, which complements the Court’s task of ending impunity. Yet to end impunity, we should take care to properly define the concept, alongside its inverse poena. To this day, the orthodox position abides by a narrow reading of the latter term, proclaiming that it is delimited by the black letter of Article 76 itself, and the alleged non-punitive volition of ICC drafters and judges. I have shown that this reading is overly restrictive. The close nexus between reparations and criminal trial and conviction, alongside the ambiguity of the regulatory framework, the explicit acknowledgment of punitive goals in reparations orders, the (at least intended) onus on the individual, and the practical considerations that often result in reparations fulfilling primarily retributive functions, are all factors that must be considered, for they go against the reading of reparations as entirely non-punitive measures. In consequence, the dual nature of reparations orders must be acknowledged and accounted for. Reparations do not stand opposing, but rather complementing punishment. Overthrowing the traditional understanding has important prescriptive implications, as mapped in the previous section.
Further reflection on this topic is pivotal. This contribution aspires to set the stage for future discussion, which should be grounded on the following observation: a principled approach, and a coherent system of legal rules and principles that govern reparations, is in order.Footnote 141 The ICC reparations regime needs to be revisited, and revised. In accordance with the Statute, this task falls first to the ICC judges, who must account for the dual (remedial and punitive) nature of reparations. A challenging, yet very much necessary endeavour, for the fairness and effectiveness of the Court depend on it.
Whichever path the ICC follows, we should recall that its cause is that ‘of all humanity’Footnote 142 – including individual offenders, the rights of which must be respected.
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