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Published online by Cambridge University Press: 19 October 2020
Recognizing the needs of victims in international criminal justice, the International Criminal Court (ICC or the Court) has introduced an innovative reparation scheme including the establishment of the Trust Fund for Victims. Besides the Fund’s role to implement reparation orders, a second mandate has been developed to provide immediate help to victims independent from a criminal conviction: the general assistance mandate. Surprisingly, this mandate has to date attracted little attention from scholars and remains vastly under-researched. By exploring in detail the work of the general assistance mandate, this article exposes its structural weaknesses as well as the negative impact it has on the procedures of the Court as a whole. It will demonstrate how the general assistance mandate weakens the legitimacy of the ICC as it undermines the presumption of innocence, risks compromising international and national Court proceedings, and masks the weaknesses of the Court. While there is no doubt that humanitarian assistance is urgently needed in situations that are investigated by the ICC, the mechanism chosen, namely the Trust Fund’s general assistance mandate is not an adequate solution. This article argues that general assistance has no place in an international criminal court and should, therefore, be completely separated from the ICC.
1 For example, it is estimated that the five year Ituri war in the DRC has killed 60,000 civilians in just two years: UNSC, Special report on the events in Ituri, January 2002–December 2003, UN Doc. S/2004/573 (2004), 4. Over 600,000 people are estimated to have been displaced in the post-election violence in Kenya between December 2007 and February 2008: Human Rights Watch, ‘Kenya: Fresh Evidence of Election-Period Abuses’, 2018, available at www.hrw.org/news/2018/02/25/kenya-fresh-evidence-election-period-abuses.
2 C. McCarthy, ‘The Rome Statute’s Regime of Victim Redress – Challenges and Perspectives’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court (2015), at 1215.
3 M. Wierda and P. de Greiff, ‘Reparations and the International Criminal Court: A Prospective Role for the Trust Fund for Victims, Report for the International Centre for Transitional Justice’, 2004, available at ictj.org/sites/default/files/ICTJ-Global-ICC-TrustFund-2004-English.pdf.
4 P. G. Fischer, ‘The Victims’ Trust Fund of the International Criminal Court—Formation of A Functional Reparations Scheme’, (2003) 17 Emory International Law Review 187, at 195.
5 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc. A/RES/40/34 (1985), Principle 13. Specific trust funds set up by the UN itself include the UN Voluntary Fund for Victims of Torture, UN Doc. A/RES/36/151 (1981) and the UN Voluntary Fund on Contemporary Forms of Slavery, UN Doc. A/RES/46/122 (1991). An example of a national trust fund is the Austrian General Settlement Fund for Victims of National Socialism, available at www.entschaedigungsfonds.org/home.html.
6 W. Schabas, The International Criminal Court – A Commentary on the Rome Statute (2010), 909.
7 L. Moffett, ‘Reparations for Victims at the International Criminal Court: A New Way Forward?’, (2017) 21(9) International Journal of Human Rights 1204, at 1209.
8 P. J. Dixon, ‘Reparations, Assistance and the Experience of Justice: Lessons from Columbia and the Democratic Republic of the Congo’, (2016) 10 IJTJ 88, at 92.
9 McCarthy, supra note 2, at 1215.
10 The Prosecutor v. Thomas Lubanga Dyilo, Warrant of Arrest, ICC-01/04-01/06-2-tEN, Pre-Trial Ch. I, 10 February 2006, at 4.
11 The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’, ICC-01/04-01/06-2205, App. Ch., 8 December 2009.
12 Moffett, supra note 7, at 1207.
13 The Court made three reparation orders in 2017. In Lubanga, the Chamber awarded collective reparations of the total amount of US$10 million; in Al Mahdi, the Trial Chamber awarded €2.7 million in expenses for individual and collective reparations for the community of Timbuktu; and in Katanga, the reparation order amounted to US$1 million.
14 N. Roht-Arriaza and K. Orlovsky, ‘A Complementary Relationship: Reparations and Development’, in P. de Greiff and R. Duthie (eds.), Transitional Justice and Development - Making Connections (2009), at 201.
15 Regulations of the Trust Fund for Victims, ICC-ASP/4/Res.3 (2005), Reg. 42.
16 Dixon, supra note 8, at 102.
17 Ibid., at 88.
18 Situation in Uganda, Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund for Victims with Confidential Annex, ICC-02/04-114, Pre-Trial Ch. II, 25 January 2008, para. 49.
19 Ibid., para. 56.
20 Regulations of the Trust Fund for Victims, supra note 15, Regs. 67, 71.
21 The Trust Fund for Victims, ‘Programme Progress Report Summer 2012 - Empowering victims and communities towards social change’, available at www.trustfundforvictims.org/sites/default/files/imce/TFV%20PPR%20Summer%202012%20ENG%20Final_.pdf, at 33.
22 The Trust Fund for Victims, TFV Strategic Plan 2014–2017 (2014), at 6.
23 The Trust Fund for Victims, Report of the Board of Directors of the Trust Fund for Victims (2017), at 7.
24 Schabas, supra note 6, at 915.
25 Notification of the Board of Directors, supra note 18, para. 58.
26 Ibid., para. 26.
27 Regulations of the Trust Fund for Victims, supra note 15 (emphasis added).
28 Situation in the Democratic Republic of Congo, Observations of the Legal Representative of Victims a/0016/06, a/0018/06, a/0021/06, a/0025/06, a/0028/06, a/0031/06, a/0032/06, a/0034/06, a/0042/06, a/0044/06, a/0045/06, a/0142/06, a/0148/06, a/0150/06, a/0188/06, a/0199/06, and a/0228/06 on the Notification of the Board of Directors of the Trust Fund for Victims, ICC-01/04-461, Pre-Trial Ch. I, 20 February 2008, para. 5.
29 Schabas points out that the Trust Fund acts ‘rather like a humanitarian non-governmental organisation in an environment that is largely independent of the judicial process’, see Schabas, supra note 6, at 909.
30 Schabas, ibid., at 914; The Trust Fund for Victims, ‘Learning from the TFV’s Second Mandate: From Implementing Rehabilitation Assistance to Reparations’, available at www.trustfundforvictims.org/sites/default/files/imce/TFV%20Programme%20Report%20Fall%202010.pdf, at 4.
31 Moffett, supra note 7, at 1205.
32 Report to the Assembly of States Parties on the activities and projects of the Board of Directors of the Trust Fund for Victims 2003-2004, ICC-ASP/3/14 (2004), Ann. A.
33 Regulations of the Trust Fund for Victims, supra note 15, Ann.
35 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90, Art. 79(2).
36 C. Ferstman, ‘The International Court’s Trust Fund for Victims: Challenges and Opportunities’, (2003) 6 Yearbook of International Humanitarian Law 424, at 430.
37 The Prosecutor v. Jean-Pierre Bemba Gombo et al., Request for reconsideration of decision ICC-RoC85-01/13-21, ICC-RoC85-01/13-28, The Presidency, 21 October 2014.
38 Moffett, supra note 7, at 1209.
39 The Prosecutor v. Jean-Pierre Bemba Gombo et al., Request for reconsideration of decision ICC-RoC85-01/13-21, ICC-RoC85-01/13-28, The Presidency, 21 October 2014.
40 International Criminal Court, Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, ICC-ASP/1/Res.6 (2002), para. 2(a).
41 K. A. A. Khan, ‘Article 79 Trust Fund’, in O. Triffterer and K. Ambos (eds.), The Rome Statute of the International Criminal Court – A Commentary (2016), at 1902.
42 Establishment of a fund for the benefit of victims, supra note 40, Ann., para. 2.
43 Regulations of the Trust Fund for Victims, supra note 15, para. 16.
44 Establishment of a fund for the benefit of victims, supra note 40, Ann., para. 11.
45 REDRESS, ‘The International Criminal Court’s Trust Fund for Victims: Analysis and Options for the Development of Further Criteria for the Operation of the Trust Fund for Victims’, 2003, available at www.vrwg.org/downloads/publications/02/TFVReport.pdf, at 20.
46 Assembly of States Parties to the Rome Statute of the International Criminal Court, Official Records 8–12 September 2003, ICC-ASP/2/10 (2003), para. 40.
47 Ibid., para. 41.
48 Data for 2015 nominations is not available.
50 The TFV’s current Board is composed of the following five members: Baroness Helić is a Member of the UK House of Lords and works as a defence and foreign policy advisor. Gocha Lortkipanidze is the Georgian Deputy Minister of Justice. He was involved in the creation of the ICC in the 1990s and early 2000s. Mama Koité Doumbia from Mali is a long-standing trade unionist and is currently a member of the Economic, Social and Cultural Council of the African Union. H.E. Sheikh Mohammed Belal has been serving as Ambassador of Bangladesh as ‘Facilitator for the Trust Fund of Victims’ for the term 2015–2016. At the time of writing, sadly, Felipe Michelini (Chair) passed away on 20 April 2020. He was an attorney and professor who specialized in human rights and international justice and served as Under-Secretary of State, Vice Minister for Education and Culture, and Former Acting Minister for Education and Culture in Uruguay.
51 Out of 28 states, 24 are European, including small states such as Andorra and Liechtenstein; ICC-ASP, Report to the Assembly of States Parties on the projects and the activities of the Board of Directors of the Trust Fund for Victims for the period 1 July 2018 to 30 June 2019, ICC-ASP/18/14 (2019), Executive Summary, Ann. I, at 20.
53 Report to the Assembly of States Parties on the projects and the activities of the Board of Directors of the Trust Fund for Victims, supra note 51.
54 €149,205,600; Resolution of the Assembly of States Parties on the proposed programme budget for 2020, the Working Capital Fund for 2020, the scale of assessment for the apportionment of expenses of the International Criminal Court, financing appropriations for 2020 and the Contingency Fund, ICC-ASP/18/Res.1 (2019), at 1.
55 Ibid.
57 Democratic Republic of the Congo, Uganda, and Côte d’Ivoire.
58 The Trust Fund runs with a comparably small number of 13 staff members, supported by 44 posts of general temporary assistance; ICC-ASP, Proposed Programme Budget for 2019 of the International Criminal Court, ICC-ASP/17/10 (2018), para. 711.
59 Resolution of the Assembly of States Parties on the proposed programme budget for 2020, the Working Capital Fund for 2020, the scale of assessment for the apportionment of expenses of the International Criminal Court, financing appropriations for 2020 and the Contingency Fund, supra note 54, at 1.
60 ICC-ASP, Resolution on the Programme budget for 2016, the Working Capital Fund and the Contingency Fund for 2016, scale of assessments for the apportionment of expenses of the International Criminal Court and financing appropriations for 2016, ICC-ASP/14/Res.1 (2015), at 1.
61 ICC-ASP, Proposed Programme Budget for 2020 of the International Criminal Court, ICC-ASP/18/10 (2019), para. 709.
62 See Proposed Programme Budget for 2019, supra note 58, at para. 752.
63 Ibid., para. 718.
64 Ibid., para. 711. While the current budget does not explicitly mention the costs of the annual board meetings, it is interesting to note that in the 2017 budget €35,000 were ring-fenced for this purpose. ICC-ASP, Proposed Programme Budget for 2017 of the International Criminal Court, ICC-ASP/15/10 (2016), para. 716.
66 Rome Statute, supra note 35, Art. 114.
67 Another concern is that the Trust Fund announced in their strategic plan that they are even ‘exploring options to ensure tax deductibility of private donations’, which indirectly will deprive the national taxpayers of funds. TFV Strategic Plan 2014–2017, supra note 22, at 34.
68 Ibid., at 7.
69 Ibid., at 24.
70 Ibid.
71 Ibid., at 7. In addition, the Trust Fund commissioned an external programme evaluation in 2013 which included not only victim beneficiaries but also implementing partners and representatives of government agencies. TFV Strategic Plan 2014–2017, supra note 22, at 8. The Trust Fund also employed a private company (Deloitte Risk Service BV) to establish a ‘comprehensive risk management framework of the TFV’. TFV Strategic Plan 2014–2017, ibid., at 5.
72 Ibid., at 7.
73 Report of the Board of Directors of the Trust Fund, supra note 23, at 8. Unfortunately, the Report does not explain how this estimate was calculated.
74 Ibid., para. 7 (emphasis added).
75 Proposed Programme Budget for 2019, supra note 58, para. 709.
76 A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, (1998) 9 EJIL 2, at 13.
77 J. N. Clark, ‘International Criminal Courts and Normative Legitimacy: An Achievable Goal?’, (2015) 15 ICLR 763, at 769.
78 M. de Hoon, ‘The Future of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy’, (2017) 17 ICLR 591, at 594.
79 J. Nicholson, ‘“Too High”, “Too Low”, or “Just Fair Enough”? Finding Legitimacy Through the Accused’s Right to a Fair Trial’, (2019) 17 JICJ 351, at 353.
80 M. deGuzman, ‘The Global-Local Dilemma and the ICC’s Legitimacy’, in N. Grossman et al. (eds.), Legitimacy and International Courts (2018).
81 E. Keppler, ‘AU’s “ICC Withdrawal Strategy” Less than Meets the Eye - Opposition to Withdrawal by States’, 1 February 2017, available at www.hrw.org/news/2017/02/01/aus-icc-withdrawal-strategy-less-meets-eye.
82 Burundi in October 2017 and Philippines in March 2019.
83 S. Vasiliev, ‘Between International Criminal Justice and Injustice: Theorising Legitimacy’, in N. Hayashi and C. Baillet (eds.), The Legitimacy of International Criminal Tribunals (2017), at 71.
84 A. S. Galand, ‘A Global Public Goods Perspective on the Legitimacy of the International Criminal Court’, (2017) 41 Loyola of Los Angeles International and Comparative Law Review 125, at 126.
85 V. A. Baird, ‘Building Institutional Legitimacy: The Role of Procedural Justice’, (2001) 54 Political Research Quarterly 333, at 336; Wolff distinguished two kinds of causes of legitimacy in an institution, namely ‘underlying structural causes and more immediate proximate causes’, S. Wolff, Ethnic Conflict: A Global Perspective (2006), 67.
86 N. Jørgenson, The Elgar Companion to the Extraordinary Chambers in the Courts of Cambodia (2018), 361.
87 M. Suchman, ‘Managing Legitimacy: Strategic and Institutional Approaches’, (1995) 20 Academy of Management Review 571, at 574.
88 H. Takemura, ‘Reconsidering the Meaning and Actuality of the Legitimacy of the International Criminal Court’, (2012) 4 Amsterdam Law Forum 3, at 5; Varaki, for example, offers a threefold examination, distinguishing between a procedural view, a moral view, and a subjective view on legitimacy, see M. Varaki, ‘Introducing a Fairness-Based Theory of Prosecutorial Legitimacy before the International Criminal Court’, (2016) 27 EJIL 769, at 783 .
89 D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law’, (1999) 93 AJIL 596, at 600–3.
90 Varaki, supra note 88, at 783; with relation to the Trust Fund, the source legitimacy of ICC is irrelevant and is therefore not discussed in this article.
91 Takemura, supra note 88, at 5.
92 D. Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, in S. Besson and J. Tasioulas (eds.), The Philosophy of International Law (2010), 569, at 579.
93 Clark, supra note 77, at 774.
94 S. Langvatn and T. Squatrito, ‘Conceptualising and Measuring the Legitimacy of International Criminal Tribunals’, in N. Hayashi and C. Baillet (eds.), The Legitimacy of International Criminal Tribunals (2017), at 43.
95 Takemura, supra note 88, at 6.
96 Varaki, supra note 88, at 783.
97 S. Bernstein, ‘Legitimacy in Global Environmental Governance’, (2005) 1 Journal of International Law and International Relations 139, at 156; building on M. C. Suchman, ‘Managing Legitimacy: Strategic and Institutional Approaches’, (1995) 20 Academy of Management 571, at 574.
98 A. Kiyani, ‘The Antinomies of Legitimacy: On the (Im)possibility of a Legitimate International Criminal Court’, (2015) 8 African Journal of Legal Studies 1, at 14.
99 Clark, supra note 77, at 769.
100 Langvatn and Squatrito, supra note 94, at 44.
101 For a critical analysis to what extent the claim of centrality of fair trial is translated into practice in view of defendants’ rights see D. Jacobs, ‘Neither here nor there – The position of the Defence in International Criminal Tribunals’, in K. J. Heller et al. (eds.), The Oxford Handbook of International Criminal Law (2020), at 67–88.
102 www.icc-cpi.int/NR/rdonlyres/2C496E38-8E14-4ECD-9CC9-5E0D2A0B3FA2/282947/FINAL_Speech_Panel1_HumanRightsandtheInternational.pdf; this follows in the tradition of other international criminal tribunals. The ICTY explained that it ‘intended to give effect to the highest standards of justice’, Prosecutor v. Tihomir Blaškić, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, Case No. IT-95-14-T, T. Ch., 18 July 1997, para. 61; the ICTR aspired to serve as a ‘model of fairness’, The Prosecutor v. Ntagerura et al., Judgement and Sentence, Case No. ICTR-99-46-T, T. Ch. III, 25 February 2004, Separate Opinion of Judge Pavel Dolenc, para. 5.
103 The Prosecutor v. Thomas Lubanga Dyilo, Re-filing Prosecution’s Document in Support of Appeal against Decision to Stay Proceedings, ICC-01/04-01/06-1446, App. Ch., 24 July 2008, para. 23.
104 Prosecutor v. Vojislav Šešelj, Decision on Prosecutor’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, Case No. IT-93-676-PT, T. Ch. II, 9 May 2003, para. 21.
105 Nicholson, supra note 79, at 353.
106 Ibid.
107 De Hoon, supra note 78, at 600, argues that the Court has too many objectives.
108 Vasiliev, supra note 83, at 71.
109 M. Struett, ‘The Politics of Discursive Legitimacy: Understanding the Dynamics and Implications of Prosecutorial Discretion at the International Criminal Court’, in S. C. Roach (ed.), Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court (2009), at 107.
110 1948 Universal Declaration of Human Rights, UN Doc. A/810 (1948), Art. 11(1); 1955 European Convention on Human Rights, 213 UNTS 221, Art. 6(2); 1976 International Covenant on Civil and Political Rights, 999 UNTS 171, Art. 14(2); 1978 American Convention in Human Rights, 1144 UNTS 123, Art. 7(2); 1986 African Charter on Human and People’s Rights, 1520 UNTS 217, Art. 7(1)(b).
111 Rome Statute, supra note 35, Art. 66(1).
112 Situation in the Democratic Republic of Congo, Decision on the Notification of the Board of Directors of the Trust Fund for Victims in accordance with Regulation 50 of the Regulations of the Trust Fund, ICC-01/04-492, Pre-Trial Ch. I, 11 April 2008, at 11.
113 Rome Statute, supra note 35, Art. 54(1)(a); see also H. J. Behrens, ‘Investigation, Trial and Appeal in the International Criminal Court Statute (Parts V, VI, VII) International Criminal Court’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 429, at 438–9.
114 Observations of the Legal Representative of Victims, supra note 28, para. 17.
115 Rome Statute, supra note 35, Art. 66(2) and (3).
116 The Prosecutor v. Kony et al., Defence observations on applications for participation in the proceedings a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-02/04-01/05-216-tEN, Pre-Trial Ch. II, 5 March 2007, para. 17.
117 Observations of the Legal Representative of Victims, supra note 28, para. 17.
118 Prosecutor v. Popović et al., Transcript, Case No. IT-05-88-T, 26 March 2007, at 9461–5.
119 The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, T. Ch. I, 14 March 2012, para. 479.
120 The Prosecutor v. Mathieu Ngudjolo Chui, Judgment pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG, T. Ch. II, 18 December 2012, paras. 189, 218.
121 International Bar Association, Witnesses before the International Criminal Court (2013), available at www.ibanet.org/Document/Default.aspx?DocumentUid=9C4F533D-1927-421B-8C12-D41768FFC11F.
122 Situation in Uganda, OPCD observations on the Notification under Regulation 50 of the Regulations of the Trust Fund for Victims, ICC-02/04-122, Pre-Trial Ch. II, 12 Mar 2008, para. 66.
123 Rome Statute, supra note 35, Art. 69(4).
124 Ibid., Art. 17(1)(d).
125 A. Buchanan and R. Keohane, ‘The Legitimacy of Global Governance Institutions’, (2006) 20 Ethics and International Affairs 405.
126 M. C. Bassiouni, ‘The ICC - Quo Vadis?’, (2006) 4 IJCJ 421, at 426.
127 Rome Statute, supra note 35, Preamble, para. 10, Art. 17.
128 OPCD Observations Uganda, supra note 122, para. 41.
129 Ibid., para. 42.
130 M. C. Bassiouni, ‘International Recognition of Victims’ Rights’, (2006) 6 HRLR 203, at 210.
131 Commission of the European Communities, Green Paper: Compensation to Crime Victims, COM(2001) 536 (2001), Sec. 3.5.1.
132 Jacobs, supra note 101, at 85.
133 Ibid., at 86.
134 Fischer, supra note 4, at 201 (emphasis added).
135 Rome Statute, supra note 35, Preamble, para. 4.
136 Ibid., para. 5.
137 Ibid., Art. 64(2).
138 Mathieu Ngudjolo Chui (acquitted 18 December 2012), Jean-Pierre Bemba Gombo (acquitted 8 June 2018), Laurent Gbagbo, and Charles Blé Goudé (acquitted 15 January 2019).
139 One of which is currently under appeal (The Prosecutor v. Bosco Ntaganda, Decision on request for leave to reply, ICC-01/04-02/06-2522, App. Ch., 4 May 2020); five of the total of nine convictions are for offences against the administration of justice according to Art. 70 of the Rome Statute (The Prosecutor v. Bemba et al. Case, ICC-01/05-01/13).
140 An analysis for the various reasons such as problems with instigation, prosecution strategies, lack of state co-operation, witness tampering, and others lies outside the scope of this article.
142 Situation in the Islamic Republic of Afghanistan, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Pre-Trial Ch. II, 12 April 2019, para. 96.
143 Jacobs, supra note 101, at 85.
144 Ibid., at 77.
145 Ibid., at 83.
146 OPCD Observations Uganda, supra note 122, para. 48.
147 Rome Statute, supra note 35, Art. 66(3).
148 TFV Strategic Plan 2014–2017, supra note 22, para. 23.
149 Ibid.
151 The Trust Fund for Victims, supra note 30, at 31.
152 Ibid., at 30.
153 Notification of the Board of Directors, supra note 18, para. 42.
154 Ibid.
155 ICC Budget 2017, 128. The estimated costs of €1,050,000 will be funded through the voluntary contributions.
156 Declaration of Basic Principles of Justice, supra note 5, paras. 2, 14.
157 Wierda and de Greiff, supra note 3.
158 Fischer, supra note 4, at 210.
159 De Hoon, supra note 78, at 611.
