‘Reparations: a critical aspect of justice at the ICC’
Intervention of Minou Tavárez Mirabal,
Chair of the Board of Directors of the Trust Fund for Victims
For the Commemoration of the 20th Anniversary of the International Criminal Court
The Hague, 1st of July 2022
Thank you for the opportunity to address the participants of this important commemoration.
As you may know, my mother, two of my aunts, my father, and thousands of men and women of three generations were assassinated in the Dominican Republic under the orders of the dictator Rafael Trujillo and of those who governed after him. These were crimes against humanity. This tragedy, which marked my life and my country, has committed me to work for future generations to ensure that the rule of law governs our lives as a civilization.
I have sought to undertake my fight with ”stubborn optimism”, a term used very often by a dear friend of many of us, the late Felipe Michelini, former Chairperson of the Board of Directors of the Trust Fund. I use it today because it is a shared characteristic of many of the people I have met and worked with in the context of human rights.
In my country, which gave the Rome Statute its 99th ratification, as in many of the 123 where I was able to witness from close the efforts for ratification, it was an optimistic stubbornness from victims and activists that drove discussions across party lines to define how we wanted the future of our countries and the world to look like. It is simple, one governed by the rule of law, one of never again. Nunca Jamas!
It is thus important to recall, that while the diplomats and lawyers drafted the Statute, the ink of their pens is made of the dreams and pain and optimism and stubbornness of victims.
For these reasons, it is an honour, and an obligation for me to speak today with these victims in mind:
- The victims of the past, those whose optimistic stubbornness drove the international community to ensure the adoption of the Rome Statute. These include countless World War II and Holocaust survivors from Eastern and Western Europe including Madame Simone Veil, the first Chairperson of the Trust Fund, and other victims from all regions of the world.
- It is an honour to speak of the victims of the not-so-distant past, those who have suffered even after the Rome Statute was adopted, in each and every country that is today a situation before the Court,
- We must speak of the victims in each and every country that should be a situation before the Court but that is not yet recognized as such,
- And to speak of the victims of the future, a certainly tragic one, as growing corners of our world are turning increasingly armed, unequal and authoritarian.
When the Parliaments of the world, those elected by the people, ratified the Rome Statute, they accepted, applauded, and welcomed every single and complex dimension of this founding document. They accepted the four core crimes, including the crime of aggression; they committed to support the independence of the Prosecutor and of the judges; they applauded victim participation; and they welcomed the establishment of the Trust Fund for Victims, which I am honoured to chair since December 2021.
It has always been and remains upon us, international bureaucrats, to make those defining features of the Rome Statute a reality. To set up the Court, many challenges and impossibilities have been overcome: securing cooperation, upholding the principle of no immunity, defining the crime of aggression, protecting witnesses.
These issues are as politically, financially and operationally complex as the goals of victim participation and victims' reparations. This complexity is even greater considering that victims are hundreds of thousands and the convicted are indigent.
There is therefore no space for compromise or abandonment. Victim participation and victims’ reparations are rights, and are essential features of the Rome Statute. They cannot be questioned, brushed over or neglected. It is our responsibility, all of those here, joining in this celebration, to see that reparations are realised.
How are we doing to date?
Since its first order of reparations, issued in 2012 and amended on appeal in 2015, the Court has awarded reparations to victims in each and all of the four convictions. In all four cases, the ICC ordered reparations through the Trust Fund. A fifth case is in the pipeline as judicial reparation proceedings have been conducted while the conviction is still under appeal. In order of value, the convicted persons were respectively ordered to award reparations of USD 1 million (Katanga), EUR 2.7 million (Al Mahdi), USD 10 million (Lubanga), and USD 30 million (Ntaganda).
The implementation of reparations in the case of Katanga and the implementation of individual and symbolic awards in Al Mahdi are approaching an end, while the implementation of collective reparations in Lubanga and Al Mahdi started in 2021 on the basis of multi-annual programmes with constantly increasing numbers of victims receiving reparations.
To date, there are around 900 beneficiaries in Ituri Province (DRC) and around 800 beneficiaries in Mali who received compensation or rehabilitation measures either through seven implementing partners or the Trust Fund itself.
Also, in line with its assistance mandate, the Trust Fund has been implementing since 2008 programmes in Uganda and the DRC, and since 2020 in the Central African Republic and Côte d’Ivoire. In 2021 alone, these programmes have benefitted about 17,000 victims. The TFV’s programmes outside of court-ordered reparations have laid the ground for court-ordered reparations programmes and may achieve support among victims for the work of the ICC even in situations where accused persons were acquitted or arrests cannot easily be achieved.
So much to be done
There is, as we can see, important progress, but it is certainly not enough. The Board of Directors is seized and active in addressing the challenges, and we need help.
First, there is the issue of needs. Reparations orders to date have a value of nearly 38 million EUR. Yet, the Trust Fund received from fines, proceeds from forfeiture or reparation payments to date only 330,000 EUR. Reparations are therefore being funded through voluntary contributions by States Parties. To date, thanks to these contributions, the Trust Fund has been able to fully complement the payments of reparations in Katanga and nearly fully in Al Mahdi, but there is a funding gap.
The Trust Fund belongs to all States Parties, and all contribute to the staff and core operations of the Trust Fund through their assessed contributions to the Court. For its programmes, however, the Trust Fund’s Secretariat has been able to raise only an average of 2.5 million EUR per year in the past 15 years, an amount that is close to the costs of running the Secretariat. This situation must be addressed with urgency, and the Board of Directors has taken it as central to our revitalization strategy. The priority for the Trust Fund is and will remain: raising considerably more funds. Private donors must be pursued, and will be pursued as a matter of priority for the Board.
But the Fund will need to continue considering donations by States Parties. Only 48 of 123 States Parties have contributed to the Trust Fund, only 14 of them have contributed more than 10 times in 18 years.
Contributions need to come from all States parties, more regularly, and they need to be in higher amounts to match both the needs, and the value and commitment of the Assembly and its States Parties to victims’ rights.
One of the biggest criticisms made to the Trust Fund has been the time it has taken to initiate programmes of assistance and programmes of reparations. The criticism is granted. There are at least two reasons for this, one is the need to develop operational pathways for the Fund to engage with victims, conduct procurement and due diligence requirements, administration and payments; evaluations, financial control, all of these required by the multiple donors. The other reason is the obvious learning curve in setting up an entity like the Fund.
After twenty years, there is still so much to do.
First, the Trust Fund must enhance its participatory, community-driven, inclusive, holistic, creative, and structured implementation of modalities of reparations and assistance. The Trust Fund must also administratively deliver reparations as efficiently as possible, meaning lowering its administrative costs and ensuring that most of every Euro reaches the victims. Rehabilitation remains central but so are other forms of reparation.
Secondly, the Trust Fund needs to work conceptually, programmatically and operationally in a way which is as integrated with the Court as possible. Both are, after all, the Court and the Fund, an integral part of the Rome Statute, and the Fund is ultimately embedded in the Court’s administrative structure. What does this mean? At the conceptual level, the reparations or assistance to be delivered should contribute and must be understood by victims to be delivered as part of an integral set of rights enshrined in the Rome Statute. In terms of operational synergies, there has been a lot of progress in this regard, for which I thank the Registrar and the Registry. Continued work is ongoing to strengthen this collaboration.
Finally, the Fund must do better in communicating progress and results. The Fund also needs States Parties and civil society to be engaged and involved, to ask questions, to compel us to results.
The Independent Experts Review’s Report has made clear findings. The new Board of Directors has committed to take specific actions to address the findings, and to enable the Trust Fund to be in a position to face the challenges ahead: more situations with more cases and greater victims populations.
Five years ago today, on the occasion of the Day for International Justice, and also on the occasion of the passing, whose anniversary was a day ago, of Madame Simone Veil, Felipe Michelini offered a reflection that remains valid today. He said:
“There is so much to do. Strengthen the prevention to ensure that the heinous acts that threaten the dignity of the victims and the conscience of humanity do not happen. Ensure that States act in their duty to investigate, prosecute and punish the most serious crimes at the domestic level. And ensuring reparations that re-dignify the lives of victims. To continue working on these three pillars, prevention, repression and reparation is an ethical, legal and political imperative of the international community as a whole.”
We made the Court a reality. Now, we will ensure, with stubborn optimism and with the help of the Court, the States Parties and Civil Society to fully and broadly realise the right to reparations as enshrined in the Rome Statute.