The important issues dealt with during the Tenth Session of the Assembly of States Parties in New York in late December 2011 include not only the election of the ICC Prosecutor and six judges (see here), but also the adoption of a few important resolutions. This post will discuss Resolution ICC-ASP/10/Res.3 on reparations, adopted by consensus at the 7th plenary meeting on 20 December 2011. Although hailed as one of the major improvements of the international criminal justice system, many substantive and procedural issues regarding reparations for victims remain unsettled to date. Resolution ICC-ASP/10/Res.3 aims at changing this regrettable state of affairs. It starts by recalling Articles 75(1) and 112(2)(g) of the ICC Statute. Article 75(1) provides that the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. Under Article 75(2) a reparations order may be made directly against a convicted person while the award for reparations may be made through the Trust Fund for Victims. Under Article 39(2)(b) the full panel of the Trial Chamber is expected to handle reparations for victims. Article 112 lays down the powers of the Assembly of States Parties and under Article 112(2)(g) the Assembly is entrusted with performing any other function consistent with this Statute or the Rules of Procedure and Evidence.
Resolution ICC-ASP/10/Res.3 states that reparations to the victims of the most serious international crimes are critical components of the Rome Statute and therefore it is essential that the relevant provisions of the Rome Statute are efficiently and effectively implemented. The resolution further notes with concern that the Court has not yet established principles relating to reparations, on which any determination of the extent and scope of any damage, loss and injury to, or in respect of, victims is to be based, in accordance with Article 75(1), and that in the absence of such principles pre-established by the Court practical inconsistency and unequal treatment of victims may occur. Concluding that guidance and clarification from States Parties is essential in order to ensure the effective and efficient implementation of the reparations provisions, the Assembly of the States Parties requested the Court to ensure that Court-wide coherent principles relating to reparations are established in accordance with Article 75(1), based on which the Court may issue individual orders for reparations, and further requested the Court to report back to the Assembly at its Eleventh Session.
Although it asked the Court to establish coherent principles relating to reparations, through this resolution the Assembly of States Parties clarified three important issues related to reparations for victims, namely that States properties and assets are not to be used for reparations awards, that the Court should take all measures to identify and freeze any assets of the convicted person, and that evidence concerning reparations may be taken during trial hearings. First, the resolution goes on to clarify that as liability for reparations is exclusively based on the individual criminal responsibility of a convicted person, under no circumstances shall States be ordered to utilize their properties and assets, including the assessed contributions of States Parties, for funding reparations awards, including in situations where an individual holds, or has held, any official position. Secondly, the resolution underlines that as the freezing and identification of any assets of the convicted person, which are indispensable for reparations, is of paramount importance the Court should seek to take all measures to that end, including effective communication with relevant States so that they are in a position to provide timely and effective assistance pursuant to Article 93(1)(k), where possible, in all cases and at as early a stage of the proceedings as possible, irrespective of the declaration of indigence for the purpose of legal aid which bears no relevance to the ability of the accused to provide reparations. Thirdly, the resolution recognizes that as adjudication on the individual criminal responsibility shall remain the focus of the judicial mandate of the Court, evidence concerning reparations may be taken during trial hearings so as to ensure that the judicial phase of reparations is streamlined and does not result in any delay thereof. Finally, through the resolution the Assembly of States Parties invited the Bureau to report to the Assembly at the next session on reparations and any appropriate measures.