When after lengthy adjudication reparations eventually materialise in the locations where the atrocities occurred, survivors’ responses to such reparations vary greatly. Such responses may include relief and celebration, but reparations are just as likely to be met with confusion, contestation and/or rejection. The practices that determine how reparations are conceived significantly influence the responses that victims and others in society develop regarding such reparations. Behind these questions is the dynamic interrelationship between what courts have to offer and what victims accept as reparations. This chapter explores this conundrum by way of three concrete reparative measures considered or implemented in the context of the ECCC’s reparations mandate. In juxtaposing measures that were granted by ECCC judges as reparations and those that were rejected, the chapter shows some of the effects of courts’ practices on the meaning of reparations.

This chapter turns to a critical juncture where the details of the convergence of the underlying normative responses were debated and shaped, namely the negotiations of the first reparations mandates in international criminal justice. The chapter delves into the arenas where these norms were negotiated: the ICC Rome Statute negotiations, and the ECCC’s Internal Rules-making. By examining the main debates during the negotiations of these foundational laws, the chapter identifies the negotiation practices that were chosen to mediate between competing objectives and visions of international justice. Inquiring into the compromises that emerged from these negotiations sheds light on the long-lasting effects of these compromises on the subsequent operation of the reparations regimes at both courts.

This introduction lays out the book’s aims and its approach to studying reparations. The book uses the notion of ‘practices’ as an analytical lens to make visible forms of social actions that together and simultaneously enable and constrain reparations. The book examines these practices through four phases of the ‘social life’ of reparations: norm-making, engagement with conflict-affected populations, as well as adjudication and implementation of reparations. Accompanying the introduction is a brief background to the case studies that are at the core of this book, namely the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The book focuses on the first two cases at each court that have reached the reparations stage: at the ICC, the cases against Thomas Lubanga and Germain Katanga relating to the situation in Ituri, Democratic Republic of Congo; and at the ECCC, Cases 001 and 002 involving senior leaders of the Khmer Rouge and those most responsible for crimes committed in Cambodia during the 1970s.

Reparations have forced international(-ised) criminal courts to move beyond their comfort zones and engage with the diverse socio-political and cultural contexts before them. At the core of this process is the courts’ engagement with survivors of mass atrocities, who were largely absent during the negotiations. The first cases before both the ICC and the ECCC were the testing ground for their novel victim participation schemes. This chapter shows that targeting and representational practices have shaped participation, influencing who receives reparations and how these reparations are conceived. The contours of the groups of victims who receive reparations are constructed and continuously contested through practices of juridification and litigation. Moreover, ‘participation’ is carried out through representatives who translate and discipline the multitude of survivor demands for the purposes of courts’ legal proceedings. This chapter focuses on the two groups most involved in such ‘reparational’ practices: NGO ‘intermediaries’, and victims’ legal representatives.

This first chapter sketches a brief conceptual history of reparations in international criminal justice and introduces some key concepts and terms used throughout the book. Chapter 1 shows how questions of justice in response to mass atrocities have been informed by two international normative demands: the ‘fight against impunity’ and the corresponding rise of international criminal justice; and the emergence of international human rights and the increasing attention paid to victims of crimes. These two main normative responses – punishment of perpetrators and redress for victims – gradually converged over time, laying the ground for the emergence of reparations mandates at international(-ised) criminal courts. That this was not a linear development is demonstrated by interrogating the absence of reparations at the two ad hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

In the process of implementation reparations continue to be re-produced and transformed. This chapter explores what happens to reparations when they materialise in the world through ‘projects’. The chapter shows that the growing use of project forms in reparations is not a mere technicality, but a social practice with implications for how reparations are conceived, enacted and experienced. In tracing the development and deployment of project-based approaches to reparations at the ECCC – twenty-four such projects were ultimately recognized by the ECCC’s judges across Case 002 – the chapter discusses the effects of the projectification. It finds that the mobilization of new actors and resources has expanded the possibilities for ECCC reparation. However, a project-based approach also reshaped decision-making and accountability structures underpinning reparation work.

Beyond engaging survivors through communication and participation, the ICC and the ECCC have also considered certain forms of assistance to survivor populations. These assistance functions developed in close association with a range of humanitarian practices that eventually sought to compensate for the multiple limitations that juridical logics imposed on the delivery of reparations. These practices were more pronounced at the ICC and its Trust Fund for Victims, which had a dedicated assistance mandate, than at the ECCC in Cambodia. However, both courts have witnessed a close and, at times, confuse interplay between assistance and reparations. This chapter concludes with a comparative discussion of the ICC and ECCC’s practices of engaging with survivors.

Communication plays an important role in reparations. Through communication survivors learn about the opportunities and avenues available to them, and through communication courts are able to ascertain survivors’ views and preferences regarding reparations. Such communication is not straight-forward but involves a range of actors who facilitate and mediate communication. Often little appreciated, these actors’ communicative practices shape in significant ways how reparations are framed, perceived and acted upon. This chapter examines two specific forms of communication of relevance to reparations: outreach and consultations. It shows that communicative practices in outreach and consultations at the ICC and the ECCC became dominated by concerns over managing victims’ expectations, in effect trumping the original goal of two-way communication. These practices also determined critical parameters of court-ordered reparations long before judges even embarked on the adjudication of reparations requests.

Eventually, the first cases before the ICC and the ECCC reached the adjudication stage. Based on a review of the court’s voluminous legal records and in-depth interviews with those involved, this chapter identifies the ICC’s main adjudicative practices regarding reparations. The goal is to understand how reparations were conceived through these practices, and how these practices shaped the reparations outcomes decided by the judges. Chapter 6 examines the first two reparations cases before the ICC, namely the cases concerning Thomas Lubanga and Germain Katanga. In 2012, the ICC delivered its first reparations decision in Lubanga. This decision was amended by the ICC Appeals Chamber in 2015. The account ends with a second reparations decision by the Appeal Chamber in 2019. The second ICC case to reach the reparations phase was Katanga, where a reparations order at first instance was rendered in 2017 and an appeals judgment in 2018.

This chapter explores the ECCC’s adjudicative practices regarding reparations. Distinct features of the ECCC are that its judges are based in the country where the crimes occurred and that they appear both as lawmakers, at least in relation to their procedural rules, and adjudicators of these laws. This chapter examines the ECCC’s adjudicative practices in Cases 001 and 002, the latter being tried in two separate sub-trials (Cases 002/01 and 002/02). After observing that their original framework did not deliver tangible reparations to civil parties in Case 001, judges amended the Internal Rules. My examination of the experience in Case 002 provides an account of how this experiment worked out in practice. ECCC judges were ultimately more socially responsive in their decision-making on reparations than their colleagues at the ICC. Yet, the practices they adopted eventually put into question the remedial nature of the reparations awards.

The examination of reparations’ constitutive practices throughout this book has revealed actors’ competing goals, rationales and interests regarding court-ordered reparations. The resulting frictions and contestations have been at the core of the social life of reparations and an engine of its production. Putting these contestations at the centre of the inquiry has shown who determines what reparations means and entails, shedding light on the interplay of different interpretations and power constellations. The conclusion to the book provides a brief summary of the contribution a practice-based approach makes to understanding reparations and offers some observations that may assist with delineating the space that reparations could reasonably occupy within international criminal justice.

Combining interdisciplinary techniques with original ethnographic fieldwork, Christoph Sperfeldt examines the first attempts of international criminal courts to provide reparations to victims of mass atrocities. The observations focus on two case studies: the Extraordinary Chambers in the Courts of Cambodia, where Sperfeldt spent over ten years working at and around, and the International Criminal Court’s interventions in the Democratic Republic of Congo. Enriched with first-hand observations and an awareness of contextual dynamics, this book directs attention to the ‘social life of reparations’ that too often get lost in formal accounts of law and its institutions. Sperfeldt shows that reparations are constituted and contested through a range of practices that produce, change and give meaning to reparations. Appreciating the nature and effects of these practices provides us with a deeper understanding of the discrepancies that exist between the reparations ideal and how it functions imperfectly in different contexts.