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International law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.
Significant practice has been accumulated on the right to reparation for victims of armed conflict, as a result of the work of international human rights mechanisms, domestic courts, and States undergoing transitional justice processes and setting up domestic reparation programmes. This chapter looks at some of that practice in a nuanced way. It considers the interplay on reparation’s issues taking place between international human rights mechanisms like the European Court of Human Rights and the Inter-American Court of Human Rights, and domestic reparation programmes such as those established in Colombia or Guatemala. This interplay is regulated by the principle of subsidiarity, a key principle of international law. This principle manifests itself in different ways in international adjudication, including on issues related to reparations as international human rights mechanisms, including the ECHR and the IACtHR, exercise deference to States in various ways. This interplay poses major challenges as through it the scope and reach of this right is defined, and the role of these bodies decided. This Chapter looks at actual practice by these tribunals, and how they could face that interplay without diminishing their role or the content of the right to reparation
The trial of Thomas Lubanga took eight years from the time of Lubanga’s arrival in The Hague. The very first case tested all of the actors involved, as judges struggled to master the statutory gaps in the official rules. Although based on a single criminal charge of using child soldiers in armed conflict, the trial was imperiled by a series of crises, including doubts about the truthfulness of the nine child-soldier witnesses brought by the Prosecution. The role of shadowy “intermediaries” became a focus of concern. The Trial Chamber found itself managing broad flows of evidence, emanating from the Prosecution’s investigations, so that the Defense team had an opportunity to conduct a fair trial. On two occasions, the crises were great enough to threaten the viability of the case. Despite serious questions about the integrity of evidence before the Trial Chamber, Lubanga was convicted and sentenced to fourteen years' detention (of which eight had been served during the trial itself). A final flourish for the Trial Chamber was the creation of a victim-reparations regime, which took an additional seven years post-conviction.
In 1732, a twenty-three-year-old enslaved woman named Sarah Chauqum ran away from New London, Connecticut and headed for South Kingstown, Rhode Island. In two successful pathbreaking legal actions, Sarah and her lawyers not only exposed the seamy regional system of human trafficking that turned free people of color into slaves in New England, but also laid the groundwork for freedom suits that would follow. In the first, Sarah established her legal freedom. In the second, Sarah filed what is possibly the first reparations case in New England—and won. In the process, Sarah also reclaimed her Indigeneity from her owners’ intentional efforts to erase it by categorizing her as a person of African ancestry. Sarah's post-escape success in claiming freedom created the legal files that contain what we know of her history, which is not much. The story of her enslavement helps us understand the larger phenomenon of Indian slavery in the colonial period. It also points to the ways in which Indian slavery and the slave system more broadly in New England changed as the number of enslaved Africans imported to the region grew over the course of the eighteenth century.
This chapter critically examines the development of the fine and asset forfeiture measures in both the constituent instruments and case law of international(ised) criminal tribunals since Nuremberg. The chapter demonstrates that such procedures have been underutilised in practice, even though many perpetrators of international crimes were, in fact, solvent. While recognising that the origins of international criminal law were chiefly retributive, in light of the fine and asset forfeiture regimes found in the frameworks of a number of international(ised) criminal tribunals, the chapter contends that the Court's fine and asset forfeiture powers were intended by its founders to constitute a vital part of its reparative mandate. The chapter concludes that fine and asset forfeiture powers cannot be viewed as outer limits of international criminal justice, but must rather be seen as foundational to this project.
Under current international law, victims of armed conflict have a right to reparation from the responsible parties. Political obstacles may, however, prevent victims from bringing reparation claims before domestic courts. For example, if the victims assert reparation claims before the court of a responsible party, they may reasonably fear discrimination if they were targeted in the armed conflict on ethnic, racial or religious grounds. They may also face real and significant legal and procedural obstacles at the domestic level, in the form of jurisdictional uncertainties, immunities, statutes of limitations, lack of sufficient evidence, or the absence of class or group actions. Giving effect to the right to reparation may in such cases only be practicable in an ad hoc mechanism of some sort. In fact, various precedents for such reparation mechanisms exist. Although reparation mechanisms may take many different forms, most need to address such common issues as who is eligible for reparation; what type of harm will be addressed; and what type of remedies are to be made available. The present chapter examines the common and basic principles which can be extracted by the comparative analysis of past and ongoing fifteen mechanisms.
Many political theorists, philosophers, and International Relations scholars argue that states are ‘corporate moral agents’, which can be held responsible in many of the same ways as individual moral agents. States can have debts, contractual obligations, reparative obligations, and duties. Should states also be subject to criminal responsibility and punishment? Thus far, the debate about state crime has focused on two general problems with corporate crime: whether corporate entities can have intentions (or mens rea); and whether it is possible to punish them. In this paper, I identify two problems with extending corporate criminal responsibility to the state. First, since there is no ‘international corporate law’ that regulates the internal structures of states, many states fail to meet the conditions for corporate agency (and hence for criminal responsibility). Second, since the most serious international crimes are not subject to a statute of limitations, the argument for state crime paves the way for forms of ‘historical punishment’ that few of its proponents would accept. Finally, I argue that it is unnecessary to hold states criminally responsible, and that state responsibility ought to be understood as reparative rather than punitive.
Chapter 4 examines the role of international administrative mechanisms (linked with a judicial mechanism) in the provision of reparations for international crimes. It questions whether reparations should be dealt with primarily by administrative mechanisms such as trust funds or claims commissions, and examines these questions through the lens of the legal framework and experience of the ICC Trust Fund for Victims (TFV), as the main administrative mechanism dealing with reparations for international crimes. Considering the important questions that the TFV raises regarding reparations and the central role it has played thus far in the ICC context, the book devotes a separate chapter to the TFV to fully engage with the unique dimensions of its mandates, the challenges it faces and whether it can serve as a model for the development of other administrative mechanisms for reparations for international crimes. This chapter carefully analyses the TFV within the ICC structure, its reparations and assistance mandates, the role it has played in the implementation of the first decisions on reparations, and how this role should further develop. It also discusses the practical implications of the activities of the TFV on reparative justice, and its practical challenges, including scarcity of resources.
Chapter 3 focuses entirely on the reparation system at the ICC. The purpose of this chapter is to engage in an in-depth discussion of the development of reparative justice at the ICC, from theory to practice. This chapter analyzes some of the key challenges that the court is facing or will likely encounter in dealing with reparative justice within the context of international criminal prosecutions and trials. This chapter is devoted to fully engaging with the issues emerging from adding a reparative dimension in a primarily criminal process and how the criminal and civil dimension are intertwined, since reparations are dependent upon criminal conviction, and how both dimensions are reconciled in practice by the court and how they should be reconciled in the future. It also aims to provide a timely and original in-depth discussion of the first four cases dealing with reparations, which will pave the way and lay the foundation for the reparation system at the ICC for years to come. These cases are: the first case before the ICC (The Prosecutor v. Thomas Lubanga Dyilo), which established principles of reparations, and its concrete impact for the development of reparations at the court; the case of the The Prosecutor v. Germain Katanga, which presented a unique set of issues, including individual reparations of a modest amount; the case of the The Prosecutor v. Al Mahdi, which presented original questions such as the concept of victims of cultural heritage; and the case of the The Prosecutor v. Jean-Pierre Bemba, which is close to being decided at the time of writing, and will present unique challenges for the adjudication of reparations by the ICC considering the high number of victims authorized to participate in proceedings (more than 5,000). This in-depth analysis of cases is original and precisely one of the factors that distinguishes this volume from previous books in the field. A comparison of this ground-breaking jurisprudence informs how the decisions of the court align and diverge on key issues, shed light on unique challenges the court is facing and provides room for some recommendations for future development, based on concrete experiences.
An important role for victims is one of the innovations of the Rome Statute. Victims may participate in the proceedings at virtually all stages. They may even adduce evidence under certain conditions and make motions to the Court. The Court may also award reparations to the victims. Reparations may be paid directly by the convicted person or out of the resources of the Trust Fund for Victims. The Trust Fund may also use its resources to assist victims as part of its assistance mandate, which operates alongside the reparations function and in a manner independent of the criminal proceedings.
Chapter 6 concludes the book with a summary of the analysis of the key questions and related inquiries, bringing together the main themes discussed in the different chapters. It also offers some recommendations, in light of recent developments, of how the criminal and reparative dimensions of justice in the aftermath of international crimes can be reconciled in practice and how they should be reconciled in the future.
This book provides a timely and systematic study of reparations in international criminal justice, going beyond a theoretical analysis of the system established at the International Criminal Court (ICC). It originally engages with recent decisions and filings at the ICC relating to reparation and how the criminal and reparative dimensions of international criminal justice can be reconciled. This book is equally innovative in its extensive treatment of the significant challenges of adjudicating on reparations, and proposing recommendations based on concrete experiences. With recent and imminent decisions from the ICC, and developments in national courts and beyond, Miriam Cohen provides a critical analysis of the theory and emerging jurisprudence of reparations for international crimes, their impact on victims and stakeholders.
This chapter explores the concept of vulnerability, its recognition and use in international human rights law, and the broader debate on the (potential) advantages and downsides of focusing on vulnerable identities to strengthen protection. Following this overview, it examines core categories of vulnerability that are either already reflected in international human rights law, largely in the form of anti-discrimination instruments, or constitute a priority area in recent debates and legal developments. This includes ‘race’, gender and sexual orientation, persons with disabilities, persons living in extreme poverty, age (the rights of children are addressed in a discreet chapter), as well as refugees, migrants and internally displaced persons (IDPs). For each of these categories, the chapter examines core notions, highlights specific concerns, charts relevant legal developments and analyses both advancements made and remaining challenges.
The central contention in this chapter is that Africanisms, or strategies from within Africa, show considerable potential, but they are also significantly limited by historical burdens and continuing forces of discrimination and underdevelopment shaped by the combined experiences of historical and contemporary forces within the world system. Stratification economists’ insights on the political economy of (a) addressing past expropriations, (b) managing current expropriations, and (c) preventing future expropriations can, however, provide potential paths for considerable progress, especially at a time when the demands of popular protests are similarly aligned.
One of the justifications offered by European imperial powers for the violent conquest, subjection, and, often, slaughter of indigenous peoples in past centuries was those peoples’ violation of a duty of hospitality. Today, many of these same powers—including European Union member states and former settler colonies such as the United States and Australia—take increasingly extreme measures to avoid granting hospitality to refugees and asylum seekers. Put plainly, whereas the powerful once demanded hospitality from the vulnerable, they now deny it to them. This essay examines this hypocritical inhospitality of former centers of empire and former settler colonies and concludes that, given that certain states accrued vast wealth and territory from the European colonial project, which they justified in part by appeals to a duty of hospitality, these states are bound now to extend hospitality to vulnerable outsiders not simply as a matter of charity, but as justice and restitution for grave historical wrongs.
The economic advisers of the 1924 Dawes Committee enacted currency and banking reforms as a means of resolving financial and geopolitical problems. Although the committee members stated that they had no plans to resolve the Ruhr occupation, evidence from the technical advisers demonstrated the opposite. Economists Edwin Kemmerer, Joseph Davis and Arthur Young sought to appease Franco-Belgian demands for a resolution to the reparations debate by balancing the German budget and reorganising the banking system, thereby also addressing the question of military occupation. This research delves into the advisers’ reports on public finance, currency stabilisation and the gold standard, arguing that their attempts to assuage reparation-related concerns rested on major reforms to German central banking.
Borrowing Gerry Simpson’s taxonomy, it was and remains common to think of the Soviet Union as both a ‘great power’ and an ‘outlaw state’. Some historical accounts portray Soviet law as elaborate, specific and complex; but simultaneously, others portray ‘Soviet law’ as a sham. This essay argues that the Soviet approach to Cold War international law hews closer to the former image than the latter. It appears that Soviet faith in international law grew over the course of the Cold War, rather than diminished. This essay is a tentative sketch of the transformation of Soviet faith in law over the course of the Cold War.
Chapter 1 traces the development of Allied internment policy from 1943 to 1946. It examines the discussions and statements of the UK, USA, and USSR, including at their European Advisory Committee and in the Potsdam Agreement of 1945. It analyses arrest directives issued in 1944–5 by western military authorities and the Soviet NKVD and discusses the Allied Control Authority’s attempt to develop a detailed quadripartite policy in late 1945/early 1946. It shows that the British were more enthusiastic and that the ‘Morgenthau Plan’ was less significant for US policy than is generally believed. The chapter argues that security, punishment, political change, and reparatory labour all featured in Allied thinking and that internment was consistently conceived as an extrajudicial measure against targets defined largely by their positions in Nazi organizations, rather than by individual acts. The chapter identifies differences over the precise targets, with Soviet directives being more expansive than their western equivalents and calling for members of the SA, SS and other paramilitary organizations to be deported as POWs rather than interned in Germany. Comparisons with Austria reveal basic similarities for the western powers but a different Soviet approach of leaving denazification and internment to Austria’s provisional government.
“The Artist as Clerk” moves from the reinvention of national debt under John Maynard Keynes to examine the role of debt, literary and financial, in the high modernist work of T. S. Eliot. As a young bank clerk at Lloyds of London, Eliot’s assignment was to parse the German debts adjudicated by the Versailles Treaty’s terms. It briefly recalls the structural role of debt in the liberal crises of interwar Europe, then connects those crises to the unbearable material and poetic debts that burden Eliot’s poetic line. Debt work makes its way to the very heart of his major postwar poetry, in the arid indemnities of “Gerontion” and in the conjunction of clerk, desk, and typist at the heart of The Waste Land. In Eliot’s interwar essays we see a parallel confrontation with economic and political liberalism, an interest dramatized in the incomplete Coriolan sequence.