Behind the idea of bringing reparations to international criminal justice is the belief that international justice can be dispensed in a more victim-oriented manner. This belief was nurtured by two concurrent responses to mass atrocities during the second half of the twentieth century: punishment and redress. These two responses found expression in 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. Reparations have become one the most important conceptual formulations of victim-oriented justice. In 2005, the UN General Assembly even proclaimed a ‘right to reparation’ for victims of mass abuses.Footnote ¹ However, while international criminal justice continued to gain new institutions and widespread support among states, the legal frameworks in place for reparations have remained fragmented and largely ineffective. The desire for more enforcement eventually drove advocates of reparations into the arms of international criminal justice. Maybe it was possible to have two for one, punish perpetrators and provide reparations to victims of mass atrocities within a single legal and institutional framework.

Reparations and International Criminal Justice

The promise that reparations can be delivered through international criminal justice has now been around for more than two decades. Coming into existence in 2002, the International Criminal Court (ICC) was the first international criminal tribunal to which victims can submit claims for reparations.Footnote ² Following this example, some hybrid courtsFootnote ³ have considered provisions on reparations, notably the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Cambodia. Yet, it is only in the last years that the first practice has emerged from these courts.

The adjudication so far of the first reparations claims before the ICC and ECCC has been arduous and revealed disagreement within and outside these courts over the nature, extent and purpose of reparations in international criminal justice. Considerable uncertainty surrounds whether these reparations schemes can live up to expectations placed upon them. At the same time, the international community continues to invest significant resources in international criminal justice institutions, and advocates do not give up hope for a more victim-friendly international justice system that can address the multiple needs of survivors of mass atrocities. It is high time to understand what is actually happening at these courts regarding reparations.

Against this background, a vigorous debate rages among practitioners and activists over the merits and limitations of these reparations schemes. Some judges have come out with critical reflections about the practicality of the ICC’s victim participation and reparations mandate that go to the heart of the question about whether or not combining a system of victim redress with international criminal trials is the right approach.Footnote ⁴ This critique coincides with a general quest for meaning in international criminal justice. Payam Akhavan argues that ‘the era of romanticisation of international criminal justice’ is over, and ‘as the romance fades away, we are confronted with the self-evident complexities and constraints of grafting idyllic rule of law conceptions on to the grim reality of societies emerging from mass atrocities’.Footnote ⁵ This much is true for reparations in international criminal justice. Yet, times of doubt are normal for maturing fields and open up new opportunities for scholars to re-examine international criminal justice – the purpose and function of novel reparations mandates is one key aspect in this re-evaluation.

Scholars have only gradually caught up with these developments.Footnote ⁶ Among the most authoritative research with an explicit focus on reparations in international criminal justice is the work of Conor McCarthy, Luke Moffett and Miriam Cohen.Footnote ⁷ While this literature has made important contributions towards theorising reparations and understanding its role in the legal frameworks of international criminal tribunals, the focus remains predominantly on legal aspects of reparations and on the ICC and its Trust Fund for Victims (TFV). What has largely been absent from this research is a perspective that considers the phenomenon within wider social and geographical contexts.Footnote ⁸ The limited attention in scholarly research to the ECCC’s reparation mandate is particularly surprising considering the few precedents for this novel feature of international criminal justice.Footnote ⁹ This book therefore shifts the focus beyond the courtrooms in The Hague to other internationalised courts with reparations mandates.

Moreover, many of these debates have a normative undertone and reveal longstanding ideological fault lines, but have often limited empirical grounding. They obscure the fact that little is actually known about reparations in international criminal justice, mainly because of the limited practice to date. Not a single reparations order from the ICC’s first trials has been fully implemented at the time of writing, while the ECCC has only recently completed the implementation of two dozen reparations projects from its second case. Hence, the timing of the first-ever reparations orders by international(-ised) criminal courts provides an opportunity to complement the prevailing analysis of legal frameworks and jurisprudence with an analysis of the first practice of reparations emerging from these courts. At the ICC, Judge Van den Wyngaert has stated, ‘The Court will have to assess whether the system it has installed is capable of reaching the objectives it has set for itself. By the time the first trials have run their full course, the Court will be in a position to do so.’Footnote ¹⁰ We are now arriving at this critical moment, where such an assessment is both feasible and necessary.

Aim and Object of Study

This book is animated by the dissonance between the promise of reparations and its practice in international criminal justice. I explore this dissonance by examining the first attempts in international criminal justice to convert reparations for victims of mass atrocities from an idea to actual realisation. In this process, I regard reparations neither as an abstract norm nor a purely institutional outcome, but as produced and reconfigured by various forms of social action. Hence, the object of study is the different practices that constitute and shape reparations in international criminal justice. The goal is to identify these practices and to understand their genesis, development and interconnections. In mapping and tracing these practices, I examine how together they construct, change and give meaning to reparations in different contexts.

The Social Life of Norms and Rights

Richard Wilson has called for the study of the ‘social life of human rights’. Wilson referred to the social forms that coalesce in and around the formal legal or political processes associated with human rights, but which are usually hidden in practices behind those official processes.Footnote ¹¹ This book brings such practices to the forefront of the analysis, and thus situates reparations in the specific social contexts, and not only the legal frameworks, in which they are pursued. This involves studying the birth, spread and materialisation of reparations across different legal, institutional and social settings. In the scholarly literature, these processes are usually studied separately and by different disciplines; obscuring the interconnectedness of practices that constitute the social life of transnational phenomena. This book brings these different strands of research and theories on law and society into conversation.Footnote ¹²

Reparations have both normative and empirical dimensions. Yet, much of the literature is still formal and legalistic in nature.Footnote ¹³ This scholarship often starts with upfront definitions and theorising of reparations (reparations are… ), which are then applied to different contexts. This approach does not reflect the more diffuse reality I encountered around the ECCC. While I certainly acknowledge the value of normative research and the normative impetus driving reparations advocates, my book focuses broadly on empirical aspects of reparations. The objective is to turn away from abstractions to see how reparations are used by practitioners and others involved in the making of reparations. Drawing on insights from legal anthropology, new legal realism and the sociology of law, this book uncovers and reveals the often hidden practices that together constitute, shape and give meaning to reparations in international criminal justice.Footnote ¹⁴

Practices as an Analytical Lens

Anna Tsing reminds us that ‘universal claims do not actually make everything everywhere the same’,Footnote ¹⁵ rather universal aspirations should be ‘considered as practical projects accomplished in a heterogeneous world’.Footnote ¹⁶ This book sheds light on the practical project that was born out of the impetus to make international criminal justice more victim-oriented by giving it an additional reparative function. I use the notion of ‘practice’ or ‘practices’ as an analytical lens to make visible forms of social actions that together and simultaneously enable and constrain reparations. In doing so, I build on a long-established literature in sociologyFootnote ¹⁷ and (legal) anthropology.Footnote ¹⁸ Attention to practices has gained more traction in scholarship; so much so that some scholars suggest a ‘practice turn’.Footnote ¹⁹ But what does it mean to talk about ‘practices’? The literature abounds with definitions.Footnote ²⁰ At a basic level, they can be understood as socially meaningful patterns of actions that are embedded in particular organised contexts.Footnote ²¹ Vincent Pouliot adds that not everything that people do can be derived from rational thinking, norm-following or collective deliberation. Instead, practices are often unarticulated and informed by background knowledge, such as beliefs, identities, interests or preferences.Footnote ²² Such an understanding is distinct from the rules-based notion of ‘practice’ prevalent in law, where authoritative rules tell actors how they ought to act (e.g., in sentencing practices).Footnote ²³ The notion of practices used in this book is broader and takes into account the fact that practitioners may at times struggle to verbalise or explain their actions. This comes closer to Wilson’s objective of studying the ‘hidden practices’ that lie behind formal processes. This book examines such practices and describes how practitioners came to adopt them.

The notion of practices provides an analytical lens that brings different legal and social science perspectives into dialogue around a common conceptual focal point.Footnote ²⁴ Employing practices as an analytical lens means shifting the scholarly focus from upfront theorising to empirically examining how reparations are conceived and produced by the actions of various actor communities. Rather than starting with preconceived notions of reparations (reparations as an ideal), the practice-based approach in this book foregrounds what institutions and professionals – judges, lawyers, diplomats, non-governmental organisation (NGO) workers and others – are doing with regard to reparations.Footnote ²⁵ Reparations are seen as constituted and performed through a set of practices. Making these practices visible through field observations and practitioner interviews grounds theorising of reparations within their surrounding social, political and institutional contexts. The result is a more dynamic and contextual understanding of reparations.

Practices develop through and are carried out by communities of practice. Etienne Wenger and colleagues characterise a community of practice as sharing three basic elements: ‘a domain of knowledge, which defines a set of issues; a community of people who care about this domain; and the shared practice that they are developing to be effective in their domain’.Footnote ²⁶ Background knowledge, such as shared beliefs, goals or reasoning, is often crucial to understanding what brings different members of such communities together and disposes them to act in a similar manner.Footnote ²⁷ The social life of reparations viewed from this angle emerges from, and is characterised by, interconnected and overlapping communities and sets of practices – variously described as practice bundles, arrangements, clusters or assemblages. Whilst the study of practices in sociology and anthropology has traditionally focused on smaller social phenomena, such as daily routines or professional habits, practice scholars have moved to apply such approaches to larger transnational phenomena.Footnote ²⁸

Studying the Practices of Reparations

In conceptualising reparations in international criminal justice as a bundle of different practices, this book makes reparations visible as a multi-dimensional and socially constructed practical project. My socio-legal inquiry into reparations seeks to identify what practices exist, how they come to be, how they work, and what meanings and effects they produce. I do so by way of ‘thicker’ narratives that embrace the complexities of actors’ practices and make visible patterns of action involved in reparations. Ultimately, I am interested to explore how these practices shape the possibilities and meanings of reparations. Reparations in international criminal justice, I argue here, are construed, contested and produced through the interconnection of these sets of practices as they are performed by varied communities of actors across different times and places. 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 imperfectly functions in diverse mass atrocity situations.

This book is not the first to apply a practice-based approach to matters of international lawFootnote ²⁹ or international criminal justice.Footnote ³⁰ But it is the first study to apply a practice lens to examine reparations as a broader social phenomenon. Neither the doctrine-driven study of international criminal law nor macro-level institutional explanations scrutinise the everyday working of international(-ised) criminal courts and their inner life as bureaucratic institutions – a dimension that I experienced to be crucial in the making of reparations. Jens Meierhenrich drew attention to the multiple ways in which such institutions are ‘produced, reproduced and reconfigured as a result of the particular and contingent beliefs, preferences, and strategies of the individuals (as well as collectives) acting within them as well as upon them’.Footnote ³¹ What is it that practitioners at and around these courts do when they conceive reparations for victims of far-flung conflict-affected situations? Viewing reparations as constituted through a set of specific practices enables us to unpack the inner workings of the institutions involved.Footnote ³² This allows us to study not only courts’ bureaucracies but also the network of actors that exists around them and extends to the different geographical areas where international criminal justice intervenes.

Locating Practices of Reparations

Much of the literature on international justice is caught in a dichotomy of the ‘global’ and the ‘local’, or the ‘above’ and ‘below’.Footnote ³³ These analytical categories have inspired scholarship on the relationship between international norms and local practices.Footnote ³⁴ Various concepts, such as ‘norm localisation’Footnote ³⁵ or ‘vernacularisation’,Footnote ³⁶ have tried to capture the dynamic process through which international norms are reframed or reconstituted to suit local cultural understandings and social orders. However, my own experience and field research resonates with Leila Ullrich’s finding that the meta-categories of the ‘global’ and the ‘local’ create many blind spots, especially regarding conflicting justice visions within international institutions and local communities. Ullrich notes that ‘the fault lines of justice contestations run not only between the ICC and affected communities, but also through the Court and victim communities’.Footnote ³⁷ I found it productive to put these contestations over reparations at the forefront of my observations. This has enabled me to capture the diverse and often contradictory justice agendas that play out among court officials, legal professionals, local NGOs and victim representatives.Footnote ³⁸ What all these approaches have in common is that they leave accounts of smooth and linear flows of transnational ideas, norms and people behind and focus instead on the messy, dynamic and contested practices that make up the social life of transnational phenomena and more than often produce unpredictable outcomes and effects.

Thus, instead of structuring my observations along the lines of international and national levels, I examine reparations by looking at the different phases of its social life where the ‘global’ and the ‘local’ are often simultaneously present and where the use and meaning of reparations are contested by diffuse constellations of actors and institutions. I identify four phases that are key in the social life of reparations in international criminal justice:

• norm-making, when vague ideas about reparations are turned into concrete rules for international(-ised) criminal courts;

• engagement with survivors and conflict-affected populations in the specific situations into which these courts intervene;

• adjudication of reparations by international(-ised) criminal courts;

• implementation of reparations awards in specific localities.

These phases are not meant to depict a linear or chronological representation of the making of reparations, nor do they encapsulate the totality of practices surrounding reparations in international criminal justice. Yet, these four phases and the practices associated with them are essential in understanding the pursuit of reparations across time and space.

Research Approach

In order to make practices visible, it is necessary to go beyond legal texts and explore the concrete social and institutional contexts in which practices are performed. Beyond documentary analysis, I therefore used an ethnographically informed research approach, including interviews, to study the practices of reparations in the different phases of its social life.Footnote ³⁹ While I do not claim to have done ethnographic research in a classical anthropological sense, my approach is inspired by what Fleur Johns has called a ‘quasi-ethnographic’ way of seeing.Footnote ⁴⁰ This mode of inquiry seeks to ‘describe what the people in some particular place or status ordinarily do and the meanings they ascribe to the doing, under ordinary or particular circumstances, presenting that description in a manner that draws attention to regularities that implicate cultural process’.Footnote ⁴¹

The four different phases and associated practices of reparations are studied through two case studies. The ICC and the ECCC have been the first international(-ised) criminal courts that have allowed victims to claim reparations in their proceedings.Footnote ⁴² This book focuses on the first two cases at each of these courts that have reached the reparations stage, and which have been adjudicated more or less in parallel. At the ICC, this concerns the cases against Thomas Lubanga and Germain Katanga relating to the situation in Ituri, Democratic Republic of Congo (DRC). At the ECCC, this book deals with Cases 001 and 002 involving senior leaders of the Khmer Rouge and those most responsible for crimes committed in Cambodia during the 1970s. While this sample covers all ECCC reparations judgements, it is not the goal of this book to survey all other court cases or reparations decisions at the ICC – a task that I leave to doctrinal legal scholars.Footnote ⁴³ Rather, the book examines the social practices that underpin the making of reparations in the concrete conflict-affected situations these first cases address. Indeed, the book shows that many of these practices point to broader patterns of social action and structural dynamics regarding reparations that transcend individual judicial cases.

My fieldwork – carried out between 2014 and 2019 at different locations, including The Hague, Brussels, Paris, London, Phnom Penh and Dakar – centred on the courts and their immediate surroundings.Footnote ⁴⁴ This involved more than 60 interviews with individuals from a diverse set of actors, including from the courts, NGOs and victim associations, external observers or experts, government officials and relevant state parties and donors. Due to my previous work in Cambodia, it was generally easier to gain access to participants there, as is reflected in the sampling size: 37 respondents have worked at or around the ECCC in Cambodia, whereas 21 concerned the ICC. While I did extensive fieldwork in Cambodia, security restrictions did not allow me to travel to the Ituri district in the DRC. This is reflected in more local-level accounts from Cambodia than from the DRC – a limitation that I tried to compensate for to some degree by interviewing, outside the country, actors working in the DRC.Footnote ⁴⁵

Given the relatively short time period that passed since the first reparations orders and the ongoing work with implementing ICC reparations, it is difficult to assess the longer-term impact on concerned populations. More generally, the scarcity in empirical information about the impact of these courts’ work remains a challenge for any researcher studying the effects of international criminal justice. Against this background, I also engaged with a survey among ECCC civil parties in Cambodia.Footnote ⁴⁶ As a result of these research limitations, the ICC case study has a stronger emphasis on the negotiations and adjudication. The ECCC case study, on the other hand, involves more engagement with the local level, including an initial assessment of the implementation of collective reparations.

Book Outline

The structure of this book follows the social life of reparations in international criminal justice – from its birth to its materialisation in different social contexts – through an examination of its constitutive practices.

Part I engages the origin story of how international criminal justice took on a reparative function. In Chapter 1, I sketch a brief conceptual history of reparations in international criminal justice and introduce key terms used in this book. I show 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. I conceive of ‘reparations’ as a concept whose contours are diffuse and essentially contested. Chapter 2 then considers how practices chosen during the negotiations of legal frameworks at the respective courts continue to affect the operation of their reparations schemes. My account of the ICC Rome Statute negotiations and the ECCC’s Internal Rules-making shows that rules on reparations originated from contested negotiations, in which different visions of international justice stood in competition. Negotiators adopted practices that ultimately enabled consensus but had little appreciation of the competing rationales they incorporated into the legal frameworks, which remain at the core of the tensions within the reparations mandates today.

These competing visions for reparations eventually came into contact with the social contexts that were the subject of the first cases before the ICC and the ECCC: the district of Ituri in the DRC and Cambodia. In Part II, I ask what happens to legalised, but non-specific, notions of reparations when they are enacted in complex post-atrocity situations. I show that against the background of ongoing uncertainties surrounding reparations, actors at and around these courts developed specific representational (Chapter 3), communicative and consultation (Chapter 4) and assistance practices (Chapter 5) to filter and adjust survivors’ inputs into the processes that determine reparations outcomes. These practices helped those working around these courts to discipline and translate the multitude of survivor demands, while responding to the constraints from conflict-affected situations that did not easily fit the requirements of legal proceedings. However, these practices also determined critical parameters of court-ordered reparations long before judges even embarked on the adjudication of reparation requests.

Contested visions of reparations also became visible in the courtrooms of the ICC (Chapter 6) and ECCC (Chapter 7), where ambiguous legal rules and those claiming to represent the survivors converged in the hope for the long-awaited resolution of the reparations predicament. Part III inquires into the question of how reparations were conceived in both courts’ adjudicative practices. I reveal the practices adopted by judges as attempts to mediate between competing legal and social imperatives. Courtrooms became arenas where various actors competed over tipping the scales in favour of one direction or the other. Despite the fact that the first cases at both courts have developed more or less in parallel, they moved into opposite directions. The ICC, as the central guardian of the future of international criminal justice, settled on a more legally principled path with demanding judicial requirements that are still being litigated. The ECCC at the periphery, on the other hand, became driven by feasibility concerns in an attempt to deliver at least some collective projects.

Part IV examines the implementation of reparations and, to the extent possible, how survivors view these reparations. Focusing specifically on the experience in Cambodia, this part explores first how reparations have increasingly been projectified in court-ordered reparations (Chapter 8) and how awards have eventually been received, or contested, by survivor populations (Chapter 9). Behind these questions is the dynamic interrelationship between what courts have to offer and what victims accept as reparations. Exploring this conundrum by juxtaposing measures that were granted by ECCC judges as ‘reparations’ and those that were rejected, I show some of the effects of courts’ practices on the meaning of reparations.

I come to the conclusion that the initial promise for more victim-oriented justice through reparations has been realised only superficially. The main reason for this unsatisfactory state of affairs is that reparations remain subordinated to the dominant legal and jurisdictional logics of the criminal trial. The contradictions and contestations this has produced have – despite mediating practices by many actors – resulted in a marginalisation of reparations within international(-ised) criminal courts. I call therefore for an appreciation of the limits of recasting international criminal justice as a site for realising reparative justice ambitions, and to look more beyond these courts in the pursuit of reparations for victims of mass atrocities. There certainly is a case for recognising and acknowledging victims through international criminal justice. Yet, it will be a more modest one than the current promise suggests.

Whilst at times my account of reparations practices at the ICC and the ECCC may appear rather bleak, I do not abandon the aspiration for a more victim-oriented approach to justice and reparations in the aftermath of mass atrocities. As a scholar and practitioner, I agree with Mark Massoud that disenchanting and strengthening of justice endeavours go hand in hand. Thus, disenchanting is part and parcel of strengthening the collective pursuit of justice, including reparations.Footnote ⁴⁷ The fact that practices of reparations in international criminal justice are characterised by uncertainties, contradictions and imperfections should not be taken as a failure of justice and human rights aspirations.Footnote ⁴⁸ Instead, contestation and adaptive practices represent forms of social mediation through which solutions to global problems are constantly negotiated and contextually reproduced.