Reparations and victim support in the International Criminal Court / Conor McCarthy.
2012
KZ7464 .M38 2012 (Map It)
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Details
Author
Title
Reparations and victim support in the International Criminal Court / Conor McCarthy.
Published
Cambridge ; New York : Cambridge University Press, [2012]
Copyright
©2012
Call Number
KZ7464 .M38 2012
ISBN
9781107013872 (hardback : alk. paper)
1107013879 (hardback : alk. paper)
1107013879 (hardback : alk. paper)
Description
xliv, 384 pages ; 24 cm.
System Control No.
(OCoLC)769323268
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Foreword
xv
Acknowledgements
xviii
Table of cases
xxi
Table of treaties
xxxvii
Select list of abbreviations
xli
1.
Introduction
1
A.
Introduction
1
B.
The book in outline
4
2.
The wider legal framework of victim redress
9
A.
Introduction
9
B.
The invocation of responsibility
10
C.
The law relating to the treatment of aliens
11
D.
International human rights law
13
E.
International humanitarian law
18
1.
International armed conflicts
18
2.
Non-international armed conflicts
25
F.
National law and procedures
27
G.
Conclusion
31
3.
Victim redress and international criminal justice: an overview
34
A.
Introduction
34
B.
Individual punishment and the traditional conception of international criminal justice
36
1.
The position of victims within the classical framework of international law
37
2.
Victims and the genesis of international criminal law
41
3.
The conventional position of victims in international criminal law
43
C.
The development of the Rome Statute's scheme of victim redress
48
D.
A principled role for victim redress as part of the system of international criminal justice?
54
1.
The conceptual role of victim redress in international criminal law as a form of criminal justice
55
(a).
The irrelevance of retributivism
55
(b).
The insufficiency of restorative justice as a principled justification
56
(c).
An expressivist account of victim redress: the role of vindicative satisfaction and moral denunciation
60
2.
Victim redress and the prosecution and punishment of individuals: competing or compatible paradigms?
64
E.
Between ideals and reality: the potential disjuncture between the theory and practice of victim redress
67
F.
Conclusion
72
4.
The concepts of reparations and victim support under the Rome Statute
75
A.
Introduction
75
B.
The concept of reparations under the Rome Statute
76
C.
The concept of victim support under the Rome Statute
84
1.
The distinction between `reparations' awarded under Article 75 and victim support provided pursuant to Rule 98(5)
85
2.
The key features of the concept of victim support under the Statute
88
D.
Conclusion
92
5.
The concept of harm under the Rome Statute
94
A.
Introduction
94
B.
Prefatory clarification
95
C.
An Autonomous Concept of Harm under the Rome Statute
98
D.
The forms of recoverable harm under the Rome Statute
100
1.
Pecuniary loss
100
(a).
Actualised pecuniary loss
101
(i).
Damage to, or loss of, property
101
(b).
Consequential pecuniary loss
104
(i).
Loss of future earnings
105
(ii).
Lost profit
106
(iii).
Loss of support
106
(iv).
Loss of pecuniary opportunity
108
(v).
Medical, funeral and miscellaneous expenses
109
2.
Non-pecuniary loss
110
(a).
Death
110
(b).
Personal injury
111
(i).
Pain and suffering
113
(ii).
Loss of amenities of life
119
(c).
Loss of liberty
123
3.
Communal harm
124
E.
Conclusion
127
6.
Reparations principles
129
A.
Introduction
129
B.
The scope and parameters of the Court's power to establish reparations principles
130
C.
The task of the Court in establishing reparations principles
132
D.
Determining the scope and extent of damage, loss and injury to victims
134
1.
Causation
135
(a).
Factual causation
137
(i).
Determining the appropriate standard of factual causation
138
(ii).
Determining the extent of a perpetrator's contribution to the harm caused by a crime
145
(b).
Legal causation
148
(i).
Legal causation and Rule 85(a)
150
(ii).
Legal causation and Rule 85(b)
153
(c).
Conclusion
155
2.
Determining the extent of a perpetrator's liability where a state is concurrently responsible
156
3.
Reparations awards where a perpetrator lacks the resources necessary to redress the harm he or she is found to have caused
157
E.
Modalities of reparations under the Rome Statute
158
1.
Restitution
159
(a).
The goal of restitutio in integrum
160
2.
Compensation
162
(a).
Compensable harm
163
(b).
Quantum
163
3.
Satisfaction
169
(a).
Rehabilitation
170
(b).
Declaration of wrongfulness
174
(c).
Factual disclosure
177
(d).
Contrition and acts of atonement
180
(e).
Commemorations and memorials
181
F.
Conclusion
182
7.
Proceedings and Court orders relevant to reparations
184
A.
Introduction
184
B.
The relationship between reparations and trial proceedings before the ICC
184
C.
Proceedings relating to reparations
190
1.
The role of reparations hearings
190
2.
The procedure for conducting reparations hearings
192
D.
Punitive orders
192
1.
Fines under Article 77(2)(a)
193
2.
Forfeiture of proceeds, property and assets pursuant to Article 77(2)(b)
194
(a).
`forfeiture of proceeds, property and assets'
195
(b).
`derived directly or indirectly from that crime'
199
(c).
`without prejudice to the rights of bona fide third parties'
202
E.
Reparations orders
209
1.
Restitution
213
2.
Compensation
214
3.
Rehabilitation
215
4.
Other forms of order
216
F.
Powers of the Court in cases of contumacy
216
G.
Protective measures
217
H.
The burden and standard of proof in reparations and sentencing proceedings
219
1.
Burden of proof
220
2.
Standard of proof
221
I.
Conclusion
223
8.
The provision of reparations and victim support through the Trust Fund
225
A.
Introduction
225
B.
The organisation and management of the Trust Fund
226
1.
Relationship with the Assembly of States Parties
226
2.
The Board of Directors
227
3.
The Secretariat
228
4.
The resources of the Trust Fund
229
C.
The prioritisation of resources by the Trust Fund
230
1.
Prioritisation of resources by the Trust Fund in respect of Court-ordered reparations
230
2.
Prioritisation of resources by the Trust Fund in respect of support to victims pursuant to Rule 98(5)
232
3.
Criteria according to which resources for redress may be prioritised
234
(a).
Prioritisation according to the vulnerability of victims
234
(b).
Prioritisation according to the neediness of victims
235
(c).
Prioritisation according to the nature of the unlawful act or the nature and/or gravity of harm inflicted
236
(d).
Prioritisation in order to maximise the impact of limited resources
237
D.
Court-ordered reparations provided `through' the Trust Fund
239
1.
The extent of the Court's role in directing and supervising the activities of the Trust Fund
240
(a).
The apportionment of resources between Article 75 reparations and victim support pursuant to Rule 98(5)
241
(b).
Judicial supervision and control of the implementation of Court-ordered reparations by the Trust Fund
242
(i).
The design of Court-ordered reparations awards
243
(ii).
Oversight of the implementation of the reparations award
248
2.
Rule 98(2): The provision of reparations awards to individuals through the Trust Fund
252
3.
Rule 98(3): The provision of collective reparations awards through the Trust Fund
253
4.
The determination of claims for reparations by the Trust Fund
257
(a).
Adjudication of claims by the Trust Fund
258
(i).
The adjudicative process
261
(ii).
Evidential issues
267
(b).
Verification of the implementation of individual and collective reparations awards
275
5.
Rule 98(4): The implementation of reparations awards by an intergovernmental, international or national organisation
276
(a).
The procedure for engaging the assistance of an intermediary organisation
278
(b).
The role and responsibilities of the intermediary organisation
279
(c).
Monitoring and oversight of the implementation of reparations awards by intermediary organisations
281
E.
Victim support provided by the Trust Fund pursuant to Rule 98(5)
285
1.
The power of the Trust Fund to use `other resources' for the benefit of victims
286
(a).
Determination by the Board of Directors as to the necessity of providing support pursuant to Rule 98(5)
286
(b).
Notification of, and approval by, the Court of activities undertaken pursuant to Rule 98(5)
288
2.
The activities of the Trust Fund undertaken pursuant to Rule 98(5)
293
(a).
The form of activities undertaken pursuant to Rule 98(5)
293
(b).
Procedures regulating how the `other resources' of the Trust Fund are used
295
F.
Conclusion
296
9.
Victim redress and the Rome Statute's cooperation and enforcement regimes: possibilities and limitations
297
A.
Introduction
297
B.
The scope of the cooperation regime
298
1.
The general powers of the Court and the Office of the Prosecutor
299
2.
Reparations proceedings
300
3.
The work of the Trust Fund in providing victim support
300
C.
States Parties and the cooperation regime
301
1.
The scope of the general obligation to cooperate
303
2.
Particularised forms of assistance the Court may request
303
(a).
Tracing, seizure and freezing of assets by States Parties
304
(b).
Other enumerated measures the Court may request of States Parties m
306
(c).
Relationship between Security Council sanctions and ICC cooperation requests
307
3.
Other forms of assistance the Court may request of States Parties
308
D.
Cooperation and third states
309
1.
Cooperation pursuant to the Statute
311
2.
Cooperation pursuant to a Security Council resolution
311
E.
Intergovernmental organisations
313
1.
The United Nations
314
2.
Other organisations
315
F.
Cooperation in respect of individuals, armed groups and other non-state entities
317
G.
The enforcement of fines, punitive forfeiture and reparations orders
318
H.
Conclusion
321
10.
Conclusions
324
A.
Introduction
324
B.
The role of victim redress as part of a system of international criminal justice
326
C.
The distinct role that the Rome Statute's regime for victim redress can play alongside other international regimes
329
D.
The potential role of the Rome Statute's regime of victim redress alongside national systems and processes
342
E.
Opportunities provided by the Rome Statute as an institutional framework within which to deal with questions of victim redress
346
F.
Between ideals and reality: challenges confronting the Rome Statute's regime of victim redress
349
1.
The limited resources available for victim redress
350
2.
The selectivity of prosecutions under the Rome Statute
351
3.
The risk of a fragmented and inappropriately individualised response to the harm suffered by victims
352
(a).
The risk of a fragmented, uncoordinated response to the harm suffered by victims
353
(b).
The risk of an inappropriately individualised approach to victim redress
354
(c).
Ways in which the risks of fragmentation and individualisation can be offset
355
4.
Difficulties associated with matters of victim redress being dealt with by an institution at the international level
356
G.
Conclusion
359
Select bibliography
361
Index
373