REPARATIONS AND VICTIM SUPPORT IN THE INTERNTIONAL CRIMINAL CRIINAL COURTPDF|Epub|txt|kindle电子书版本网盘下载

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1 Introduction1

A Introduction1

B The book in outline4

2 The wider legal framework of victim redress9

A Introduction9

B The invocation of responsibility10

C The law relating to the treatment of aliens11

D International human rights law13

E International humanitarian law18

1 International armed conflicts18

2 Non-international armed conflicts25

F National law and procedures27

G Conclusion31

3 Victim redress and international criminal justice: an overview34

A Introduction34

B Individual punishment and the traditional conception of international criminal justice36

1 The position of victims within the classical framework of international law37

2 Victims and the genesis of international criminal law41

3 The conventional position of victims in international criminal law43

C The development of the Rome Statute's scheme of victim redress48

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 justice55

(a) The irrelevance of retributivism55

(b) The insufficiency of restorative justice as a principled justification56

(c) An expressivist account of victim redress: the role of vindicative satisfaction and moral denunciation60

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 redress67

F Conclusion72

4 The concepts of reparations and victim support under the Rome Statute75

A Introduction75

B The concept of reparations under the Rome Statute76

C The concept of victim support under the Rome Statute84

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 Statute88

D Conclusion92

5 The concept of harm under the Rome Statute94

A Introduction94

B Prefatory clarification95

C An Autonomous Concept of Harm under the Rome Statute98

D The forms of recoverable harm under the Rome Statute100

1 Pecuniary loss100

(a) Actualised pecuniary loss101

(Ⅰ) Damage to, or loss of, property101

(b) Consequential pecuniary loss104

(Ⅰ) Loss of future earnings105

(Ⅱ) Lost profit106

(Ⅲ) Loss of support106

(Ⅳ) Loss of pecuniary opportunity108

(Ⅴ) Medical, funeral and miscellaneous expenses109

2 Non-pecuniary loss110

(a) Death110

(b) Personal injury111

(Ⅰ) Pain and suffering113

(Ⅱ) Loss of amenities of life119

(c) Loss of liberty123

3 Communal harm124

E Conclusion127

6 Reparations principles129

A Introduction129

B The scope and parameters of the Court's power to establish reparations principles130

C The task of the Court in establishing reparations principles132

D Determining the scope and extent of damage, loss and injury to victims134

1 Causation135

(a) Factual causation137

(Ⅰ) Determining the appropriate standard of factual causation138

(Ⅱ) Determining the extent of a perpetrator's contribution to the harm caused by a crime145

(b) Legal causation148

(Ⅰ) Legal causation and Rule 85(a)150

(Ⅱ) Legal causation and Rule 85(b)153

(c) Conclusion155

2 Determining the extent of a perpetrator's liability where a state is concurrently responsible156

3 Reparations awards where a perpetrator lacks the resources necessary to redress the harm he or she is found to have caused157

E Modalities of reparations under the Rome Statute158

1 Restitution159

(a) The goal of restitutio in integrum160

2 Compensation162

(a) Compensable harm163

(b) Quantum163

3 Satisfaction169

(a) Rehabilitation170

(b) Declaration of wrongfulness174

(c) Factual disclosure177

(d) Contrition and acts of atonement180

(e) Commemorations and memorials181

F Conclusion182

7 Proceedings and Court orders relevant to reparations184

A Introduction184

B The relationship between reparations and trial proceedings before the ICC184

C Proceedings relating to reparations190

1 The role of reparations hearings190

2 The procedure for conducting reparations hearings192

D Punitive orders192

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 orders209

1 Restitution213

2 Compensation214

3 Rehabilitation215

4 Other forms of order216

F Powers of the Court in cases of contumacy216

G Protective measures217

H The burden and standard of proof in reparations and sentencing proceedings219

1 Burden of proof220

2 Standard of proof221

I Conclusion223

8 The provision of reparations and victim support through the Trust Fund225

A Introduction225

B The organisation and management of the Trust Fund226

1 Relationship with the Assembly of States Parties226

2 The Board of Directors227

3 The Secretariat228

4 The resources of the Trust Fund229

C The prioritisation of resources by the Trust Fund230

1 Prioritisation of resources by the Trust Fund in respect of Court-ordered reparations230

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 prioritised234

(a) Prioritisation according to the vulnerability of victims234

(b) Prioritisation according to the neediness of victims235

(c) Prioritisation according to the nature of the unlawful act or the nature and/or gravity of harm inflicted236

(d) Prioritisation in order to maximise the impact of limited resources237

D Court-ordered reparations provided 'through' the Trust Fund239

1 The extent of the Court's role in directing and supervising the activities of the Trust Fund240

(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 Fund242

(Ⅰ) The design of Court-ordered reparations awards243

(Ⅱ) Oversight of the implementation of the reparations award248

2 Rule 98(2): The provision of reparations awards to individuals through the Trust Fund252

3 Rule 98(3): The provision of collective reparations awards through the Trust Fund253

4 The determination of claims for reparations by the Trust Fund257

(a) Adjudication of claims by the Trust Fund258

(Ⅰ) The adjudicative process261

(Ⅱ) Evidential issues267

(b) Verification of the implementation of individual and collective reparations awards275

5 Rule 98(4): The implementation of reparations awards by an intergovernmental, international or national organisation276

(a) The procedure for engaging the assistance of an intermediary organisation278

(b) The role and responsibilities of the intermediary organisation279

(c) Monitoring and oversight of the implementation of reparations awards by intermediary organisations281

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 victims286

(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 used295

F Conclusion296

9 Victim redress and the Rome Statute's cooperation and enforcement regimes: possibilities and limitations297

A Introduction297

B The scope of the cooperation regime298

1 The general powers of the Court and the Office of the Prosecutor299

2 Reparations proceedings300

3 The work of the Trust Fund in providing victim support300

C States Parties and the cooperation regime301

1 The scope of the general obligation to cooperate303

2 Particularised forms of assistance the Court may request303

(a) Tracing, seizure and freezing of assets by States Parties304

(b) Other enumerated measures the Court may request of States Parties306

(c) Relationship between Security Council sanctions and ICC cooperation requests307

3 Other forms of assistance the Court may request of States Parties308

D Cooperation and third states309

1 Cooperation pursuant to the Statute311

2 Cooperation pursuant to a Security Council resolution311

E Intergovernmental organisations313

1 The United Nations314

2 Other organisations315

F Cooperation in respect of individuals, armed groups and other non-state entities317

G The enforcement of fines, punitive forfeiture and reparations orders318

H Conclusion321

10 Conclusions324

A Introduction324

B The role of victim redress as part of a system of international criminal justice326

C The distinct role that the Rome Statute's regime for victim redress can play alongside other international regimes329

D The potential role of the Rome Statute's regime of victim redress alongside national systems and processes342

E Opportunities provided by the Rome Statute as an institutional framework within which to deal with questions of victim redress346

F Between ideals and reality: challenges confronting the Rome Statute's regime of victim redress349

1 The limited resources available for victim redress350

2 The selectivity of prosecutions under the Rome Statute351

3 The risk of a fragmented and inappropriately individualised response to the harm suffered by victims352

(a) The risk of a fragmented, uncoordinated response to the harm suffered by victims353

(b) The risk of an inappropriately individualised approach to victim redress354

(c) Ways in which the risks of fragmentation and individualisation can be offset355

4 Difficulties associated with matters of victim redress being dealt with by an institution at the international level356

G Conclusion359

Select bibliography361

Index373