Waiting for Bemba – The ICC and Transformative Reparations in Cases of Sexual Violence

Reparations in cases of sexual violence within international law discourse have been discussed a lot lately. Following the rich jurisprudence of the Inter American Court of Human Rights (IACHR) and recently published guidelines of the International Center of Transitional Justice (ICTJ) for court-ordered reparations in cases of sexual violence, eyes start to turn towards the ICC. In the decision from 21 March 2016 the ICC has convicted the Congolese Movement of Liberation of the Congo (MLC) leader Jean-Pierre Bemba for the crimes committed by his troops in the Central African Republic between 2002-2003. It was the first time that the Court acknowledged rape as war crime and crime against humanity.

Reparations at the ICC

The introduction of a reparation system within an international criminal tribunal certainly is an experimental step: Most international criminal tribunals have thus far abstained from the reparation question – presumably mostly with regards to the quantity of victims in mass atrocities. The ICC has dared the step and even pointed out that the success of the Court itself is somewhat linked to the success of its reparation system.

Article 75 of the Rome Statute does not yet say much about the nature of reparations. It establishes the responsibility of the Trust Fund for Victims (TFV) whose secondary task is assistance in conflict regions (Article 79). One can already assume that the lines tend to get blurred here. The reparation system has been, from the very beginning, criticized for various reasons: For being too undefined, too distractive from the already ambitious goal of criminal prosecution and simply unrealistic in that the Court does not have the sufficient funding.

The concrete nature of reparations is to be established within court decisions. With the reparation decisions in Lubanga and – very recently – Katanga, the ICC has already given examples on how article 75 and 79 of the Rome Statute could be interpreted. The decisions differ in that Lubanga relies mostly on collective symbolic reparations.  The decision in Katanga on the other hand combines collective reparations with more individual need for compensation.

In the context of Bemba, it is important to take into account the different levels of impact sexual violence has on victims as well as the resulting needs. A lot of research has been done in the past to address this issue. The recent ICTJ study is only one example. Bemba is the first convict who actually has significant assets to be granted to victims involved. With the masses of victims, however, the sum per person does not quite reach the threshold of what would be considered sufficient compensation. One starts to think about mechanisms beyond purely financial compensation. Continue reading