Reparation to Victims of Sexual Violence: Possibilities at the International Criminal Court and at the Trust Fund for Victims and Their Families

Leiden Journal of International Law

Volumn 20, Issue 1, 2007, Pages 207-237

  de Brouwer, Anne Marie ^a  

^a TILBURG UNIVERSITY   (Netherlands)

Author keywords

gender based crimes; HIV AIDS; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; reparation; Rwanda; sexual violence; Trust Fund for Victims; victims of sexual violence

Indexed keywords

EID: 51249147760     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003979     Document Type: Article

References (44)

1. See, inter alia, M. E. I. Brienen and E. H. Hoegen, Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Lawand Procedure (2000), at 1057–101; and
2. T. Ingadottir, C. Ferstman, and E. Kristjanjsdottir, ‘Victims of Atrocities-Access to Reparations’,paper presented at theconference ‘Searching for Justice:Comprehensive Action in the Face of Atrocities’, York University, Canada, 4-6 June 2003, available at http://www.pictpcti. org/publications/pict_articles/warcrime.pdf (last visited November 2006).
3. On the DRC see, inter alia, J. Martens, ‘Congo Rape Victims Seek Solace’, BBC, 24 Jan. 2004;
4. ‘Report Shows DR Congo Rape Horror’, BBC, 26 Oct. 2004;
5. Amnesty International, ‘Democratic Republic of Congo: Mass Rape - Time for Remedies’, AI Index: AFR 62/022/2004, 26 October 2004;Médecins sans frontie” res, ‘I Have No Joy, No Peace of Mind: Medical, Psychosocial, and Socio-Economic Consequences of Sexual Violence in Eastern DRC’, 2004;
6. Human Rights Watch, ‘The War within the War: Sexual Violence against Women and Girls in Eastern Congo’, June 2002; and
7. Human Rights Watch, ‘Seeking Justice: The Prosecution of Sexual Violence in the Congo War’, March 2005. On Rwanda see, inter alia, African Rights, Broken Bodies, Torn Spirits: Living With Genocide, Rape and HIV/AIDS (2004);
8. Amnesty International, ‘Rwanda: Marked for Death’, AI Index: AFR 47/007/2004, 5 April 2004;
9. Human Rights Watch, ‘Struggling To Survive: Barriers to Justice for Rape Victims in Rwanda’, September 2004; and
10. F. Nduwimana, ‘The Right to Survive: Sexual Violence,Women and HIV/AIDS’, Rights and Democracy (International Centre for Human Rights and Democratic Development), 2004. On Sudan see, inter alia, Médecins sans frontie” res, ‘The Crushing Burden of Rape: Sexual Violence in Darfur’, 8 March 2005; and
11. Human Rights Watch, ‘Sexual Violence and its Consequences among Displaced Persons in Darfur and Chad’, April 2005.
12. On Sierra Leone see, inter alia, Human Rights Watch, ‘We'll Kill You if You Cry: Sexual Violence in the Sierra Leone Conflict’, January 2003; and
13. Physicians for Human Rights, ‘War-Related Sexual Violence in Sierra Leone: A Population-Based Assessment’, 2002.
14. On the former Yugoslavia see, inter alia, Amnesty International, ‘Justice Shelved - Impunity for Rape in Bosnia Herzegovina’, AI Index: EUR 63/005/2004, 12 Oct. 2004.
15. On the Central African Republic see, inter alia, Fédération Internationale des Ligues des Droits de l'Homme, ‘Crimes de Guerre en République Centrafricaine: ‘Quand les elephants se batten, c'est l'herbe qui souffre’’, No. 355, Février 2003; and
16. Amnesty International, ‘Central African Republic: Five Months of War Against Women’,AI Index:AFR 19/001/2004, 10 Nov. 2004. Note that all situationsmentioned here are taken up before such international tribunals such as the ICTY, the ICTR, the Special Court for Sierra Leone and the ICC.
17. World Health Organization Press Release, ‘Women and Girls Need Access to AIDS Treatment and Protection from Violence’, 30 Nov. 2004.
18. Organization of African Unity (OAU), International Panel of Eminent Personalities Report, Rwanda: The Preventable Genocide (2000), para. 16.20.
19. B. Nowrojee, ‘Expert Report: Sexual Violence Crimes During the Rwandan Genocide’, Human Rights Watch, June 2004 (filed under the ICTR Government II case, Case No. ICTR-99-50-T, 25 October 2004).
20. In Rwanda, monetary claims have been awarded to victims by national courts, but no enforcement has resulted because those convicted simply did not have the money to pay the victims. See the report prepared by the International Crisis Group, ‘International Criminal Tribunal for Rwanda: Justice Delayed’, Nairobi/Arusha/Brussels: Africa Report No. 30, 7 June 2001, at 33. Although a statute which is to provide for the creation and governance of a reparations fund for genocide victims has been drafted, the Fonds d'Indemnisation (FIND), it still has not been adopted. Currently, the Fonds d'Assistance aux Rescapés du Génocide (FARG) is in place, but it has been inadequate inmeeting the needs of victims.Moreover, although FARG is a reparationmechanism, it is not specifically linked to victims of sexual violence and their needs.
21. World Health Organization, ‘Violence against Women and HIV/AIDS: Critical Intersections, Sexual Violence in Conflict Settings and the Risk of HIV’, Information Bulletin Series, Number 2, 2004, at 1.
22. Amnesty International, ‘Rwanda’,
23. Amnesty International, ‘Rwanda’,
24. On the Tribunals’ reparation regime, see generally S. Malmström, ‘Restitution of Property and Compensation to Victims’, in R. May et al. (eds.), Essays on ICTY Procedure and Evidence: In Honour of Gabrielle Kirk Mc Donald (2001), at 373–84; and
25. P. Chifflet, ‘The Role and Status of the Victim’, in G. Boas and W. Schabas (eds.), International Criminal Law Developments in the Case Law of the ICTY (2003), at 75-111.
26. I. Bottigliero, Redress for Victims of Crimes under International Law (2004), 201. See also Resolution 827 (1993) of 25 May 1993 establishing the ICTY, where the UNSecurity Council stated that ‘thework of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law’ (emphasis added)’. According to Morris and Scharf, the UN Security Council thus wanted to exclude the possibility that the tribunals themselves were going to deal with compensation claims of victims. Rather, a claims commission for victims was considered to be a better solution.
27. See V. Morris and M. P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995), Vol. 1, at 167, 286-7.
28. Groenhuijsen, for example, stated that ‘quite a few jurisdictions have already proven that it is feasible as well as fruitful to transcend the distinction between punishment and court-ordered restitution.’ See M. Groenhuijsen, ‘Victims’ Rights and Restorative Justice: Piecemeal Reform of the Criminal Justice System or a Change of Paradigm?’, in H. Kaptein and M. Malsch (eds.), Crime, Victims and Justice: Essays on Principles and Practice (2004), 63 at 73. Van Boven summarizes the advantages of the possibility of requesting and being awarded compensation during criminal proceedings as follows: ‘First, it makes the criminal offender more aware that not only was a wrong committed against public order and public welfare but, in addition, an injury was inflicted on one or more human beings. Second, it establishes a link between punitive measures and measures of reparation. Third, it tends to facilitate and expedite the process of obtaining civil damages.’
29. See T. van Boven, ‘The Perspective of the Victim’, in Y. Danieli, E. Stamatopoulou, and C. J. Dias (eds.), The Universal Declaration of Human Rights (1999), 13 at 21.
30. Hirondelle News Agency, ‘ICTR Medical Support Programme Targets 2,300 Witnesses’, 28 Jan. 2005. Note that in early 2006 negotiations with the UK government (Department of International Development) on funding the Voluntary Trust Fund to support witnesses with HIV/AIDS were ongoing.
31. See Hirondelle News Agency, ‘British Government to Support Medical Fund for Tribunal's Witnesses’, 17 Feb. 2006. Recently, a grant from the Irish government to the ICTR of US $317,000 for its HIV/AIDS medical support programme for witnesses was received.
32. Hirondelle News Agency, ‘British Government’,
33. C. Muttukumaru, ‘Reparation to Victims’, in R. S. Lee (ed.), The International Criminal Court - The Making of the Rome Statute: Issues, Negotiations, Results (1999), 262 at 263-4.
34. See also T. van Boven, ‘The Perspective of the Victim’, in Danieli, Stamatopoulou, and Dias,
35. ICC booklet, ‘Victims before the International Criminal Court, a Guide for the Participation of Victims in the Proceedings of the Court’, available at http://www.icc-cpi.int/library/victims/VPRS_Booklet_En.pdf (last visited September 2006).
36. ICC Newsletter, ‘Registry: VPRS - Gender Sensitivity’, June 2005, #4, at 6.
37. See Victims Rights Working Group, ‘Comments on the Draft Regulations of the ICC Trust Fund for Victims’, February 2005, at 10. The Court had been actively investigating the DRC situation since June 2004.
38. J. van Wielink and A.-M. de Brouwer, ‘Justice without Borders’, International Herald Tribune, 8 July 2006, 5.
39. G. Bitti and H. Friman, ‘Participation of Victims in the Proceedings’, in R. S. Lee et al. (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), 456 at 464.
40. See the ‘List of Counsel’ available at http://www.icc-cpi.int/library/defence/Defense_Counsel_List_English. pdf (last visited September 2006). Note that on the ICC website (http://www.icc-cpi.int/defence/defcounsel. html) it is nevertheless mentioned that ‘the Court specifically encourages and welcomes applications from female candidates, as well as from candidates practising in countries a situation in which has been brought before the Court’ (last visited September 2006).
41. and P. Lewis and H. Friman, ‘Reparations to Victims’, in Lee et al.
42. 55, Rules 217-22. It is very important that states include in their implementing legislation regulations on reparation. To date, only a few states have done so. For the interplay between the Court and national courts on matters concerning reparation, see C. Ferstman, ‘The Reparation Regime of the International Criminal Court: Practical Considerations’, (2002) 15 LJIL 667.
43. Victims Rights Working Group, ‘Comments on the Draft Regulations of the ICC Trust Fund for Victims’, February 2005, at 3, 8.
44. Although the Trust Fund for Victims and their familiesmay provide rehabilitation or support for the benefit of victims and their families as of December 2005 (adoption of the Regulations) in Uganda, DRC, or Sudan, no such proposals had been made by the Board by September 2006. Immediate action to support victims and their families needs, however, to be taken urgently. See also H. V. Stuart, ICC Victims Trust Fund Still in Limbo, International Justice Tribune Newsletter No. 51, 24 July 2006, pointing out that the Trust Fund is still not operative as a secretariat is still lacking.