REPARATIONS AND VICTIM SUPPORT IN THE INTERNTIONAL CRIMINAL CRIINAL COURTPDF电子书下载

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 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