Reparations provides redress to
victims for crimes. Reparations can take many forms. According to Redress.org, the four main forms
of reparations include restitution, compensation, rehabilitation, satisfaction
and guarantees of non-repetition: “Restitution is designed to re-establish the
situation which would have existed had the wrongful act not occurred. Compensation should be provided for any
economically assessable damage which result from the act. Rehabilitation is to include medical,
psychological, and other cares and services, as well as measures to restore
dignity and reputation. Satisfaction and
guarantees of non-repetition includes verification of facts and full public
disclosure of the truth; a declaratory judgment” [1]
Reparations at is based on a victim’s
understanding of justice. International
Criminal Court functions not simply to punish perpetrators of violence, but,
also to protect victims against injustice.
It is important to note that:
“The court has
the option of granting individual or collective reparation, concerning a whole
group of victims or a community, or both. If the court decides to order
collective reparation, it may order that reparation to be made through the
Trust Fund for Victims and the reparation may then also be paid to an
inter-governmental, international or national organization.” [2]
This focus on the needs of victims by the court has led to
the establishment of the Trust Fund for Victims. The TFV was created as a result of Article
79. This increased push towards victim
recognition could be said to be associated with the significant shift in the
perception of legal reparations from pre-world war II to now. The first major request for reparations came
as a result of war. Pre-World War I,
reparations had a connotation of payment by national losers to winners of
conflict (Buxbaum, 319). Post-World War
II, there was an increased recognition of the importance of individuals and
collectives as recipients of reparations.
While
reparations as outlined in the ICC do not appear in US criminal law, there is a
history of reparations in the United States.
The most pertinent case is US reparations for Japanese American internment. However, the word “reparations” is not used
outside of this historical context in the US criminal system. There is, nonetheless, an established system
of restitution in place within the US criminal justice system as well as
allowances for compensation and civil damages.
Restitution
is provided by those convicted of a crime to their victims. Upon conviction, the court has the ability to
order the defendant to give restitution to victims, if he/she has the ability
to pay. According to the National Center
for Victims of Crime website, “restitution can cover any out-of-pocket losses
directly relating to the crime.”[3]
Compensation is state sponsored and given by the state. Eligibility must be shown in order for
compensation to be granted. In the US,
restitution allows victims financial redress without applying while
compensation and civil damages requires action victim participation. While compensation is not court ordered,
civil damages is court ordered as a result of victims winning a lawsuit against
the perpetrator in civil court.
The
importance of reparations does not lie only in providing victims with
opportunities to gain redress. The
recognition of reparations as an integral aspect of justice demonstrates the
importance and focus on victims in the criminal justice system, whether
internationally or domestically.
Reparations provides an impetus for restorative justice where the focus
is not just punishing criminals, but also sincere attempts to bring back the
victims to the status they had previously in some way.
Written by: Chinonye Alma Otuonye
References:
Buxbaum, Richard (2005). A Legal History of International
Reparations. Berkeley Journal of
International Law, 23(2), 314-346.
Cullinan, Sarah (2001). Torture Survivors’ Perceptions of
Reparation: Preliminary Survey. Retrieved from http://www.redress.org/downloads/publications/TSPR.pdf
Goodwin, Catherine M (1998). The Imposition of Restitution
in Federal Criminal Cases. Federal
Probation. Retrieved from http://www.ussc.gov/sites/default/files/pdf/training/online-learning-center/supporting-materials/Imposition-of-Restitution-in-Federal-Criminal-Cases.pdf
International Criminal Court Web Portal. 2003. Web. 29
October 2015. Retrieved from http://www.icc-cpi.int/EN_Menus/ICC/Disclaimer/Pages/terms%20of%20use.aspx
National Center for Victims of Crime (2004). Restitution.
Retrieved from https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/restitution
Redress. 2001. Web. 29 October
2015. Retrieved from http://www.redress.org/what-is-reparation/what-is-reparation
The Trust Fund for Victims. Web. 29
October 2015 2015. Retrieved from http://www.trustfundforvictims.org/trust-fund-victims, http://www.trustfundforvictims.org/financial-information
UN General
Assembly, Rome Statute of the
International Criminal Court (last amended 2010), 17 July 1998, ISBN
No. 92-9227-227-6, available at:
http://www.refworld.org/docid/3ae6b3a84.html [accessed 27 October 2015]
[1]
Cullinan, Sarah (2001). Torture Survivors’ Perceptions of Reparation:
Preliminary Survey. Retrieved from http://www.redress.org/downloads/publications/TSPR.pdf
[2]
International Criminal Court Web Portal. 2003. Web. 29 October 2015. Retrieved
from http://www.icc-cpi.int/EN_Menus/ICC/Disclaimer/Pages/terms%20of%20use.aspx
[3]
National Center for Victims of Crime (2004). Restitution. Retrieved from https://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/restitution
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