Dannenbaum: The International Criminal Court, Article 79, and Transitional Justice: The Case for an Independent Trust Fund for Victims

Tom Dannenbaum (Yale Univ. - Law) has posted The International Criminal Court, Article 79, and Transitional Justice: The Case for an Independent Trust Fund for Victims (Wisconsin International Law Journal, forthcoming). Here's the abstract:

In a groundbreaking development in the design of institutions of international criminal justice, the Rome Statute of the International Criminal Court provided in 1998 for the creation of a fund to benefit victims of crimes within the jurisdiction of the Court - the aptly named Trust Fund for Victims (“TFV”). A decade later, the Fund for the first time asserted its prerogative to act on its own initiative to benefit victims. At the time, the International Criminal Court (ICC) was far from ready to exercise its authority under Article 75 to order the payment of reparations - the Court’s primary judicial mechanism for the assistance of victims. Moreover, the TFV’s proposed projects would assist victims who had suffered crimes perpetrated by unidentified individuals whom the Prosecutor of the ICC had yet to charge and who were - in all likelihood - not even under investigation by his Office. It was an aggressive first step and objections were immediately raised that the TFV had exceeded its mandate. Unmoved by these claims, Pre-Trial Chamber I, allowed the Fund to proceed with the proposed action. However, in so doing the Pre-Trial Chamber also held that the Fund is bound by an obligation to contribute to Court-ordered Article 75 reparations whenever the funds available from the convicted person prove insufficient to pay the reparation deemed appropriate by the Court. This Paper argues that the TFV’s independent initiation of the kind of projects in which it has engaged was (and is) well within the bounds of its legal authority. Moreover, not only is such independent action desirable, but, contra the Pre-Trial Chamber, it should not be limited by the prospect of future Court-ordered Article 75 reparations. Such Court-ordered reparations should be funded only by the wealth of the criminal against whom those reparations are ordered and by other Court-generated resources, such as fines and forfeitures. Neither is the TFV legally obliged to use its “other resources” to supplement Court-generated funds in order to meet the Court’s reparative assessment, nor would such use of the TFV’s resources be optimal. Instead, the TFV should take full advantage of its legal freedom by engaging in reparative projects that seek to benefit and acknowledge those victims that are unlikely to be reached by the Court’s Article 75 reparations process. That is not to say that the Fund’s freedom is limitless. The governing legal texts require that the TFV restrict its projects to those benefiting victims of crimes that fall within the ICC’s jurisdiction, and as a matter of policy the Fund should direct its activities to situations in which the prosecutor has issued indictments. However, within those confines, the Fund enjoys great discretion, and it is in the interest of transitional justice that it should exercise that discretion without restraints of the kind currently imposed by the Court.