Realising Reparative Justice for Victims of International Crimes: Impact Results, Reflections, and What States can Do (More)

Introduction

Good afternoon. It’s a deep honor to address you all today as the 6th Ambassador-at-Large for Global Criminal Justice for the U.S. Government. I’d like to thank the Trust Fund for Victims and the delegations from Finland and Sweden for hosting this important and timely event. Thank you for inviting the United States to join Ibrahim Yillah, the Vice-Chair of the Trust Fund for Victims Board of Directors; Judge Piotr Hofmański, ICC President; Paolina Massidda, Principal Counsel of the Office of Public Counsel for Victims; Andres Parmas, Member of the TFV Board of Directors; and Franziska Eckelman, Acting Executive Director for TFV, in this important conversation. I would also like to thank many of you here present who represent various organizations and states that have worked hard to bring the rights and interests of victims and their communities to the forefront of international justice efforts.

Victims are the central stakeholders of the important work undertaken by the International Criminal Court. Their suffering and losses are a core rationale why the Court exists and inspire the investigations and prosecutions undertaken daily by the Court’s personnel. They are the witnesses who often provide the most compelling testimony to investigators and judges so that prosecutors may fully prove the charges they have levied. And they are the advocates and experts to whom governments, including my own, turn as we endeavor to build better systems of justice around the world.

Before joining the U.S. government, I had the honor and privilege of working for many years as an advocate for, and as legal counsel to, victims pursuing justice in U.S. courts and elsewhere. As such, this side event involves a cause that is deeply personal for me and has become a central element of my mandate in my current role.  As a practicing lawyer and now as a diplomat, I’ve visited the homes of families to hear heartbreaking stories of abuses. This includes brutal accounts of violations of the rights to life, to personal integrity, and to dignity. And yet while they have suffered greatly, these survivors still have the strength to fight for the cause of justice for themselves, their loved ones, and their communities and to contribute to building a better system that will protect others—who may be strangers to them—in the future.

I came to realize in many of these cases that my clients often felt alienated by the legal system and retraumatized by the process of bearing witness.  In many criminal processes, including in my own home system, victims in criminal processes appear as mere witnesses to the prosecution, without legal standing of their own and with little ability to shape the proceedings that rely so heavily upon their testimony. I have seen circumstances in which in a well-meaning desire to advance justice results in victims becoming instrumentalized, rather than being treated as the subjects for whom justice was truly intended to serve.

It also became clear to me that while we strive to be advocates for victims, at the end of the day, whatever conviction or sentence is imposed will do little to mitigate the day-to-day realities of victims and their families. As my predecessor Ambassador Stephen Rapp, the former Chief Prosecutor of the Special Court for Sierra Leone, used to recount: many witnesses who appeared before the Special Court reminded him that while a guilty verdict may be welcome, “one cannot eat a judgment.” And, after testifying, many of these witnesses returned to a life of poverty and want, their life paths indelibly disrupted.

No amount of work we undertake as lawyers and diplomats can ever truly make whole those who have lost so much and those who are forced to endure trauma for the rest of their lives. But we can do is seek to empower them, give them a podium so that they can raise their own voices, and establish better systems to compensate or otherwise support them, their families, and their communities in their efforts to rebuild and move forward.

This is where victim funds and other efforts to pursue restorative and reparative justice become essential.

In the remainder of my remarks, I hope to highlight the essential role victim funds play in reparative justice efforts, drawing from our experience in the United States. From there, I will touch upon the critical role played by the Trust Fund for Victims in contributing to transitional justice efforts in ICC situation countries.

The Role of Victim Funds & Reparative Justice

In the United States, we continue to look for ways to implement the promises of reparative justice. Congress has iterated on different programs aimed at helping victims and their families recover—physically, psychologically, and financially—from the crimes inflicted on them. An early effort finds expression in the 1984 Crime Victims Act, which encouraged U.S. states to maintain programs that provide services to victims of crime. The Act established a Crime Victims’ Fund to pay out compensation from resources collected through criminal fines and special assessments paid by convicted federal offenders, but also gifts, donations, and bequests from private parties.

Since then, we have progressively expanded our thinking on how trust funds can support victims, including for historically marginalized communities. In 1994, for example, the U.S. Congress passed the Violence Against Women Act, a piece of legislation authored by then-Senator Joseph Biden. The Act imposed automatic restitution on perpetrators and authorized $1.6 billion over six years to assist survivors and prevent violence further against women and children. That law has since been renewed and strengthened four times, including in March of this year when President Biden reauthorized the program and expanded funding and programming to include increased services and support for survivors from underserved and marginalized communities, including for LGBTQI+ survivors of domestic violence and assault. The new law also improved the healthcare system’s response to domestic violence and sexual assault, including through enhanced training for sexual assault forensic examiners.

And in 2014, under then-President Barack Obama, the United States passed the Crime Victims’ Rights Act, federal legislation that firmly established participatory rights for victims in federal criminal proceedings that directly affected their interests. In this respect, the law is similar to provisions in the Rome Statute allowing for victim participation in proceedings. The U.S. law also established a right for victims to full and timely restitution as provided in law, a right to always be treated fairly, and a right to have their dignity and privacy respected.

As a federal nation, the individual states of the United States often incubate new ideas. In my home state of California, we’ve tried to think innovatively about how to support victims and best address their needs, such as legislation that launched medical centers focused on treating childhood trauma.

Victim funds help survivors and their families receive compensation for the physical, emotional, or financial harms they suffered as a result of criminal conduct directed against them. This can include:

• psycho-social counseling and medical bills, especially to address injuries that make it impossible for people to work or to fully participate in society;
• lost wages and other forms of livelihood assistance;
• temporary housing for a family fleeing abuse or displaced by the acts of an armed group;
• even costs associated with a broken door kicked down by an abuser.

These life-changing reparations can offer long-term support for survivors who need to heal, in every single sense of the word.

What our experience has shown is that for acts of reparative justice to be effective, they must be responsive to the lived realities of victims and the contexts in which victims live. And they cannot reproduce the very patterns of discrimination that facilitated the crimes in the first place. As such, they must be conceptualized, designed, and implemented in a manner that is conscious of gender and racial dynamics, including the challenges faced by marginalized groups, such as male victims of sexual violence and LGBTQI+ victims, who are particularly vulnerable in times of conflict.  Furthermore, reparations to women must not reproduce traditional gender roles, but rather empower women to achieve their own dreams and aspirations.  This means, at every step in the process, victims must not be the mere objects of reparative justice schemes. They must be full participants in their design and implementation, informing each step of the process.

We recognize that these values are shared by the international community and are reflected in numerous international instruments and institutions, such as

• The 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;
• The Global Fund for Survivors of Conflict-Related Sexual Violence, launched by the 2018 Nobel Peace Prize laureates Denis Mukwege and Nadia Murad; and
• Regional agreements, such as the European Union Victims’ Rights Directive.

They also find expression in national laws, such as the reparation programs that have been implemented in countries throughout South America and Africa.

We must all also recognize the distinctive role of reparative justice in post-conflict settings, together with other transitional justice measures focused on truth-telling, assigning responsibility for abuses, and ending impunity. Reparations provide recognition to survivors that they are not only victims but also rights holders. Reparations can promote trust in institutions and contribute to strengthening the rule of law. They can encourage social integration and reconciliation. They can help bridge divisions within societies and communities ripped apart by conflict or civil strife. And they can empower survivors and help them pursue their own life paths with dignity and agency.

The Work of the Trust Fund for Victims

This is why the work undertaken by the Trust Fund for Victims is so essential. The Rome Statute system is not only aimed at holding accountable the perpetrators of genocide, crimes against humanity, war crimes, and the crime of aggression, but also to offer justice—broadly defined—to victims. Thousands of victims are currently registered in cases being adjudicated by the ICC. Tens of millions are in need of assistance in situation countries ravaged by years, if not decades, of conflict and inter-generational trauma.

As embodied by the Trust Fund for Victims, the Rome Statute prioritizes the provision of tangible remedies to witnesses, victims, and their communities—our fellow human beings who so often are simply trying to survive with dignity in the aftermath of terrible events.  As a predecessor of mine, Ambassador David Scheffer, once noted, the Trust Fund is the “engine for relief for victims of atrocity crimes under investigation and prosecution by the Court” and the “much-needed bridge” between victims and the cases being prosecuted. I echo my predecessor’s remarks. A member of my team recently accompanied the TFV on a field study to Norther Uganda organized by the Irish Embassy. It was transformative experience for her to see firsthand the high level of need in these communities, even many years after the Lord’s Resistance Army had left the area, and she came home full of ideas about what more can be done.

In addition to the welcome donations by members of the Assembly of States Parties, it is essential that the Trust Fund identify dependable and diversified means of raising funds for it to achieve its important mandate.  This challenge will only be met with initiatives that engage the public and private sectors, including philanthropists, foundations, and ordinary people who recognize the potential of the Rome Statute system to contribute the full scope of justice, including the rehabilitation of victims. In this regard, I am heartened to hear that U.S. citizens will soon be able to make tax deductible donations to the Trust Fund, and I look forward to brainstorming about ways to reach the U.S. people whom I know will embrace the TFV’s mandate.

We all, states parties and non-party states, have a role to play to help ease the suffering of survivors. Indeed, I want to specifically re-thank our co-sponsors, the delegations of Finland and Sweden, for their consistent voluntarily contributions to the Trust Fund for Victims. We honor your consistent and reliable commitment, and the United States hopes to join you in your generosity soon.

Thank you!