The ICC’s Trust Fund for Victims: A vital intermediate engagement with victims of systematic human rights violations
Author: Tabitha Munyaka
In 2002, the International Criminal Court (ICC) was established by the Rome statute to prosecute crimes of genocide, crimes against humanity, war crimes, and crimes of aggression(1). The role of the ICC is to help ‘put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,’ to ‘guarantee lasting respect for and the enforcement of international justice.’(2)
The legal framework governing the Trust Fund for Victims
A unique aspect of the ICC, unknown to many, is the Trust Fund for Victims (TFV) – also created in 2002 by the Assembly of State Parties under Article 79 of the Rome Statute. The Regulations of the Trust Fund for Victims (Regulations) are specifically responsible for regulating its mandate and operation. As stated by the Assembly of State Parties, the TFV was formed ‘for the benefit of victims of crimes within the jurisdiction of the Court, and of families of such crimes’, providing it with two mandates: first, the implementation of Court-ordered reparations awards against a convicted person when directed by the Court to do so; second, its general mandate which is assisting victims, and their families suffering from ongoing physical, psychological, and/or material harm through voluntary contributions from donors.(3)
Victims eligible to receive funds from the TFV are further defined under Rule 85 of the Regulations as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court’ and ‘may include organisations or institutions that have sustained direct harm to any of their property.’(4) Consequently, the scope of beneficiaries is wide.
Analysis of the TFV’s court-ordered reparation mandate
Court-ordered reparation is one of the mandates granted to the TFV under Article 75(2) of the Rome Statute, which States, ‘where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in Article 79.’ Thus, the TFV’s Court-ordered reparations are an intermediary role that implements the ICC’s orders for reparations made against a convicted person.
It is of no surprise that, with the plight of victims in post-violence conflict, the TFV’s Court-ordered reparations remain restrained due to the ICC’s inherent weakness in issuing awards due to the shocking low number of convictions made; with its first award dating back to 2017(5), and thus far, in 3 cases since its inception in 2002.(6)
This is despite the inimical effects of international crimes on the well-being of a great number of victims. Consequently, the ICC has continuously recognised that it suffers from an expectation management problem concerning victims, given the fact that ‘the types of crimes dealt with by the ICC cause loss and suffering on a massive scale’. Consequently, the linkage of the TFV’s Court-ordered reparations mandate under the ICC suffers from its inherent weakness in the need for conviction for the TFV to issue reparations to victims. The case of Prosecutor v Thomas Lubanga Dyilo further reflects these above-mentioned issues.
It is also worth noting that the TFV’s reparations mandate is further linked to resources collected through fines or forfeiture and awards for reparations as stipulated in Section II of the Regulations. Therefore, the TFV’s Court-ordered mandate extends as far as determining the use of such resources regarding the scope of beneficiaries and the nature of the awards, per any instructions given by the Court.
Analysis of the TFV’s assistance mandate
The TFV’s assistance mandate is the second mandate of the TFV. It addresses material, physical and/or psychological harm suffered personally by victims falling under the scope of Rule 85 of its Regulations. While the definition of ‘assistance’ in the TFV’s mandate continues to plague scholars due to a lack of legal definition under the Rome Statute and Regulations,(7) there is a general consensus that it has provided the TFV with room to interpret its mandate over the ‘use of other resources for the benefit of the victims’ as bestowing it with a flexible mandate beyond reparations over assistance, with no interference from the ICC. Thus, where the TFV provides assistance from its other resources, the Rules do not require a link to a limiting criterion such as ongoing proceedings before the ICC.
The ICC has also acknowledged the TFV’s discretionary ‘assistance’ mandate in Lubanga , urging it to extend its assistance initiatives to victims falling outside the scope of an ICC’s reparation order(10).
In addition, on 1 February 2021, the TFV launched an assistance program for victims of Sexual and Gender-Based Violence (SGBV) in the context of the post-election violence in Kenya, despite the ICC trial chambers’ decision to vacate charges against the former president, Uhuru Kenyatta, and William Ruto, that limited the ICC reparation scheme under TFV(11). As of now, its assistance mandate has recorded tangible assistance (material) to over 400,000 victims in the Democratic Republic of Congo and northern Uganda in the last 5 years alone.
Consequently, the victim-centred approach under the TFV’s assistance mandate is to be hailed for its continuous success. Nevertheless, ongoing literature agrees on the potential of the TFV’s assistance mandate compared to the ICC’s reparation awards, in providing a wider form of assistance (beyond material, physical and physiological harm) to victims of international crimes. However, currently, there is a lack of proposals on how this is to be effected.
Conclusion
The TFV is indeed a sui generis mechanism under the ICC. Nevertheless, the distinction between its two mandates denotes its scope on its assistance mandate as broader and indifferent to convictions by the ICC, by providing assistance to victims of international crimes for psychological, physical and material harm. As a result, and with good reason, the TFV’s assistance mandate continues to dominate its work.
- UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998.
- https://www.cfr.org/backgrounder/role-international-criminal-court> accessed 15 February 2024.
- ICC-ASP/4/Res.3, Regulations of the Trust Fund for Victims, 3 December 2005.
- Rule 85, The Rule of Procedure and Evidence of the International Criminal Court, (Doc. PCNICC/2000/1/) 9 September 2002.
- Regulation 48 and 49, The Regulations of the Trust Fund for Victims.
- Prosecutor v Al Mahdi (Ahmad Al Faqi), Decision, ICC-01/12-01/15, ICC-01/12-01/15-84-Red, ICL 1700 (ICC 2016). See, The prosecutor v Germain Katanga, judgement, ICC-01/04-01/07. See, The Prosecutor v. Thomas Lubanga Dyilo, Judgment, ICC-01/04-01/06-2842, TC1, 222.
- Asaala E, ‘Towards an effective ICC Assistance Program in Kenya for the Victims of 2007/8 Post-Election Violence’ in Bernard Ntahiraja, Gerhard Kemp (eds) International Criminal Justice in Africa, 2020, Konrad Adenauer Stiftung, 2020, 67-86.
- Assistance programmes | The Trust Fund for Victims> on 15 February 2024.
- https://www.trustfundforvictims.org/index.php/en/locations/northern-uganda#:~:text=In%20Uganda%2C%20the%20Trust%20Fund,psychological%20rehabilitation%2C%20and%20livelihood%20support> On 7 January 2023.
- ICC-01/04-01/06-2917, Defence team for Mr Thomas Lubanga Dyilo, Appeal of the Defence for Mr Thomas Lubanga against Trial Chamber I, Decision establishing the principles and procedures to be applied to reparation, 7 August 2012, 6 September 2012.
- See Annex 1 to the Notification by the Board of Directors in accordance with Regulation 50 (a) of the Regulations of the Trust Fund for Victims of its conclusion to undertake further specified activities in the Republic of Kenya, 29 April 2022, ICC-01/09-171-Anx1.