Today, 3 March 2015, the International Criminal Court issued a ground-breaking judgment on reparations in which it confirmed a range of principles to inform the provision of reparations for victims of political violence and crimes, stating that the reparation scheme in the Rome Statute is the statute’s key feature. For Khulumani, the ruling of the ICC confirms the necessity of providing reparations on an inclusive and non-discriminatory basis to avoid setting up tensions and divisions within communities.
The ICC emphasised that reparations must go beyond a focus on punitive justice towards a more inclusive solution which encourages victim participation and recognises the need to provide effective remedies for victims. Other principles that are spelled out are:
That reparations must include the obligation to repair the harm caused to victims and to ensure that perpetrators account for their crimes;
That the principles established today should serve as the ground for applying, adapting, expanding upon and adding to reparations policy decisions;
That both direct and indirect victims as well as other legal entities such as non profit organisations and other institutions should be regarded as legitimate beneficiaries of reparations;
That reparations should not be applied unfairly or in a discriminatory manner and should address underlying injustices;
That reparations should be gender-inclusive and should ensure gender parity in their application; and
That victims and the members of the families and communities who meet the criteria of eligibility for reparations, should be able to participate throughout the reparations process and receive appropriate support for their participation.
The Court asserted that individual and collective reparations are not mutually exclusive and that they should be awarded in ways that minimise tensions and divisions within the relevant communities. They stated that where collective reparations are awarded, they should address the harm the victims suffered on an individual and collective basis. The Court explained that reparations may include symbolic, preventative and transformative aspects beyond restitution, compensation and rehabilitation. The judgment also highlighted that victims should receive appropriate, adequate and prompt reparations and that reparations awards should support activities that are self-sustaining to provide benefit to victims over an extended period of time
It is time for the South African government to revisit its approach to reparations in this country and to revise its policy to meet the standards set out in this judgment of the ICC.