CYIL 2013

AGATA FOKSA CYIL 4 ȍ2013Ȏ in the Kenya proceedings a common legal representation was designated to determine who the victims are. Article 68 serves as a basis for the determination of who can participate in the proceedings; there is, however, a problem of how to group the victims – for instance according to harm suffered in a similar way, or whether the attack took place in a collective or individual manner. Owing to the fact that every year more victims are willing to participate in proceedings, there is a need for more discussion and thoughts to be given before any proposals concerning changing the legal framework can be made. Issues which are still not clear include: possibilities to participate in the legal process (individual or collective), the registration process, the division of work between the Registry and legal representatives, as well as the review of the application system. It should be remembered that the victims should be consulted regarding those changes which will affect them. Conclusions The judgment issued on 14 March 2012 by the International Criminal Court in the Prosecutor v. Thomas Lubanga Dyilo case sets a precedent under international criminal law with regard to the issue of reparations. It emphasized the priority of reparations as a means to provide justice for victims, confirmed that the ICC is a body having real powers, unlike ad hoc tribunals, and constituted a departure from the common practise of usually leaving the process of reparations to states. Following the statement of Mr. Ruben Carranza, the ICC should remember that the recognition of the right to reparations is only a first step , and it should pay close attention to possible challenges the Trust Fund for Victims will face while implementing the reparation decision. It is important to have a clear and precise assessment system which will provide just and adequate compensation as closely as possible to the harm suffered, bearing in mind that there is no one-size-fits all solution. Following the example of the ECHR or the IACHR, the TFV should also take into account non-pecuniary damages, even though non-monetary damages were not determined in the Court proceedings. After assessing the damages, another challenging step is the disbursement of the awards. Bearing in mind the examples of the September 11th Fund and the Liberty Fund of the International Red Cross, widely criticized for not getting the money directly to the victims, and, on the other hand, the need of rebuilding those community structures without which the process of reparations cannot be completed, the TFV will have to find a solution which will balances these two interests. The Prosecutor v. Lubanga case proves the significance of the Court as a body of international law and, on the other hand, reveals that there is still a lot to be done with regard to the issue of reparations, as well as the victims’ participation. It should be remembered that the way the reparation process will be conducted will be closely monitored by the international community and will definitely determine the Court’s viability. Therefore the Trust Fund must do everything possible to not follow the mistakes described above and to tackle the obstacles wisely.