CYIL 2013

AGATA FOKSA CYIL 4 ȍ2013Ȏ individual approach, seems to be appropriate solution. However, there is a need for a clearly defined and precise system through which the Trust Fund would assess the needs of each individual, family, town, or community. Decision ICC-01/04-01/06 concerning the Trust Fund for Victims’ First Report on Reparations can undeniably be considered an important and necessary step; but it is rather a beginning of what still needs to be established. It is believed that quantifying loss never accurately calculates the loss suffered. 30 Redress, an international victims advocacy watch group, expressed an opinion that ‘ no organization has proven capable of consistently ensuring that just and adequate reparation is made in all cases to those whose fundamental rights have been violated’; 31 therefore one of the main challenges which the TFV will face is to ensure just and adequate compensation as closely as possible. Due to the fact that Rule 97 of the Rules (RPE) does not take account of non monetary reparations or restitution for intangible items, the TFV should provide a form of compensation for all tangible as well as intangible loss, including liberty, family life, citizenship, and, as postulated by Amnesty International, harm to reputation and dignity, lost opportunities and other factors included in its recommendation list. 32 Even though the need to award non-pecuniary damages is widely recognized by the international community, up till now there has been no clear solution to the problem of how the TFV should assess these losses. 33 The fund could take an example from the ECHR, which compensates for any non-pecuniary damage that can be proven to have diminished an individual’s life, such as distress, abandonment, impaired way of life or humiliation, 34 or from the IACHR, which takes an even broader interpretation by assuming that any person subject of state aggression and abuse will experience moral suffering. 35 The TFV should create mechanisms allowing for the assessment of those non-monetary damages that were not determined in the Court proceedings. Moreover, these should be awarded as a lump sum distinct from the pecuniary awards and should not in any case be used as punitive devices against the wrongdoer, but rather be standardized to the extent possible according to the loss of faculty and moral condition of each victim, taking account of examples such as the IACHR and the ECHR. The key element in providing reparations for victims is consistency, as it prevents arbitrary and unfounded awards.To guarantee this, compensation bodies tend tomake uniform grants to each victim within a given class, instead of trying to make various 30 ibid., p. 223. 31 Stuart Maslen, Promoting the Right to Reparation for Survivors of Torture: What Role for a Permanent International Criminal Court , Redress- ICC Report Summary last accessed 20 December 2012,15 37 . 32 Mark Jennings, Article 79: Trust Fund, Commentary On the Rome Statute of The International Criminal Court: Observer’s Notes , Otto Triffterer ed., Nomos Verlagsgesellschaft, 1999. 33 Peter G. Fischer, The Victims’ Trust Fund of the International Criminal Court- Formation of a Functional Reparations Scheme, Emory International Law Review , Spring 2003, pp. 226-229. 34 Konig v. The Federal Republic of Germany (1978) 36 Eur Ct. H.R (ser.A) at pp.16-17. 35 Douglas Laycock, Modern American Remedies: Cases and Materials 175 (2nd ed. 1994).