Practices of Reparations in International Criminal Justice

Abstract

This thesis examines the practical project to make international criminal justice more victimoriented by giving it an additional reparations function. Animated by the dissonance between the idea of reparations and its practice in international criminal justice, this study relies on the firstever reparations orders by the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) to complement legalistic accounts in the scholarly literature with a socio-legal inquiry. Drawing on practice theory, I use the notion of ‘practices’ as an analytical lens to show forms of social actions that together enable and constrain reparations. Rather than starting with preconceived notions of reparations, this approach draws attention to the multitude of practices of judges, lawyers, diplomats, NGO workers and others that often get overlooked in scholarly research. I ask: what are the practices associated with reparations in international criminal justice? And how do these practices shape the possibilities and meanings of reparations? Building on documentary analysis, ethnographically informed fieldwork and practitioner interviews, this study makes visible the often hidden practices that together form the social life of reparations. This thesis identifies what practices exist, how they come to be, how they work, and what meanings and effects they produce. My observations are structured along four phases of the social life of reparations – norm-making, engagement with conflict-affected populations, adjudication and implementation – and focus on two case studies: the cases Lubanga and Katanga at the ICC, concerning the Ituri district of the Democratic Republic of Congo, and Cases 001 and 002/01 at the ECCC in Cambodia. The thesis shows how contestations over sometimes irreconcilable visions of justice are at the core of the production of reparations. The incorporation of competing rationales into the legal frameworks of both Courts continues to affect their operations. The study demonstrates how actors at and around these Courts actively mediate these tensions, through their practices, when they are giving effect to their reparations mandates in different social contexts. I identify a range of communicative, representational and adjudicative practices that simultaneously constrain action and become sources of flexible adaptation to make reparations fit new circumstances. However, these practices are not able to overcome the limitations that are inherent in the Courts’ juridical approach. The thesis indicates that the promise of more 'victim-oriented justice' through reparations has been realised only superficially, and that reparations remain marginalised and subordinated to the dominant logics of the criminal trial. I call for an appreciation of the limits of recasting international criminal justice as a site for realising reparative ambitions. This does not mean that there is no role for reparations in international criminal justice. I argue that the role is a more modest one than the literature or advocates often suggest – one that is rooted in the Courts’ symbolic powers to recognise, rather their ability to deliver tangible and equitable reparations to a large number of survivors. Show more