Pieter W.I. de Baan is the Executive Director of the Trust Fund for Victims at the International Criminal Court (ICC). He agreed to speak with the Open Society Justice Initiative last month and answer questions about the work of the Trust Fund and its role in assisting victims of mass atrocities. This article also appears on websites monitoring the trials of Jean-Pierre Bemba and Thomas Lubanga, as well as the ICC Kenya proceedings.

Jennifer Easterday: What does the Trust Fund for Victims do?

Pieter W.I. de Baan: The Trust Fund for Victims (TFV or Trust Fund) is the first of its kind in the global movement to end impunity and promote justice. It supports activities which address the harm resulting from the crimes under jurisdiction of the International Criminal Court (ICC or Court): victims of war crimes, crimes against humanity and genocide committed after 1 July 2002, and their families. The TFV develops its activities with victims themselves as partners, helping them rebuild their families and communities and return to a dignified and contributory life within their communities.

JE: What is the mandate of the TFV?

PdB: The Trust Fund for Victims fulfils two mandates for victims of crimes under jurisdiction of the ICC, and their families:

1. Reparations: implementing Court-ordered reparations awards against a convicted person when directed by the Court to do so. While several cases are pending before the International Criminal Court, none has reached the reparation stage to date.

The TFV’s reparations mandate is linked to a criminal case against an accused before the International Criminal Court. Resources are collected through fines or forfeiture and awards for reparations and complemented with “other resources of the Trust Fund” if the Board of Directors so determines.

Reparations to, or in respect of victims, can take many different forms, including restitution, compensation and rehabilitation. This broad mandate leaves room for the ICC to identify the most appropriate forms of reparation in light of the context of the situation and the wishes of the victims and their communities. Reparation is in no way limited to individual monetary compensation; it could instead include collective forms of reparation and measures that could promote reconciliation within divided communities.

2. General Assistance: using voluntary contributions from donors to provide victims and their families in situations before the Court with physical rehabilitation, material support, and/or psychological rehabilitation. This mandate is not linked to a trial and does not require a conviction to take place. Rather, general assistance is provided to victims within the broader situations where crimes are alleged to have occurred.

More detailed information on types of support and activities is presented further below.

JE: How does the TFV define who a victim is?

PdB: The definition of victims is set out in Rule 85 of the Rules of Procedure and Evidence. This Rule is applicable both to the Court and the Trust Fund. Rule 85 states:

“For the purposes of the Statute and the Rules of Procedure and Evidence:

(a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;

(b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.”

JE: Who decides who is eligible for reparations?

PdB: With respect to the reparations mandate, the Court/Chamber will decide who may be an eligible victim to receive reparations. Under the Regulations of the Trust Fund, the Chamber may also task the Trust Fund to do identify eligible victims within clear parameters set by the Chamber. Under the reparation mandate only those victims who were directly or indirectly affected by crimes committed by a convicted person can benefit.

JE: Can victims other than those who have been affected by the crimes committed by a convicted person benefit from the TFV?

PdB: With respect to the general assistance mandate, not only the victims who suffered harm as a result of a crime committed by a convicted person can benefit but all victims within a situation who suffered crimes under the Statute. This allows the Trust Fund to offer assistance to a wider scope of victims and before the Court has convicted a perpetrator. For example, the Trust Fund offers assistance to victims of crimes under the Rome Statute in northern Uganda, where, so far, it has been impossible to execute the arrest warrants issued by the Court.

JE: What if a person does not qualify as a victim before the ICC, can they still receive benefits from the TFV?

PdB: Both the Court and the Trust Fund use the same definition of who a victim is which is laid down in Rule 85 of the Rules of Procedure and Evidence.

However, the Trust Fund, in particular under its general assistance mandate can address a much wider scope of victims.

If a person has applied to the Court to participate in a certain trial but is deemed by the Chamber not to qualify to participate in those proceedings, in particular because he/she cannot demonstrate that the harm she/he suffered relates to a crime that is being charged in this trial before the Court, he/she may still receive general assistance, provided that he/she falls within the definition of Rule 85 of the Rules of Procedure and Evidence.

In addition, a victim who may not benefit from Court-ordered reparations which are closely linked to the charges of which the Court finds a perpetrator guilty, may still be eligible for receiving general assistance.

JE: How can victims become involved with the ICC? At what stage of the proceedings can they become involved?

PdB: The Rome Statute contains provisions which enable victims to participate in all stages of the proceedings before the Court.

Hence victims may file submissions before the Pre-Trial Chamber when the Prosecutor requests its authorisation to investigate. They may also file submissions on all matters relating to the competence of the Court or the admissibility of cases.

More generally, victims are entitled to file submissions before the Chambers of the Court at the pre-trial stage, at trial, and during the appeals process.

JE: Is there a particular time when victims have to apply to participate in proceedings?

PdB: The rules of procedure and evidence stipulate the appropriate time for victim participation in proceedings before the Court. They must send a written application to the Court Registrar and more precisely to the Victims Participation and Reparation Section, which must submit the application to the competent Chamber to decide on the logistics of victims’ participation in the proceedings.

JE: What does the application have to show?

PdB: The Chamber may reject the application if it considers that the person is not a victim whose crime falls within the jurisdiction of the Court. Individuals who wish to submit applications to participate in proceedings before the Court must demonstrate in the application that they are victims of crimes which come under the competence of the Court in the proceedings commenced before it.

JE: Are there forms to make these applications?

PdB: The Victims Participation and Reparations Section has prepared standard forms to make it easier for victims to file their application to participate in the proceedings.

JE: Is the application for participation the same as the application for reparations? Do victims need to fill out different forms?

PdB: When submitting an application using the standard form it is possible for victims to request participation, or reparations, or both. These forms as well as a handbook explaining the applications procedure can be found on the Court’s website. See here.

JE: Does the victim himself or herself have to make the application, or can someone make the application on their behalf?

PdB: An application may be made by a person acting with the consent of the victim, or in their name when the victim is a child or if any disability makes this necessary.

JE: Do victims have to file claims with the Court in order to benefit from reparations or general assistance?

PdB: For victims to benefit from reparation awards, it will depend on the judges whether they require victims to have filed a reparations claim form with the Court (Victims Participation and Reparation Section). It is possible under the applicable law, and in particular the Regulations of the Trust Fund, that the Court may award reparations also to victims who did not file any reparations claim with the Court.

For victims to benefit under the Trust Fund’s general assistance mandate there is no need to register with the Trust Fund. The activities for the benefit for victims under the general assistance mandate are carried out by partner organisations in the field. The Trust Fund works with international non-governmental organizations, local grassroots organizations, victims’ groups, women’s associations, and faith-based groups, all rooted in their local communities. The TFV at present has an extensive network of international and local implementing partners (both direct grantees and sub-grantees): 34 in total (20 in the DRC and 14 in northern Uganda), including 8 international and 26 local. It will soon have partners also in the Central African Republic.

JE: Does the TFV have to wait until the end of a trial in order to provide support to victims?

PdB: Under its rehabilitation mandate, the Trust Fund for Victims is guided by its Regulations to provide assistance to victims within the jurisdiction of the Court. This means that the TFV can engage with victims outside of the scope of any particular trial and prior to the conclusion of proceedings.

JE: What kind of support does the TFV provide?

PdB: The Trust Fund provides three legally defined categories of support to victims:

• Physical Rehabilitation which includes reconstructive surgery, general surgery, bullet and bomb fragment removal, prosthetic and orthopaedic devices, referrals to services like fistula repair and HIV and AIDS screening, treatment, care and support;
• Psychological Rehabilitation which includes both, individual and group-based trauma counselling; music, dance and drama groups to promote social cohesion and healing; community sensitization workshops and radio broadcasts on victims’ rights, information sessions and large-scale community meetings. Community awareness responses may include broad-based community education on sexual and gender-based violence and the links between peace, justice, reconciliation and rehabilitation; and
• Material Support initiatives may include livelihood activities, vocational training, or access to referral programmes that offer income generation and training opportunities to focus on longer-term economic empowerment. Material support may also include education grants for victim survivors and their children.

JE: Are there special considerations for victims of sexual and gender-based violence (SGBV)?

PdB: Yes. An important cross-cutting area of support is to victims of sexual and gender-based violence, through providing integrated economic security, fostering reconciliation (at the personal, family, and community levels) and access to physical and psychological rehabilitation.

JE: How are the needs of victims taken into account for TFV projects?

PdB: To extent possible, the TFV supported projects integrate different types of support into assistance packages that are responsive the particular needs of victims. The TFV works with intermediary organisations – local and international implementing partners to ensure efficient and adequate delivery of services.

JE: Where does the TFV operate?

PdB: The Trust Fund may operate in situations before the International Criminal Court. Currently these are northern Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic; the Republic of Kenya; Libya and Ivory Coast. Prior to initiating any operations in a situation country, the Trust Fund conducts a needs assessment through consultations with victims, organizations and other stakeholders.

JE: What kinds of projects does the TFV engage in?

PdB: At present, the Trust Fund is implementing 31 projects for the direct benefit of an estimated 42,000 victims of war crimes and crimes against humanity in the situations of northern Uganda and the Democratic Republic of the Congo. It is currently evaluating project proposals with a view to starting activities in Central African Republic which will address victims of SGBV crimes in the near future.

More detailed information about the TFV’s activities can be found at our website, including our most recent progress report.

JE: How does the TFV obtain funds for reparations?

PdB: There is a variety of sources that may generate resources to pay for reparations, which are described in the Regulations Trust Fund for Victims, adopted by the Rome Statute’s Assembly of States Parties.

The primary source is a person convicted by the Court: money and other property collected through fines or forfeiture, as well as resources collected through awards for reparations.

If these resources are insufficient or should the convicted person turn out to be indigent, there is a possibility that the Board of Directors of the Trust Fund for Victims decides to allocate resources originating from voluntary contributions to the Fund (therefore not part of the Court’s regular budget) be used to complement a reparations award. To this end, the Trust Fund currently maintains a reserve of 1 million euros, which represents roughly one third of total available resources.

Finally, the Assembly of States Parties may decide to allocate to the Trust Fund further resources, other than assessed contributions. These could also be used to fund reparations.

JE: What is your role at the TFV?

PdB: My role as Executive Director is to support the TFV Board of Directors in their responsibilities of strategic decision making and the custodianship of the Fund’s resources. On behalf of the Board, I oversee the daily management of the TFV Secretariat, including the use of the Fund’s resources. Other tasks include the management of relations with the principal stakeholders of the Rome Statute, which include States Parties, Court organs, civil society and of course representatives of victims groups. An important responsibility is raising funds – which may come from States Parties, other countries, as well as from private organizations and individuals.

JE: What do you hope for the future of the TFV?

PdB: My hope and ambition for the TFV is to see it develop into an inspirational, credible and effective model of international reparative justice – linked to the Court and responsive to the rights and needs of victims who are within the jurisdiction of the ICC.