1. Introduction
As the only treaty-based supranational criminal jurisdiction the International Criminal Court (“ICC”) draws its legitimacy from widespread consultations and negotiations among States and civil society that led to the adoption of its Statute. Of central concern to those stakeholders was the status of victims of atrocity crimes. Consequently, beyond the novel idea of their participation in criminal proceedings, the ICC Statute also addresses the question of reparations. According to article 75(1) of the ICC Statute, in establishing victim reparations principles,
the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. [emphasis added]
While this provision mandates the establishment of reparation principles, it also enables the Chambers to determine the scope and extent of damage, loss, and injury in relation to victims. Before determining the forms of reparation, it may be relevant to determine the type of harm suffered that may ground a reparation application. In order to provide a basis for reflections for further ICC reparations proceedings, this study focuses on public international law’s typology of damage/harm/loss/injury. In showing the breadth of inter-State claims, it argues for the progressive use of public international law methods to contribute to establishing the legal boundaries of reparation claims before the ICC. The adoption of this legal method may allow for a broader realization of reparations in line with the call for their use as a means of reaching the wider goals of transitional justice that extend outside of criminal trials.
Preliminarily, however, it is necessary to establish the relevance of such a public international law enquiry for the practice of the ICC. Rule 85 of the ICC’s Rules of Procedure and Evidence (“ICC Rules”), provides that:
(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.
Thus, victims may include both natural and, under some qualifications, legal persons. In contrast, only natural persons may be held responsible for the commission of harm, since the ICC Statute addresses individual criminal responsibility. While the ICC will continue to consider the practice of the other supranational criminal tribunals as they, too, address individual criminal responsibility, where provided for, the reparations-related jurisprudence in those jurisdictions is embryonic. It follows that the ICC will turn to other horizons, such as State practice, which abounds with reparations cases. Beyond discussions on the extent, if any, to which the ICC Statute’s article 21 includes the practice of supranational criminal jurisdictions and inter-State responsibility mechanisms, the ICC has been regularly referring to that body of law, at minimum as guidance on interpreting the ICC Statute.Footnote 1 In determining the types of injury likely to result in reparations, the ICC will therefore also be guided by inter-State responsibility mechanisms insofar as parallels may be drawn between State responsibility and individual criminal responsibility.Footnote 2 Accordingly, this analysis could inform the future considerations of the ICC while shedding light on the legal methods used in public international law to determine particular types of injury.
State responsibility refers to the legal consequences of the breach of an international obligation by a State, including the obligations of the State that committed the violation and the rights of the State affected by it. As held by the Permanent Court of International Justice (“PCIJ”) in the Chorzów Factory judgment, the responsible State has the obligation to make reparation for the harmful consequences flowing from that act.Footnote 3 The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (“ILC Draft Articles”) affirm this traditional State-centric approach and crystallize customary international law on State responsibility.Footnote 4 Article 34 (“Form of Reparations”) of the ILC Draft Articles further sets out restitution, compensation, satisfaction, and guarantees of non-repetition as States’ legal tools to remedy injuries.Footnote 5
Given, however, that the beneficiaries of reparations before the ICC are natural and legal persons—as opposed to States in inter-State reparations claims—attention will first be turned to how inter-State practice may assist the ICC. Accordingly, the focus will be on the types of injury that may give rise to reparations in relation to victims, as defined in rule 85 of the ICC Rules. This exercise must be conducted cautiously, given the above difference between claimants. State responsibility distinguishes injuries in accordance with Statehood indicia as provided by article 1 of the Convention on Rights and Duties of StatesFootnote 6 and distinguishes between an injury caused to the State “directly,” through its territory and/or government, and “indirectly,” through its nationals.Footnote 7 Given the fact that before the ICC, victims are all but the State itself, this study focuses on injury caused indirectly to it, regardless of the fact that the State will almost always bring the claim.Footnote 8
Before determining the types of injury susceptible of reparation, it is important to first note State responsibility’s lack of standard terminology to describe “injury,” which includes “damage,” “harm,” and “loss” interchangeably. For clarity purposes, this study has adopted the term “injury” when referring to the wrong caused by an internationally wrongful act, since it is a comprehensive term for any wrong done to both an individual and a legal entity. “Damage” may be most suited for damage to object and property.
Second, in accordance with article 31(2) of the ILC Draft Articles, “injury” may be “material or moral.”Footnote 9 As will be seen, here too, inter-State terminology lacks uniformity, using terms such as “material and non-material damage,” “pecuniary” and “non-pecuniary”/“moral”/“mental” injury, and, sometimes, “mental or moral injury.” Under the ILC Draft Articles, material injury generally refers to “damage to property or other interests of the State and its nationals which is assessable in financial terms,” such as unlawful expropriations, the confiscation of property or the seizure of vessels.Footnote 10 Often difficult to assess in financial terms, moral injury includes “individual pain and suffering, loss of loved ones or personal affront associated with an intrusion on one’s home or private life.”Footnote 11 Unless otherwise provided, this study will follow the ILC Draft Articles’ terminology of material and moral injury.Footnote 12
The following sections will develop a typology of injury in State responsibility that is likely to assist the ICC. This victim-oriented approach to the legal doctrine will focus on indirect injury sustained by States, that is, injury to States’ nationals: natural persons and legal persons. Where applicable, armed activities and peacetime will be differentiated, in order to accurately assist the ICC and illuminate how inter-State practice has categorized a broad range of harms in reparation claims.
2. Injury to Natural Persons
Like the ICC,Footnote 13 State responsibility recognizes that natural persons can suffer both direct and indirect injury—that is, injury to third persons.
2.1. Direct Injury
As the types of injury suffered by natural persons cannot be considered in complete isolation from each other, reparations awards often do not specify what reparations relate to which type of injury. This study attempts, however, to separate them, so as to optimize the ICC’s accurate categorization of victims’ harm.
2.1.1. Personal Injury
Personal injury may consist of material injury and moral injury.
2.1.1.1. Material Injury
2.1.1.1.1. Bodily Injury
This study will consider bodily injury as all physical injury caused to the body of a natural person.Footnote 14 Generally, awards have been granted to States on behalf of natural persons who have suffered serious personal injury including rape;Footnote 15 beatings, and wounding;Footnote 16 abductions and disappearances;Footnote 17 forced labor and conscription;Footnote 18 unjustified arrest or detention;Footnote 19 but also as a result of the damage to or destruction of medical facilities, including harm caused to bedridden landmine victims and women undergoing difficult births.Footnote 20
An early case concerns injury to US nationals during the 1912 Panama riots, with US$50 to $100 indemnities awarded for “injuries to the head and face.”Footnote 21 The late twentieth century provides armed activities-related examples. In the USS Liberty (United States v Israel) case, having mistakenly attacked a US Naval Ship in 1967, Israel apologized and provided compensation in relation to the dead and injured crew.Footnote 22 Following the Second Persian Gulf War, the UNCC Form B claims identified claims where serious personal injury involved a variety of bodily injuries.Footnote 23
2.1.1.1.2. Financial Loss
Personal injury may result in “medical expenses which the victim had to incur, pecuniary loss suffered during convalescence and, if the injuries are of a permanent character or have in some manner affected the person’s health, limitations on future capacity for work.”Footnote 24 In the Corfu Channel case, the ICJ upheld the United Kingdom’s claim for material damage to natural persons—namely, “the cost of pensions and other grants made by it to victims or their dependents, and for costs of administration, medical treatment, etc.”Footnote 25
2.1.1.2. Moral Injury
Inter-State reparations have often addressed moral injury to natural persons.Footnote 26 In the 1923 Lusitania cases, Umpire Parker listed injuries that were cognizable under the US-German Mixed Claims Commission, and he included “mental suffering, injury to [one’s] feelings, humiliation, shame, degradation, loss of social position or injury to [one’s] credit or to his reputation.”Footnote 27 Such injuries are
very real, and the mere fact that they are difficult to measure or estimate by money standards makes them none the less real and affords no reason why the injured person should not be compensated [...]Footnote 28
However, “[m]ental suffering […] must be real and actual, rather than purely sentimental and vague.”Footnote 29 Decades later, the ICJ stated in the Ahmadou Sadio Diallo case that mental and moral injury “covers harm other than material injury which is suffered by an injured [...] individual.”Footnote 30
The manifestations of “moral injury” are extremely diverse and can encompass “attacks against the honour or reputation” as well as “the moral injury resulting from a business failure.”Footnote 31 Various types of moral injury can arise in both armed activities and peacetime.
2.1.1.2.1. Armed Activities
Anguish resulting from brutal situations has been recognized as moral injury, as provided in the Lusitania cases. These cases arose out of Germany’s torpedoing the British ocean liner Lusitania, during the period of United States neutrality in World War I. Of the 1,198 dead, 128 were US citizens. Umpire Parker awarded reparations to passengers who endured “mental anguish” after being thrown into the sea or experienced “nervous prostration” from the shock of the ship’s sinking.Footnote 32 He awarded $13,200 to a passenger who suffered “mental anguish in an acute form.” Although he did not specify the award’s grounds, Umpire Parker noted that the passenger’s other personal injuries were not permanent (except a knee injury), and that she had suffered only $1,200 in property damage—suggesting that a portion of the $13,200 stemmed from her mental suffering.Footnote 33
In the Eritrea-Ethiopia Claims Commission (“EECC”) context, noting that some of the institutions dedicated to religion had been ransacked, desecrated, or used for purposes other than worship, and that the damaged or looted religious items “may have unique cultural value,” the EECC recognized the “concern and distress many congregations experienced.”Footnote 34 It also held Ethiopia liable for wrongfully expelling “an unknown, but considerable, number of dual nationals” and for unlawfully depriving them of their Ethiopian nationality.Footnote 35 While it is not clear how the EECC qualified this injury, these measures appear to have amounted to moral injury, at a minimum.
The most frequent examples of inter-State claims for moral injury are ill treatment upon arrest or imprisonment. In the McNeill case, the British-Mexican Claims Commission granted reparation (although without clearly stating grounds) following a request regarding “physical, moral and intellectual damages” suffered during a brief imprisonment and death threat by Mexican rebel forces.Footnote 36 Similarly in the Chevreau case, France brought a claim on behalf of the widow of Chevreau,Footnote 37 who had been arbitrarily arrested, detained, and deported, on suspicion of acting as an enemy (Germany) agent, by the British forces occupying Persia during World War I.Footnote 38 The Arbitrator held that the “said acts caused M. Chevreau moral and material damage” [emphasis added].Footnote 39
The UNCC Category C Claims foresaw non-material damage including personal injury and mental pain and anguish.Footnote 40 The EECC found that “many POWs suffered long-lasting damage to their physical and mental health” (or “physical and mental injuries”),Footnote 41 and that rape victims suffered “physical, mental and emotional harm.”Footnote 42
These injuries present the features of those sustained by the victims of atrocity crimes under the ICC, who may claim that they directly suffered both material and moral personal injury and seek reparations.
2.1.1.2.2. Peacetime
Moral injury suffered as a result of unlawful arrest, detention, and/or expulsion has also been recognized in peacetime situations.Footnote 43
In the Diallo case, Guinea claimed reparation for moral injury (described as non-material injury or mental and moral damage in the compensation judgmentFootnote 44) on behalf of its national, Diallo, following his unlawful arrest, detention and expulsion from the DRC.Footnote 45 Diallo was twice detained for more than two months.Footnote 46 Guinea decided to exercise diplomatic protection over Diallo’s rights, as if the injury had occurred to the State itself.Footnote 47 In its judgment on the merits, the ICJ found that the DRC had violated Diallo’s rights and was obliged to provide compensation for both material and moral injuries.Footnote 48 The detention duration was deemed to be unjustifiably long.Footnote 49 Noting that Diallo had resided in the DRC for decades and had “engaged in significant business activities” there,Footnote 50 the ICJ’s 2012 decision on compensation held, as an aggravating factor, his expulsion after his attempt to recover debts believed to be owed to his companies by the Zairian State or companies.Footnote 51 To establish the existence of non-material injuries, the ICJ reviewed contextually the wrongful acts, and assessed whether such injuries were their “inevitable consequence.”Footnote 52 The ICJ found it “reasonable to conclude” that psychological suffering and loss of reputation were inevitable consequences of his wrongful arrest, detention, and expulsion and awarded financial compensation for his moral injury.Footnote 53
2.1.2. Material Damage—Property: Damage and Confiscation
Injury sustained by natural persons may include both damage to and confiscation of their property, during both armed activities and peacetime.
2.1.2.1. Armed Activities
It is not unusual to address material damages to natural persons in the context of atrocity crimes, such as war crimes. In the British Claims in the Spanish Zone of Morocco, the United Kingdom and Spain agreed to submit to arbitration claims of British subjects for property destruction and looting during civil commotion.Footnote 54 The post-World War II French-Italian Conciliation Commission (“FICC”) provides an early example of a State seeking reparation on behalf of its national for damage to or confiscation of property. In the Hénon case, a French national made a claim in relation to her house that had been requisitioned by Italy to house refugees between 1943 and 1945.Footnote 55 As a result, the building was privately restituted to her, with compensation resulting from the occupation of,Footnote 56 and war damages caused to, the building.Footnote 57
Later, in what appears to be its first recognition of “the right to individual reparations for violations of international human rights and international humanitarian law,”Footnote 58 the ICJ held in the Wall advisory opinion that Israel’s construction of a wall in Occupied Palestinian Territory, which had destroyed “land, orchards, olive groves and other immovable property seized from any natural or legal person” [emphasis added], was unlawful.Footnote 59 While not expressly characterizing these acts as damage, this holding clearly assists in categorizing them as damage suffered by natural persons as a result of the destruction of their private property. The EECC Final Award found that Ethiopian civilians “frequently lost property to looting or unlawful destruction” by Eritrea.Footnote 60 The EECC also awarded reparation for looting, stripping, and burning of structures, killing livestock, and other destruction of or damage to property by Ethiopia.Footnote 61
2.1.2.2. Peacetime
In the early twentieth century, inter-State reparation mechanisms concerned also property owned by natural persons but used for religious purposes. After the proclamation of the Portuguese Republic, France, Spain, and the United Kingdom submitted claims to an arbitral tribunal, in respect of property seized by Portugal but belonging to their nationals,Footnote 62 natural persons who had, inter alia, rentedFootnote 63 or made their property available for no fee to religious associations.Footnote 64 In several cases, restitution of property by Portugal was awarded.Footnote 65 Later, in the Rhodopian forests case, the Bulgarian confiscation of some forests led to an arbitral compensation award to Greece for the injury caused to its nationals.Footnote 66
In the Diallo compensation decision, the ICJ considered reparation for material injury suffered by DialloFootnote 67 under three types of damage: personal property, loss of remuneration, and deprivation of potential earnings.Footnote 68 Guinea alleged that Diallo’s “abrupt expulsion prevented him from making arrangements for the transfer or disposal of personal property” from his apartment, and caused the loss of assets held in his bank accounts.Footnote 69 Although these are accepted forms of material damage, the ICJ was not convinced that such loss was caused by the DRC’s unlawful conduct, due to the lack of causal link and evidence.Footnote 70 Nonetheless, the ICJ accepted that after over thirty years in the DRC, Diallo would have accumulated some personal property and, consequently, suffered material injury.Footnote 71 With regard to lost remuneration resulting from unlawful detention, the ICJ observed that such claims are generally “cognizable as a component of compensation.”Footnote 72 However, the ICJ found that Guinea had failed to establish that Diallo was receiving remuneration prior to his detention or that it was the claimed amount, and that the detentions and expulsion were not proved satisfactorily enough to cause the alleged remuneration’s interruption.Footnote 73 The third type, and specifically “a decline in the value of [Diallo’s] two companies and the dispersal of their assets,” was deemed inadmissible.Footnote 74 Thus, while this case demonstrates that international law accepts material injuries as a type of damage, there still remains a complex determination of causal links and evidentiary thresholds when addressing remuneration loss and potential earnings deprivation as grounds for compensation.
2.2. Indirect Injury: Injury to Third Parties
As indicated earlier, the ICC Appeals Chamber has confirmed that the term “indirect victims” designates persons (for example, parents) who suffer harm as a result of harm perpetrated against direct victims (for example, their children).Footnote 75 In other words, “harm suffered by victims does not necessarily have to be direct.”Footnote 76 Inter-State claims mechanisms have a similar understanding.
As held by the US-German Mixed Claims Commission in the Lusitania cases:
Claims growing out of injuries resulting in death are not asserted on behalf of the estate of the deceased […]. The right to recover rests on the direct personal loss, if any, suffered by [a third party].Footnote 77
Thus, the injury is not the taking of a person’s life but the loss sustained as a result thereof by third persons. Therefore, reparation damages are based on an evaluation of the losses of the surviving heirs or successors. In deciding how death damages would be measured,Footnote 78 Umpire Parker held that the basis of damages is “not the physical or mental suffering of deceased or his loss or the loss to his estate, but the losses resulting to claimants from his death.”Footnote 79 He presented a formula for determining the total compensation:
Estimate the amounts (a) which the decedent, had he not been killed, would probably have contributed to the claimant, add thereto (b) the pecuniary value [...] of the deceased’s personal services [to the] claimant’s care, education, or supervision, and also add (c) reasonable compensation for such mental suffering or shock, if any, caused [to the claimant] [...] by reason of such death.Footnote 80
The decision also mentioned several facts to consider when making such estimates, including age, gender, health, station in life, and probable life expectancy of both the deceased and the claimants, as well as the deceased’s occupation and earning capacity.Footnote 81
Third parties may also suffer property loss as a result of loss of financial support that they previously received from the deceased. They may also suffer moral injury—the psychological suffering resulting from the loss of a loved one. However, inter-State practice is not always clear on what type of injury is being repaired. In the USS Liberty case, Israel apologized and offered to pay compensation to the families of the US crew who were killed by Israel,Footnote 82 while not explaining the exact type of injury that families were offered compensation for—psychological, or material in the case of financially dependent families. Footnote 83
Similarly, in the USS Stark case, an Iraqi fighter jet damaged a US Navy ship during the First Persian Gulf War.Footnote 84 The United States’s claims, inter alia, on behalf of the families of the dead, based on “evidence from [...] salary data” and “the substantial hardship and anguish which the […] deaths have imposed on the claimant family members,”Footnote 85 resulted in Iraq’s payment of US$27.35 million in relation to the deaths.Footnote 86
Finally, in the settlement agreement following the Aerial Incident of 3 July 1988, Iran sought reparation for the shooting down of an Iran Air aircraft by the USS Vincennes in the Persian Gulf, as well as financial losses suffered by Iran Air, a State-owned company with legal personality, for the disruption of its activities.Footnote 87 Eventually, the United States agreed to pay Iran US$131.8 million in settlement to discontinue the case at the ICJ, together with other earlier compensation claims Iran had made before the IUSCT.Footnote 88 This compensation specifically included US$61.8 million for the heirs of the 290 Iranian victims of the shooting down.Footnote 89 The settlement agreement did not specify the type of injury sustained by the victims’ heirs, although it suggested that part of the award stemmed from pecuniary injury; survivors of wage-earning victims each received US$300,000, while survivors of non-wage-earning victims received only US$150,000.Footnote 90
While the above illustrates the difficulty of clearly describing the types of injury sustained by third parties, the instances below showcase where this has been possible.
2.2.1. Material Injury
In the Ottoz case, Italy had sequestrated real estate, including two houses located in Italy, owned by the late Ottoz, a French national. After hostilities had ended, the FICC awarded the return of the properties to Ottoz’s heirs.Footnote 91 Thus, that property sequestration constituted a type of injury that the deceased person’s family could claim, while the question of moral injury as a result of that sequestration did not arise.Footnote 92
2.2.2. Moral Injury
This type of injury derives from the prejudice to third persons—dependents of deceased—and sometimes others who suffer “moral injuries,” as a result of the death.Footnote 93 The purely moral damage is determined by the third parties and the deceased’s close relationship.Footnote 94
In the Di Caro case, two government soldiers attempted to assault Giovanni Cammarano’s wife and her daughter-in-law, in his store, during his absence.Footnote 95 In the ensuing fight, the sons killed a soldier and fled. Soldiers subsequently went to the house, seized Cammarano, dragged him into the street, cut him with a machete, and killed him.Footnote 96 The Italy-Venezuela Mixed Claims Commission took into consideration the “deprivation of personal companionship and cherished associations” and unexpected loss as well as the “strain and shock” a wife would bear upon the death of her husband.Footnote 97 It accepted that “no human standard of measurement exists, since affection, devotion, and companionship may not be translated into any certain or ascertainable” monetary value,Footnote 98 and held that financial compensation would be just on consideration of the loss to a wife resultant upon the death of her husband.Footnote 99
3. Injury to Legal Persons
As seen before, the ICC rules recognize legal persons as victims, albeit with qualifications. This novelty in international criminal justice has been accepted for decades in inter-State claims, which recognizes that legal persons may sustain both material damage and moral injury.
3.1. Material Damage—Property: Loss, Damage, and Expropriation
3.1.1. Armed Activities
In the Peter Pázmány University case, Peter Pázmány University successfully brought a claim against and obtained immovable property returned from Czechoslovakia through representation by Hungary. This case involved an PCIJ appeal from the judgment rendered by the Hungaro-Czechoslovak Mixed Arbitral Tribunal that had been seized by a suit filed by Peter Pázmány University against Czechoslovakia, regarding landed estates over which the university claimed ownership, but which were situated in the territory transferred from Hungary to Czechoslovakia in the World War I collapse of the Austro-Hungarian Empire and Czechoslovakia’s birth.Footnote 100 Under a 1919 Czechoslovak ordinance relating to “the compulsory administration of certain ecclesiastical property,” the University of Budapest was expropriated, causing injury to both a legal person (the University) and Hungary.Footnote 101 The PCIJ held that the Mixed Arbitral Tribunal had rightly ruled on the admissibility of the claim brought by the university against Czechoslovakia,Footnote 102 and that it had been right to decide that Czechoslovakia was “bound to restore to the [university] the immovable property claimed by it, freed from any measure of transfer, compulsory administration, or sequestration, and in the condition in which it was before the application of the measures in question.”Footnote 103
The FICC provides an example of restitution of property to legal persons, post-World War II. Its mandate is defined in article 78(1) of the Treaty of Peace, which stipulates that
Italy [must] restore all legal rights and interests in Italy of the United Nations and their nationals as they existed on June 10, 1940, and [must] return all property in Italy of the United Nations and their nationals as it now exists.Footnote 104 [emphasis added]
Under article 78(2), Italy had to restore “all property, rights and interests passing under this Article […] free of all encumbrances and charges of any kind to which they may have become subject as a result of the war.”Footnote 105 The Hôtel Métropole case concerned a hotel located in Italy, and which was part of the immovable property of a French company, Société Lyonnaise. During World War II, Italy sequestrated the hotel, leading to its successive occupation by Italian and German military and civilian authorities, and finally by refugees. The FICC held that Italy had an obligation to return the property to the Société Lyonnaise free of any occupation.Footnote 106 More recently, the EECC awarded US$1,703,020 for Ethiopian Airlines’ bank accounts at the Bank of Eritrea,Footnote 107 which the airliner had been unable to close and repatriate the funds during or after the Eritrea-Ethiopia armed conflict.Footnote 108 In the Well Blowout Control Claim, the Kuwait Oil Company was entitled to compensation for its work on the oil well fires following their burning by Iraq during the Second Persian Gulf War.Footnote 109
The ICJ practice provides other examples. In the Wall advisory opinion, the ICJ confirmed that injuries caused to legal persons may be recovered in inter-State proceedings.Footnote 110 Although the ICJ did not go into the details of describing who the legal persons were, it nevertheless clearly included them as entities that suffered damage as a result of the wall’s erection. Earlier, in the Aerial Incident of 3 July 1988, Iran sought reparation for financial losses suffered by Iran Air, a State-owned company with legal personality, as a result of the disruption of its activities following the shooting down of one of its aircrafts by the USS Vincennes in the Persian Gulf.Footnote 111 The settlement agreement by which the United States agreed to pay Iran US$131.8 million to discontinue the case at the ICJ, together with other earlier compensation claims Iran had made before the IUSCT, did not include compensation in this regard—and thereby did not address the issue of injury sustained by a legal person.Footnote 112
3.1.2. Peacetime
In peacetime, States have brought claims for injury caused to legal persons in relation to financial losses. In the M/V “Saiga” (No. 2) case, which involved Guinea’s unlawful arrest and detention of the vessel Saiga, Saint Vincent and the Grenadines claimed reparation “for material damage in respect of natural and juridical persons” [emphasis added], particularly in respect of the financial losses suffered by the ship owners and operators and the cargo owners.Footnote 113 ITLOS held that
Saint Vincent and the Grenadines is entitled to reparation for damage suffered directly by it as well as for damage or other loss suffered by the Saiga, including all persons involved or interested in its operation. Damage or other loss suffered by the Saiga and all persons involved or interested in its operation comprises injury to persons, unlawful arrest, detention or other forms of ill-treatment, damage to or seizure of property and other economic losses, including loss of profit.Footnote 114 [emphasis added]
ITLOS decided that Guinea should pay US$2,123,357 compensation to Saint Vincent and the Grenadines for, inter alia, damage to the Saiga, as well as cost of repairs and loss with respect to charter hire.Footnote 115
3.2. Moral Injury
In the Desert Line Projects case, the International Arbitral Tribunal (“IAT”) awarded reparation for moral injury suffered by Desert Line, an Omani company. This case concerned Yemen’s failure to abide by a domestic arbitration award that required it to pay damages to Desert Line for breach of several road construction contracts.Footnote 116 The IAT found that Yemen had violated its obligation under the bilateral treaty to afford investors “fair and equitable treatment,”Footnote 117 most notably holding that “it is also generally recognized that a legal person (as opposed to a natural one) may be awarded moral damages, including loss of reputation, in specific circumstances only.”Footnote 118 Thus, the IAT held Yemen liable to make reparation for moral injury suffered by Desert Line, specifically USD$1,000,000 for Desert Line’s suffering of significant injury to its credit and reputation and loss of prestige.Footnote 119 Interestingly, the IAT established Yemen’s liability for reparation for the injury suffered by Desert Line, “whether it be bodily, moral or material in nature.”Footnote 120 This included injury suffered by Desert Line’s executives for the stress and anxiety of being harassed, threatened, and detained by Yemen, as well as by armed tribes, and for the intimidation in relation to the contracts.Footnote 121
4. Conclusion
As has been seen, in State responsibility, the interest injured by an act or omission that violates international law is traditionally imputed to the State.Footnote 122 Accordingly, injury caused directly to a State’s nationals is considered to be damage suffered by that State—in other words, indirect injury to the State.Footnote 123 Increasingly, States have been seeking reparation in respect of injury suffered by their nationals, beyond any direct damage the State may itself have suffered. Most recently, the ICJ has, in its Wall advisory opinion, provided for cases where inter-State claims mechanisms may settle State-to-national reparations, by introducing—for what appears to be the first time in the practice of the ICJ—“the right to individual reparations for violations of international human rights and international humanitarian law.”Footnote 124
This study has shown how, decades ago, in a purely Westphalian system, State responsibility pioneered the recognition of States’ nationals as victims of abuse. While the injuries in question were inflicted by States as subjects of international law, the fact remains that, decades before the 1985 Declaration of Basis Principles of Justice for Victims of Crime of Abuse of Power (“1985 Victims Declarations”),Footnote 125 State responsibility established what would become one of the cornerstones of international criminal justice in general, and the ICC in particular: the entitlement of victims to reparations. By identifying inter-State practice’s doctrinal methods on the typology of injuries, this study has endeavored to categorize, for the purposes of the ICC, the types of legally recognized injuries that victims, be they natural or legal persons, may suffer in relation to atrocity crimes.
State responsibility has used varying terminologies with regard to the question of injury to States’ nationals. This is attributable to an initial lack of a codified principle of reparations for injury to State’s nationals, coupled with the diversity of bodies—judicial and non-judicial, permanent and ad hoc—that have shaped the principle over decades, resulting in the ILC Draft Articles. Notwithstanding this, as has been seen throughout this study, while seldom referring to those subjected to injury as “victims,” State responsibility has acknowledged that both natural and legal persons may sustain injury, and it has done so many years before this acknowledgment has been mirrored in the definition of victims under rule 85 of the ICC Rules.
State responsibility has further recognized both direct and indirect injury, as would be done in the Lubanga victims’ participation judgmentFootnote 126 and the 1985 Victims Declaration. Preceding the latter, State responsibility has further acknowledged personal and moral injury.
Another point demonstrated in the present study is State Responsibility’s acknowledgment that natural and legal persons may sustain injuries in both peacetime and armed-activities contexts. But this does not necessarily differ from the ICC context where, war crimes aside, genocide and crimes against humanity do not require an armed conflict nexus. As such, many of the inter-State typologies of injury may, regardless of their peacetime or armed-activities context, apply to the ICC crimes, notwithstanding factors specific to the ICC, such as its determination of the alleged crimes’ threshold of gravity.Footnote 127 Thus, the EECC, the FICC, or the Aerial Incident of 3 July 1988 may seem most relevant to the ICC context, since they occurred in non-peacetime contexts. Nevertheless, cases not involving armed-activities contexts, such as Diallo or the Rhodopian forests, could equally prove valuable, because the type of injury that they have identified may be inflicted not only during armed activities, but also in a genocide or crimes against humanity context, independent of an armed-conflict nexus.
When establishing “principles relating to reparations to, or in respect of, victims” and determining “the scope and extent of any damage, loss and injury to, or in respect of, victims” under article 75(1) of the ICC Statute, inter-State claims practice may prove to be of assistance to the judges in light of the particular circumstances of each case.
As with all judicial processes, the ICC reparations scheme will require time to develop, specifically in relation to its typology of harm and the extent to which the ICC will have recourse to the State responsibility typology of injuries, which will depend on the specific cases before it. In the Lubanga case, the types of crimes and the corresponding harm, as determined by the Trial Chamber, were limited to the enlisting of child soldiers. In the conviction and sentencing phases, both the Appeals and Trial Chambers recognized, that as a consequence of their recruitment and taking part in hostilities, child soldiers could suffer physical, psychological, and serious social trauma, such as separation from their families, interruption of their school careers, and exposure to an environment of violence.Footnote 128 In the reparations phase, the Appeals Chamber held that a reparation order must, inter alia, “define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted,”Footnote 129 thereby amending the Trial Chamber’s decision so as to expressly “define the harm to direct and indirect victims caused by the crimes for which Mr. Lubanga was convicted.”Footnote 130
On the application by the ICC of the typology of injuries under State responsibility, the Trial Chamber referred, in the reparations phase, to the ICTJ’s recommendation that, when facing ambiguities on harm and reparations, the Court and the Trust Fund for Victims could “take an innovative approach and […] learn from the practice of States.”Footnote 131 The Trial Chamber further took account of the “regional human rights courts and national and international mechanisms and practices” since, despite their inter-State nature, their “general concepts relating to reparations […] can provide useful guidance to the ICC.”Footnote 132 The Trial Chamber went on to cite a series of international instruments, although more in relation to the forms of reparations than the type of harm.Footnote 133 The Appeals Chamber, too, considered, in the Lubanga reparation, inter-State claims mechanisms, albeit not in relation to the typology of harms but on the standard of causation, although only by reference to hybrid criminal and human right courts as raised in the parties’ submissions. The Appeals Chamber noted the human rights courts’ “limited guidance,” but only insofar as the standard of causation was concerned, as those courts deal with State responsibility.Footnote 134 Thus the Appeals Chamber recognized the guiding value of those bodies’ practice, thereby not excluding recourse to the typology of harm of inter-State claims mechanisms discussed in this study.
Over time, with the increased variety of the ICC situations and cases, State responsibility’s typology of injuries will likely be of assistance to the ICC, in that some of the new types of harm that the ICC will have to determine will have been dealt with under State responsibility. The ICC could agree with or depart from that typology, depending on the circumstances. In turn, over a longer period of time, State responsibility may also benefit from the ICC typology of harms, thereby establishing continuous synergy between State responsibility and individual criminal responsibility.
