Between Reparations and Repair: Assessing the Work of the ICC Trust Fund for Victims Under Its Assistance Mandate

The practice of international justice has made a significant shift from narrowly focused criminal accountability to a broader and more holistic understanding encompassing the totality of victims’ justice needs. In particular, international criminal justice is concerned with victims of mass atrocity crimes, whose needs are profound and whose capacities are limited by the experiences of gross and systematic violence. These needs include individual and communal capacity building to engage in criminal processes as well as remedy and repair in the aftermath of criminal procedures. The Trust Fund for Victims represents, in many ways, the epicenter of this shift in international law practice, as a unique institution that has a central role in providing both an assistance and reparations mandate under the International Criminal Court (Rome) Statute. A clear innovation of the Trust Fund’s work is its capacity to be operationalized before a criminal finding is made, providing the means to support victim survivors in situations still under investigation by the Prosecutor. In this capacity, the Trust Fund is priming and creating the conditions conducive to effective participation by victims in the Court’s work. This article addresses how well that task has been operationalized in practice by the Trust Fund. In parallel, the assessment has a wider purview by allowing a broad engagement with the challenges, complexities, and realities on the ground that shape the enforcement of reparations for victims, as well as molding institutional responses by intervenors  Anne Dutton & Professor Fionnuala Ní Aoláin. Equal Justice Works Emerson Fellow at the Center for Gender & Refugee Studies, University of California Hastings College of the Law & Regents Professor and Robina Chair in Law, Public Policy and Society, University of Minnesota Law School respectively. The authors wish to thank the Grand Challenges Research Fund at the University of Minnesota for the financial support which enabled this project. We would also like to thank our colleagues at the Human Rights Laboratory based at the University of Minnesota. Their input and support was essential to the completion of this project. We also thank Megan Knapp for research assistance. All remaining faults lie with the authors. Finally, our thanks to all those at the Trust Fund for Victims and the implementing partners of the Northern Uganda assistance mandate for sharing their insights and reflections on their critically important work. Between Reparations and Repair Dutton & Ní Aoláin Winter 2019 491 including the Trust Fund. Given the challenges of successfully implementing reparations there is often little time or capacity to measure (as one goes along) what has worked effectively and what has not. International organizations, states, courts, and civil society have made consistent calls for evidence of success, failure, and/or the value of reparations. At the simplest level, because most human rights and humanitarian law treaties provide for the right to a remedy, assessing if remedies work in practice is critical to understanding if state obligation has, in fact, delivered. This Article provides concrete, contextual, and novel assessment of the delivery of reparations for systematic human rights violations, offering timely and relevant analysis for the International Criminal Court in particular and scholars/practitioners concerned with the conceptualization and delivery of reparations in practice. The analysis and data presented is based on unique access to the Trust Fund's operations combined with on the ground assessment of the programming for assistance and reparations in Northern Uganda. The data underpinning the research findings is singular and makes a new contribution to the literature and practice of international criminal justice.