reparations and victim support in the international...

Reparations and Victim Support in the International Criminal Court

Alongside existing regimes for victim redress at the national and international levels, in the coming years international criminal law and, in particular, the International Criminal Court, will potentially provide a significant legal framework through which the harm caused by egregious conduct can be addressed. Drawing on a wealth of comparative experience, Conor McCarthy’s study of the Rome Statute’s regime of victim redress provides a comprehensive exploration of this framework, examining both its reparations regime and its scheme for the provision of victim support through the ICC Trust Fund. The study explores, in particular, whether the creation of a regime of victim redress has a role to play as part of a system for the administration of international criminal justice and, more generally, whether it has such a role alongside other regimes, at the national and international levels, by which the harm suffered by victims of egregious conduct may be redressed.

ConoR Mc C A RT h y is a visiting fellow at the British Institute of International and Comparative Law. he is called to the bar of England and Wales and has previously worked at a number of international courts and tribunals including the International Criminal Court and the European Court of human Rights.

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cambridge studies in international and comparative law

Established in 1946, this series produces high quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation.

Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by clas-sical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, espe-cially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and inter-national criminal law) international and national systems interact. national constitutional arrangements relating to ‘foreign affairs’, and to the implemen-tation of international norms, are a focus of attention.

The series welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages.

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A list of books in the series can be found at the end of this volume.






Reparations and Victim Support in the International Criminal Court

Conor McCarthy






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Published in the United States of America by Cambridge University Press, new york

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© Conor McCarthy 2012

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Library of Congress Cataloging in Publication dataMcCarthy, Conor.

Reparations and victim support in the International Criminal Court / Conor McCarthy. p. cm. – (Cambridge studies in international and comparative law)Includes bibliographical references and index.ISBn 978-1-107-01387-2 (hardback)1. Reparation (Criminal justice) 2. International Criminal Court. 3. Victims of crimes–Legal status, laws, etc. 4. Rome Statute of the International Criminal Court (1998) 5. Reparation (Criminal justice)–Philosophy. I. Title. KZ7464.M38 2012341.6′6–dc232011052107

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To my parents






vii

Contents

Foreword page xvAcknowledgements xviiiTable of cases xxiTable of treaties xxxviiSelect list of abbreviations xli

1 Introduction 1A Introduction 1B The book in outline 4

2 The wider legal framework of victim redress 9A Introduction 9B The invocation of responsibility 10C The law relating to the treatment of aliens 11D International human rights law 13E International humanitarian law 18

1 International armed conflicts 182 non-international armed conflicts 25

F national law and procedures 27G Conclusion 31

3 Victim redress and international criminal justice: an overview 34A Introduction 34B Individual punishment and the traditional conception

of international criminal justice 361 The position of victims within the classical

framework of international law 372 Victims and the genesis of international criminal law 41






contentsviii

3 The conventional position of victims in international criminal law 43

C The development of the Rome Statute’s scheme of victim redress 48

D A principled role for victim redress as part of the system of international criminal justice? 541 The conceptual role of victim redress in international

criminal law as a form of criminal justice 55(a) The irrelevance of retributivism 55(b) The insufficiency of restorative justice as a

principled justification 56(c) An expressivist account of victim redress: the

role of vindicative satisfaction and moral denunciation 60

2 Victim redress and the prosecution and punishment of individuals: competing or compatible paradigms? 64

E Between ideals and reality: the potential disjuncture between the theory and practice of victim redress 67

F Conclusion 72

4 The concepts of reparations and victim support under the Rome Statute 75A Introduction 75B The concept of reparations under the Rome Statute 76C The concept of victim support under the Rome Statute 84

1 The distinction between ‘reparations’ awarded under Article 75 and victim support provided pursuant to Rule 98(5) 85

2 The key features of the concept of victim support under the Statute 88

D Conclusion 92

5 The concept of harm under the Rome Statute 94A Introduction 94B Prefatory clarification 95C An Autonomous Concept of harm under

the Rome Statute 98D The forms of recoverable harm under

the Rome Statute 1001 Pecuniary loss 100

(a) Actualised pecuniary loss 101






contents ix

(i) Damage to, or loss of, property 101(b) Consequential pecuniary loss 104

(i) Loss of future earnings 105(ii) Lost profit 106

(iii) Loss of support 106(iv) Loss of pecuniary opportunity 108(v) Medical, funeral and miscellaneous

expenses 1092 non-pecuniary loss 110

(a) Death 110(b) Personal injury 111

(i) Pain and suffering 113(ii) Loss of amenities of life 119

(c) Loss of liberty 1233 Communal harm 124

E Conclusion 127

6 Reparations principles 129A Introduction 129B The scope and parameters of the Court’s power

to establish reparations principles 130C The task of the Court in establishing reparations

principles 132D Determining the scope and extent of damage, loss

and injury to victims 1341 Causation 135

(a) Factual causation 137(i) Determining the appropriate standard

of factual causation 138(ii) Determining the extent of a perpetrator’s

contribution to the harm caused by a crime 145(b) Legal causation 148

(i) Legal causation and Rule 85(a) 150(ii) Legal causation and Rule 85(b) 153

(c) Conclusion 1552 Determining the extent of a perpetrator’s liability

where a state is concurrently responsible 1563 Reparations awards where a perpetrator lacks

the resources necessary to redress the harm he or she is found to have caused 157






contentsx

E Modalities of reparations under the Rome Statute 1581 Restitution 159

(a) The goal of restitutio in integrum 1602 Compensation 162

(a) Compensable harm 163(b) Quantum 163

3 Satisfaction 169(a) Rehabilitation 170(b) Declaration of wrongfulness 174(c) Factual disclosure 177(d) Contrition and acts of atonement 180(e) Commemorations and memorials 181

F Conclusion 182

7 Proceedings and Court orders relevant to reparations 184A Introduction 184B The relationship between reparations and trial

proceedings before the ICC 184C Proceedings relating to reparations 190

1 The role of reparations hearings 1902 The procedure for conducting reparations hearings 192

D Punitive orders 1921 Fines under Article 77(2)(a) 1932 Forfeiture of proceeds, property and assets pursuant

to Article 77(2)(b) 194(a) ‘forfeiture of proceeds, property and assets’ 195(b) ‘derived directly or indirectly from that crime’ 199(c) ‘without prejudice to the rights of bona fide

third parties’ 202E Reparations orders 209

1 Restitution 2132 Compensation 2143 Rehabilitation 2154 other forms of order 216

F Powers of the Court in cases of contumacy 216G Protective measures 217h The burden and standard of proof in reparations and

sentencing proceedings 2191 Burden of proof 220






contents xi

2 Standard of proof 221I Conclusion 223

8 The provision of reparations and victim support through the Trust Fund 225A Introduction 225B The organisation and management of the Trust Fund 226

1 Relationship with the Assembly of States Parties 2262 The Board of Directors 2273 The Secretariat 2284 The resources of the Trust Fund 229

C The prioritisation of resources by the Trust Fund 2301 Prioritisation of resources by the Trust Fund

in respect of Court-ordered reparations 2302 Prioritisation of resources by the Trust Fund

in respect of support to victims pursuant to Rule 98(5) 232

3 Criteria according to which resources for redress may be prioritised 234(a) Prioritisation according to the vulnerability

of victims 234(b) Prioritisation according to the neediness

of victims 235(c) Prioritisation according to the nature

of the unlawful act or the nature and/or gravity of harm inflicted 236

(d) Prioritisation in order to maximise the impact of limited resources 237

D Court-ordered reparations provided ‘through’ the Trust Fund 2391 The extent of the Court’s role in directing and

supervising the activities of the Trust Fund 240(a) The apportionment of resources between

Article 75 reparations and victim support pursuant to Rule 98(5) 241

(b) Judicial supervision and control of the implementation of Court-ordered reparations by the Trust Fund 242(i) The design of Court-ordered reparations

awards 243






contentsxii

(ii) oversight of the implementation of the reparations award 248

2 Rule 98(2): The provision of reparations awards to individuals through the Trust Fund 252

3 Rule 98(3): The provision of collective reparations awards through the Trust Fund 253

4 The determination of claims for reparations by the Trust Fund 257(a) Adjudication of claims by the Trust Fund 258

(i) The adjudicative process 261(ii) Evidential issues 267

(b) Verification of the implementation of individual and collective reparations awards 275

5 Rule 98(4): The implementation of reparations awards by an intergovernmental, international or national organisation 276(a) The procedure for engaging the assistance of

an intermediary organisation 278(b) The role and responsibilities of the intermediary

organisation 279(c) Monitoring and oversight of the implementation

of reparations awards by intermediary organisations 281

E Victim support provided by the Trust Fund pursuant to Rule 98(5) 2851 The power of the Trust Fund to use ‘other resources’

for the benefit of victims 286(a) Determination by the Board of Directors as

to the necessity of providing support pursuant to Rule 98(5) 286

(b) notification of, and approval by, the Court of activities undertaken pursuant to Rule 98(5) 288

2 The activities of the Trust Fund undertaken pursuant to Rule 98(5) 293(a) The form of activities undertaken pursuant

to Rule 98(5) 293(b) Procedures regulating how the ‘other resources’

of the Trust Fund are used 295F Conclusion 296






contents xiii

9 Victim redress and the Rome Statute’s cooperation and enforcement regimes: possibilities and limitations 297A Introduction 297B The scope of the cooperation regime 298

1 The general powers of the Court and the office of the Prosecutor 299

2 Reparations proceedings 3003 The work of the Trust Fund in providing

victim support 300C States Parties and the cooperation regime 301

1 The scope of the general obligation to cooperate 3032 Particularised forms of assistance the Court

may request 303(a) Tracing, seizure and freezing of assets

by States Parties 304(b) other enumerated measures the Court may

request of States Parties 306(c) Relationship between Security Council

sanctions and ICC cooperation requests 3073 other forms of assistance the Court may request

of States Parties 308D Cooperation and third states 309

1 Cooperation pursuant to the Statute 3112 Cooperation pursuant to a Security

Council resolution 311E Intergovernmental organisations 313

1 The United nations 3142 other organisations 315

F Cooperation in respect of individuals, armed groups and other non-state entities 317

G The enforcement of fines, punitive forfeiture and reparations orders 318

h Conclusion 321

10 Conclusions 324A Introduction 324B The role of victim redress as part of a system of

international criminal justice 326






contentsxiv

C The distinct role that the Rome Statute’s regime for victim redress can play alongside other international regimes 329

D The potential role of the Rome Statute’s regime of victim redress alongside national systems and processes 342

E opportunities provided by the Rome Statute as an institutional framework within which to deal with questions of victim redress 346

F Between ideals and reality: challenges confronting the Rome Statute’s regime of victim redress 3491 The limited resources available for victim redress 3502 The selectivity of prosecutions under

the Rome Statute 3513 The risk of a fragmented and inappropriately

individualised response to the harm suffered by victims 352(a) The risk of a fragmented, uncoordinated

response to the harm suffered by victims 353(b) The risk of an inappropriately individualised

approach to victim redress 354(c) Ways in which the risks of fragmentation

and individualisation can be offset 3554 Difficulties associated with matters of victim

redress being dealt with by an institution at the international level 356

G Conclusion 359

Select bibliography 361Index 373






xv

Foreword

1 See e.g. Articles 130(3), 92(4) and 153, Working Paper of France, Draft Statute for an International Criminal Court, 6 August 1996, A/AC.249/L.3. See further Proposal of France, Article 45 bis, 5 December 1997, A/AC.249/1997/WG.4/DP.3.

2 See Article 47(3), Draft Statute for an International Criminal Court, in Vol. II, Part Two, Yearbook of the International Law Commission 1994, A/Cn.4/SER.A/1994/Add.l, p. 60 (providing for the possibility of fines against perpetrators and for the establishment of a trust fund for victims of crimes within the jurisdiction of the Court).

The field of post-conflict reparation is one that is now increasingly pop-ulated with a wide assortment of different institutions, processes and regimes ranging from human rights courts and supervisory mecha-nisms to ad hoc claims commissions, not to mention a multitude of reparations arrangements often, though by no means always, estab-lished at the national level in the aftermath of protracted periods of civil war or repression.

Into this heterogeneous patchwork of institutions, mechanisms and procedures the International Criminal Court’s regime of redress has been interposed. The Court’s regime of victim redress – encompass-ing both a system of Court-ordered reparations and a broader sys-tem of redress sponsored by the ICC’s Trust Fund for Victims – was a somewhat controversial addition to the Statute of the International Criminal Court. While some delegations, for instance the French, were strongly supportive from a relatively early stage,1 others were cautious or even sceptical. This caution was reflected in the International Law Commission’s own Draft Statute for an International Criminal Court, which served as a precursor for negotiations leading to the Rome Statute and which made rather modest proposals on this subject.2

The Rome Statute, in this as in other respects, went considerably further. yet nearly fifteen years on from the Rome Conference, much






forewordxvi

uncertainty surrounds the new regime. There is uncertainty as to the role that it can play alongside the many others that exist at both the national and international levels. Perhaps more fundamentally, there is uncertainty as to whether the framework of international criminal law is an appropriate context within which the harm caused by the excesses of war or large-scale violence can or should be addressed.

It is too early as yet to offer definitive responses to these fundamen-tal questions, not least because of the ICC’s limited practice to date on matters of reparations. But it is perhaps now, when the development of practice is at its infancy, that the exploration of the uncertainties sur-rounding the regime, its role and purpose, is most valuable.

Conor McCarthy’s study of the International Criminal Court’s regime of reparations and victim support provides a timely and thoughtful study of these important issues. Care is taken by the author to place the ICC’s regime within its proper context, both historical and current. Drawing on a rich body of comparative practice, the study provides a comprehensive and measured analysis of the ICC’s regime of redress, using the comparative material to provide a critical analysis of its pos-sibilities and limitations. In so doing, it considers some controversial areas including: the concept of ‘harm’; the victims who may benefit from reparations and how this may be determined; the form repara-tions principles may take in the specific context of international crim-inal law; and the relationship between the Court and national systems in the implementation and enforcement of reparations decisions.

The work is not, however, confined to issues pertaining to the Rome Statute’s regime itself. The study also addresses broader questions to which the creation of the regime gives rise. A thoughtful analysis is offered as to the potential role of the ICC’s system of redress alongside cognate regimes at the national and international levels, offering a careful and balanced analysis of whether the ICC has a distinct and beneficial contribution to make within this wider context. More gen-erally, the study offers a sustained engagement with the question of whether international criminal law, and specifically the system cre-ated by the Rome Statute, is an appropriate context within which to deal with the egregious excesses of armed conflict and other forms of large-scale violence falling within the jurisdiction of the Court.

It remains to be seen whether, in the end, the ICC’s system of repara-tions and victim support will provide an effective means of remedying some of these effects or whether the challenges the Court faces in this area – of which there are many – will prove too great a burden for






foreword xvii

resolution through legal processes established in the context of inter-national criminal law. Whatever the answer to these questions, the present study represents a significant and timely contribution to this debate.

James CrawfordWhewell Professor of International Law

University of Cambridge1 August 2011






xviii

Acknowledgements

The initial inspiration for this book emerged during the period I spent in Rwanda and Sierra Leone. In the course of my time in those coun-tries part of my work involved travelling to towns and villages and interviewing or speaking with victims and witnesses about their expe-riences and past events. The situation of impoverishment in which most victims lived, not to mention the severely debilitating injuries many had endured, were often immediately apparent. Equally appar-ent, however, was the fact that, despite the huge sums of money poured into international tribunals to enable the prosecution and punishment of a relatively small group of individuals, many victims had limited or no understanding of the work of such institutions let alone a sense of having received anything tangible from their work. Instead, in coun-tries blighted by poverty and weak infrastructure, many victims were simply left to fend for themselves or rely on their family, friends and neighbours to cope with their injuries and re-establish their lives.

This present book is, at least in part, inspired by this experience. In substance it is based on my doctoral thesis completed at the University of Cambridge, under the supervision of Dr Roger o’Keefe. In the course of my PhD research there are many people who have provided support, assistance, advice and friendship without whom the experience of pre-paring this body of research would have been a much less fulfilling and more arduous one. I have benefited immensely from the vibrant international law research community at the Lauterpacht Centre and, in particular, from discussions with its fellows and residents. The community of researchers both at the Law Faculty, Jesus College and elsewhere at Cambridge University has also provided a tremendously supportive environment in which to undertake academic research and this is something which I have valued greatly.






acknowledgements xix

Many members of the Law Faculty have also been very helpful both in the development of my own research and more generally. In particu-lar, I thank James Crawford, Guglielmo Verdirame, Zachary Douglas and Christine Gray. Special mention must be made of my thesis super-visor, Dr Roger o’Keefe, whose encouragement and support have bene-fited this work considerably. The thoroughness and care with which he commented on and critiqued my work were invaluable, and I am very much indebted to him for this. I am also very grateful to the many friends who have provided encouragement and support throughout my PhD. I am particularly indebted to Kate Parlett, Stephen Moore, nick Godfrey, Christopher Thomas, Lee Schab, Patrick Wade, Michael Kelly, David Koller and Megan hirst.

My thanks go also to my thesis examiners, Professor James Crawford SC and Professor Christian Tomuschat, who provided much encour-agement for the present book and whose reports and assistance have been of great help in its preparation. Their guidance has been all the more valuable on account of their roles in the negotiations leading to the establishment of the International Criminal Court, in particu-lar through their work on the International Law Commission at the time it addressed the question of the establishment of a permanent international criminal court. I am very grateful for their advice and guidance.

In the final stages of preparing this work I have been fortunate to be appointed to a visiting research fellowship at the British Institute of International and Comparative Law (BIICL). The staff at BIICL have made me feel enormously welcome. not only has the fellowship afforded me facilities and space in which I could take this work forward but the research community at BIICL also provided much-needed encourage-ment and support in the final stages of this project’s completion. This research was also facilitated by the UK’s Arts and humanities Research Council and I would like to gratefully acknowledge its financial sup-port, which has funded my studies at both masters and doctoral lev-els. Without the Council’s support this project would not have been possible.

In developing my ideas and research agenda, several members of staff at the International Criminal Court and other international crim-inal tribunals, including Enrique Carnero Rojo, Gilbert Bitti, Morten Bergsmo, Fiona Mckay, David Koller, Caroline Wojtylak, Megan hirst, Sevtlanda Pouplard and nicole Lewis, have given me their time (in a non-official capacity) together with information and practical assistance. I






acknowledgementsxx

am grateful to them all. In addition, in interpreting various provisions of the Rome Statute and various related instruments it was, at times, useful to make reference to the equally authentic Chinese, Arabic, French, Spanish and Russian texts into which these instruments have been rendered. I wish to express my gratitude to Ekaterina Shutova (Russian), Sun Chenguang (Chinese) and Samir Mahmoud (Arabic) where their linguistic abilities have compensated for my lack thereof. Except where otherwise stated, I have provided the translations of French and Spanish texts.

Mention must also be made of the editorial team at Cambridge University Press and, in particular, Finola o’Sullivan and nienke van Schaverbeke for their assistance in bringing this book to publication. I am also grateful to the anonymous reviewers of this work for the thor-oughness of their work, their comments and support.

The cover image is of a relief sculpture serving as a memorial for prisoners of war in the hoa Lò Prison, hanoi, Vietnam.

Finally, my family have been immensely supportive throughout this whole process and it is they to whom I owe the greatest debt. Emma, nick and Anna have all provided encouragement and help along the way. I am especially grateful to my parents, nora and harry, who unstintingly encouraged me to pursue my interests and who never failed to support my educational ambitions in any way they could. This book is dedicated to them.






xxi

Awards and Decisions of Arbitral Tribunals and Claims Commissions

Administrative Decision No. II (United States v. Germany) 7 RIAA 23 22Administrative Decision No. VII (United States v. Germany) 7 RIAA 203 101Affaire des Biens Britannique au Maroc Espagnol (Grande Bretagne v. Espagne)

2 RIAA 615 153Alabama Claims Arbitration in J. B. Moore’s History and Digest of the

International Arbitrations to which the United States Has Been a Party, Vol. I, p. 645 153

American Electric Co. (United States v. Venezuela) 9 RIAA 145 102American International Group Inc. v. Iran 4 Iran–USCTR 96 (1983) 166Bond Coleman (United States v. Mexico) 4 RIAA 364 23Carthage and Manouba cases (France v. Italy), Permanent Court of

Arbitration, 11 RIAA 457 81Connelly (United States v. Mexico) 4 RIAA 117 107Chevreau (France v. Royaume Uni) 2 RIAA 1113 110Decision 1, 2 August 1991, UnCC Governing Council, S/

AC.26/1991/1 106, 107, 109, 113Decision 2, 2 August 1991, UnCC Governing Council, S/

AC.26/1991/2 25Decision 3, 23 october 1991, UnCC Governing Council, S/

AC.26/1991/3 22, 113, 114, 115, 118, 237Decision 7, 27 July 2007, Eritrea–Ethiopia Claims Commission,

available at www.pca-cpa.org/showpage.asp?pag_id=1151 149Decision no. 8, 27 July 2007, Eritrea–Ethiopia Claims Commission,

available at www.pca-cpa.org/showpage.asp?pag_id=1151 347Decision 8, 27 January 1992, UnCC Governing Council, S/

AC.26/1992/8 115, 169

Table of cases






table of casesxxii

Decision 9, 6 March 1992, UnCC Governing Council, S/AC.26/1992/9 106

Decision 10, 26 June 1992, UnCC Governing Council, S/AC.26/1992/10 22

Decision 18, 23 March 1994, UnCC Governing Council, S/AC.26/Dec. 18 (1998) 281282

Decision 46, 2 February 1998, UnCC Governing Council, S/AC.26/Dec.46 (1998) 269

Decision 48, 2 February 1998, UnCC Governing Council, S/AC.26/Dec.48 (1998) 282

De Lemos (Great Britain v. Venezuela) 9 RIAA 368 23Di Caro (Italy v. Venezuela) 10 RIAA 597 107, 116, 117, 120Dispute concerning responsibility for the deaths of Letelier and Moffitt (United

States v. Chile) 25 RIAA 3 109, 111, 113, 120, 165Dix (United States v. Venezuela) 9 RIAA 119 151Faulkner (United States v. Mexico) 4 RIAA 67 123Final Award, Eritrea’s Damages Claims, 17 August 2009, Eritrea–

Ethiopia Claims Commission, available at www.pca-cpa.org/showpage.asp?pag_id=1151 105, 124, 149, 172, 340, 341

Forests of Central Rhodope (Greece v. Bulgaria) 3 RIAA 1405 161Gage (United States v. Venezuela) 9 RIAA 226 151Henry Groves and Joseph Groves (United States v. Germany) 7 RIAA 257 108Irene Roberts (United States v. Venezuela) 9 RIAA 204 110Kellet in J. B. Moore’s History and Digest of the International Arbitrations to

which the United States Has Been a Party, Vol. V, (1898), p. 43 153Laura M. B. Janes et al. (United States v. Mexico) 4 RIAA 82 99Leslie Crabtree (United States v. Germany) 8 RIAA 32 23Lusitania Cases (United States v. Germany) 7 RIAA 32 80, 106, 107, 108,

110, 111, 114, 116, 117, 165Mary Ann Turner (United States v. Mexico) 4 RIAA 278 123May (United States v. Guatemala) 15 RIAA 47 116Naulilaa (Portugal v. Germany) 2 RIAA 1011 151Rainbow Warrior I (New Zealand v. France) 19 RIAA 198 163Rainbow Warrior II (New Zealand v. France) 20 RIAA 217 175, 181Recommendations Made by the Panel Of Commissioners Concerning Individual

Claims for Serious Personal Injury or Death (Category ‘B’ Claims), 26 May 1994, UnCC, S/AC.26/1994/1 111, 113, 117, 154, 272, 273

Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category ‘B’ Claims), 15 December 1994, UnCC, S/AC.26/1994/4 111, 115






table of cases xxiii

Report and Recommendations of the Panel of Commissioners Concerning Part 1 of the Individual Claims for Damages Above US$100,000 (Category ‘D’ Claims), 2 october 1998, UnCC, S/AC.26/1998/11 107

Report and Recommendations of the Panel of Commissioners Concerning the Egyptian Workers Claims (Jurisdiction), 12 october 1995, UnCC, S/AC.26/1995/R.20/Rev. 1 154

Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims), 21 october 1994, UnCC, S/AC.26/1994/2 271

Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of ‘F3’ Claims, 9 December 1999, UnCC, S/AC.26/1999/24 155

Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Individual Claims for Damages up to US$100,000 (Category ‘C’ Claims), 21 December 1994, UnCC, S/AC.26/1994/3 107, 115, 118, 149, 154, 169, 274

Report and Recommendations Made by the Panel of Commissioners concerning the Fourth Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims), 12 october 1995, UnCC, S/AC.26/1995/4 266

Robert John Lynch (Great Britain v. Mexico) 5 RIAA 169 23Shufeldt Claim (United States v. Guatemala) 2 RIAA 1061 101S.S. ‘I’m Alone’ (Canada v. United States) 3 RIAA 1609 181Starrett Housing Corp. v. Iran 16 Iran–USCTR 112 210Trail Smelter Arbitration (United States v. Canada) 3 RIAA 1905 138, 153Vercelli (Italy v. Peru) 15 RIAA 406 102War-Risk Insurance Premium Claims (United States v. Germany) 7 RIAA

44 151William Hardman (Great Britain v. United States) 7 RIAA 25 23William McNeil (Great Britain v. Mexico) 5 RIAA 164 113, 114Williamson and Others (United States v. Germany) 7 RIAA 256 108

Committee Against Torture

Guridi v. Spain, CAT Communication no. 212/2002 171

European Court of Human Rights

AGOSI v. United Kingdom, Merits, 24 october 1986, 9 EhRR 1 208Ahmet Özkan and others v. Turkey, Merits, 6 April 2004, ECthR,

unreported, Application no. 21689/93 119






table of casesxxiv

Akdeniz and Others v. Turkey, Merits, 31 May 2001, 12 Human Rights Case Digest 345 (2001) 108, 166, 167

Akdeniz v. Turkey, Merits, 31 May 2005, ECthR, unreported, Application no. 25165/94 164

Akdivar and Others v. Turkey, Just Satisfaction, Grand Chamber, 1 April 1998, unreported, Application no. 21893/93 15, 16, 81, 103

Aksoy v. Turkey, Merits, 26 november 1996, 23 EhRR 553 109, 167Aktas v. Turkey, Merits, 24 April 2003, 38 EhRR 18 107Allenet de Ribemont v. France, Merits, 10 February 1995,

20 EhRR 557 109Al-Saadoon and Mufdhi v. United Kingdom, Merits, 2 March 2010,

ECthR, unreported, Application no. 61498/08 347Assanidze v. Georgia, Merits, Grand Chamber, 8 April 2004, 39 EhRR

32 15, 347Ayder and Others v. Turkey, Merits, 8 January 2004, ECthR, unreported,

Application no. 23656/94 103Aydin v. Turkey, Merits, Grand Chamber, 25 September 1997, 25 EhRR

251 15, 116Balan v. Moldova, Merits, 29 January 2008, ECthR, unreported,

Application no. 31107/96 102Baysayeva v. Russia, Merits, 5 April 2007, ECthR, unreported,

Application no. 74237/01 119Benham v. United Kingdom, Merits, Grand Chamber, 24 May 1996, 22

EhRR 293 175Bilgin v. Turkey, Merits, 16 november 2000, 36 EhRR 879 104Butler v. United Kingdom, Admissibility, 27 June 2002, unreported,

Application no. 41661/78 207Campbell Cosans v. United Kingdom, Just Satisfaction, 22 March 1983, 13

EhRR 441 109, 121Çakıcı v. Turkey, Merits, Grand Chamber, 8 July 1999, 31 EhRR

133 107, 111, 153, 167Comingersoll S.A. v. Portugal, Merits, Grand Chamber, 6 April 2000, 31

EhRR 772 99Devenney v. United Kingdom, Merits, 19 March 2002, 35 EhRR 24 116Dulas v. Turkey, Merits, Grand Chamber, 30 January 2001, ECthR,

unreported, Application no. 25801/94 104Ezeh and Connors v. United Kingdom, Merits, Grand Chamber, 9 october

2003, 39 EhRR 1 109Grayson and Barnham v. United Kingdom, Merits, 23 September 2008,

ECthR, unreported, Application nos. 19955/05 and 15085/06 208, 220, 221, 222






table of cases xxv

Gül v. Turkey, Merits, 14 December 2000, 34 EhRR 719 107Iatridis v. Greece, Merits, Grand Chamber, 25 March 1999, 30 EhRR

97 102Iatridis v. Greece, Just Satisfaction, Grand Chamber, 19 october 2000,

unreported, Application no. 31107/96 15Ikincisoy v. Turkey, Merits, 27 July 2004, unreported, Application no.

26144/95 81Ilhan v. Turkey, Merits, 27 June 2000, 34 EhRR 36 106Isayeva, Yusupova and Bazayeva v. Russia, Merits, 24 February 2005,

41 EhRR 35 166Kalogeropoulou and Others v. Greece and Germany, Admissibility,

12 December 2002, unreported, Application no. 59021/00 21Kaya v. Turkey, Merits, 19 February 1998, 28 EhRR 1 179Keenan v. United Kingdom, Merits, 3 April 2001, 33 EhRR 38 168Kelly and Others v. United Kingdom, Merits, 4 May 2001,

37 EhRR 52 15, 176Khamidov v. Russia, Merits, 15 november 2007, unreported,

Application no. 72118/01 168Khatsiyeva and Others v. Russia, Merits, 17 January 2008, unreported,

Application no. 5108/02 16Kurt v. Turkey, Merits, 25 May 1998, 27 EhRR 373 111, 179Loizidou v. Turkey, Merits, Grand Chamber, 18 December 1996, 23

EhRR 513 104Loizidou v. Turkey, Just Satisfaction, 27 July 1998, 26 EhRR CD5 109Lopez Ostra v. Spain, Merits, 9 December 1994, 20 EhRR 227 116Lustig-Prean v. United Kingdom, Just Satisfaction, 27 September 1999, 31

EhRR 23 81McCann v. United Kingdom, Merits, Grand Chamber, 5 September 1995,

21 EhRR 97 15, 84, 168, 175, 176McShane v. United Kingdom, Merits, 28 May 2002, 35 EhRR 593Markovic and Others v. Italy, Grand Chamber, 14 December 2006, 44

EhRR 52 20Mentes and Others v. Turkey, Just Satisfaction, Grand Chamber, 24 July

1998, unreported, Application nos. 58/1996/677/867 167Mikheyev v. Russia, Merits, 26 January 2006, ECthR, unreported,

Application no. 77617/01 119Okay and Others v. Turkey, Merits, 12 July 2005, 12 Human Rights Cases

Digest 143 116Öneryıldız v. Turkey, Merits, Grand Chamber, 30 november 2004, 41

EhRR 20 119Öztürk v. Turkey, Merits, 21 February 1984, 6 EhRR 409 207






table of casesxxvi

Papamichalopoulos and Others v. Greece, Just Satisfaction, 31 october 1995, 21 EhRR 439 82, 104, 166

Paul and Audrey Edwards v. United Kingdom, Merits, 14 March 2002, 35 EhRR 487 97, 116

Phillips v. United Kingdom, Merits, 5 July 2001, ECthR, unreported, Application no. 41087/98. 207, 220, 221, 222

Price v. United Kingdom, Merits, 10 July 2001, 34 EhRR 1285 168Salabiaku v. France, Merits, 7 october 1988, 13 EhRR 379 222Salman v. Turkey, Merits, Grand Chamber, 27 June 2000,

34 EhRR 17 111Selçuk and Asker v. Turkey, Merits, 24 April 1998, 26 EhRR 477 103Selmouni v. France, Merits, Grand Chamber, 28 July 1999, 29 EhRR

403 97, 116Smith and Grady v. United Kingdom, Just Satisfaction, 25 July 2000,

31 EhRR 24 109Tanrikulu v. Turkey, Merits, Grand Chamber, 8 July 1999, 30 EhRR

950 15Tas v. Turkey, Merits, 14 november 2000, 33 EhRR 15 179Thlimmenos v. Greece, Merits, Grand Chamber, 6 April 2000,

31 EhRR 411 121, 122Toteva v. Bulgaria, Merits, 19 May 2004, ECthR, unreported,

Application no. 42027/98 116T.P. and K.M. v. United Kingdom, Merits, Grand Chamber, 10 May 2001,

34 EhRR 42 15, 120Tsirlis and Kouloumpas v. Greece, Merits, 29 May 1997,

25 EhRR 198 123Van Offeren v. Netherlands, Admissibility, 5 July 2005, ECthR,

unreported, Application no. 19581/04 222Varnava and Others v. Turkey, Merits, Grand Chamber, 18 September

2009, unreported, Application no. 16064/90 16Vozár v. Slovakia, Merits, 14 november 2006, ECthR, unreported,

Application no. 54826/00 120W. v. United Kingdom, Just Satisfaction, 9 June 1988, 13 EhRR 453 120Welch v. United Kingdom, Merits, 9 February 1985, 20 EhRR 247 208Whitfield and Others v. United Kingdom, Merits, 12 April 2005, 41 EhRR

44 109X. v. United Kingdom, Just Satisfaction, 18 october 1982, 5 EhRR

192 111Z. v. United Kingdom, Merits, Grand Chamber, 10 May 2001,

34 EhRR 97 109, 114, 116, 153, 164






table of cases xxvii

Zlínsat spol. s.r.o. v. Bulgaria, Just Satisfaction, 10 January 2008, ECthR, unreported, Application no. 57785/00 106

Human Rights Committee

Ashurov v. Tajikistan, 20 March 2007, hRC Communication no. 1348/2005 100

Barbato v. Uruguay, 21 october 1982, hRC Communication no. 84/1981 100

Khalilova v. Tajikistan, 30 March 2005, hRC Communication no. 973/2001 178, 307

Lantsova v. Russia, 26 March 2002, hRC Communication no. 763/1997 14

Laptsevich v. Belarus, 20 March 2000, hRC Communication no. 780/1997 100

Miango v. Democratic Republic of the Congo, 27 october 1987, hRC Communication no. 194/1985 178

Morael v. France, 28 July 1989, hRC Communication no. 207/1986 207

Ominayak v. Canada, 26 March 1990, hRC Communication no. 167/1984 124, 125

Quinteros v. Uruguay, 21 July 1983, hRC Communication no. 107/1981 178

Rodríguez v. Uruguay, 19 July 1994, hRC Communication no. 322/1988 100, 114

Ruiz Agudo v. Spain, 31 october 2002, hRC Communication no. 864/1999 222

Sultanova et al. v. Uzbekistan, 20 March 2006, hRC Communication no. 915/2000 178, 307

Wilson v. Philippines, 11 november 2003, hRC Communication no. 868/1999 167

Yoon and Choi v. Republic of Korea, 30 november 2006, hRC Communication no. 1321/2004 100

General Comments

human Rights Committee, General Comment no. 31, 26 May 2004, CCPR/C/21/Rev.1/Add.13 14, 100, 182, 216

human Rights Committee, General Comment no. 32, 23 August 2007, CCPR/C/GC/32 292






table of casesxxviii

Inter-American Court and Commission of Human Rights

19 Tradesmen v. Colombia, Merits, Reparations and Costs, 5 July 2004, Inter-Am. Ct. h.R. Series C. no. 109 14, 120, 121, 172, 178, 182

Abella v. Argentina, Report no. 55/97, Case 11.137, Inter-Am. Comm. h.R. 271, oEA/Ser.L/V/II.98, doc 6, rev. (1997) 17

Aloeboetoe et al. v. Suriname, Reparations and Costs, 10 September 1993, Inter-Am. Ct. h.R. Series C. no. 15 17, 106, 108, 110, 161

Baldeón-García v. Peru, Merits, Reparations and Costs, 6 April 2006, Inter-Am. Ct. h.R. Series C. no. 147 15, 123

Bámaca-Velásquez v. Guatemala, Reparations and Costs, 22 February 2002, Inter-Am. Ct. h.R. Series C. no. 91 166, 177, 178, 179, 182

Barrios Altos v. Peru, Reparations and Costs, 30 november 2001, Inter-Am. Ct. h.R. Series C. no. 87 17

Bulacio v. Argentina, Merits, Reparations and Costs, 18 September 2003, Inter-Am. Ct. h.R. Series C. no. 100 110, 118, 120, 175, 177

Cantoral-Benavides v. Peru, Reparations and Costs, 3 December 2001, Inter-Am. Ct. h.R. Series C. no. 88 97, 122

Caracazo v. Venezuela, Reparations and Costs, 29 August 2002, Inter-Am. Ct. h.R. Series C. no. 95 114, 119, 121

Castillo Páez v. Peru, Reparations and Costs, 27 november 1998, Inter-Am. Ct. h.R. Series C. no. 43 178, 307

Durand and Ugarte v. Peru, Reparations and Costs, 3 november 2001, Inter-Am. Ct. h.R. Series C. no. 89 174

El Amparo v. Venezuela, Reparations and Costs, 14 September 1996, Inter-Am. Ct. h.R. Series C. no. 28 17

Godínez-Cruz v. Honduras, Reparations and Costs, 21 July 1989, Inter-Am. Ct. h.R. Series C. no. 8 109

Gómez-Paquiyauri Brothers v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. h.R. Series C. no. 110 110

González et al. v. Mexico, Merits, Reparations and Costs, 16 november 2009, Inter-Am. Ct. h.R. Series C. no. 205 123

Gutiérrez-Soler v. Colombia, Merits, Reparations and Costs, 12 September 2005, Inter-Am. Ct. h.R. Series C. no. 132 123

Ituango Massacres v. Colombia, Merits, Reparations and Costs, 1 July 2006, Inter-Am. Ct. h.R. Series C. no. 148 97, 102, 126, 127, 176, 178, 256

Ivcher-Bronstein v. Peru, Merits, Reparations and Costs, 6 February 2001, Inter-Am. Ct. h.R. Series C. no. 74 102






table of cases xxix

Juan Humberto Sánchez v. Honduras, Merits, Reparations and Costs, 7 June 2003, Inter-Am. Ct. h.R. Series C. no. 99 175, 176, 182

Las Dos Erres Massacre v. Guatemala, Merits, Reparations and Costs, 24 november 2009, Inter-Am. Ct. h.R. Series C. no. 211 17, 123, 126

Las Palmeras v. Colombia, Reparations and Costs, 26 november 2002, Inter-Am. Ct. h.R. Series C. no. 96 14, 116

Loayza Tamayo v. Peru, Reparations and Costs, 27 november 1998, Inter-Am. Ct. h.R. Series C. no. 42 122, 123

Maritza Urrutia v. Guatemala, Merits, Reparations and Costs, 27 november 2003, Inter-Am. Ct. h.R. Series C. no. 103 116, 118

Mapiripán Massacre v. Colombia, Merits, Reparations and Costs, 15 September 2005, Inter-Am. Ct. h.R. Series C. no. 134 103, 172, 174, 176

Mayagna (Sumo) Awas Tigni Community v. Nicaragua, Reparations and Costs, 31 August 2001, Inter-Am. Ct. h.R. Series C. no. 79 103

Miguel Castro-Castro Prison v. Peru, Merits, Reparations and Costs, 25 november 2006, Inter-Am. Ct. h.R. Series C. no. 160 98, 109, 114, 170, 172, 176

Moiwana Community v. Suriname, Merits, Reparations and Costs, 15 June 2005, Inter-Am. Ct. h.R. Series C. no. 124 103, 104, 126, 127, 256

Myrna Mack-Chang v. Guatemala, Merits, Reparations and Costs, 25 november 2003, Inter-Am. Ct. h.R. Series C. no. 101 71, 178, 179, 182

Neira-Alegría et al. v. Peru, Reparations and Costs, 19 September 1996, Inter-Am. Ct. h.R. Series C. no. 29 164

Paniagua-Morales et al. v. Guatemala, Reparations and Costs, 25 May 2001, Inter-Am. Ct. h.R. Series C. no. 76 121

Plan de Sánchez Massacre v. Guatemala, Merits, 29 April 2004, Inter-Am. Ct. h. R. Series C. no. 105 126, 172, 173, 182, 256

Plan de Sánchez Massacre v. Guatemala, Reparations and Costs, 19 november 2004, Inter-Am. Ct. h.R. Series C. no. 116 17, 176, 181, 231

Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, 31 January 2006, Inter-Am. Ct. h.R. Series C. no. 140 14, 17, 162, 182, 231

Pueblo Bello Massacre v. Colombia, Interpretation of the Judgment of Merits, Reparations and Costs, 25 november 2006, Inter-Am. Ct. h.R. Series C. no. 159 174

Rochela Massacre v. Colombia, Merits, Reparations and Costs, 11 May 2007, Inter-Am. Ct. h.R. Series C. no. 163 99, 107, 120, 121, 170, 172






table of casesxxx

Saramaka People v. Suriname, Merits, Reparations and Costs, 28 november 2007, Inter-Am. Ct. h.R. Series C. no. 172 125, 256

Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations and Costs, Inter-Am. Ct. h.R. Series C. no. 146 126, 127, 256

Serrano-Cruz Sisters v. El Salvador, Merits, Reparations and Costs, 1 March 2005, Inter-Am. Ct. h.R. Series C. no. 120 120

Suárez-Rosero v. Ecuador, Merits, 12 november 1997, Inter-Am. Ct. h.R. Series C. no. 35 123

Trujillo-Oroza v. Bolivia, Merits, Reparations and Costs, 26 January 2000, Inter-Am. Ct. h.R. Series C. no. 64 179

Trujillo-Oroza v. Bolivia, Reparations and Costs, 27 February 2002, Inter-Am. Ct. h.R. Series C. no. 92 178, 182

Velásquez Rodríguez v. Honduras, Reparations and Costs, 21 July 1989, Inter-Am. Ct. h.R. Series C. no. 7 15, 81, 82, 166

Villagrán-Morales et al. v. Guatemala, Reparations and Costs, 26 May 2001, Inter-Am. Ct. h.R. Series C. no. 77 98

International Court of Justice

Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (Provisional Measures), 15 october 2008 17, 125

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits), ICJ Reports 43 (2007) 82

Armed Activities in the Democratic Republic of the Congo (Democratic Republic of the Congo v. Uganda) (Merits), ICJ Reports 168 (2005) 11

Avena and Other Mexican Nationals (Mexico v. United States) (Merits), ICJ Reports 12 (2004) 25

Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) (Merits), ICJ Reports 3 (1970) 24

Corfu Channel (United Kingdom v. Albania) (Assessment of the Amount of Compensation), ICJ Reports 244 (1949)

Corfu Channel (United Kingdom v. Albania) (Merits), ICJ Reports 4 (1949) 82, 174

Jurisdictional Immunities of the State (Germany v. Italy) (Application of Germany), 22 December 2008 21

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), ICJ Reports 136 (2004) 18, 19






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