[Blog post] ‘Reparations are problematic to negotiated (international criminal) justice’

In a new blog post for EJIL:Talk!, Asser Institute intern-trainee Catherine Gregoire concludes that Rule 94(2)(c) of the Kosovo Specialist Chambers (KSC) Rules of Procedure and Evidence (RPE) - a rule which allows for written plea agreements on reparations - has the power to strengthen or undermine victims’ right to reparations. Gregoire calls for ensuring the victim’s active participation in negotiations on reparations.

The KSC is an international/hybrid tribunal adjudicating on cases concerning crimes against humanity, war crimes and other crimes related to the Kosovo War of 1998-1999. On 16 December 2022, the KSC Trial Panel I pronounced its first ever conviction for war crimes in the case of Specialist Prosecutor v. Salih Mustafa (Mustafa case). This means that a reparations order will soon be followed for the eligible victims.

Cooperation challenges
In her blog post, Gregoire identifies the relevant provisions from the KSC’s governing laws to find that a plea negotiation on reparations would secure the availability of assets and voluntary commitment from the accused to fund reparations. However, given the ‘persisting and pervasive’ disparaging attitudes of the KSC and victims in Kosovo and from accused and/or convicted persons before the tribunal, cooperation on such matters in future cases is highly unlikely.

Upholding reparations standards
Plea negotiations on reparations would still need to correspond to the harm suffered, which will differ for each individual victim or collective group of victims. As noted by Gregoire, this standard was advocated by the victims’ counsel in the closing statements of the Mustafa case. In addition, reparations need to be prompt and adequate in line with international human rights norms. Thus, Gregoire maintains that plea negotiations with still need to ensure that these standards for reparations are met. This would require an assessment of the forms of reparations that can be secured from the accused and the appropriateness of deferring to other reparations avenues.

Active participation
Gregoire recalls that Rule 94(2)(c) RPE provides for plea agreements to be reached between the specialist prosecutor and the defence. According to Gregoire, explicitly excluding the victims’ counsel in this process could still undermine victims’ right to acknowledgement. Proceedings on reparations inherently acknowledge individuals as victims. Hence, ensuring the victim’s active participation to the fullest extent possible in negotiations on reparations would be especially desirable.

Read the full blog post.

About Catherine Gregoire
Catherine has recently completed her master’s in Public International Law (human rights track) from Utrecht University in the Netherlands. Her research specialises in international criminal procedure, victims’ rights, and restorative justice. She is an intern-trainee within the Asser Institute research strand ‘In the public interest: accountability of the state and the prosecution of crimes’, which examines the accountability of states - individually and collectively (for instance at the level of the United Nations or the European Union) - in light of public interest standards in the context of counter-terrorism; and the prosecution of individuals for international and transnational crimes in the public interest. To ensure both the accountability of the state and the prosecution of individuals, this strand also investigates the role of journalists, the (new) media, human rights NGOs and academics in protecting and promoting public interest standards.