More harm than good: the exclusion of moral harm in the TFV’s assistance mandate emanating from its restrictive definition of a ‘victim’ of international crimes

Abstract

The TFV is a sui generis mechanism under the ICC, with a dual mandate: implementation of court-ordered reparations for the ICC and, most importantly, its assistance mandate. Its assistance mandate has been hailed for its promptness in assisting victims with their harm, due to its independence from the ICC. Nevertheless, following an analysis of ICC cases on the psychological, physical, material, and moral harm suffered by victims of international crimes, it reveals that the TFV’s assistance mandate does not render any support to victims for moral harm. This is a crucial problem at the core of its understanding of ‘victims’, by rendering support for only ‘ongoing harm’, and harms assessable in their nature: through medical assistance for psychological and physical harm, and socio-economic support for material harm. This finding underscores that the TFV’s assistance mandate has restricted its understanding of victims of international crimes. Following this, the study makes the case for a monetary compensation mechanism to remedy victims’ moral harm. To do so, four rationales are drawn from regional and domestic monetary compensation schemes, critically chosen due to their similarity in their purpose and work done by the TFV. It recommends for the TFV to set up a procedural and substantive criterion for identifying victims suffering from moral harm. Furthermore, a mechanism for individual, collective and symbolic monetary compensation. Noting that the TFV currently lacks sufficient fundings to assist victims, it advocates for ‘earmarking of funds’, considering a monetary compensation mechanism will strain its resources further. Finally, amendment of the TFV’s Regulations to include moral harm and monetary compensation as a form of support.