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 * Home
 * >Journals
 * >Israel Law Review
 * >Volume 57 Issue 1
 * >Bridging the Gap: Reparations in Refugee Camps

 * English
 * Français

Israel Law Review

--------------------------------------------------------------------------------


ARTICLE CONTENTS

 * Abstract
 * Introduction
 * The ICC legal framework on reparations
 * Life in a refugee camp
 * Delivering reparations in the context of refugee camps
 * Instability of the situations of victims and suitable modalities of
   reparations
 * Compounded harm and suitable reparative measures
 * Infrastructure of the camp and feasible reparative measures
 * Risks and challenges
 * Conclusion
 * Funding statement
 * Competing interests
   
 * References


BRIDGING THE GAP: REPARATIONS IN REFUGEE CAMPS

Published online by Cambridge University Press:  11 September 2023

Dimitra Serafeimidi ,
Lorena Vilchez Marcos [Opens in a new window]  and
Shivani Puri
Show author details

--------------------------------------------------------------------------------

Dimitra Serafeimidi Affiliation:
Masters of Law in International Human Rights Law, University of Essex, United
Kingdom
Lorena Vilchez Marcos* Affiliation:
Masters of Law in International Human Rights Law, University of Essex, United
Kingdom
Shivani Puri Affiliation:
Masters of Law in International Human Rights Law, University of Essex, United
Kingdom
*
Corresponding author: Lorena Vilchez Marcos; Email: lorena_vilchez@outlook.com

--------------------------------------------------------------------------------

Article
 * Article
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Article contents
 * Abstract
 * Introduction
 * The ICC legal framework on reparations
 * Life in a refugee camp
 * Delivering reparations in the context of refugee camps
 * Instability of the situations of victims and suitable modalities of
   reparations
 * Compounded harm and suitable reparative measures
 * Infrastructure of the camp and feasible reparative measures
 * Risks and challenges
 * Conclusion
 * Funding statement
 * Competing interests
   
 * References

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ABSTRACT

The commission of large-scale international crimes (namely, crimes against
humanity, war crimes, and genocide) could result in populations fleeing from
their homes, seeking protection. There is an increasing number of victims of
these crimes who have been forcibly displaced and currently live in settlements
widely known as refugee camps. Victims of international crimes have the right to
receive reparations for the harm they have suffered. This means that
international criminal tribunals, particularly the International Criminal Court,
will have to consider reparations for victims in refugee camps in the near
future when the victims seek to enforce their right to reparations. To date, the
delivery of reparations in these contexts has not been analysed adequately in
the academic literature; this is the gap that this article aims to discuss. The
article explores the extent to which it is suitable and feasible to deliver
reparations in refugee camps. One of the main arguments is that living in a
refugee camp could compound the crime-related harm already sustained by victims.
This feature, along with the instability of the situation of victims and the
infrastructure of the camp, constitute key characteristics of refugee camps and
should each be taken into consideration in delivering reparations. As this
article suggests, the instability of the victims’ situation will inform which
modalities of reparations are suitable to be delivered in the context of a
refugee camp. Subsequently, the compounded harm and the camp's infrastructure
will inform which particular reparative measures, corresponding to each
modality, will be suitable and feasible – respectively – to be delivered. The
methodology includes desk-based and qualitative research and analysis of primary
and secondary sources and case studies.

--------------------------------------------------------------------------------


KEYWORDS

reparationsrefugee campscompounded harminternational crimes

--------------------------------------------------------------------------------

Type Articles
Information
Israel Law Review , Volume 57 , Issue 1 , March 2024 , pp. 63 - 101
DOI: https://doi.org/10.1017/S0021223723000092 [Opens in a new window]
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press in
association with the Faculty of Law, the Hebrew University of Jerusalem


1. INTRODUCTION

Forced displacement trends have evolved continuously in recent years, with an
impact on people in central and southern parts of Latin America, Africa, and
Asia, and in the recent humanitarian crises in Afghanistan and Ukraine. Of the
103 million forcibly displaced in the world, 74 per cent are hosted in
developing countries.Footnote 1 Many are placed in refugee camps, which are
settlements used to respond to humanitarian emergencies and are intended to host
refugees on a temporary basis.Footnote 2 In practice, however, they often become
permanent shelters for displaced people.

The number of victims of war crimes, crimes against humanity and genocide, who
have been displaced and are now hosted in refugee camps, is constantly growing.
The commission of these international crimes may fall within the jurisdiction of
the International Criminal Court (ICC), which means that in the foreseeable
future the ICC will need to face the challenge of analysing the award of
reparations to victims who live in these contexts. As a result, the Trust Fund
for Victims (TFV), the body in charge of implementing reparations ordered by the
ICC, is likely to be called upon to design and implement reparations plans in
refugee camps. This task would create a myriad of challenges arising from the
living conditions in camps, the uncertainty of the fate of the victims living in
the camps, and the humanitarian assistance already provided therein. It would
also raise the question of the extent to which delivering reparations in the
camps is suitable and feasible.

While some reparations policies at the domestic level have focused on displaced
populations,Footnote 3 international criminal tribunals have not sufficiently
addressed the claims of displaced populations, despite the fact that their
statutes include references to the forced displacement of populations as an
international crime and that most of the crimes under their jurisdiction could
be committed against displaced persons.Footnote 4 Notably, in 2019 the ICC
issued the first conviction for forcible transfer and deportation as a crime
against humanity and for ordering the displacement of the civilian population as
a war crime.Footnote 5

While member states of the ICC have recognised the importance of strengthening
the Court's reparations scheme and fortifying the role of the TFV,Footnote 6 no
ICC member state has pushed explicitly for an approach in favour of displaced
persons who have been victims of ICC crimes. In recent years, human rights
lawyers and organisations have been urging the Court to investigate the
commission of international crimes against refugees, migrants and asylum
seekers.Footnote 7 The ICC has decided to adopt steps to address these concerns;
for instance, the Office of the Prosecutor (OTP) has started actively to support
investigations into the commission of international crimes against refugees and
migrants in Libya.Footnote 8

However, the development of ICC standards regarding the granting of reparations
to displaced persons is still very nascent. As part of the relevant proceedings,
the ICC has issued reparations orders in four cases, although to date the Court
has not implemented any reparations measures for victims who have been forcibly
displaced and now live in refugee camps. Indeed, in the reparations draft
implementation plan in the case of Prosecutor v Germain Katanga, the TFV noted
the challenges of implementing a collective reparations programme to benefit
victims living in refugee camps because of their limited legal status and
residence in these settings, and uncertainty of the approval of the hosting
state.Footnote 9 Along with the lack of experience of the ICC in granting
reparations in refugee camps, there is increasing pressure from victims’
representatives to make known the difficulties faced by victims living in such
camps and the importance of the involvement of the ICC in these
contexts.Footnote 10

While the existing academic literature has not explored whether it is possible
for the ICC to implement reparative schemes in refugee camps, this article aims
to bridge the gap between the lack of consideration of this question, on the one
hand, and the imminence of its practical relevance, on the other. It ultimately
aspires to contribute to the discussion of which modalities of reparations, from
those ordered by the ICC Trial Chambers following conviction of the perpetrator,
would be the most suitable to be delivered in the context of a refugee camp, and
subsequently make suggestions pertaining to the specific reparative measures
that are most suitable and feasible to be implemented therein. To do so, it
suggests that a refugee camp constitutes a unique situation, defined by three
key elements. These are (i) the instability of the situation of victims, (ii)
the presumed compounded harm suffered as a result of being in a refugee camp,
and (iii) the infrastructure of the camp. Each of these elements will inform the
choice of modalities and the corresponding reparative measures that are the most
appropriate to be delivered in such an environment.

The research methodology included desk-based doctrinal research and analysis of
primary and secondary sources, case studies, and qualitative research in the
form of interviews with leading academic experts and humanitarian workers from
the United Nations High Commissioner for Refugees (UNHCR) who are currently
working in refugee camps. For each case study, the testimonies of UNHCR staff in
those locations have been crucial. The academic experts interviewed were persons
with experience in refugee law, international criminal law and transitional
justice focusing on reparations. The interviews were semi-structured and were
conducted online.Footnote 11

The article is divided into nine sections. Following this introduction, the next
section (2) provides an overview of the ICC framework on reparations, with a
focus on its principles as these were developed in the Court's case law. Section
3 focuses on the distinct situation of refugee camps by initially analysing the
general living conditions therein, and subsequently engaging with the notion of
compounded harm that refugees are presumed to have suffered as a result of their
stay in the camps. In the following section (4) the article touches upon the
difference between reparations and humanitarian aid, and then introduces the
three key elements that will inform the delivery of reparations in the refugee
camps. The first of these is the instability of the situation of victims (5);
this will inform which modalities of reparations are most suitable to be
delivered in the environment of a refugee camp. The second element is the
compounded harm suffered by victims (6); this will inform which particular
reparative measures, corresponding to each modality of reparations, are the most
suitable to be delivered in view of appropriately addressing the harm sustained.
The third element is the infrastructure of the camp (7); this will inform which
of the above reparative measures are feasible in view of whether they can
actually be delivered based on the situation on the ground. The way in which
each of these elements will inform the delivery of reparations is analysed in
the subsequent three sections. For the purposes of the analysis of feasibility
in Section 7, two case studies are examined, corresponding to situations within
the jurisdiction of the ICC with a prominent refugee camp component: Myanmar
(Bangladesh) and Darfur (Sudan). Lastly, Section 8 discusses the risks and
challenges that the TFV should take into consideration in designing its
reparations awards; Section 9 concludes the article.


2. THE ICC LEGAL FRAMEWORK ON REPARATIONS


2.1. AN OVERVIEW

Article 75 of the Rome Statute of the ICC vests the Court with the power to make
an order specifying appropriate reparations for victims against a convicted
person. The statutory purpose of reparations is to ‘oblige those responsible for
serious crimes to repair the harm they caused to the victims and … enable the
Court to ensure that offenders account for their acts’.Footnote 12 The order for
reparations should contain five elements: it must (i) be made against a
convicted person; (ii) inform the convicted person of their liability with
regard to the reparations awarded; (iii) specify the reasons for the reparations
awarded; (iv) define the harm caused to victims (direct and indirect) as a
result of the crimes for which the person is accused, along with appropriate
modalities of reparations; and (v) identify the eligible victims or the criteria
to do so.Footnote 13

Article 75 refers to three modalities of reparations: restitution, compensation,
and rehabilitation.Footnote 14 However, the list is non-exhaustive and, where
appropriate, may include other types of reparation such as those with a
‘symbolic, preventative or transformative value’.Footnote 15 Turning first to
restitution, this modality aims to restore an individual's life to how it was
before the occurrence of the harm and its consequences. It may include being
returned to one's family, home or previous employment; the provision of
continuing education, or the return of lost or stolen property.Footnote 16 It
may also include restoration of a person's liberty, identity, citizenship and
enjoyment of human rights.Footnote 17

Compensation, on the other hand, is an acknowledgement of a person's suffering
as a result of the harm inflicted on them from a gross human rights
violation.Footnote 18 It consists of the ‘award of monetary funds for an
economically assessable damage’,Footnote 19 to support self-sustaining
programmes to gradually enable victims to become self-reliant.

Rehabilitation is a modality that can take various forms. More specifically,
rehabilitation measures are aimed, on the one hand, at addressing the medical
and psychological needs of the victim through the provision of healthcare
services and psychological assistance (physical and psychological
rehabilitation)Footnote 20 and, on the other hand, at facilitating the victim's
reintegration into society through education, vocational training, and
sustainable work opportunities (economic rehabilitation and provision of
education).Footnote 21

‘Symbolic reparations’Footnote 22 or ‘satisfaction’, as the term has been used
by the ICC in its jurisprudence,Footnote 23 include measures that ‘acknowledge
the violation and aim to safeguard the dignity and reputation of the
victim’.Footnote 24 According to the United Nations Basic Principles and
Guidelines on the Right to a Remedy and Reparations for Victims of Gross
Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, some of these measures include (i) verification
of the facts and public disclosure of the truth, (ii) an official declaration or
judicial decision restoring the dignity of the victim, (iii) a public apology or
commemorations to the victims.Footnote 25 They may materialise in the form of
the perpetrator's apology,Footnote 26 or a memorial, commemoration or
forgiveness ceremony.Footnote 27 Symbolic reparations may also be appropriate
for redressing the harm inflicted upon whole communities.Footnote 28

Under Rule 97(1) of the Rules of Procedure and Evidence of the ICC, these
reparations can be of either an individualised or collective nature. Individual
reparations address specifically and directly the harm suffered by the
individual. The collective character of reparations, which refers either to
their nature or their recipients, benefits the community as a whole or a
specific group of victims who receive individualised benefits.


2.2. THE DIFFERENCE BETWEEN MODALITIES OF REPARATIONS AND AWARDS OF REPARATIONS

Identifying which modalities of reparations are appropriate in a specific case
is closely interlinked with the harm caused to the victims as a result of the
crime for which the perpetrator is convicted. As the Appeals Chamber of the ICC
very explicitly ruled in the Lubanga case, ‘the appropriateness of a modality of
reparations can only be determined by reference to the harms that were caused
and which the reparations seek to remedy’.Footnote 29 However, as the Chamber
further explained, a modality of reparation is not the same as an award for
reparation, as meant by the TFV Regulations.Footnote 30 While it is the Trial
Chamber that will identify and order appropriate modalities of reparations, it
is the TFV that will later design awards for reparations based on the modalities
ordered by the Court. In fact, the TFV is assigned a ‘shaping and defining role
with regards to the precise nature of the modalities of the reparations and the
methods of their implementation’.Footnote 31 While it is recommended that all
the modalities ordered by the Court are reflected in the design of the awards,
in a case where a certain modality is not reflected, the TFV would have to
provide a relevant explanation.Footnote 32

This distinction is particularly important for the purposes of this article. We
do not aim to assess the appropriateness of the modalities of reparations
ordered; this will be decided by the Court itself, on the basis of the harm
caused by the crime and for which the perpetrator is liable. Rather, the purpose
of the article is to assess the appropriateness of implementing the modalities
of reparations in the context of a refugee camp. In other words, it seeks to
provide suggestions to the TFV on which reparations ordered by the Court should
be reflected in its design of awards (implementation plan), in terms of how
suitable they are to be delivered in refugee camps. At the second stage, the
article seeks to provide suggestions pertaining to the particular reparative
measures to be delivered to victims living in camps, in terms of both
suitability and feasibility.

The characteristics of a refugee camp can be decisive in determining the
suitability and feasibility of delivering a certain reparation that has been
ordered by the Court. This is because the purpose of reparations is not simply
to deliver redress to victims but rather to do so in a meaningful way by being
‘responsive to the operational reality in which they take place, and the
realities of the harm suffered by victims’.Footnote 33 As such, their
implementation will be influenced directly by the particular conditions of each
case, such as ‘existing capacity, infrastructure, resources, security, ongoing
ethnic tension and instability, and the period of time that has elapsed since
the crimes occurred’.Footnote 34 This operational dimension of reparations is
further understood to signify the ‘feasibility of reparations measures to be
carried out in a local context conditioned by the specific scope of its service
providers, social dynamics and security situation’.Footnote 35

In the past, the TFV had identified circumstances that could affect
implementation of the specific modalities of reparations ordered. These would
include the specific security situation of the region,Footnote 36 the fact that
some forms of redress (such as specialised medical and psychological services)
may not be readily accessible in all regions,Footnote 37 and misinformation
about the true scope of the reparations award, which may cause resentment and
conflict.Footnote 38 Most importantly, the geographical location of victims has
also been a factor considered by the TFV in deciding which modalities are
suitable for implementation in a given case.Footnote 39

A successful delivery programme for reparations will need to consider various
factors such as local conditions, the cultural attitude of victims towards
money, the social structures of gender, class and age, and access to capital by
refugees.Footnote 40 In the end, the success of the reparations programme will
be evaluated based on, inter alia, its sustainability – for example, the degree
to which the positive effects of the programme continue even after its
termination.Footnote 41


2.3. THE ICC PRINCIPLES ON REPARATIONS

While the above considerations are of the utmost importance, awards of
reparations must also be designed in accordance with the principles of
reparations to victims of international crimes, as established by the ICC under
Article 75 of the Rome Statute. The principles were introduced in the Lubanga
amended reparations order,Footnote 42 and were later complemented and elaborated
in the Ntaganda reparations order.Footnote 43

According to these principles, direct and indirect victims are to be treated
with dignity and granted victim-centred reparations in a non-discriminatory
consultative manner, which considers their particular needs and continued
vulnerability.Footnote 44

Reparations should refrain from perpetuating discriminatory practices or
stigmatisation while, at the same time, ensure that they do not create tensions
or animosity among the affected groups.Footnote 45 The delivery of reparations
should embody the ‘no harm principle’ in that they should not inflict further
harm on the victims themselves or on the society in which they live.Footnote 46
Principles such as ‘best interests of the child’ and ‘gender inclusivity’ also
inform the design and delivery of reparations.Footnote 47

Additionally, reparations should be adequate and expeditious, proportionate to
the harm suffered, and reflect non-harmful cultural and customary
practices.Footnote 48 They should also aim to implement self-sustainable
programmes so that the victims and their communities can benefit from them over
an extended period of time.Footnote 49


3. LIFE IN A REFUGEE CAMP


3.1. GENERAL LIVING CONDITIONS

Settlements for hosting refugees are placed in urban and rural areas.Footnote 50
In urban contexts, humanitarian organisations build shelters or collective
centres,Footnote 51 whereas refugee camps constitute a crucial part of the
humanitarian response in rural settings, mostly during emergencies.Footnote 52
National host governments and humanitarian organisations under the leadership of
the UNHCR often administer them, while centralising and guaranteeing the
provision of humanitarian assistance therein.

Refugee camps are designed to protect and assist people who have fled from
persecution; however, they can also have a negative impact on the lives of
refugees.Footnote 53 The delivery of humanitarian assistance within a refugee
camp scheme can reduce the independence of refugees and prolong the trauma of
displacement and its consequences.Footnote 54 Commonly, refugees experience many
limitations on their rights and freedoms.Footnote 55 While some camps may have
an open-entry character, allowing refugees and non-refugees to transit and live
together freely, several host countries restrict refugees’ freedom of movement
and place restrictions on access to primary services, productive activities, and
formal labour employment.Footnote 56

The experience of displacement does not end with allocation to a refugee camp.
The design of refugee camps is based on the premise that they are intended to be
temporary shelters, even when, in practice, refugees’ stay can be prolonged for
many years. Depending on the circumstances that led to their displacement,
‘protracted refugee situations’ – namely when at least 25,000 refugees from the
same country of origin have lived in exile for more than five consecutive years
without a foreseeable opportunity to access durable solutionsFootnote 57 – may
occur.Footnote 58

Living conditions inside the camps can deepen the effect of having been forcibly
displaced. Refugee camps built around the world are not equal. They can share
similarities but also present specificities, which depend on the context and the
profiles of the refugees they host. The quality of living conditions could be
defined by different factors, including material conditions such as the location
and infrastructure of the camp, access to services provided by humanitarian
actors, and the relationship with the local host communities. This section will
delve into four specific types of living environment: (i) stability and
security, (ii) shelter and sanitation, (iii) education and work, and (iv)
health.

Stability and security in refugee camps are linked to the camp's location and
management, and the characteristics of the population. Refugee camps are
typically situated away from capital cities in the host state's poorer regions,
with limited security provisions. As places with a concentration of humanitarian
aid resources, refugee camps are likely to be targets of armed attacks by
external groups or individuals.Footnote 59 The demographic composition of the
camp also plays a crucial role in determining the likelihood of security
threats.Footnote 60 For instance, a higher number of males living in the camps,
in comparison to females, can reduce the probability of an armed attack.Footnote
61 The commission of crimes inside a camp's facilities has an impact on
stability and security standards. Generally, women and girls tend to encounter
greater restrictions in exercising their fundamental rights and being protected
from violence.Footnote 62 In the context of forced displacement crises, systems
to ensure protection can be weakened and, consequently, the risk of sexual and
gender-based violence (SGBV) increases.Footnote 63 Reported cases illustrate
that refugee camps are not an exception.Footnote 64

The adequacy of shelter and sanitation services is fundamental in reducing
exposure to communicable diseases and providing refugees with the means to live
in dignity.Footnote 65 However, the physical infrastructure and water supply of
camps often become inadequate for displaced populations. This is mainly because
refugee camps are considered transitory spaces, and humanitarian organisations
are focused on seeking short-term temporary solutions. The adequacy of such
services needs to be assessed based on the specific context of a refugee camp
and by taking into account various factors, such as climate variations and
cultural considerations.

The level of educational access is a significant indicator of the quality of
life in refugee camps, given that it contributes substantially to the
achievement of self-reliance by refugees. It creates human and social capital,
and forms the basis upon which children can build their futures and contribute
significantly to their communities.Footnote 66 Requirements for access to
education vary from camp to camp, although educational services for children are
generally free. However, in some camps, such as in Liberia, refugees are asked
to pay an annual tuition fee to guarantee their children's access to the school
or to cover registration fees.Footnote 67 In others, even when access to
education is free, refugees could face financial barriers to covering the cost
of school materials, transportation or uniforms.Footnote 68

Limited access to employment and subsequent prolonged dependence on humanitarian
aid can increase the chances of developing psychological problems,
down-skilling, social isolation, familial tensions, conflicts, and the
perpetuation of poverty.Footnote 69 In many contexts, refugees residing in camps
do not have authorisation to work formally in the host country, and have to cope
with restrictions in establishing their businesses,Footnote 70 or accessing
financial capital from formal lending services. These circumstances reduce their
opportunities to invest in or expand their economic activities, which in any
case are concentrated primarily within the camps. Their success will depend on
the needs of the camp and the financial opportunities that refugees might find
to make their businesses sustainable and lucrative. The economic incomes and
well-being of refugees also depend on their access to financial remittances from
abroad.Footnote 71

Lastly, forced displacement has an impact on the physical and mental health of
the affected populations. It does so in various ways, depending on the specific
vulnerabilities of the population. The well-being of displaced persons may be
affected by the traumatic experiences they have suffered in their countries of
origin or the challenging conditions of their journey.Footnote 72 In addition,
refugee health can be aggravated by the conditions of the camp settings, where
the transmission of infectious diseases (such as diarrhoeal and respiratory
infections, malnutrition and malaria) is frequent.Footnote 73


3.2. COMPOUNDED HARM

In the light of the above, it can be observed that refugee camps offer unique
conditions for the victims who live there, which may have varied impacts on
them. While the stay at the camp may have a negative effect on the people,
factors such as the duration of stay and the quality of services in the camp
determine how it may affect them and to what extent.Footnote 74 Factors such as
extraterritoriality (as refugee camps are usually created in areas that do not
appear on maps), exception (refugee camps are governed by special legal
instruments that are different from those of the surrounding area), and social
exclusion (as refugees are seen as not belonging to the host community),Footnote
75 all of which result from the policies of the host state, are considerations
that determine the extent of harm.Footnote 76

The following section argues in favour of adopting a presumption of compounded
harm, which may be physical, psychological or economic, and which is added to
the crime-related harm already suffered by victims. The section first discusses
how staying in a refugee camp can affect its residents, and then explains how
the presumption of compounded harm could figure in the reparations framework.

3.2.1. IMPACT ON MENTAL HEALTH

The experiences of victims in their countries of origin – in addition to the
displacement, unstable and unhygienic living conditions in the refugee camps –
can lead to various mental health problems.Footnote 77 Studies have found a
relationship between the length of stay in a camp and a detrimental impact on
the health of its refugees. A study of the Moria refugee camp in Greece suggests
that various stressors, coupled with a longer length of stay in the camp, have a
negative impact on mental health. These stressors include lack of safety;
challenges in accessing water, food, shelter and healthcare; the inability to
produce an income; lack of supportive networks; institutional abuse; and
uncertainty regarding the length of the asylum procedure.Footnote 78

In a study conducted with Syrian adolescent refugees, it was found, inter alia,
that the longer the duration of stay at a refugee camp, the more negative the
impact on adolescents.Footnote 79 Longer stays in the camp led to more severe
psychological problems and a weaker ‘sense of coherence’, which refers to the
cognitive resources one believes can help in coping with stressors.Footnote 80
Another study of the mental health of 148 Rohingya refugees in the Kutupalong
and Nayapara camps in Bangladesh revealed that they suffered from high levels of
post-traumatic stress disorder (PTSD), depression, somatic issues, and other
associated types of functional impairment.Footnote 81 In fact, a direct
relationship was found between the past trauma and mental health results,
although the latter were also affected by daily stressors such as lack of
freedom of movement, limited access to food, and concerns regarding
safety.Footnote 82 Most importantly, it was found that symptoms of depression
were associated with the daily stressors and not the past trauma.Footnote 83

Overall, a review of 20 studies on mental health outcomes for youth living in
refugee camps found a range of maladjustment problems for them such as anxiety,
somatic symptoms, depression, and PTSD.Footnote 84

3.2.2. IMPACT ON PHYSICAL HEALTH

There are various health risks in refugee camps associated with water and
sanitation, food and nutrition, shelter and non-food items, access to health
services and information.Footnote 85 The survival and well-being of refugees in
camps is influenced by the quality of humanitarian aid provided to them.

A study has found that in the camps in the Cox's Bazaar district, water safety
has been affected as a result of bathing, washing and open defecation in the
water sources, with numerous cases of acute water-based diarrhoea and other
water-borne diseases causing significant concerns.Footnote 86 It was also found
that faecal oral diseases of high contagion, such as hepatitis A and E
infections, were also prevalent in the camps.Footnote 87 Similarly, as the
quantity of nutritional food and distribution is not guaranteed, there are
numerous cases of acute malnutrition.Footnote 88 The study also found that
‘overcrowding, indoor cooking practices, and suboptimal shelters constructed
with air-impermeable plastic sheets all contribute to fire and injury risks,
poor indoor air quality, and the proliferation of infectious diseases such as
acute respiratory infections, measles, and tuberculosis within the
camps’.Footnote 89

3.2.3. SOCIO-ECONOMIC IMPACT

Living in a refugee camp can also have an impact on family life and family
structure. Williams has observed that the alteration of the family structure may
begin before migration with men staying behind to fight or become labour
migrants, thus leading to the majority of refugees in a camp being women and
children.Footnote 90 Further, living in refugee camps leads to many losses for
the family experience, such as limited privacy and thus straining relations,
loss of family members, employment and so on, and changes in the roles of family
members.Footnote 91

Additionally, for various reasons refugees struggle to pursue livelihoods. Some
of these are anti-migrant attitudes in the host country, limited access to
resources and loss of human and social human capital, which further lead to
poverty and vulnerability.Footnote 92 Loss of livelihood or economic activities
and restrictions in the refugee camp can exacerbate the harm suffered by
victims. Refugees are put in a position in which they are dependent on
humanitarian actors; this, in turn, risks having a negative impact on their
mental and physical health and planning for their future.Footnote 93 Further,
past traumas resulting from conflict and displacement coupled with the
restrictions of the camp (such as loss of livelihood) compound their experiences
and perpetuate gendered disparities.Footnote 94

3.2.4. PRESUMPTION OF COMPOUNDED HARM

Taking the above into consideration, one could come to the conclusion that
merely living in a refugee camp can cause harm to a person.Footnote 95 When this
person is also a victim of an international crime and has already suffered
related harm, their presence in the refugee camp will only exacerbate the
crime-related harm in a way that either magnifies the existing harm or creates a
new type of harm. It is therefore reasonable to suggest that living in a refugee
camp can compound the harm already suffered as a result of the ICC crime, thus
leading to a presumption of compounded harm for these victims.

It is emphasised that the way in which the concept of ‘presumption of compounded
harm’ is employed in this article differs substantially from the way in which it
has been used by the ICC in the past. In previous jurisprudence the Court had
presumed the existence of harm suffered by victims as a result of the crime, in
order to establish the liability of the perpetrator to rectify it. The Court
adopted this approach where proof of the link between a certain manifestation of
the harm (for example, psychological harm) and the crime itself could not easily
be established.Footnote 96 However, in this case the presumption of compounded
harm refers to a factual concept which does not relate to the liability of the
accused or the modalities of reparations that will be ordered, but instead is
relevant at the stage of formulating and delivering the awards of reparations.
This is because, as mentioned above, reparations should be delivered in a way
that is responsive to the realities of the harm suffered by victims. For the
purposes of our analysis, it is important to distinguish between two different
cases: the first being where the crime itself has caused the displacement of the
victims; the second is where the victims were displaced and settled in a refugee
camp for reasons outside the control of the perpetrator.

A. DIRECT NEXUS BETWEEN LIVING IN A REFUGEE CAMP AND THE CRIME ITSELF

Under the Rome Statute, displacement of populations can amount either to a crime
against humanityFootnote 97 or a war crime.Footnote 98 In these two cases, as
well as in any other case in which a causal link is found between an ICC crime
and the subsequent displacement that led to victims settling in a refugee camp,
the additional harm caused by staying there could be considered a consequence of
the crime itself. This means that, to the extent that the proximate cause test
is satisfied,Footnote 99 the Trial Chamber would need to take this additional
harm into account when ordering reparations against the convicted person in the
first place.

B. NO NEXUS BETWEEN LIVING IN A REFUGEE CAMP AND THE CRIME ITSELF

However, if no such causal link can be established between the crime itself and
confinement in the refugee camp, the additional harm suffered by the victims
arising from their presence there cannot be taken into account by the Trial
Chamber when ordering reparations, given that the latter are determined on the
basis solely of the crime-related harm.

This does not mean, though, that the notion of compounded harm becomes obsolete.
On the contrary, it will be relevant when the TFV formulates the reparations
awards, which, as seen, need to be informed by the needs and realities of harm
experienced by the victims at the time of delivery of the reparations.
Typically, a significant amount of time will have elapsed between commission of
the crime and actual delivery of the reparations. This necessarily means that
what a specific victim may need at the time of the award (for instance, 20 years
after the crime) may no longer correspond to what they lost back then as a
result of the crime.

By way of illustration, an indiscriminate attack against a civilian population,
as a war crime, may have caused a specific victim to suffer a broken leg. In the
immediate aftermath of the attack, this victim would have needed a plaster cast
for it to heal. However, the person is displaced, for reasons not pertaining to
the crime itself, and forced to live in a refugee camp where the fracture is not
addressed. By the time the ICC reparations are to be delivered years later, the
condition of the leg has become worse because of inadequate medical care at the
refugee camp, reaching the stage where a plaster cast would be of no benefit. In
this case, merely providing a plaster cast as a measure of the rehabilitation
ordered by the Court would not help the victim at all. Rather, surgery or the
provision of a wheelchair as a reparative measure might be more appropriate.

Consequently, at the time of delivering the reparations ordered, the victim's
harm should be taken into account in its totality: that is, as harm caused
directly by the crime, compounded by the harm caused in the refugee camp. To
better understand the extent to which a victim's harm has been compounded, it is
imperative that victims are included at the stage of consultations preceding the
draft of the TFV's implementation plan concerning the awards of reparations
ordered by the Court.


4. DELIVERING REPARATIONS IN THE CONTEXT OF REFUGEE CAMPS


4.1. REPARATIONS AND HUMANITARIAN ASSISTANCE

Before proceeding to analyse which reparations are the most appropriate to be
delivered in the context of refugee camps, it should be stressed that reparation
measures are distinct from the humanitarian assistance programmes to which
people have access in such camps. While it is true that the two can overlap or
share some similarities in practice, their respective purposes cannot be
equated.

Humanitarian assistance is aimed primarily at addressing the general
humanitarian needs of refugees. These programmes consist of a variety of
supporting measures such as legal assistance, shelter, food, healthcare, child
protection services, education and vocational training, and community services.
These measures range from those that are implemented with urgency in the context
of emergencies, to those aimed at creating durable solutions in the long term.

It should be noted, however, that in refugee camps there is usually a power
imbalance between humanitarian actors such as international organisations and
non-governmental organisations (NGOs), on the one hand, and refugees, on the
other,Footnote 100 with the latter feeling disempowered. This is true especially
where implementation of humanitarian assistance is poorly executed and leads to
reduced agency and increased dependency of refugees. On the contrary, providing
reparations to refugees for harm they have sustained as a result of the ICC
crime could restore their ownership of their life,Footnote 101 given that
reparations by nature are intended to have transformative value and empower
victims.Footnote 102 As such, contrary to humanitarian aid, reparations require
a deeper understanding of the harm and its subsequent consequences.
Particularly, collective reparations have the potential to initiate the
rebuilding of community tiesFootnote 103 and begin to re-establish community
empowerment.

Overall, humanitarian assistance programmes assist, whereas reparations carry
reparative value. Victims living in camps should be made aware of when they are
beneficiaries of humanitarian assistance and when they have been awarded the
latter,Footnote 104 with camp-based organisations and community leaders
supporting this process. Recognising the delivery of reparations as a process
that is different from the implementation of humanitarian assistance projects is
relevant because, in this manner, refugees can benefit from the reparative value
of reparations.


4.2. THE IMPLEMENTATION OF REPARATIONS AWARDS IN CAMPS

As mentioned above,Footnote 105 in designing awards for reparations, the TFV
should take into account several factors and dimensions. Gender, local culture,
empowerment of victims, and prevention of future harm are only some of these
elements.Footnote 106 On the other side, there are various challenges that need
to be addressed, such as identification of potentially eligible victims.Footnote
107 While the importance of these considerations is recognised, for the purposes
of this article the focus is exclusively on the factor of ‘refugee camps’. The
following sections will zero in on how the unique situation of a refugee camp
can inform the design and implementation of reparations awards to victims living
therein.

It is the suggestion of these authors that, for the purposes of delivering
reparations, the unique situation of a refugee camp is reflected in three
elements. The first of these is the instability of the victim's situation: that
is, the uncertainty (high or low) of whether the victim will leave the refugee
camp and when. The second, as discussed, is the harm that a victim may
experience simply by living in a refugee camp, and which adds to the
crime-related harm already suffered, leading thus to compounded harm. The third
element is the infrastructure of the refugee camp and the services already
provided there.

As will be analysed, each of these elements will inform the design and delivery
of reparation awards in different ways. The high or low certainty of victims
leaving the refugee camp in the foreseeable future will determine which
reparations, from those ordered by the Court, should be reflected in the
reparations awards; in other words, which modalities are suitable to be
implemented in the context of a refugee camp. Once this assessment is made, the
TFV will then need to consider the nature of these modalities: that is, which
are the most appropriate reparative measures to address the specific needs that
have arisen from the harm suffered. This is where the other two elements – the
notion of compounded harm and the camp infrastructure – become relevant. The
former will determine which reparative measures are the most suitable to be
delivered in view of appropriately addressing the specific harm suffered, while
the latter will inform the feasibility of such measures – that is, if they can
actually be delivered on the ground.


5. INSTABILITY OF THE SITUATIONS OF VICTIMS AND SUITABLE MODALITIES OF
REPARATIONS

The degree of certainty of leaving or not leaving the refugee camp is an
important factor to consider in delivering reparations. Knowing the status of
individual victims is necessary in order to ensure that the latter can make use
of the reparations awarded to them. For instance, delivering an award that
requires its use in the camp loses its value as soon as the victim leaves, thus
rendering it useless. Consequently, it is imperative that the TFV assesses the
degree of certainty of departure from the camp by consulting with relevant
actors, such as governments in the host country and humanitarian organisations,
and taking into consideration the actual stage of resettlement procedures.

First, it should be stressed that there are various ways through which a person
may leave the camp. These range from refugees leaving the camp of their own
volition, without the support of any organisation, to leaving through a
UNHCR-assisted process of a durable solution. For instance, a refugee may leave
the camp in search of work or because life outside the camp is
preferable.Footnote 108 Such cases depend on many factors, including the
structure of the camp, and are thus so unpredictable that they cannot be
exhaustively documented or discussed in this article.

On the other hand, durable solutions are the primary mechanisms which with the
UNHCR helps refugees to achieve a secure protection status, ensuring them access
to their rights on a lasting basis.Footnote 109 They include voluntary
repatriation to the country of origin, third-country resettlement, and local
integration in the country of asylum.Footnote 110 However, refugees often
struggle to access at least one of these processes, which are, in general,
lengthy and require various actors and stakeholders to come together. As such,
the certainty of leaving the refugee camp can hardly be measured given that even
where these procedures are already under way, it can take years before a refugee
is actually resettled.Footnote 111 In the meantime, it is important for refugees
to be self-reliant, have their harm addressed and needs met.

For the purposes of this article, a distinction is made between a high degree of
certainty of leaving the refugee camp and a low degree of certainty. Each degree
will inform differently the decision of the TFV in terms of which modalities,
from those ordered, are the most suitable to be implemented. The modalities to
be examined here are those recognised by the Court in its Statute and
jurisprudence: restitution, compensation, and rehabilitation (physical and
psychological, educational and economic), as well as symbolic measures.


5.1. HIGH CERTAINTY OF LEAVING THE REFUGEE CAMPS

5.1.1. REFRAINING FROM DELIVERING REPARATIONS

In a case where the certainty of departing from the camp is assessed as high,
there are two suitable options in terms of delivering reparations. The first is
to not deliver reparations at all and wait for the resettlement, integration or
repatriation procedure to be completed. While feasible, this option is far from
optimal given that any kind of delay compounds the harm already suffered by the
victims and perpetuates feelings of being left unacknowledged.Footnote 112 It
would also be practically more difficult, expensive and inefficient to track
down where victims go once they leave the camps.

5.1.2. SUITABILITY OF COMPENSATION

The second option is to deliver reparations in the form of compensation. Given
the imminence of departure, this modality would appear to be the most suitable.
A monetary award is by nature a measure with high flexibility, which allows the
victim to make use of the award regardless of the geographical stability of
their situation. Also, compensation would allow for a more cost-efficient
reparations programme. Given the high costs of maintaining and operating
infrastructural and service-related facilities within the camps, with these
investments being lost once refugees are relocated or repatriated,Footnote 113
delivering compensation would avoid situations where victims leave the camp
before they can utilise or access the full scope of the reparations awarded.

5.1.3. SUITABILITY OF OTHER MODALITIES

Once the victims have been permanently resettled elsewhere or repatriated, the
TFV then can consider the possibility of delivering further reparations under
relevant health and economic rehabilitation programmes. This will also depend on
the assistance that victims received or will receive as being part of a
resettlement programme. Otherwise, should the TFV assess that such programmes
are not feasible because of the different locations of the victims then, in
addition to the previously delivered monetary award, a symbolic monetary sum
could be provided to compensate for the lack of access to the other reparations
to which victims would have an established right.Footnote 114

An interesting alternative, which in a way combines the two options, is to use
the money that would be the object of compensation to fund resettlement schemes
in the third state that has agreed to admit the victims as refugees with
permanent residence status. However, the sustainability of this option is
contested given that resettlement is not usually a mass process, and it is
always conducted on the basis of individual assessment, with refugees being
resettled in different states based on their particular profile and needs, as
well as the pre-conditions set by the receiving country. This means that victims
are bound to end up in different states, so the allocation of funds by the TFV
to each of these states could prove cost-inefficient and challenging, given that
this ‘investment’ would benefit only a small number of victims. Additionally, in
practice, resettlement is highly certain only when the person and their
dependants (if applicable) are at the final stage of travel arrangements, which
means that the TFV cannot be engaged beforehand but only when the resettlement
procedure is almost completed.

Even if the above ‘hurdles’ were to be overcome, there would still be challenges
related to the selectivity of victims, which the state would be required to meet
for resettlement to be within the limits of reparation. If the scheme is
non-existent at state level, the TFV would only have leverage to fund such a
resettlement scheme for victims who have suffered harm as a result of the
prosecuted crime. This may create tensions and real grievances by other members
of the camp. As this is a very high risk and source of further harm, the
proposed alternative could be proposed only if the TFV is ready to complement
said resettlement scheme with an assistance programme that would also cover the
non-case victims.


5.2. LOW CERTAINTY OF LEAVING THE REFUGEE CAMPS

Contrary to the above, if the possibility of leaving the camp is assessed as
low, then, for the purposes of delivering reparations, the situation should be
treated as ‘permanent’. In the Katanga case, for instance, some of the victims
had refugee status and were on a waiting list to be resettled in Europe or in
the United States. As it was not clear at which stage of the process these
individuals were and whether they would be resettled soon, the TFV decided to
include them in the reparations programme for the country in which they were
located at that point in time.Footnote 115

In other words, what the TFV did was to assess the certainty of whether victims
with refugee status would leave the place where they lived and, concluding that
such certainty was low – or in any case unclear – it decided to proceed with the
reparations programme as it would normally do in cases where relocation of
victims is not an issue. Drawing from that case, it would seem logical to
suggest that where it is uncertain or unclear whether and when victims will
leave the refugee camp, their situation should be treated as ‘permanent’ for the
purposes of reparations programmes. In such cases, the fact that victims remain
in a refugee camp does not exclude by and in itself the consideration of a
certain modality as suitable to be delivered therein. Of course, as will be
demonstrated, other factors will inform such suitability in the context of a
refugee camp.

5.2.1. SUITABILITY OF RESTITUTION

Turning first to restitution, given the nature of the crimes over which the ICC
has jurisdiction and the nature of the harm inflicted as a consequence of these
crimes, restitutio in integrum, more often than not, is unachievable in some
cases.Footnote 116 As such, whether this modality can be reflected in the
reparation awards will depend primarily on the crime committed and the nature of
the harm suffered.

Specifically, where the commission of the crime resulted in the displacement of
victims and their presence in a refugee camp, then one of the first steps
towards restitution would be to facilitate the return of these victims to their
country of origin. Following this, the TFV could then assess the appropriateness
of more specific measures included in the notion of restitution, such as return
to one's family, home or previous employment, or the returning of lost or stolen
property.Footnote 117 However, given that the delivery of this modality, by its
nature, would start outside the refugee camps, its further examination exceeds
the scope of this article. Measures related to economic restitution, which is
indeed possible even in the context of a refugee camp, will be examined under
the subsection of economic rehabilitation.

5.2.2. SUITABILITY OF COMPENSATION

As far as compensation is concerned, the suitability of delivering this modality
in the context of refugee camps would depend primarily on the duration of the
victims’ stay therein. For instance, where the duration is long, meaning that a
significant period of time has elapsed since the alleged crimes were committed,
it could be assumed that ‘the loss caused by the crime will either have been
already replaced, or a coping mechanism found’.Footnote 118 This is particularly
relevant in the case of refugee camps where humanitarian actors are already
active and rehabilitation mechanisms are already established. As such, the
delivery of monetary awards would appear to be the most suitable modality.

In addition, with a few exceptions, living conditions in refugee camps are not
always optimal and humanitarian needs remain quite high despite the humanitarian
assistance provided. In such a case, a monetary award is a suitable measure
given the ‘flexibility’ associated with it, in the sense that it rests upon
victims to decide where to allocate this money, based on their particular and
more pressing needs.Footnote 119 In any case, monetary compensation via cash
transfers can prove to be a viable option to reach people more easily who are in
fragile and conflict-affected areas.Footnote 120

5.2.3. PHYSICAL AND PSYCHOLOGICAL REHABILITATION

In relation to rehabilitation, in its physical and psychological form, the
suitability of providing this modality to victims will depend primarily on the
extent to which their harm has already been addressed by humanitarian actors
operating in the camps. In general, though, even where rehabilitative services
have already been established in the camps by humanitarian actors, these will
usually be addressing the ‘primary needs’ of individuals and not the ‘hard core’
psychological harm and stigma associated with some of the crimes.Footnote 121 In
such a case, psychological rehabilitative measures will prove to be not only
suitable but also necessary.

In some cases, though, even these ‘primary needs’ are left unaddressed,
especially if the existing health infrastructure in the camps is of poor
quality. It is important then to provide physical rehabilitation given that the
latter aims to restore the victims’ capacity to ‘pursue occupational interest
and, to become self-reliant and productive members of their family and
community’.Footnote 122 However, should the lack of available specialised
services on the ground prove to be significant, the TFV may not be able to
address appropriately every kind of injury sustained.Footnote 123

5.2.4. EDUCATION

As discussed, rehabilitation can also take the form of education and
skills-centred training. The latter is suitable for victims to the extent that
the purpose of the reparatory programme is to enable them to become
self-reliant. An educational setting may ‘indirectly support participation in
the labour market and camp-based economies … [and] play a crucial role in
minimizing the likelihood of poverty when they [refugees] resettle outside of
the refugee camp’.Footnote 124 In any event, though, and in the light of the
added value that ICC reparations should have, the appropriateness of the
aforementioned modality will eventually depend on the existing educational
arrangements in the field given that delivery of education in refugee camps is
usually one of the primary goals of the mandate of humanitarian actors.Footnote
125

Another factor that will inform the suitability of this modality is the period
of time that has elapsed since the commission of the alleged crimes. Where an
extended amount of time has passed, education may not be suitable, in that the
children who were victims of the alleged crimes and were forced subsequently to
flee from their country have now become adults. In that case, vocational
training programmes and income-generating activities would appear to be more
appropriate. Education may still be relevant, though, for the offspring of the
initial victims given that sometimes the latter, when they perceive their lives
to be broken beyond hope, tend to prefer and request assistance only for their
children.Footnote 126

5.2.5. ECONOMIC REHABILITATION

As far as rehabilitation in its economic form is concerned, in the context of
refugee camps this is by far a suitable modality. Individuals in camps are
typically faced with long-term unemployment and prolonged dependency on external
aid,Footnote 127 with situations of exacerbated poverty and acute malnutrition
being prevalent. In such cases, economic rehabilitation – in the form of cash
grants, for instance – would allow victims to establish small enterprises as a
long-term income-generating activity, leading to increased access to food for
themselves and their families.Footnote 128

Such a micro-credit scheme is an efficient way of linking reparations with
sustainable development.Footnote 129 Establishing such systems would be of high
relevance and of significant help as it would allow victims to acquire skills
and experience that they could also put into use after having left the
camps.Footnote 130 It is true that the economic instability and general
uncertainty of a refugee's situation do not allow for traditional approaches of
microfinance to be adopted.Footnote 131 Nevertheless, past endeavours of such
micro-credit schemes in refugee camps are a strong indicator that this system
can succeed even in these conditions.Footnote 132

Refugees who are not considered to be appropriate candidates for micro-credit
could be supported with small livestock programmes. These would be easier to
manage within the confined area of a camp but would rely upon the particular
setting of the camp, which should be suitable for the choice of animals.Footnote
133 In any case, the ‘specific market circumstances’ in and around the camp
should be considered,Footnote 134 as well as any micro-credit schemes and
relevant programmes already established by humanitarian actors. Whether refugees
have rights to land should also be a factor to be taken into account.Footnote
135

5.2.6. SYMBOLIC MEASURES

Last but not least, reparations of a symbolic nature are, in the majority of
cases, a suitable modality regardless of the location of victims. This is
because such reparations are closely related to the dignity of the victims, who
should feel that their suffering and harm is being acknowledged.Footnote 136
This is especially relevant for victims living in refugee camps given that the
protracted period spent there may lead them to believe that the harm caused to
them by the alleged crimes has been forgotten. It is worth noting that victims
find it ‘considerably more difficult to begin the healing process if the
responsible individuals cannot be identified and punished for their
crimes’.Footnote 137


6. COMPOUNDED HARM AND SUITABLE REPARATIVE MEASURES

Once the TFV has assessed which modalities of reparations are the most suitable
to be delivered in the environment of a refugee camp, the next step would be to
define the precise nature of these modalities – that is, how they will appear
for the victims. In other words, the TFV will need to suggest the most
appropriate measures through which each modality will be delivered. In the
Lubanga case, for instance, the TFV assessed that, contrary to
compensation,Footnote 138 rehabilitation was suitable to be deliveredFootnote
139 and proceeded to suggest a holistic programme of psychosocial interventions
such as a life skills programme, group-counselling programme and community
dialogue programmes.Footnote 140

These measures, along with others proposed by the TFV in that case, were aimed
at mitigating the negative impacts associated with the harm suffered by the
victims as a result of the crime.Footnote 141 In other words, it was the harm
that was determinative in the choice and development of the particular measures
under each modality of reparation. This is better demonstrated in the TFV's
implementation plan in the Katanga case. The TFV took into consideration the
four modalities of reparations ordered by the Court and, after making no
comments on any potential unsuitability, it proceeded to categorise the harm
suffered by the victims and propose specific measures tailored to the
harm.Footnote 142 For example, the Trial Chamber had ordered education
assistance as one of the modalities, which the TFV translated into a certain
level of school fees for a maximum of two children for two years.Footnote 143
This amount differed depending on the category of harm: one category related to
harm suffered from loss of the home and livestock and general moral harm;
another related to harm suffered from loss of immediate family members and
general moral harm.Footnote 144

As such, the modalities ordered by the Court need to be operationalised by being
translated into appropriate measures tailored to the harm. This harm is that
caused by the crime. However, as already discussed, the manifestation of a
crime-related harm may have transformed and deepened if the harm was left
unredressed,Footnote 145 or, as this article suggests, if the crime-related harm
was compounded by harm suffered as a result of the victim's stay in the refugee
camp. Consequently, when deciding the specific measures corresponding to each
modality of reparations ordered, the TFV will need to take into account the harm
caused to the victim in its totality in order to deliver reparations that are
actually proportionate to the victim's harm, which may have been transformed
since the time of commission of the crime.

In other words, the victim's compounded harm will inform which particular
reparative measures are the most suitable to be adopted by the TFV, with the aim
of appropriately addressing it. As per the example given above,Footnote 146
where a victim's leg injury was not addressed in the immediate aftermath of a
war crime, and worsened during the victim's stay in a refugee camp as a result
of inadequate healthcare, then the most suitable rehabilitative measure would no
longer be a mere plaster cast but, more appropriately, surgery or a wheelchair.
As such, the compounded physical harm requires the adoption of a different
rehabilitative measure from that which might have been suitable originally. The
extent to which delivery of such a measure is feasible – that is, the extent to
which it can actually be delivered – will depend on the camp infrastructure, as
is analysed in the next section.

At this point, it should be reiterated that a key element in understanding the
precise and potentially transformed nature of crime-inflicted harm is to include
the victims in the consultation process prior to designing the reparations
awards. The Appeals Chamber in the Lubanga case was explicit in that the TFV was
‘instructed to take into account the views and proposals of victims regarding
the appropriate modalities of reparations and programmes that in the view of the
Trust Fund should be a part of any reparations awarded’.Footnote 147 This is
absolutely justified given that reparations need to correspond to the realities
of the harm suffered by the victims and their particular needs. As such, victims
have a central role in the process of designing the reparations awards as they
can provide significant insights into their current situation and needs
regarding how best to redress the (now compounded) crime-related harm in the
camps.Footnote 148


7. INFRASTRUCTURE OF THE CAMP AND FEASIBLE REPARATIVE MEASURES

When the TFV decides the most suitable reparative measures to be delivered,
based on the (compounded) harm suffered by the victims, it is also necessary to
assess the extent to which delivery of these measures is feasible. In other
words, it should be examined whether these measures are able to be delivered
based on the existing structures on and services in the refugee camps. In the
case of Lubanga, for instance, while the TFV had assessed that rehabilitation
was a suitable modality to be delivered, and that physical rehabilitation
initiatives should be developed as suitable reparative measures to respond to
the consequences of the crimes, it subsequently referred to the poor health
infrastructure in Ituri and concluded that it would provide for rehabilitative
services for victims ‘in accordance with the capabilities and facilities
present’ therein.Footnote 149

For the purposes of the feasibility analysis, this article will examine two
different refugee camp contexts and how the services provided therein can inform
the choice of the specific reparative measures that are the most feasible to be
delivered. The first context is the settlements located in the Cox's Bazar
district, in which Rohingyas refugees are living. In this framework the ICC is
conducting an investigation into the alleged crimes committed within its
jurisdiction in Situation in the People's Republic of Bangladesh/Republic of the
Union of Myanmar. The investigation is focusing on the alleged commission of
deportation and persecution as crimes against humanity against the Rohingya
population.Footnote 150

The second context is the refugee camps in East Chad, which are hosting Sudanese
refugees from Darfur. The situation in Darfur has caused large-scale internal
displacement as well as a refugee crisis, with victims fleeing to neighbouring
states, including Chad.Footnote 151 The United Nations Security Council had
taken note of the Report of the International Commission of Inquiry on Darfur to
the Secretary-General and, in 2005, referred the situation in Darfur to the ICC
for crimes committed since 1 July 2002, making it the first ICC investigation on
the territory of a non-state party.Footnote 152 The investigations focused on
allegations of war crimes, crimes against humanity, and genocide.Footnote 153


7.1. CASE STUDY 1: SITUATION IN MYANMAR/BANGLADESH AND THE REFUGEE CAMPS IN
COX'S BAZAR

7.1.1. GENERAL SITUATION

Ninety-seven per cent of Rohingya refugees living in Bangladesh are hosted in
the 33 refugee camps located in Cox's Bazar,Footnote 154 one of the poorest
districts in the country.Footnote 155 Generally, Rohingya refugees need
authorisation to leave the camps.Footnote 156 Moving from one camp to another
for family visits, or to complete community support activities such as teaching,
is possible with authorisation.Footnote 157

In May 2022, more than 130 United Nations agencies, national and international
NGOs were providing humanitarian assistance to Rohingyas in the camps and the
host communities in the Cox's Bazar district.Footnote 158 Refugees received food
assistance through e-vouchers, which can be used to buy food in outlets located
in the camps.Footnote 159 Despite the implementation of specific projects for
providing well-qualified food and nutrition services, food provisions in most of
the camps might not be sufficient to comply with requirements for a healthy and
balanced diet.Footnote 160 The lack of sustainable livelihoods does not allow
all refugees to earn enough money to cover their nutritional needs on their own.
Washing, sanitation, and hygiene facilities have been built in most of the
camps.Footnote 161

Humanitarian organisations run healthcare facilities in the camps.Footnote 162
Primary and secondary healthcare services cover child health, sexual and
reproductive health, mental health and psychosocial support.Footnote 163
Specialised services outside the camps are also available, following assessment
by health actors working in the camps.Footnote 164 Nevertheless, there are still
serious difficulties with the provision of medical aid in the camps, such as
difficulties in accessing healthcare services because of language barriers and
lack of information,Footnote 165 and complaints about discrimination and
mistreatment from health workers.Footnote 166 As the supply of medicines is
limited and inadequate to treat complex and serious diseases,Footnote 167 in
some cases refugees seek paid health assistance outside the camps, which means
that they first need a permit from the camp administration to leave the
facilities.Footnote 168

The law prohibits Rohingya children from attending public or private schools
outside the camps.Footnote 169 Following agreement with the government of
Bangladesh, the UNHCR and the United Nations Children's Fund (UNICEF) launched
the ‘Myanmar Curriculum Pilot’, an education programme covering grades 1 to
9.Footnote 170 There are several beneficiaries from learning centres supported
by the UNHCR and UNICEF.Footnote 171 In parallel, community groups, organised
refugees and madrassas implement informal learning opportunities, although girls
are unable to access some of these alternative programmes.Footnote 172 For this
reason, home-based schools represent an opportunity for girls to receive
education. These schools are also of particular significance for adolescents who
are too old to attend lessons at the learning centres, do not receive
secondary-level education,Footnote 173 and have access only to social clubs in
which they learn how to read and write, and practical skills.Footnote 174 The
Bangladeshi government has restricted some community-based learning facilities,
which used to be operated by an informal network of Rohingya volunteer
teachers,Footnote 175 and which allowed access to education for children with
disabilities, adolescent girls, young mothers, and pre-kindergarten
children.Footnote 176

Diverse challenges on limited access to the right to protection against various
forms of violence, criminality and insecurity have been identified in the camps.
Children face outbreaks of disease, malnutrition, and risks of suffering
different types of violence.Footnote 177 In particular, there has been an
increase in the number of reports of missing children linked to human
trafficking for labour and sexual exploitation.Footnote 178 Women are exposed to
discrimination, forced marriage, kidnapping, trafficking, sexual harassment,
abuse or other forms of SGBV, and an overall lack of security and protection
inside their homes and in the camps.Footnote 179 There are significant concerns
about safety and security in the camps as a result of acts involving criminal
gangs, militant groups, and security forces. Several refugees have been victims
of murder, extrajudicial executions, and disappearances.Footnote 180

The risk of monsoons, dry-season fires and other natural disasters is permanent
in Cox's Bazar. Fire incidents are an iterative and increasing problem, which
not only affect the lives and security of people staying in the refugee camps
but also cause significant damage to households and camp facilities.Footnote 181
They may reduce the impact of implementing humanitarian assistance programmes
and increase the humanitarian needs of refugees.

7.1.2. FEASIBILITY OF REPARATIVE MEASURES

Rohingya refugees will live in the Bangladesh Cox's Bazar district for the
foreseeable future as there are no conditions for their safe return to Myanmar.
It should be noted, however, that some have been relocated to the island of
Bhasan Char.Footnote 182 Bangladesh national authorities do not allow Rohingya
refugees to integrate locally into host communities, and have restricted their
possibilities of seeking other durable solutions, such as third-country
resettlement schemes.Footnote 183 These factors should be taken into
consideration in delivering reparative measures and assessing their feasibility.

7.1.3. FEASIBILITY OF COMPENSATION-RELATED INTERVENTIONS

Compensation through cash-based interventions could empower Rohingyas in a
context where they face restrictions on their freedom. The positive aspect of
providing cash to refugees as a measure of repairing the physical or moral harm
they have suffered is that it recognises their agency to decide how they wish to
use the money.

However, some types of cash-based intervention may not be feasible in Cox's
Bazar. Major difficulties in the implementation of cash-based interventions
could arise in that most refugees are not familiar with specific types of money
transfer. During the COVID-19 pandemic, for instance, mobile money was
beneficial and used especially between the host community to avoid direct
contact and reduce the possibilities of contagion, while, in the camps, access
to mobile data and telecommunications was restricted.Footnote 184 As there is no
full access to mobile phones in the camps,Footnote 185 the use of mobile money
is not feasible. On the contrary, using most traditional forms of cash-based
intervention, such as cash or vouchers for goods or services, would be more
appropriate.Footnote 186

In scenarios where cash-based interventions may be feasible according to the
above, they might still not be sustainable if delivered for redressing the harm
of loss of earnings and employment opportunities. This is because refugee access
to labour markets remains restricted.

Similarly, if cash-based interventions are provided to cover the expenses of
accessing medical services, the low availability and quality of these services
in the camps should be taken into account to assess whether such measure offers
reparative value. In these circumstances, a more feasible option would be to
redress the harm through rehabilitation measures, which can help to improve the
quality standards on access to health, such as building more adequate health
facilities, and increasing the number of specialised staff to treat specific
diseases. Security safeguards must be put in place because of the generalised
situation of insecurity in the camps.

7.1.4. FEASIBILITY OF REHABILITATIVE MEASURES

The quantity and quality of medical services provided in Cox's Bazar camps might
not be enough to redress the harm to victims of specific crimes such as SGBV or
torture. While humanitarian actors have increased the available health services
in the camps, these services lack specialised staff and technology. Establishing
more advanced health facilities to rehabilitate victims could have added value
individually. It would also have a positive impact on the rebuilding of the
Rohingya community as a whole, mainly because the increase in the number of
highly qualified medical services in the camps would benefit not only victims
but the whole community living there and new refugees who will arrive later.

In terms of education, Rohingya children in the camps have only minimal access
to educational programmes. Most challenges are related to inadequate learning
space, lack of adequate educational curriculum and teaching staff, language and
cultural barriers, and psychosocial needs.Footnote 187 As explained above, girls
may face more severe challenges in accessing education. There are no
higher-education programmes in Cox's Bazar camps. Some refugees have access to
the Coursera platform, which allows them to access some educational programmes
online.Footnote 188 However, internet availability in the camps is extremely
limited, as well as access to computer centres or even mobile devices.Footnote
189

The main income-generating activities within the camps are cash-for-work and
refugee volunteer programmes.Footnote 190 A small percentage of refugees may
work at host community businesses or refugee-owned businesses, or generate
income through self-employment.Footnote 191 Economic rehabilitative measures
would help to further develop the existing income-generating schemes. However,
the current legal framework and the willingness of the host state to facilitate
the development of refugees’ micro-businesses within and outside the camps
should be taken into consideration.

7.1.5. FEASIBILITY OF SYMBOLIC MEASURES

Rohingya refugees have already asked the ICC to move the trial proceedings to
the camps,Footnote 192 which has a significant symbolic value. While, in
general, symbolic measures could be considered feasible for delivery within the
structure of the camps, the limited space and the dispersion of refugees in 33
camps should be considered. In any case, their implementation must be in line
with the views of the government as the latter has prohibited the construction
of specific shelters and buildings in the past.Footnote 193

Some recent initiatives to protect Rohingya culture have marked a vital
precedent, such as the Rohingya Cultural Memory Centre, launched by the
International Organization for Migrations (IOM) and the refugee community. This
includes a digital space that aims to preserve Rohingya cultural practices and
strengthen the Rohingya identity.Footnote 194 Refugee artists in the camps have
participated in the collection, producing cultural artefacts and
artwork.Footnote 195 They have also been enrolled in a cultural programme
designed to support them in exploring innovative techniques and developing new
skills.Footnote 196 This initiative has also encompassed creating a cultural
centre in the middle of the camps, where the community has access to various
facilities, including a cultural learning centre, workshops, exhibitions, and
other community-based art and cultural activities.Footnote 197

Adopting any symbolic measure is recommended because it encounters the potential
for acknowledging the harm suffered collectively. Its redress is key to the
protection of the Rohingya heritage because the destruction of communities is
prolonged after the displacement and during life in the camps.Footnote 198
Symbolic measures may be digital or on site, depending on conditions on the
ground.


7.2. CASE STUDY 2: THE DARFUR SITUATION AND THE REFUGEE CAMPS IN EAST CHAD

7.2.1. GENERAL SITUATION

Chad is an ‘arid, low-income, and land-locked country’Footnote 199 with
protracted food insecurity, and ‘one of the lowest human development
indicators’Footnote 200 globally. The country is also one of the world's most
vulnerable to climate changeFootnote 201 and, in 2022, it was classified as a
high-risk country in terms of risk assessment for humanitarian crises and
disasters.Footnote 202

Chad is hosting around 370,000 Sudanese refugees from Darfur, the majority of
whom arrived in the country following the conflict in the early 2000s. They are
settled mainly in 13 refugee camps and one site in the eastern regions of
Ennedi-Est, Wadi Fira, Ouaddai, Sila and Salamat, close to the country's border
with Sudan.Footnote 203 So far, the level of humanitarian needs of these people
remains very high, given the limited access to income-generating opportunities,
health and potable water,Footnote 204 food insecurity and the outdated
infrastructure of the camps.Footnote 205 In addition, the level of poverty among
the refugee population is quite high,Footnote 206 while the delivery of
humanitarian aid is still a challenge given the state of the country's road and
airport infrastructure.Footnote 207 As a consequence, delivery of food and
medicines is complicated.Footnote 208

In December 2020, a National Law on Asylum was adopted, creating a favourable
framework for refugees in terms of access to education and self- or wage-earning
employment.Footnote 209 In terms of education, Chad has taken several
initiatives towards a refugee-friendly education policy, such as elevating
refugee camp schools to the rank of official Chadian public schools.Footnote 210
However, access to education by refugee girls is limited.Footnote 211 Overall,
the primary and secondary education provided in the East Chad camps is well
designed and implemented, with a good system of exams in place.Footnote 212 In
terms of refugee access to higher education, while there is in place a system of
scholarships enacted by actors in the field, these are often limited in number
and there are cases where only half the tuition can be covered, with refugees
not being able to afford the other half.Footnote 213

In terms of employment, even before the adoption of the new asylum law, refugees
– as in the case of all foreigners in Chad – in theory had access to private
sector employment under specific conditions. There was also legislation in place
allowing them to create and own a business in their own name, although there is
no data available on refugees owning their own businesses in Chad.Footnote 214
In practice, refugees do not yet have access to bank accounts, but after the
executive decree is issued for the new law, such access will be granted and
refugees will be able to apply for jobs.Footnote 215 In general, though, young
people are faced with a lack of job opportunities, a problem that is common even
for locals.Footnote 216 Farming is not enough to become self-reliant and the
geographical setting (the desert) limits the available options.Footnote 217 For
girls, there are some income-generating activities, such as sewing, in which
they are involved.Footnote 218

7.2.2. FEASIBILITY OF REPARATIVE MEASURES

While it is true that by 2018 the UNHCR had facilitated the voluntary return
back to Darfur of some Sudanese refugees living in Chad,Footnote 219 the
exacerbated security situation in the region has halted this progress. The
military coup of October 2022, along with constant attacks and renewed violence,
have created anew a hostile environment,Footnote 220 which does not allow for
safe repatriation, at least not in the foreseeable future. On the other hand,
the new asylum law that Chad has passed creates a favourable environment for
refugees and attests to the willingness of the host state to integrate them into
the local society. These factors should be taken into consideration in
delivering reparations and assessing their feasibility.

7.2.3. FEASIBILITY OF COMPENSATION-RELATED INTERVENTIONS

More specifically, the fact that victims living in the East Chad camps will soon
gain access to bank accounts renders feasible the option of compensation through
cash grants. This is because refugees will have a secure way of receiving and
safekeeping the money. It should also be noted that regardless of having access
to bank accounts, money transfers nowadays can take place through mobile apps or
direct distribution of cash. The latter might appear precarious, but so far has
worked successfully in the case of the East Chad camps, without any security
problems arising.Footnote 221

7.2.4. FEASIBILITY OF REHABILITATIVE MEASURES

The feasibility of delivering physical and psychological rehabilitative measures
will depend on the existing health infrastructure of the camps. So far, each
camp is equipped with a small hospital (centre de santé) with one doctor,
nurses, a midwife, and refugees who have been trained and are occupied there on
a voluntary basis.Footnote 222 There is also one psychologist per camp.Footnote
223

There are already facilities for the delivery of primary and secondary
education. Given that many young people wish to pursue further studies at
university level but the number of scholarships is limited, an appropriate
measure would be to subsidise, wholly or partly, those young people who wish to
go to university but lack the means to do so.

In terms of income-generating activities, some schemes have already been
implemented in the camps, but youth unemployment is still very high. Economic
rehabilitative measures would help to further develop the existing
income-generating schemes. They could take the form of a micro-credit system,
established in cooperation with partners on the ground. The development of such
a system would be feasible in the light of both the favourable framework
proposed by the new asylum law in terms of access to employment and bank
accounts,Footnote 224 and the ‘strong ethnic and cultural ties and common
traditions’Footnote 225 shared between the refugees and the local population.
However, the climate and frequent natural disasters should be taken into account
in order to assess the viability of future enterprises that victims living in
these camps may wish to establish.

7.2.5. FEASIBILITY OF SYMBOLIC MEASURES

Lastly, the feasibility of delivering community-oriented symbolic measures is
contested because the victims of the 2003 Darfur conflict are dispersed in 13
camps and one site across East Chad. Eventually it will depend on the particular
measures sought by the victims, given that the issuing of a public apology by
the perpetrator(s) and/or a decision by the ICC, for instance, are symbolic
measures that can be delivered regardless of the geographical situation of the
victims.


8. RISKS AND CHALLENGES

When delivering reparations in refugee camps, there may be particular challenges
or risks that need to be taken into consideration. These are, inter alia, (i)
social animosity, (ii) security concerns, (iii) limited opportunities to invest
an award of money, (iv) gender dynamics, and (v) state cooperation.

Turning first to the risk of social animosity, this is present where only
certain groups of individuals are entitled to reparations. In the context of a
community with close ties between its members, such distinctions can lead to the
recipients of reparations being perceived as privileged and eventually being
alienated.Footnote 226 Also, the fact that refugee camps may host refugees of
different ethnicities, only some of whom are entitled to reparations, elevates
significantly the risk of social animosity. For instance, East Chad camps host
Sudanese refugees not only from the 2003 conflict in Darfur, into which the ICC
has opened an investigation, but also from the renewed and constant conflicts in
the region,Footnote 227 while refugees from the Central African Republic,
Nigeria and Cameroon are also living in these camps.Footnote 228 A way of
minimising such risks would be to initiate meaningful and representative
consultation through the already existing forums in the camps.Footnote 229
Involving victims in the relevant proceedings and providing them with detailed
explanations could significantly reduce misunderstandings,Footnote 230 while it
could also be an effective means of managing their expectations.

This social animosity could easily lead to security issues. Victims in receipt
of monetary compensation may become the target not only of other individuals
inside the camp who did not equally receive compensation, but also of the local
population. The protracted presence of refugees has put pressure on the already
poor natural resources of the region, with tensions being created between the
host population and refugees.Footnote 231 As such, the delivery of monetary
awards to refugees could easily be perceived as unfair and lead to further
conflict. However, the possibility of attacks against refugees, as a result of
cash distributions, should not be a factor that hinders compensatory awards.
Such conflicts may be inevitable, but refugees are better placed to assess the
best way of overcoming them.Footnote 232

Another challenge to be taken into consideration is the limited opportunities to
invest, which might exist in or around refugee camps, the money received as
compensation or in the context of micro-credit programmes. In any case, the
viability of certain business plans on which the money received can be invested
will depend on factors such as the market and climate conditions, as well as the
favourable or otherwise legal framework in the host country.

Gender dynamics and inequalities can also present challenges in the award of
compensation. Refugee camps often accommodate individuals who have fled from
patriarchal societies in which women are barred from accessing financial
resources, even if they are in their name. As such, it is highly probable that
even where women are identified as victims entitled to compensation, this money
might easily end up being appropriated by the husband or the male relative. This
possibility should be considered, with the TFV carefully considering how it can
deliver compensation in a way that ensures equal access to reparations and does
‘not reinforce pre-existing discriminatory patterns’.Footnote 233

Last but not least, the fact that some refugee camps may be located in the
territory of states that are not parties to the Rome Statute can create
challenges in terms of state cooperation necessary for reparations. While state
parties are obliged to cooperate with the Court, including at the stage of
reparations,Footnote 234 non-state parties are not bound to do so.Footnote 235
However, similar to rule 87(5) of the Rome Statute – based on which a non-state
party may be called to provide assistance for the purposes of investigation and
prosecution following an ad hoc agreement – at the reparations stage also such
arrangements could take place and be supported by additional diplomatic efforts.


9. CONCLUSION

This article has attempted to further the discussion of which reparations would
be the most appropriate to be delivered to victims of Rome Statute crimes living
in refugee camps. The starting points for this were the ICC legal framework and
principles on reparations, as well as the unique situation of refugee camps, as
reflected in three key elements. These are (i) the instability of the situation
of victims, (ii) the compounded harm sustained as a result of their presence in
a refugee camp, and (iii) the camp infrastructure.

As discussed, each of these elements has a different impact on the design of
reparations awards for victims living in refugee camps. Once the Court has
identified and ordered appropriate modalities of reparations, it is for the TFV
to design awards for reparations based on the modalities ordered. The process
could very broadly be described as a two-level process.

The TFV first will have to assess which of the modalities ordered are the most
suitable to be delivered in the context of the refugee camp. It will decide so
by taking into consideration the instability of the victims’ situation: that is
whether there is a high or low certainty of their leaving the camp. If their
departure is imminent, then compensation would appear to be the most suitable
modality. Alternatively, if the possibility of their leaving the camp is low,
then all modalities of reparations could be suitable, each to a higher or lesser
extent. In any case, it is advisable that reparations are delivered as soon as
possible to prevent further perpetuation of harm, while taking into account the
various challenges that are present in a refugee camp.

Once this assessment has taken place, the TFV will need to reflect upon the
nature of the suitable modalities. It will need to assess which are the most
appropriate measures, corresponding to each modality, to be adopted, in terms of
suitability and feasibility. For the assessment of suitability, it is suggested
that the TFV will need to consider the harm caused to victims as it has been
compounded as a result of their stay in the camp. This article suggests that the
camp-related harm should be presumed based on the impact that residing in a camp
can cause to victims’ physical and mental health and their socio-economic lives.
Taking this into consideration is imperative in delivering reparations that are
responsive to the realities of the victims’ harm as it has been transformed.

At the same time, the TFV will need to assess whether the reparative measures
chosen for best addressing the victims’ (compounded) harm are also feasible or
practical to be delivered in the environment of the camp. For this, it needs to
ensure that the camp infrastructure and services allow for the actual
implementation of such measures on the ground. To better demonstrate the element
of feasibility, two cases were examined corresponding to situations under the
jurisdiction of the ICC with a prominent refugee camp component:
Myanmar/Bangladesh and Darfur/Sudan.

As the harm needs to be addressed to prevent further exposure and help victims
to cope with the consequent trauma, reparations should be implemented in the
camps without delay. Humanitarian organisations in the field may help with their
previous expertise. Community leaders and members should be involved in
consultations and participatory dialogue, empowering their demands and providing
a better understanding of the situation in the camps.

At this stage, it would be crucial to ensure the participation of victims
themselves and their representative organisations. Consulting meaningfully with
them is an indispensable element in the design and award of reparations. Every
situation, every camp and every type of harm are different and subjective. The
purpose of reparations, first and foremost, is to provide redress that is
meaningful and corresponds to the realities of the victims’ harm. Consequently,
consultation with victims is of the utmost importance and it is they who should
be leading the process, more so in the unique context of refugee camps.


ACKNOWLEDGEMENTS

This article is based on the project ‘Delivering Reparations in the Context of
Refugee Camps’, produced by the authors in their capacity as postgraduate
students and researchers at the Human Rights Centre Clinic at the University of
Essex (UK) under the supervision of Dr Marina Lostal in the academic year
2021–22. The project partner was the Trust Fund for Victims at the International
Criminal Court. The findings of the report were previously presented at the
Minerva Conference on Transitional Justice, ‘A Time for a Material Turn?’ on
13–14 June 2022. The authors are indebted to Dr Marina Lostal for her continuous
guidance and support in the various stages of this research and to all the
experts who provided their input on the subject. All errors are the sole
responsibility of the authors.


FUNDING STATEMENT

Not applicable.


COMPETING INTERESTS

The authors declare none.

--------------------------------------------------------------------------------


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1

1 United Nations High Commissioner for Refugees (UNHCR), Refugee Data Finder, 27
October 2022, https://www.unhcr.org/refugee-statistics.

2

2 Simon Turner, ‘What is a Refugee Camp? Explorations of the Limits and Effects
of the Camp’ (2015) 29 Journal of Refugee Studies 139.

3

3 For examples in transitional justice contexts see Roger Duthie (ed),
Transitional Justice and Displacement (Social Science Research Council 2012).

4

4 Statute of the International Criminal Tribunal for the Former Yugoslavia
(entered into force 25 May 1993) arts 2(g), 5(d); Statute of the International
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5

5 ICC, Prosecutor v Bosco Ntaganda, Sentencing Judgment, ICC-01/04-02/06, 7
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6

6 United Nations, ‘Speakers Urge More Resources for International Criminal
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7

7 European Center for Constitutional and Human Rights (ECCHR), International
Federation for Human Rights (FIDH) and Lawyers for Justice in Libya (LFJL), ‘No
Way Out: Migrants and Refugees Trapped in Libya Face Crimes Against Humanity’,
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8

8 ICC, ‘Statement of the ICC Prosecutor, Karim A.A. Khan QC: Office of the
Prosecutor Joins National Authorities in Joint Team on Crimes against Migrants
in Libya’, 7 September 2022.

9

9 ICC, Prosecutor v Germain Katanga, Draft Implementation Plan relevant to Trial
Chamber II's Order for Reparations of 24 March 2017, ICC-01/04-01/07, TFV, 25
July 2017, paras 59, 64–67.

10

10 See, eg, ICC, Situation in the People's Republic of Bangladesh/Republic of
the Union of Myanmar, Victims’ Joint Request concerning Hearings Outside the
Host State, ICC-01/19, 4 August 2020.

11

11 To conduct the interviews, an ethical approval application was submitted to
and approved by the University of Essex Ethics Committee (ETH2122-0796) in
February 2022. The participants did not consent to have their names disclosed
for purposes other than the support of the Human Rights Centre Clinic Project
‘Delivering Reparations in the Context of Refugee Camps’, produced by the
authors in their capacity as postgraduate students at the University of Essex,
in partnership with the Trust Fund for Victims at the International Criminal
Court. This is why in the present article the interviewees are referred to as
‘Experts’.

12

12 ICC, Prosecutor v Thomas Lubanga Dyilo, Amended Reparations Order,
ICC-01/04-01/06-3129-AnxA, Appeals Chamber, 3 March 2015, para 2.

13

13 ICC, Prosecutor v Bosco Ntaganda, Reparations Order, ICC-01/04-02/06, Trial
Chamber VI, 8 March 2021, para 23.

14

14 In its orders for reparations, the Court uses the term ‘modalities of
reparations’ to refer to each of the reparations categories of restitution,
compensation, rehabilitation and symbolic measures. For purposes of consistency,
the term ‘modality’ is used in the same way throughout the article. See ICC,
Prosecutor v Ahmad Al Faqi Al Mahdi, Reparations Order, ICC-01/12-01/15-236,
Trial Chamber VIII, 17 August 2017, para 46 (where the Court mentions that
‘Reparations “modalities” are the specific methods identified to address the
kinds of harm requiring reparations. With regard to modalities, Article 75 of
the Statute gives a non-exhaustive list, including “restitution, compensation
and rehabilitation”’).

15

15 Lubanga, Amended Reparations Order (n 12) para 34.

16

16 ibid para 35.

17

17 United Nations General Assembly (UNGA), Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International
Humanitarian Law (21 March 2006), UN Doc A/RES/60/147, para 19.

18

18 ICC, Prosecutor v Germain Katanga, Reparations Order, ICC-01/04-01/07-3728,
Trial Chamber II, 24 March 2017, para 103 fn 431.

19

19 Ntaganda, Reparations Order (n 13) para 202..

20

20 Lubanga, Amended Reparations Order (n 12) para 42.

21

21 ibid para 67.

22

22 Al Mahdi, Reparations Order (n 14) para 49.

23

23 Ntaganda, Reparations Order (n 13) para 88.

24

24 ibid.

25

25 UNGA (n 17) para 22.

26

26 Al Mahdi, Reparations Order (n 14) para 71.

27

27 ibid para 90.

28

28 ibid para 49.

29

29 ICC, Prosecutor v Thomas Lubanga Dyilo, Judgment, ICC-01/04-01/06 A A 2 A 3,
Appeals Chamber, 3 March 2015, para 200.

30

30 ibid.

31

31 ICC, Prosecutor v Thomas Lubanga Dyilo, Filing on Reparations and Draft
Implementation Plan, ICC-01/04-01/06-3177-Red, TFV, 3 November 2015, para 110a.

32

32 Lubanga, Appeals Chamber Judgment (n 29) para 200.

33

33 Lubanga, TFV Filing on Reparations (n 31) para 15.

34

34 ibid.

35

35 ICC, Prosecutor v Bosco Ntaganda, TFV Observations Relevant to Reparations,
ICC-01/04-02/06-2476, Trial Chamber IV, 28 February 2020, para 102.

36

36 ibid 107; Katanga, TFV Draft Implementation Plan (n 9) para 122.

37

37 Ntaganda, TFV Observations (n 35) para 107.

38

38 Katanga, TFV Draft Implementation Plan (n 9) para 122.

39

39 ibid para 59.

40

40 Naomi Roht-Arriaza and Katharine Orlovsky, ‘A Complementary Relationship:
Reparations and Development’, Research Brief, International Center for
Transitional Justice, July 2009, 3.

41

41 ICC, Prosecutor v Thomas Lubanga Dyilo, Draft Implementation Plan for
Collective Reparations to Victims, ICC-01/04-01/06-3177-AnnA, TFV, 3 November
2015, paras 234–35.

42

42 Lubanga, Amended Reparations Order (n 12) paras 6–52.

43

43 Ntaganda, Reparations Order (n 13) paras 15–40; this reparations order was
partially reversed and remanded by the Appeals Chamber on 12 September 2022 but
it is unclear to what extent the principles have been revoked. The Appeals
Chamber did not contest the Principles themselves but found error in the way in
which the Trial Chamber (i) failed to make any appropriate determination or
provide a reasoned decision in relation to the number of potentially eligible or
actual victims of the award; (ii) failed to provide an appropriate calculation
or set out sufficient reasoning for the amount of the monetary award against Mr
Ntaganda; (iii) did not assess and rule upon the victims’ applications for
reparations and did not lay out parameters for an assessment of eligibility
procedure by the TFV; and (iv) did not provide reasons in relation to the
concept of transgenerational harm and the evidentiary guidance to establish
this. For the full decision see ICC, Prosecutor v Bosco Ntaganda, Judgment on
the Appeals against the Decision of Trial Chamber VI of 8 March 2021 entitled
‘Reparations Order’, ICC-01/04-02/06 A4-A5, Appeals Chamber, 12 September 2022.

44

44 Lubanga, Amended Reparations Order (n 12) paras 12–19.

45

45 ibid para 33.

46

46 Lubanga, TFV Filing on Reparations (n 31) para 16.

47

47 Lubanga, Amended Reparations Order (n 12) paras 24–26.

48

48 ibid para 47.

49

49 ibid para 48.

50

50 UNHCR, ‘Global Strategy for Settlement and Shelter: A UNHCR Strategy
2014–2018’, 16, https://www.unhcr.org/media/32280.

51

51 ibid 18.

52

52 ibid 17.

53

53 UNHCR, Policy on Alternatives to Camps (22 July 2014), UN Doc
UNHCR/HCP/2014/9, 4.

54

54 ibid.

55

55 ibid.

56

56 ibid.

57

57 UNHCR, Conclusion on Protracted Refugee Situations No. 109 (LXI) ExCom
Conclusions (8 December 2009),
https://www.unhcr.org/publications/conclusion-protracted-refugee-situations. In
2021, approximately 74 per cent of the total refugee population was in a
protracted refugee situation. Some examples of these situations are the South
Sudanese in Sudan, Central African in Cameroon, Rohingya in Bangladesh, and
Syrians in Jordan: UNHCR, Global Trends: Forced Displacement in 2021 (2002), 20,
https://www.unhcr.org/publications/brochures/62a9d1494/global-trends-report-2021.html.

58

58 ibid.

59

59 UN Security Council, Resolution 1208 (1998) on the Situation in Africa:
Refugee Camps (19 November 1998), UN Doc S/RES/1208,
http://unscr.com/en/resolutions/doc/1208.

60

60 Richard AI Johnson, ‘Refugee Camp Security: Decreasing Vulnerability through
Demographic Controls’ (2011) 24 Journal of Refugee Studies 23.

61

61 ibid 43.

62

62 Bart de Bruijn, ‘The Living Conditions and Well-Being of Refugees’, UN
Development Programme, Human Development Reports, Research Paper 2009/25, July
2009, 14, http://www.rrojasdatabank.info/HDRP_2009_25.pdf.

63

63 UNHCR, UNHCR Policy on the Prevention of Risk, Mitigation and Response to
Gender-Based Violence (2 October 2020), UN Doc UNHCR/HCP/2020/01,
https://www.unhcr.org/5fa018914/unhcr-policy-prevention-risk-mitigation-response-gender-based-violence.
The UNHCR adopts the Inter-Agency Standing Committee (IASC) definition of
gender-based violence as ‘an umbrella term for any harmful act that is
perpetrated against a person's will and that is based on socially ascribed (i.e.
gender) differences between males and females. It includes acts that inflict
physical, sexual or mental harm or suffering, threats of such acts, coercion,
and other deprivations of liberty. These acts can occur in public or in
private’; see IASC GBV Guidelines for Integrating GBV Interventions in
Humanitarian Action, 2015, Part 1, https://gbvguidelines.org.

64

64 See, eg, Abdi, Awa Mohamed, ‘Refugees, Gender-Based Violence and Resistance:
A Case Study of Somali Refugee Women in Kenya’ in Tastsoglou, Evangelia and
Dobrowolsky, Alexandra (eds), Women, Migration and Citizenship (Ashgate 2006)
231Google Scholar; Krause, Ulrike, ‘Escaping Conflicts and Being Safe?
Post-conflict Refugee Camps and the Continuum of Violence’ in Buckley-Zistel,
Susanne and Krause, Ulrike (eds), Gender, Violence, Refugees (Berghahn Books
2017) 173Google Scholar.

65

65 De Bruijn (n 62) 30. For instance, poor housing in Sierra Leone led to rodent
infestation, causing the transmission of Lassa fever among camp residents in
2003: Francesa Fontanini, ‘UNHCR Joins Fight against Lassa Fever in Sierra
Leonean Camps’, UNHCR, 1 April 2003,
https://www.unhcr.org/uk/news/latest/2003/4/3e899b5f4/unhcr-joins-fight-against-lassa-fever-sierra-leonean-camps.html#:~:text=The%20UN%20refugee%20agency%20has,and%20Kenema%20districts'%20refugee%20camps;
Bonner, Phillip and others, ‘Poor Housing Quality Increases Risk of Rodent
Infestation and Lassa Fever in Refugee Camps of Sierra Leone’ (2007) 77 American
Journal of Tropical Medicine and Hygiene 169CrossRefGoogle ScholarPubMed.

66

66 De Bruijn (n 62) 37.

67

67 Omata, Naohiko, The Myth of Self-Reliance: Economic Lives Inside a Liberian
Refugee Camp (Berghahn Books 2017) 23CrossRefGoogle Scholar.

68

68 The Lutheran World Federation, ‘Rapid Assessment of Barriers to Education in
Kakuma Refugee Camp with a Focus on Access and Quality in Primary Education’,
February 2015, 7,
https://kenyadjibouti.lutheranworld.org/sites/default/files/documents/Barriers%20to%20Education%20in%20Kakuma%20Refugee%20Camp%20Assessment_0.pdf.

69

69 Anna-Mara Schön and others, ‘Developing a Camp Performance Indicator System
and Its Application to Zaatari, Jordan’ (2018) 8 Journal of Humanitarian
Logistics and Supply Chain Management 346, 346–48.

70

70 Omata (n 67) 21.

71

71 ibid 42.

72

72 Daynes, Leigh, ‘The Health Impacts of the Refugee Crisis: A Medical Charity
Perspective’ (2016) 16 Clinical Medicine 437CrossRefGoogle ScholarPubMed.

73

73 De Bruijn (n 62) 31.

74

74 Interview, Reparations Expert 1, 19 May 2022, ETH2122-0796.

75

75 Michel Agier, ‘Introduction: L'Emcampement du Monde’ in Michel Agier (ed), Un
Monde de Camps (La Découverte 2014) 11, 20 (the original French versions of the
terms used are ‘l'extraterritorialité’, ‘l'exception’ and ‘l'exclusion’);
Turner, Simon, ‘What Is a Refugee Camp? Explorations of the Limits and Effects
of the Camp’ (2016) 29 Journal of Refugee Studies 139CrossRefGoogle Scholar.

76

76 Interview, Reparations Expert 1 (n 74).

77

77 Daynes (n 72) 439.

78

78 van de Wiel, Willemine and others, ‘Mental Health Consequences of Long-Term
Stays in Refugee Camps: Preliminary Evidence from Moria’ (2021) 21 BMC Public
Health 1290CrossRefGoogle ScholarPubMed.

79

79 Orna Braun-Lewensohn and Khaled Al-Sayed, ‘Syrian Adolescent Refugees: How Do
They Cope during Their Stay in Refugee Camps?’ (2018) 9 Frontiers in Psychology
1258, https://www.frontiersin.org/articles/10.3389/fpsyg.2018.01258/full.

80

80 ibid.

81

81 Andrew Riley and others, ‘Daily Stressors, Trauma Exposure, and Mental Health
among Stateless Rohingya Refugees in Bangladesh’ (2017) 54 Transcultural
Psychiatry 304.

82

82 ibid.

83

83 ibid.

84

84 Nadia Vossoughi and others, ‘Mental Health Outcomes for Youth Living in
Refugee Camps: A Review’ (2018) 19 Trauma, Violence and Abuse 528.

85

85 Chan, Emily YY, Chiu, Cheuk Pong and Chan, Gloria KW, ‘Medical and Health
Risks Associated with Communicable Diseases of Rohingya Refugees in Bangladesh
2017’ (2018) 68 International Journal of Infectious Diseases 39CrossRefGoogle
ScholarPubMed; see also Hammer, Charlotte Christiane, Brainard, Julii and
Hunter, Paul R, ‘Risk Factors and Risk Factor Cascades for Communicable Disease
Outbreaks in Complex Humanitarian Emergencies: A Qualitative Systematic Review’
(2018) 3(4) BMJ Global HealthCrossRefGoogle ScholarPubMed, article e000647.

86

86 Chan, Pong Chiu and Chan (n 85).

87

87 ibid.

88

88 ibid.

89

89 ibid. See also Asterios Kampouras and others, ‘Child Morbidity and Disease
Burden in Refugee Camps in Mainland Greece’ (2019) 6(3) Children, article 46,
https://doi.org/10.3390/children6030046.

90

90 Williams, Holly Ann, ‘Families in Refugee Camps’ (1990) 49 Human Organisation
100Google Scholar.

91

91 ibid.

92

92 UNHCR, ‘Livelihood Programming in UNHCR: Operational Guidelines’, 2012, 7,
https://www.unhcr.org/4fbdf17c9.pdf.

93

93 Sarah J Hoffman and others, ‘“Sleeping in a Boundary” Constructing the
Meaning of Health in a Refugee Camp’ (2019) 40 Health Care for Women
International 744.

94

94 ibid.

95

95 Confirmed in Interview, Reparations Expert 3, 19 May 2022, ETH2122-0796;
Interview, Reparations Expert 2, 18 May 2022, ETH2122-0796.

96

96 ICC, Situation in the Democratic Republic of the Congo in the case of the
Prosecutor v Thomas Lubanga Dylio, Decision Setting the Size of the Reparations
Award, ICC-01/04-01/06, Trial Chamber II, 21 December 2017, paras 180–85; ICC,
Projet de plan de mise en œuvre des réparations accordées aux victimes à titre
collectif présenté en exécution de l'ordonnance de réparation modifiée rendue le
3 mars 2015 dans l'affaire concernant Thomas Lubanga Dyilo, Reparations
Implementation Plan, TFV, ICC-01/04-01/06, 1 February 2016, paras 71–80; ICC,
Situation in the Democratic Republic of the Congo in the case of the Prosecutor
v Germain Katanga, Order for Reparations pursuant to Article 75 of the Statute,
ICC-01/04-01/07, Trial Chamber II, 24 March 2017, paras 57–61; ICC, Situation in
the Democratic Republic of the Congo in the case of the Prosecutor v Bosco
Ntaganda, Reparations Order, Trial Chamber VI, ICC-01/04-02/06, 8 March 2021,
paras 136–47.

97

97 Rome Statute of the ICC (n 4) art 7(2)(d).

98

98 ibid art 8(2)(e)(viii).

99

99 Lubanga, Amended Reparations Order (n 12) para 59; Ntaganda, Reparations
Order (n 13) paras 132–33; the ‘proximate cause’ is legally sufficient to result
in liability, assessing, inter alia, whether it was reasonably foreseeable that
the acts and conduct underlying the conviction would cause the resulting harm.

100

100 Interview, Reparations Expert 4, 8 June 2022, ETH2122-0796.

101

101 ibid.

102

102 Interview, Reparations Expert 3 (n 95).

103

103 Interview, Reparations Expert 4 (n 100).

104

104 Interview, Reparations Expert 3 (n 95).

105

105 Section 2.2 above.

106

106 Lubanga, TFV Filing on Reparations (n 31) para 210.

107

107 ibid paras 33–42.

108

108 UNHCR (n 53) 4.

109

109 Frances Nicholson and Judith Kumin, A Guide to International Refugee
Protection and Building State Asylum Systems, Handbook for Parliamentarians No
27 (Inter-Parliamentary Union and UNHCR 2017) 228,
https://www.unhcr.org/3d4aba564.pdf.

110

110 ibid.

111

111 Interview, Humanitarian Actor, 24 May 2022, ETH2122-0796.

112

112 Interview, Reparations Expert 1 (n 74).

113

113 UNHCR (n 53) 5.

114

114 Katanga, TFV Draft Implementation Plan (n 9) para 61.

115

115 ibid para 63.

116

116 Ntaganda, Reparations Order (n 13) para 83.

117

117 ibid.

118

118 Ntaganda, TFV Observations (n 35) para 104.

119

119 Center for Global Development, ‘Doing Cash Differently: How Cash Transfers
Can Transform Humanitarian Aid: Report of the High-Level Panel on Humanitarian
Cash Transfers‘, September 2015, 13,
https://cdn.odi.org/media/documents/9828.pdf.

120

120 ibid 14.

121

121 Interview, Reparations Expert 1 (n 74).

122

122 Lubanga, TFV Draft Implementation Plan (n 41) para 159.

123

123 ibid para 157.

124

124 Hoffman and others (n 93) 745.

125

125 UN, ‘Global Compact on Refugees’, December 2018, para 68,
https://www.unhcr.org/5c658aed4.

126

126 Kristjansdottir, Edda, ‘International Mass Claims Processes and the ICC
Trust Fund for Victims’ in Ferstman, Carla, Goetz, Mariana and Stephens, Alan
(eds), Reparations for Victims of Genocide, War Crimes and Crimes against
Humanity (Brill 2009) 167, 184Google Scholar.

127

127 Schön and others (n 69) 348.

128

128 ACF International, ‘South Sudan: Cash Grants to Support Income Generating
Activities’, January 2012, 3,
https://www.calpnetwork.org/wp-content/uploads/2020/01/ACF-South-Sudan-Case-Study-Jan-2012.pdf.

129

129 Sachithanandan, Pubudu, ‘Reparations for Victims and Sustainable
Development’ in Marie-Claire Cordonier Segger and Sébastien Jodoin (eds),
Sustainable Development, International Criminal Justice, and Treaty
Implementation (Cambridge University Press 2013) 242, 252Google Scholar.

130

130 Interview, Reparations Expert 1 (n 74).

131

131 Timothy H Nourse, ‘Microfinance for Refugees, Emerging Principles for
Effective Implementation’, 2003, https://www.unhcr.org/3fc47f78d.pdf.

132

132 Jacobsen, Karen and others, ‘Using Microenterprise Interventions to Support
the Livelihoods of Forcibly Displaced People: The Impact of a Microcredit
Program in IDP Camps in Lira, Northern Uganga’ (2006) 25 Refugee Survey
Quarterly 23, 28–29CrossRefGoogle Scholar; Nourse (n 131) 2.

133

133 Karen Jacobsen, ‘Microcredit and Other Loan Programs in Protracted Refugee
Situations: Lessons from the Alchemy Project’, Feinstein International Center,
April 2004, 5,
https://www.alnap.org/system/files/content/resource/files/main/jacobsen-microcredit-and-other-loan-programs-in-protracted-refugee-situations-lessons-from-the-alchemy-project%2C.pdf.

134

134 ICC, Prosecutor v Ahmad Al Faqi Al Mahdi, Updated Implementation Plan,
ICC-01/12-01/15-291-Red3, TFV, 14 October 2019, para 129.

135

135 Katanga, TFV Draft Implementation Plan (n 9) para 64; Interview, Reparations
Expert 1 (n 74).

136

136 Interview, Reparations Expert 1 (n 74).

137

137 Yael Danieli, ‘Massive Trauma and the Healing Role of Reparative Justice: An
Update’ in Ferstman, Goetz and Stephens (n 126) 38, 42.

138

138 Lubanga, TFV Filing on Reparations (n 31) paras 194–203.

139

139 ibid para 207.

140

140 Lubanga TFV Draft Implementation Plan (n 41) para 112 and subsequent.

141

141 ibid paras 112, 157.

142

142 Katanga, TFV Draft Implementation Plan (n 9) paras 84, 99.

143

143 ibid para 99.

144

144 ibid.

145

145 Subsection 3.2.4. See also Lubanga, TFV Filing on Reparations (n 31) para 9
(where this assertion is mentioned explicitly).

146

146 Subsection 3.2.4.

147

147 Lubanga, Amended Reparations Order (n 12) para 79.

148

148 Katanga, TFV Draft Implementation Plan (n 9) para 3.

149

149 Lubanga, TFV Draft Implementation Plan (n 41) para 157.

150

150 ICC, Decision pursuant to Article 15 of the Rome Statute on the
Authorisation of an Investigation into the Situation in the People's Republic of
Bangladesh/Republic of the Union of Myanmar, ICC-01/19, 14 November 2019.

151

151 UN Security Council (UNSC), Report of the International Commission of
Inquiry on Darfur to the Secretary-General (1 February 2005), UN Doc S/2005/60,
3.

152

152 UNSC Resolution 1593 (31 March 2005), UN Doc S/RES/1593.

153

153 ICC, Situation in Darfur, Sudan, ICC-02/05, March 2005,
https://www.icc-cpi.int/darfur.

154

154 UNHCR, ‘Operational Data Portal – Refugee Situations (Bangladesh)’, 9 June
2022, https://data.unhcr.org/en/country/bgd.

155

155 UNHCR, ‘The Displaced and Stateless of Myanmar in the Asia-Pacific Region:
An Overview of the Current Situation for Rohingya and Other Persons of Concern
from Myanmar and UNHCR's Response Across the Region’, 21 January 2021, 4,
https://reporting.unhcr.org/sites/default/files/The%20Displaced%20and%20Stateless%20of%20Myanmar%20in%20the%20Asia-Pacific%20Region%20-%20January%202021.pdf.

156

156 Interview, UNHCR Office in Cox's Bazar, 27 June 2022, ETH2122-0796.

157

157 ibid.

158

158 ibid.

159

159 World Food Programme (WFP), ‘WFP Bangladesh Country Brief: May 2022’,
https://docs.wfp.org/api/documents/WFP-0000140752/download/?_ga=2.214103191.1453376078.1656528645-477615344.1656528645.

160

160 Burma Human Rights Network, ‘We Also Have Dreams: Ongoing Safety and Quality
of Life Issues for Rohingya Refugees in Bangladesh’, 8 February 2022, 11,
https://www.bhrn.org.uk/en/report/1191-we-also-have-dreams.html?fbclid=IwAR3hz08CRcxglVBazKtbjOZMwXAQHIV047kZM7zMZZ3F6T3Du2ArTazH-jQ.

161

161 Inter Sector Coordination Group, ‘Joint Response Plan (JRP) Implementation
Update Rohingya Humanitarian Crisis, October–December 2021’, 6 March 2022, 5,
https://reliefweb.int/report/bangladesh/rohingya-humanitarian-crisis-joint-response-plan-implementation-update-october;
International Organization for Migrations (IOM), ‘IOM Bangladesh: Rohingya
Humanitarian Response: Monthly Situation Report’, January 2022, 6,
https://reliefweb.int/report/bangladesh/iom-bangladesh-rohingya-humanitarian-crisis-response-monthly-situation-report-10.

162

162 UNICEF, ‘Bangladesh Humanitarian Situation Report No. 58’, 1 January–31
December 2021, 3
https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-situation-report-no-58-1-january-31-december-2021#:~:text=As%20of%2031%20December%202021,among%20refugees%20in%20the%20camps.

163

163 IOM (n 161) 1.

164

164 Interview, UNHCR Office in Cox's Bazar (n 156).

165

165 Amnesty International, ‘Let Us Speak for Our Rights: Human Rights Situation
of Rohingya Refugees in Bangladesh’, 15 September 2020, 6–7,
https://www.amnesty.org/en/documents/asa13/2884/2020/en.

166

166 ibid 11.

167

167 Burma Human Rights Network (n 160) 13.

168

168 Amnesty International (n 165) 17.

169

169 Human Rights Watch, ‘Bangladesh: Rohingya Refugees Students Expelled –
Ensure Formal Education is Available to All Children’, 1 April 2019,
https://www.hrw.org/news/2019/04/01/bangladesh-rohingya-refugee-students-expelled.

170

170 ibid. Grades 6 to 9 are typically intended for children from 11 to 14 years.
Because Rohingyas are behind in their education level, children enrolled in
these grades are aged 14 to 16 years.

171

171 Interview, UNHCR Office in Cox's Bazar (n 156).

172

172 ibid.

173

173 Human Rights Watch, ’Bangladesh: Rohingya Refugee Schools Face Closure –
Tens of Thousands of Students Will Lose Access to Education’, 18 December 2021,
https://www.hrw.org/news/2021/12/18/bangladesh-rohingya-refugee-schools-face-closure.

174

174 Interview, UNHCR Office in Cox's Bazar (n 156).

175

175 Habibu Rahman, ‘Rohingya Refugee Children Are Being Denied an Education’,
The Diplomat, 3 September 2021,
https://thediplomat.com/2021/09/rohingya-refugee-children-are-being-denied-an-education/.

176

176 Inter Sector Coordination Group (n 161).

177

177 UNICEF (n 162).

178

178 Sarah Ferguson, ‘Children Are Disappearing in Bangladesh’, UNICEF, 10
January 2020,
https://www.unicefusa.org/stories/children-are-disappearing-bangladesh.

179

179 Burma Human Rights Network (n 160) 30.

180

180 Human Rights Watch, ‘World Report 2022’, 73,
https://www.hrw.org/world-report/2022. ‘Seven Killed in Rohingya Refugee Camp
Attack: Bangladesh Police’, Al Jazeera, 22 October 2021,
https://www.aljazeera.com/news/2021/10/22/bangladesh-rohingya-refugee-camps-seven-killed-police#:~:text=Attackers%20have%20killed%20at%20least,AFP%20news%20agency%20on%20Friday.

181

181 ibid. More than 100 fire incidents damaged UNICEF services facilities in
2021 and IOM centres at the start of 2022; see, eg, UNICEF (n 162) and IOM (n
161).

182

182 UNHCR, ‘UNHCR Bangladesh Operational Update – May 2022’, 22 June 2022,
https://data.unhcr.org/en/documents/details/93812.

183

183 UNHCR (n 155) 6.

184

184 Save the Children, ‘COVID-19: Access to Full Mobile Data and
Telecommunications in Myanmar and Bangladesh Is Essential to Save Lives’, 16
April 2020,
https://www.savethechildren.net/news/covid-19-access-full-mobile-data-and-telecommunications-myanmar-and-bangladesh-essential-save.

185

185 Interview, UNHCR Office in Cox's Bazar (n 156).

186

186 ibid.

187

187 Shohel, M Mahruf C, ‘Education in Emergencies: Challenges of Providing
Education for Rohingya Children Living in Refugee Camps in Bangladesh’ (2020) 13
Education Inquiry 105Google Scholar.

188

188 Interview, UNHCR Office in Cox's Bazar (n 156).

189

189 ibid.

190

190 UNHCR, ‘The Impact of Financial Assistance through Volunteer Programmes in
Cox's Bazar Refugee Camps’, June 2022,
https://reliefweb.int/report/bangladesh/impact-financial-assistance-through-volunteer-programmes-coxs-bazar-refugee-camps-june-2022.

191

191 ibid.

192

192 ABC, ‘Rohingya Refugees’ Lawyers Lobby for International Criminal Court To
Sit in Asia’, RNZ, 1 September 2020,
https://www.rnz.co.nz/news/world/424979/rohingya-refugees-lawyers-lobby-for-international-criminal-court-to-sit-in-asia.

193

193 Interview, Reparations Expert 4 (n 100).

194

194 IOM, ‘New Cultural Memory Centre Ensures Continuity of Rohingya Heritage’,
26 May 2021,
https://www.iom.int/news/new-cultural-memory-centre-ensures-continuity-rohingya-heritage.

195

195 ibid.

196

196 ibid.

197

197 For more information on this see the Rohingya Cultural Memory Centre website
at:
https://rohingyaculturalmemorycentre.iom.int/detail.aspx?lang=en&area=blog&cid=1&bid=110&pid=2.

198

198 Interview, Reparations Expert 4 (n 100).

199

199 WFP, ‘Chad Country Brief, April 2021’, 14 May 2021, 1,
https://reliefweb.int/report/chad/wfp-chad-country-brief-april-2021.

200

200 UNHCR, ‘Refugee Policy Review Framework: Country Summary as at 30 June
2020’, 24 March 2022, 1,
https://reliefweb.int/report/chad/chad-refugee-policy-review-framework-country-summary-30-june-2020-march-2022.

201

201 Barney Thompson, ‘Climate Change and Displacement’, UNHCR UK, 15 October
2019,
https://www.unhcr.org/uk/news/stories/2019/10/5da5e18c4/climate-change-and-displacement.html.

202

202 European Commission, Disaster Risk Management Knowledge Centre (DRMKC),
Inform Risk Model Map 2022,
https://web.jrc.ec.europa.eu/dashboard/INFORMRISKCOUNTRYPROFILE2023/?no-header=1&v-vISO3=AFG&no-scroll=1.

203

203 UN Office for the Coordination of Humanitarian Affairs (OCHA), ‘Aperçu des
besoins humanitaires 2020: Tchad’, 12 February 2020 (in French), 27,
https://reliefweb.int/report/chad/tchad-aper-u-des-besoins-humanitaires-2020-janvier-2020#:~:text=Environs%20761%20000%20personnes%20sont,pour%20leur%20int%C3%A9gration%20socio%2D%C3%A9conomique;
Interview, Humanitarian Actor, 24 May 2022, ETH2122-0796.

204

204 UN OCHA, ibid 48.

205

205 ibid 27.

206

206 UNHCR, ‘Global Compact on Refugees: Indicator Report’, 16 November 2021, 46,
https://www.unhcr.org/global-compact-refugees-indicator-report/wp-content/uploads/sites/143/2021/11/2021_GCR-Indicator-Report_spread_web.pdf.

207

207 UN OCHA (n 203) 18.

208

208 ibid 18.

209

209 UNHCR (n 200) 2.

210

210 ibid 10.

211

211 ibid 13.

212

212 Interview, Humanitarian Actor (n 111).

213

213 ibid.

214

214 UNHCR (n 200) 8.

215

215 Interview, Humanitarian Actor (n 111).

216

216 ibid.

217

217 ibid.

218

218 ibid.

219

219 UNHCR, ‘First Darfur Refugee Returns from Chad’, 20 April 2018,
https://www.unhcr.org/news/briefing/2018/4/5ad9a4604/first-darfur-refugee-returns-from-chad.html.

220

220 Agence France-Presse, ‘Clashes in Sudan's Darfur Kill More Than 100’, VOA
News, 13 June 2022,
https://www.voanews.com/a/clashes-in-sudan-s-darfur-kill-more-than-100-/6616442.html;
Marc Espanol, ‘Wave of Atrocities in Darfur Tarnishes Sudan's Coup Authorities’,
Al-Monitor, 16 May 2022,
https://www.al-monitor.com/originals/2022/05/wave-atrocities-darfur-tarnishes-sudans-coup-authorities;
France 24, ‘Violence in Sudan's Darfur Lays Bare Deepening Crisis’, 19 February
2022,
https://www.france24.com/en/live-news/20220219-violence-in-sudan-s-darfur-lays-bare-deepening-crisis.

221

221 Interview, Humanitarian Actor (n 111).

222

222 ibid.

223

223 ibid.

224

224 UNHCR (n 200) 2.

225

225 ibid 4.

226

226 Ntaganda, TFV Observations Relevant to Reparations (n 35) para 105;
Roht-Arriaza and Orlovsky (n 40) 3.

227

227 UNHCR, ‘Darfur Clashes Displace Thousands’, 7 December 2021,
https://www.unhcr.org/news/briefing/2021/12/61af220d4/darfur-clashes-displace-thousands.htm;
UNHCR, ‘Chad Emergency Update’, 18 August 2020, 1–2,
https://data.unhcr.org/en/documents/details/78717; UNHCR, ‘Chad Emergency
External Update (Ouaddai Province, Eastern Chad)’, 7 June 2021, 1,
https://reliefweb.int/report/chad/chad-emergency-external-update-ouaddai-province-eastern-chad-07-june-2021.

228

228 UNHCR, ‘Chad Situation Map of Persons of Concern to UNHCR’, March 2022, 1,
https://data.unhcr.org/en/documents/details/92004.

229

229 Interview, Reparations Expert 3 (n 95).

230

230 Interview, Humanitarian Actor (n 111); Interview, Reparations Expert 1 (n
74).

231

231 Interview, Humanitarian Actor (n 111).

232

232 Interview, Reparations Expert 4 (n 100).

233

233 Ntaganda, Reparations Order (n 13) para 66.

234

234 Rome Statute (n 4) art 75(4).

235

235 Vienna Convention on the Law of Treaties (entered into force 27 January
1980) art 34 (states that a treaty does not create obligations or rights for a
non-state party without its consent).


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Bridging the Gap: Reparations in Refugee Camps
 * Volume 57, Issue 1
 * Dimitra Serafeimidi (a1), Lorena Vilchez Marcos (a1) and Shivani Puri (a1)
 * DOI: https://doi.org/10.1017/S0021223723000092

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Bridging the Gap: Reparations in Refugee Camps
 * Volume 57, Issue 1
 * Dimitra Serafeimidi (a1), Lorena Vilchez Marcos (a1) and Shivani Puri (a1)
 * DOI: https://doi.org/10.1017/S0021223723000092

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Bridging the Gap: Reparations in Refugee Camps
 * Volume 57, Issue 1
 * Dimitra Serafeimidi (a1), Lorena Vilchez Marcos (a1) and Shivani Puri (a1)
 * DOI: https://doi.org/10.1017/S0021223723000092

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