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the ICC though established in accordance with Article 79 of the Rome Statute, which has a two-fold
mandate: (1) to implement Court-ordered reparations and (2) to provide physical, psychological, and
material support to victims and their families. Though Rome Statute Article 75 permits mandated
reparations, reliance on the Trust Fund will likely become problematic in the near future, as the Fund
is not UN-funded (the ICC is independent from the UN), and the ICC is expected to start ordering
reparations for crimes committed against large numbers of victims, amounting to “considerable sums”
likely exceeding voluntary funding from states [28]. Though the Rome Statute was a significant step
towards defining crimes requiring reparations, legal definitions for violations of water rights on which
reparations guidelines would be based are exceedingly vague. Furthermore, there is no existing study
that applies analysis of laws governing water and environmental crimes to the distinctive needs of the
stateless and displaced people most affected by these crimes.
As Evans argues, “[R]apidly growing jurisprudence confirms state responsibility to provide
reparations for human rights violations caused by state agents or by the failure of states to prevent
violations by non-state actors” [28]. Despite these developments, the procedure for securing reparations
for victims of crimes committed by non-state actors remains elusive.
Additionally, though reparations procedure for victims of human rights atrocities committed by
states is clearer, the actuality of this process is also on rocky terrain, and the process is still in the infancy
stage of becoming inscribed into international norms via practices of the ICC. Legally determining
the necessity of reparations for victims of human rights atrocities remains a significant challenge.
“[T]he adoption of a legally-binding instrument that clearly consolidates the rights of victims and the
establishment of effective operative redress mechanisms have yet to be realised” [28].
For reparations to be considered and ultimately distributed to victims of atrocities, the crimes
with victims entitled to reparations must first be defined. In the case of grave crimes, such as genocide
and crimes against humanity, defined in the Rome Statute, Article 75 states:
1.
2.
The Court shall establish principles relating to reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. On this basis, in its decision
the Court may, either upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or in respect of,
victims and will state the principles on which it is acting.
The Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution, compensation
and rehabilitation. [70]
Principles for how violations of the human right to water ought to be redressed, however,
are non-existent.
As previously demonstrated, the Geneva Conventions do “prohibit” destruction of “objects
indispensable to the survival of the civilian population . . . such as . . . drinking water installations and
supplies and irrigation works . . . ” [34]. Regarding internal conflict, the Conventions state similar
principles in Additional Protocol II relating to the Victims of Non-International Armed Conflicts:
Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack,
destroy, remove or render useless, for that purpose, objects indispensable to the survival of
the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs,
crops, livestock, drinking water installations and supplies and irrigation works. [35]
However, the Geneva Conventions do not specify what the consequences of such destruction are
and, importantly for victims, what the process for reparation, compensation, or redress would
be. The UNWC, as previously argued, is even more devastatingly vague, merely calling for
“discuss[ion]” about “the question of compensation” [74]. The Convention totally omits consideration
of “compensation” for victims of violations of the human right to water committed by non-state actors,
and a process for securing said “compensation”, even for crimes committed by states, focuses on