The Al Mahdi Case between Erga Omnes Obligations and Right to Reparation. The International Community as a Victim or as a Donor?

One of the features that contributed to the significance of the Al Mahdi case in the landscape of international criminal law was the decision to include the international community among the beneficiaries of the reparations and, at the same time, to consider its claims satisfied through the reparations granted to others. In so doing, we argue, the Court struggles to reconcile the logic of erga omnes obligations underlying the notion of cultural heritage of humankind with that of reparative justice. The logical problems behind the Court’s reasoning became even clearer when the reparations order came to be executed: as stated by the Trust Fund for Victims, only half of the amount of money necessary to fund the reparations was available, the rest will be contingent on fundraising and, ultimately, on donations by the international community. Paradoxically, therefore, while the latter was excluded from receiving any direct compensation, it was also called upon to contribute to paying it. The aim of the chapter is to explore the contribution made by the Al Mahdi ruling to the longstanding issue of secondary norms governing the violation of erga omnes obligations, also in light of the perplexities, expressed by part of doctrine, regarding the obligation upon those responsible for international crimes to provide reparations and on the inevitable contamination, in this context, between a victimological approach and an approach based on transitional justice.