The Road to Reparations for Victims in Katanga Case

In this post for the ISS, Hope deferred: abrupt end to the Katanga case fails victims, I reflected on the effect of withdrawal of appeal in the Katanga case on the child soldier victims and victims of sexual and gender-based violence.

The ICC Trial Chamber II seized of the Katanga affair has issued a scheduling order inviting states and other interested persons to file submissions relating to the types and modalities of reparations for the 305 victims participating in the case. These are the victims of the charges that Katanga was found guilty of and excludes the category of victims mentioned earlier.

While it is regrettable that some victims will be left out of the reparations process, it is commendable that the ICC is welcoming observations on how best reparations can be administered to the victims who ‘qualify’ for the awards.

It would be remiss of a state or other interested persons offering any observations and recommendations to the ICC not to speak to or engage with the victims themselves. From consultations with victims in other situation countries, these individuals and groups are very clear on what they want for reparations. They do not need ‘outsiders’ to speak on their behalf as to what is appropriate as a remedy. I also do not buy into the idea of managing the expectations of victims on what type of reparations they can obtain. There is absolutely nothing wrong for victims to express their aspirations of getting out of victimhood much as everyone can and must hope for opportunities for a better living. In fact what must be managed is the reparations process, specifically individuals and organisations that deal with victims. Any prescriptive ideas to victims on their salvation from a pathetic situation belong to the museum of past societal ills such as apartheid, slavery and colonialism.

The ICC Registry has published its recommendations. The report supports the conclusion that victims do not want hand-outs that will be depleted within a short space of time. Emphasis by the victims themselves is on skills-building and other avenues that would allow them to ‘fish’ for and feed themselves. Interestingly, the 305 victims are reported as not being interested in symbolic forms of reparations such as memorialisation efforts or publicising and disseminating the ICC judgement in the Katanga case. This finding is nothing short of a slap in the face to transitional justice fundamentalists. Often we hear of noble projects in these and similar areas but the truth is that the dividends of the projects only serve and feed project workers and do little to meet the rightful demands of victims.

Other organisations will soon follow with their recommendations to the ICC. The fine line between meeting the direct and stated demands of and by the victims; and the perceived and felt needs of other for these victims is what the Court must dissect. The onus remains with the Trial Chamber to administer reparative justice to the victims in the Democratic Republic of Congo.

A Reflection on Individual Rights of Persons Appearing Before the International Criminal Court

This article is published in the Working Paper Series on International Justice by the Institute for Justice and Reconciliation and is available here.

The Rome Statute of the International Criminal Court codifies the rights of certain persons who appear before the International Criminal Court (ICC). The paper discusses the practice of the ICC with respect to the rights of individuals who appear before it. The rights of an accused in different phases of ICC proceedings and the rights of victims affected by crimes within the ICC’s jurisdiction are considered at length and in the light of established principles regulating the ICC’s treatment of the right to reparations for victims. These persons are key interlocutors in the international criminal justice system and have shifted the traditional focus of international law from being predominantly on States to being also on individuals; and they bring about a different kind of relationship between States as a collective and their treatment of these individuals arising from obligations imposed by the Rome Statute.

Case of CAR Cannibalism and Victimhood

The BBC report on CAR cannibalism: Why I ate a man’s leg depicting one of many disturbing incidences in the ongoing conflict in the Central African Republic brings to the fore some of the underlying causes of the conflict in the African State. This conflict, whose narrative has taken a religious perspective demonstrates the challenges of not addressing past injustices.

The ‘cannibal’ in this case speaks of his own victimhood as the cause of his strange and vengeful act. What could possibly drive one human being to eat the flesh of another absent of the fear of starvation? The cannibal mentions a pregnant wife and other relatives who were killed by ‘Muslims’ as the cause of his rage. It’s simplistic to reduce the cause of the conflict in the CAR to sectarian violence. There is more to the conflict over the past few years in that country, which we know has an international aspect to it, given the ongoing Bemba trial at the ICC. Religion is however a major factor in the current escalation of violence. The anger that drives the ‘Christians’ to turn violently against ‘Muslims’ is indicative of deeper issues. There are unresolved concerns of the people from the past that have caused a recurrence of violence. The cycle of violence has no doubt turned past victims to perpetrators of today’s conflict. Unless the CAR’s past is unearthed and issues of contention between the different parties addressed, there will be a resurgence of violence and it may take on a different form religious or other form.  The victims must remain at the centre of the resolution of concerns. It is their stories and experiences that will provide the key to the solutions. We may be angst and repulsed by Ouandja Magloire, the ‘Mad-dog’s’ criminal acts, but it is these kind of stories that shed light to the issues, force us to apply our collective thinking and action to the problems in the CAR as opposed to reading yet another story of an African country somewhere going to the dogs.

Acknowledgment of victims’ status as victims and victims as rights bearers

Arguably, the various transitional justice measures aim at providing recognition to victims. The type of recognition that is relevant is one that acknowledges the victims’ status as victims, the violations and the abuses to which they were subject, gives public space to their stories and tries to reverse the marginalization which they typically suffer. But this is not all. In fact, it is even more important to recognize their status as rights bearers.

 Report of the UN Special Rapporteur on the promotion of truth, justice, reparations and guarantees of non-recurrence

The UN Special Rapporteur on the Promotion of Truth, Justice, Reparations and Guarantees of Non-Recurrence, Pablo de Greiff, will present a report to the UN Human Rights Council on 25 October 2013.

In this mandate report, there is a strong focus on the transitional justice ‘pillars’ contribution to the development agenda and a recognition that transitional justice mechanisms ought to acknowledge the special status of victims and their rights accorded by international accepted norms and standards. The mandate report also draws quite extensively but not exclusively from the experiences of North African States and South American transitional justice mechanisms.

A summary of the report is produced below:

1. Deplores the view by States that the development agenda trumps justice needs in a post-conflict State. Tunisia is as an example where steady progress towards the realisation of the Millennium Development Goals did not give any indication of the human rights abuses in that country that led to the popular uprising.

2. Confronting human rights violations is necessary for the development of a post-conflict State. Two developmental challenges are juxtaposed against effects of human rights violations:

(a)   Adaptive preferences: adverse social conditions which diminish agency or the ‘capacity to aspire’ of a people. This social condition leads to poverty in society. Poverty is likened to victimization, which also diminishes dignity.

(b)   Social trust: trust between people influences growth and equity. This trust should also be reflected at the macro-political level between people, civil society and institutions of the State in post-conflict environments. Strong institutions of State that are trusted by other stakeholders in the State promote economic development.

3. Human rights violations undermine the concept of human development. The human development concept relates to the ‘can do’ or capabilities of a people. Human rights violations curtail these capabilities.

4. Transitional justice mechanisms (ought to) prioritize recognition of victims. The type of recognition that is most relevant is one that acknowledges their status as victims and that they have rights.

5. Contributions of transitional justice to development include:

(a)   Prosecuting human rights violations strengthens rule of law.

(b)   Truth commissions: have made recommendations to reform judicial systems which strengthen rule of law and subsequently the development agenda; gather information on victimization that lends support to economic reintegration of previously marginalized groups through specialized programmes. In this latter connection, a recommendation is made that truth commissions should have a wider mandate to investigate economic crimes, including corruption and exploitation of ‘conflict resources’.

(c)    Reparations programmes are extending beyond monetary compensation to distributory measures such as health care and education. These programmes are targeting collective or community reparations.

(d)   Vetting procedures in State institutions are a form of guarantees of non-recurrence. Security sector reform comes with the ‘peace dividend’ where security agents are not involved in human rights violations and security improves. This improvement in security levels in a post-conflict state reduces the cost of security responses therefore contributing in certain respects to the economic development of the State.

6. The report notes the question of reverse causality or dependence. Whereas a clear link is established between transitional justice pillars and their contribution to development, it is a reality that in order for a post-conflict State to embark on the pillars of transitional justice, developmental preconditions must be in place. Resources are required to conduct prosecutions, establish reparations programmes, and conduct vetting and institutional reform among other transitional justice initiatives. The question of the ‘how’ still needs to be explored.

7. Key recommendations include:

(a)    States should renounce the rhetoric and avoid actions that reduce justice to developmental programmes. The Special Rapporteur further urges States not to reduce justice merely to stable institutions and a productive economy, and to renounce strategies that indefinitely postpone justice under the excuse of achieving economic growth first.

(b)   The Special Rapporteur encourages the incorporation of goals on access to justice and remedy in the post-2015 development agenda.

(c)    The Special Rapporteur encourages development promoters to heed the lesson that justice, security and development are linked to one another and, specifically, that in the absence of justice; neither security nor development can be fully realized.

(d)   The developmental significance of transitional justice measures lies in the possibility of fulfilling the normative expectations of victims of past human rights violations as well as others, thereby contributing to strengthened agency, capacity to undertake coordinated action and the participation of victims and non-victims in developmental processes. In this context, the Special Rapporteur urges States to adopt a comprehensive transitional justice approach. Implementing such programmes requires funding and capacities, some of which will require international support.

 

Will Kenya’s withdrawal from the Rome Statute be a missed opportunity for positive complementarity?

Kenya’s withdrawal from the Rome Statute establishing the International Criminal Court (ICC) will be debated in the national assembly on Thursday.

The prospective Bill seeks to not only withdraw Kenya from the Assembly of States Parties to the Rome Statute, but to also repeal the International Crimes Act (No 16 of 2008). This initiative has been met with heavy criticism from Kenyans and segments of the international community, against members of Parliament and the political elite in support of the motion, after it was recently tabled before the House. This move is seen as a renewed effort by the political elite in Kenya to scuttle the ICC trials of the President Uhuru Kenyatta and Deputy President William Ruto.

In March 2013, MPs began their five-year mandate and in this intervening period, they have not endeared themselves to the Kenyan electorate. Recently, MPs aggravated the public by voting as one block to increase their salaries (again) and ignoring the recommendations of the government watchdog on public service wage bill, the Salaries Remuneration Commission (SRC). The SRC urged MPs to be satisfied with the pay package that had been set for MPs prior to their election in March 2013 and in line with keeping the country’s wage bill as equitable and fair as possible to all public servants.

As can be expected, civil society organisations in and outside of Kenya have published strongly worded statements against the move by Parliament seeking Kenya’s withdrawal from the Rome Statute. Hardly a day has gone by in this last week without the publication of reports and statements of concerned parties relating to the intended withdrawal. If the Bill passes, it will erode the very gains that the country has made through legislation in the fight against impunity for international crimes following the Kenya national dialogue and reconciliation process that brought an end to the 2007/2008 post-election violence. This national dialogue and reconciliation process led to the creation of institutions and frameworks that would assist Kenya to deal with past injustices and secure a peaceful future.

On their part, the international community, including the ICC and the Assembly of States Parties (ASP) to the Rome Statute, has reminded anyone who cares to listen within the Kenyan government, that withdrawal from the Rome Statute does not affect the conduct of trials against the Kenyan president and his deputy. In addition, under the provisions of international law captured in the 1969 Vienna Convention on the Law of Treaties, Kenya must comply with obligations, including that of cooperating with the ICC as a requirement under the Rome Statute, arising from the subject matter inquiry before the trial chambers. Those are norms that apply to any international treaty and withdrawal from being a signatory to a treaty does not automatically or immediately release a state from all obligations relating to the treaty. A state can choose to disentangle itself from a commitment it willingly made to the letter of the law in an international treaty, but it is not as easy to be free from the spirit of the law.

Customary norms
The preamble to the Rome Statute captures the very essence of the treaty, which Kenya is bound to as a state party and further bound inseparably by customary international norms, particularly because the international community recognises that millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. These customary norms dictate that it is the duty of every state to investigate and prosecute persons accused of committing these types of atrocities or otherwise transfer these individuals to another criminal jurisdiction that is able so to investigate and prosecute within the requisite standards.

From the sentiments and statements expressed against the Kenyan MPs, there is a resistance to the arguments against the withdrawal from the Rome Statute. Neo-colonialist sentiments and rumours are milling about town. It certainly hasn’t helped that prior to the March 2013 elections in Kenya, some members of the international community issued de facto ultimatums and threats to Kenyans, in terms of limiting Kenyan governmental interaction to “essential business” should they have voted for the ICC accused persons. Kenyans saw this as an affront to their right to select their own leaders.

Ultimately, this misguided attempt by Parliament of a wholesale purchase of salvation for the president and deputy president from the ICC trials through this omnibus Bill must therefore be approached from a different perspective. One which dispels the rumours about the perceived ill-intentions of the ICC intervention backed by Western imperialists and the opportunity presented to the country and its political elite to deal conclusively with what has become systemic injustice to Kenyans over the years. Impunity for gross human rights violations and a widening rift between the political elite and their constituents caused by little or no form of accountability has been Kenya’s tale in its 50-year independent history. Kenyans remain an aggrieved people by the state and state structures. This is clear from the numerous accounts of injustices documented most recently in the Kenya truth, justice and reconciliation commission report.

A number of processes will unfold this week: firstly, the Trial Chamber V(A) hearing the Case against Ruto and Sang will hear arguments from the Prosecutor, Defence and Legal Representative of Victims on the impact of the withdrawal from the Rome Statute on witness protection measures – this will be discussed in some detail in a future post. Secondly, one can only hope that there will be a debate in Parliament on Thursday – with both proponents and opponents of the Bill, as the democratic ethos demands. Thirdly, that the debate will be robust and interrogate the motion critically. One unexplored avenue, that I believe could turn this whole debate around, is the opportunity presented by the situation in Kenya at the ICC, to develop the emergent principle of positive complementarity. The office of the ICC prosecutor interprets positive complementarity as a coordinated approach to prosecution of international crimes by both the ICC and national criminal justice systems. This form of cooperation is between the ICC and states – after an intervention by the ICC has been initiated: voluntarily by a state; by the UN Security Council; or by the ICC prosecutor, and the ICC pre-trial chamber authorises investigation and confirms charges against certain individuals. Specifically, the ICC would conduct the trials of those deemed to be most responsible for the international crimes, while national criminal justice systems would investigate and prosecute intermediate and lower levels of perpetrators of these crimes.

Violence
The questions that should be asked are: how can the ICC trial procedure assist an international crimes division of the Kenyan high court to investigate and prosecute intermediate and low-level perpetrators of the post-election violence?

Can the evidential narratives from the ICC trials be introduced in the Kenyan courts and what legislation should the national assembly consider to facilitate this and other similar processes?

The Kenyan director of public prosecutions Keriako Tobiko tasked a team in his office to evaluate the status of post-election violence related cases in 2012. The findings indicated evidentiary and legislative loopholes and gaps preventing effective prosecution of thousands of cases and in essence a denial of justice to hundreds of thousands of victims of the 2007/2008 post-election violence.

Lessons can be gleaned on how positive complementarity can practically work in Kenya from the Balkan States in their quest for international criminal justice. A clear parallel in this regard can be seen in the cooperation between the War Crimes Chamber of the Courts of Bosnia and Herzegovina and the International Criminal Tribunal for the former Yugoslavia, an international criminal tribunal, with many similarities to the ICC and established by the UN Security Council to deal with the atrocities committed in the Balkan States. Legislators in Bosnia and Herzegovina, being cognisant of the limitations of the tribunal (including temporal mandate), established the courts and supporting legislation for their full functioning in the post-conflict state.

Without a doubt, there are many challenges faced by the ICC, particularly relating to the conduct of the Kenya cases. Equally there are opportunities presented within the Rome Statute system to advance the fight against impunity even at the state level. What we need now in Kenya is to draw the quid pro quo for the national criminal justice system from the processes in The Hague.

Legislators should rather propose amendments to strengthen existing legislation, and enact new laws that support and ensure the protection of human rights and the respect for the rule of law. It is the time to neither repeal the International Crimes Act (No 16 of 2008) nor engage in regressive actions of withdrawal from the Rome Statute. MPs should not throw out the baby with the bath water.

The slow-turning cog-wheels of the international criminal justice system: are victims benefiting from the system?

The world celebrates International Justice Day today 17 July 2013. This day will most likely go unnoticed to many but for victims who have directly or indirectly been affected by criminal acts that violated their dignity as human beings, it may just be a reminder of empty promises of redress for their harm and a second blow of revictimization. A majority of victims of international crimes still do not have access to justice and the possibility of receiving reparations for their suffering remains remote. Although the day is celebrated in commemoration of the significant day fifteen years ago that the Statute of the International Criminal Court was adopted by States in Rome, from a victims’ perspective, not much has been gained in terms of addressing their plight.

Since the ICC opened its doors in 2002, the reality is that the focus on investigations and prosecutions of individual perpetrators of international crimes far outweighs the efforts relating to redress of victims’ harm. This focus is not negative, in fact accountability for these crimes is necessary and provideds a measure of justice to victims and survivors of these crimes. The Rome Statute provides the framework where victims of international crimes have the right to participate in legal proceedings and the right to reparations. The potential of this framework has not fully been tapped into. The challenges currently faced by the ICC in evaluating the large applications by victims in the situation countries to participate in legal proceedings and the limited financial and logistical capacities to provide reparations to these victims must be the heralding call to States to re-assess the access to justice and reparations needs of victims of international crimes. Relegating the task of providing redress to victims of international crimes to a supranational institution such as the ICC is unsatisfactory and has proven to be mired in procedural bottle-necks.

Nation-States should urgently focus on the strengthening of national legal systems to provide redress to its own nationals who have suffered under the cruel hands of perpertrators of what are recognnized as international crimes. The domestication of the Rome Statute by States Parties has largely been driven by the desire to capacitate national criminal justice systems to investigate and prosecute individuals who have committed international crimes within a nation-state. These efforts to ensure that the national criminal justice systems and the ICC are complementary are to be lauded. However, nation-states also need to embark on a comprehesive and coordinated approach to law-making, policy and institutional design that is victim-centered to alleviate the burden on a strained international criminal justice system and provide access at the local level to victims of international crimes.

Report of the AU Panel of the Wise on Peace, Justice and Reconciliation in Africa

The Report of the African Union Panel of the Wise on Peace, Justice and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity available here is worth reading. I certainly agree with the urgency of establishing the AU-ICC Liaison Office for the many reasons cited but at the very least for purposes of ensuring that the spirit behind the creation of the ICC – to fight impunity for international crimes – and which is shared by the Constitutive Act establishing the AU, remains top of the agenda for African States. The report recommends the establishment of AU hybrid courts, akin perhaps to the proposed extension of jurisdiction of the African Court of Justice, Human and People’s Rights over international crimes. I have a different view on the establishment of these AU hybrid courts. The ‘new norms of international justice’ that the report refers to alluding to the ceding of sovereignty to an international body such as the ICC to investigate and prosecute international crimes, would be replicated at the continental level with such AU hybrid courts. To avoid the possibility of further dissent in Africa from yet another supranational body, it would be more beneficial for African States and indeed States in other regions to establish meaningful national legal frameworks that would keep to the spirit of the norm  to fight impunity for international crimes. Building the capacity of states to effectively deal with these crimes and redressing the harm caused to the victims of the crimes is the ideal and sustainable way to go about fighting impunity for international crimes. The report on the whole treats this important subject in the continent the seriousness it deserves and hopefully the discourse would continue at the African Union level, particularly some movement on the shaping of the African Union Transitional Justice Policy Framework.