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.

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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.

Link

The International Criminal Court (ICC) Prosecutor Mrs Fatou Bensouda will be in Kenya from 22-26 October, 2012. Reports from the Office of the Prosecutor (OTP) state that the purpose of Mrs. Bensouda and her team’s trip to Kenya will primarily be to visit victims of the post-election violence as well as to obtain crucial information that would support the prosecution’s cases against four Kenyans whose trials will commence at the ICC next year in April.

A few weeks ago, the Head of Jurisdiction, Complementarity and Cooperation at the OTP Mr Phakiso Mochochoko, wrote to Kenya’s Attorney General (AG) Prof Githu Muigai expressing disappointment for a lack of effective cooperation by Kenya with the OTP. The OTP has been seeking Kenya’s cooperation in obtaining information from different government agencies. Kenya is obligated under Article 86 of the Rome Statute to cooperate with the ICC. The AG blamed the delay in cooperating with the OTP on the failure of certain government agencies who possess the required information to quickly respond to the OTP’s request. The AG has reiterated that Kenya remains committed to her obligations under the Rome Statute. Prof Muigai has also praised Mrs Bensouda’s better approach to her mandate and relations with States Parties to the Rome Statute that created the ICC than her predecessor Mr Louis Moreno-Ocampo. However as Chief Legal Advisor to the government of Kenya, it is his responsibility to ensure that Kenya abides by its international commitments.

It is clear in the past few months that Mrs. Bensouda has been in office as Chief Prosecutor that she has a different leadership style to her predecessor who was shrouded with controversy over his sometimes boisterous approach to his mandate. With such a start to her mandate, the Fatou Effect as I have called it elsewhere is bound to have a more persuasive, endearing and results-oriented function about the OTP. This is a good thing and necessitates cordial relationships between the ICC situation countries and the OTP. Often the first or more prominent organ in the interface between a situation country and the ICC, it is important that the OTP establishes and maintains the right approach to prosecutions and investigations and Fatou has clearly understood this.

For Kenya, a visit form the ICC Chief Prosecutor can be used to mend fences where the relationship between government and the ICC was strained following Ocampo’s initiation of investigations in the country. We should not however forget that Fatou was the Deputy Prosecutor at the time when the ICC Pre-Trial Chamber authorized OTP’s investigations into Kenya, and it is unlikely that her sentiments on the prosecutions and investigations in Kenya have changed since her taking office as Chief Prosecutor. Rather the Fatou we see now, is seasoned with the experiences – both failings and successes of the OTP over the past 10 years of its operations, which no doubt inform the prosecutorial strategy for the Kenya cases.

Cooperation by States Parties with the ICC can be a two-way street. Within the ambit of positive complementarity – a concept that solidified its footing at the Kampala Review Conference of the ICC’s founding treaty in 2010 – Kenya can request for the support of the ICC in effectively investigating and prosecuting individuals suspected of committing crimes related to the post-election violence. We are certainly not referring to local prosecution for the four Kenyans whose trials are scheduled to start in April 2013, but rather the many other perpetrators of crimes following the 2007 elections in Kenya. The OTP is on record stating that although it will not provide financial support to States that ask for support under the positive complementarity principle, it can provide technical and logistical assistance. Kenya can benefit from the visit by the OTP to request for such assistance. It is important in this transition that Kenya deals with its past and that the many victims of the crimes committed following the 2007 elections are redressed.

In August 2012, a task force set up by Kenya’s Director of Public Prosecutions (DPP) Mr Keriako Tobiko to look into the thousands of files at the DPP’s office relating to the PEV released an interim report with findings that many of the files may have to be closed because evidence that would be necessary to adduce before court for convictions is non-existent. This means that many victims of the PEV will not receive the justice that they have sought for the past five years. There still remain opportunities for meaningful cooperation that would benefit both Kenya and the OTP on matters relating to prosecutions and investigations in Kenya. It will take the concerted efforts of the relevant Kenyan authorities to bring this about.

Kenya: At a Political Crossroads

Kenyans are set to go to the polls for general elections in March 2013, and will once again have the opportunity to cast their votes and elect new leaders. History has shown, however, that political contestation has not always been smooth sailing, and many past elections have been marred by irregularities. Most notably, the 2007 elections led to a national dispute over the outcome of the presidential race, and ultimately the outbreak of widespread violence. Electoral irregularities and resultant conflict are not inevitable – in 2002, the Kenya African National Union party suffered a landslide defeat after forty years of near autocratic rule – but when these do occur they reverberate through the East African region and across the continent as a whole. Anticipation, and the sensitivity around successful elections is therefore of great concern to more than just the Kenyan people.

Kenya’s fate as a country in transition was sealed by the tragic post-election violence that occurred in December 2007 and January 2008. A number of institutions have since been established to deal not only with this recent conflict, but also with a longer legacy of injustice since independence in 1963. Some of these institutions have already concluded their work, including the Commission for the Investigation of Post Election Violence and the Independent Review Commission, which recommended far-reaching changes in electoral processes and the disbandment of the Electoral Commission of Kenya in the aftermath of the events of 2007.

The work of the Truth, Justice and Reconciliation Commission (TJRC) will soon draw to a close after its mandate was extended following resolution of a dispute among commissioners concerning the appointment of a Chair – one which unfortunately planned the better part of the life of the commission overall. Despite resultant challenges to its credibility, as well as budgetary constraints, the commission will release a long-awaited and important report providing a narrative on sensitive and historic issues in Kenya’s past. It is hoped that this process will lead to a collective and consensus-based truth that a majority of Kenyans are able to agree upon.

The belief, however, that the TJRC’s report may lead to the possibility of re-opening national wounds or exacerbating political tensions, particularly by candidates in the run-up to elections, has prompted some calls for the document to be embargoed until polling has concluded next year. It is plausible that its content, which will shed light on events spanning the post-independence period, may be used to sow more divisions in an already fragmented country. It will be a true test of the functioning of the National Cohesion and Integration Commission (NCIC), also formed after the violence and unrest of 2007, to chart the direction for a more unified country.

The NCIC may further be pushed to prosecute leaders and candidates for hate speech in cases in which this could lead to divisive or tribal politics or ‘ethnicism’ as it is mandated to do through the National Cohesion and Integration Act that legislated its formation. A range of other outstanding issues must also be addressed before Kenya can hold elections. The new constitution promulgated in August 2010, a further outcome of the 2008 political settlement, created numerous new elective posts that need to be enacted in law and implemented in practice. Parliament has had the unenviable task of numerous, long and intensive sittings to debate, amend and pass legislation consistent with the new constitutional framework. This has not been an easy task, as many of the new laws and policies under consideration involve the very issues that threaten to tear Kenyans apart – including access to land, equitable distribution of resources and devolved governance structures.

The International Criminal Court’s (ICC) interventions in Kenya are also bound to affect the country’s future. Two of the four Kenyans charged with responsibility for the post-election violence are presidential aspirants and come from ethnic groups that have dominated this highest office – Uhuru Kenyatta, deputy prime minister and son of Kenya’s first president, and a former Cabinet minister, William Ruto. These external interventions have become increasingly politicised in the lead-up to the trials of the accused, and leaders of some ethnic groups have denounced the ICC investigations as attacks on their own communities, and attempts to eliminate specific candidates from the run for the presidency. These seeds of discontent, if not carefully managed, could erupt into violence.

Meanwhile, the resettlement of those internally displaced by the post-election violence continues with varied success. Government’s efforts in this area must be acknowledged, although much more work and support for victims is needed. In this regard, beyond the ICC interventions, perpetrators of these crimes have not yet been brought to account in most cases. Where some prosecutions have been initiated, criminal cases have often been thrown out of court, sometimes as a result of the poor quality of investigations. Concerted efforts must be made to remedy this situation.

Yet while the past five years have marked a difficult transitional phase for Kenya, tentative gains have certainly been made in growing political stability and democracy, working towards greater respect for the rule of law, and opening up a national dialogue about the country’s past and future. Successful and peaceful elections in 2013 may solidify these ideals and serve as a benchmark for a successful transition in Kenya.

This piece first appeared in South Africa Reconciliation Barometer Newsletter Volume 10, 2012 also available at http://reconciliationbarometer.org/newsletter/volume-ten-2012/