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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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.