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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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.

 

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.