Justice for Victims Before the International Criminal Court 041572239X, 9780415722391

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Justice for Victims before the International Criminal Court

Many prosecutors and commentators have praised the victim provisions at the International Criminal Court (ICC) as ‘justice for victims’, which for the first time include participation, protection, and reparations. This book critically examines the role of victims in international criminal justice, drawing from human rights, victimology, and best practices in transitional justice. Drawing on field research in Northern Uganda, Luke Moffett explores the nature of international crimes and assesses the role of victims in the proceedings of the ICC, paying particular attention to their recognition, participation, reparations, and protection. The book argues that because of the criminal nature and structural limitations of the ICC, justice for victims is symbolic, requiring State Parties to complement the work of the Court to address victims’ needs. In advancing an innovative theory of justice for victims, and in offering solutions to current challenges, the book will be of great interest and use to academics, practitioners, and students engaged in victimology, the ICC, transitional justice, or reparations. Luke Moffett is a lecturer at the School of Law, Queen’s University Belfast. His interests are in victimology, international criminal justice, transitional justice, and reparations and responsibility.

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Justice for Victims before the International Criminal Court

Luke Moffett

First published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Luke Moffett The right of Luke Moffett to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Moffett, Luke, author. Justice for victims before the international criminal court / Luke Moffett. pages cm – (Routledge research in international law) Includes bibliographical references and index. 1. Victims of crimes–Legal status, laws, etc. 2. International Criminal Court. 3. War victims–Legal status, laws, etc. 4. International crimes. I. Title. KZ7495.M64 2014 341.6'7–dc23 2014000662 ISBN: 978-0-415-72239-1 (hbk) ISBN: 978-1-315-84975-1 (ebk) Typeset in Baskerville by Wearset Ltd, Boldon, Tyne and Wear

Contents

Acknowledgements List of abbreviations

ix xi

Introduction A Aim and approach 2 B Book structure 5

1

1

Conceiving justice for victims of international crimes A Introduction 8 B International criminal justice 9 C The concept of a victim 17 D Justice for victims of international crimes 24 E The role of victims in international criminal justice mechanisms 38 F Conclusion 56

8

2

The development of victims in international criminal justice A Introduction 58 B The Second World War tribunals 59 C The ad hoc tribunals 64 D Conclusion 84

3

Victims in the proceedings of the International Criminal Court A Introduction 86 B The drafting of the victim provisions within the Rome Statute 87 C Victim recognition 90 D Victim participation before the International Criminal Court 94

58

86

viii

Contents E The treatment and protection of victims at the International Criminal Court 128 F Conclusion 142

4

Reparations and responsibility under the Rome Statute A Introduction 143 B The theoretical and normative basis of reparations 144 C The International Criminal Court’s reparation regime 151 D Interpreting the International Criminal Court’s reparation regime 157 E Reparations through the Trust Fund for Victims 183 F State responsibility for reparations 185 G Conclusion 194

5

The impact of the International Criminal Court on victims in Northern Uganda A Introduction 196 B Background to the Northern Ugandan conflict 197 C The intervention of the ICC in Northern Uganda 201 D Complementarity in Northern Uganda 214 E Conclusion 232

143

196

6

Victim-orientated complementarity: a wider perspective A Victim-orientated complementarity 234 B Situations before the International Criminal Court 239 C Victim-orientated complementarity in practice 275 D Conclusion 280

234

7

Conclusion A The International Criminal Court: justice for victims? 281 B Recommendations 286 C Final remarks 288

281

Bibliography Index

290 303

Acknowledgements

I would like to make a special thank you to my principal supervisor Professor Tomoya Obokata who provided helpful feedback and guidance throughout my PhD. I would also like to express my gratitude to Professor Jean Allain for his supervision and advice. Both my supervisors’ patience and encouragement made this book possible, they always made me welcome to chat to them about it and I cannot thank them enough for the help they have given me. I would also like to thank my examiners Professor William Schabas and Professor Brice Dickson, who took the time to read my thesis, challenged me during my viva, and provided insightful observations. Thanks also to Dr Hakeem Yusuf for his helpful comments at my differentiation. Thanks to all the staff in the Law School, particularly Mrs Judith Cardwell and Mrs Denise Toner, for their assistance. I would like to thank Dr Crone who proof read my thesis before submission. I am also grateful for the support of my fellow PhD candidates. Thanks to my family, particularly my parents and grandparents, who continually provided support and encouragement throughout my PhD. I would like to extend my gratitude to Mark Sapwell and Katie Carpenter at Routledge who guided and supported me through the authoring process. My field research in Uganda was kindly funded by the County Antrim Grand Jury Bursary, School of Law, Queen’s University Belfast. In Uganda I would like to thank Joseph Manoba in the Uganda Victims’ Foundation for his advice and assistance. Thank you to all my interviewees in Uganda and conversations I had with practitioners in The Hague. I would especially like to thank the victims I spoke to and I hope what I have written adequately represents their views. A special thanks to Justin Bisengimana who allowed me to work alongside him in Rwanda and the Democratic Republic of Congo, and is a source of inspiration in his tireless devotion to victims. During the time between the completion of my PhD and finishing this book I was fortunate to work alongside Kieran McEvoy, Louise Mallinder, Gordon Anthony, and Kate Turner, who all broadened my perspective and approach to victims and dealing with the past. I really appreciate their

x

Acknowledgements

advice, support, and comments which helped to ground this book in reality. This book would not have been realised without the support, love, motivation, and advice of Sunneva Gilmore. Through numerous conversations she made me think through my book and read over my drafts.

Abbreviations

ARLPI ASP CAR CDVR DRC ECCC HRW ICC ICD ICJ ICTR ICTY IDP IHL ILC IMT IMTFE IWPR LRA MLC NATO NGO OPCV OTP PTC-I PTC-II PTC-III RPE PEV RSIWA TC TFV

Acholi Religious Leaders Peace Initiative Assembly of State Parties Central African Republic Ivorian Dialogue, Truth and Reconciliation Commission Democratic Republic of Congo Extraordinary Chambers in the Courts of Cambodia Human Rights Watch International Criminal Court International Crimes Division International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for former Yugoslavia Internally Displaced Person International Humanitarian Law International Law Commission International Military Tribunal International Military Tribunal for the Far East Institute for War and Peace Reporting Lord’s Resistance Army Mouvement de libération du Congo North Atlantic Treaty Organization Non-governmental Organisation Office of Public Counsel for Victims Office of the Prosecutor Pre-Trial Chamber I Pre-Trial Chamber II Pre-Trial Chamber III Rules of Procedure and Evidence Post-election violence Articles on Responsibility of States for Internationally Wrongful Acts Trial Chamber Trust Fund for Victims

xii

Abbreviations

TJRC Kenyan Truth, Justice and Reconciliation Commission UNBPG United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victim of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law UPDF Uganda Peoples’ Defence Force UVF Uganda Victims Foundation VLR Victims’ Legal Representative VPRS Victims Participation and Reparation Section VWS Victims and Witnesses Section (ICTY) VWU Victims and Witnesses Unit WIGJ Women’s Initiatives for Gender Justice WVSS Witnesses and Victims Support Section (ICTR)

Introduction

Around 6 pm in the evening when the sun was going to set, the rebels came. . . . We had just been from our village. My mother was peeling potatoes under the veranda; my wife was sitting beside her. I was out making bricks with the intention of making another hut. I heard a gunshot. People started running. We ran into the house. When the government soldiers ran away, my baby inside the house got wounded from the bullets. When I saw the injured leg of my son I shouted at my family members that we should run away. . . . I opened the door so we could run together with the soldiers. My mum was getting stressed and said we should lie down and not run away. I took off and left them inside thinking they were going to follow me. Unfortunately, my mum closed the door. When I took off at a distance I heard gunshots at my homestead. My mother was shot in the hand; my wife got wounded in the stomach, but she did not die in that very moment. Even my daughter and infant son were burnt alive when they set fire to the huts. . . . When I came back in the morning I found my mum was unconscious. Although she could speak, she was very weak and passed away in the government hospital. All my family were killed as a result of that attack. Testimony of James1

Mass atrocities cause massive suffering and harm to individuals and groups. The horrendous damage noted above was part of a conflict which resulted in immense anguish to tens of thousands of other Northern Ugandans over decades in hundreds of attacks. How do we respond to such crimes? Usually the reaction to international crimes has been to do nothing. Yet such apathy causes further suffering to victims by denying them recognition and support to hold those responsible to account, to remedy their harm, and to prevent its recurrence. Since the Second World War there has been an impetus to prosecute international crimes through international criminal justice mechanisms. International criminal

1 Interviewed by the author in Northern Uganda, July 2011; identifying details are removed and a pseudonym is used to protect the identity of this individual.

2

Introduction

tribunals and courts have often declared their purpose as delivering justice to victims. But to what extent does international criminal justice really achieve this? Traditionally international criminal justice mechanisms have not been sensitive to the needs of victims, as their focus was to prosecute and punish perpetrators of international crimes. However, the inclusion of several victim provisions within the Rome Statute of the International Criminal Court (ICC), such as those regarding protection, participation, and reparations,2 reflects a growing recognition of victims’ interests in judicial mechanisms.3 Some commentators envisage the victim provisions within the ICC as a shift in international criminal justice from a punitive approach to a more restorative ‘victim-orientated justice’.4 But does the incorporation of these provisions provide justice to victims or a more ‘victim-orientated justice’? In brief, this book seeks to explore the extent to which the ICC can deliver justice to victims.

A Aim and approach It is hoped that this book can contribute new insights into victims in international criminal justice and expand the discussion on their role in the ICC and domestic processes to deal with collective violence. This is evidenced in three areas: (1) the development of the theory of justice for victims; (2) a comprehensive approach to victims within the ICC; and (3) the use of qualitative research. First in developing a theory of justice for victims, research on victims of international crimes and their impressions of judicial mechanisms is an emerging field, particularly in light of the large amount of research conducted on domestic crimes. The most notable collection of research has been by Letschert et al., who take an inter-disciplinary approach in examining victimisation as the result of international crimes;5 and Kiza et al. who collate empirical data from a quantitative survey of 991 victims of international crimes in 11 different conflicts on their victimisation and perspectives of justice.6 There have also been compilations of research based on analysis of international humanitarian law and human rights law on specific issues, such as

2 Articles 68, 75, and 79, Rome Statute. 3 The ICC is referred to as ‘the Court’ throughout the rest of this book. 4 Sergey Vasiliev, Article 68(3) and Personal Interests of Victims in the Emerging Practice of the ICC, in C. Stahn and G. Sluiter (eds), The Emerging Practice of the International Criminal Court (Brill 2009) 635–690, p. 677. 5 R. Letschert, R. Haveman, A.M. de Brouwer, and A. Pemberton (eds), Victimological Approaches to International Crimes: Africa (Intersentia 2011). 6 Ernesto Kiza, Corene Rathgeber, and Holger Rohne, Victims of War: War-Victimization and Victims’ Attitudes towards Addressing Atrocities (Hamburger Edition 2006).

Introduction 3 7

reparations. However, these studies and numerous articles on the ICC have alluded to, but have not systematically defined, what a theory of justice for victims comprises.8 This book elaborates a theory of justice for victims of international crimes, so as to enhance the understanding of the ICC and the role of victims therein. Second, with regards to the International Criminal Court the academic literature has focused on victim provisions in the Rome Statute and the Court’s interpretation of these. Some proponents view the provisions as improving victims’ access to justice and the legitimacy of the Court.9 These writers draw their arguments from developments in other fields such as human rights, victimology, and transitional justice. These fields offer a greater inclusion of victims and a wider conception of justice that goes beyond punishment. Conversely, other commentators consider the Rome Statute’s victim provisions as a hindrance, preventing the Court from carrying out its primary task of prosecuting those most responsible or threatening to undermine the rights of the defendant.10 Thus the current academic debate represents a struggle between trying to find a role for victims while ensuring a fair trial and upholding the rights of the defendant. This debate demonstrates a lack of consensus on what justice means to victims and how this can be incorporated into international criminal justice.

7 See C. Ferstman, M. Goetz, and A. Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff 2009). 8 A.H. Guhr, Victim Participation During the Pre-Trial Stage at the International Criminal Court, International Criminal Law Review 8(1–2) (2008) 109–142; T. Markus Funk, Victims’ Rights and Advocacy at the International Criminal Court (Oxford University Press 2010); Anne-Marie de Brouwer and Marc Groenhuijsen, The Role of Victims in International Criminal Proceedings, in G. Sluiter and S. Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (Cameron May 2009) 149–204; Carsten Stahn, Hector Olásolo, and Kate Gibson, Participating of Victims in Pre-trial Proceedings of the ICC, Journal of International Criminal Justice 4(2) (2006) 219–238; Mikaela Heikkilä, International Criminal Tribunals and Victims of Crime (Åbo Akademi University Press 2004); Claude Jorda and Jérôme de Hemptinne, The Status and Role of the Victim, in A. Cassese, P. Gaeta, and R.W. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002) 1387–1419. 9 See Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Hart 2008); Håkan Friman, The International Criminal Court and Participation of Victims: A Third Party to the Proceedings? Leiden Journal of International Law 22 (2009) 485–500; Susana SáCouto and Katherine Cleary, Victims’ Participation in the Investigation of the International Criminal Court, Transnational Law and Contemporary Problems 17 (2008) 73–105. 10 See Charles P. Trumbull IV, The Rights of Victim Participation in International Criminal Proceedings, Michigan Journal of International Law 29 (2008) 777–826; Mugambi Jouet, Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court, Saint Louis University Public Law Review 26 (2007) 249–308.

4

Introduction

Extensive research conducted by McGonigle, Dwertmann, and McCarthy has studied specific aspects of the victim regime in the ICC.11 McGonigle examines whether victims can be afforded a role within the proceedings of the Court by analysing victim participation through the theory of procedural justice. She also engages in a comparative analysis of other international and hybrid criminal tribunals, particularly the Extraordinary Chambers in the Courts of Cambodia. Dwertmann researches the reparation regime of the ICC drawing from national, international, and human rights law to guide her interpretation of it. McCarthy similarly explores the Court’s reparations regime and its place within national and international mechanisms of redress. This book, in contrast, takes a more comprehensive approach by examining victims within the proceedings of the ICC including their recognition, participation, and protection as well as reparations. Within these areas new interpretations of the Rome Statute are developed in light of a theory of justice for victims. These are supported by jurisprudence in international law and human rights law, as well as principles advanced by victimology. Although this book supports the role of victims in proceedings of the Court, it also calls for the judges to reach a balance with other interests before it. Furthermore, it appraises the Ugandan and other situations before the ICC to provide an external examination of the Court’s work. This work also adds to the research in this area by taking a victimorientated approach to the principle of complementarity, where the ICC and State Parties cooperate in achieving accountability, which includes justice for victims or ‘victim-orientated complementarity’, discussed in Chapter 6. Consequently, it is hoped that this book will contribute to informing and furthering the debate on victims in the ICC. Third, qualitative research was conducted in Northern Uganda as part of this book. Numerous articles written on victims at the ICC are based on desktop research and second-hand information from NGO reports.12 As this book is on victims it was important to meet with individuals and communities who had suffered from international crimes within the jurisdiction of the ICC, so as to understand their views on and concerns about the Court. Northern Ugandan was chosen as a case study in Chapter 5, as it was the first state referral to the ICC and the initial case before the Court.

11 Brianne McGonigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings (Intersentia 2011); Eva Dwertmann, The Reparation System of the International Criminal Court (Martinus Nijhoff 2010); Conor McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge University Press 2012). 12 Christine Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise? Northwestern Journal of International Human Rights 6(3) (Spring 2008) 459–545; Linda M. Keller, Seeking Justice at the International Criminal Court: Victims’ Reparations, Thomas Jefferson Law Review 29(2) (2007) 189–217; authors cited in Notes 10–11.

Introduction 5 Qualitative research was conducted in Uganda in June/July 2011 in Kampala and Northern Uganda and involved interviews, focus groups, and informal conversations with key stakeholders.13 Research was conducted with victims and other key stakeholders to gain first-hand information and to provide local insight into views on the ICC and domestic developments. Ethical approval was gained beforehand. Respondents were informed of the researcher, the purpose of his research, and the use of interview material, with consent being obtained before beginning the interview or focus group discussion. To protect interviewees, all reference to them is anonymous due to the sensitive issues discussed. The author was also fortunate to be able to attend the trial of LRA commander Thomas Kwoyelo in Gulu, who was charged with a number of conflict-related crimes. As already mentioned, qualitative research conducted in Uganda is not meant to be representative, but to provide a general sentiment on the Court and national developments in Uganda. This is substantiated with reference to quantitative research conducted by other researchers using larger representative samples, though these studies are not conclusive, they do evince certain public perceptions. This case study offers practical analysis of the ICC from Ugandan victims’ perspective, with the lessons learnt being possibly applied to other situations before the ICC explored in Chapter 6. Although this book aims to be as comprehensive as possible, there are some limitations. In order to assess more accurately the perceptions of a larger group of victims on the responsiveness of ICC to their needs, a quantitative research of their expectations, views, and needs could be carried out, particularly among those who have applied and participated before the ICC. However, this was beyond the capacity of this book and is a more general concern of transitional justice commentators.14 In addition, this book only evaluates the first ten years of the practice of the ICC with regards to victims; it is still a relatively new and emerging Court which in the future has the potential to evolve and improve.

B Book structure This book consists of seven chapters. Chapter 1 examines the theoretical issues involved in identifying what is meant by the terms ‘victim’, ‘justice’, ‘justice for victims’, and their interaction with international criminal justice. The chapter begins by exploring the nature of international crimes 13 Including the government, civil society, LRA, and civilians, such as men, women, elders, young people, religious, cultural, and community leaders, and victims of abductions, massacres, pillaging, displacement, torture, and sexual violence. 14 Hugo van der Merwe, Delivering Justice during Transition: Research Challenges, in H. Merwe, V. Baxter, and A.R. Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (USIP 2009) 115–142, pp. 137–138.

6

Introduction

and criminal justice theories which underlie international criminal justice, before discussing who is a victim in international criminal justice. It then turns to considering what justice for victims involves, and whether the victim provisions of the International Criminal Court reflect this. The theory of justice for victims developed in Chapter 1 will be used in subsequent chapters to evaluate the extent to which the ICC fulfils this theory in practice. Although there are hybrid criminal tribunals and courts, this book focuses on the ICC due to its prominence, wide jurisdiction, and growing jurisprudence on victims. Chapter 2 looks at the role of victims in previous international criminal courts and tribunals from the Second World War to the ad hoc tribunals of the 1990s. The account is sub-divided into three parts looking at the recognition of victims, procedural justice, and substantive outcomes. Victim recognition is considered by examining the definition of victims and crimes that were prosecuted. The proceedings of the Tribunals are evaluated as to whether they provided procedural justice to victims. This chapter also considers the outcomes of these trials and the extent to which they satisfied victims’ substantive rights. The information gathered from this chapter highlights the challenges involved in incorporating victims of international crimes into international criminal justice as well as the lessons that can be learnt for the ICC. Chapter 3 assesses the role of victims in the proceedings of the ICC, paying particular attention to their recognition, participation, and protection. It begins by discussing briefly the travaux préparatoires of the ICC and the drafters’ intentions behind the victim provisions. The chapter then analyses the ICC judges’ interpretation of the provisions in recognition, participation, and protection, and whether this is consistent with the theory of justice for victims set out in Chapter 1. The chapter finds that victims’ role in proceedings is limited by the rights and interests of other parties, with victims’ interests not being fully considered in the determination of outcomes. Chapter 4 appraises the Rome Statute’s provisions on reparations. The inclusion of reparations at the ICC is an innovation, as it had never been utilised in previous tribunals and focuses on remedying victims’ harm. Reparations have the potential to satisfy a number of victims’ needs and deliver them a broader sense of justice than just the punishment of the perpetrators. This chapter outlines the jurisprudence concerning reparations in delivering victims an effective remedy established in international and human rights law. This jurisprudence is used to interpret the Rome Statute’s provisions on reparations. Linked to providing justice for victims, this chapter argues that there is a need to broaden reparations beyond individual convicted persons, by engaging state responsibility in complementing the Court’s regime. Chapter 5 is a case study on Northern Uganda which evaluates the impact of the International Criminal Court on victims at the domestic

Introduction 7 level. The Rome Statute places a strong emphasis on victim provisions, but to what extent are states complementing the Court and fulfilling their obligations under the Rome Statute? This chapter finds that victimorientated complementarity is necessary to satisfy victims’ needs for justice beyond the limits of the Court. The chapter is split into three sections. The first section discusses the historical background to the conflict and the extent of victimisation. The second section examines the intervention of the ICC based on its investigation and the proceedings on Northern Uganda, with a focus on victims. The third section assesses the incorporation of the Rome Statute and victim provisions into the Ugandan legal system and prosecutions before Ugandan courts. Chapter 6 widens the scope of state practice by examining the other situations before the ICC in relation to victim-orientated complementarity. Drawing on findings in earlier chapters, this chapter suggests a greater role of the Court in considering the ability and capacity of State Parties to effectively end impunity for international crimes, by giving effect to victim provisions and remedial measures. This position is due to the structural limitations of the Court, which can only address the cases before it and requires State Parties to complement the work of the Court, otherwise only certain victims will be avail of redress. This chapter discerns the current focus of the ICC on State Parties has resulted in a retributive approach to complementarity with consideration on victims only coming from domestic willingness or traditional victim provision in criminal proceedings. Chapter 7 concludes the book by drawing together the key themes in the previous chapters to assess the overall success of the ICC in delivering justice to victims. The chapter has four main findings: the Court does not realise victims’ substantive rights; international criminal justice does not recognise and redress other forms of serious violence; redressing international crimes and ending impunity requires more than prosecuting individuals, due to state involvement in such crimes; and State Parties have a duty to complement the Court through investigations, prosecutions, and reparations. In order to bridge the difference between the theory of justice for victims and the practice of the Court, this chapter makes a number of recommendations on the future work of the ICC.

1

Conceiving justice for victims of international crimes

A Introduction Justice for victims has often been claimed as a purpose of international criminal justice mechanisms.1 Yet criticism has been levelled at these mechanisms for not doing enough for victims.2 A further difficulty lies in the ambiguity as to what justice for victims means within international criminal justice, beyond the rhetoric to its practical application. In order to rectify this and to provide an analytical foundation for the rest of the book, this chapter will outline a theory of justice for victims and how it can operate within the International Criminal Court. Beginning with a discussion on international criminal justice, this chapter distinguishes international crimes from domestic crimes, before moving on to examine how the prevailing criminal justice theories have influenced international criminal justice. The following section considers the theoretical basis of who is recognised as a victim. The third section develops a theory of justice for victims by drawing from victimological research of their needs and the development of their rights in national practices and human rights law. The final section incorporates this theory into international criminal justice by exploring the importance of victims, alternative justice theories, and the limitations of the ICC. The main conclusion reached in this chapter is that justice for victims is an expansive concept which is broader than the capacity of a single institution such as the ICC. Nevertheless, the Court can maximise the rights of victims in its proceedings and achieve some form of justice for victims by seeking 1 ICTY First Annual Report to the UN General Assembly, A/50/365–S/1995/728, 1995, paras 1 and 198–199; Third Annual ICTR Report to the UN General Assembly A/53/429– S/1998/857, 1998, para. 160; and more recently by the ICC Prosecutor, Statement following an application seeking an adjournment of the provisional trial date in Kenyatta case, 19/12/2013. See Erik Møse, Main Achievements of the ICTR, Journal of International Criminal Justice 3(4) (2005) 920–943, p. 934. The International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) and the International Criminal Court (ICC), are collectively referred to as international criminal justice mechanisms. 2 See Chapter 2.

Conceiving justice for victims 9 compliance of states through victim-orientated complementarity to provide remedies to those who suffer as a result of international crimes.

B International criminal justice International criminal justice is mainly concerned with the prosecution and punishment of individuals responsible for international crimes at an international court. International crimes transcend the suffering of individual victims and the jurisdiction of the state, by violating fundamental interests of the international community, such as international peace and security or widespread violations against human beings.3 These fundamental interests also fall under ‘jus cogens’ (compelling law) norms, which are ‘accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.4 Such norms include the prevention of genocide, torture, and grave violations of international humanitarian law.5 A violation of a jus cogens norm is deemed ‘objectively illegal’6 or ‘intolerable because of the threat it presents to the survival of States, their peoples and the most basic human values’.7 Holding individuals criminally responsible for international crimes serves to uphold these fundamental interests of the international community.8 Under international law states also have a

3 Article 19(3) of the Draft Articles on State Responsibility, Report of the International Law Commission on the Work of its Forty-eighth Session, 6 May to 26 July 1996, vol. II, A/51/10, 1996, p. 60; Georges Abi-Saab, The Concept of ‘International Crimes’ and its Place in Contemporary International Law, in J. Weiler, A. Cassese, and M. Spinedi (eds), International Crimes of State (De Gruyter 1989) 141–150; Antonio Cassese, International Criminal Law (Oxford University Press 2008), p. 11. 4 Article 53, Vienna Convention on the Law of Treaties, UNTS vol. 1155, p. 331, 1969; see M. Cherif Bassiouni, International Crimes: Jus cogens and obligatio erga omnes, Law and Contemporary Problems 59(4) (1996) 63–74; and the Preamble of the Rome Statute. Although not all violations of jus cogens norms are codified under international criminal law, such as non-refoulement, which instead is under state responsibility, Article 33, 1951 UN Convention Relating to the Status of Refugees, UNTS vol. 189, p. 2545, 28 July 1951. 5 Article 1, UN Convention on the Prevention and Punishment of the Crime of Genocide, UNTS vol. 78 p. 277, 9 December 1948; Article 3, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT) UNTS vol. 1465, p. 85, 10 December 1984; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Reports, 257, para. 79. See also Article 40, Responsibility of States for Internationally Wrongful Acts (RSIWA), A/RES/56/83, 12 December 2001. 6 Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford University Press 2006), p. 242; Prosecutor v Kupreškic´ et al., IT-95-16, Judgment, 14 January 2000, para. 520. 7 Report of the International Law Commission on the work of its fifty-third session, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, p. 112. 8 See Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press 2003), pp. 42–43.

10 Conceiving justice for victims duty to investigate, prosecute, and punish individuals responsible for international crimes.9 Where states are unable or unwilling to do this, recourse can be made to international criminal justice so as to vindicate international law. 1 The distinctive nature of international crimes In comparison to domestic crimes, international crimes have a more aggravating and serious nature, which often arises in times of conflict, internal strife, or collective violence. Five general characteristics of international crimes can be discerned: (1) mass victimisation; (2) large-scale organised participation; (3) ideologically driven perpetration; (4) state involvement; and (5) the impact of the crimes and impunity on victims.10 First, international crimes are not normally a single crime committed against one individual, but numerous crimes perpetrated against multiple individuals and groups over a period of time.11 In international criminal law, core international crimes include genocide, crimes against humanity, and war crimes.12 Genocide is committed against a ‘group’ of victims, crimes against humanity involve a ‘widespread or systematic attack’ directed against a civilian ‘population’, and war crimes entail ‘a plan or policy’ or a ‘large-scale commission’ as part of an armed conflict.13 Mass scale of victimisation of international crimes is connected to the second point that these crimes can, but does not always have to, involve highly organised mass participation of individuals and groups, rather than a sole perpetrator acting alone. The clearest example of this would be the genocide in Rwanda which killed up to a million civilians, but also involved the organised mass participation of hundreds of thousands of perpetrators in the government, military, local leaders, the media, and the civilian

9 Article 1, Genocide Convention; Article 49, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949; Article 50, Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949; Article 129, Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949; Article 146, Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949; Article 7, UNCAT. 10 See Marc S. Groenhuijsen and Antony Pemberton, Genocide, Crimes Against Humanity and War Crimes: A Victimological Perspective on International Criminal Justice, in R. Letschert, R. Haveman, A.M. de Brouwer, and A. Pemberton (eds), Victimological Approaches to International Crimes: Africa (Intersentia 2011). International criminal law stipulates more specific elements, such as a special intent for genocide. 11 Groenhuijsen and Pemberton ibid., p. 12. 12 Cassese Note 3, p. 148; Article 5, 1998 Rome Statute, UN Doc. A/CONF.183/9, which also includes the crime of aggression. 13 Ibid.; Articles 6–8, Rome Statute.

Conceiving justice for victims 11 14

population. Furthermore, such atrocities can be committed by both state and non-state actors, which can collude with each other. Such actors usually work in organised groups to facilitate the mass scale of such crimes.15 Third, the perpetration of international crimes can be ideologically driven.16 Often international crimes target individuals because of their ethnicity, race, religion, political beliefs, or identification as a marginalised group. Such labelling is usually framed in historical, political, or religious narratives to distance perpetrators from victims as ‘others’, or is based on previous victimisation of individuals or groups to justify future violence. As part of this ideology victims are often dehumanised to legitimise violence against them or to glorify the perpetrators, such as the Nazis in the Holocaust depicting Jews as ‘rats’, or in the Rwandan genocide Tutsis being called ‘cockroaches’.17 The fourth distinguishing element of international crimes is that they usually occur on a widespread or organised scale due to actions or inactions of a state.18 State involvement in international crimes can either be through direct perpetration through its forces, or collaboration or acquiescence where crimes are committed by non-state actors.19 The inaction of the state, such as the failure to protect civilians can enable armed groups to commit crimes with impunity, as the state normally has a monopoly on force with its security forces and criminal justice infrastructure to prevent armed groups escalating violence into mass atrocities. Often the infrastructure, organisation, and resources of the state are necessary to carry out crimes on a widespread and systematic scale, such as in the Holocaust. As international criminal justice focuses on the responsibility of the individual rather than the state, it reflects the theoretical aspects of domestic criminal justice, explored further in the next sub-section.20

14 Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (Human Rights Watch 1999). 15 See Jann K. Kleffner, The Collective Accountability of Organized Armed Groups for System Crimes, in H. Wilt and A. Nollkaemper (eds), System Criminality in International Law (Cambridge University Press 2009) 238–269. 16 International crimes can also be perpetrated by armed groups or individuals taking advantage of insecurity to further criminal enterprises or to settle personal scores. 17 Groenhuijsen and Pemberton Note 10, pp. 28–32; Mark Osiel, Why Prosecute? Critics of Punishment for Mass Atrocity, Human Rights Quarterly 22 (2000) 118–147, p. 129. 18 Groenhuijsen and Pemberton ibid., p. 13; Primo Levi, The Drowned and the Saved (Abacus 1989), p. 44. 19 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010), p. 40. 20 Cassese Note 3, p. 7.

12 Conceiving justice for victims A final point to note is the impact of the crime on the victim and their family, which goes to the grave nature of these offences.21 International crimes can often involve brutal killings and mutilations that cause serious mental trauma and suffering to those who are subjected to such crimes or to those who witness them.22 This is further compounded by age, gender, or vulnerability of the victim as well as effects of impunity, whereby victims are denied recognition by the state or access to justice, examined further below. Together these five inter-related elements, which may not all be present, help to distinguish international crimes from domestic ones. Nevertheless international criminal justice is based on domestic theories of criminal justice, which cause difficulties in addressing international crimes. 2 Criminal justice theories Since the 1800s the state has been the primary adjudicator on crime, with the criminal court used as the main institution for arbitrating on justice and meting out punishment. Before the state, justice was carried out by a victim.23 The victim, their family, or kin either retaliated against the offender or sought compensation from them.24 In order to protect society from crime and prevent victims’ vengeance from turning into socially destructive blood feuds, the state gradually took over responsibility of impartially judging crimes.25 The resulting criminal court determined the individual criminal responsibility of a perpetrator and punished them accordingly. Criminal justice balances the interests of society against the rights of the defendant based on the punishment theories of retribution and utilitarianism.26

21 See Yael Danieli, Massive Trauma and the Healing Role of Reparative Justice, in C. Ferstman, M. Goetz, and A. Stephens (eds), Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems in Place and Systems in the Making (Martinus Nijhoff 2009), pp. 41–78. 22 Ibid.; the ICC has acknowledged that such suffering because of its gravity and nature supports the finding that crimes against humanity were committed in post-election violence in Kenya; The Prosecutor v Muthaura et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 26 January 2012, para. 277. 23 See Andrew Karmen, Crime Victims: An Introduction to Victimology (Wadsworth 2010), pp. 3–5; Stephen Schafer, The Victim and his Criminal: A Study in Functional Responsibility (Random House 1968). 24 See Schafer ibid.; Geoffrey MacCormack, Revenge and Compensation in Early Law, American Journal of Comparative Law 21 (1973) 69–85. 25 See Clarence Ray Jeffrey, The Development of Crime in Early English Society, Journal of Criminal Law Crime and Police Science 47(6) (1957) 647–666. 26 Karmen Note 23, p. 147.

Conceiving justice for victims 13 Historically, retribution comes from ‘lex talionis’, i.e. the law of revenge, to distribute proportional measures of punishments, i.e. ‘just desserts’, to the offender for causing harms which are considered morally wrongful.27 Retribution is the application of deontological ethics, in that to ‘enjoy and assert’ natural and legal rights there is a corresponding ‘duty’ to respect the rights of others, or else face punishment for violating another individual’s rights.28 Punishment serves to ‘right the wrong’ of the offender’s actions and vindicate the law.29 A criminal court judge is an impartial arbiter of punishment, with due process rights afforded to the defendant to ensure that only those who are responsible for crimes are punished.30 Retribution is thus backward-looking as it considers the past actions of the offender to determine whether they deserve punishment.31 Kant believed that punishment was necessary in order to restore ‘equality’ between the parties by removing the dominance of the offender over the victim created by the harm of the crime.32 The other prominent theory in criminal justice is utilitarianism, a form of distributive justice that seeks to allocate goods in society to ensure the maximum happiness or benefit of the majority. Utilitarianism follows the maxim of the ‘greatest good to the greatest number’ in order to increase social utility.33 Jeremy Bentham, the founding father of utilitarianism, deemed social utility as any object which produced ‘benefit, advantage, pleasure, good, or happiness’ for the majority and not just for the individual.34 Bentham considered that punishment in itself was ‘evil’, but necessary in order to result in good outcomes.35 Utilitarianism is thus forward-looking or consequentalist as it justifies punishment based on its foreseeable consequences.36 Punishment is used in utilitarian theories, not to ‘torment’ the offender or to undo the crime, but to achieve its aims of

27 Francesco Parisi, The Genesis of Liability in Ancient Law, American Law and Economics Review 3(1) (2001) 82–124, p. 84. 28 Guyora Binder, Victims and the Significance of Causing Harm, Pace Law Review 28(3) (2007) 713–738, p. 715. 29 Jean Hampton, Correcting Harms versus Righting Wrongs: The Goals of Retribution, University California Los Angles Law Review 39 (1991–1992) 1659–1702, p. 1663. 30 Mikaela Heikkilä, International Criminal Tribunals and Victims of Crime (Åbo Akademi University Press 2004), p. 26; Brianne McGonigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings (Intersentia 2011), p. 38. 31 Heikkilä ibid., p. 25. 32 Immanuel Kant, The Metaphysics of Moral (Cambridge University Press 1996), p. 106 [6.333]; see also George P. Fletcher, The Place of Victims in the Theory of Retribution, Buffalo Criminal Law Review 3 (1999–2000) 51–64; Hampton Note 29. 33 See John Stuart Mill, On Utilitarianism (Penguin 1864). 34 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Clarendon Press 1907), Ch. I ‘Of the Principle of Utility’. 35 Ibid. 36 Heikkilä Note 30, p. 29.

14 Conceiving justice for victims deterrence, incapacitation, and rehabilitation so as to enhance social utility, thereby fulfilling society’s interests by preventing future crimes.37 3 Criminal justice theories in international criminal justice These two theories of retribution and utilitarianism have been apparent in international criminal justice. Traditionally, international criminal justice had a retributive focus. Punishing individual perpetrators for the wrongfulness of international crimes served to ensure they receive their ‘just desserts’ and to uphold international criminal law.38 In the same vein, international criminal justice mechanisms assert that the purpose of punishment is to reinstate the rule of law by ending impunity for international crimes.39 Procedurally, international criminal justice incorporates criminal justice principles of impartiality and due process so as to ensure that only those responsible are punished.40 Retribution is also evident in sentencing in international criminal justice mechanisms, by weighing up aggravating and mitigating circumstances of the perpetrator’s crime to achieve a proportional punishment.41 Yet there are limitations to retribution in international criminal justice. Due to the ‘radical evil’ of international crimes it is almost impossible to find a proportional punishment that could equate with the mass suffering caused.42 Moreover, international criminal justice mechanisms can only prosecute a small number of perpetrators of international crimes because of their limited resources or insufficient evidence.43 Senior leaders are prosecuted and punished so as to deter them and others from committing future crimes.44 Attention to the responsibility of senior leaders is due to

37 Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments (W.C. Little & Co. 1872), Ch. 12 ‘Of the Intent of Punishments’; Richard S. Murphy, The Significance of Victim Harm: Booth v Maryland and the Philosophy of Punishment in the Supreme Court, University of Chicago Law Review 55(4) (1988) 1303–1333, p. 1310. 38 McGonigle Note 30, p. 60. 39 Groenhuijsen and Pemberton Note 10, p. 15; Preamble of the Rome Statute, para. 5. 40 Article 21, ICTY Statute; Article 20, ICTR Statute; Article 67, Rome Statute. 41 Rule 101(B) ICTY Rules of Procedure and Evidence (RPE), IT/32/Rev.44, 10 December 2009; Rule 101(B) ICTR RPE, ITR/3/REV.19, 1 October 2009; Rule 145 ICC RPE, ICCASP/1/3; see Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, Northwestern University Law Review 99(2) (2005) 539–611, p. 561, citing Prosecutor v Kunarac, ICTY Appeal Chamber Judgment, IT 96-23/1-A, para. 385. 42 L. Kohler and H. Saner (eds), Hannah Arendt and Karl Jaspers: Correspondence: 1926–1969 (Harcourt Brace International 1992), p. 54; Carlos S. Nino, Radical Evil on Trial (Yale University Press 1998), pp. 135–137. 43 Mark Osiel, Ascribing Individual Liability within a Bureaucracy of Murder, in A. Smeulers (ed.), Collective Violence and International Criminal Justice: An Interdisciplinary Approach (Intersentia 2010) 105–130, p. 105. 44 Nino Note 42, p. 68.

Conceiving justice for victims 15 their role in designing and implementing such crimes, as well as their authority and control over subordinates.45 Low level perpetrators can also be punished before international criminal justice mechanisms because of their important role in heinous atrocities.46 Prosecutorial selection of crimes and perpetrators can have more to do with the chance of securing a conviction, or availability of resources, rather than seeking to ensure the ‘just desserts’ of those most responsible.47 Furthermore, international criminal justice mechanisms allow plea bargaining, where the perpetrator can accept responsibility for certain crimes in order to try to obtain a reduced prison sentence.48 This further undermines retribution, and indicates the prevalence of other priorities at work, such as expediency.49 International criminal justice mechanisms also pursue a number of utilitarian goals. International criminal justice is supposed to deter and prevent future crimes. However, deterrence is only effective where there is a chance of ‘getting caught’.50 The experience of international criminal justice indicates that this has not been achieved. Since the first international criminal justice mechanism at the Nuremberg Tribunal in 1945, numerous other international crimes have been committed and continue to be without being prosecuted on the international stage.51 Other factors, such as ideological justifications or survival, may dominate perpetrators’ motivations in committing international crimes with the risk of prosecution being too remote or unlikely.52 Besides deterrence, international criminal justice mechanisms also avow other purposes, such as contributing to the restoration and maintenance of peace and reconciliation.53 Removing a Head of state or other perpetrators of international crimes can encourage the realisation of these goals, but they are difficult to

45 Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, Yale Law Journal 100(8) (1991) 2537–2615, p. 2599; Article 28, Rome Statute. 46 Steven Ratner, Jason Abrams, and James Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford University Press 2009, 3rd edn), p. 372. For instance, Dražen Erdemovicˇ a Bosnian Serb soldier personally killed 70 people as part of the genocide in Srebrenica; Prosecutor v Erdemovicˇ, ICTY Sentencing Judgment, IT-96-22-T, 26 November 1996, para. 78. 47 Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press 2007), p. 151. 48 See Nancy Amoury Combs, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach (Stanford University Press 2007). 49 Drumbl Note 47, p. 16. 50 Drumbl Note 41, pp. 590–591. 51 Drumbl Note 47, p. 170. 52 Ibid., pp. 171–173. 53 UN Security Council Resolutions creating the ICTY S/RES/827 (1993), 25 May 1993; ICTR S/RES/955 (1994), 8 November 1994. These purposes could also suggest a transitional justice role for the ad hoc tribunals; examination of this issue is beyond the scope of this book.

16 Conceiving justice for victims discern in isolation from other transitional justice developments, such as peace agreements and domestic reconciliation measures of apologies or truth processes.54 International criminal justice mechanisms can offer apologies which could promote reconciliation, such as in the case of Plavšic´, but these are generally rare.55 As Drumbl points out with international criminal justice mechanisms, the pursuit of reconciliation is mostly ‘rhetorical’ without any real effort expended in realising it in practice.56 Accordingly, international criminal justice pursues a mixture of retributive and utilitarian punishment objectives, without completely satisfying either theory in practice.57 4 Victims in the criminal justice theories of international criminal justice A different account of the purpose of international criminal justice mechanisms often declared as delivering ‘justice to victims’, consistent with retributive or utilitarian goals.58 The punishment of perpetrators is pursued in order to condemn and stigmatise them, thereby denying their legitimacy and recognising victims’ suffering.59 Although these mechanisms do hold senior perpetrators to account, punishment does not always ensure justice for victims.60 In retributive theories, victims are considered as objects used to justify punishment, as their harm is considered an aggravating factor in sentencing.61 Furthermore, it punishes the offender without remedying the harm suffered by the victim.62 This marginalisation of victims can be seen in criminal justice proceedings, where they are often prevented from participating in the determination of decisions, so as to protect the impartiality of the trial and the procedural rights of the defendant. This is due to fears that victims would undermine the equality of arms between the prosecution and the defence.63

54 Janine Natalya Clark, Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation, European Journal of International Law 20(2) (2009) 415–436, p. 435. 55 Prosecutor v Biljana Plavšic´, Sentencing Judgment, 27 February 2003, IT-00-39 and 40/1, para. 19, cited in William A. Schabas, An Introduction to the International Criminal Court (Cambridge University Press 2011), p. 347. 56 Drumbl Note 47, p. 150. 57 McGonigle Note 30, p. 61. 58 See Note 1 and ICTY website: www.icty.org/sid/324 (accessed 10 December 2013). 59 Schabas, Note 55, p. 347. 60 See section D and Chapter 2. 61 See Chapters 2 and 3. 62 William Tallack, Reparation to the Injured and the Right of the Victims of Crime to Compensation (Wertheimer 1900); Margaret Fry, Justice for Victims, Journal of Public Law 8 (1959) 191–194. 63 See John D. Jackson, Justice for All: Putting Victims at the Heart of Criminal Justice? Journal of Law and Society 30(2) (2003) 309–326.

Conceiving justice for victims 17 Utilitarianism is also indifferent to victims’ needs and interests by focusing on maximising the collective interests of society. This can involve deciding to prosecute the most senior perpetrators of international crimes so as to deter others. However, victims may identify the foot soldier who physically committed the crime against them as the most responsible person deserving punishment, rather than the general or president who orchestrated such crimes.64 Accordingly, criminal justice systems based on these theories do not consider victims’ needs or interests in the determination of justice.65 It is only with the ICC that justice has been more broadly interpreted beyond these criminal justice theories to include victims, owing to a greater understanding of victims’ interests through victimological research and developments in human rights law. To assess this it is worth identifying who victims of international crimes are before considering what justice means to them.

C The concept of a victim The use of the word ‘victim’ is commonly used to refer to certain persons and groups who are seen to suffer, and considered not responsible for their harm.66 Suffering can encompass those who are subjected to accidents, medical complications, crimes, and natural disasters. Victims of crime can be distinguished from these other categories as crimes entail the intention or recklessness of a perpetrator in committing a harmful act against an injured party, and therefore deemed more morally objectionable and serious.67 This section begins by discussing the conception of the victim in victimology, before identifying a critical victimological approach to recognising victims of international crimes. This analysis hopes to shed some light on the recognition of individuals and groups as victims which determines their access to international criminal justice mechanisms. 1 Victimisation Victimisation is the way in which individuals or groups suffer harm, ‘a violation of rights, or significant disruption of their wellbeing’ as the result of a crime.68 The 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN Victims’ Declaration),69

64 65 66 67

Combs Note 48, p. 47. Heikkilä Note 30, p. 33; McGonigle Note 30, p. 44. Eric Stover, The Witnesses (University of Pennsylvania Press 2005), p. 5. Jo-Anne Wemmers and Anne-Marie de Brouwer, Globalization and Victims’ Rights at the International Criminal Court, in R. Letschert and J. Van Dijk (eds), The New Faces of Victimhood: Studies in Global Justice (Springer 2011) 279–300, p. 282. 68 Ibid. 69 A/RES/40/34, 29 November 1985.

18 Conceiving justice for victims construes harm in a broad sense including physical, mental, or emotional harm, economic loss, or substantial impairment of their fundamental rights.70 Victimisation can be distinguished by the degree in which it affects certain individuals and groups. The direct or primary victim is the person who is originally injured by the crime, such as an individual who is murdered. A crime can cause harm to victims in different ways, and can be made more severe due to the characteristics of the individual, such as age where crimes can cause greater harm to children.71 However, a crime can affect more than the direct victim. For instance, the relatives of a murder victim can suffer emotional trauma such as shock, depression, and guilt as well as economic hardship as a result of the crime, thus causing significant disruption to their ‘well-being’.72 Victimisation can also impact on local communities and wider society. An arson attack on an individual’s house may be committed with the intent of sending a sectarian or racial motivated message to a community, causing fear to their members and forcing some to move. Recognising the harm caused to members of a family, community, and society is referred to as ‘indirect victimisation’, or alternatively, ‘secondary’ and ‘tertiary’ victims.73 ‘Secondary victims’ are persons victimised by their connection to the direct victim, such as relatives, people who have witnessed a crime and are left emotionally traumatised, or individuals who try to prevent victimisation and are harmed as a result. ‘Tertiary victims’ are members of communities affected by the consequences of the harm or crime, due to the primary or direct victim being a member of such a group, such as in cases of hate crimes or genocide.74 Secondary victims are likely to suffer more harm than tertiary victims, due to their closer proximity to the direct victim. This distinction of degree can help to provide appropriate remedies to different groups of victims, such as compensation, restitution, and rehabilitation to the primary and secondary victim, to collective reparations and non-recurrence measures for tertiary victims. This ‘multi-victim perspective’75 of victimisation is especially relevant for international crimes such as genocide, where victims are not only

70 Principle 1. 71 Rob Mawby and Sandra Walklate, Critical Victimology: International Perspectives (Sage 1994), pp. 48–51. 72 See Basia Spalek, Crime Victims: Theory, Policy and Practice (Palgrave Macmillan, 2005), p. 13. 73 Edna Erez and Tikva Meroz-Aharoni, Primary and Secondary Victims and Victimization during Protracted Conflict, in Letschert et al. Note 10, 117–140, pp. 120–121. 74 See Spalek Note 72; Caroline Hoyle and Lucia Zedner, Victims, Victimisation and Criminal Justice, in M. Maguire, R. Morgan, and R. Reiner (eds), The Oxford Handbook of Criminology (Oxford University Press 2007) 461–495, p. 470. 75 Richard Young, Integrating a Multi-Victim Perspective into Criminal Justice through Restorative Justice Conferences, in A. Crawford and J. Goodey (eds), Integrating a Victim Perspective within Criminal Justice (Ashgate Dartmouth 2000) 227–253, p. 238.

Conceiving justice for victims 19 individuals, but also communities and groups.76 Victims of international crimes generally do not suffer from a single crime, but multiple crimes committed against them on numerous occasions over a period of time, both direct and indirect.77 A victim could be disabled through torture, witnessed the murder of a neighbour, a family member raped, their home destroyed, property stolen, and forced to live in a displaced persons camp.78 This chronic suffering can compound victims’ harm.79 In addition, international crimes are often committed against certain groups or minorities, meaning that the harm caused can break down social and community bonds, which with domestic crimes would normally help victims cope with their suffering.80 Consequently, international crimes can cause extensive harm to victims in different ways and at various levels.81 The inclusion of indirect victims provides a more accurate recognition of victimisation caused by international crimes to facilitate a more effective response to those harmed. For the purpose of this book, victims are those individuals and groups who suffer harm both directly and indirectly as a result of an international crime. 2 Victims and victimology The discipline of victimology has over the last few decades developed a better understanding and recognition of victims of crimes. Victimology is the study of victimisation, examining how the harm caused by crimes impacts individuals and wider society, as well as assessing its causes, extent, and consequences.82 Originally victimology was concerned with analysing individuals who were defined as victims in criminal law, so-called positive victimology.83 However, this approach excluded the recognition of those who suffered harm which was not considered criminal, due to structural inequalities, such as child abuse and domestic violence before the 1970s and 1980s.84 Positive victimology also explored the victim’s responsibility

76 See Tristan Anne Borer, A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa, Human Rights Quarterly 25(4) (2003) 1088–1116, p. 1109. 77 Wemmers and Brouwer Note 67, p. 286. 78 Ernesto Kiza, Corene Rathgeber, and Holger Rohne, Victims of War: War-Victimization and Victims’ Attitudes Towards Addressing Atrocities (Hamburger Edition 2006), p. 81. 79 See Danieli Note 21. 80 Wemmers and Brouwer Note 67, p. 287. 81 See the victimisation caused in the Northern Ugandan conflict, discussed in Chapter 5; Kiza et al. Note 78. 82 John P. Dussich, Victimology: Past, Present and Future, UNAFEI (2006) 116–129, p. 118. 83 See Hans Von Hentig, The Criminal and his Victim: Studies in the Socio-biology of Crime (Archon 1967); Benjamin Mendelsohn, Une nouvelle branche de la science bio-psychosociale, la victimology, Etudes Internationales de Psycho-Sociologie Criminelle 11(2) (1956) 95–109. 84 See Mawby and Walklate Note 71.

20 Conceiving justice for victims in a crime or proneness to victimisation. Yet, it neglected the impact of social structures upon victimisation, such as race, class, age, and gender, and resulted in ‘victim blaming’.85 In reaction to the narrow focus of positive victimology on victims, radical, feminist, and critical victimology theorists broadened the recognition of victims. Radical theorists coming from a Marxist perspective consider how class structures impact on victims, as well as looking beyond criminal victimisation to consider state violence.86 Feminist victimology adds an important gender dimension by drawing attention to the harm that crime can have on women, and the lack of state protection to prevent gender based crimes, such as domestic violence and marital rape.87 There is a growing interest in the disproportionate impact of conflict on women, such as sexual violence and exploitation.88 Critical victimology challenges the definitions and perceptions of victims to include a wider understanding of the ‘role of the law and the state in the victimisation process as well as the potential for human actors both to sustain and to change the conditions under which they act’.89 Through this perspective the recognition and treatment of victims can be examined to reflect the ‘lived reality’ of individuals and groups suffering as a result of a crime.90 The words ‘victim’ and ‘victimisation’ can be shaped by historical and cultural contexts, or manipulated for political goals, such as seeking harsher punishments on perpetrators.91 Critical victimology attempts to uncover victimisation which remains hidden or unrecognised, due to prevailing social factors, politics, or lack of interest in certain individuals or vulnerable groups, such as children or the elderly.92 Accordingly, victimology has shifted from a positive theory based on the objective standard of the law, to a more subjective examination of those who suffer harm; this has widened the scope for recognising individuals who suffer and the causes of victimisation.

85 Hoyle and Zedner Note 74, p. 468; Mawby and Walklate ibid., pp. 11–12. 86 See Robert Elias, The Politics of Victimization: Victims, Victimology and Human Rights (Oxford University Press 1986). 87 Mike Maguire, The Needs and Rights of Victims of Crime, Crime and Justice 14 (1991) 363–433. 88 See Anne-Marie de Brouwer, Charlotte Ku, Renée Römkens, and Larissa van den Herik (eds), Sexual Violence as an International Crime: Interdisciplinary Approaches (Intersentia 2013). 89 Mawby and Walklate Note 71, p. 177. 90 Kieran McEvoy and Kirsten McConnachie, Victimology in Transitional Justice: Victimhood, Innocence and Hierarchy, European Journal of Criminology 9(5) (2012) 527–538, p. 530. 91 James Dignan, Understanding Victims and Restorative Justice (Oxford University Press 2005), p. 35. 92 See Lorraine Wolhuter, Neil Olley, and David Denham, Victimology: Victimisation and Victims’ Rights (Routledge-Cavendish 2009).

Conceiving justice for victims 21 3 Victim recognition and the ‘victim label’ Victim recognition is important in distinguishing those who have suffered and can access redress for their harm. Official recognition of a victim’s harm can affirm that they are not responsible for their suffering, asserting their dignity and ability to seek redress.93 However, in reality individuals are not always recognised as victims due to prevailing political or moral ‘labelling’ of who a victim should be and who deserves recognition.94 The victim label can bestow sympathy, praise, or benefits on an individual as it recognises that they have suffered.95 Christie postulates the ‘ideal victim’ as this representation of society’s view of what a victim should be.96 The ideal victim reflects a common conception in the minds of most people as a person who is an innocent, vulnerable, very young or very old, carrying out a respectable endeavour, and a good citizen who has been attacked by a big, bad offender who is a stranger.97 This construction of the ‘innocent victim’ serves to contrast the ‘wicked’ perpetrator who requires punishment, and fits into retributive discourses, simplifying and distorting the reality of crimes where such identities do not always exist in practice.98 By rewarding only ideal victims the state may be creating further victimisation and injustice by distinguishing who is worthy or not against a moral yardstick. For those individuals not recognised as victims, it may cause stigma, emotional trauma, and self-blame.99 Furthermore, the construction of the ‘ideal victim’ serves to present victims as passive and vulnerable.100 Yet conceiving victims as simply weak and helpless can rob them of their autonomy and agency to help themselves. From the perspective of victims, as individuals they can have different views on the use of the victim label. They may see their harm and suffering as subjective, unique, and possibly un-sharable.101 For many victims, the label is a transitional rather than a permanent identity, as they find ways to cope, whether through informal support of family and friends and/or

93 Valerie M. Meredith, Victim Identity and Respect for Human Dignity: A Terminological Analysis, International Review of the Red Cross June 91(874) (2009) 259–277, p. 260. 94 Richard Quinney, Who is the Victim? Criminology 10 (1972) 314–323, p. 321. 95 David Miers, Taking the Law into their own Hands: Victims as Offenders, in A. Crawford and J. Goodey (eds), Integrating a Victim Perspective within Criminal Justice (Ashgate 2000) 77–95, p. 78. 96 See Nils Christie, Conflicts as Property, British Journal of Criminology 17(1) (1977) 1–15. 97 Ibid., p. 19. 98 Kieran McEvoy and Kirsten McConnachie, Victims and Transitional Justice: Voice, Agency and Blame, Social and Legal Studies 22(4) (2013) 489–513, p. 502. 99 See Insult to Injury, Victim Support, 2003. 100 Anne-Marie McAlinden, Deconstructing Victim and Offender Identities in Discourses on Child Sexual Abuse: Hierarchies, Blame and the Good/Evil Dialectic, British Journal of Criminology (forthcoming), p. 22. 101 Paul Rock, Victimology (Brookfield 1994); Iain Wilkinson, Suffering: A Sociological Introduction (Polity Press 2005).

22 Conceiving justice for victims through official recognition and access to justice. For some victims though, the label can be a negative connotation. They may perceive being labelled as a victim as imparting a sense of vulnerability or possibly weakness, and thereby avoid identifying themselves as a victim, and instead prefer being defined as a survivor.102 Some victims may want to forget about their harm, by putting the whole incident behind them. Whereas others may see their victimisation as part of life or their job, such as police officers, and dismiss being labelled as a victim to avoid its connotations.103 Such usage of the victim label may however mean that some individuals could use the victim label to absolve their own responsibility and shame or to blame other people, forces, and structures around them. The construction of victimhood is not limited to the domestic sphere, but is equally applicable to international crimes and armed conflict. The use of the victim label within conflict and post-conflict societies can perpetrate a very powerful moral conception of the victim. Participants in conflicts can portray themselves as collective victims in order to get recognition of the victim label and its corollary benefits of being seen as the ‘good guys’ in the conflict, deserving of sympathy and support, and innocent of any crime.104 Similarly the media can simplify conflicts to tribal, religious, or an insurgency reinforcing such a black and white, onedimensional perspective. There is also a danger of ‘moral relativism’, particularly with international crimes, whereby an individual or group can blame their situation, context, or structural factors for committing such crimes, and as a result legitimise the violence committed against individuals and deny recognition of certain victims.105 One only has to look at the War on Terrorism, the Israeli/Palestinian conflict or the ‘Troubles’ in Northern Ireland, to see how violence and victimisation is used to construct moral justification and legitimacy.106 Recognising victims of international crimes can be limited to political constructions of the victim label and who deserves to be recognised, which could neglect others, legitimise certain victims’ suffering, or allow ‘victor’s justice’. In addition, moral connotations of innocence with the victim label can imbue victim advocates with moral superiority (a sword) and a shield from scrutinising the basis of the claims against other interests, or may make those who criticise such advocates appear insensitive or callous.107 The victim label therefore has a

102 See Spalek Note 72. 103 Ibid. 104 See David Bar-Tal, Lily Chernyak-Hai, Noas Schori, and Ayelet Gundar, A Sense of SelfPerceived Collective Victimhood in Intractable Conflicts, International Review of the Red Cross 91(874) (2009) 229–258. 105 McEvoy and McConnachie Note 98, p. 502. 106 Ibid. 107 Ibid.

Conceiving justice for victims 23 very powerful meaning that can be easily abused to further the political or moral gains of different participants in a conflict. In practice conflicts and collective violence, which can often be protracted and complex, do not enable the identities of victims and perpetrators to fit into neat, distinct morally acceptable categories. Instead the ‘messy’ reality of conflicts and collective violence can mean that there are complex identities of victim–perpetrators who can exist at the same time, such as child soldiers, or evolve over time by being victimised one day, but carrying out a retaliatory attack the next.108 This is not to mitigate personal responsibility for such harm, but to understand the personal, social, and political context in which victimisation occurs and to develop a ‘thicker’ multi-perspective in understanding how to address such harms in terms of justice.109 As such, there can be a ‘continuum of offending’ where victims are coerced or cooperate to facilitate perpetrator violence to avoid further suffering themselves and/or to survive.110 This can have the effect of dehumanising victims further by making them complicit or collaborators in the victimisation process, such as Primo Levi’s account of the Jews used as ‘special squads’ in Auschwitz to run the crematoriums to burn the bodies of those Jews in the gas chambers, with they themselves later suffering the same fate. This ‘gray zone’ of identities when it comes to perpetrators and victims of simply two distinct blocs, does not satisfy moral conceptions or political narratives of a conflict.111 The effect of these distinctions can mean that a ‘hierarchy of victims’ can arise, with those ‘innocent’ victims prioritised to facilitate political narratives of blame and innocence during the conflict.112 Such construction of victimisation can gloss over issues of responsibility, such as with child soldiers, who are forced to commit atrocities, but may not fit into such a neat category of ‘innocent’ where they rise to a position of command, such as the ICC indictment against Dominic Ongwen discussed later in this book.113 A critical approach to recognising victims is therefore needed to avoid recognition becoming a source of victimisation, but to also acknowledge responsibility of individuals and a more ‘thicker’ understanding of complex issues in doing ‘justice’.

108 Ibid., p. 494. 109 Kieran McEvoy, Beyond Legalism: Towards a Thicker Understanding of Transitional Justice, Journal of Law and Society 34(4) (2007) 411–440. 110 McAlinden Note 100. 111 Levi Note 18, ch. 2. 112 McEvoy and McConnachie Note 90, p. 532. 113 Ibid., p. 533.

24 Conceiving justice for victims 4 A critical approach to recognising victims of international crimes A critical victimology approach would recognise individuals or groups who suffer harm as a result of an international crime as victims, providing more of a ‘lived reality’ of victimisation devoid of political constructions.114 Such an inclusive recognition of victims would seek to ensure that those marginalised or vulnerable are able to access international criminal justice mechanisms, as has already been done with gender violence and crimes committed against children in the past two decades. The law itself can be constructed and used to only recognise deserving victims, and therefore be a source of secondary victimisation. As such, critical victimology would push the definitions of international crimes to reflect the suffering of victims, distinguishing them from domestic crimes, as discussed earlier, to include those individuals or groups who fall outside the definitions or jurisdiction of international crimes, to remedy the serious harm they have suffered as a result. The difficulty with international criminal law is that it narrows the scope of victims’ suffering and dichotomises identities by prosecuting and punishing the individual perpetrators, without tackling the wider structural causes of victimisation and complex issues of responsibility in the ‘gray zone’ between victims and perpetrators.115 As discussed earlier in this chapter the use of criminal justice, traditionally for domestic crimes, can be inappropriate with the mass scale and complex identities that arise with international crimes. This may require, as suggested in later chapters, that justice for victims goes beyond international criminal justice, and complemented by wider remedial measures to effectively redress the mass suffering caused as a result of international crimes and to provide flexibility in addressing the complexities of collective violence.

D Justice for victims of international crimes Justice is a fundamental part of human society as it helps to regulate social interaction between individuals and institutions. Justice is more than giving a person what they are due, yet it can be synonymous with ‘fairness’.116 It can also be understood in the negative as unfairness or injustice. Injustice is normally defined as the opposite of justice, but it can be better distinguished as the situations which justice seeks to correct. Victims can represent the faces of injustice by the fact that they suffer.117 The victim can believe the crime to be an injustice, as they have been wrongly

114 Ibid., p. 534. 115 McEvoy and McConnachie Note 98, p. 496. 116 See D.D. Raphael, Concepts of Justice (Oxford University Press 2003), pp. 1–5 and 233–241. 117 See Judith N. Shklar, The Faces of Injustice (Yale University Press 1992).

Conceiving justice for victims 25 harmed by another and the state failed to protect them. A theoretical discussion of justice can help to determine its meaning for victims of international crimes, discussed in the following sub-sections. 1 Justice Aristotle theorised that there were two types of justice: complete and special.118 Complete justice represents the fairness of the law in regulating individuals’ relations with each other. Where the law fails to reflect justice or where institutions are unjust, then there is a need of recourse to special justice. Special justice is the way in which complete justice can be attained in the face of injustice and inequality. Aristotle further sub-divided special justice into rectificatory and distributive justice. Rectificatory or corrective justice regulates transactions (such as contracts) or clandestine affairs (crimes) between individuals.119 Rectificatory justice corrects the harm or injustice suffered by the injured party through trying to return them to the position they were in initially.120 Restitution of stolen property or compensation for loss are apt examples, and have been used in reparations orders by human rights courts to correct the harm suffered by victims.121 To Aristotle, rectificatory or corrective justice was about achieving equality between the parties, more of a mathematical formula rather than about fairness or restoration.122 Rectificatory justice though is limited to resolving injustices between individuals rather than addressing inequalities in society, which is the role of distributive justice. Distributive justice seeks to determine the allocation of goods in society, such as wealth, class, honour, or abilities. Different theorists have postulated that such distribution should be based on various ideals such as egalitarianism, utilitarianism, or fairness.123 Egalitarianism seeks to equally distribute goods amongst members of society.124 However, equal distribution of goods may impact individuals and groups differently due to dissimilar needs. This is due to egalitarianism not considering the uniqueness of each person and the diversity of society, so that equality of distribution may cause inequality. Utilitarianism allocates goods to maximise the total happiness of the majority to the possible detriment of the minority.125

118 119 120 121 122 123 124 125

Aristotle, Nicomechean Ethics, Book V. Ibid. Ibid. See Chapter 4. Raphael Note 116, p. 43. See Ken Binmore, Natural Justice (Oxford University Press 2005), pp. 147–184. Ibid., pp. 165–184. John Rawls, A Theory of Justice (Harvard University Press 1971), pp. 19–24.

26 Conceiving justice for victims Rawls instead asserted that fairness should be the determining criterion in distributing goods justly in society.126 According to Rawls, fairness could be established in the hypothetical situation of the original position, where individuals behind a veil of ignorance are devoid of their personal characteristics, knowledge of themselves, and self-interests. With such a veil of ignorance individuals would agree to the fundamental principles of justice. The two principles that emerged from Rawls’ original position are that everyone should have an ‘equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others’, and that ‘social and economic inequalities are arranged so they are both (a) reasonably expected to be to everybody’s advantage, and (b) attached to positions and offices open to all’.127 These two principles enable individuals the freedom and opportunity to determine fair proceedings based on their interests so as to ensure fair outcomes.128 It is this notion of fairness that informs the discussion below on the procedural role of victims in international criminal justice. Criminal justice incorporates elements of corrective and distributive justice. Corrective justice is manifest in retribution, by trying to equate the punishment of the perpetrator with the suffering of the victim. It also evidences distributive justice by seeking to maximise society’s interests of deterring crimes. Nonetheless, victims’ liberty to participate in determining justice in criminal courts is neglected in favour of procedural and evidential rules, with outcomes limited to acquitting or punishing defendants. Justice for victims, discussed below, aims to shift this balance by recognising the value and needs of victims in the determination of justice in criminal courts, so as to ensure fair proceedings and outcomes for them. The UN Victims’ Declaration identifies justice for victims as the ‘responsiveness of judicial and administrative processes to the needs of victims’.129 In order to redress injustice it is worth trying to first understand victims’ needs. 2 The needs of victims of international crimes Victims respond differently to crime and harm due to their own personal idiosyncrasies and social factors.130 Their needs can be diverse and change over time. Victimological research of victims of domestic crimes has found

126 127 128 129 130

Ibid. Ibid., p. 53. Ibid., pp. 74–78. Principle 6. Heidi Rombouts, Importance and Difficulties of Victim-based Research in Post-conflict Societies, European Journal of Crime, Criminal Law, and Criminal Justice 10(2–3) (2003) 216–232, p. 220.

Conceiving justice for victims 27 that they commonly have informational, emotional, and practical needs.131 In relation to informational needs, victims want to know if the offender has been apprehended, charged, or released; more specifically who committed the crime against them, why it happened, and most importantly ‘why me?’ Emotional distress by the crime can cause the victim to suffer further from shock, anxiety, confusion, helplessness, depression, denial, fear, or other trauma.132 One of the most documented conditions of victimisation is Post-Traumatic Stress Disorder (PTSD), which symptoms can be those mentioned, as well as the victim re-experiencing the event, nightmares, avoidance, and changes in their behaviour or routine that can be long term.133 Accordingly, victims may need emotional support or counselling, so as to help them to cope with their victimisation, and to heal emotionally and psychologically.134 The practical needs of victims can be quite diverse depending on the consequences of the crime. Some victims may have suffered from physical harm and need medical treatment, or economic loss and require compensation for the resulting costs or loss of earnings. A victim may need the crime to be stopped and prevented from recurring, such as in domestic violence. They may require official recognition as a victim, as well as acknowledgement and condemnation of their harm. Victims may also want the person who harmed them to be held responsible and punished in order to give them a sense of security that the victimisation will not happen again. Confronting the offender and voicing their victimisation through testifying could provide them with catharsis and healing.135 Victims may wish to see the offender sincerely apologise and to remedy the harm caused.136 Others may be too traumatised or fearful to testify requiring protection, privacy, and safety measures to prevent further victimisation. Victims may have some or all of these needs. Victims of international crimes can have similar informational, emotional, and practical needs to those of domestic crimes, such as identification of the perpetrators, confronting the offender, recognition of their

131 Sarah Walklate, Victimology: The Victim and the Criminal Justice Process (Unwin Hyman 1989), pp. 133–136; Maguire Note 87, pp. 545–551; Criminal Neglect: No Justice beyond Criminal Justice, Victim Support, 2002. 132 Spalek Note 72, p. 73. 133 Dean G. Kilpatrick and Ron Acierno, Mental Health Needs of Crime Victims: Epidemiology and Outcomes, Journal of Traumatic Stress 16(2) (2003) 119–132. 134 United Nations, Handbook on Justice for Victims (UNODCCP 1999), pp. 4–9. 135 Ian Edwards, An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-making, British Journal of Criminology 44(6) (2004) 967–982, p. 977. 136 Heather Strang, Repair or Revenge: Victims and Restorative Justice (Oxford University Press 2002), pp. 18–22.

28 Conceiving justice for victims harm, participation in judicial processes, and protection measures.137 However, the needs of victims of international crimes can be more extensive than those of domestic crimes. This is due to the graver and more traumatic nature of international crimes outlined above. Victims’ informational needs can extend beyond knowing the occurrence of the crimes to wider context to which such atrocities were allowed to happen, the reasons, to determine the fate of their loved ones, or to recover their bodies.138 The emotional impact of international crimes can leave victims more vulnerable than domestic crimes, due to the involvement of their own government, which can be unable or unwilling to investigate or prosecute such crimes.139 This can cause further harm to victims by labelling them as unworthy of recognition or that they deserve to suffer.140 The psychological harm caused by international crimes is so invasive that it can transfer to subsequent generations.141 Victimisation committed within a community, against ‘one of their own’, can also compound emotional harm to victims, such as the killing of an informer, leaving the relatives of those killed feeling abandoned, ostracised, and/or betrayed. Practical needs may be more pressing to victims than issues of justice, such as the provision of food, clean water, shelter, medical supplies, security, returning to their homes, or accessing their land; owing to the scale of destruction caused by international crimes.142 They may also require the cessation of crimes so that they can begin to locate their family members. Correspondingly reconciliation measures may be essential so that victims can re-integrate into their communities.143 If a victim is to participate or testify as a witness in a trial they need effective protection measures to ensure they are not identified and subjected to further harm. This can be particularly difficult to achieve in the aftermath of mass

137 See Jo-Anne Wemmers, Victims’ Need for Justice: Individual versus Collective Justice, in Letschert et al. Note 10 145–152; Jamie O’Connell, Gambling with the Psyche: Does Prosecuting Human Rights Violators Console their Victims? Harvard International Law Journal 46 (2005) 295–345. 138 Study on the Right to the Truth, Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, 8 February 2006. 139 O’Connell Note 137, p. 303. 140 Ibid.; Cristian Correa, Reparations for Victims of Massive Crimes: Making Concrete a Message of Inclusion, in Letschert et al. Note 10 185–234, pp. 189–190. 141 Danieli Note 21, pp. 46–49. 142 See Patrick Vinck, Phuong Pham, Suliman Baldo, and Rachel Shigekane, Living with Fear: A Population-based Survey on Attitudes about Peace, Justice and Social Reconstruction in Eastern Democratic Republic of Congo, Human Rights Center University of California, Berkeley, August 2008; Kiza et al. Note 78. 143 Rianne Letschert, Roelof Haveman, Anne-Marie de Brouwer, and Antony Pemberton, Victimological Approaches to International Crimes, in Letschert et al. Note 10 621–646, p. 641.

Conceiving justice for victims 29 violence, whereby perpetrators and collusive networks that facilitated the crimes may still exist and seek to target those who speak out against them or to recover those who were disappeared. Nevertheless, when talking about victims and their needs we must avoid generalisations, and homogenising individuals who have more nuanced interests and perspectives.144 Victims do not speak with one voice. With international crimes involving numerous victims, different individuals and groups may have diverse and possibly conflicting needs.145 For example, some may prefer peace over accountability or resolution of land issues over monetary compensation.146 This may require a compromise between these divergent views. While recognising these complexities, victims’ views can change or mature over time from prioritising security and peace over accountability, which can lend support to amnesties being part of peace agreements or regime change. Often after such agreements as the consequences of being tortured or losing a breadwinner in the family becoming more entrenched, victims’ demands for acknowledgement, truth, accountability, and reparation may be more important. Thus constructing a coherent theory of justice for victims based on disparate needs is almost impossible. Instead the following section aims to enable victims with the procedural basis to seek outcomes of their choosing, rather than prescribe justice as one particular goal or outcome. 3 Justice for victims Before exploring the elements of justice for victims, it is worth outlining that for the purposes of this book justice for victims means the ability of victims to satisfy their procedural needs to inform outcomes that can fulfil their interests. Justice for victims has often been described as a ‘fiction’ or ‘illusory and elusive’, due to the gap between the rhetoric of the phrase and what victims receive in reality.147 Yet justice is not unlimited, victims’ expectations should be managed to reflect the limits of remedying harm caused by international crimes, to avoid causing secondary victimisation when expectations are not met. This does not mean that justice can only be abstract or elusive, rather justice for victims discussed here is a

144 See Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Hart 2008), pp. 360–366. 145 Mark Findlay and Ralph Henham, Beyond Punishment: Achieving International Criminal Justice (Palgrave Macmillan 2010), p. 11. 146 See the debate over the role of the International Criminal Court in Uganda, in Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (Zed Books 2006). 147 See Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press 2009); Merwe Intro. Note 14, p. 115.

30 Conceiving justice for victims framework to achieve measured results which victims can expect from domestic and international mechanisms in redressing international crimes. Justice for victims involves both corrective and distributive justice. Corrective justice ensures that those harmed are returned to the original situation before the international crimes. However, returning victims to their original position may restore them to a situation of inequality which caused their victimisation, or it may not be possible as they may be severely harmed or dead.148 Therefore justice for victims can be considered more as reparative or remedial justice, rather than just corrective, by repairing victims’ harm where it cannot be completely undone.149 It also incorporates distributive justice by trying to tackle the causes of victimisation through the redistribution of goods in society, such as reform of state institutions through the inclusion of minorities in government, who were previously victims of international crimes, due to their vulnerability in society. With regards to state involvement in international crimes, justice for victims should also address impunity. Impunity is the failure by a state to investigate and prosecute those responsible for international crimes, and to recognise and remedy the suffering of victims.150 As such, impunity is considered the ‘opposite of justice’ as it serves to refute victims’ suffering and access to redress.151 By denying them recognition and their ability to seek a remedy, it can send the message that such individuals, groups, and communities deserved to be harmed.152 Justice for victims therefore serves to counter impunity by reaffirming victims’ dignity, holding those responsible to account, and remedying their harm. Justice for victims is virtually synonymous with ensuring their right to an effective remedy in human rights law.153 Shelton distinguishes remedies as including two concepts – procedural and substantive.154 Procedural remedies refer to the ‘processes by which arguable claims . . . are heard and decided, whether by courts, administrative agencies, or other competent

148 Heidi Rombouts and Stephan Parmentier, The International Criminal Court and its Trust Fund are Coming of Age: Towards a Process Approach for the Reparation of Victims, International Review of Victimology 16 (2009) 149–182. 149 Separate Opinion of Judge Cançado Trindade, Villagrán Morales et al. Case (The ‘Street Children’ Case) v Guatemala, Reparations, Series C No. 63 (IACtHR, 19 November 1999), para. 42. 150 See Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (hereafter Impunity Principles), E/ CN.4/2005/102/Add.1, 8 February 2005, p. 6. 151 Danieli Note 21, p. 45; O’Connell Note 137, p. 310. 152 Correa Note 140, pp. 189–190. 153 The distinction between the two is that justice for victims and draws from victimological research, rather than just human rights law. 154 Dinah Shelton, Remedies in International Human Rights Law (Oxford University Press 2005, 2nd edn), p. 7.

Conceiving justice for victims 31 155

bodies’. Substantive remedies mean ‘the outcome of the proceedings, the relief afforded’.156 These procedural and substantive aspects of justice have been interpreted as rights for victims. These rights are legal entitlements which are to ensure the responsiveness of judicial mechanisms to their needs.157 Mawby and Walklate stipulate that translating victims’ needs as rights is necessary to avoid discretionary responses which can preference ‘ideal victims’; this fits into the critical victimology approach to avoid secondary victimisation.158 Mawby additionally suggests that on a justice based approach victims have rights irrespective of their need, due to the harm caused to them.159 A rights discourse has its own difficulties of promoting individualism, litigation, competition between victims, and co-opted with retributive policies against defendants’ rights. This may not always be the case, as a rights discourse can provide a common language to balance differing interests, rather than trumping the interests of others.160 Although victims’ needs inform the contents of justice, rights help to demarcate what justice for victims should be and can be framed within deontological ethics, that with rights comes obligations, enabling to address complex identities of perpetrators and victims that involve both acknowledgement of victimisation and responsibility. Such a rights based approach is useful in delineating procedural and substantive justice for victims. a Procedural justice A starting point for procedural justice is that victims can access a justice mechanism to seek redress.161 Procedural justice entails fairness in processes and outcomes. With regards to victims this involves their participation in proceedings, impact on decisions, and ability to shape outcomes.162 Procedural justice also involves the impartiality of judges and courts in their decisions and judgments.163 Victims can often suffer ‘secondary victimisation’ from the way they are treated by official institutions and

155 Ibid. 156 Ibid. 157 Principle 6, UN Victims’ Declaration; Guénaël Mettraux, Victims’ Participation in International Criminal Law, Journal of International Criminal Justice 8(1) (2010) 75–78. 158 Mawby and Walklate Note 71, p. 178. 159 R.I. Mawby, Victims’ Needs or Victims’ Rights: Alternative Approaches to Policy Making, in M. Maguire and J. Pointing (eds), Victims of Crime: A New Deal (Oxford University Press 1988) 127–137, p. 133. 160 Discussed further in the next section on human rights; see Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press 2003), pp. 20–21. 161 Ibid., p. 8. 162 Edgar A. Lind and T.R. Tyler, The Social Psychology of Procedural Justice (Springer 1988); Jo-Anne Wemmers, Victims in the Criminal Justice System (Kugler 1996). 163 Wemmers ibid.

32 Conceiving justice for victims individuals, such as the denial of their human rights, inappropriate attitudes or conduct by police or judicial officers, or by deciding not to prosecute a perpetrator.164 This frequently occurs where the criminal justice process or its officials do not consider the needs or interests of victims.165 Secondary victimisation can itself amount to inhuman and degrading treatment in cases of disappearances, and by extension other international crimes, if victims are prevented from uncovering the truth, denied recognition, and not treated in a compassionate or humane way by authorities, due to the serious mental harm caused.166 Therefore procedural justice is an important part of satisfying victims’ needs while preventing secondary victimisation. Some studies have suggested that procedural justice can be more important than substantive outcomes to some victims.167 Danieli identifies the significance of victims’ procedural role in each step of the justice process as, ‘an opportunity for redress and healing’.168 Treating victims with respect can improve their satisfaction with criminal proceedings.169 Participation in proceedings can also provide them with some ownership of the process, replacing their feelings of helplessness with worth and control.170 It can connote respect by acknowledging the importance of their voices.171 Although allowing victims to express their needs and interests is important, it does not require their views to dominate judges’ decisions, just that they are considered and taken into account in determining justice.172 The UN Victims’ Declaration and other international documents, influenced by human rights developments and victimological research on domestic criminal law practices, establish that victims do have certain procedural rights in relation to judicial and administrative proceedings as a

164 UN Handbook on Justice for Victims Note 134, pp. 9–10. 165 Ibid., p. 9. 166 This is particularly the case for disappearances, see Varnava and Others v Turkey (Applications nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90, and 16073/90) (ECtHR, 18 September 2009) Grand Chamber, paras 200–202. 167 See Lind and Tyler Note 162; Wemmers Note 162. 168 Danieli Note 21. 169 McGonigle Note 30, p. 48. 170 Danieli Note 21, p. 47. 171 Rombouts Note 130, p. 221. 172 Wemmers Note 162, pp. 146–147.

Conceiving justice for victims 33 result of a crime or violation of a human right.173 Their procedural rights include: respect and recognition; to receive information; to provide information; to legal advice or representation; protection of privacy and physical safety; to claim reparations; and to receive assistance.174 The official recognition of an individual as a victim is important in acknowledging their suffering.175 Recognising and treating victims with respect can fulfil their psychological needs by affirming their dignity.176 Providing information to victims allows them to understand the criminal process and be informed of the progress of the case, so that they can more effectively avail of their other rights.177 Additionally, supplying information can enable victims to report a crime and the opportunity to testify as a witness, thereby countering denial of their harm by publicly ‘telling the world’ what happened to them.178 As victims suffered from a crime they are primary sources to explain their harm, help a judicial mechanism determine the truth, and ensure their harm is effectively redressed through reparations.179 Victim participation in proceedings can improve the responsiveness of a justice mechanism to victims’ needs by enabling their interests to be presented and considered.180 For victims, participation can assert their dignity and agency to present their interests in contrast to the crimes which tried to disempower them.181 Access to legal assistance or representation can

173 Principles 4–17, UN Victims’ Declaration; 1985 Council of Europe, the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure: Recommendation No. R (85) 11; 2001 Council of Europe Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings, 2001/220/JHA; 2005 Council of Europe Convention on Action against Trafficking in Human Beings, CETS 197; Principle 19, Impunity Principles; Principles 12–14, UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UNBPG); International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), A/61/488, 2 October 2008. 174 See Anne-Marie de Brouwer and Marc Groenhuijsen, The Role of Victims in International Criminal Proceedings, in G. Sluiter and S. Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (Cameron May 2009) 149–204, pp. 153–154. 175 Ibid., p. 153; Danieli Note 21. 176 Danieli ibid., p. 47. 177 Marion E. Brienen and Earnestine H. Hoegen, Victims of Crime in 22 European Justice Systems (Wolf Legal 2000), p. 995. 178 See Levi Note 18, p. 63; Priscilla B. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (Routledge 2010, 2nd edn), p. 147. 179 Clara Sandoval-Villalba, The Concepts of ‘Injured Party’ and ‘Victim’ of Gross Human Rights Violations in the Jurisprudence of the Inter-American Court of Human Rights: A Commentary on their Implications for Reparations, in Ferstman et al. Note 21 243–282, p. 256. 180 Principle 6(b), UN Victims’ Declaration. 181 Mariana Pena and Gaelle Carayon, Is the ICC making the Most of Victim Participation? International Journal of Transitional Justice 7(3) (2013) 518–535, p. 534.

34 Conceiving justice for victims enable lawyers to more efficiently advocate victims’ interests and needs in legal processes. Prosecutors can often overlook victims’ interests as they also have to represent the state’s interests.182 The right to protection aims to avoid any further victimisation or trauma by protecting their safety and privacy.183 Without such protection victims could be prevented from performing their other rights. Assistance is meant to support their practical, informational, and emotional needs through assistance with filling in forms, counselling, and information on the criminal process.184 In addition, judicial or official personnel should be trained to deal sensitively with victims, to avoid secondary victimisation. As some victims may be more vulnerable than others due to their age, gender, ethnicity, etc., they may require additional protection or assistance measures.185 Often in conflict women are subjected to sexual violence and enslavement, and can face further difficulties of stigmatisation, sexually transmitted diseases, or other debilitating sexual injuries and trauma.186 Similarly children can often be subjected to serious harm or used by armed groups as soldiers, porters, or sex slaves, preventing them from attending school and developing as a child.187 Both these groups require specialist support, rehabilitation, and in cases of sexual trauma medical intervention.188 Procedural justice seeks to ensure that such individuals have effective support and agency to shape the outcomes of judicial or administrative processes to effectively redress their harm.189 b Substantive justice Substantive justice refers to the outcomes of decision making bodies, such as judicial or administrative mechanisms. For victims this involves

182 Emily Haslam, Victim Participation at the International Criminal Court: A Triumph of Hope over Experience, in D. McGoldrick (ed.), The Permanent International Criminal Court (Hart 2004) 315–334, p. 320. 183 Principle 6(d), UN Victims’ Declaration. 184 Victim Support Note 99 pp. 7–8; Walklate Note 131, pp. 133–136; Principle 6(c), UN Victims’ Declaration. 185 See Mawby and Walklate Note 71; Chapter 2; Principle 17, UN Victims’ Declaration; Rule 86 ICC Rules of Procedure and Evidence (RPE). 186 See Brouwer et al. Note 88. 187 See Prosecutor v Lubanga, Written submissions of Ms Coomaraswamy, ICC-01/04-01/061229-AnxA, 18 March 2008; Karl Hanson, International Children’s Rights and Armed Conflict, Human Rights and International Legal Discourse 5(1) (2011) 40–62. 188 Ahuka Ona Longombe, Kasereka Masumbuko Claude, Joseph Ruminjo, Fistula and Traumatic Genital Injury from Sexual Violence in a Conflict Setting in Eastern Congo: Case Studies, Reproductive Health Matters 16(31) (2008) 132–141. 189 See Raquel Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-sponsored Crimes, Vanderbilt Journal of Transnational Law 35(5) (2002) 1399–1501.

Conceiving justice for victims 35 redressing their harm and the causes of victimisation.190 Human rights law has established the need to ensure an effective remedy of the victims’ suffering so as to wipe out the consequence of the harm caused by the crime.191 This branch of law has established that international crimes involve gross violations of individual and group rights, giving rise to three main victims’ rights in relation to outcomes of truth, justice, and reparations.192 The right to truth entails the determination of what occurred in the past involving international crimes, including the circumstances and reasons, as well as the fate of those who died and their whereabouts.193 This right reflects victims’ need to know ‘what happened, why the crime was committed, and who committed the crime’.194 Ascertaining the truth can alleviate their suffering by offering an accurate historical narrative of the conflict and acknowledging their memory or status as a victim.195 The establishment of the truth can present lessons to be learnt for the state concerned so as to reform its institutions and prevent such crimes from recurring.196 Truth can also serve a restorative or healing function by acknowledging victims’ suffering as real and worthy of consideration in order to restore their dignity.197 The right to justice has been constructed in human rights law in procedural terms by victims being able to assert their rights and have access to

190 Wemmers Note 137, p. 148. 191 See M. Cherif Bassiouni, International Recognition of Victims’ Rights, Human Rights Law Review 6 (2006) 203–279; Velásquez Rodríguez v Honduras, Reparations and Costs, Series C No. 7 (IACtHR, 21 July 1989), paras 25–26; Papamichalopoulos and Others v Greece, App. no. 14556/89 (ECtHR, 31 October 1995), para. 34. 192 Based on the right to an effective remedy under Article 8, Universal Declaration of Human Rights (UDHR), 217 A (III), 10 December 1948; Article 13, European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), CETS No. 5; Article 2(3), International Convention of Civil and Political Rights, UNTS Vol. 999, p. 171, 16 December 1966; Article 25, American Convention of Human Rights, 22 November 1969. See also General Comment 31 on The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Human Rights Committee, CCPR/C/21/Rev.1/Add. 13, 24 May 2004, paras 15–20; Velásquez Rodríguez v Honduras, Judgment, Series C No. 7 (IACtHR, 29 July 1988), paras 174–175; Aksoy v Turkey, App. no. 21987/93 (ECtHR, 18 December 1996), para. 98. These rights are supported by victimological research of conflicts, see Kiza et al. Note 78. 193 Study on the right to the truth, OHCHR, E/CN.4/2006/91 (February 2006); 19 Tradesmen v Colombia, Merits, Reparations and Costs, Series C No. 109 (IACtHR, 5 July 2004), para. 261; Article 24(2), ICPPED; Principles 2–4, Impunity Principles; Principle 24, UNBPG. 194 Aldana-Pindell Note 189, p. 1439; Jonathan Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Hart 2008), p. 180. 195 Aldana-Pindell ibid., p. 1439; Hayner Note 178, pp. 145–151. 196 Bámaca Velásquez v Guatemala, Judgment, Series C No. 70 (IACtHR, 25 November 2000), para. 77; 19 Tradesmen v Colombia, para. 259. 197 South African Truth and Reconciliation Commission Report, Vol. I, Ch. 5, para. 45.

36 Conceiving justice for victims a fair and effective remedy, in the sense of access to and participation in an investigation, criminal proceedings, and to claim reparations.198 Securing justice as a substantive outcome under the Principles of Impunity involves the state prosecuting, trying, and punishing those responsible for crimes.199 This is retributive justice by punishing perpetrators for committing international crimes.200 Victimological research suggests that victims pursue a number of justice goals, which go beyond retribution and can be achieved by other non-criminal justice mechanisms, as part of their right to justice including: official recognition as a victim; condemnation of their harm; determination of those responsible; imprisonment of the perpetrator to ensure their security; and deterrence of future crimes.201 In light of victimological research the right to justice in substantive terms could be more broadly construed as accountability, which is concerned with ensuring that those who are culpable for causing an offence or violation are appropriately sanctioned. Thus the right to justice can satisfy a number of victims’ practical and emotional needs, but is not construed as a right to a prosecution or conviction, due to other interests or limitations of evidence.202 The right to reparations requires states to provide remedial measures to victims so as to alleviate or heal their harm.203 Reparations are meant to, as far as possible, wipe out the consequences of the wrongful act.204 Reparations made by a responsible party to victims can connote acknowledgement and vindication of their harm.205 Although criminal trials can offer acknowledgement for victims’ suffering by holding those responsible to account, reparations provide more direct and tangible means to remedy their harm through measures such as restitution, compensation,

198 Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political), Revised final report prepared by Mr Joinet Pursuant to Sub-Commission Decision 1996/119, E/CN.4/Sub.2/1997/20/Rev. 12 October 1997; Principles 12–14, UNBPG. 199 Principle 19, Impunity Principles. 200 Aldana-Pindell Note 189, pp. 1445–1451. 201 See Joanna Shapland, Victims, the Criminal Justice System, and Compensation, British Journal of Criminology 24(2) (1984) 131–149; Mark S. Umbreit, Crime Victims Seeking Fairness, Not Revenge: Towards Restorative Justice, Federal Probation 53 (1989) 52–57; Wemmers Note 137, p. 148; O’Connell Note 137, p. 320. 202 O’Connell ibid.; see the sub-section below on human rights. 203 See A/RES/60/147, UNBPG, 16 December 2005; Article 14, UN CAT; reparations have also been recognised for a long time under international humanitarian law – Article 3 of the Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV), and Article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977. 204 Germany v Poland, The Factory at Chorzow (Claim for Indemnity) (The Merits), Permanent Court of International Justice, File E. c. XIII, Docket XIV:I Judgment No. 13, 13 September 1928 (‘Chorzow Factory’ case). See Chapter 4. 205 Danieli Note 21, p. 59.

Conceiving justice for victims 37 rehabilitation, satisfaction, and guarantees of non-repetition.206 Restitution is the return of property or position to victims. Compensation is monetary reimbursement for a victim’s loss. Rehabilitation is physical and mental care, as well as social services to re-instate a victim’s health and social functioning. Measures of satisfaction are meant to remedy victims’ public harm, such as memorials. Guarantees of non-repetition are measures to reform state institutions, such as civilian control of the military. For victims these different types of reparations are required to fully redress their extensive harm, and to address the causes of victimisation.207 Both procedural and substantive rights are complementary parts required together in order to ensure justice for victims. For victims of international crimes, justice is both a means (procedural) and an end (substantive) to remedy their harm. Procedural and substantive justice may overlap, such as with claiming reparations, but offering one over the other may make processes symbolic and meaningless with no tangible outcome, or impose outcomes which neglect victims’ interests. In addition, the distinction between procedural and substantive justice is important, as victims may not want decision making powers on balancing competing interests, discussed throughout this book. Decision making by judicial or administrative bodies can counter denial and provide valuable public acknowledgement of victims’ harm that cannot be obtained through private, informal processes. Victims are not passive objects of moral concern, but individuals with dignity and agency to help shape justice to their needs. However, victims of international crimes may be traumatised, or may not have the ability or information to effectively advocate their needs,208 and so representation by an organisation, community leader, or lawyer may be needed. Accordingly the discussion of justice for victims throughout the rest of this book is meant to signify victims’ ability to satisfy their procedural needs and to inform outcomes aligned with their interests. Victims’ rights should be balanced against other interests including other victims, and more complex identities of victim–perpetrators and issues of responsibility. A construction of justice for victims, which reflects the reality and complexity of victimisation and collective violence, will be better posited to remedy suffering as a result of international crimes, both in recognising harm and responsibility. This book reflects that victims are not homogeneous, and are likely to have differing views on what justice means to them, which could reflect personal, social, religious, or cultural perspective that can vary even amongst family members. Rather justice for victims is a flexible frame of reference that victims are important actors in any process to

206 Principles 15–23, UNBPG; Principles 31–38, Impunity Principles. 207 See Chapter 4. 208 See McEvoy and McConnachie Note 98, p. 499.

38 Conceiving justice for victims deal with collective violence, and in order to remedy their harm procedural and substantive justice for them needs to be satisfied. As international criminal justice is a growing mechanism for responding to international crimes it is worth considering the extent to which, in theory, victims can present their interests and how courts and tribunals are responsive to these interests, both in its proceedings and how they benefit from its outcomes.

E The role of victims in international criminal justice mechanisms As outlined above, the determination of justice in international criminal justice is traditionally based on retributive and utilitarian theories, which has been insufficient in providing justice to victims. In contrast, the International Criminal Court (ICC)209 endeavours to deliver justice to victims beyond these traditional theories. Although this is not explicitly stated as the mandate of the ICC in the Preamble of the Rome Statute, the Statute does include several articles on victim protection, participation, and reparations.210 These articles enable victims to realise some of their procedural and substantive rights. In interpreting these articles reference can be made to the Statute’s preparatory works, where the drafters intended to do ‘justice for victims’.211 Similarly during the drafting of the Court’s Rule of Procedure and Evidence the French Justice Minister Elisabeth Guigou stated: The raison d’être of our fight are the victims, those who have suffered and are still suffering, those who are waiting for us to find and punish their tormentors, to listen to them and acknowledge their pain and try to mitigate its consequences through fair reparations. Indeed, the victims are, and must remain at the heart of our preoccupations. The recognition of their rights and reparation for any damage, loss or injury to, or in respect of them, are both the reason for and objective of international criminal justice. If we were tempted to forget that requirement, the extremely tragic current events would remind us of it.212 Additional interpretative guidance can be found in the Preamble of the Rome Statute, which touches upon the suffering of victims – that during

209 210 211 212

ICC and ‘the Court’ are used interchangeably throughout this book. Articles 68, 75, and 79, Rome Statute. See Chapters 3 and 4 which examine in more depth the preparatory works of the Court. Opening Speech, at the International Meeting on ‘Access of Victims to the International Criminal Court’, Paris, 27 April 1999, quoted in Haslam Note 182, p. 325.

Conceiving justice for victims 39 the twentieth century ‘millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’.213 Moreover, it declares that State Parties are determined to end impunity for such crimes so as to contribute to their prevention.214 This is important with regards to addressing the effects of impunity on victims under human rights law, discussed further below. The Vienna Convention on the Law of Treaties holds that a preamble is an integral component of a treaty, which usually comprises ‘a statement of the motives or objects of the parties in making the treaty, . . . is a useful guide and aid in interpreting the operative provisions’.215 In light of this the Preamble of the Rome Statute acknowledges implicitly that the object and purpose of the ICC is to deliver justice to victims.216 The rest of this section outlines the significance and limitations in delivering justice within international criminal justice, before turning to ascertain what can be achieved within the ICC. 1 Why should international criminal justice be concerned with delivering justice to victims? At first glance the protection of victims’ interests seems unnecessary in international criminal justice, which primary goal is the prosecution and punishment of perpetrators of international crimes. Nevertheless, victims’ inclusion in international criminal justice is important for three reasons – (1) functional, (2) purposive, and (3) normative. First, victims have an integral, ‘functional’ role in the success of international criminal justice mechanisms. They can be essential in proving the occurrence of such crimes by testifying and giving evidence to assist investigations and prosecutions. In order to achieve this, providing sufficient protection of their rights is justified to build a sense of trust between the victims and the international criminal justice mechanisms so as to facilitate their proactive cooperation. That said not all victims will have witnessed an atrocity, such as family members of those individuals disappeared or tortured, and those who have witnessed violence may not be able to provide reliable testimony due to effects of trauma or memory loss.217 On the basis of this argument

213 Preamble of the Rome Statute, para. 2. 214 Ibid., paras 2 and 5. 215 Article 31(2), Vienna Convention on the Law of Treaties, UNTS Vol. 1155, p. 331 (1969); Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press 2008), p. 237, citing Case Concerning Rights of Nationals of the United States in Morocco (France v United States), [1952] ICJ Reports 176, p. 196; The Asylum Case (Colombia v Peru) [1950] ICJ Reports 266, 282. 216 Articles 31 and 32, Vienna Convention on the Law of Treaties. 217 See Combs Note 48, p. 15.

40 Conceiving justice for victims they would be of limited use to an international criminal justice mechanism in providing evidence that such crimes occurred. Second, a more inclusive reason for protecting victims’ rights in criminal proceedings, going beyond the functional role of victims as witnesses, would be on purposive grounds. International criminal justice mechanisms often espouse doing ‘justice for victims’ as their raison d’être.218 As criminal courts are concerned with adjudicating on crimes, it is considered unjust that victims, as those most affected by crimes, can have their needs and interests ignored in the determination of justice.219 Victims’ rights are meant to protect their legal entitlement that justice mechanisms are responsive to their needs and consider their input into proceedings, so as to remedy their harm. This resonates well with the theory of corrective or remedial justice as discussed above, as well as procedural justice which emphasises fair treatment of interested parties. Yet such invocation of victims and their rights can reflect more of a rhetorical or symbolic position for victims in such mechanisms, in order to legitimise the use of punishment of perpetrators and the cost of such mechanisms, without addressing their needs.220 Yet, as some commentators argue, international criminal justice suffers from ambiguity of who benefits from it.221 The argument is made that international crimes affect humanity. The international community certainly gains from the prosecution of international crimes as it vindicates international law and their fundamental interests. Humanity or the international community do not suffer the consequence of international crimes, instead international criminal justice provides a more expressive function in sending messages that such crimes are wrong and should be punished in order to maintain the rule of law.222 At least on moral grounds, victims can be considered more important beneficiaries of international criminal justice owing to their suffering as a result of such crimes, despite the historical benefit of such mechanisms being limited to more expressive and punishment goals of retributive justice. In order to ensure the effectiveness of international criminal justice in doing ‘justice for victims’ it should respond to the needs of those most affected by the crimes, with victims having an input into the determination of justice.

218 219 220 221

See Note 1. Tallack Note 62; Fry Note 62. McEvoy and McConnachie Note 98, p. 490. Dominic McGoldrick, The Legal and Political Significance of a Permanent International Criminal Court, in D. McGoldrick Note 182 453–479, p. 456; Findlay and Henham Note 145, p. 17. 222 See Maria Elander, The Victim’s Address: Expressivism and the Victim at the Extraordinary Chambers in the Courts of Cambodia. International Journal of Transitional Justice 7(1) (2013) 91–115.

Conceiving justice for victims 41 Third on normative grounds, the incorporation of victims’ interests into international criminal justice reflects developments in a number of domestic criminal justice systems, and the establishment of regional and international standards endorsing the role of victims in criminal proceedings.223 In many domestic criminal justice systems there have been a number of advances in transforming courts to be more responsive to victims’ needs, such as protection, support, and compensation measures, with victim participation to ensure that their interests are presented and taken into consideration in determining justice.224 The attention to victims as key stakeholders in domestic criminal justice is based on a growing appreciation of their suffering and needs. By way of example, in the United Kingdom victims have access to protection measures during proceedings, support, and compensation, as well as being able to bring private prosecutions and to make personal impact statements during sentencing.225 Yet, until the ICC, victims in international criminal justice mechanisms remained the objects of justice without any rights to present their needs and interests.226 The inclusion of victim provision into the Rome Statute of the ICC is meant to reflect these developments by bringing the Court in line with contemporary practices. This book follows a purposive and normative analysis of victims’ role in the ICC in delivering ‘justice for victims’. The importance of delivering justice to victims has been evident in alternative justice theories. 2 The inclusion of victims within alternative justice theories A number of alternative justice theories have arisen in reaction to the shortcomings of criminal justice for victims. These theories have tried to include some measure of justice for victims and so can provide some insight into integrating victims as key stakeholders in the determination of justice. a Restorative justice Alongside the advances in victimology and human rights in the past few decades, there has also been an emphasis on restorative justice in delivering justice to victims of domestic crimes. Marshall defines it as ‘a process

223 The proposed EU Directive of the European Parliament and of the Council Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, COM(2011) 275. 224 See Brienen and Hoegen Note 177; UN Victims’ Declaration. 225 See UK Home Office, The Code of Practice for Victims of Crime (2005); Doak Note 194. 226 Claude Jorda and Jérôme de Hemptinne, The Status and Role of the Victim, in A. Cassese, P. Gaeta, and R.W. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002) 1387–1419, p. 1389.

42 Conceiving justice for victims whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future’.227 Restorative justice processes include family group conferencing and victim–offender mediation. Restorative justice arose as a reaction to the legalism and perceived lack of legitimacy of criminal justice in the 1970s, due to increasing levels of crime and incarceration rates, as well as the unfair treatment of victims.228 Criticism against criminal justice was directed at its lawyer-dominated process, which was seen to have ‘stolen’ the ‘conflict’ between the offender and victim by failing to protect their interests and ability to determine justice.229 Thus restorative justice is supposed to be a return to more traditional and informal process of bringing the offender and victim together to discuss how justice can be attained for both parties. Theoretically, restorative justice could offer a greater appreciation of justice for victims beyond that of criminal justice, as it focuses on the harm caused by the crime, rather than the wrongfulness against society. The offender is shamed by being made to acknowledge what happened, face the consequences of the harm he/she has caused, empathise with the victim, offer a sincere apology, and make restitution or pay compensation to help the victim to heal.230 Such outcomes could satisfy victims’ right to reparations by offering material and symbolic measures of redress, which may be more important to them than punishment.231 Additionally, restorative justice could offer victims the truth by establishing what occurred through discussions with the defendant. They are also ‘able to tell the “whole truth” as they see it’, without evidential rules and procedures that limit them to narrating the facts relevant to a criminal court.232 Therefore restorative justice could enable victims to realise some of their procedural and substantive rights. Nonetheless, restorative justice does not always satisfy justice for victims. For some victims, particularly those of serious or violent crimes, facing the offender could be highly traumatic. Without proper safeguards and emotional support, restorative justice processes could cause further suffering.233 In addition, the pursuit of more collective goals of healing and restoration over punishment could deny the individual victim’s interest in

227 Tony F. Marshall, Restorative Justice: An Overview (Home Office 1999), p. 5. 228 See Christie Note 96, p. 3; Howard Zehr and Barb Toews, Critical Issues in Restorative Justice (Criminal Justice Press 2004), p. 8. 229 Christie ibid., p. 4. 230 See Strang Note 136; John Braithwaite, Crime, Shame, and Reintegration (Cambridge University Press 1999). 231 Doak Note 194, p. 263. 232 Doak ibid., p. 264; Martha Wright, Justice for Victims and Offenders: A Restorative Response to Crime (Waterside 1996), p. 138. 233 Mawby and Walklate Note 71, p. 68.

Conceiving justice for victims 43 securing retributive outcomes. The participation of society or community members can also dominate proceedings and decisions, such as diverting cases into restorative programmes in order to avoid burdening the criminal courts or to minimise prison populations.234 As a result, victims can be dissatisfied with restorative justice on account of it not always determining justice based on their needs.235 As with transitional justice discussed below, safeguarding victims’ interests through procedural guarantees, rules, or law can offer them better protection. b Human rights law Human rights law is often associated as ‘victim centred justice’, as it focuses on the responsibility of the state to protect and ensure individuals’ and groups’ fundamental rights and freedoms, as well as to provide an effective remedy when these rights are violated.236 Human rights law has also elaborated victims’ procedural and substantive rights. It has found that victim participation in investigations and prosecutions is ‘necessary to safeguard their legitimate interests’.237 The Inter-American Court has connected this procedural right to victims’ right to truth by keeping them ‘informed about the relevant facts and the responsible parties’.238 In addition, human rights law recognises the need to protect victims in criminal proceedings so as to avoid violation of their rights to life, personal integrity, and private life.239 With regards to their substantive rights, it has also acknowledged the right to justice should be used in conjunction with reparations to fully remedy victims’ harm.240 Human rights courts have also held that procedural and substantive rights are complementary with victims’ procedural rights to participation, information, and protection, in

234 Margarita Zernova, Aspirations of Restorative Justice Proponents and Experiences of Participants in Family Group Conference, British Journal of Criminology 47(3) (2007) 491–509, p. 506. 235 Janice Evans, Integrating Victims into Restorative Justice Practice 18(4) (2006) 279–289, p. 285; Brian Williams, Victims of Crime and Community Justice (Jessica Kingsley 2005), p. 79. 236 Francesca Klug, Human Rights and Victims, in Ed Cape (ed.), Reconcilable Rights? Analysing the Tensions between Victims and Defendants (Legal Action Group 2004), pp. 111–124. 237 Shanaghan v the United Kingdom, App. no. 37715/97 (ECtHR, 4 May 2001) para. 92; McKerr v the United Kingdom, App. no. 28883/95 (ECtHR, 4 May 2001), para. 115; Mapiripán Massacre v Colombia, Merits, Reparations and Costs, Series C No. 134 (IACtHR, 15 September 2005), para. 219. 238 Moiwana Community v Suriname, Preliminary Objections, Merits, Reparations and Costs, Series C No. 124 (IACtHR, 15 June 2005), para. 147. 239 Doorson v the Netherlands, App. no. 20524/92 (ECtHR, 26 March 1992), para. 70; see also Baegen v Netherlands, App. no. 16696/90 (Commission Decision, 20 October 1994), para. 77. 240 These are explored more in Chapters 3 and 4.

44 Conceiving justice for victims order to ensure the effectiveness of their right to justice, i.e. those responsible are identified and punished, and to ensure a transparent process.241 International crimes have been addressed within human rights courts as gross violations of individuals’ and groups’ rights.242 Human rights law requires the investigation, identification, prosecution, and punishment of those responsible, as well as appropriate reparations so as to effectively remedy the harm caused to victims of gross violations of human rights.243 Reparations are also necessary alongside the prosecution and punishment of perpetrators so as to counter impunity and its effects. The InterAmerican Court of Human Rights has found that impunity ‘fosters chronic recidivism . . . and total defencelessness of victims and their relatives’,244 prevents the next of kin from ‘knowing the truth’,245 and hinders their access to justice.246 Impunity is considered a distinct harm from the criminal act or original violation that needs to be remedied due to its seriousness. Accordingly, ending impunity requires the prevention of future crimes as well as the remedying of the harm caused through satisfying victims’ procedural and substantive rights.247 Although human rights law is victim-centred, the application of human rights law in criminal trials cannot be the sole determination of justice. States are obligated to protect the rights of the defendant and public interests in a fair and impartial trial. Victims’ rights have been criticised for undermining the rights of the defendant.248 Nevertheless, the European Court of Human Rights has recognised victims’ distinct interests in criminal proceedings, as they ‘cannot be regarded as either the opponent – or for that matter necessarily the ally – of the prosecution, their roles and objectives being clearly different’.249

241 Ogˇur v Turkey, App. no. 21594/93 (ECtHR 20 May 1999), paras 92–93; Kaya v Turkey, App. no. 22535/93 (ECtHR 28 March 2000), para. 124; The ‘Street Children’ case v Guatemala, para. 227; Principle 19, Impunity Principles; Principles 12–14, UNBPG. 242 See for instance Plan de Sánchez Massacre v Guatemala, Merits, Reparations and Costs, Series C No. 116 (IACtHR, 19 November 2004); Case of the ‘Las Dos Erres’ Massacre v Guatemala, Preliminary Objection, Merits, Reparations and Costs, Series C No. 211 (IACtHR, November 2009); Abuyeva and others v Russia, App. no. 27065/05 (ECtHR, 2 December 2010). 243 See Chapter 4. 244 The ‘White Van’ (Paniagua Morales et al. case) v Guatemala, Series C No. 37 (IACtHR, 8 March 1998), para. 173. 245 Gomes-Lund et al. (Guerrilha do Araguaia) v Brazil, Merits, Reparations and Costs, Series C No. 219 (IACtHR, 24 November 2010), para. 173. 246 Case of Anzualdo Castro v Peru, Preliminary Objection, Merits, Reparations and Costs, Series C No. 202 (IACtHR, 22 September 2009), para. 125. 247 19 Tradesmen, paras 260–263; Plan de Sánchez, paras 95–99; Moiwana Community, paras 203–205; see the Impunity Principles. 248 Jouet Intro. Note 10. 249 Berger v France, App. no. 48221/99 (ECtHR, 3 December 2002), para. 38; Perez v France, App. no. 47287/99 (ECtHR, 12 February 2004), para. 68.

Conceiving justice for victims 45 The European Court has also found that to ensure a fair and impartial trial the rights of the defendant have to be balanced against those of the victims.250 However, balancing rights is not a zero-sum game, where the benefit gained by one results in the loss of the other, as their interests do not always have to conflict but may agree, such as in an efficient and speedy trial.251 Some of victims’ procedural rights, such as information, do not affect the defendant’s rights at all.252 Even where their rights do conflict, it does not render victims’ rights invalid, as the defendant’s right to fair trial is not absolute, allowing judges some discretion to consider the interests of all the parties in determining justice.253 This is evident is situations where a victim needs complete protection from the accused during criminal proceedings.254 Conversely, victims’ procedural rights are not absolute, but are malleable to the defendant’s rights and public interests. In addition, victims do not have a right to achieve a particular outcome, such as a prosecution or conviction, just that their interests are considered.255 Accordingly, this interpretative balance better reflects fairness for all parties before a criminal court, rather than focusing exclusively on the defendant or the victim. By balancing rights, human rights law makes criminal justice more victim-orientated justice. c Transitional justice Transitional justice is a broad and emerging area of concern with practitioners, civil society, and academics, which at its core seeks to address the causes and consequences of a conflict so as to create a more peaceful and stable society.256 Transitional justice includes a number of different mechanisms used individually or to complement each other, such as truth commissions, criminal trials, security sector reform, demobilisation and disarmament of combatants, reparation bodies, or indigenous or traditional justice mechanisms.257 Certain transitional justice mechanisms, such as truth commissions, can pay greater attention to victims’ needs by

250 251 252 253 254

255

256 257

Doorson v the Netherlands, Note 239, para. 70. Doak Note 194, pp. 246–249. Ibid. Ibid.; see Prosecutor v Duško Tadic´ , IT-94-1, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 33. Kostovski v the Netherlands App. no. 11454/85 (ECtHR, 20 November 1982), paras 43–44; Doorson v the Netherlands, paras 69–72; Rowe and Davis v the United Kingdom App. no. 28901/95 (ECtHR, 16 February 2000). Öneryildiz v Turkey, App. no. 48939/99 (ECtHR, 30 November 2004), para. 96; Arhuaco v Colombia, Human Rights Committee, Views on Communication No. 612/1995, CCPR/ C/60/D/612/1995, 29 July 1997. See UN Secretary-General, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, S/2004/616, 2004. Ibid.

46 Conceiving justice for victims allowing them to voice their stories and have ownership of the process through participation or consultation, and can order reparations.258 Furthermore, the proceedings of transitional justice processes, such as truth commissions, are not limited by strict procedural and evidential rules of criminal trials, enabling victims to narrate in their own words their experience and needs.259 Transitional justice can be a more pragmatic response to collective violence or conflict that is shaped by political compromises and realist perspectives. As such, in periods of transition measures of redress, such as the enforcement and vindication of the law through the prosecution and punishment of perpetrators or remedies to victims, can be forgone to achieve wider goals of peace, reconciliation, or stability.260 In comparison to international criminal justice, transitional justice would allow the law itself to be shaped to meet local and political needs, such as passing amnesty laws as part of a peace agreement or to facilitate the work of a truth commission. Although there are clear international norms to address international crimes, such as obligations to prosecute and punish those most responsible, transitional justice would suggest more of a multidisciplinary approach to justice and the construction of law after mass atrocities. This ‘thicker’ understanding of justice can better reflect the circumstances of the real world so as to be ‘better equipped to actually deliver to those who have been most affected by conflict’.261 Transitional justice does encompass criminal trials, but goes beyond such a narrow formulation of justice as retribution, as trials can be inappropriate in redressing collective violence as it ‘explode[s] the limits of the law’.262 After mass violence there can be little reliable evidence to support a prosecution, and even where there is sufficient evidence such prosecutions could upset the political stability of a country transitioning from conflict by ‘opening old wounds’.263 International criminal justice and domestic trials for collective violence reduce mass violence to individual responsibility, when in reality such crimes are committed and facilitated by a myriad of different actors wherein the social, historical, and political structures, which give rise to victimisation, are not addressed. In addition, truth in criminal trials can be obscured or incomplete as it is based on sufficient evidence to secure a conviction, with defendants often trying to conceal their involvement and responsibility in such offences

258 See Hayner Note 178, p. 22. 259 Ibid., p. 22; Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press 2000), pp. 51 and 58. 260 Ruti Teitel, Transitional Justice (Oxford University Press 2000), p. 6. 261 McEvoy Note 109, p. 440, emphasis in original. 262 Arendt Note 42, p. 54. 263 See Orentlicher Note 45, pp. 2544–2545.

Conceiving justice for victims 47 264

rather than provide information. Traditionally, at least within common law adversarial trial proceedings, victims are unable to participate or claim reparations in criminal trials, leaving them with no tangible remedy. Transitional justice instead takes a wider approach to justice by using other processes and reforms to tackle the structural causes of victimisation to complement criminal trials and reparations to victims. For instance, truth commissions examine in greater detail the context, causes, and consequences of mass violence.265 Accordingly, transitional justice can be more flexible in responding to the unique historical, political, and social context of each country by crafting the law to reflect the interests of those affected by such atrocities. There are some similarities with restorative justice and transitional justice. Procedurally, transitional justice can involve more local and informal processes, which encourages perpetrators, victims, and the community to decide how to respond to international crimes, such as the community based gacaca courts.266 Substantively, transitional justice can promote reconciliation between perpetrators and victims through apologies, as well as determine truth, justice, and reparations in truth commissions, prosecutions, traditional ceremonies, and reparation bodies.267 Transitional justice has been termed ‘justice from below’, compared to international criminal justice’s approach of ‘justice from above’268 as the determination of justice is made at the international level, disenfranchising local voices and as a result can be perceived as imposing justice on a society by an outside body. Instead, transitional justice is seen to be more organic, as the solutions to deal with the past come from within a society. It has been suggested that, based on the experience of transitional justice in a number of countries, any long lasting solution must come from within the society itself.269 It is this ‘justice from below’ or grassroots approach, where justice is constructed in light of local needs and is seen to be done and can be considered more legitimate, as victims can have greater ownership of the processes by their active engagement and participation.270 In addition, having domestic processes to remedy victims’ harm committed

264 Stan Cohen, Unspeakable Memories and Commensurable Law, in S. Karstedt (ed.), Legal Institutions and Collective Memories (Hart Publishing 2009) 27–38, p. 27. 265 See Merwe Intro. Note 14. 266 See Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge University Press 2010). 267 Aldana-Pindell Note 189, p. 1438. 268 See Kieran McEvoy and Lornan McGregor, Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Hart 2008). 269 Question of the impunity of perpetrators of human rights violations (civil and political), Revised final report prepared by Mr Joinet Pursuant to Sub-Commission Decision 1996/119 (Joinet Report), E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997, para. 28. 270 Merwe Intro. Note 14, pp. 135–136.

48 Conceiving justice for victims by the prior regime can serve a symbolic function of breaking from the past.271 However, as with restorative justice mechanisms, transitional justice may not protect victims’ interests, as other interests can dominate.272 This brings into question the ‘restorative’, ‘ownership’, or ‘victim-centred’ nature of transitional justice.273 For example, in Latin America the use of amnesties for the military juntas denied recognition to victims and prevented the bringing of those responsible to account.274 As transitional justice is a political construction other interests of stability, peace, and reconciliation can prevent or at least park the issue of justice for victims until a more politically acceptable time in the future. In a number of Latin American countries it was only possible decades later to redress impunity, such as in Guatemala, Argentina, or Chile.275 From a realist perspective, state structures which facilitated such crimes may still remain or the murderers and torturers may continue to wield considerable political power, threatening to derail a fledging transitional process or government if victims’ claims for accountability and redress are implemented.276 It may not be feasible for countries transitioning from conflict or collective violence in the short term to be able to provide redress to victims, due to their lack of resources or other economic priorities, meaning victims’ rights may be limited or postponed, such as the South African Truth and Reconciliation Commission concentrating only on victims of kidnapping, torture, and murder.277 Other transitional processes may be unable to achieve outcomes of justice or truth. Traditional justice process may be fabricated by the state to promote its narrative of the past, without examining the responsibility of other actors and structures or providing remedy to victims, such as the gacaca courts in Rwanda.278 In addition, truth commissions can be dominated by victims’ subjective stories or opinions, without finding objective facts, with such testimony vulnerable to memory loss or incorporating

271 Ibid., p. 119. 272 See Lorna McGregor, International Law as a ‘Tiered Process’: Transitional Justice at the Local, National and International Level, in K. McEvoy and L. McGregor Note 268 47–74; UN Secretary-General’s report (2004) Note 256, pp. 3–4. 273 Merwe Intro. Note 14, p. 120. 274 Diane F. Orentlicher, ‘Settling Accounts’ Revisited Reconciling Global Norms with Local Agency, International Journal of Transitional Justice 1(1) (2007) 10–22, pp. 11–12; Nino Note 42. 275 Orentlicher ibid., p. 22. 276 Orentlicher Note 45, p. 2615. 277 Rosemary Nagy, Transitional Justice as Global Project: Critical Reflections, Third World Quarterly 29(2) (2008) 275–289; Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton University Press 2002). 278 See Clark Note 266.

Conceiving justice for victims 49 279

hearsay of other accounts. Transitional justice has also been criticised for being concerned with only ‘political offences’ rather than other crimes which occurred, which are to be dealt with through ordinary justice mechanisms.280 In terms of recognising victims, the political nature of transitional justice can mean that certain victims are not recognised, due to distinctions made between ‘political’ and ‘ordinary’ offences, or between ‘good’ and ‘bad’ victims, creating a ‘hierarchy of victims’, to fit into different political narratives of the past.281 Therefore, although transitional justice can facilitate a more local and contextual approach to collective violence, there is a danger that its political nature can mean only certain victims are recognised and able to seek redress, or victims’ interests will be neglected altogether. Thus having an international body to adjudicate on international crimes and recognise victims can allow impartiality devoid of local politics, at least in theory. d Influence on the International Criminal Court These alternative theories have to a certain extent affected the Court’s approach in dealing with victims. The drafters of the Rome Statute recognised that having a court which focused solely on retributive justice would be unable to ‘deliver justice in a wider sense . . . [including] restorative justice’.282 Muttukumaru and Funk believe that the participation of victims afforded under Article 68(3) of the Rome Statute and reparations under Article 75 supposedly evidences the influence of restorative justice on the ICC.283 However, the ICC is not a restorative justice mechanism as it follows criminal rules of evidence and procedure, which inhibits perpetrators and victims from determining the process and outcome themselves. As such, the ICC remains a retributive institution by using sanctions against perpetrators, such as imprisonment and fines.284 Victim participation and reparations in the Rome Statute also evince developments in human rights law and transitional justice. Victim participation is perhaps the most effective way for victims to have input and impact on international criminal justice proceedings and outcomes. This can be seen by moving away from the traditional two party adversarial

279 Audrey Chapman, Finding Truth in the Transitional Justice Process, in Merwe et al. Intro. Note 14, 91–113, p. 98. 280 Merwe, Intro. Note 14, p. 118. 281 McEvoy and McConnachie Note 90, pp. 532–533. 282 Christopher Muttukumaru, Reparations to Victims, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute; Issues, Negotiations, Results (Kluwer 1999) 262–270, p. 264. 283 Ibid.; T. Markus Funk, Victims’ Rights and Advocacy at the International Criminal Court (Oxford University Press 2010), p. 4. 284 Article 77; Doak Note 194, p. 221.

50 Conceiving justice for victims contest in proceedings between the defence and the prosecution, where victims’ voices have been ‘stolen’ to legitimise international criminal justice mechanisms by ‘appropriating . . . and then re-presenting [their voices] to suit the aims of the prosecution’.285 That said victim representation by lawyers requires sensitivity as well as realistic evaluation of the risks and capacity in effectively representing victims’ voices in international criminal justice.286 The addition of reparations at the ICC can be considered as more reparative justice by directly remedying the harm victims have suffered beyond the punishment of the defendant. Moreover, Article 21(3) of the Rome Statute requires that judges interpret the Statute in light of internationally recognised human rights, which requires examining how far the Court, by carrying out the functions of a state by prosecuting perpetrators, will ensure an effective remedy for victims through reparations?287 A human rights approach is also likely to be utilised to achieve an effective balance between the rights of the defendant and victims under Articles 67 and 68 respectively, such as the right of the accused to a public trial under Article 67(1) against permitting closed trials to protect victims under Article 68(2).288 A further corollary of human rights law is that the participation of victims at the ICC could be important in assisting the Court in fulfilling its purpose of ending impunity. Victim participation could ensure greater transparency and accountability of the work of the Court and help it to counter impunity more effectively. With transitional justice, victim participation at the ICC could also offer local input into the determination of justice at the international level, thereby countering some criticisms of international criminal justice of being imposed from above.289 As such, international criminal justice and transitional justice are not polar opposites, but can supplement each other’s shortcomings, such as the Special Court for Sierra Leone and the Truth and Reconciliation Commission for Sierra Leone.290 The importance of ending impunity and delivering justice to victims at the ICC could go beyond the Court and encourage a more integrated role with local justice developments under the principle of complementarity.

285 286 287 288 289

McEvoy and McConnachie Note 98, p. 496. Ibid., p. 501. See Chapter 4. See Chapter 3. See Prosecutor v Katanga and Chui, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 13 May 2008, ICC-01/0401/07-474, para. 163. 290 See William Schabas, A Synergistic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, Criminal Law Forum 15(1–2) (2004) 3–54.

Conceiving justice for victims 51 e Complementarity Complementarity is meant to protect the sovereignty of states by recognising their primary responsibility to prosecute and punish perpetrators of international crimes, due to their obligations under the Rome Statute and international law.291 As the Appeal Chamber of the ICC itself has stated, ‘[Complementarity] strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court on the one hand, and the goal of the Rome Statute to “put an end to impunity” ’.292 The ICC enables domestic accountability in the first instance. Where a state is unable or unwilling to prosecute and punish those responsible, the Court can intervene and avoid the continuation of impunity, so called ‘negative complementarity’.293 Thus the ICC is a ‘court of last resort’, not first instance.294 This is apparent with the language in Article 1 and the Preamble of the Rome Statute that state the Court ‘shall be complementary to national criminal jurisdictions’, with the Preamble further declaring that in ending impunity, ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’.295 The principle of complementarity is further substantiated in Article 17, which permits a case to be admissible to the Court’s jurisdiction only where a State Party is unable or unwilling to investigate or prosecute those responsible. Read together the Preamble, Articles 1 and 17 establish that under the Statute State Parties are obliged to investigate and prosecute all international crimes.296 The Office of the Prosecutor (OTP) has also developed positive complementarity as ‘a pro-active policy of co-operation aimed at promoting national proceedings’.297 This is based on the articles in the Rome Statute on the powers of the Prosecutor and state cooperation.298 Under positive complementarity the role of the ICC is to encourage national prosecution to ensure accountability, by states to fulfil their obligations and building

291 See the Preamble of the Rome Statute; William A. Schabas, Complementarity in Practice: Some Uncomplimentary Thoughts, Criminal Law Forum 19(1) (2008) 5–33, p. 5. 292 Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04-01/07-1497, 25 September 2009, para. 85. 293 John T. Holmes, The Principle of Complementarity, in R.S. Lee Note 282 41–78; Informal Expert Paper: The Principle of Complementarity in Practice, OTP, 2003, p. 3. 294 Nicholas Waddell and Phil Clark, Courting Conflict? Justice, Peace and the ICC in Africa (Royal African Society 2008), p. 8. 295 Preamble of the Rome Statute, para. 6, see also paras 4 and 10. 296 Kleffner Note 215, p. 251. 297 The ‘Office will encourage genuine national proceedings where possible, including in situation countries, relying on its various networks of cooperation, but without involving the Office directly in capacity building or financial or technical assistance’, Prosecutorial Strategy 2009–2012, OTP, 2010, p. 5. 298 Articles 54(3), 59, 86, 88, 89, and 93, Rome Statute.

52 Conceiving justice for victims domestic judicial capacity.299 Therefore the ICC is to act as a ‘catalyst’ for national prosecutions, rather than prosecutorial and judicial workhorse.300 This may encourage a longer lasting resolution to impunity by State Parties developing their own solutions as part of transitional justice in light of the Rome Statute. The ‘Rome Statute System’301 involving prosecution by both the ICC and State Parties represents a ‘consensual division of labour’ in pursuit of the Rome Statute’s mandate to end impunity.302 Where a state does not have the resources to implement mechanisms other State Parties can cooperate to build its capacity.303 A challenge remains where a state is unwilling to hold those responsible to account. The significance of victims in the determination of justice has also been recognised in positive complementarity. The OTP has stated that victim participation in domestic accountability mechanisms is of ‘central importance’ as it ‘helps ensure that policies for combating impunity effectively respond to victims’ actual needs and, in itself, “can help reconstitute the full civic membership of those who were denied the protection of the law in the past” ’.304 This incorporates developments in international human rights law by equating victims’ rights with ending impunity.305 Ending impunity is seen as a key objective of the Rome Statute and complementarity through investigations and prosecutions of those individuals responsible for international crimes, and, as Chapter 4 will discuss, the possibility of also including reparations for victims in order to remedy their harm. It should be noted that the Rome Statute of the International Criminal Court does not strictly impose on State Parties a duty to prosecute every single international crime, instead states are required to investigate such crimes and prosecute those ‘most responsible’, with a further discretion to not prosecute where the state has investigated such crimes but it is not in the public interest to prosecute.306 This position is consistent with powers 299 Cedric Ryngaert, The Principle of Complementarity: A Means of Ensuring Effective International Criminal Justice, in C. Ryngaert (ed.), The Effectiveness of International Criminal Justice (Intersentia 2009) 145–172, p. 147. 300 Complementarity: Taking Stock of the Principle of Complementarity: Bridging the Impunity Gap, Report of the Bureau of Stocktaking, ASP eighth session 22–25 March 2010, para. 8. 301 OTP Note 297, p. 18; see also William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, Harvard International Law Journal 49(1) (2008) 53–108. 302 OTP ibid., p. 5; OTP Note 293, p. 4. 303 See William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, Criminal Law Forum 19(1) (2008) 59–85. 304 Interests of Justice, OTP, 2007, p. 7 and fn. 10, citing the Updated Set of Principles for the Protection and Promotion of Human Rights, report by Diane Orentlicher updating the Joinet Principles, E/CN.4/2005/102/Add.1, 8 February 2005. 305 19 Tradesmen, paras 260–263; Plan de Sánchez, paras 95–99; Moiwana Community, paras 203–205; Impunity Principles. 306 Article 17(1)(b).

Conceiving justice for victims 53 of the Prosecutor of the ICC who can decide not to investigate or prosecute in the ‘interests of justice’ or the ‘interests of victims’.307 Together this suggests that transitional justice approaches can allow a flexible approach for accountability for international crimes, provided there has been an effective and genuine investigation. In all the purpose of ending impunity and positive complementarity would seem to suggest the need for remedies to be available to victims at the domestic level, discussed further in Chapters 4 and 6. There are a number of limitations of international criminal justice in providing justice to victims of international crimes. 3 The limitations of international criminal justice in delivering justice to victims Justice for victims of international crimes is an expansive concept. The ability of international criminal justice mechanisms to dispense justice to victims of international crimes faces numerous challenges in practice. Five general limitations can be identified here. First, international crimes usually involve mass victimisation and perpetration. For each perpetrator to be prosecuted there could be hundreds or thousands of victims. International criminal justice mechanisms are unable to prosecute and punish every perpetrator, because investigations and prosecutions are time consuming, there may be insufficient evidence, and such mechanisms have limited resources.308 As the ICC is a single institution it is difficult to see how it can prosecute all those responsible, and provide all victims their procedural and substantive rights.309 Second, there are other interests involved in the prosecution and punishment of international crimes besides victims. State Parties and the international community have an interest in holding those most responsible to account and ensuring a fair and impartial trial for defendants. They may identify those leaders and military commanders as most responsible for the crimes requiring prosecution before an international criminal justice mechanism, whereas victims may want a low-level individual perpetrator who committed the crime against them prosecuted. The prosecution of senior officials and commanders follows the retributive and utilitarian goals of international criminal justice outlined above. As May states, ‘victims are not owed convictions; rather it is the larger society, if anyone, that has the right to pursue convictions’.310 The individual rights of victims 307 Articles 53(1)(c) and (2)(c), Rome Statute. 308 Richard J. Goldstone, Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals, New York University Journal of International Law and Politics 28 (1995–1996) 485–504, p. 491. 309 See Chapters 3 and 4. 310 Larry May, Crimes against Humanity (Cambridge University Press 2005), p. 220.

54 Conceiving justice for victims are not thus determinative of justice traditionally in international criminal justice mechanisms. Furthermore and connected to the next point, international criminal justice like international crimes can be politically driven, such as claims of ‘victor’s justice’ discussed in the next chapter, and may not provide impartial justice to victims, particularly victims of the winning side’s crimes.311 Third, international criminal justice mechanisms can obscure the responsibility of the state and other actors in the victims’ suffering through the principle of individual criminal responsibility.312 This is counterintuitive to the nature of international crimes, which are often carried out on a mass scale and usually involve the state. Prosecuting all those responsible for international crimes may not be enough to end impunity, especially where state institutions are used to commit atrocities or the state allows a cause of victimisation to remain in place, such as the security forces of the former regime. Such selective justice can have political overtones as to which individuals and crimes are prosecuted, undermining accountability and recognition of all victims who suffer as a result of such crimes.313 Fourth, international criminal justice may not cover certain types of violence because it falls outside the legal definitions of international crimes preventing justice to victims of such violence. A critical victimological analysis of international crimes would suggest in situations of mass violence certain crimes may not satisfy the legal characterisation of international crimes, such as genocide (which excludes political groups), crimes against humanity (for those which are not widespread or systematic), or war crimes (conflict which falls outside an international or noninternational armed conflict). Although the distinction between international and domestic crimes in this chapter is important in distinguishing the more serious suffering, there is likely to be violence which reflects the nature of international crimes (mass victimisation and perpetration, state involvement, ideological driven, and the impact of the crimes and impunity on victims), but does not satisfy these definitions, meaning that victims are reliant on domestic or ‘ordinary justice’ processes, which are likely to be insufficient to effectively respond to such suffering and to remedy their harm. Fifth, the use of a criminal court as a response to international crimes enforces a Western conception of justice. Other theories of justice, such as restorative and transitional justice outlined above, may be favoured more

311 See Kingsley Chiedu Moghalu, Global Justice: The Politics of War Crimes Trials (Stanford University Press 2008). 312 See Articles 1 and 25, Rome Statute. 313 Moghalu Note 311, p. 7; see Chapter 3.

Conceiving justice for victims 55 314

by victims and local communities. Informal or indigenous justice forums, such as traditional healing ceremonies, truth telling, reconciliation, and reparations, may be considered to be in conflict with international criminal justice mechanisms as they do not determine criminal responsibility. Additionally, accountability and truth in a criminal trial is necessarily linked to the charges and perpetrators brought before it, and its procedural and evidential rules.315 Consequently, international criminal justice can only offer partial truth and justice to the few victims who are able to appear before them.316 With regards to the ICC, complementarity may be incompatible with other transitional justice mechanisms. Article 17(1)(a) of the Rome Statute on admissibility of cases before the ICC, states that ‘the Court shall determine that a case is inadmissible where . . . [it] is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’. Based on this article Ryngaert suggests that all international crimes are admissible before the ICC if the state does not utilise criminal justice, but in so doing complementarity precludes the use of other transitional justice mechanisms.317 Consequently alternative mechanisms to prosecutions and punishments may be contrary to complementarity. However, the exclusion of alternative justice mechanisms to prosecution may not satisfy victims’ needs. For instance, the use of amnesties and traditional ceremonies for perpetrators of international crimes in Northern Uganda was seen to conflict with the arrest warrants issued by the ICC.318 This suggests that international criminal justice mechanisms can impose on a society a notion of justice without being responsive to their local needs. Additionally, as an examination of the Uganda situation demonstrates in Chapter 5 and other situations in Chapter 6, international criminal justice can simplify the complexity of international crimes by punishing perpetrators when such individuals may also be victims, as in the case of child soldiers. 4 Justice for victims within the International Criminal Court In order to reconcile justice for victims with the limitations of international criminal justice mechanisms, it is worth outlining how justice for victims can be maximised with the framework of the ICC, so as to provide a benchmark to analyse the practice of the Court in subsequent chapters.

314 See Rami Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Polity Press 2002), pp. 47–48; Clarke Note 147. 315 See Chapter 3. 316 Groenhuijsen and Pemberton Note 10, p. 17; as discussed in Chapter 4 reparations before the ICC are also likely to be limited. 317 Ryngaert Note 299, p. 164. 318 See Allen Note 146; Chapter 5.

56 Conceiving justice for victims This book proposes that the Rome Statute represents the pursuit of justice for victims of international crimes by both the ICC and State Parties. Correspondingly, justice for victims can be divided between an internal and external element. The internal element involves the Court’s proceedings and outcomes to provide procedural and substantive justice to the victims before it, although owing to competing interests of other parties, the Court cannot deliver victim-centred justice. Instead the Court offers victim-orientated justice by being responsive, as far as possible, to victims’ interests without fundamentally violating the rights of the defendant and other interests. As Vasiliev asserts the ICC is a compromise between victims’ rights and criminal justice.319 The extent to which the Court dispenses victim-orientated justice will be expanded upon and examined in Chapters 3 and 4. The external element refers to delivering justice beyond the ICC through positive complementarity. A victim-orientated approach to complementarity involves recognising victims’ suffering and rights so as to remedy their harm and the causes of victimisation at the local or national level. The intervention of the Court in a country could demonstrate exemplary fair trial practices to domestic criminal justice systems. Additionally, positive complementarity could encourage the establishment of domestic transitional justice mechanisms alongside criminal courts so as to realise victims’ substantive rights, such as truth commissions and reparation bodies. Thus through positive complementarity the ICC could catalyse domestic mechanisms so as to ensure access to justice for victims outside the jurisdiction of the Court. The ICC is not only a last resort for victims, but also a vehicle for developing local access to justice for them. This local perspective framed within an understanding of what justice means for victims will be better positioned to deal with the sensitive issues of remedying international crimes and victim recognition under the oversight of the ICC and Assembly of State Parties. As discussed in Chapters 4–6, placing responsibility on State Parties to deliver justice to victims is consistent with their obligations under international law. This external element will be evaluated in Chapter 5 with regards to the situation in Uganda before the ICC, and further in Chapter 6 which takes a more global perspective on all the other situations before the Court. The key theme running throughout this book is the responsiveness of the ICC and states to victims’ needs and interests, writ large as justice for victims.

F Conclusion The International Criminal Court is not a perfect mechanism to achieve justice for victims, but where states have failed to fulfil their obligations to

319 Vasiliev Intro. Note 4, p. 677.

Conceiving justice for victims 57 investigate and prosecute those responsible and provide remedies to victims, mechanisms like the ICC can provide some avenue for redress. The attention to victims within the ICC suggests the insufficiency of previous international criminal justice mechanisms to respond to their needs in redressing international crimes. Understanding how justice can be attained for victims within the ICC and with State Parties is imperative in ensuring an effective remedy for the harm victims have suffered as a result of international crimes. Of course such an understanding of justice for victims is not devoid of reality where domestically and internationally there may be insufficient resources, inadequate evidence, or competing interests to satisfy all victims and all their different needs, highlighted in the victimology and transitional justice literature. Instead the purpose of justice for victims in this book is to analyse the extent to which the practice of the Court and State Parties achieves victim-orientated justice to recognise victims and allow them procedural justice for their interests to be considered in the determination of outcomes. The following chapter assesses the historical context of international criminal justice mechanisms and their attention to victims’ needs. The examination of past tribunals serves to contrast the practice of the ICC in Chapters 3 and 4 in delivering justice to victims.

2

The development of victims in international criminal justice

A Introduction Although the prosecution of crimes in domestic jurisdictions has been practised for centuries, it has only been established at the international level since the end of the Second World War.1 Victims, as those most affected by international crimes, have often been neglected in international criminal tribunals. This is due to the retributive focus of international criminal justice in prosecuting and punishing perpetrations of international crimes. This chapter analyses the role of victims in international criminal tribunals after the Second World War and the ad hoc tribunals established in the 1990s prior to the ICC in delivering justice for victims. This will provide a historical background to the development of victim provisions at the ICC and the construction of victim-orientated justice. As discussed in Chapter 1, victim-orientated justice concerns courts being responsive to victims’ needs, both procedurally and substantively, and reaching a fair balance with other interested parties. This can be examined in three areas: victim recognition, procedural justice, and substantive justice for victims. Recognition is distinguished from procedural justice due to its importance in determining who is a victim before an international criminal tribunal, and therefore victims’ access to provisions. Procedural justice is supposed to respect victims’ input into the decision making process and prevent them from suffering any secondary victimisation. Substantive justice is the realisation of their rights to truth, justice, and reparations. Based on these three areas, this chapter begins by considering the international criminal tribunals of the Second World War in Nuremberg and Tokyo, before a more extensive discussion of the ad hoc tribunals, arising out of their more developed legal frameworks for victims. In concluding, this chapter finds that international criminal justice

1 Although there are certain exceptions, such as the trial of Peter von Hagenbach in Breisach in 1474; Schabas Ch. 1 Note 55, pp. 1–2.

Historical development of victims 59 mechanisms have been important in holding senior perpetrators to account, but have not engendered justice for victims. As the ad hoc tribunals have recognised, achieving this goal is challenging because of the scale of harm caused by international crimes.

B The Second World War tribunals The Second World War resulted in the greatest loss of human life in history, with some 50 to 70 million people killed and tens of millions left physically and emotionally scarred. In its aftermath international criminal justice was established at Nuremberg and Tokyo. During the war, the Allies (America, Britain, France, and the Soviet Union) were determined that those responsible for such atrocities would be held to account.2 On 18 October 1945 the Nuremberg Tribunal (IMT) was founded by the Allies to prosecute Nazi crimes in the European theatre.3 This was followed on 5 May 1946 with the establishment of the Tokyo Tribunal (IMTFE) to prosecute Japanese forces for crimes committed in the Pacific and Asia.4 This is in contrast to the experience of the First World War where the international community was divided in its response to international crimes.5 In the aftermath of the First World War there was an impetus to prosecute Germany and the Ottoman Empire for atrocities committed during the conflict so as to address the suffering of victims and their ‘cries for justice’.6 The subsequent national trials in Germany and Turkey recognised the crimes committed by German and Ottoman forces, including the organised massacres of the Armenians.7 These trials also provided

2 See Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press 2001), pp. 150–181. 3 Established by the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, 8 August 1945 (London Charter). 4 Created by the Charter for the International Military Tribunal for the Far East, Tokyo, 19 January 1946 (Tokyo Charter). 5 Claude Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (Witherby 1921), pp. 21–23; United Nations War Crimes Commission, The History of the United Nations War Crimes Commission and the Development of the Laws of War (HM Stationery Office 1948), p. 52; James F. Willis, Prologue To Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Greenwood Press 1982), p. 50. 6 Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Violation of the Laws and Customs of War (1919), p. 17. 7 See Vahakn Dadrian, The Turkish Military Tribunal’s Prosecution of the Authors of the Armenian Genocide: Four Major Court Martial Series, Holocaust and Genocide Studies 11(1) (1997) 28–59, pp. 33–39.

60 Historical development of victims victims with the right to participate as parties.8 Yet, owing to a lack of concerted international pressure these trials only prosecuted a handful of lowranking subordinates excluding those most responsible for international crimes, such as Kaiser Wilhelm II (in exile in the Netherlands) and members of the Turkish government.9 Since these trials, the Tribunals of the Second World War experienced a procedural shift from civil to common law owing to America’s influence on their design. By instituting a common law adversarial trial approach to proceedings, the Americans wanted to ensure that the defendant received a fair trial through contesting evidence with the Prosecutor. However, adversarial trials limit victims’ procedural rights to testifying as victimwitnesses and only recognise their suffering if the defendant is convicted.10 Until the conviction, they remain ‘alleged victims’. The incorporation of the adversarial trial also evidences retributive justice by focusing on punishing the wrongfulness of the perpetrators’ actions whilst ensuring their rights to due process. Consequently, the adoption of adversarial trial proceedings at Nuremberg and Tokyo diminished the role of victims in international criminal justice for 60 years until the formation of the ICC. Throughout the negotiations and proceedings of the Second World War Tribunals, victims’ suffering was often invoked to justify the punishment of individuals before an international court. The Allied Prosecutors’ speeches were replete with statements beseeching the judges to ensure the defendants were punished on behalf of the victims. At Nuremberg the French Prosecutor De Ribes in his closing statement implored the judges ‘to heed the voice of innocent blood crying for justice’.11 The American Chief Prosecutor, Robert Jackson, called upon the Tribunal to find the defendants guilty so that ‘justice may be done to these individuals as to their countless victims’.12 For victims of atrocities, the trials were intended to provide a ‘symbolic’13 ‘sense of justice and vindication’ by punishing the

8 Due to the civil law system in Germany and the civil and Islamic law mixed system in the Ottoman Empire; in Germany see Reichs-Gesetzblatt No. 247, pp. 2125–2126 (1919) s. 6; for Turkey see John A. Strachey Bucknill and Haig Apisoghom S. Utidjian, The Imperial Ottoman Penal Code (Oxford University Press 1913). 9 Mullins Note 5, pp. 31–33; Vahakn N. Dadrian, The Documentation of the World War I Armenian Massacres in the Proceedings of the Turkish Military Tribunal, International Journal of Middle East Studies 23(4) (1991) 549–576, p. 562. 10 Doak Ch. 1 Note 194, pp. 34–36. 11 IMT Transcripts Vol. XIX, p. 569. 12 IMT Transcripts Vol. XIX, p. 434; see Chief Prosecutor Keenan at the IMTFE Vol. II, p. 387. 13 Susanne Karstedt, The Nuremberg Tribunal and German Society: International Justice and Local Judgment in Post-Conflict Reconstruction, in D. Blumenthal and T. McCormack, The Legacy of Nuremberg: Civilising Influence or Institutionalised Revenge? (Brill 2007) 14–35, p. 18.

Historical development of victims 61 14

Nazi and Japanese leadership. As the discussion on victim recognition and provisions will reveal, justice for victims was simply construed as retribution by punishing the wrongful acts of the defendants. 1 Victim recognition There is no reference to victims in the London and the Tokyo Charters, which established the Nuremberg and Tokyo Tribunals respectfully. Only in the Potsdam Declaration, which paved the way for the Tokyo Tribunal, were mistreated Allied prisoners of war referred to as victims.15 Victim recognition was instead associated with the three crimes under the jurisdiction of the Tribunals: crimes against peace, war crimes, and crimes against humanity.16 The Tribunals acknowledged the various forms of victimisation. The Nuremberg Tribunal documented the commission of crimes against civilians and minorities by the Nazis. The Tokyo Tribunal recognised rape as an international crime, as well as prosecuting numerous other crimes.17 Although these crimes recognised individual victims’ suffering in the war, the Tribunals focused on the crimes against peace, due to American dominance of both Tribunals.18 The Americans deemed crimes against peace or waging an aggressive war as the principal crimes committed by the Nazis and the Japanese, with war crimes and crimes against humanity as only manifestations of aggression. This focus on aggression takes an international law approach, rather than a criminal one, by recognising states as the primary injured parties rather than individuals as victims.19 The Tribunals did introduce crimes against humanity into international criminal law.20 However, crimes against humanity had a subsidiary position to crimes against peace and war crimes, as they had to be committed ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’. Moreover, the Nuremberg Tribunal in its final judgment excluded crimes against humanity committed before the war, such as the persecution of the Jewish community in Germany pre-1939, as it found that ‘revolting and horrible as many of these crimes were, it has not been

14 Sam Garkawe, The Role and Rights of Victims at the Nuremberg International Military Tribunal, in H. Reginbogin, C. Safferling, and W. Hippel (eds), The Nuremberg Trials: International Criminal Law since 1945 (Kluwer 2006) 86–94, p. 86. 15 Potsdam Declaration, para. 10. 16 Article 6, IMT Charter; Article 5, IMTFE Charter. 17 See IMTFE Vol. XX, p. 49604–49640. 18 Article 6(a); Donald Bloxham, Genocide on Trial: Law and Collective Memory, in Reginbogin et al. Note 14 72–85, p. 72. 19 See Britain’s Chief Prosecutor Sir Hartley Shawcross presentation on aggression, IMT Vol. III. 20 Article 6(c), IMT Charter; Article 5(c), IMTFE Charter.

62 Historical development of victims satisfactorily proved that they were done in execution of, or in connection with, any such crime’.21 The Tribunal thus denied the recognition of numerous German victims due to the limits of the Charter.22 Additionally, the Tribunals did not recognise representatively all victims of atrocities committed during the war. Crimes committed by the Allies, such as the Soviet Union’s massacre of Polish officers in Katyn, the mass rape of German women, and the United States’ use of atomic bombs on Hiroshima and Nagasaki, were not investigated or prosecuted emphasising the role of the Tribunals as manifestations of victor’s justice.23 In addition, at the Tokyo Tribunal the focus on Allied prisoners and a select group of Asian victims excluded other crimes, such as the sexual slavery of the ‘comfort women’, making the Tribunal appear as a ‘white man’s Tribunal’.24 As such, the Tribunals provided very selective recognition of victims’ suffering, which obscured certain truths and historical narratives of the conflict, and were a source of secondary victimisation. 2 Procedural justice for victims The Nuremberg and Tokyo Charters made no reference to any victim provisions on participation, protection, and support. At Nuremberg, efforts by the Institute for Jewish Affairs to participate in the trial as a party through amicus curiae (friend of the court) were rejected.25 The Tribunal considered that the participation of victims, who could have potentially numbered in their millions, would threaten to render the trial unworkable and unfair.26 Therefore, victims only participated as witnesses before both Tribunals. At the Nuremberg Tribunal 14 victim-witnesses testified, and 27 at the Tokyo Tribunal.27 Victim-witnesses testified on their own personal suffering, their identification of the defendants at the scenes of atrocities, and on the suffering of others. The small number of victims called before the Tribunals was due to the Prosecutors’ reliance on documentary evidence to make the trial more impartial and credible.28 However, owing to

21 IMT Vol. XXII, p. 498. 22 Albin Elser, The International Military Tribunal at Nuremberg from a German Perspective, in Reginbogin et al. Note 14 53–59, p. 59. 23 Christian Tomuschat, The Legacy of Nuremberg, Journal of International Criminal Justice 4(4) (2006) 830–844, p. 834. 24 Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford University Press 2008), p. 313. 25 See Michael R. Marrus, A Jewish Lobby at Nuremberg: Jacob Robinson and the Institute for Jewish Affairs 1945–1946, Cardozo Law Review 27(4) (2006) 1651–1665, p. 1655. 26 Ibid. 27 See Luke Moffett, The Role of Victims in the International Criminal Tribunals of the Second World War, International Criminal Law Review 12(2) (2012) 245–270. 28 Michael Salter, Nazi War Crimes, US Intelligence and Selective Prosecution at Nuremberg: Controversies Regarding the Role of the Office of Strategic Services (Routledge-Cavendish 2007), p. 404.

Historical development of victims 63 less documentary evidence at the Tokyo Tribunal, the Prosecutors had to depend more on witnesses and affidavits. The Tribunals offered victims little in the way of protection and support. At the Nuremberg Tribunal victims were housed in a witness house, but often came into contact with high ranking Nazi and SS officers, putting them at risk of suffering further trauma.29 With regards to treatment, victims were at times blamed or their credibility questioned in an intimidating way.30 Moreover, victims were unable to tell their story in narrative form. Instead, they were often interrupted, questioned, and directed not to focus on irrelevant points which they felt were important.31 Accordingly, the proceedings of the Nuremberg and Tokyo Tribunals based on an adversarial trial focused on prosecuting perpetrators of international crimes and neglected the procedural needs of victims. 3 Substantive justice for victims In their final judgments, the Nuremberg and Tokyo Tribunals found 19 senior Nazi and 25 senior Japanese leaders guilty of international crimes. For the first time at the international level the Tribunals prosecuted international crimes offering recognition to certain victims and condemnation of the harm they suffered. However, the Tribunals fell short of offering justice to victims by failing to respond to their needs and to representatively recognise those who suffered. In relation to reparations, under Article 28 of the Nuremberg Charter, the Tribunal could make restitution for stolen property. This was qualified by the provision that restitution was to be made to the Allied Control Council rather than to specific victims, though the Tribunal never issued any restitution orders.32 The Tokyo Charter made no reference to reparations. Only in the Potsdam Declaration, a preparatory document of the Tokyo Tribunal, was a reference made to the ‘exaction of just reparations in kind’,33 but the matter was not raised before the Tribunal. The disregard for reparations further demonstrated the indifference by the Allies towards victims.34 Although it would have been impossible for the Tribunals to provide reparations to the tens of millions of victims, they could have called for it in their judgment to be enforced by states. Consequently, Danieli, a psychologist specialising on victims of the Holocaust, contends that the failure of the Tribunals to recognise victims’

29 30 31 32 33 34

See Christine Kohl, The Witness House, translation by Anthea Bell (Other Press 2010). Telford Taylor, The Anatomy of the Nuremberg Trials (Little, Brown & Co. 1993), p. 190. For instance: IMT Vol. VI, 28 January 1946, p. 304. Garkawe Note 14, p. 86. Potsdam Declaration, para. 11. Norbert Ehrenfreund, The Nuremberg Legacy: How the Nazi War Crimes Trials Changed the Course of History (Palgrave Macmillan 2007), p. 110.

64 Historical development of victims suffering caused many to face denial, blamed for their own suffering, and forced into a ‘conspiracy of silence’ as no one understood their harm.35 This psychological impact hindered victims’ healing and had a detrimental impact upon their health. For decades victims sought justice through other courts and tribunals, such as in the Barbie and Papon trials in France, the Eichmann trial in Israel, and the Women’s Tribunal on Japanese Military Sexual Slavery, which all provided them with the ability to participate and in certain cases claim reparations.36 Accordingly, the Second World War Tribunals were unresponsive to the needs of victims. Instead they were used to rationalise and legitimise the punishment of defendants. As one Auschwitz survivor stated, ‘justice was a far-away concept. It certainly was not available on a personal or local level. The Nuremberg trials were a distant happening, important for the abstract concept of international law, but did not touch us personally then.’37 Subsequent manifestations of international criminal justice have made a greater effort to tailor justice to victims’ needs and interests.

C The ad hoc tribunals 1 Introduction It was not until the end of the Cold War that international criminal justice arose again as the answer to international crimes. In response to widespread violence against civilians in the former Yugoslavia, in 1993 the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY).38 The Tribunal’s purpose was the ‘prosecution of persons responsible for serious violations of international humanitarian law’ in the hope of bringing them to justice in order to contribute to reconciliation and the restoration of peace in the region.39 In the following year, the genocide in Rwanda again prompted the UN Security Council to create the International Criminal Tribunal (ICTR) to investigate and prosecute those responsible for the international crimes being committed in Rwanda.40 The purpose of the ICTR was to end the ‘cycle of

35 Yael Danieli, Reappraising the Nuremberg Trials and their Legacy: The Role of Victims in International Law, Cardozo Law Review 27(4) (2006) 1633–1649, p. 1634. 36 Yves Beigbeder, Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commissions (1940–2005) (Martinus Nijhoff 2006), pp. 207 and 224; Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 2006), p. 266; Christine M. Chinkin, Women’s International Tribunal on Japanese Military Sexual Slavery, American Journal of International Law 95 (2001) 335–340. 37 Frederick Tena, quoted in Danieli Note 35, pp. 1642–1643. 38 S/RES/808 (1993) and S/RES/827 (1993). 39 UN Resolutions 808 and 827. 40 S/RES/995 (1994).

Historical development of victims 65 impunity’ by prosecuting those responsible with the hope that it would promote reconciliation, and the restoration and maintenance of peace.41 This section begins by discussing the development of victims’ rights and procedural role since the Second World War before considering the influence of such advances on the drafting of the ad hoc tribunals. The second sub-section analyses the recognition of victims by the ICTY and ICTR. The third sub-section examines whether the Tribunals provided procedural and substantive justice to victims within their legal frameworks and practices, in order to determine how responsive they were to victims’ needs. 2 The development of the role of victims and their influence on the drafting of the ad hoc tribunals In the interim between the Second World War and the ad hoc tribunals in the 1990s, there had been greater attention to the needs of victims and their role in criminal proceedings through the evolution of victimology, international law, and human rights law.42 Victimology has developed from the categorisation of victimisation to the understanding that victims need to able to participate, as well as seek protection and support within criminal justice systems.43 Since the 1970s victim groups in numerous states have advocated for criminal justice systems to be more ‘victim-friendly’ through the introduction of new procedures, standards, and rights.44 The culmination of this advocacy was the adoption of the UN Victims’ Declaration that recognised victims’ needs in justice.45 The Victims’ Declaration defines victims as persons who individually or collectively suffer harm as a result of crimes, and includes indirect victims, such as family members.46 Principle 6 of the Declaration stipulates that judicial mechanisms should be responsive to victims’ needs and interests. International law and human rights law have also advanced the protection of individual and group rights through numerous conventions, such as the 1948 UN Convention on Genocide,47 the 1948 Universal Declaration of Human Rights,48 the four Geneva Conventions of 1949 and the 1977 Additional Protocols I and II to the Geneva Conventions,49 the 1950 41 Ibid., Preamble. 42 See Bassiouni Ch. 1 Note 191. 43 See Ezzat A. Fattah, Victimology: Past, Present and Future, Criminologie 33(1) (2000) 17–46. 44 See Bassiouni Ch. 1 Note 191; Doak Ch. 1 Note 194. 45 A/RES/40/34, 29 November 1985; Michael Bachrach, The Protection and Rights of Victims under International Criminal Law, International Lawyer 34(1) (2000) 7–20, p. 12; Garkawe Note 14, p. 348. 46 Principles 1 and 2. 47 UNTS Vol. 78, p. 277, 9 December 1948. 48 A/RES/3/217/A, 10 December 1948. 49 UNTS Vol. 75, pp. 31–474, 12 August 1949; UNTS Vol. 1125, pp. 3–704, 8 June 1977.

66 Historical development of victims European Convention of Human Rights,50 the 1966 International Covenant on Civil and Political Rights,51 the 1969 American Convention on Human Rights,52 the 1981 African Charter on Human and Peoples’ Rights,53 the 1984 UN Convention against Torture,54 and the 1989 UN Convention on the Rights of the Child.55 Human rights law established after the Second World War also affirms each individual’s inherent human dignity, autonomy, freedoms, and rights that impose obligations on states to ensure a remedy to victims’ harm.56 In light of these developments a number of states supported the inclusion of victim articles during drafting of the ICTY Statute. The Islamic delegation strongly advocated victims’ rights based on their domestic practices and international human rights law.57 The delegation suggested that victims should have access to protection measures, which were in part incorporated under Article 22 of the Statute.58 Furthermore, they recognised that victims should be compensated by governments.59 However, this was excluded from the final draft of the Statute. The French delegation also supported victims’ rights on the basis of human rights law, as well as recognising their importance in ensuring the long term effectiveness and credibility of the ICTY, so as to avoid the Tribunal being ‘purely symbolic’.60 The delegation proposed closed hearings to protect victims,61 although they were opposed to reparations on the grounds that they would make the Tribunal ineffective by flooding it with claims, finding that it should instead be provided through national courts.62 It was this proposal on reparations that was incorporated into the ICTY Rules of Procedure and Evidence.63 Although the drafting of the Statute included a number of states, from common, civil, and Islamic law jurisdictions, it was mainly influenced by the proposals of the United States, due to its position

50 51 52 53 54 55 56 57

58 59 60

61 62 63

CETS No. 005, 4 November 1950. A/RES/2200A (XXI), 16 December 1966. UNTS Vol. 1144, p. 144, 22 November 1969. OAU Doc. CAB/LEG/67/3 rev., 27 June 1981. A/RES/39/46, 10 December 1984. A/RES/44/25, 20 November 1989. See Doak Ch. 1 Note 194, pp. 31–33. Letter dated 31 March 1993 from the representatives of Egypt, the Islamic Republic of Iran, Malaysia, Pakistan, Saudi Arabia, Senegal, and Turkey to the United Nations addressed to the Secretary-General, S/25512, 5 April 1993, Part III(2). Ibid., Part III(1–3) and Part V(1). Ibid., Part III(4–5); see Chapter 4. Letter dated 10 February 1993 from the permanent representative of France to the United Nations addressed to the Secretary-General, S/25266, para. 99 and Annex II Draft Statute Article XV(3), paras 97–98. Ibid., Article XV(1). Ibid., para. 100. Rule 106.

Historical development of victims 67 64

on the Security Council. The US proposal only provided protection measures to testifying victims.65 Nonetheless, the resulting ICTY Statute included a number of articles for victims incorporating some procedural rights, such as protection and support under Article 22, and restitution in Article 24(3). As the Statute of the ICTR was a ‘boilerplate’ copy of the ICTY, many of the articles are nearly identical in both Tribunals.66 For the first time in international criminal justice, victims are mentioned throughout the governing Statute and in the Rules of Procedure and Evidence (RPE).67 The ad hoc tribunals also established a Victims and Witnesses Section to provide support and protection to victims.68 The ICTY and ICTR Statutes therefore signified the incorporation of victims in international criminal justice, but not necessarily justice for victims, as can be seen from the degree to which they were granted formal recognition. 3 Victim recognition Victims are defined under common Rule 2(A) of both Tribunals as a ‘person against whom a crime over which the Tribunal has jurisdiction has allegedly been committed’.69 The use of the word ‘allegedly’ reinforces an adversarial trial position, as individuals are only recognised as victims once the accused has been successfully convicted. This is contrary to the UN Victims’ Declaration, where a victim is recognised regardless if their perpetrator is ‘identified, apprehended, prosecuted or convicted’.70 Additionally, the ad hoc tribunals’ definition of a victim only recognises direct and individual victims by use of the language of ‘committed against’ and ‘person’. As discussed in Chapter 1, this definition narrowly recognises the suffering caused by international crimes, which also causes indirect and collective harm.71 The ad hoc tribunals have a wider jurisdiction over crimes than Nuremberg and Tokyo owing to legal developments in the interim.72 This provides a greater recognition of victims’ suffering. The most notable is that crimes against humanity no longer need to be connected to an internal or 64 See Jorda and de Hemptinne Ch. 1 Note 226, p. 1391. 65 Letter dated 5 April 1993 from the permanent representative of United States of America to the United Nations addressed to the Secretary-General, S/25575. 66 Mark Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, New York University Law Review 75(5) (2000) 1221–1326, p. 1231. 67 ICTY Statute, Annex of UN Security Council Resolution 827, S/RES/827, 1993. 68 Antonio Cassese, Annual Report of the ICTY to the UN General Assembly, A/50/365 S/1995/728, 23 August 1995, para. 109. 69 RPE of the ICTY and ICTR. 70 Principle 2. 71 See UN Victims’ Declaration, Principle 2. 72 Articles 2–5, ICTY Statute; Articles 2–4, ICTR Statute.

68 Historical development of victims international armed conflict, thereby going beyond the Second World War Tribunals.73 In the Akayesu case, the ICTR recognised Tutsis as victims of genocide, even though they did not fall under a distinct ethnic group under the Genocide Convention, due to their common language and culture with Hutus. However, the Tribunal interpreted this in light of the travaux préparatoires of the Genocide Convention, which was meant to protect ‘any stable and permanent group’.74 The Tribunal in Akayesu also found that because genocide is carried out against groups, both the group and the individual are victims, acknowledging the harm that occurs to each.75 Additionally, the ICTR expanded the other forms of genocide to include rape and ‘slow death’ conditions.76 Rape was determined to be an act of ‘physical invasion of a sexual nature, committed on a person under circumstances which are coercive’.77 The use of the word ‘invasion’ defines the crime from the perspective of the victim rather than from the perpetrator who ‘penetrates’, and ‘coercive’ excludes the issue of consent.78 The ICTY amongst other jurisprudential developments recognised sexual slavery as a crime.79 In the Tadic´ case, the Tribunal found ill-treatment, torture, sexual violence, and murder had occurred in Omarska, Keraterm, and Trnopolje concentration camps against Muslims and Croats by Bosnian Serbs.80 In the Krstic´ case, the ICTY found genocide had taken place with the massacre of 7,000 to 8,000 Bosnian Muslim males in and around Srebrenica in 1995.81 Nevertheless, the narrow temporal jurisdiction of the ICTR limited victim recognition and prevented the contextualisation of the violence of other massacres committed before, during, and after the 1994 Rwandan genocide, such as Burundian genocide in 1993 and the conflicts in the

73 See Tadic´, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. 74 Ibid., paras 516 and 701–702. 75 Ibid., paras 124 and 521; followed in Prosecutor v Musema, Judgment, ICTR-96-13, 27 January 2000, para. 165; Prosecutor v Krstic´, Trial Judgment, IT-98-33-T, 2 August 2001, para. 553. 76 Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, paras 505–508. 77 Ibid., para. 598. 78 Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia 2005), p. 107. 79 Prosecutor v Kunarac, Kovac and Vukovic, IT-96-23-T and IT-96-23/1-T, 22 February 2001. 80 Prosecutor v Tadic´, Judgment, IT-94-1-T, 7 May 1997. 81 Prosecutor v Krstic´, Trial Judgment, IT-98-33-T, 2 August 2001.

Historical development of victims 69 Democratic Republic of Congo 1996–2002.82 In contrast, the ICTY had an open-ended temporal jurisdiction beginning on 1 January 1991 and territorial jurisdiction over the whole of the former Yugoslavia.83 This enabled the Tribunal to assert its jurisdiction over crimes committed in Kosovo in 1999, as well as prosecuting all the local parties in the conflict.84 The selection of perpetrators and charges are also important in recognising victims. A victim-orientated approach, which is consistent with the critical victimology of recognising those who suffer as a result of a crime discussed in the previous chapter, would as far as possible provide a representative picture of their suffering in the perpetrators and crimes charges. The ICTY Prosecutors have taken different approaches. In the Miloševic´ case, the Prosecutor believed that despite the length of the case she had a ‘duty to the victims’ to ensure that they are representatively recognised by the charges brought against the defendant.85 The prosecution tried to ensure a representative picture of victimisation caused by Miloševic´ was evidenced in the charges by including victims in Bosnia, Croatia, and Kosovo, so-called ‘just representation’.86 However, the defendant died after four years of proceedings and without a judgment. The death of Miloševic´ left his victims with ‘little justice’, by preventing them from being recognised, and the defendant being held responsible for his crimes.87 Conversely, in some cases regarding sexual crimes, the prosecution neglected its ‘duty’ to represent victims, with charges being reduced in order to expedite the trial. For instance, in the case of Milan and Sredoje Lukic´, charges of rape and sexual violence were dropped from the indictments so as to speed up the trial to the anger of many victims.88 Additionally, in certain cases charges of genocide were discontinued due to a plea bargain, or not appealed owing to the discretion of the Prosecutor, despite

82 Romana Schweiger, Late Justice for Burundi, International and Comparative Law Quarterly 55(3) (2006) 653–670, pp. 659–660; Rene Lemarchand, Genocide in the Great Lakes: Which Genocide? Whose Genocide? African Studies Review 41(1) (April 1998) 3–16; Gérard Prunier, Africa’s World War Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe (Oxford University Press 2008); Human Rights Office of the High Commissioner, Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed Within the Territory of the Democratic Republic of the Congo Between March 1993 and June 2003, August 2010 (Mapping Report). 83 Article 8, ICTY Statute. 84 See L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (Martinus Nijhoff 2005), p. 80. 85 Prosecutor v Miloševic´, 29 November 2005, transcript p. 46654. 86 See Prosecutor v Slobodan Miloševic´, IT-02-54-T, Second Amended Indictment, 28 July 2004. 87 Miloševic´, 29 November 2005, para. 49 from Gideon Boas, The Miloševic´ Trial (Cambridge University Press 2007), pp. 111 and 133. 88 The Prosecutor v Lukic´ and Lukic´, Judgment, IT-98-32/1-T, 20 July 2009, paras 37 and 800–801; see Amnesty International, Whose Justice? Bosnia and Herzegovina’s Women still Waiting, EUR 63/06/2009, 2009, p. 13.

70 Historical development of victims the facts indicating that the defendants were involved in committing or aiding genocide.89 With regards to the ICTR, the Tribunal has not adequately recognised the suffering of all victims. The Akayesu case can be seen as an ‘anomaly’ in the prosecution and the development of the jurisprudence of the ICTR on sexual crimes.90 Although Akayesu recognised rape as an endemic part of the genocide with 250,000 to 500,000 victims, there have been very few prosecutions before the ICTR.91 Furthermore, the crime of sexual slavery has also been neglected by the ICTR, despite 84,000–166,000 women being enslaved for gang rape.92 Many of the cases before the Tribunal have resulted in rape acquittals, charges dropped, or rape evidence disregarded.93 In the Cyangugu case, no sexual charges were included in the indictment, even though widespread rape was documented in the area under the defendants’ control. Additionally, there was prolonged engagement by victims’ groups to tell their experience of rape to ICTR investigators, and an amicus curiae submission on their behalf to the ICTR to include rape in the charges.94 The ICTR also refused to prosecute members of the Tutsi Rwandan Patriotic Front which overthrew the genocidal government in 1994, despite the crimes it committed during the genocide in Rwanda and after in the Congo.95 As a result, some Rwandan Hutus consider the Tribunal as the TPIH – le Tribunal Penal International pour les Hutus.96 This ‘one-dimensional’ approach and claims of ‘victor’s justice’ for the RPF at

89 The Prosecutor v Plavšic´, IT-00-39 and 40/1, Sentencing Judgment, 23 February 2004, paras 2 and 14; The Prosecutor v Radoslav Brd-anin, IT-99-36-T, 1 September 2004, cited in William Schabas, Genocide in International Law (Cambridge University Press 2009, 2nd edn), p. 458. 90 See for example Prosecutor v Musema, Trial Chamber Judgment, ICTR-96-13, 27 January 2000; Binaifer Nowrojee, ‘Your Justice is Too Slow’: Will the International Criminal Tribunal for Rwanda Fail Rwanda’s Rape Victims? in D. Pankhurst (ed.), Gendered Peace: Women’s Struggles for Post-War Justice and Reconciliation (Routledge 2007) 107–136, p. 110; Kelly D. Askin, Gender Crimes Jurisprudence in the ICTR: Positive Developments, Journal of International Criminal Justice 3(4) (2005) 1007–1018, p. 1007. 91 Nowrojee ibid., p. 114. 92 De Brouwer Note 78, pp. 54–55. 93 Askin Note 90, p. 1008; Nowrojee Note 90, pp. 109 and 116; see Prosecutor v Muvunyi, ICTR-2000-55A, Decision on the Prosecutor Motion to Drop Rape Charges against Muvunyi, 23 February 2005. 94 Amicus Curiae brief submitted to the ICTR in the case of the Prosecutor v André Ntagerura and Emmanuel Bagambiki, Samuel Imanshimwe, ICTR-99-46-T, 1 March 2001; see Nowrojee ibid., pp. 120–123; De Brouwer Note 78, p. 297. 95 See Prunier Note 82; Mapping Report Note 82. 96 Eugenia Zorbas, Reconciliation in Post-Genocide Rwanda, African Journal of Legal Studies 1(1) (2004) 29–52, p. 34.

Historical development of victims 71 the ICTR are significant in undermining the Tribunal’s mandate, particularly in ending impunity.97 Representative recognition of victims is difficult to achieve in international criminal justice mechanisms, and is dependent on sufficient evidence and prosecutorial discretion. There is no obligation on the Prosecutor to prosecute certain crimes or to take into account the wishes of victims.98 As outlined in the previous chapter, although international criminal justice is necessarily selective, the lack of recognition of certain groups and crimes can cause secondary victimisation. Other factors, such as ensuring an expeditious trial and convictions, can have a greater influence on the Prosecutor’s discretion to prosecute certain defendants and crimes over others, than considering victims’ interests. The Miloševic´ case shows the difficulty in trying to recognise representatively victims of international crimes. Thus representation of victims’ suffering needs to be tempered with expediency. Selective prosecutions at the ICTR undermined the whole impartiality and purpose of the Tribunal by allowing impunity for RPF crimes and denying justice to their victims, indicating the need for some judicial oversight of Prosecutor’s discretion in order to ensure their perceived fairness, as well as states to provide accountability mechanisms which can bridge the recognition gap. Nonetheless, the ICTY and ICTR provided a number of provisions to victims who were recognised before them. 4 Procedural justice for victims The ad hoc tribunals’ Statutes and Rules outline victim provisions on participation, treatment, protection, and support. As such, the Tribunals recognise some of victims’ procedural rights. However, their practice has not been victim orientated as victims have neither been treated with respect nor have their interests been fairly balanced with those of other parties. a Victim participation There are four ways victims can participate before the ICTY and the ICTR: amicus curiae; writing a letter to the Prosecutor; victim impact statements; and testifying as witnesses.99 With regards to the first of these participation measures, under Rule 74 of the Rules of Procedure and Evidence (RPE)

97 Peter Uvin and Charles Mironko, Western and Local Approaches to Justice in Rwanda, Global Governance 9 (2003) 219–231, p. 222. 98 See common Rule 39, RPE; Article 16(2), ICTY Statute; Article 15(2), ICTR Statute; Åsa Rydberg, Victims and the International Criminal Tribunal for the Former Yugoslavia, in H. Kaptein and M. Malsch (eds), Crime, Victims, and Justice: Essays on Principles and Practice (Ashgate Publishing 2004) 126–140, p. 128. 99 Heikkilä Ch. 1 Note 30, p. 155.

72 Historical development of victims of both Tribunals, any state, organisation, or person can make an amicus curiae application to the Chamber to aid in the ‘proper determination of the case’. A Chamber decides which submissions are relevant, leaving some victims with no right to participate. As victims are unlikely to have the resources, expertise, and information required to submit an application, only a few amici were submitted on their behalf by NGOs and academics.100 The Tribunals dismissed amicus curiae that tried to allow victims to participate in proceedings. For instance, in the Bagasora case before the ICTR, there were three separate amicus curiae applications on behalf of victims by the Belgian and Rwandan governments as well as African Concern.101 These amici were rejected by the Trial Chamber on the grounds that presentation of evidence and witnesses was best suited for the prosecution and the defence.102 The Tribunal’s approach was to protect the two-party adversarial trial proceedings, which would have been upset by introducing victims as participants through amicus curiae.103 However, this neglected victims’ input into proceedings which consequently affects their interests, and denied them procedural justice. Victims can also contact the Prosecutor directly through correspondence, yet like amicus curiae they require the resources, expertise, and information to advocate effectively their interests. NGOs, especially the Coalition for Women’s Human Rights in Conflict Situations, played a vital role in filling this gap.104 However, the impact of victims’ correspondence on the Prosecutor’s discretion is questionable.105 For instance, in the Muvunyi case the Coalition submitted a letter to the Prosecutor to investigate sexual violence and to continue to prosecute rape, but at the trial he presented no evidence on these crimes.106

100 Ibid., p. 158; for instance, Amicus Curiae Brief on Protective Measures for Victims and Witnesses, submitted by Professor Christine Chinkin, Criminal Law Forum 7 (1996) 179–212. 101 Prosecutor v Théoneste Bagasora, Amicus Curiae: Letter from Geert Muyelle to Mr Agwu Ukiwe Okali, ICTR-96-7-T, 10 February 1998; Demande introduite par African Concern aux fins d’autorisation de déposer un mémoire en qualité d’amicus curiae dans l’affaire Le Procureur c. Theoneste Bagosora, 4 December 1998; Request by the Government of Rwanda for Leave to Appear as Amicus Curiae, 18 June 1999. 102 Prosecutor v Bagasora case, Decision on the Amicus Curiae Application by the Government of the Kingdom of Belgium, ICTR-96-7-T, 6 June 1998, p. 4; Decision on the Amicus Curiae Application by African Concern, ICTR-96-7-T, 23 March 2004; Decision on the Amicus Curiae Application by the Government of Rwanda, 13 October 2004. 103 McGonigle Ch. 1 Note 30, p. 142. 104 See the Coalition’s Letter to the ICTY prosecutor concerning the amendment of the Karadzic indictment respecting rape and sexualised violence, 23 August 2008. 105 De Brouwer Note 78, pp. 300–301. 106 Ibid.; see the Coalition’s Letter to Prosecutor Jallow, regarding the need to step-up sexual violence investigations in the case of former Commander Muvunyi, and not to drop rape charges, 8 February 2005.

Historical development of victims 73 The third way victims can participate is through submitting written impact statements on how the crime affected them to a Chamber when it is determining the defendant’s sentence.107 Victim impact statements are derived from the practice of common law countries, which permit victims to express their views and influence the severity of sentencing.108 These statements are under the discretion of the Chamber to consider such information, leaving victims without any guaranteed access to have their voices heard by the Tribunal. In light of the limitations of the preceding participation modalities, victims mostly appear before the ad hoc tribunals as witnesses. Unlike Nuremberg’s vast documentary evidence, the ICTY and ICTR rely heavily on witnesses, especially victim-witnesses, to testify on crimes. Over 4,500 witnesses testified at the ICTY,109 and over 3,000 at the ICTR.110 This is in comparison to 94 witnesses at Nuremberg and 419 at Tokyo.111 For many witnesses, testifying at the Tribunals is a positive experience and most would testify again.112 Many of them considered testifying as their ‘moral duty’, by speaking on behalf of those who died, which provided them with some closure and satisfaction.113 The ICTY claimed that it had given a voice to the victims by enabling them to be heard and to speak about their suffering through testifying.114 However, for some victims and witnesses, testifying before the Tribunal can be discouraging due to narrow focus of proceedings. As in domestic criminal proceedings, the Tribunals confine victim-witnesses’ testimony to issues that are relevant to the case and charges at hand, rather than permitting them to ‘tell their story’ in narrative form.115 The Tribunals have limited resources and time, and therefore could not allow every victim to testify at length. Yet victims have felt frustrated when they were interrupted during their testimony and asked to focus on certain facts, rather than to testify on what they saw as important.116 A more responsive approach to victims’ needs in testifying would have been to give them a specific amount of time to testify in their own words, and then to question them. This would incorporate procedural justice by respecting their input and worth by listening to what they want to say. 107 108 109 110 111 112 113 114 115 116

Rule 92bis (A)(i)(d) RPE. See Doak Ch. 1 Note 194, pp. 150–151. Witness Statistics, ICTY website: www.icty.org/sid/10175 (accessed 10 October 2013). See ICTR Annual Reports 1996–2013 to the UN General Assembly and Security Council. Though the Nuremberg Tribunal only lasted less than a year and the Tokyo Tribunal two-and-a-half years, the ICTY and ICTR adjudicated for over 20 years. Stover Ch. 1 Note 66, p. 103. See ibid. ICTY Achievements website: www.icty.org/sid/324 (accessed 10 December 2012). McGonigle Ch. 1 Note 30, p. 141. Marie-Bénédicte Dembour and Emily Haslam, Silencing Hearings? Victim-Witnesses at War Crimes Trials, European Journal of International Law 15(1) (2004) 151–177, p. 158.

74 Historical development of victims Both Tribunals have created outreach programmes to inform victims and affected communities of proceedings and developments of the ICTY and ICTR. These programmes involve training seminars and workshops for legal practitioners and students, community meetings, and films on the Tribunals’ work.117 Outreach is also supposed to provide local communities with ownership of the Tribunals’ work.118 However, due to limited funds and not being established from the outset, the outreach programmes struggled to inform victims. A 2002 survey of 2,091 Rwandans found that 87 per cent were not well informed or not informed at all about the work of the Tribunal.119 Without timely notification victims were prevented from presenting their interests on the selection of perpetrators and charges, procedural matters, protection, and reparations, thereby denying them a sense of ownership. A number of victims have also had a negative and traumatising experience in testifying before the Tribunals due to inadequate protection and treatment measures. b Treatment and protection of victims Under Article 20 of the ICTY Statute and Article 19 of the ICTR Statute, trial proceedings are to be conducted with ‘due regard for the protection of victims and witnesses’. Additionally, the Tribunals ‘shall provide’ measures for the protection of victims and witnesses, including, but not limited to, in camera proceedings and protecting their identity.120 The Rules of Procedure and Evidence for both Tribunals also enumerate further victim provisions. Rule 34 outlines the Victims and Witnesses Section (VWS) at the ICTY and the Witnesses and Victims Support Section (WVSS) at the ICTR. Rule 69 governs the protection of victims and witnesses in proceedings, and Rule 75 details the measures for the protection of victims and witnesses, such as name redaction, non-disclosure, image and/or voice distortion, pseudonyms, CCTV, and relocation.121 Victims of rape and sexual assault are also provided special provisions under Rule 96, which require no corroboration of a victim’s accusation, a limited defence of consent, and exclusion of the victim’s prior sexual conduct.122 These protective

117 See ICTY Outreach Programme webpage: www.icty.org/sections/Outreach/OutreachProgramme (accessed 10 December 2013). 118 Diane Orentlicher, Shrinking Space for Denial: The Impact of the ICTY in Serbia (Open Society Justice Initiative 2008), pp. 95–100. 119 Timothy Longman, Phuong Pham, and Harvey M. Weinstein, Connecting Justice to Human Experience: Attitudes toward Accountability and Reconciliation in Rwanda, in E. Stover and H. Weinstein (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press 2004) 206–225, pp. 213–215. 120 Article 22, ICTY; Article 21, ICTR. 121 Rule 75(B). 122 Kunarac, IT-96-23-T and IT-96-23/1-T, 22 February 2001, paras 461–464.

Historical development of victims 75 measures try to minimise the risk to victims of traumatising and demeaning cross-examination, when testifying.123 These provisions at ad hoc tribunals were the greatest improvement for victims’ procedural rights in comparison to the Nuremberg and Tokyo Tribunals. Even so, victims and witnesses do not have a right to protective measures as they are at the Chamber’s discretion. Victims and witnesses do have access to each Tribunal’s Support Section. The Support Sections (VWS/WVSS) were established by the Tribunals to encourage victims and witnesses to come forward to testify, alleviating their fears of reprisals through the provision of a safe and dignified environment, so as to avoid causing them trauma in proceedings.124 The ICTY Support Section also provides victims with information on proceedings, 24 hour support for their psycho-social and practical needs while in The Hague, as well as coordination with its office in Sarajevo.125 The ICTR Support Section includes physical and psychological rehabilitation as well as a gender sensitive approach to witnesses and victims.126 According to Stover, the majority of victims and witnesses who came before the Tribunals were satisfied by the professionalism, support, and fair treatment they receive from the Support Sections.127 With regards to protective measures, the ICTY in its first decision in the Tadic´ case provided a progressive interpretation in guaranteeing victims’ interests. In Tadic´, the Trial Chamber recognised that a defendant’s right to fair and public trial is not absolute, but needs to be balanced with the protection of victims and witnesses.128 The majority found that the language of Article 21(4), of the defendant’s right to fair and public trial, is ‘subject to Article 22 on the protection of safety and privacy of victims and witness’.129 The Trial Chamber distinguished two types of protection measures – confidentiality and anonymity. Confidentiality measures allow victims and witnesses to remain unidentified to the public and media, but not to the judges, the defendant, or the prosecution. In the Tadic´ case, the majority recognised that the right to a public trial is important in ensuring transparency so that the public can see justice done, but has to be balanced with the duty upon the Tribunal to

123 See Tadic´, IT-94-1, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, paras 46–50; Askin Note 90, pp. 304–305. 124 See Antonio Cassese, Annual Report of the ICTY to the UN General Assembly, A/50/365 S/1995/728, 23 August 1995, paras 108–110. 125 From www.icty.org/sid/158 (accesssed 12 December 2013); Information booklet for ICTY witnesses, VWS (2007). 126 Since 8 June 1998, Rule 34(A)(ii) and (B). 127 Stover Ch. 1 Note 66, p. 134. 128 Prosecutor v Tadic´, IT-94-1, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995. 129 Ibid., para. 34.

76 Historical development of victims protect victims and witnesses.130 Therefore the defendant’s right to a public trial is not absolute.131 However, the majority recognised that the use of confidentiality is only permitted if ‘special considerations’ exist where the witness is vulnerable, such as in cases of sexual assault.132 In light of the ongoing conflict in the former Yugoslavia at the time and the risk of intimidation to those who come before the Tribunal, it is likely they would fall under the ‘special considerations’ exception.133 Accordingly, the Chamber concluded that a closed session may be required in some cases to protect the victim’s or witness’ identity from the public and media without substantially infringing on the defendant’s right to cross-examination.134 With regards to anonymity, where the identity of the victim or witness is not disclosed to the defendant, the Chamber took a more stringent approach. The Chamber considered that the use of anonymity went to the heart of balancing the rights of the defendant to a fair trial.135 The majority kept in mind that using anonymous witness could prevent the defendant from determining their reliability and credibility through crossexamination.136 In order to reach an effective balance the majority outlined five criteria: 1 2 3 4 5

There must be real fear for the safety of the witness or her or his family. Fear is to be judged by the Chamber on both subjective and objective grounds. The testimony of the particular witness must be important to the Prosecutor’s case. The Trial Chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy. The ineffectiveness or non-existence of a witness protection programme. The Tribunal does not have a police force, trust fund, or long-term protection programme for witnesses. Any measures taken should be strictly necessary. The International Tribunal must be satisfied that the accused suffers no undue avoidable prejudice, although some is inevitable.137

The majority noted that even though Article 21(4)(e) guarantees the defendant the right ‘to examine, or have examined, the witnesses against

130 131 132 133 134 135 136

Ibid., paras 28 and 33; Rule 79. Ibid., paras 39–42. Ibid., para. 42. Ibid., para. 42. Ibid., para. 51. Ibid., para. 55. Ibid., para. 54 citing Kostovski v the Netherlands, App. no. 11454/85 (ECtHR 23 May 1989). 137 Ibid., paraphrased paras 62–66.

Historical development of victims 77 him’, the ‘[a]nonymity of a witness does not necessarily violate this right, as long as the defence is given ample opportunity to question the anonymous witness’.138 They also stipulated four additional requirements: Firstly, the Judges must be able to observe the demeanour of the witness, in order to assess the reliability of the testimony. Secondly, the Judges must be aware of the identity of the witness, in order to test the reliability of the witness. Thirdly, the defence must be allowed ample opportunity to question the witness on issues unrelated to his or her identity or current whereabouts. . . . Finally, the identity of the witness must be released when there are no longer reasons to fear for the security of the witness.139 Additionally, judges in a trial chamber could strike out an anonymous witness’ testimony from the record if it was overly prejudicial against the accused.140 These safeguards protect the rights of the defendant whilst ensuring the protection of the victim with judges to act as informed arbiters. This achieves a fair balance between the defendant and victims’ rights consistent with human rights law and victim-orientated justice.141 However, Judge Stephen dissented from the majority in the Tadic´ decision finding that allowing anonymous witness testimony would undermine the defendant’s right to a fair trial.142 He believed the protection of victims and witnesses was secondary to the rights of the defendant, which have to be fully respected. Although the majority decision on using confidentiality measures has been adopted by both Tribunals, Judge Stephen’s exclusion of anonymity was followed in Blaškic´ and subsequent cases, with no further anonymity measures ordered.143 As the Trial Chamber in Miloševic´ stated, ‘the rights of the accused are given primary consideration, with the need to protect victims and witnesses being an important but secondary one’.144 The Brd-anin decision found that non-disclosure to the defence under Rule 69 was a more effective way to balance the rights of the defendant and the protection of victims and witnesses, provided their identities were

138 139 140 141 142

Ibid., para. 67. Ibid., para. 71. Ibid., para. 84. Kostovski v the Netherlands, paras 43–44; Doorson v the Netherlands, para. 70. Separate Opinion of Judge Stephen on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995. 143 See Prosecutor v Tihofil Blaškic´, Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, IT-95-14-T, 5 November 1996, paras 34–35; Prosecutor v Radoslav Brd-anin and Momir Talic, Decision on Motion by Prosecution for Protective Measures, 3 July 2000. 144 Prosecutor v Slobodan Miloševic´, Decision granting Protective Measures for Individual Witnesses, IT-02-54, 19 February 2002, para. 23; Brd-anin ibid., para. 20.

78 Historical development of victims disclosed 30 days before the trial began.145 The Brd-anin decision places trust on the defendant to maintain the protection of the victim or witness’ identity, showing that the balance between victims and the rights of the defendant weighs in favour of the latter due to their primary importance to the Tribunal. In doing so, it neglects victims’ right to protection and a fair balance which respects their interests. The ICTR jurisprudence on protective measures replicates the ICTY.146 Though the ICTR never went as far as Tadic´ in ordering complete witness anonymity, it used extensively confidentiality protective measures in the majority of cases, as high as 95 per cent compared to 38 per cent at the ICTY.147 The justification for this approach was that both prosecution and defence witnesses were at risk from suffering intimidation or violence by publicly testifying before the ICTR, due to instability or ‘regional volatility’ in the Great Lakes region.148 This would suggest that protection measures have to be tailored to each context and individual. Additionally, confidentiality measures were more acceptable as they did not fundamentally compromise a defendant’s right to a fair trial or the interests of justice.149 In practice, victims have suffered secondary victimisation at the ad hoc tribunals. On numerous occasions victim-witnesses’ identities have been leaked either accidentally or intentionally. In the Miloševic´ trial at the ICTY, the defendant who was representing himself often purposively leaked the names of protected witnesses, and even one of the judges accidentally mentioned the name of a witness.150 In the Haradinaj et al. case, at least nine witnesses were killed and another had an attempt on his life.151 As one witness who was later charged with contempt for refusing to testify commented, ‘I don’t want protective measures because such measures do not exist in reality; they only exist within the boundaries of this courtroom,

145 Brd-anin ibid., paras 26–34; affirmed in Miloševic´ ibid., para. 26. 146 See the Prosecutor v Georges Anderson Nderubumwe Rutaganda, Decision on the Preliminary Motion Submitted by the Prosecutor for Protective Measures for Witnesses, ICTR-96-3-T, 26 September 1996. 147 Göran Sluiter, The ICTR and the Protection of Witnesses, Journal of International Criminal Justice 3(4) (2005) 962–976, p. 967; Julia Crawford, Rwanda Tribunal Witnesses Unhappy with their Treatment, Hirondelle News Agency, 30 May 2001. 148 Chris Mahony, The Justice Sector Afterthought: Witness Protection in Africa (Institute for Security Studies 2001), p. 67. 149 Sluiter Note 147, p. 969; see Prosecutor v Obed Ruzindana, ICTR-95-1-T and ICTR-96-10-T, Decision on the Motion Filed by the Prosecutor on the Protection of Victims and Witnesses, 4 March 1997; Prosecutor v Renzaho, ICTR-97-31-I, Decision on the Prosecutor’s Motion for Protective Measures for Victims and Witnesses to Crimes Alleged in the Indictment, 17 August 2005, para. 13. 150 See Mirko Klarin, Protected Witnesses Endangered, IWPR, 22 February 2005. 151 According to Serbia’s War Crime Prosecutor Vladimir Vukcevic, in Merdijana Sadovic´ and Aleksandar Roknic, Serbian Anger at Haradinaj Acquittal, IWPR, 14 April 2008.

Historical development of victims 79 152

not outside it.’ The Appeal Chamber found that witness intimidation had ‘permeated the trial’ and the Trial Chamber’s focus on expedience had ‘helped to ensure that witness intimidation succeeded in denying the Prosecution an opportunity to present potentially crucial evidence in support of its case . . . result[ing] in a miscarriage of justice’.153 The Haradinaj case indicates that the ICTY failed to achieve an equitable balance between the defendant and victims in this case, and as result caused secondary victimisation to victims. Similar problems have faced the ICTR.154 As the Haradinaj case reveals, protective measures by the Tribunals can be ineffective outside the courtroom. A person who disappears for a few weeks to testify at the Tribunals is likely to be noticed, due to close-knit communities in the former Yugoslavia and Rwanda.155 The majority of witnesses at the ICTY found that protective measures had failed to protect their identity when they returned home leaving them open to recriminations.156 Although there were not widespread reprisals against witnesses who testified at the ICTY, they were still stigmatised and ostracised on their return home by the loss of friends, houses, or jobs.157 However, in Rwanda the consequences were more acute with victims and their families being harassed, violently attacked, and even murdered.158 Furthermore, support measures only applied to those victims and witnesses who appeared before the Tribunals to testify. This is the result of insufficient resources of the Support Sections and domestic authorities’ unwillingness to make support and protection measures effective.159 As such, both Tribunals’ witness protection programmes are examples of international criminal justice being ‘a giant without arms and legs’.160 With regard to the treatment of victims before the Tribunals, there have been a number of instances at the ICTY and ICTR where some judges have been insensitive and disrespectful towards victims causing them 152 Prosecutor v Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, Appeal Chamber Judgment, IT-04-84-A, 21 July 2010, para. 37, citing witness Shefqet Kabashi, Transcripts 5439–5440, 5 June 2007. 153 Ibid., paras 48–49. 154 See Prosecutor v Setako, ICTR-04-81-1, Decision on Prosecution Motion for Protective Measures, 18 September 2007, para. 5; Renzaho, para. 11; Prosecutor v Ntawukulilyayo, ICTR-05-82, 6 February 2009, para. 5. 155 Heikkilä Ch. 1 Note 30, p. 137; Nowrojee Note 90, p. 128. 156 Stover Ch. 1 Note 66, p. 98. 157 See Stover ibid. 158 Mahony reports some 99 were killed before the WVSS could be established in 1996, Note 148, p. 59. Dozens of other witnesses have been killed including victims before and after their testimony at the ICTR, More Can Be Done to Protect ICTR Witnesses, Hirondelle News Agency, 17 December 2004. 159 Ibid., p. 81. 160 Antonio Cassese, On the Current Trend towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, European Journal of International Law 9(1) (1998) 2–17, p. 13.

80 Historical development of victims ‘secondary victimisation’.161 The imbalance between the rights of defendants and the duty to protect victims is also demonstrated in the way in which defendants are allowed to represent themselves in proceedings.162 Former Serbian President Slobodan Miloševic´ called one victim-witness a ‘murderer and robber’.163 At times in the Miloševic´ case the judges silenced the defendant’s microphone when he disrespected or attacked witnesses.164 In the Karadžic´ case, the defendant decried the protective measures in place for a victim-witness as unnecessary as the witness was ‘not a victim’, despite surviving the Srebrenica genocide and being shot alongside his brother.165 Although the judges apologised after the victim-witness had complained to the VWS, they blamed him for reacting so strongly, because he did not understand that the defendant could represent himself.166 A victim-orientated approach to the situation would have been the judges being more empathetic to the victim-witness’ needs by apologising to him and refuting the defendant’s statement, as his status had already been confirmed in previous judgments. The proceedings of the ICTR have also been a source of secondary victimisation for victims. In some cases, judges failed to prevent harassment of victim-witnesses by defence lawyers or harmed them through their own actions. In the Butare case, a rape victim was asked 1,194 questions by the defence without intervention by the Chamber.167 In one of the worst instances, three judges laughed during the testimony of a rape victim.168 Although the judges were laughing at the inept questioning by the defence lawyer and not the victim, the situation was not explained to her, she was not apologised to, and the judges were not admonished for their disrespect.169 For the victim-witness, the incident left her feeling ‘angry and nervous’. Upon returning home everyone knew she had testified, she was threatened, her house was attacked, and her fiancée left her after finding out she was raped.170 As African Rights aptly states, it is ‘a bitter irony that the institution which has increased international recognition of the heinous nature of rape, has also been the forum for the humiliation of

161 Ibid., p. 132; Dembour and Haslam Note 116, pp. 171–177; see also De Brouwer Note 78, p. 122; Kunarac IT-96-23, Transcript, 25 April 2000, pp. 2235–2236. 162 See Patricia Wald, Tyrants on Trial (Open Society Justice Initiative 2009); Stover Ch. 1 Note 66, p. 99. 163 Stover ibid. 164 Ibid., p. 99. 165 Prosecutor v Radovan Karadžic´, IT-95-5/18-I, Transcript, 21 April 2010, p. 1330. 166 Karadžic´, IT-95-5/18-I, Transcript, 22 April 2010, pp. 1397–1398. 167 Nowrojee Note 90, p. 130. 168 Ibid. 169 Ibid.; Victor Peskin, International Justice in Rwanda and the Former Yugoslavia: Virtual Trials and the Struggle for State Cooperation (Cambridge University Press 2008), pp. 199–200. 170 Nowrojee Note 90, p. 130.

Historical development of victims 81 171

rape victims’. Despite the innovative provisions for victim protection and support at both Tribunals, in practice victims on occasion suffered secondary victimisation. This is the result of the practitioners in the proceedings of the ICTY and ICTR being unresponsive to victims’ needs. 5 Substantive justice for victims As of December 2013, the ICTY indicted 161 suspects, tried 136, and convicted 69 defendants with 25 trials on-going.172 The ICTR indicted 92 suspects, tried 75 cases, and convicted 47 defendants with 16 appeals on-going.173 The ICTY has declared that these prosecutions have delivered justice to victims.174 Some consider the work of the ICTR as rendering ‘human dignity back to the survivors of the genocide’ by prosecuting those responsible for the Rwandan genocide in 1994.175 Without these Tribunals, those responsible would still be at large, and therefore they have established a certain amount of accountability as well as clarifying the facts as to what occurred.176 This has realised some of the victims’ rights to truth and justice. However, the recognition of only certain crimes and perpetrators made justice and truth more selective. In relation to victims’ right to justice, the ICTY has been willing to take into account the harm suffered by victims as an aggravating circumstance in determining the sentence of a defendant.177 The Tribunal has considered the ‘special vulnerability of victims’ in 31 cases, the ‘extreme suffering or harm inflicted on victims’ in 25 cases, the ‘large number of victims’ in 15 cases, and the ‘cruelty of the attack’ in 14 cases.178 In the Krnojelac sentencing judgment, for instance, based on victim impact statements the Chamber considered, ‘the extent of the long-term physical, psychological and emotional suffering of the immediate victims’.179 The Appeal Chamber in Mrkšic´ expanded this scope by judging the impact and consequences of the crime (torture) including, ‘the vulnerability of the

171 Broken Bodies, Torn Spirits, Living with Genocide, Rape and HIV/AIDS, African Rights, 2004, p. 82. 172 A total of 18 defendants were acquitted and 36 indictments withdrawn or the indictee was deceased: www.icty.org/sid/24 (accessed 10 December 2013). 173 Twelve have been acquitted: http://unictr.org/Cases/tabid/204/Default.aspx (accessed 10 December 2013). 174 ICTY Achievements website: www.icty.org/sid/324 (accessed 10 December 2013). 175 Francois-Xavier Nsanzuwera, The ICTR Contribution to National Reconciliation, Journal of International Criminal Justice 3(4) (2005) 944–949, p. 946. 176 Møse Ch. 1 Note 1, p. 932. 177 See Prosecutor v Tadic´, Sentencing Judgment, IT-94-1-T, 14 July 1997, paras 4 and 56. 178 Barbora Holá, Alette Smeulers, and Catrien Bi Jleveld, Is ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice, Leiden Journal of International Law 22(1) (2009) 79–97, p. 86. 179 Prosecutor v Krnojelac, IT-97-25-T, 15 March 2002, para. 512.

82 Historical development of victims victims and the consequences, effect or impact of the crime upon the victims and their relatives’.180 In Krstic´, the Chamber believed that victim impact statements helped to ‘give “a voice” to the suffering of the victims’ in the determination of sentencing.181 This reflects the impact of victim participation in the determination of substantive outcomes consistent with victim-orientated justice discussed in Chapter 1. The ICTR did not consider victims’ harm in their determination of aggravating circumstances in sentencing, instead finding that the defendant’s position of influence, authority, and public trust more important.182 At the ICTY, victim impact statements in certain cases enabled victims to realise their rights to truth. In the Nikolic´ case, the prosecution called three victims to provide oral impact statements.183 One of the victims during her testimony asked the defendant about the location of her sons who were disappeared. The defendant responded that although he was not involved in the killings of her sons, he knew the location of where they were killed.184 This instance enabled the victim to access directly the truth and redress by finding out where the bodies of her sons were located. Nevertheless, it was an exception. In contrast to the Nikolic´ case, the ICTY has not encouraged defendants to fully reveal the facts of their crimes or to provide information to the victims on the location of relatives’ bodies in plea agreements. For instance, in the Mrd-a case, the defendant received a reduced sentence of 17 years for his role in executing 178 male civilians because of a plea agreement, yet he did not reveal the location of the victims’ bodies.185 By withholding this information, the defendant created a barrier for family members in obtaining some closure.186 Accordingly, the ad hoc tribunals have not been responsive to victims’ substantive needs to truth and justice. Instead they have been used by the Tribunals in their purpose of prosecuting and punishing perpetrators through testifying and increasing their punishment. This reflects a narrow, retributive understanding of justice for victims. This is further demonstrated by the lack of reparations available before the ad hoc tribunals. Neither the ICTY nor the ICTR offer victims the

180 Prosecutor v Mrkšic´ and Šljivancˇanin, Judgment, IT-95-13/1-A, 5 May 2009, paras 400 and 413. 181 Krstic´, Judgment, IT-98-33-T, 2 August 2001, para. 703. 182 For instance see Prosecutor v Callixte Kalimazira, Judgment, ICTR-05-88-T, 22 June 2009, paras 750–751. 183 Prosecutor v Nikolic´, Sentencing Judgment, IT-94-2-S, 18 December 2003, para. 41. 184 Nikolic´, Transcript, 3 November 2003, pp. 240–258. 185 Prosecutor v Mrda, Sentencing Judgment, IT-02-59, 31 March 2004; Orentlicher Note 118, p. 64; Refik Hodžic´, Living the Legacy of Mass Atrocities Victims’ Perspectives on War Crimes Trials, Journal of International Criminal Justice 8(1) (2010) 113–136, p. 125. 186 See Eric Stover and Rachel Shigekane, The Missing in the Aftermath of War: When do the Needs of Victims’ Families and International War Crimes Tribunals Clash? International Review of the Red Cross 84(848) (2002) 845–866.

Historical development of victims 83 right to claim reparations before their Chambers. Resolution 827(1993) establishing the ICTY states that ‘the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law’.187 This indicates that reparations are not part of the Tribunal’s work. Restitution is mentioned in Articles 24(3) and 23(3) of the Statute of the ICTY and ICTR respectively. Additionally, common Rule 106 titled ‘Compensation to Victims’, permits victims to claim compensation before domestic courts in the former Yugoslavia and Rwanda against those defendants who are convicted before the Tribunals. Victims do not have standing before the Tribunal to bring restitution claims themselves, but instead rely on the Prosecutor to bring claims on their behalf.188 Only one claim has been made before a Bosnian court.189 However, any perpetrators before the Tribunals are unlikely to have the funds to compensate victims.190 Furthermore, the Tribunals do not fully reflect victims’ right to reparations which includes rehabilitation, measures of satisfaction, and guarantees of nonrepetition in order to remedy their harm effectively. In light of these shortcomings in 2000 the judges of the ICTY and the ICTR sent letters to the Security Council on their findings on compensation and participation of victims at the Tribunals.191 The letters acknowledged victims’ legal right to compensation for their injuries,192 but found that such proceedings would be time consuming, likely to increase the workload of the Tribunal, and would be contrary to the defendant’s right to an expeditious trial. Instead, the judges suggested that a separate claims commission established by the UN Security Council would be a more suitable alternative.193 Despite the complementary role a reparations mechanism would have served the goals of ad hoc tribunals and the needs of victims, the Security Council did not establish any form of reparations programme for victims in the

187 S/RES/827, 25 May 1993, para. 7; the ICTR resolution makes no reference to compensation. 188 Susanne Malmstrom, Restitution of Property and Compensation to Victims, in R. May (ed.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (Brill 2000) 373–384, p. 376; Common Rule 106, RPE. 189 See Maja Bjelajac, Bosnia War Compensation Dispute, IWPR, 10 January 2011; case involves 1,400 claimants following the ICTY judgment in the Galic´ case (IT-98-29) on siege of Sarajevo for 470 million. 190 Malmstrom Note 188, p. 383. 191 Letter dated 12 October 2000 from the President of the International Tribunal for the Former Yugoslavia addressed to the Secretary-General, S/2000/1063, 3 November 2000; Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda addressed to the Secretary-General, S/2000/1198, 15 December 2000. 192 In light of the developments of the ICC and the principles of the UN Victims’ Declaration. 193 Such as the UN Claims Commission set up after the Gulf War.

84 Historical development of victims former Yugoslavia or Rwanda. Subsequently, the President of the ICTY has acknowledged that the Security Council’s neglect of reparations has hindered the wider goals of the Tribunal in delivering justice to victims: The failure to properly address this issue constitutes a serious failing in the administration of justice to the victims of the former Yugoslavia. The Tribunal cannot, through the rendering of its judgements alone, bring peace and reconciliation to the region: other remedies should complement the criminal trials if lasting peace is to be achieved, and one such remedy should be adequate reparations to the victims for their suffering.194 The International Organisation for Migration has begun exploring a reparation programme in the former Yugoslavia for victims on request of the President of the ICTY,195 with a further project to begin in Rwanda.196 This approach appreciates the importance of reparations to victims of international crimes that the Tribunals were unable to perform such a function, due to a lack of legal basis in their respective Statutes, capacity, and political will. As Malmstrom points out, the mandate of the Tribunals was to prosecute those responsible rather than provide a wider conception of justice to victims.197 This perhaps defines the limits of international criminal justice mechanisms in delivering reparations to victims, and may need to be complemented with reparation processes, such as the subsequent hybrid Special Court for Sierra Leone, which although included compensation in its rules (Rule 105), it was complemented by the Sierra Leone Truth and Reconciliation Commission that recommended reparations for all victims in the conflict, particularly for women and those who suffered sexual violence.198

D Conclusion The establishment of international criminal tribunals where victims can see some justice done is an important achievement. They have prosecuted some of the most heinous crimes and perpetrators. Additionally, they have officially acknowledged the occurrence of international crimes, who was

194 Bi-Annual Completion Report to the UN Security Council, S/2010/588, 19 November 2010, para. 78. 195 See Reparations for Wartime Victims in the Former Yugoslavia: In Search of the Way Forward, International Organization for Migration (IOM), June 2013. 196 Address to the United Nations Security Council: Six-Monthly Report on the Completion Strategy of the International Criminal Tribunal for Rwanda (ICTR) by President Judge Vagn Joensen, 5 December 2013. 197 Malmstrom Note 188, p. 384. 198 See Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict (Cambridge University Press 2012), pp. 164–184.

Historical development of victims 85 responsible, who was victimised, and clarified the truth, such as in the Akayesu case on the 1994 genocide in Rwanda.199 The ad hoc tribunals also expanded the scope of international crimes. Although the ad hoc tribunals tried to keep victims informed, protected, and provide some support, it was at times inadequate and limited to those who came before them to testify. This suggests that victims’ procedural rights were only functional to facilitate the Tribunals’ mandate in prosecuting those most responsible, rather than to meet their specific needs and interests. Additionally, the structural limitations of a criminal court, especially using the adversarial trial, favoured the rights of the defendant and unfettered prosecutorial discretion over victims’ needs. With regards to recognition, the lack of representative recognition of victims by the Tribunals cast some doubts on their impartiality. While the Tribunals prosecuted some of the most senior perpetrators in the conflicts, it excluded a number of others resulting in selective justice and truth, and therefore created impunity and inequality between victims. Accordingly, victims’ substantive rights to truth and justice were only realised where they coincided with the interests of the tribunals in representing the interests of the international community, and excluded their right to reparation. Despite the developments in international law, victimology, and human rights law, they did not substantially alter international criminal tribunals in delivering justice to victims. International criminal justice is supposed to be the last resort to justice for victims of mass atrocities who cannot access justice locally. Instead, justice for victims has been rhetoric used by the Tribunals to justify punishment and legitimise their existence, without meeting victims’ needs. As such, victims in international criminal tribunals are considered objects, in the sense that justice is done on the basis of their suffering, without recognising them as subjects having needs and interests in determining the substantive outcomes.200 It is only in hindsight two decades on that the issue of reparation and more broadly justice for victims is being properly considered as necessary to improve the legitimacy of the ad hoc tribunals. Nonetheless, the challenges of the ad hoc tribunals provided the drafters on the Rome Statute an incentive to be more responsive to victims’ needs and interests at the International Criminal Court. The development of the role of victims between the Second World War and the ad hoc tribunals demonstrate the difficulty in incorporating their needs and interests into a mechanism, which is primarily concentrated on prosecuting and punishing perpetrators of international crimes. This is a challenge which the ICC has been grappling with and is explored further in the following chapters.

199 Prosecutor v Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, paras 111–128, cited by Schabas, Ch. 1 Note 55, p. 347. 200 Jorda and Hemptinne Ch. 1 Note 226, p. 1389; Schabas, Ch. 1 Note 19, p. 42.

3

Victims in the proceedings of the International Criminal Court

A Introduction The Rome Statute affords a greater procedural role to victims through recognition, participation, protection, and support measures, in contrast to previous tribunals. These provisions have been declared as a ‘high-water mark’1 by placing victims at the ‘heart of international criminal justice’.2 This supposedly indicates that the ICC is not just concerned with prosecuting and punishing perpetrators of international crimes, but to also deliver justice to victims. As Fiona McKay, on behalf of the Victims’ Rights Working Group at the Rome Conference of the ICC, declared, ‘punishing criminals is not enough. There will be no justice without justice for victims. And in order to do justice for victims, the ICC must be empowered to address their rights and needs.’3 In light of the theoretical discussion in Chapter 1 on the internal element of justice for victims within the framework of the ICC, this chapter examines victims’ role in the proceedings of the Court. In order to analyse whether the ICC fulfils victim-orientated justice this chapter will consider victim recognition, as well as procedural and substantive justice for victims. Victim-orientated justice involves the Court responding to victims’ interests while fairly balancing them against the interests of others. Procedural justice is meant to ensure victims’ input into proceedings and to protect them from secondary victimisation. Substantive justice is the determination of truth and justice, with reparations considered in the following chapter.

1 Christine Chung, Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise? Northwestern Journal of International Human Rights 6(3) (Spring 2008) 459–545, p. 516. 2 Paolina Massidda and Sarah Pellet, Role and Practice of the Office of Public Counsel for Victims, in C. Stahn and G. Sluiter (eds), The Emerging Practice of the International Criminal Court (Brill 2009) 691–706, p. 692. 3 Speech by Fiona McKay, Redress, on behalf of the Victims Rights Working Group, 16 June 1998.

Victims in the proceedings of the ICC 87 This chapter begins by discussing the recognition of victims by the International Criminal Court and the challenges associated with it. The second section explores victim participation in depth. Considerable space is devoted to this subject, due to its innovative nature in international criminal justice and importance in allowing victims to realise their procedural and substantive rights. The third section examines the provisions on protection and treatment under the Rome Statute for victims. The chapter concludes that despite the number of provisions for victims, the ICC does not satisfy victim-orientated justice.

B The drafting of the victim provisions within the Rome Statute At the opening of the Rome Conference, UN Secretary-General Kofi Annan stressed to delegates that the ‘overriding interests must be that of the victims and the international community as a whole’, and the Court represented ‘an opportunity to bequeath to the next century a powerful instrument of justice . . . [and] succeeding generations [a] gift of hope’.4 In the subsequent drafting of the Rules of Procedure and Evidence (RPE), French Minister of Justice Elisabeth Guigou stated that the purpose of the ICC was ‘to put the individual back at the heart of the international criminal justice system, by giving it the means to accord the victims their rightful place . . . [as they] are both the reason for and objective of international criminal justice’.5 A number of articles on victims were created in the Rome Statute and RPE reflecting their integral part in Court and international criminal justice. These articles came about due to three main reasons: the involvement of numerous states and NGOs in the drafting of the Rome Statute; the criticisms of the ad hoc tribunals; and to bring international criminal justice in line with international standards on victims in criminal proceedings and human rights law. First of all, the Rome Statute was created on a treaty basis involving 160 states and hundreds of NGOs, which encouraged a more pluralistic development of international criminal justice.6 This inclusive approach is in comparison to the four nations who created Nuremberg, 13 at Tokyo, and the 15 members of the Security Council for the ad hoc tribunals. The participation of so many different states and NGOs provided a diversity of perspectives on the nature and function of the ICC. As a result, NGOs along with some states were able to campaign for the inclusion of victim

4 UN Secretary-General Declares Overriding Interest of International Criminal Court Conference must be that of Victims and World Community as a Whole, Press Release L/ ROM/6.r, 15 June 1998. 5 Cited in Haslam Ch. 1 Note 182, p. 316. 6 See ibid., p. 325.

88 Victims in the proceedings of the ICC provisions, which had previously been neglected in the International Law Commission’s drafts.7 Furthermore, the diversity of those involved in the drafting drew upon their own different criminal justice proceedings, such as in the civil and Islamic law jurisdictions, which include victim participation and claiming compensation in criminal proceedings.8 Yet such mass participation from states and civil society was a double-edged sword, with disparate views on victim provisions from different legal traditions, resulting in compromises.9 While many delegations supported provisions for victims, others were wary that they would undermine the rights of the defendant and the fairness of the trial. Consequently, a number of the victim articles were left open for the judges to determine. It was only during the drafting of RPE that victim provisions on recognition, participation, protection, and reparations were more adequately defined, but maintained some flexibility for the Court’s judges in interpreting and applying these provisions.10 Second, the motivation to incorporate victim participation and reparations came from the failures of the ad hoc tribunals to be responsive to victims’ needs and deliver them justice.11 As discussed in Chapter 2, the neglect of victims at previous tribunals was because of their primary purpose of prosecuting and punishing individuals responsible for international crimes. The ad hoc tribunals appreciated the importance of protecting victims, but this was more of a functional role to guarantee their testimony. The exclusion of participation and reparation at the previous

7 Such as the European Law Students’ Association, Redress, the Women’s Caucus for Gender Justice, and Amnesty International, Human Rights Watch, along with states such as France, UK, and New Zealand. David Donat-Cattin, Article 68, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos 1999), pp. 869–888; Theo Van Boven, Victims’ Rights and Interests in the International Criminal Justice, in J. Doria, H.-P. Gasser, and M. Cherif Bassiouni (eds), The Legal Regime of the ICC: Essays in Honour of Prof. I.P. Blishchenko (Brill 2009) 898–906, pp. 899–900; William Schabas, Article 68: Protection of the Victims and Witnesses and their Participation in the Proceedings, 821–835, Ch. 1 Note 19; see Report of the International Law Commission on the work of its 44th session, 4 May to 24 July 1992, Official Records of the General Assembly, 47th session, Supplement No. 10. 8 Discussed below under participation and Chapter 4. 9 Marian Pena, Victim Participation at the International Criminal Court: Achievements Made and Challenges Lying Ahead, ILSA Journal of International and Comparative Law 16(2) (2009–2010) 497–516, p. 499; Sam Garkawe, The Victim-related Provisions of the Statute of the International Criminal Court: A Victimological Analysis, International Review of Victimology 8 (2001) 269–289. 10 See Silvia A. Fernández de Gurmendi, Definition of Victims and General Principle, in R.S. Lee (ed.), International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001) 427–434; Report on the International Seminar on Victims’ Access to the International Criminal Court, PCNICC/1999/WGRPE/INF.2. 11 Sam Garkawe, Victims and the International Criminal Court: Three Major Issues, International Criminal Law Review 3 (2003) 345–367; Vasiliev Intro. Note 4, p. 676.

Victims in the proceedings of the ICC 89 tribunals was also due to the adversarial model of criminal proceedings. Instead in the drafting of the Rome Statute, delegates wanted to prosecute perpetrators of international crimes as well as to offer justice to victims.12 Third, delegates advocated for victim provisions within the Rome Statute in order to bring it into line with standards established in international law, victimology, and human rights law.13 The UN Victims’ Declaration informed the drafters on victims’ procedural rights to participation, protection, support, and reparations.14 Additionally, developments before the regional human rights courts and articles within international conventions provided guidance on victims’ substantive rights to truth, justice, and reparations, including the then draft UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victim of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UNBPG).15 The resulting Rome Statute and RPE reflect these standards by including victim provisions on recognition, participation, protection, treatment, support, reparations, and a Trust Fund for Victims. Funk and Guhr suggest that restorative justice encouraged the shift towards incorporating victims within the ICC.16 The inclusion of participation, reparations, and a Trust Fund indicates that the Court does not strictly follow a retributive justice approach, but seeks to restore victims. However, the proceedings of the ICC are ‘lawyer dominated’, and retain a retributive focus, limiting victims’ interests as participants in deference to the two parties of the prosecution and the defence.17 Instead the drafting of the Rome Statute and the jurisprudence of the ICC have been more influenced by UN Victims’ Declaration and human rights law than restorative justice.18 As Vasiliev asserts, rather than making the Court a restorative

12 Muttukumaru Ch. 1 Note 282, p. 264. 13 Yael Danieli, Report of the Victims’ Rights Working Group, Rome Conference, 15 June to 17 July 1998, p. 3. 14 See Principles Guaranteeing the Rights and Interests of Victims in the Proceedings of the Proposed International Criminal Court, E/CN.15/1996/16/Add.5, 26 February 1996, cited in Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, A/51/22 (1998) p. 2; Decisions taken by the Preparatory Committee at its Session held from 4–15 August 1997, A/AC.249/1997/L.8/Rev.1 pp. 36–37; Reports of the Working Group on Procedural Matters, A/CONF.183/C.1/WGPM/L.2/ Add.7 and A/CONF.183/C.1/WGPM/L.2/Add.8, 13 and 15 July 1998. 15 A/RES/60/147; see Report on the International Seminar on Victims’ Access to the International Criminal Court, PCNICC/1999/WGRPE/INF.2. 16 Funk Ch. 1 Note 283, p. 4; A.H. Guhr, Victim Participation during the Pre-Trial Stage at the International Criminal Court, International Criminal Law Review 8(1–2) (2008) 109–142, p. 110. 17 Doak Ch. 1 Note 194, p. 221. 18 See Carsten Stahn, Hector Olásolo, and Kate Gibson, Participating of Victims in Pre-trial Proceedings of the ICC, Journal of International Criminal Justice 4(2) (2006) 219–238, pp. 220–221; Schabas Ch. 1 Note 55, p. 327.

90 Victims in the proceedings of the ICC justice forum where victims can interact with the perpetrator and collectively resolve their differences, the Court is more victim-orientated justice without replacing the core goals of prosecuting and punishing perpetrators of international crimes.19 As outlined in Chapter 1, this chapter argues that the Court can be more responsive to victims’ interests and the human rights approach of balancing rights. This can be seen in relation to the recognition of victims.

C Victim recognition As discussed in Chapter 1, a critical approach to victim recognition requires acknowledgement of the suffering of individuals and groups who are directly and indirectly harmed by international crimes. At the ICC victims are recognised on the basis of the definition in Rule 85 of the RPE: (a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes. On the face of Rule 85 it appears to reflect the harm international crimes cause to victims.20 Part (a) on ‘natural persons’ has been interpreted by the Court to include individuals and groups, replicating the individual and collective nature of their harm.21 Part (b) covers certain legal persons, i.e. organisations or institutions, due to their protected status under international humanitarian law and the Rome Statute, and the harm they suffer as a result of international crimes.22

19 Vasiliev Intro. Note 4, p. 677. 20 See Chapter 1. 21 Prosecutor v Lubanga, Decision on Victims’ Participation, ICC-01/04-01/06-1119, 18 January 2008, para. 92; see also draft Rule 85, PCNICC/1999/WGRPE/INF.2. 22 Articles 8(2)(b)(ix) and e(ix), 8(2)(b)(iii) and (e)(iii), as well as 8(2)(b)(xxiv) and (e) (ii). For instance, school headmasters: a/0188/06 (Situation in the DRC, ICC-01/04-423Corr, paras 142–143); a/0071/08 (Katanga and Chui, Public Redacted Version of the ‘Decision on the 97 Applications for Participation at the Pre-Trial Stage of the Case’, ICC01/04-01/07–579, 10 June 2008, paras 133–135); a/0270/07 (Lubanga, Decision on the Applications by Victims to Participate in the Proceedings, ICC-01/04-01/06-1556, 15 December 2008, paras 107–111). Articles 9 and 52–54, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. See Eva Dwertmann, The Reparation System of the International Criminal Court (Brill 2009), p. 96.

Victims in the proceedings of the ICC 91 The definition contains two further noteworthy elements in recognising victims: harm; and crimes within the jurisdiction of the Court. First, harm is not defined in the Rome Statute or the RPE. Instead judges interpret it on a ‘case-by-case basis’ relying on human rights law, the UN Victims’ Declaration, and the UNBPG.23 The ICC Appeals Chamber has found that harm in its ‘ordinary meaning denotes hurt, injury or damage’.24 The Court has broadly construed it to include physical, emotional, psychological, mental, economic loss, and the substantial impairment of fundamental rights.25 The Court has accepted a single instance of harm as sufficient to recognise a victim.26 During the drafting of the victim definition in Rule 85 the delegates disagreed as to the inclusion of indirect harm, owing to differing views on the word ‘family’.27 However, the Court established that harm can be both direct and indirect to a victim. This is due to the language in Rule 85(a) containing no limitations on direct or indirect harm for natural persons, in comparison to Rule 85(b) which only mentions direct harm to legal persons.28 The Court has also adopted the position of the UN Victims’ Declaration that indirect victims can suffer harm either as close family members or dependants of the direct victim, or having suffered ‘whilst intervening to help direct victims of the case or to prevent the latter from becoming victims because of the commission of these crimes’.29

23 Principles 1 and 8; Situation in DRC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6, ICC-01/04-101, 17 January 2006, para. 115; Lubanga, ICC-01/04-01/06-1119 para. 92; Prosecutor v Lubanga, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06-1432, 11 July 2008, para. 33. 24 Ibid., ICC-01/04-01/06-1432, para. 31. 25 See Situation in DRC, ICC-01/04-101 para. 81; Situation in Uganda, Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06, and a/0111/06 to a/0127/06, ICC-02/04-101, 11 August 2007; Prosecutor v Bemba, Fourth Decision on Victims’ Participation, ICC-01/05-01/08-320, 12 December 2008, para. 51; Prosecutor v Abu Garda, Public Decision on the 52 Applications the Pre-trial Stage of the Case for Participation at the Pre-trial Stage of the Case, ICC-02/05-02/09147, 9 October 2009; Decision on ‘Indirect Victims’, ICC-01/04-01/06-1813, 8 April 2009, para. 50. 26 Situation in DRC, ICC-01/04-101, para. 81; Situation in DRC, ICC-01/04-423, para. 3. 27 See Birte Timm, The Legal Position of Victims in the Rules of Procedure and Evidence, in Horst Fischer, Claus Kress, and Sascha Rolf Lüder (eds), International and National Prosecution of Crimes under International Law: Current Developments (Arno Spitz Verlag 2001) 289–308, p. 290. 28 Lubanga, ICC-01/04-01/06-1119, para. 90; affirmed in Lubanga, ICC-01/04-01/06-1432, para. 30. 29 Prosecutor v Lubanga, Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6, ICC-01/04-01/06-172-tEN, 29 June 2006, pp. 7–8; Katanga and Chui, ICC-01/04-01/07-579, 10 June 2008, para. 66; Lubanga, ICC-01/0401/06-1813, paras 49–51; adopting Principle 2, UN Victims’ Declaration.

92 Victims in the proceedings of the ICC The Appeals Chamber has observed that the personal nature of the harm is sufficient in recognising victims, rather than the degree of suffering.30 This is in contrast to the ad hoc tribunals which only recognised direct individual victims, as discussed in Chapter 2. The inclusive approach of the ICC by recognising a broader scope of victims is more in line with critical victimology, which identifies victims as those who suffer as a result of a crime, as well as human rights law and national practices.31 Second, Rule 85(a) requires victims’ harm to be the result of a crime within the Court’s jurisdiction. The jurisdiction of the ICC has three areas: temporal, territorial, and the crimes.32 The Court’s temporal jurisdiction commences from 1 July 2002 when the Rome Statute was ratified by the required 60 State Parties.33 The Court’s territorial jurisdiction is based on Article 12 for crimes occurring on the territory of any State Party of the Rome Statute or involving any national of a State Party. Finally, the crimes within the Court’s jurisdiction outlined in Article 5 of the Rome Statute are genocide, crimes against humanity, war crimes, and the crime of aggression.34 The jurisdiction of the ICC is more extensive than any previous international criminal tribunal covering some 122 State Parties, and having a temporal jurisdiction with no end date. However, the commencement of the temporal jurisdiction on 1 July 2002 is problematic, as many of the conflicts under investigation and prosecution by the ICC began decades before 2002, such as Democratic Republic of Congo and Uganda. This restricted temporal scope limits the number of victims in a conflict who can be recognised and seek justice at the ICC. This could possibly create a justice gap between those victims recognised before the Court and those who are not. Where there are gaps in the Court’s jurisdiction State Parties are obliged to complement the ICC through domestic processes. The Rome Statute expands international criminal law to include other types of suffering experienced by victims, such as: conscription and enlistment of children into an armed conflict; sexual violence including sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation; enforced disappearances; and the crime of apartheid.35 The addition of these crimes offers greater recognition of the suffering of vulnerable groups during conflicts. In the Court’s first judgment in the Lubanga case,

30 Lubanga, ICC-01/04-01/06-1432, paras 34–35 and 39. 31 See Chapter 1; Principle 2, UN Victims’ Declaration; Mina Rauschenbach and Damien Scalia, Victims and International Criminal Justice: A Vexed Question? International Review of the Red Cross 90(870) (2008) 441–459, p. 454. 32 Articles 5–8, 11–12, Rome Statute; Lubanga, ICC-01/04-01/06-1119, para. 94. 33 Article 11, Rome Statute. 34 Article 5(1). The crimes are further detailed under Articles 6–8 and the Elements of Crime. 35 Articles 7 and 8, Rome Statute.

Victims in the proceedings of the ICC 93 it extended the recognition of children conscripted, enlisted, and used in hostilities to include both those who actively participated and those in indirect support roles, such as being used as human shields or to carry loads, due to the risk and harm they faced.36 The Court also accepted the submissions of the UN Special Representative that children can ‘voluntarily’ join such groups to survive as such crimes occurs in the context of ‘poverty, ethnic rivalry and ideological motivation’, with families supporting the use of their children to protect their community due to past victimisation; this broad interpretation better reflects the lived reality of these crimes, enabling a broader recognition of these victims, rather than just those who were conscripted to fight.37 Although the Rome Statute and the Court have been progressive in the recognition of victims, there are limits to effective recognition of all victims of a conflict, discussed further below. Victim recognition at the ICC has been distinguished between situations and cases.38 A situation is defined as the temporal and territorial boundaries, such as the situation in the territory of Democratic Republic of Congo since 1 July 2002,39 whereas a case arises in a situation and involves crimes committed by a suspect within the jurisdiction of the Court, such as the Lubanga case within the situation of the Democratic Republic of Congo.40 In a situation before the ICC victims only have to evidence their harm was as a result of any crime within the Court’s jurisdiction, without having to identify a specific perpetrator.41 Thus victims in a situation can be recognised without the perpetrator being ‘identified, apprehended, prosecuted or convicted’.42 This is consistent with human rights law and procedural justice by officially recognising victims in a situation on the basis of their harm, rather than the conviction of the perpetrator. However, victims recognised in a situation have fewer opportunities to participate compared to those in a case, but can avail of protection measures.43 Furthermore, as reparations before the ICC can only be made on the conviction of a perpetrator under Article 75(2), victims in a situation cannot claim reparations. Official recognition in a situation could be important to some victims,44 but it is insufficient to deliver justice to them as delineated in Chapter 1. Victim recognition in a case is dependent on

36 Prosecutor v Lubanga, Judgment, ICC-01/04-01/06-2842, 14 March 2012, paras 624–628. 37 Ibid., para. 613, referring to the Written Submissions of Ms Coomaraswamy, ICC-01/0401/06-1229-AnxA, 18 March 2008, paras 13–14. 38 Situation in DRC, ICC-01/04-101, para. 65. 39 Ibid. 40 Ibid. 41 Ibid., para. 100. 42 Principle 2, UN Victims’ Declaration; Principle 9, UNBPG. 43 Articles 15(3), 19(3), and 68(1). 44 Letschert et al. Ch. 1 Note 143, p. 646.

94 Victims in the proceedings of the ICC the selection of charges and perpetrators by the Prosecutor, as victims have to evidence they suffered harm as a result of the crimes committed by the accused, discussed further in the next section. The Court’s definition of victims is far more comprehensive than the ad hoc tribunals by including direct and indirect victims, certain legal persons, and a greater coverage of crimes. The definition of victims is also more in line with the UN Victims’ Declaration by removing the ‘alleged’ requirement and recognising them without being dependent on the perpetrator. Yet, to participate fully and claim reparations victims need to fall within the charges and perpetrators being prosecuted before the Court. This reflects the unavoidable limits of a criminal court in recognising victims and their rights. Thus it is necessary for the crimes and perpetrators prosecuted before the Court or through accountability mechanisms by a State Party to representatively recognise the suffering caused within a conflict, as far as possible, to ensure victims’ access to justice. Consequently, while victim recognition at the ICC is victim-orientated, retribution remains a priority of the Court. The ICC cannot offer victim-centred justice and recognition to all victims of a conflict, which may require to be complemented with transitional justice mechanisms such as a truth commission. The limitations of the Court are also evident with victim participation.

D Victim participation before the International Criminal Court One of the most innovative provisions of the Rome Statute is the ability of victims to participate in proceedings before the ICC. Victim participation at the ICC reflects a growing trend in national jurisdictions and international declarations that victims have a legal standing in criminal trials in order to protect their interests.45 In civil law countries victims have a wide range of participatory rights in criminal proceedings, such as partie civile and Nebenklage. The partie civile procedure in French-speaking countries enables victims to initiate prosecutions, participate as a party in proceedings, and bring ancillary claims for damages on the prosecution’s case.46 In the German-speaking countries the Nebenklage procedure permits victims to appoint their own counsel to act as a private accessory prosecutor, who can inspect files, present their case in a trial, question witnesses, object to judges’ orders and questions, apply for evidence to be taken, and make

45 See the UN Victims’ Declaration; Council of Europe Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, Official Journal L82, 22 March 2001; UNBPG; Brienen and Hoegen Ch. 1 Note 177. 46 See Articles 52 and 706–742 of the French Criminal Code; Articles 85–91, 371–375, and 418–426 of the French Code of Criminal Procedure; Doak Ch. 1 Note 194, p. 310.

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statements. Additionally, victims in Islamic law countries have the right to prosecute privately an offender and to claim compensation.48 In some common law countries, victims can also bring private prosecutions and make impact statements during sentencing.49 As the ICC adjudicates on international crimes, which involve numerous victims, participation before it requires a unique ‘bespoke approach’ in comparison to domestic crimes.50 Therefore the Court does not adopt a specific domestic criminal practice, but contains comparable elements related to victims such as legal representatives, presenting evidence, and making statements in sentencing. Victim participation has also been incorporated into the international criminal hybrid tribunals in Cambodia and Lebanon.51 The Extraordinary Chambers in the Courts of Cambodia (ECCC) follows a more civil law approach by allowing victims to participate as civil parties and to initiate investigations, question witnesses, appeal decisions, and to bring ancillary claims for reparations.52 Article 17 of the Statute of the Special Tribunal for Lebanon adopts a similar victim participation provision to the Rome Statute’s Article 68(3).53 The inclusion of victim participation within these different international and hybrid criminal tribunals indicates its emerging normative nature in international criminal justice. Victim participation was incorporated into the Rome Statute to ensure that victims’ interests were heard before the Court, and to expand justice beyond retribution.54 During the drafting of the Statute some delegates were worried that victims would duplicate the role of the Prosecutor and undermine the rights of the defendant, or with such large numbers of

47 Sections 397 and 403–406 of the Strafprozessordnung of the German Criminal Code. 48 Hossein Esmaeili and Jeremy Gans, Islamic Law across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials, Denver Journal of International Law and Policy 28 (1999–2000) 145–174, pp. 149–150. 49 In the United Kingdom, Section 6 of the Prosecution of Offences Act 1985 governs private prosecutions; for UK and USA see Doak Ch. 1 Note 194, pp. 125–126. 50 Pena Note 9, p. 498; Prosecutor v Lubanga, Decision on the Manner of Questioning Witnesses by the Legal Representatives of Victims, ICC-01/04-01/06-2127, 16 September 2009, para. 24. 51 Article 17, Statute for the Special Tribunal for Lebanon (STL); see Brianne McGonigle, Apples and Oranges? Victim Participation Approaches at the ICC and ECCC, in Ryngaert Ch. 1 Note 299 91–116; Jérôme de Hemptinne, Challenges Raised by Victims’ Participation in the Proceedings of the Special Tribunal for Lebanon, Journal of International Criminal Justice 8(1) (2010) 165–179. 52 Rules 23bis, 55(10), 74(4), 80(2), of the ECCC Internal Rules; McGonigle ibid. 53 See also Rules 86–87 in the STL Rules of Procedure and Evidence, 8 February 2012, STL/ BD/2009/01/Rev. 4. 54 See Donat-Cattin Note 7; Haslam Ch. 1 Note 182; Gilbert Bitti and Håkan Friman, Participation of Victims in the Proceedings, in R.S. Lee Note 10 456–474, p. 456.

96 Victims in the proceedings of the ICC them would end up just being symbolic.55 Nonetheless, NGOs had a strong influence on the addition of participation in the Statute. Amnesty International believed victim participation was essential in fulfilling the Court’s core function of effectively determining responsibility, appropriate sentence, and reparations.56 The Women’s Caucus for Gender Justice considered it was ‘indicative of a broader and more evolved concept of justice’, which would be vital in the Court’s wider impact in establishing the rule of law, peace and security, and reconciliation.57 In light of Chapter 1, victim participation is important in facilitating procedural justice for victims by enabling them to present their interests and have an input into the clarification of facts and the determination of those responsible, i.e. their substantive rights to truth and justice. 1 The legal framework of victim participation Victim participation at the ICC is drawn from the Rome Statute, the Rules of Procedure and Evidence, and the Regulations of the Court.58 As in previous international criminal tribunals, victims continue to play an important functional role in providing information to the Prosecutor on crimes and testifying as witnesses at the ICC. The Court also allows victims to present their interests as participants in proceedings, discussed further below. Additionally, there are a number of support organs within the ICC Registry crucial in the operation of victim participation before the Court, namely the Victims Participation and Reparation Section (VPRS), the Victims and Witnesses Unit (VWU), and the Office of Public Counsel for Victims (OPCV). The VPRS transmits victims’ applications on participation and reparation to the Court and copies to the parties.59 The VWU is mainly tasked with ensuring protection and support measures for victims participating before the Court.60 The OPCV provides legal research and advice to participating victims, and represents victims at the Court’s

55 Håkan Friman, Participation of Victims in the ICC Criminal Proceedings and the Early Jurisprudence of the Court, in G. Sluiter and S. Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (Cameron May 2009) 205–236, p. 209. 56 Amnesty International, The International Criminal Court: Ensuring an Effective Role of Victims – Memorandum for the Paris Seminar, IOR 40/06/99, April 1999, cited in Haslam Ch. 1 Note 182, p. 325. 57 Report of Panel Discussions on Appropriate Measures for Victim Participation and Protection in the ICC, annexed statement of Ms Balikungeri, Women’s Caucus for Gender Justice (1999), cited in Haslam ibid., p. 325; see also Jorda and Hemptinne Ch. 1 Note 226, p. 1389. 58 Articles 15(3), 19(3), 68(3), and 75(3); Rules 89–92, RPE; Regulations 86–88, ICC Regulations. 59 ICC Regulation 86(9); see Regulations 97–111, Registry Regulations. 60 Rules 16–19, RPE.

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appointment. The Rome Statute delineates three distinct instances where victims have ‘specific rights’ to participate before the Court under Articles 15(3), 19(3), and 75(3),62 as well as a general right to participate in proceedings under Article 68(3).63 a Specific victim participation First of these specific rights is Article 15(3), which permits victims to make ‘representations’ to the Pre-Trial Chamber where the Prosecutor initiates an investigation proprio motu (by his own authority).64 The Prosecutor used his proprio motu power twice to commence investigations into the situations in Kenya and Côte d’Ivoire.65 Under this Article, the Pre-Trial Chamber II in the Kenyan situation ordered the VPRS to contact known victims.66 The resulting VPRS report expressed strong support for an ICC investigation by those victims it had contacted. This information was used alongside other victim representations to help the Court understand the situation in Kenya and the harm suffered by victims, so as to authorise an investigation.67 Similarly, in the Côte d’Ivoire situation, victims’ representations were used extensively by the Chamber to support the evidence presented by the Prosecutor and to commence an investigation.68 Second, under Article 19(3) victims can submit their observations to the ICC for decisions relating to the Court’s jurisdiction or the admissibility of a case.69 In the Ugandan case of Kony et al. the participation of victims under Article 19(3) provided an important opportunity for their

61 62 63 64 65

66

67

68 69

Regulations 80 and 81, ICC Regulations. ICC-01/04-101, para. 62. Under Rule 93 the Court can seek the views of victims on any issue. See also Rule 50 RPE. Situation in the Republic of Kenya, Request for Authorisation of an Investigation Pursuant to Article 15, ICC-01/09-3, 26 November 2009; Situation in Republic of Côte d’Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, ICC-02/11-14, 3 October 2011. Situation in the Republic of Kenya, Order to the Victims Participation and Reparations Section Concerning Victims’ Representations Pursuant to Article 15(3) of the Statute, ICC-01/09-4, 10 December 2009; Situation in the Republic of Kenya, Public Redacted Version of Corrigendum to the Report on Victims’ Representations (ICC-01/09-17-Conf-ExpCorr), ICC-01/09-17-Corr-Red, 29 March 2010. Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC01/09-19, 31 March 2010. Situation in Republic of Côte d’Ivoire, ICC-02/11-14. See Rule 59; Situation in Uganda in the Case of the Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen, Decision Initiating Proceedings under Article 19, Requesting Observations and Appointing Counsel for the Defence, ICC-02/04-01/05-320, 21 October 2008; see also Situation in Uganda, ICC-02/04-101, paras 93–94.

98 Victims in the proceedings of the ICC views to be heard and documented.70 Third, under Article 75(3) in relation to reparation proceedings, the Court can ‘invite’ and ‘shall take account of representations’ from victims with a right to appeal any reparation decision under Article 82(4) which ‘adversely affects’ the victim.71 The purpose of these three specific articles was to ensure victims had an input into important decisions which affect their interests.72 b General victim participation The main overarching provision for victims to participate in the majority of proceedings is Article 68(3): Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate. This Article emulates Principle 6(b) of the UN Victims’ Declaration. The difficulty with incorporating the Declaration into the Rome Statute is that the principles are declaratory in nature rather than legally binding, leaving them open for states to determine their operation.73 As a result, the language of Article 68(3) does not stipulate the modalities of victim participation. The drafters of the Rome Statute intended that the Court’s procedural rules would give effect to the Declaration, but judges would have discretion as to what role victims should have in proceedings.74 The first ten years of the Court’s operation have seen extensive litigation in the development of victim participation in proceedings through judicial interpretation. The judges relying on Article 21, on applicable law, have interpreted Article 68(3) in light of other provisions within the Statute, Rules, and Regulations, as well as the jurisprudence of human rights and domestic courts to adapt it to the framework of the Court. It is this judicial interpretation which has provided the flesh and life to the skeletal

70 Prosecutor v Kony, Otti, Odhiambo, and Ongwen, Judgment on the Appeal of the Defence against the ‘Decision on the Admissibility of the Case under Article 19 (1) of the Statute’ of 10 March 2009, ICC-02/04-01/05-408, 16 September 2009; see Chapter 5. 71 See Chapter 4. 72 Silvia A. Fernández de Gurmendi, The Role of the International Prosecutor, in R.S. Lee Note 10 175–188, p. 184. 73 Vasiliev, Intro. Note 4, pp. 652–653; Chung Note 1, pp. 516–517. 74 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. II (A/51/22), p. 204.

Victims in the proceedings of the ICC 99 language of the Rome Statute on victims, but can result in different outcomes depending on the judges’ view, discussed further below. As there are potentially millions of victims within the jurisdiction of the ICC, they cannot all personally participate in the Court’s proceedings; instead participation is carried out through victims’ legal representatives (VLRs).75 VLRs are meant to facilitate the communication of victims’ interests to the ICC, so that it can tailor proceedings, measures, and, more generally, justice to their needs.76 Victims may not be able to articulate their case or draw from relevant jurisprudence or knowledge to effectively communicate their interests to the Court, emphasising the importance of representation.77 A victim applies to the ICC to participate through a seven page application form, the Court then determines the veracity of their identity and link to a crime within the jurisdiction of the case, before assigning them to a legal representative of their choice.78 The judges then determine whether victims can participate based on the requirements of Article 68(3). The judges have been sensitive to how the rules have impacted upon victims and have reduced the legalistic and complicated application form from 17 pages to seven and in the Ntaganda case to a one page application.79 However issues remain with the forms being in the standard languages of the Court of French and English, which require intermediaries to translate the forms in the victims’ local language.80 The judges have relied on a broad category of evidence to satisfy documentation of victims’ identity and harm, reflecting the reality that in conflict official documentation can be destroyed or unobtainable.81 There is a danger of falsification of such evidence, allowing individuals to fraudulently claim they are victims to influence proceedings or to claim reparations, thus scrutiny of applications is required. Together these issues reflect the responsiveness of the judges to some of the challenges facing victims. However there remain a number of hurdles for victims, which act as a funnel, reducing numerous victims of a conflict to those most relevant to the case and charges before the Court, to be represented by a single legal representative, which raises questions as to whether such victim participation is effective and 75 Article 68(3), and Rules 90–92; Chung Note 1, p. 525. 76 McGonigle Ch. 1 Note 30, p. 359. 77 For instance see Bemba, ICC-01/05-01/08-T-227-Red-ENG, 25 June 2012, p. 29. The effectiveness of VLRs in representing the case of hundreds and thousands of victims is discussed further below. 78 Rule 89, RPE; Regulation 86, ICC Regulations. 79 Prosecutor v Bosco Ntaganda, Decision Establishing Principles on the Victims’ Application Process, ICC-01/04-02/06-67, 28 May 2013, paras 17–25. 80 See Independent Panel of Experts Report on Victim Participation at the International Criminal Court, July 2013. 81 Lubanga, ICC-01/04-01/06-1119, 18 January 2008, para. 87; Decision on Victim’s Application for Participation, ICC-02/04-01/05-282, 14 March 2008, paras 5–6.

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meaningful within the limited structures and resources of the ICC, discussed further below. VLRs are able to participate in proceedings before the Court where victims’ personal interests are affected.82 The Court, adopting the jurisprudence of the regional human rights courts, has found that victims’ interests are affected in criminal proceedings against the accused owing to their rights to truth and justice.83 In order to present victims’ ‘views and concerns’ the Court has established that VLRs can participate in proceedings through eight different modalities: to attend hearings; make oral motions, responses, and submissions; file written submissions; access evidence; ask questions; submit evidence; call witnesses; and to be notified.84 These modalities are discretionary owing to the protection of other interests before the Court, such as the rights of the defendant, meaning that victims do not automatically have the right to participate. The proceedings of the Court are distinguishable from previous tribunals, because of the physical presence of VLRs voicing victims’ views and concerns. For instance, in the Lubanga case, the VLRs at the beginning of the trial discussed the charges against the accused, as well as the expectations and experiences of the victims they represented.85 Nevertheless, the interpretation and practice of victim participation gives rise to a number of challenges as to the extent to which the Court can be responsive to victims’ needs. 2 Challenges to incorporating victim participation into proceedings As discussed in Chapter 1, the ICC is not victim-centred justice, as there are other interested parties before the Court, such as the prosecution and the defence. Instead, victim-orientated justice is the responsiveness of the Court to victims’ needs while reaching a fair balance with other interests where they conflict, thereby adopting procedural justice outlined in Chapter 1. The Rome Statute and the RPE give the impression that the

82 Article 68(3). 83 Prosecutor v Katanga and Chui, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC-01/04-01/07-474, 13 May 2008, paras 31–44; Prosecutor v Bemba, Fourth Decision on Victims’ Participation, ICC01/05-01/08-320, 12 December 2008; Prosecutor v Abu Garda, Decision on the 34 Applications for Participation at the Pre-Trial Stage of the Case, ICC-02/05-02/09-121, 29 September 2009, para. 3; Prosecutor v Al Bashir, Decision on Applications a/0011/06 to a/0013/06, a/0015/06, and a/0443/09 to a/0450/09 for Participation in the Proceedings at the Pre-Trial Stage of the Case, ICC-02/05-01/09-62, 15 December 2009, paras 4–5. 84 Rules 91–92 and 144; see Lubanga, ICC-01/04-01/06-1119; Katanga and Chui, ICC-01/0401/07-474; Katanga and Chui, Decision on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-1788, 22 January 2010; Bemba, ICC-01/05-01/08-320. 85 See Prosecutor v Lubanga, ICC-01/04-01/06-T-107-ENG, 26 January 2009.

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Court could provide victim-orientated justice by Article 68(3) and procedural modalities outlined above. However, there remain three areas of concern – the rights of the defendant, collective participation, and determining outcomes – which highlight the difficulty of the Court being responsive to victims’ needs and achieving a fair balance. a Rights of the defendant Article 68(3) stipulates that victims are only permitted to participate before the Court if it is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial. For some commentators and judges, victim participation has been the most contentious issue in relation to the rights of the defendant.86 Chapter 2 outlined the exclusion of victim participation at previous tribunals on this basis.87 This was on account of adopting adversarial trial proceedings from common law jurisdictions, which prohibited victims from participating, owing to fears they would undermine the ‘equality of arms’ between the two parties. The ICC utilises mixed criminal proceedings between common and civil law practices by including victim participation, the independence of the Prosecutor, and protection of the rights of the defendant.88 Where victims’ and defendants’ rights do conflict the ICC needs to reach a fair balance between them in order to ensure justice, as outlined in Chapter 1. Concerns over violations of the rights of the defendant by the participation of victims have been expressed by Judge Pikis at the ICC who viewed their role as a ‘highly qualified participation limited to the voicing of their views and concerns’.89 Judge Pikis asserted that the fairness of the trial rests in the equality of arms where the Prosecutor has the burden of proof to prove the guilt of the accused, which the defence rebuts. For Judge Pikis, the participation of victims risks them undermining the equality of arms by becoming second accusers, thereby taking more of a ‘defence side’ to the discussion of victim participation.90 Instead the majority of judges have qualified the participation of victims in light of defendants’ rights, rather than limiting them to a symbolic function as suggested by

86 87 88 89

See Jouet Intro. Note 10; and Judge Pikis discussed subsequently. See also Jorda and de Hemptinne Ch. 1 Note 226, pp. 1389–1392. McGonigle Ch. 1 Note 30, p. 227. Separate opinion in Prosecutor v Lubanga, Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007, ICC-01/04-01/06-925, 13 June 2007, para. 15 quoted in his separate opinion in Lubanga, ICC-01/04-01/06-1432Anx, paras 6 and 15. 90 Lubanga, ICC-01/04-01/06-925 para. 19; Schabas Ch. 1 Note 55, p. 324; see also Separate Opinions of Judge Pikis and Judge Kirsch in Lubanga, ICC-01/04-01/06-1432, paras 23–28.

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Judge Pikis. The majority have differentiated victims from the prosecution and the defence by calling them ‘participants’ rather than parties, indicating their reduced status.91 Two issues arise here which emphasise the delicate balance the Court tries to achieve between the rights of victims and defendants: victims presenting evidence and anonymous participation. 1 V I CTI M S ’ P RE SEN TATION OF EV IDEN C E

Presenting evidence affords victims a means to bring to light materials and perspectives that are important to their interests in truth and justice. The Court has recognised that victims can present evidence as part of their participatory role, though it has restricted this by finding that leading and presenting evidence will be primarily by the prosecution and the defence.92 The drafters of the Rome Statute envisaged that victim participation would be necessarily evidential as they would: ‘have the right to participate in the proceedings with a view to presenting additional evidence needed to establish the basis of criminal responsibility as a foundation for their right to pursue civil compensation’.93 This position neglects victims’ interest in presenting evidence as part of their rights to truth and justice, but it does acknowledge their ability to submit evidence on the culpability of the accused. However, the Court has taken different approaches. At one end of the spectrum, Judge Pikis has asserted that victims have no role in presenting evidence,94 whereas at the other end, Trial Chamber III has allowed victims to present evidence on the responsibility of the accused. The general approach by Court has been to enable victims to present evidence through three participation modalities of: (1) submitting evidence; (2) asking questions; and (3) calling witnesses. These modalities do not appear in the Statute, RPE, or Regulations, but are based on Article 69(3) of the Rome Statute, which enables the Court to request all relevant ‘evidence that it considers necessary for the determination of the truth’. This indicates that victims’ role is to aid the Court in the clarification of facts rather than determination of the responsibility of the accused. Nevertheless, the Court has held in the Kenyan cases that the defendant has to be present for victims’ questions and statements, emphasising that

91 Bemba, ICC-01/05-01/08-320 para. 20; Lubanga, ICC-01/04-01/06-2127, para. 24. 92 Lubanga, ICC-01/04-01/06-1432, para. 93; Decision on the Participation of Victims in the Trial and on 86 Applications by Victims to Participate in the Proceedings, ICC-01/0501/08-807-Corr, 19 July 2010, para. 31; Prosecutor v Katanga, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 ‘Decision on the Modalities of Victim Participation at Trial’, ICC-01/04-01/07-2288, 16 July 2010, para. 39. 93 Draft Article 43(8), Decisions taken by the Preparatory Committee at its Session held from 4–15 August 1997, A/AC.249/1997/L.8/Rev.1, pp. 36–37. 94 Lubanga, ICC-01/04-01/06-1432, para. 15; Prosecutor v Lubanga, Decision on the Participation of Victims in the Appeal, ICC-01/04-01/06-1453, 6 August 2008, para. 9.

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defendants’ attendance during victims’ presentation of evidence requires the cooperation of the accused to make it meaningful, suggesting a more restorative function of victim participation beyond clarifying the truth.95 On the first modality on submitting evidence the Court has recognised that VLRs can submit incriminating evidence on the defendant’s guilt as long as it satisfies three admissibility criteria, namely (1) relevant material, (2) probative value, and (3) probative value outweighs its prejudicial effect.96 Allowing VLRs to submit evidence can present an opportunity to highlight facts that the prosecution or the defence have overlooked or neglected.97 However, on the two occasions where evidence was submitted by the VLRs, the judges rejected their submissions as they repeated evidence already before the Court or it lacked probative value.98 Submitting evidence has so far not engendered a conflict between the rights of the victims and the defendant, but the Court retains very strict control of the ability VLRs to do so. The other two modalities of questioning and calling witnesses have been more contentious and required a more delicate balancing of rights by the Court. With regards to VLRs questioning witnesses, the Court has established that in order to achieve a balance between the rights of the victims and the defendant a number of criteria must be adhered to: questions must be neutral in nature (i.e. they must not be a cross-examination or ‘combative’); relevant to victims’ personal interests; and not be leading or closed questions.99 The Court has emphasised that VLRs are not auxiliary prosecutors to prove the guilt or innocence of the accused as in civil law countries, but rather assistants to help the judges determine the truth, therefore having a more neutral role.100 VLRs in the Lubanga and the

95 See Prosecutor v William Samoei Ruto and Joshua Arap Sang, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013. 96 Rule 91(3)(a); Lubanga, ICC-01/04-01/06-1119, paras 108–109; Lubanga, ICC-01/0401/06-1432, para. 104; Lubanga, ICC-01/04-01/06-2135, paras 21–22; Katanga and Chui, ICC-01/04-01/07-1788, paras 81–85; Bemba, ICC-01/05-01/08-807-Corr, paras 30–32. 97 Prosecutor v Katanga and Chui, Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, ICC-01/04-01/07-1665, 20 November 2009, para. 82; Katanga and Chui, ICC-01/04-01/07-1788, paras 102–103. 98 See Prosecutor v Lubanga, Decision on the Request by the Legal Representative of Victims a/0001/06, a/0002/06, a/0003/06, a/0049/06, a/0007/08, a/0149/08, a/0155/07, a/0156/07, a/0404/08, a/0405/08, a/0406/08, a/0407/08, a/0409/08, a0149/07, and a/0162/07 for Admission of the Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo as Evidence, ICC-01/04-01/06-2135, 22 September 2009; Prosecutor v Katanga and Chui, Décision relative à trois requêtes tendant à la production d’éléments de preuve supplémentaires, ICC-01/04-01/07-3217-Conf, ICC-01/04-01/07-3217-Red, 4 January 2012. 99 Lubanga, ICC-01/04-01/06-2127, paras 28–30; Katanga and Chui, ICC-01/04-01/07-1665, paras 82 and 90–91; Katanga and Chui, ICC-01/04-01/07-1788, paras 72–75; Bemba, ICC01/05-01/08-807-Corr, paras 30–32; Katanga and Chui, ICC-01/04-01/07-474, para. 135. 100 Lubanga, ICC-01/04-01/06-2127, paras 28–29.

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Katanga and Chui cases, for instance, focused their questions on highlighting the suffering of victims, the context of victimisation, and continuing hardship victims continue to face.101 Different Chambers of the Court have taken diverging approaches in balancing victims’ and defendants’ rights with regards to questions asked by VLRs. Trial Chamber II in the Katanga and Chui case has followed a more restrictive approach to questioning by limiting VLRs to factual points, so as to preserve the equality of arms between the prosecution and the defence.102 Trial Chamber II’s strict adherence to this approach can be seen where a VLR asked a witness on a meeting with Katanga whether he had any children as bodyguards with him? This was objected to by the defence as it was linked to the responsibility of the accused, and was instead modified into a more neutral question by the judges.103 Accordingly, the victims’ role was to voice their experiences and emotions on the harm they have suffered rather than presenting evidence on their interests in truth and justice.104 This is in contrast to Trial Chambers I and III which have allowed VLRs to question witnesses on factual and legal points that at times have been linked to the responsibility of the accused.105 Trial Chamber III in the Bemba case has taken this further, with the judges declaring that, the interests of victims are not limited to the physical commission of the alleged crimes under consideration. Rather, their interests extend to the question of the person or persons who should be held liable for those crimes, whether physical perpetrators or others. In this respect, victims have a general interest in the proceedings and in their outcome. As such, they have an interest in making sure that all pertinent questions are put to witnesses.106 In the trial the VLR’s questions to a witness concentrated on the responsibility of the defendant by asking him about Bemba’s role in the chain of command and whether he was informed of the commission of crimes.107

101 For instance, Lubanga, ICC-01/04-01/06-T-39-ENG, 21 November 2006, pp. 95 and 141; see McGonigle Ch. 1 Note 30, p. 318. 102 Katanga and Chui, ICC-01/04-01/07-1665, paras 90–91; Katanga and Chui, ICC-01/0401/07-2288, para. 112. 103 Katanga and Chui, ICC-01/04-01/07-T-141-Red-ENG, 14 May 2010, pp. 28–34; see McGonigle Ch. 1 Note 30, p. 300. 104 McGonigle ibid., p. 300. 105 See ibid., pp. 298–300. 106 Prosecutor v Bemba, Decision (i) Ruling on Legal Representatives’ Applications to Question Witness 33 and (ii) Setting a Schedule for the Filing of Submissions in Relation to Future Applications to Question Witnesses, ICC-01/05-01/08-1729, 9 September 2011, para. 15. 107 Bemba, ICC-01/05-01/08-T-160-Red-ENG, 13 September 2011.

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This approach is consistent with a victim-orientated justice, which recognises victims’ interests in truth and justice, as well as their independent perspective from the prosecution. McGonigle contends that questioning by VLRs at the ICC can have a negative impact on the prosecution and the defence, as it is repetitive, disproves a point, or addresses the guilt of the accused.108 Furthermore she argues that in order to protect the equality of arms and the rights of the defendant, victims should be prevented from presenting evidence on the culpability of the accused.109 However, McGonigle’s and Trial Chamber II’s interpretation inhibits victims from presenting their interests in truth and justice. Nor does it reach a fair balance between the interests of victims and the defendant. The European Court of Human Rights has recognised that victims do not necessarily infringe the equality of arms as they ‘cannot be regarded as either the opponent – or for that matter necessarily the ally – of the prosecution, their roles and objectives being clearly different’.110 The ICC has also adopted such a position by stating that victim participation is supposed to provide victims with an independent voice, which is consistent with the intention of the drafters to ensure justice for victims.111 Therefore the Court’s position that victims are to remain neutral is incorrect as they have an interest in determining the culpability of the accused. Instead, it is the judges who have to be neutral and balance the interests before them. On the final evidential modality, the Court can call a witness or victim on the VLRs’ behalf on the condition that it will provide ‘important information’ and a ‘genuine contribution to the ascertainment of the truth’ which the other parties have not addressed.112 Trial Chamber II has also set out some criteria for evaluating the VLRs’ applications for victims to testify, namely: has the matter already been addressed by the prosecution so as to avoid repetitions; is it closely related to the charges; is it typical of the experiences of a larger group of victims or is the victim uniquely apt to give evidence; and will it bring to light new information to the Chamber?113

108 109 110 111

McGonigle Ch. 1 Note 30, pp. 319–320. Ibid., pp. 334–335. Berger v France, App. no. 48221/99 (ECtHR, 21 May 2003), para. 38. Situation in DRC, ICC-01/04-101, para. 51; Prosecutor v Bemba, Partly Dissenting Opinion of Judge Sylvia Steiner on the Decision on the Supplemented Applications by the Legal Representatives of Victims to Present Evidence and the Views and Concerns of Victims, ICC-01/05-01/08-2138, ICC-01/05-01/08-2140, 23 February 2012, para. 25. 112 In accordance with Articles 64(4)(d) and 69(3); Katanga and Chui, ICC-01/04-01/071665, paras 45–48. 113 Ibid., para. 30.

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As of December 2013, the Court has called ten victims to testify based on requests by their VLRs.114 In Lubanga and Katanga and Chui cases the Court required victims to testify under oath so that their testimony would be used as evidence, giving them the status of witnesses. These victims were allowed to discuss at length their victimisation, other crimes which occurred, and the responsibility of the accused.115 The Court has found victims personally voicing their views and concerns should ideally be made through their legal representatives, in order to protect the defendant who can only cross-examine witnesses.116 In the Lubanga case, Trial Chamber I decided that the purpose of victims presenting their views and concerns was not part of the evidence, but to provide the judges with a contextual understanding of the facts before the Court.117 This approach exhibits the Court’s use of victims to further its determination of the truth. In the Bemba case Trial Chamber III allowed three victims to express their views and concerns through live video link, on the basis of their harm being representative of a larger group of victims before the Court.118 The issue arose of whether the defendant’s rights were being violated during the victims’ presentations, as they were discussing incriminating evidence about the accused, who was unable to cross-examine them.119 On this basis the defence and prosecution objected to the Chamber. However, the judges disagreed with them on the grounds that victims needed to narrate in their own words the factual background to the charges which their views and concerns arose from. In addition, it would be impossible for victims, particularly those who suffer from sexual violence, to be able to present their views and concerns in an abstract general way devoid of the facts and their lived experience of what occurred.120 Furthermore, the judges stated that victims’ views and concerns would not form part of their final determination of evidence, despite the victims’ testimony referring to

114 Three victims have testified in the Lubanga case, two in the Katanga and Chui case, and five in the Bemba case; see Prosecutor v Bemba, Decision on the Supplemented Applications by the Legal Representatives of Victims to Present Evidence and the Views and Concerns of Victims, ICC-01/05-01/08-2138, 22 February 2012. 115 Lubanga, ICC-01/04-01/06-T-225-RED, p. 31; see McGonigle Ch. 1 Note 30, pp. 321–325. 116 Article 67(1)(e); Prosecutor v Lubanga, Order Issuing Public Redacted Version of the ‘Decision on the Request by Victims a/0225/06, a/0229/06 and a/0270/07 to Express their Views and Concerns in Person and to Present Evidence during the Trial’, ICC01/04-01/06-2032-Anx, 9 July 2009, paras 25–26; Katanga and Chui, ICC-01/04-01/071788tENG, paras 86–89; see McGonigle Ch. 1 Note 30, pp. 321–325. 117 Ibid., ICC-01/04-01/06-2032-Anx, para. 25. 118 Bemba, ICC-01/05-01/08-2138, paras 39–51; Victims a/0542/08, a/0394/08, and a/0511/08; see Prosecutor v Bemba, Transcripts 25–26 July 2012, ICC-01/05-01/08-T-227Red-ENG and ICC-01/05-01/08-T-228-Red-ENG. 119 Bemba, ICC-01/05-01/08-T-227-Red-ENG, 25 July 2012, pp. 16–18. 120 Steiner Note 111, pp. 21–22.

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Bemba and crimes committed by his militia. In contrast to the other Chambers, this decision is more in the interests of victims by respecting their perspective and agency to shape their testimony. Nevertheless, Judge Steiner in Trial Chamber III dissented on the decision of allowing victims to present their views and concerns before the Court. She declared that, ‘meaningful participation . . . implies that victims have an independent voice in the trials, a “right to be heard” which . . . constitutes one of the most significant features of the proceedings before the International Criminal Court’.122 She found that the criteria (of ‘important information’ and making a ‘genuine contribution to the ascertainment of the truth’) ‘unreasonably restrict the rights recognised for victims by the drafters of the Statute’.123 Judge Steiner argued that such an approach lacked any legal basis, but was founded on ‘hypothetical’ risks of unduly delaying the trial and violating the rights of the defendant.124 She also criticised the majority’s approach of being utilitarian by amalgamating victims’ views rather than trying to ensure a more representative sample to present their distinct interests, as the VLRs had proposed eight victims, but the Court had only granted three. Instead the criteria should have been based on ‘(i) relevance; (ii) probative value; and (iii) the potential prejudice to the accused’.125 Accordingly, Judge Steiner believed that the five additional victims requested by the VLRs should have been allowed to present their views and concerns. This was due to them meeting the three criteria, as well as being able to provide insightful information on the crimes committed by Bemba’s militia and the harm caused to victims. Although allowing more victims to testify would require a few days more of the trial, amounting to 18 days, this was diminutive considering the prosecution had taken 177 days. Additionally, bearing in mind the number of victims was then 2,287,126 it would still be a smaller percentage than those who testified in the Lubanga case, i.e. three out of 129.127 Therefore the criteria used by the Court to reach a fair balance between victims and defendants was inadequate as this failed to sufficiently consider victims’ needs. Instead, Judge Steiner’s approach is consistent with victim-orientated justice as it respects that victims’ plural interests are fundamental in the determination of justice.

121 122 123 124 125

Ibid., pp. 19–22. Bemba, ICC-01/05-01/08-2140, para. 25. Ibid., para. 11. Ibid., para. 25. Ibid., para. 26 citing Prosecutor v Bemba, Public Redacted Version of the First Decision on the Prosecution and Defence Requests for the Admission of Evidence, ICC-01/05-01/082012-Red, 9 February 2012, paras 12–16. 126 ICC-01/05-01/08-2140, para. 49. 127 Ibid., para. 21.

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That said the testimony of the three victims called before the Court in the Bemba case reveals their expectations from the ICC and the judges’ approach to them.128 The first victim spoke about Bemba forces looting her property, threatening and raping her, with serious medical and social consequences, as her husband left her and she continues to suffer from chronic medical problems and stigma within her community. The second victim spoke about being threatened with death by Bemba’s militia who also looted his property and farm, leaving him to struggle to provide food for his children. The third victim spoke about being left disabled after Bemba troops shot up his bar killing his mother and wounding his leg, which was later amputated leaving him in poverty, despite having being involved in a number of income-generating enterprises. Although the victims expressed satisfaction and some form of relief testifying before the Court, this was only upon questioning by the judges. An area of concern of such testimony was the victims’ unmitigated expectations of the ICC, with one speaking about obtaining funds from the Trust Fund for Victims (TFV) and another looking for a new artificial leg. These expectations were not qualified by the judges, who should have explained the likelihood of victims obtaining reparations or assistance from the TFV to mitigate their hopes being dashed. Although such testimony gives a more ‘human perspective’129 to the lived reality of such crimes, its worth to victims and the Court is questionable in voicing their views and concerns, determining the truth, or bringing the ICC closer to those most affected. Accordingly victims should be given a broad basis to present evidence on their interests, but their expectations should be carefully managed by the Court. 2 AN O NY M O U S PARTIC IPATION

Anonymity involves the identity of victims being withheld from the public and the defendant, so as to prevent them from suffering further victimisation. However, anonymity can prevent an accused from challenging the veracity of an individual’s identity and statements.130 In reaching a fair balance between victims and defendants’ rights Pre-Trial Chamber I, as well as Trial Chambers I–III have all stated that victims who participate anonymously will be limited to making opening and closing statements,

128 Victims A/0394/08, A/0511/08, and A/0542/08, ICC-01/05-01/08-T-227-Red-ENG and ICC-01/05-01/08-T-228-Red-ENG, 25–26 June 2012. 129 Stahn et al. Note 18, p. 221. 130 See John R.W.D. Jones, Protection of Victims and Witnesses, in Cassese et al. Intro. Note 8 1355–1370, p. 1365.

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accessing public documents, and participation in public hearings. Trial Chamber I found that while there is a need to protect the accused from anonymous accusation, victim participation would be undermined if they had to give up their protection of anonymity in order to participate.132 Accordingly, ‘[t]he greater the extent and the significance of the proposed participation, the more likely it will be that the Chamber will require the victim to identify himself or herself ’.133 As an additional safeguard, the Chamber emphasised that it will always know the identity of the victim and will be in the best position to judge the extent of his/her participation.134 In contrast, Pre-Trial Chamber III found that there is no distinction in the way in which anonymous and non-anonymous victims can participate.135 This decision is more in line with ensuring justice for victims by taking the reasoning of Trial Chamber I further, i.e. acknowledging that to force victims to choose between protection and participation undermines their autonomy and threatens their safety.136 This approach is also consistent with human rights jurisprudence which recognises the obligations on states to guarantee the protection and participation of victims in criminal proceedings, as well as judicial oversight to protect the defendant’s rights.137 The current approach adopted recently by the Appeals Chamber in the Katanga case found that victims could participate anonymously if it did not involve their direct participation at hearings or individual observations, through a balancing exercise between rights, affirming the former position adopted by the majority of the Chambers.138 Yet, the Court is obliged to protect victims under Article 68(1) with no qualification on victim participation under Article 68(3), or vice versa. Nevertheless, the distinction in participatory rights between anonymous and

131 Prosecutor v Lubanga, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06, and a/0003/06 at the Confirmation Hearing, ICC-01/04-01/06462, 22 September 2006, pp. 6–7; Lubanga, ICC-01/04-01/06-1119, paras 130–131; Prosecutor v Lubanga, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/061191, 26 February 2008, para. 36; Katanga and Chui, ICC-01/04-01/07-474, para. 184; Bemba, ICC-01/05-01/08-807, paras 61–69. 132 Lubanga, ICC-01/04-01/06-1119, para. 130; Lubanga, ICC-01/04-01/06-1191, para. 36; Katanga and Chui, ICC-01/04-01/07-474, para. 182. 133 Lubanga, ICC-01/04-01/06-1119, para. 131. 134 Ibid. 135 Bemba, ICC-01/05-01/08-320, para. 99. 136 Ibid. 137 Myrna Mack-Chang v Guatemala, Merits, Reparations and Costs, Series C No. 101 (IACtHR, 25 November 2003), para. 199; Case of Plan de Sánchez Massacre, para. 94; Doorson v the Netherlands, para. 70. 138 Prosecutor v Germain Katanga, Decision on the Participation of Anonymous Victims in the Appeal and on the Maintenance of Deceased Victims on the List of Participating Victims, ICC-01/04-02/12-140, 23 September 2013, para. 19.

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non-anonymous victims makes no difference in practice, as they are commonly represented by the same legal representatives.139 b Collective participation One of the difficulties with victims participating before the ICC is the mass victimisation involved in international crimes. This is exacerbated by the concentration on those most responsible for international crimes at the Court, i.e. the authors and commanders in charge of the thousands of perpetrators who committed crimes against numerous victims. Thus international criminal justice is necessarily asymmetrical justice. By way of example, in the Bemba case alone there are 4,898 victims participating before the Court on the responsibility of a single individual.140 Victims are unique individuals who are unlikely to speak with one voice, but to allow thousands of individuals to participate personally in a criminal trial would be unworkable.141 The Court has reconciled these conflicting requirements by organising victims into groups based on their common interests and representation by a single VLR.142 The ICC has found that individuals will only participate personally in exceptional and limited circumstances.143 This is in line with the travaux préparatoires of the Court which only included victim participation through legal representation.144 The Regulations of the Court stipulate that a Chamber must ensure VLRs consider the ‘views of the victims, and the need to respect local traditions and to assist specific groups of victims’.145 The Court has been careful to guarantee effective communication between VLRs and victims by requiring counsel to come from the victims’ area and to speak the same

139 McGonigle Ch. 1 Note 30, p. 285. 140 Prosecutor v Bemba, Decision on 799 Applications by Victims to Participate in the Proceedings, ICC-01/-05-01/08-2401, 5 November 2012. 141 Prosecutor v Gbagbo, Redress Trust Observations to Pre-Trial Chamber I of the International Criminal Court Pursuant to Rule 103 of the Rules of Procedure and Evidence, ICC-02/11-01/11-62, 16 March 2012. 142 Lubanga, ICC-01/04-01/06-1119, paras 115–116; Prosecutor v Katanga and Chui, Order on the Organisation of Common Legal Representation of Victims, ICC-01/04-01/07-1328, 22 July 2009, para. 11. 143 Prosecutor v Kony et al., Decision on Legal Representation, Appointment of Counsel for the Defence, Protective Measures and Time-limit for Submission of Observations on Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06, and a/0111/06 to a/0127/06, ICC-02/04-01/05-134, 1 February 2007, para. 6; Rule 90(2); Victims can also be provided with financial assistance if they cannot afford legal representation, Rule 90(5). 144 Draft article 43(8), Decisions taken by the Preparatory Committee at its Session held from 4–15 August 1997, A/AC.249/1997/L.8/Rev.1, pp. 36–37. 145 Regulation 79(2).

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language. Additionally, the Court has established support teams in The Hague and the field to ‘facilitate regular exchanges’ between victims and their VLRs.147 The ICC Registry also notifies victims, and conducts outreach to affected communities to inform them of the work and progress of the Court as well as their ability to participate in proceedings.148 The Court has acknowledged that without notification victims’ rights would ‘remain little more than a theoretical exercise’.149 In all, these measures are consistent with human rights law and ensuring procedural justice for victims by ensuring effective representation of their interests through communication, consultation, and information with their VLRs.150 The Chambers have facilitated victim participation through groups or collective applications; however with this collective organisation it is questionable whether victims’ interests are effectively represented before the Court. 1 G R O U P P ARTI C IPATION

As the Court has become more organised and knowledgeable about the victim participation regime it has reduced the number of VLRs, provided there is no vast difference in interests among those they represent. By way of example in the Lubanga trial, seven VLRs in two teams participated on behalf of 129 victims, whereas in the Bemba case, two VLRs and one member of the OPCV represented 4,898 victims.151 In the case of Katanga and Chui, Trial Chamber II split the common legal representation between those victims who were former child soldiers and the larger group of those who had been attacked by the militias in Bogoro on 24 February 2003.152 Where a conflict in interests arises between victims under one VLR, the Court can split the group and order the OPCV to represent the separate group of victims.153 2 CO L L E CTI V E APPLIC ATION S

Victim participation has been further collectivised by Pre-Trial Chamber III (PTC-III) in the Prosecutor v Laurent Gbagbo case. The Registry proposed

146 Katanga and Chui, ICC-01/04-01/07-1328, para. 15; Prosecutor v Bemba, Decision on Common Legal Representation of Victims for the Purpose of Trial, ICC-01/05-01/081005, 10 November 2010, para. 10. 147 Ibid., ICC-01/04-01/07-1328, para. 17; ibid., ICC-01/05-01/08-1005, paras 24–27. 148 See ICC Outreach Reports 2007–2010, Public Information and Documentation Section, Outreach Unit. 149 Situation in Uganda, ICC-02/04-101, para. 164. 150 Principle 2, UN Victims’ Declaration; Principle 24, UNBPG; Güleç v Turkey, para. 82; Mapiripán Massacre, para. 219. 151 Prosecutor v Bemba, Decision on 799 Applications by Victims to Participate in the Proceedings, ICC-01/-05-01/08-2401, 5 November 2012. 152 Katanga and Chui, ICC-01/04-01/07-1328, para. 12. 153 Ibid., ICC-01/04-01/07-1328, para. 16.

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collective victim applications through a group application form with participation to be facilitated by an individual victim representative.154 In turn they would be represented by a single VLR. An amicus curiae report made by the Redress Trust discussed the practice of collective participation in light of other mechanisms, including the strength of victims being together, but noted the risk of tensions within a group, underrepresentation of gender and vulnerable groups, and that they do not usually speak with one voice.155 The OPCV also warned of the dangers of collective participation, such as the dominance of certain victims’ views, the loss of individuals’ voices, the creation of further complexity, and if not properly regulated the causing of secondary victimisation.156 Moreover, introducing new levels of representations risks an additional person misrepresenting the interests of victims. Single Judge Fernández de Gurmendi in PTC-III maintained that collective application and participation would still protect victims’ heterogeneous views and ensure individual claims for reparations.157 However, the Registry has itself after a year of this practice noted that the system in reality is a partly collective system and adopted a flexible approach as, it is not always be feasible or advisable to bring together groups of victims physically for the purposes of an application process. In some cases the security context may not be conducive for such meetings, in others not all victims feel comfortable speaking in front of groups, whether due to the nature of the harm suffered (such as victims of sexual violence) or generally due to tensions within a community, fear of stigmatisation, or other reason.158 This approach is responsive to victims’ needs, and should hopefully minimise any secondary victimisation caused by collective participation. Trial Chamber V in the Muthaura and Kenyatta case has taken a tiered approach to victim applications, in order to ensure victims’ views and

154 Prosecutor v Gbagbo, Organization of the Participation of Victims, ICC-02/11-01/11-29Red, 6 February 2012. 155 Prosecutor v Gbagbo, Redress Trust Observations to Pre-Trial Chamber I of the International Criminal Court Pursuant to Rule 103 of the Rules of Procedure and Evidence, ICC-02/11-01/11-62, 16 March 2012. 156 See Prosecutor v Gbagbo, Observations on the Practical Implications of the Registry’s Proposal on a partly Collective Application Form for Victims’ Participation, ICC-02/1101/11-66, 19 March 2012. 157 Prosecutor v Gbagbo, Second Decision on Issues Related to the Victims’ Application Process, ICC-02/11-01/11-86, 5 April 2012. 158 Registry Observations in Compliance with the Decision, ICC-01/04-02/06-54-Conf, 6 May 2013, para. 8.

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concerns were able to be heard before the commencement of the trial.159 The Chamber distinguished between individual and collective applicants, individuals could still appear before the Court and have their applications individually assessed. The majority of victims under the collective participation application would be represented by a common legal representative and would not have to go through the application procedures under Rule 89 of the RPE. Instead these collective victims will be registered and the VPRS in conjunction with the legal representative would prepare and submit reports on the victim population.160 This collective approach aims to mitigate the cost and time spent on the application procedure, while protecting the rights of the defendant from undue delay and allowing victims to present their interests. Furthermore the Chamber stated that, registration does not imply any judicial determination of the status of the individual victims. Moreover, when assessing any submissions or requests made by the common legal representative, the Chamber will be mindful of the fact that the represented victims have not been subject to an individual assessment by the Court.161 This may enable the Chamber to dilute victims’ interests and modalities of participation on the basis that they are not officially recognised as victims and have not had their identities and claims substantiated. In practice it delegates out victims’ engagement to non-judicial organs of the Court, to more administrative processes. This approach may be contrary to victims’ purpose in participating before the Court so as to ensure that their suffering is recognised and to assert their individual rights.162 Accordingly, this new collective approach may further undermine the meaningfulness of victim participation before the ICC and victims’ agency to voice their interests. 3 A DE Q U ATE RE P RES EN TATION OF V IC TIM S ’ IN TE RE STS?

The Court has to ensure that in organising collective participation victims’ interests are adequately represented. For instance, in the Bemba case, Trial Chamber III grouped the victims geographically.163 This allowed victims of the same family and community to be represented together and facilitated contact between them and their legal representative.164 However, the

159 Prosecutor v Muthaura and Kenyatta, Decision on Victims’ Representation and Participation, ICC-01/09-02/11-498, 3 October 2012. 160 Ibid., paras 24 and 38. 161 Ibid., para. 37. 162 See Redress Note 155, p. 10. 163 Bemba, ICC-01/05-01/08-1005, paras 18–20. 164 Ibid., para. 19.

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Women’s Initiatives for Gender Justice (WIGJ) warned the Court that organisation of victims into geographical groups, especially considering their numbers, may not protect victims’ distinct interests, such as those who suffered sexual violence.165 Instead, WIGJ proposed that victim representation should be organised on the nature of the crimes committed against them so as to reduce conflicting interests, such as in the Katanga and Chui case mentioned above. A further concern is that those victims who apply to participate before the Court are not representative of those victimised in a conflict; for example, urbanised and educated victims are more likely to come before the ICC, due to them having better access to the Court and intermediaries who can provide assistance in filling in forms and applying for legal representation.166 The Rome Statute and the RPE oblige the Court to be responsive to vulnerable victims’ needs, as well as to ensure that no individuals or groups are discriminated against in participating before the ICC.167 In certain situations, the Registry and the Court have tried to correct under-representation. For instance, in authorising the investigation in Côte d’Ivoire, the Court requested the Registry to conduct further research into the views of vulnerable groups after their original report had been dominated by males and certain ethnic groups.168 The approach adopted in the Gbagbo case of collective applications may indicate the future of victim participation, especially with increasing pressure from limited resources on account of a growing number of cases and victims before the Court. There is a further problem that collectivising victims is contrary to human rights law which protects the rights of the individual. A challenge for the Court is to accommodate victims’ individual rights within collective participation; this will be difficult where their interests conflict, such as in sentencing or reparations. As McGonigle points out, with an increasing number of victims participating under a single representative, conflicts of interests will be difficult to avoid.169 Such situations may require VLRs to represent opposing interests, but this may reduce their effectiveness. Where conflicting interests exist it will require the Court to reach a compromise between contradictory views. The Court should ensure victims’ interests are represented, as far as possible, to make participation meaningful through professional advocates who have the capacity and resources to present those interests, rather than

165 Statement by the Women’s Initiatives at the opening of the Trial of Jean-Pierre Bemba Gombo, 22 November 2010, p. 4, cited from McGonigle Ch. 1 Note 30, p. 328. 166 Chung Note 1, p. 513. 167 Rule 86 and Article 21(3); see Ilaria Bottigliero, Ensuring Effective Participation and Adequate Redress for Victims: Challenges Ahead for the ICC, in Doria et al. Note 7 907–923, p. 913. 168 Situation in Republic of Côte d’Ivoire, ICC-02/11-14, para. 211. 169 McGonigle Ch. 1 Note 30, p. 329.

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amalgamating their perspectives. It is difficult for victims to have ownership of the process when their views and concerns are merged together and filed for the purposes of registration rather than representation. The mass scale of international crimes creates an inherent difficulty in ensuring that victim participation allows effective representation of their interests in proceedings while being expedient and cost efficient. The judges of the Court are developing new approaches to collective participation, demonstrating its sensitivity and responsiveness to victims’ interests. However, the judges should be careful in ensuring that in organising such a collective system victims’ individual voices are not lost. If possible, victims’ redacted statements could be published on the Court’s website. c Determining outcomes Article 68(3) specifies that victims’ views and concerns are to be presented and ‘considered’ by the Court. The European Court has found that victims’ rights should not be ‘theoretical or illusory’, but ‘practical and effective’.170 With regards to victims’ right to a fair trial this can ‘only be seen to be effective if the observations are actually “heard”, that is duly considered by the trial court’.171 Victims’ ability to present their views and concerns before the ICC demonstrates some procedural justice by respecting their interests and allowing them to have an input into proceedings, as examined in Chapter 1. Procedural justice is also supposed to ensure that victims’ interests are taken into consideration in the determination of substantive outcomes, such as truth and justice. The extent to which this is done at the ICC can be found by analysing the Court decisions on victim participation in the investigation, trial, and sentencing proceedings. These stages are important in determining truth and justice with regards to charges, responsibility, and punishment being established. 1 P ARTI C I P A TI O N IN THE IN V ES TIGATION

The investigation is a significant point in the determination of truth and justice owing to the selection of charges and perpetrators for trial. Victim participation in investigations has long been established by the regional human rights courts as a fundamental part of ensuring its effectiveness and countering impunity.172 This is because it can provide oversight of prosecutorial discretion in the selection of perpetrators and charges, 170 Perez v France, App. no. 47287/99 (ECtHR, 12 February 2004), para. 80. 171 Ibid. 172 Particularly with violations of the right to life or prohibition on the use of torture, and inhumane and degrading treatment: Kaya v Turkey, paras 121–126; McKerr, para. 115; Mapiripán Massacre, paras 116 and 119; Al-Skeini v United Kingdom, App. no. 55721/07 (ECtHR, 7 July 2011), para. 167.

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which can more accurately identify those responsible.173 The role of victims in this stage is necessary to safeguard their interests, as well as to provide public scrutiny and accountability.174 The importance of victim participation in investigation has been reiterated in a number of different regional forums. The Inter-American Court of Human Rights has determined that victims in an investigation should have, ‘substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek due reparation’.175 The European Court has established that victim participation is a procedural right attaching to fundamental rights, such as the right to life.176 This includes the modalities of victims being informed of a decision not to prosecute; some access to the investigation and case file, such as witness statements; and to present their interests.177 More recently the European Union went further than just participation by recognising that victims have a right to review prosecutor’s decisions not to prosecute, so as to ensure greater accountability by allowing discretionary decisions to be examined impartially by an independent party.178 That being said, victims have no right to claim that a certain person is prosecuted or to obtain a particular outcome such as a conviction; thus a distinction between their procedural right to participate and lack of a substantive right to prosecute.179 At the ICC the Prosecutor is obliged to consider and respect the interests of victims and justice in investigations under Articles 53(1)(c) and 54(1)(b). Rule 92(2) also provides that the Prosecutor will inform victims when deciding not to initiate an investigation or prosecute under Article 53. Unlike in some national courts, victims before the ICC have no right to initiate criminal investigations or prosecutions.180 Additionally, Article 68(3) does not explicitly state that victims can participate in investigations, 173 Raquel Aldana-Pindell, An Emerging Universality of Justiciable Victims’ Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes, Human Rights Quarterly 26 (2004) 605–686, p. 612. 174 Human rights cases Note 165. 175 Street Children case, para. 227. 176 See Mettraux Ch. 1 Note 157. 177 Ogˇur v Turkey, App. no. 21594/93 (ECtHR, 20 May 1999), para. 92; Güleç v Turkey, App. no. 21593/93 (ECtHR, 27 July 1998), para. 82; McKerr, para. 148. 178 Article 11, EU Directive 2012/29/EU, Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, 25 October 2012; R v Killick [2011] EWCA Crim 1609, paras 48–51. 179 In contrast to many domestic jurisdictions, victims cannot bring private prosecutions at the international level due to the danger of such prosecutions being politically driven, but also the difficulties in collecting such evidence to reasonably secure a conviction, though this could change with technological advances. 180 See Elisabeth Baumgartner, Aspects of Victim Participation in the Proceedings of the International Criminal Court, International Review of the Red Cross 90 (870) (2008) 409–440, pp. 426–427.

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just in ‘proceedings determined to be appropriate by the Court’. In some of the first decisions of the Court, Pre-Trial Chambers I and II found that the investigation is an appropriate proceeding in which victims can participate.181 Pre-Trial Chamber I recognised that victims are important in an investigation, ‘to clarify the facts, to punish the perpetrators of crimes and to request reparations for the harm suffered’.182 The Chamber further determined that victim participation is not inconsistent or prejudicial to the ‘integrity and objective of the investigation’ or to ‘efficiency and security’.183 Accordingly, VLRs could participate in the investigation provided that they did not give victims access to the record or adversely affect the Prosecutor’s ability to conduct investigations.184 They could also present victims’ views and concerns to the Chamber as well as submit evidence to the investigation.185 This is in line with the jurisprudence established by the human rights courts. The Pre-Trial Chambers’ decisions were later overturned by the ICC Appeals Chamber which interpreted ‘proceedings’ as only ‘judicial proceedings’.186 Accordingly, the Appeals Chamber found that the investigation is not a judicial proceeding which victims can participate in, as required by Article 68(3), but an ‘inquiry conducted by the Prosecutor’.187 Instead they can make ‘representations’ to the Prosecutor under Articles 15(2) and 42(1) on the investigation or their interests.188 Compared to the approach of the Pre-Trial Chambers, the Appeals Chamber’s decision leaves victims in a far weaker position, akin to writing a letter to the Prosecutor before the ad hoc tribunals.189 Under the Appeals Chamber’s

181 Situation in DRC, ICC-01/04-101; Situation in Uganda, ICC-02/04-101. 182 Ibid., ICC-01/04-101, para. 63; followed in Situation in Darfur, Decision on the Applications for Participation in the Proceedings of Applicants a/0011/06 to a/0015/06, a/0021/07, a/0023/07 to a/0033/07, and a/0035/07 to a/0038/07, ICC-02/05-111Corr, 6 December 2007, para. 11. 183 Ibid., ICC-01/04-101, paras 57–58; Situation in Uganda, ICC-02/04-101, paras 88–89. 184 Ibid., ICC-01/04-101, paras 58–59. 185 Ibid., para.70. 186 Situation in DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of Pre-Trial Chamber I of 7 December 2007 and in the Appeals of the OPCD and the Prosecutor against the Decision of Pre-Trial Chamber I of 24 December 2007, ICC-01/04-556, 19 December 2008, para. 45; Situation in the Republic of Kenya, Decision on Victims’ Participation in Proceedings related to the Situation in the Republic of Kenya, ICC-01/09-24, 3 November 2010, para. 9. 187 Ibid., ICC-01/04-556, para. 45. 188 Ibid., para. 53; confirmed in subsequent appeal of Situation in Darfur, Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of Pre-Trial Chamber I of 3 December 2007 and in the Appeals of the OPCD and the Prosecutor against the Decision of Pre-Trial Chamber I of 6 December 2007, ICC-02/05-177, 2 February 2009. 189 See Chapter 4.

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approach, victims can still have an input into the investigative process, but there is no oversight of the prosecutorial selection of perpetrators or charges, or whether the Prosecutor is acting in their interests.190 This decision has been since followed by other Chambers.191 The Appeals Chamber’s decision is contradictory with other articles in the Rome Statute and the ability of the Prosecutor to represent victims’ interests. First of all, Article 21(3), on the standards established in human rights law, requires victims to have ‘full access and the capacity to take part in all the stages of the investigation’.192 The Appeals Chamber’s position also contrasts with Article 15(3), which allows victims to make representations to the Pre-Trial Chamber on an investigation initiated by the Prosecutor. Moreover, the connection to the charges and perpetrators convicted before the Court will determine the scope of reparations victims will be able to claim.193 Upholding the independence of the Prosecutor to solely conduct investigations is in line with Article 42 and represents a more common law approach to criminal trials.194 However, entrusting the Prosecutor to respect the interests of victims in an investigation does not always work in practice, as demonstrated by the ad hoc tribunals. This is evident at the ICC where VLRs have made a number of submissions to the Court, as well as initiated proceedings during the trials to expand the limited charges made by the Prosecutor against an accused. By way of example, victims in the DRC situation sought to review the decision of the Prosecutor not to proceed to charge Jean-Pierre Bemba for the numerous crimes his militia committed in Ituri.195 Additionally, in the Kenyan case of Ruto et al. the VLRs claimed that the Prosecutor had not conducted a meaningful investigation or considered victims’ interests, and wanted the case to be adjourned so that the charges could be recharacterised to include crimes of destruction and looting, which were

190 Article 53(1)(c). 191 Prosecutor v Ruto, Kosgey, and Sang, Decision on the ‘Request by the Victims’ Representative for Authorisation to make a Further Written Submission on the Views and Concerns of the Victims’, ICC-01/09-01/11-371, 9 December 2011, paras 16–17. 192 Gomes-Lund et al. Note 245, para. 257. 193 Article 75(2); Situation in Uganda, ICC-01/04-101, paras 50–53. 194 As opposed to criminal court judges in civil law jurisdictions who are responsible for the investigation. McGonigle Ch. 1 Note 30, pp. 226–227; see also Prosecutor v Muthaura, Kenyatta, and Ali, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382, 23 January 2012; Prosecutor v Ruto, Kosgey and Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373, 23 January 2012. 195 Situation in DRC, Demande du représentant légal de VPRS 3 et 6 aux fins de mise en cause de Monsieur Jean-Pierre Bemba en sa qualité de chef militaire au sens de l’article 28-a du Statut pour les crimes dont ses troupes sont présumées coupables en Ituri, ICC01/04-564, 30 June 2010. See Ituri: ‘Covered in Blood’ Ethnically Targeted Violence in Northeastern DR Congo, HRW, 2003, pp. 36–47.

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committed as part of the charge of persecution as a crime against humanity.196 Both of these claims were dismissed by the Court on the basis of the independence of the Prosecutor.197 Accordingly, the Appeals Chamber’s decision leaves it up to the Prosecutor’s discretion to consider victims’ interests in the investigation, which is a crucial juncture in determining the outcomes of truth, justice, and reparations at later stages. A high level of selectivity of perpetrators and charges is the norm in international criminal justice, due to the Court’s purpose to prosecute and punish those most responsible for international crimes.198 Baumgartner suggests that this provides a symbolic function of condemning such crimes.199 However, this sits uneasily with human rights jurisprudence on the obligation to conduct investigations and prosecutions of those responsible for gross violations of human rights, in order to ensure an effective remedy to victims and to end impunity. McGonigle questions whether the emphasis in human rights law on victim participation in the investigation, which is normally applied at the domestic level, should be applicable to the ICC.200 Aside from the Court’s obligation to interpret the Rome Statute in light of international recognised human rights law in Article 21(3), it is appropriate as the purpose of the ICC to end impunity and to deliver justice to victims. Human rights law has found that victim participation is a vital part of ensuring an effective investigation, which is necessarily connected to these two goals of the Court and broader perceptions of it as fair and transparent. The ICC Prosecutor should be independent, but not unaccountable. Therefore, there needs to be some oversight of his or her discretion to ensure victims’ interests are being taken into account. Victim-led prosecutions before the ICC could lead to politicisation of the Court and undermine its impartiality. This is not what victim-orientated justice requires; rather it involves victims participating in proceedings which affect them and the Court considering their interests. Victim participation in the investigation may be seen as undermining the fairness and impartiality of an investigation, but their role is not to collect evidence or select charges, which is the prerogative of the Prosecutor. Instead victims’ rights should exist here in so far as they are able to review a decision by the Prosecutor not to prosecute, such as in national jurisdictions, and for the Court to examine whether this decision was adequately reached in light of the

196 Ruto et al., ICC-01/09-01/11-367, 9 November 2011, para. 11. 197 Situation in DRC, Decision on the Request of the Legal Representative of Victims VPRS 3 and VPRS 6 to Review an Alleged Decision of the Prosecutor not to Proceed, ICC-01/04582, 25 October 2010; Prosecutor v Ruto et al., ICC-01/09-01/11-371, 9 December 2011, paras 16–17. 198 Baumgartner Note 180, pp. 437–438. 199 Ibid., p. 438. 200 McGonigle Ch. 1 Note 30, p. 341.

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evidence and public interest and victims’ interests in prosecuting. While it would be easy to say that the Prosecutor did not properly consider the interests of victims, the Court is obligated to review the decisions of the Prosecutor, thus placing the onus on the judges to remedy such decisions.201 The selection of crimes and perpetrators to prosecute should be representative, as far as possible, of all victims’ suffering in order to enable them to access their procedural and substantive rights. A more representative picture of suffering acknowledges the harm caused to different victim groups and clarifies the facts. Additionally, it is consistent with the Prosecutor’s obligations to act in the interests of justice and victims, and the Court’s obligation to determine the truth.202 In relation to the interests of justice, as discussed in Chapter 1, justice necessarily encompasses countering impunity in international criminal justice and being responsive to the needs of those most affected by these egregious crimes through prosecuting the broadest spectrum of crimes. Nevertheless, this approach should be balanced with the experience of the Miloševic´ case before the ICTY, where a representative prosecution lengthened the trial, with the defendant dying before its completion, so there needs to be some selection of charges. The Prosecutor at the ICC also has limited resources or there can be insufficient evidence to secure a conviction, and thus cannot prosecute every perpetrator for every crime. Accordingly, State Parties are meant to complement the Court’s work where there are gaps to ensure accountability for such crimes. 2 P ARTI C I P A TI O N IN THE TRIAL

Victim participation in the trial stage can offer victims the opportunity to have their interests considered by the Court in relation to clarifying the facts and determining the responsibility of the accused.203 The VLRs have brought to light the context of victims’ harm, the continued difficulties they face, their needs and expectations, and presented evidence on the culpability of defendants. VLRs have also tried a number of creative applications to expand the charges against an accused during the trial proceedings to overcome their limited role in the investigation. In the Lubanga case, the VLRs attempted to use Regulation 55 to re-characterise the charges against the defendant to include sexual slavery, and cruel and

201 Article 53(3)(b), Rome Statute. 202 On the basis of Articles 51(1)(c), 54(1)(b), and 69(3). 203 Street Children, para. 227.

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204

inhumane treatment. Later in the same case, they sought to include victims who had suffered from crimes committed by the child soldiers who were recognised as the direct victims before the Court based on the charges against the accused.205 Yet, the Court rejected all of these requests on the basis of the Prosecutor’s independence. During the trial of Lubanga, Trial Chamber I allowed victims to present evidence on these crimes, such as the documentation of sexual violence and other crimes committed by the defendant’s militia in Ituri, despite not appearing in the charges.206 The judges also questioned witnesses on the prevalence of sexual violence against female child soldiers.207 Additionally, the Chamber permitted victims to ‘tell their story’ in narrative form, which included the details of these crimes thereby ensuring their documentation.208 In the Court’s first judgment in the Lubanga case the defendant was convicted of the charges of enlisting and conscripting children to be used in an armed conflict. This judgment realised certain victims’ rights to truth and justice through officially acknowledging and documenting their harm, condemning the crimes, and finding the defendant responsible. Although one of the criticisms from the outset of the case was that the charges were too narrow, the Court refused to change this in order to maintain the independence of the Prosecutor.209 As a result, the final judgment did not recognise the other alleged crimes committed by Lubanga’s militia despite the evidence presented before the Court.210

204 Prosecutor v Lubanga, Joint Application of the Legal Representatives of the Victims of the Implementation of the Procedure under Regulation 55 of the Regulations of the Court, ICC-01/04-01/06-1891-tENG, 22 May 2009; Prosecutor v Lubanga, Clarification and Further Guidance to Parties and Participants in Relation to the ‘Decision giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court’, ICC-01/04-01/06-2049, 27 August 2009; Prosecutor v Lubanga, Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled ‘Decision giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court’, ICC-01/04-01/06-2205, 8 December 2009; see McGonigle Ch. 1 Note 30, pp. 294–296. 205 Lubanga, ICC-01/04-01/06-1813. 206 Lubanga, ICC-01/04-01/06-T-145-Red3-ENG, 6 March 2009, p. 37; Lubanga, ICC-01/0401/06-T-193-ENG, 17 June 2009, pp. 75–77. 207 For instance, Lubanga, ICC-01/04-01/06-T-145-Red3, 6 March 2009, p. 79; Lubanga, ICC01/04-01/06-T-194-ENG, 18 June 2009, pp. 46–47. 208 See Lubanga, ICC-01/04-01/06-T-225-Red2-ENG, 12 January 2010, p. 31; Lubanga, ICC01/04-01/06-T-227-Red3-ENG, 14 January 2010, p. 61; Lubanga, ICC-01/04-01/06-T-230Red2-ENG, 21 January 2010; see McGonigle Ch. 1 Note 30, pp. 321–323. 209 NGO Joint Letter to the Chief Prosecutor of the ICC on Charges against Thomas Lubanga and DRC Investigation, 31 July 2006. 210 HRW report Note 195, pp. 21–29.

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These efforts attest to the constraints of international criminal proceedings in trying to deliver justice to victims within its primary function of prosecuting and punishing perpetrators.211 The shortcomings of the charges could have been overcome at an earlier stage by modifying them in the pre-trial stage.212 Trial Chamber I instead suggested that it would give more weight to sexual violence and inhumane and degrading treatment in the determination of sentencing and reparations.213 This may offer some recognition and condemnation of the victims’ suffering. Yet, the Court has not established the responsibility of Lubanga’s militia for committing those crimes; therefore it does not satisfy victims’ right to justice or truth. With regards to truth, the judges have emphasised the role of victims in helping a Chamber to determine it through presenting evidence.214 For instance, in the Bemba case the VLRs ‘helped the Chamber to understand relevant events, such as where they distinguished the use of Lingala language by the accused and his militia in comparison to local languages’.215 However, Bemba’s defence team called a victim to testify that perpetrators spoke the more local language of Sango and crimes committed were by Bozizé rebels.216 Such personal or narrative truth as to what occurred does not lend itself to a historic, objective account of what happened.217 The difficulty of truth within a criminal trial is that it is based on evidence pertaining to the guilt of the accused: this all or nothing approach, has the potential of rejecting different victims’ testimonies, and therefore the recognition due to them being invoked by the prosecution or the defence. There is a danger that victims’ interests could become secondary to the truth which the ICC is interested in, making them just functional to the Court’s or parties’ agenda, such as in the Bemba case. Moreover, it is hard to reconcile the Court’s goal of determining the truth under Article 69(3) in allowing victims to participate, while denying their requests to expand the charges against the defendant to provide a more representative and truthful account of their crimes. This may further indicate that victim participation under Article 69(3) serves more the interests of the Court rather than victims. Really this is more a problem of a criminal court in

211 212 213 214

McGonigle Ch. 1 Note 30, pp. 357–365. In the confirmation of charges hearing under Article 61(7)(c)(i). Lubanga, ICC-01/04-01/06-2842, para. 630. Based on Article 69(3) of ‘request the submission of all evidence that it considers necessary for the determination of the truth’; Lubanga, ICC-01/04-01/06-1119, para. 108; approved by the Appeals Chamber in Lubanga, ICC-01/04-01/06-1432, para. 98. 215 Pena Note 9, p. 502 citing Bemba, ICC-01/05-01/08-T-12-ENG WT, 15 January 2009, pp. 97–98. 216 Witness D04-30, appeared 28 August to 3 September 2013. 217 Hayner Ch. 1 Note 178, p. 84.

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that ‘truth’ is constructed around the responsibility of an individual rather than the wider context, causes, and consequences of such violence. A further area where victims’ interests can be taken into account in determining outcomes is in guilty pleas, though none have yet arisen before the Court.218 A Chamber can order the prosecution to present additional evidence and witnesses, or continue the trial so as to provide a more complete presentation of the facts and determination of the defendant’s responsibility.219 Such an approach is respectful of victims’ rights to truth and justice. This is in comparison to the previous international criminal tribunals which neglected victims’ interests in guilty pleas. However, a Chamber is not obliged to make such an order, and remains under its discretion, so it is questionable the extent to which the Court will be responsive to victims’ interests in this area. 3 S E N T E NC I N G

Sentencing of a perpetrator is supposed to punish them for the wrongfulness of the crime and the harm they have caused. As noted in Chapter 1, punishment in international criminal justice pursues a number of purposes, mainly retribution, but due to the radical evil of such crimes it cannot fully equate the harm caused and is therefore necessarily symbolic.220 Victims can pursue sentencing goals other than retribution, such as ensuring their security or reconciliation. The ICC does allow them to have some input into sentencing decisions, with VLRs able to make submissions to a Chamber.221 The Court can also take into account aggravating factors such as harm suffered by the victims and their families, their defencelessness, multiple victims, and discrimination, which is similar to the practice of the ICTY.222 The use of victims’ suffering as an aggravating factor reflects the retributive purpose by trying to ensure a proportional punishment. At the time of writing the Court had only issued one sentencing judgment in the Lubanga case. The parties’ submissions and the Court’s judgment in this case offer an insight into the diverse approaches and purposes of victims in the sentencing of perpetrators before the ICC. The Prosecutor’s sentencing submission requested the Court to consider sexual violence and rape as an aggravating factor, despite the defendant not being

218 219 220 221

Article 65(4). Ibid. Baumgartner Note 180, p. 438. Article 76 and Rule 143; Prosecutor v Lubanga, Scheduling Order concerning Timetable for Sentencing and Reparations, ICC-01/04-01/06-2844, 14 March 2012, para. 3. 222 Rules 145(1)(c) and 145(2)(b)(iii–v) RPE.

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convicted of them.223 Classifying victims’ suffering in these crimes as aggravating circumstance serves a retributive purpose, but fails to recognise fully their harm and to document the responsibility of the perpetrator. More importantly, sexual violence and rape are not circumstances, but crimes; terming them otherwise diminishes their seriousness. The VLRs’ submissions made no reference to these crimes as aggravating factors, instead they emphasised the harm caused, as well as the vulnerability and age of the children used as soldiers.224 The Court found that despite not being charged, sexual violence and rape could be considered aggravating circumstances.225 However, as the Prosecutor did not present sufficient evidence to support such a claim, the majority of the Court rejected it.226 Instead the Chamber found that it would consider sexual violence and rape for the purposes of reparations.227 Such an approach is contrary to human rights law, which stipulates that reparations are grossly insufficient substitutes for accountability.228 Judge Odio Benito also dissented from the majority stating that sexual violence was an aggravating circumstance on the basis of the harm it causes to victims and their families, and sufficient evidence of it had been raised during the trial.229 On this issue Judge Odio Benito believed that Lubanga should serve 15 years to reflect these circumstances, in comparison to 14 years by the majority.230 In all, the first sentencing judgment of the Court evidences a retributive stance, recognising that victims’ harm can be used to increase the defendant’s sentence as a more proportional punishment. The inclusion of sexual violence and rape as an aggravating factor may indicate the Court trying to counteract the limited charges, but this is an inappropriate solution, which was not in the victims’ interests. The victims had made representations for sexual violence and rape to be recognised as separate crimes, not circumstances which belittle such horrendous suffering. Depending on the case, the Court may be more responsive to victims’ needs in sentencing through the use of mitigating circumstances. The

223 Prosecutor v Lubanga, Prosecution’s Sentence Request, ICC-01/04-01/06-2881, 14 May 2012, paras 30–34. 224 Prosecutor v Lubanga, Observations sur la peine pour le groupe de victimes V01, ICC-01/0401/06-2880, 14 May 2012, and Observations du groupe de victimes VO2 Sur des éléments de preuve établissant des circonstances aggravantes ou des circonstances atténuantes des faits portés à la charge de l’accusé reconnu coupable, ICC-01/04-01/06-2882, 14 May 2012. 225 On the basis of Rule 145(1)(c)(i–iv), Prosecutor v Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 67. 226 Lubanga ibid., para. 75; the Court only considered the victims’ age as reflecting the gravity of the offence, rather than as an aggravating circumstance, paras 77–78. 227 Ibid., para.76. 228 McKerr, para. 121; Al-Skeini, para. 165. 229 Lubanga, ICC-01/04-01/06-2901, pp. 41–52. 230 Ibid., para. 23.

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Rules of the Court allow a reduction of a defendant’s sentence if they make efforts to compensate victims.231 In the Lubanga case, the VLRs of group V01 in their sentencing submission suggested that an apology by Lubanga should be considered a mitigating circumstance. This apology was considered important to the victims, because of the continuing divisions in Ituri and its potential to help repair their suffering.232 Although Lubanga did not apologise, it does suggest a possible avenue for the Court to be responsive to victims’ other justice needs beyond retribution, such as reconciliation. It would not be hard to think of other scenarios where engagement with a truth and reconciliation commission, traditional ceremonies, or domestic reparation programmes by a defendant in making amends or remedying a victim’s harm could be considered a mitigating circumstance. This approach could offer a more contextual and harmonising approach by the ICC with domestic transitional justice processes provided it is in victims’ express interests. 3 Participation as victim-orientated justice Victim-orientated justice is about ensuring that the ICC is responsive to the needs of victims and reaches a fair balance in assessing the differing interests before it. In interpreting fairness, the Court has on a number of occasions recognised that it is not limited to the prosecution and defence, but also includes ‘respect for the procedural rights of victims’.233 This is consistent with victim-orientated justice. Numerous appeals have been submitted on the Court’s decisions on victim participation as weighing too much in favour of victims’ interests, but none have successfully evidenced that it has undermined the rights of the defendant; this is probably due to the Chambers’ strict scrutiny.234 Although victim participation can impact on the rights of the defendant, it is the role of the judges to permit them to present their interests and arrive at a fair balance.

231 Rule 145(2)(a)(ii). 232 Lubanga, ICC-01/04-01/06-2880, paras 17–21. 233 Situation in DRC, Décision relative à la requête du Procureur sollicitant l’autorisation d’interjeter appel de la décision de la Chambre du 17 janvier 2006 sur les demandes de participation à la procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6, ICC-01/04-135, 31 March 2006, para. 38; Situation in Uganda, Decision on the Prosecution’s Application for Leave to Appeal the Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06, and a/0111/06 to a/0127/06, ICC-02/04-112, 19 December 2007, para. 27. 234 For example see Katanga and Chui, ICC-01/04-01/07-2288, and Situation in Darfur, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor, ICC-02/05-110, 3 December 2007.

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The Court does try to balance competing interests. In Trial Chamber I judgment of the Lubanga case, for instance, the majority of judges rejected the testimony of five victims. The Chamber had previously acknowledged that where victim participation does become prosecutorial the judges will determine the relevance of such evidence.235 All five victims had testified in the trial on the crimes they suffered and the responsibility of the accused. The Chamber rejected their testimonies due to the defence’s submissions which evidenced the discrepancies in the victims’ identities and statements.236 This indicates that the judges can separate relevant evidence from the irrelevant so as to protect the rights of the defendant without denying victims from voicing their interests. Recognising that victim participation can be prosecutorial is consistent with understanding that their right to justice includes establishing the criminal responsibility of the perpetrators, as discussed in Chapter 1. In comparison to victim participation in national courts, such as partie civile or Nebenklage, victims before the ICC have a more limited form of participation under Article 68(3), as they cannot initiate an investigation or submit an appeal.237 Victims have greater participatory rights at the international criminal tribunal of the Extraordinary Chambers in the Courts of Cambodia (ECCC), as they can request a specific investigation, appeal a decision, and are not required to evidence their ‘personal interests’ in order to participate.238 Victims at the ECCC are organised similarly to the ICC through collective civil parties being represented by a single lawyer, but the Cambodia Court also allows a group of them to form victim associations to facilitate collective participation.239 The ability of other courts and tribunals to give more extensive rights to victims brings into question whether the ICC has reached the correct balance with defendants’ rights. In light of the preceding, there are three problems with the current victim participation regime at the ICC which arise as it is (1) costly, (2) disorganised, and (3) largely symbolic in its assurance of justice for victims. With regards to the first of these, victim participation has also been criticised for being both ‘time-consuming and resource intense’.240 The challenge for the Registry, judges, and parties is to process each individual

235 Judge Fulford, Lubanga, ICC-01/04-01/06-T-223-ENG, 7 January 2010, p. 39; McGonigle Ch. 1 Note 30, p. 320. 236 Lubanga, ICC-01/04-01/06-2842, pp. 217–230; though the majority went too far when it also revoked the victim status of the five who testified; see Judge Benito’s dissent, ICC01/04-01/06-2842, paras 22–35. 237 See Doak Ch. 1 Note 194, p. 310. 238 Rules 23bis, 55(10), 74(4), 80(2), of the ECCC Internal Rules; see McGonigle Ch. 1 Note 30. 239 Rules 23 ter and quater, ECCC Internal Rules. 240 Friman Note 55, p. 236.

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application, which continue to grow with 19,422 applications received by April 2012 and 4,107 accepted to participate in proceedings.241 The Hague Working Group of the Bureau of the Assembly of State Parties has found the victim application process ‘unsustainable’, stating, leaving this matter unresolved might, in fact, place the credibility of the entire Rome Statute system and the Court’s work at risk, if it results in the system’s failure to protect victims’ rights and interests and ensuring that they are fully represented and are able to participate in the proceedings, matters at the core of the Rome Statute.242 Additionally, up until the end of 2011, the combined legal aid costs for victims’ legal representatives in the Lubanga and Katanga and Chui cases amounted to 2.3 million, and 4.9 million for all cases in 2012.243 This figure only covers VLRs and not the expenses incurred by the other parties, the Registry, and the Chambers in determining victim issues. Schabas suggests that victims would benefit more if they have been given the money spent on legal representatives as reparations instead, considering the small amount of money likely to be available for reparations.244 This view reduces victims’ interests to just reparations, and undermines the goal of justice for victims. Instead the judges at the ICC have tried to reduce cost and expedite proceedings through collective participation, discussed above, but this may have the effect of limiting victims’ ability to engage with the Court, making the ICC more symbolic and disconnected from victims. Second, a further problem with victim participation is the miscellany of approaches adopted by the judges, such as on presenting evidence. With each case and Chamber having a divergent approach on victim participation, there is a lack of certainty as to what participation can offer, and whether victims should spend their energies on accessing justice elsewhere.245 These inconsistencies have resulted in inequality of victim participation before the ICC.246 These differences seem to stem from the diverse interpretations of judges rather than the differing needs of victims.

241 ICC, Report on the Review of the System for Victims to Apply to Participate in Proceedings, 24 September 2012, p. 2. 242 Report of the Bureau on Victims and Affected Communities and the Trust Fund for Victims and Reparations, ICC-ASP/11/32, 23 October 2012, para. 24; see Redress, The Participation of Victims in International Criminal Court Proceedings: A Review of the Practice and Consideration of Options for the Future, October 2012. 243 Report of the Committee on Budget and Finance on the Work of its Sixteenth Session, April 2011, ICC-ASP/10/20, p. 175; ICC-ASP/12/5/Rev.1, June 2013, para. 83. 244 William A. Schabas, The International Criminal Court at Ten, Criminal Law Forum 22(3) (2011) 493–509, p. 501. 245 McGonigle Ch. 1 Note 30, p. 333. 246 Salvatore Zappalà, The Rights of Victims v. the Rights of the Accused, Journal of International Criminal Justice 8(1) (2010) 137–164, p. 142.

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Judges Steiner and Kaul,247 for instance, have been particularly sensitive to victims’ needs and interests, compared to Judges Pikis and Kirsch.248 Third, participation is largely symbolic as victims are only allowed to participate if they do not interfere with the interests of the prosecution or rights of the defendant. Moreover, they have a very minimal impact on determining outcomes. The investigation and prosecution of perpetrators at the ICC remains a contest between the Prosecutor and the defence. Combined with the increasing collectivisation of victims, it is unlikely that they can meaningfully realise their interests in truth and justice. Without a right of appeal, victims cannot challenge the Prosecutor’s selection of perpetrators and charges, or decisions by the Court which neglect their interests. This seems inconsistent with human rights law which protects victims’ right to an effective procedural remedy. This underscores victims’ weaker position in comparison to the other parties. Therefore victim participation at the ICC is largely symbolic. Complementarity may fill this gap, where State Parties may be more orientated to realising victims’ rights. However, it does not establish the ICC as a ‘high watermark’ for victims in practice. Together these problems arise from the absence of a coherent underlying theory or purpose of victim participation within the ICC. A clear understanding of how justice for victims can work within the framework of the ICC as victim-orientated justice could guide judges’ interpretation. This could ensure greater consistency between decisions and reduce inequality, while keeping in mind some sort of flexibility for victims’ differing needs. This would also involve recognising victims as independent parties who can participate in investigations, have an evidential role, and may at times need anonymity. Victims’ role in the investigation and presenting evidence on the culpability of the accused will enable them to have a more meaningful role in proceedings that can better present and protect their interests. As the judges will know the identities of victims they will be in the best position to balance their interests against the defendant’s rights. In turn, having a more coherent understanding of victim participation could minimise time and resources spent on determining modalities and appeals. The Court has been more responsive to victims’ needs and interests in relation to treatment and protection.

E The treatment and protection of victims at the International Criminal Court Effective protection and treatment of victims is a necessary requirement of human rights law and procedural justice so as to ensure that their

247 See Katanga and Chui, ICC-01/04-01/07-474; Bemba, ICC-01/05-01/08-320. 248 See Separate Opinions of Judge Pikis and Judge Kirsch in Lubanga, ICC-01/04-01/061432.

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interaction with the Court does not cause them any further victimisation. This section begins by summarising the legal basis of the protection regime of the ICC, before outlining the Court’s treatment and protection system for victims. The subsequent sub-sections examine whether the Court offers victim-orientated justice with regards to protection and treatment by considering the balance between victims and defendant’s rights, as well as the responsiveness to victims’ needs. The section concludes by examining whether the ICC has overcome the problems associated with the ad hoc tribunals and provides adequate victim-orientated justice in light of human rights law and procedural justice. 1 Legal basis of victim protection and treatment The main provision for victim protection and fair treatment is under Article 68(1) of the Rome Statute, which states that, ‘the Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’. This incorporates the principles of the UN Victims’ Declaration.249 The concepts mentioned in Article 68(1) of privacy, well-being, and dignity, better reflect an individual’s autonomy and a broader spectrum of needs which can be affected by their involvement with the Court. During the drafting of the Rome Statute there was strong support to ensure the utmost protection for victims and witnesses before the ICC after the experience at the ad hoc tribunals.250 The UN Victims’ Declaration was used as a reference point to guide the development of Article 68, as victim protection and fair treatment in international criminal proceedings was generally accepted by delegates.251 The resulting provisions within the Rome Statute and the Rules of Procedure and Evidence develop the provisions established at the ad hoc tribunals to protect victims and witnesses from risk of further harm.252 Consequently, the importance of protecting victims and treating them

249 Principles 4 and 6(d), UN Victims’ Declaration; Principle 10, UNBPG; an earlier draft of Article 68 included a provision that the interpretation of the whole article should be interpreted in light of Victims’ Declaration in order to give effect to it; Report of the Inter-Sessional Meeting from 19–30 January 1998 in Zutphen, the Netherlands, A/ AC.249/1998/L.13, Article 61(7). 250 See Amnesty International, The International Criminal Court, Making the Right Choices, AI Index: IOR 40/11/97, July 1997; Commentary for the August 1997 Preparatory Meeting on the Establishment of an International Criminal Court; Women’s Caucus for Gender Justice in the International Criminal Court, HRW, December 1997. 251 See Report of the Working Group on Procedural Matters, 15 July 1998, A/ CONF.183/C.1/WGPM/L.2/Add.8, p. 7, fn. 5; Report of the Victims’ Rights Working Group at the Rome Conference, 1998, para. 4. 252 See Helen Brady, Protective and Special Measures for Victims and Witnesses, in R.S. Lee Note 10 434–456; Jorda and Hemptinne Ch. 1 Note 226, p. 1390.

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fairly is firmly established at the ICC as obligatory by the use of ‘shall’ in Article 68(1), in comparison to the ad hoc tribunals where protective measures were discretionary. The legal framework of the Court indicates that the protection and security of victims is one of the main objectives of the ICC. The Victims and Witnesses Unit is pivotal in this framework. a The Victims and Witnesses Unit The Victims and Witnesses Unit (VWU) within the Registry is established under Article 43(6) of the Rome Statute to provide ‘protective measures and security arrangements, counselling and other appropriate assistance for witnesses who appear before the Court, and others who are at risk on account of testimony given by such witnesses’.253 The VWU conducts assessments of an individual’s needs so that it can recommend appropriate protection measures, to minimise the risk of victims, witnesses, and other persons, from suffering further trauma.254 This is in line with international standards and developments in national jurisdictions which provide support and assistance to victims.255 The VWU also cooperates with State Parties in advising, assisting, and implementing any measures.256 The VWU has established the Initial Response System (IRS) in countries under investigation, which allows victims or witnesses to seek assistance at any time where they believe they or their families are in danger.257 If any calls are received, a local partner extracts the individual(s) and places them in a safe location before the need for further measures of protection are assessed. However, this system relies on local police forces, which may be corrupt or the crimes may involve the government, and could result in further harm to the individual. In the first few years of the VWU operation there were very few incidents, but this has changed with the Kenya case discussed further

253 See also Rules 17–19 RPE. 254 Prosecutor v Lubanga, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81 (2) and (4) of the Statute, ICC-01/04-01/061078, 19 May 2008, para. 24; Prosecutor v Lubanga, Victims and Witnesses Unit Recommendations on Psycho-social In-court Assistance, ICC-01/04-01/06-1149, 31 January 2008, paras 1 and 14. 255 See Principle 6(d), UN Victims’ Declaration; EU Decision on the Standing of Victims in Criminal Proceedings, 2001/220/JHA, paras 6–7 and 10; Dignan Ch. 1 Note 91, pp. 49–54. 256 Rules 16(4), 17(2)(a)(vi), and 18(e); see the Registry and Trust Fund for Victims Factsheet, p. 3. 257 Regulations 93 and 95 Registry Regulations; Report of the Court on the Kampala Field Office: Activities, Challenges and Review of Staffing Levels; On Memoranda of Understanding with Situation Countries, ICC-ASP/9/11, 2011, p. 2; Silvana Arbia, The International Criminal Court: Witness and Victim Protection and Support, Legal Aid and Family Visits, Commonwealth Law Bulletin 36(3) (2010) 519–528, p. 522.

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258

below. The VWU has also created a protection programme (ICCPP).259 The protection programme is similar to witness protection programmes in domestic jurisdictions, in that it can involve the relocation of a witness temporarily or permanently, nationally or internationally, as well as additional measures, such as issuing new identities. Though the VWU only provides protection to victims who appear before the Court to testify or to participate. Assistance to victims is provided by the Trust Fund for Victims, such as psychological counselling, physical rehabilitation, and community based victim sensitisation programmes, but only in the situations of Uganda, DRC, and for a time in the CAR.260 In The Hague, the VWU supports victims both inside and outside the courtroom. Similar to the ad hoc tribunals, the VWU offers 24 hour ‘psychological, social assistance and advice’ to victims, witnesses, and their families, as well as in-court support assistants to ‘attend to [their] emotional and physical needs’.261 Additionally, it consists of staff with expertise in trauma, especially sexual violence, and other areas.262 Accordingly, the ICC Victims and Witnesses Unit builds on the experience and practice of the ad hoc tribunals to provide comprehensive support and protection. As such, the VWU offers a more victim-orientated justice when it comes to ensuring their fair treatment and protection before the ICC, both domestically and at The Hague. b Protective and special measures The Court protects victims through protective and special measures. Article 68(1) obliges the Court to ‘take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’. Protective measures are aimed at preventing the victim from suffering further harm due to their interaction or association with the Court. These include closed hearings (in camera), pseudonyms, voice and facial distortion, public non-disclosure, and redaction of identity or identifying information from the record.263 Requests for protective measures can be made by the Prosecutor, the defence, a witness, a victim or their legal representative, or the Court itself.264 The Court has been clear that the obligations to identify, protect, and respect a victim or

258 Courting History: The Landmark International Criminal Court’s First Years, HRW, 2009, p. 152. 259 Regulation 96, Registry Regulations. 260 See Chapter 4. 261 Regulation 83, Registry Regulations; Lubanga, ICC-01/04-01/06-1149, paras 7–8. 262 See Article 43(6) and Rule 19, RPE. 263 Article 68(2), Rule 87(3), and Regulation 94, Registry Regulations. 264 Rule 87(1), RPE.

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witness rests on the party or participant calling the individual to testify.265 Other organs of the ICC are also responsible for protecting victims and witnesses.266 Additionally, where protective measures are ordered, the defence, VLRs, and other participants are bound by Rule 87(3)(b) and Article 8 of the Code of Professional Conduct for Counsel on professional secrecy and confidentiality.267 Rule 88 provides special measures for vulnerable victims or witnesses who testify before the Court.268 Special measures include a support person, shielding devices, video conferencing technology, and sensitive questioning. The judges of the ICC have acknowledged that the court environment can be ‘foreign and uncomfortable’ and even intimidating to victims and witnesses.269 As such, special measures are meant to facilitate the testimony of a vulnerable victim or witness while protecting their dignity, well-being, safety, and privacy at the ICC.270 Vulnerable victims and witnesses include those ‘traumatized . . . a child, an elderly person or a victim of sexual violence’.271 The open-ended language used in Rule 88, which does not define vulnerable persons or all the special measures the Chamber can order, enable the judges to have some flexibility to determine appropriate measures required by each individual.272 This individual based approach recognises that victims’ needs differ and may be in opposition to another.273 The Court has ruled that in fulfilling its mandate towards vulnerable individuals the ‘pro-active role of judges under the Statute and the RPE will help to ensure that witnesses are not “revictimized” by their testimony, while also preventing any improper influence being applied to the witness’.274 Additionally, in making a determination on appropriate measures

265 Prosecutor v Lubanga, Decision on Various Issues related to Witnesses’ Testimony during Trial, ICC-01/04-01/06-1140, 29 January 2008, para. 36. 266 See Rule 16 on the Registry; Articles 54(e), (f), and 68(1) on the Prosecutor’s obligation to protect victims during investigations and prosecutions. 267 ASP Resolution ICC-ASP/4/Res.1, 2005; see Situation in DRC, Decision on the Requests of the Legal Representative of Applicants on Application Process for Victims’ Participation and Legal Representation, ICC-01/04-374, 17 August 2007, para. 28; Bemba, ICC01/05-01/08-320, para. 111; Katanga and Chui, ICC-01/04-01/07-1788-tENG, para. 113. 268 Rule 88(1). 269 Prosecutor v Lubanga, Decision Regarding the Practices used to Prepare and Familiarise Witnesses for giving Testimony at Trial, ICC-01/04-01/06-1049, 30 November 2007, para. 32. 270 Article 68(1); Lubanga, ICC-01/04-01/07-1119, paras 127–128. 271 Rule 88(1) and Article 68(1) which mentions persons who have suffered ‘sexual or gender violence or violence against children’; see also Prosecutor v Bemba, Victims and Witnesses Unit’s amended version of the ‘Unified Protocol on the Practices used to Prepare and Familiarise Witnesses for giving Testimony at Trial’ submitted on 22 October 2010, ICC-01/05-01/08-1081-Anx1, 8 December 2010. 272 Lubanga, ICC-01/04-01/06-1140, para. 35; see Brady Note 252, p. 447. 273 Lubanga, ICC-01/04-01/06-1119, para. 127; Lubanga, ICC-01/04-01/06-1149, para. 14. 274 Lubanga, ICC-01/04-01/06-1049, para. 32.

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for a victim the Chamber ‘shall have regard to all relevant factors, including age, gender . . . and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children’.275 This attitude evidences the sensitivity of the Court to the needs of victims, particularly vulnerable ones, to ensure that secondary victimisation is minimised or avoided. The Court has acknowledged that the use of protective and special measures not only seeks to secure victim participation, but also is a ‘necessary step in order to safeguard their safety, physical and psychological wellbeing, dignity and private life’.276 Furthermore, the Court has stated that such ‘measures are not favours but are instead the rights of victims’, reflecting their procedural rights.277 The Rome Statute also affords victims or witnesses the opportunity to present their views and concerns on the implementation of measures.278 Therefore, by allowing them some input into the decision making process it ensures that protection measures are not adopted unilaterally.279 2 Protection and treatment as victim-orientated justice Protection and fair treatment of victims is an important element of justice for victims as it is meant to ensure that they do not suffer from secondary victimisation and are respected in proceedings. However, as there are other interests before the Court, particularly the defendant, the judges have to reach a careful balance. Victim-orientated justice requires responsiveness to these needs while balancing them fairly with the interests of other parties in order to prevent secondary victimisation to the victims and violation of the defendant’s rights. a Balancing the rights of victims and the defendant Similar to the determinations on victim participation, the Court also has to ensure that any protection measures ordered are not ‘prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’.280 The Court on a case-by-case basis has developed further criteria for determining the use of protective measures based on the likelihood of risk

275 276 277 278 279

Article 68(1). Lubanga, ICC-01/04-01/06-1119, para. 128. Ibid., para. 129. Article 68(2). Rule 87(1) and Regulation 42(4), ICC Regulations; although in victims’ applications for participation PTC-II has unilaterally adopted redactions in order to protect the individuals due to the continuing conflict, see Kony et al., ICC-02/04-01/05-134, para. 22. 280 Article 68(1).

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facing the individual and the principle of proportionality.281 The Court’s general approach has been summarised as: 1 2 3 4 5

the existence of an objectively justifiable risk to the safety of the person concerned or which may prejudice ongoing or further investigations; the existence of a link between the source of the risk and the accused persons; the infeasibility or insufficiency of less restrictive protective measures; an assessment of whether the requested [measures] are prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial; and the obligation to periodically review the decision authorising the [measure] should circumstances change.282

These criteria demonstrate the Court striving to achieve a fair balance between the rights of the victims and the defendant. In comparison to the ad hoc tribunals there is no requirement at the ICC for victims to be significant to the prosecution’s case to avail of protection, thereby recognising the importance of protecting them rather than ensuring the prosecution’s case. In order to assess whether this balance has been fair for victims, this sub-section will examine the Court’s practice of ordering protective measures. The three main types of protection measures are (1) confidentiality, (2) anonymity, and (3) relocation. Confidentiality and anonymity can

281 Prosecutor v Katanga and Chui, Judgment on the appeal of the Prosecutor against the Decision of Pre-Trial Chamber I entitled ‘First Decision on the Prosecution Request for Authorisation to Redact Witness Statements’, ICC-01/04-01/07-475, 13 May 2008, para. 2; Prosecutor v Katanga and Chui, Decision Granting Protective Measures for Witness 323 during In-court Testimony, ICC-01/04-01/07-1795-Red-tENG, 27 January 2010, para. 6; Prosecutor v Lubanga, Redacted Decision on the Variation of Protective Measures under Regulation 42 on Referral from Trial Chamber II on 22 July 2009, ICC-01/04-01/062209-Red, 16 March 2010, para. 10. 282 This decision refers to redactions but has been edited to reflect the Court’s general approach to protective measures, original footnotes are removed, Prosecutor v Katanga and Chui, Decision on the Prosecutor’s Application for Protective Measures Pursuant to Article 54(3)(f) of the Statute and Rule 81(4) of the Rules, ICC-01/04-01/07-989-tENG, 25 March 2009, para. 4, citing Katanga and Chui, ICC-01/04-01/07-475, paras 71–73; Prosecutor v Lubanga, Decision establishing General Principles governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence, ICC-01/04-01/06-568, 13 October 2006, para. 37; Prosecutor v Lubanga, Judgment on the appeal of Mr Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled ‘First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81’, ICC-01/04-01/06-773, 14 December 2006, paras 21, 33, and 34; see also Prosecutor v Katanga and Chui, ICC-01/04-01/07-1795-Red-tENG para. 6; Prosecutor v Katanga and Chui, Decision on the Protection of the Neutral and Impartial Status of Information Providers, ICC-01/04-01/07-2055-Red, 5 May 2010, para. 11.

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affect the rights of the defendant and so will be analysed here, whereas relocation will be discussed in the following sub-section in relation to victims’ needs. First, confidentiality measures seek to protect the individual from the media and the public through closed sessions (in camera), visual and facial distortion, the use of pseudonyms, and prohibition of disclosure of parties and participants of the individual’s identity.283 Although the defendant has the right to a public trial under Article 67, the Court has ruled that this right can be suspended so as to protect a victim or witness by holding a closed session under Article 68(2).284 This is similar to the ad hoc tribunals, but without the requirement that they only be applied in ‘special considerations’.285 Second, an anonymity measure is where the identity of the individual is not disclosed to the public or the defendant. This is a more controversial measure than confidentiality owing to the fears of anonymous accusations, and so a more delicate balance is required. For victims applying, participating, or seeking reparations the Court has been willing to keep their identities anonymous through redactions, provided they meet the criteria outlined above, rather than a guaranteed right of protection.286 The Court’s reasoning for this has been to ensure that victims can participate without fear of being subjected to further trauma.287 At the situation or pre-trial level, the Court has taken a more lenient approach to redactions by using them extensively for victims as they do not impact the rights of the defendant until the case trial stage.288 The Court has yet to deal conclusively on full anonymity for those victims and witnesses testifying, but has left the door open by stating that such measures can be consistent with the rights of the defendant and a fair and impartial trial, due to judicial oversight and procedural safeguards.289 In reaching this standpoint the ICC has adopted the jurisprudence of the European

283 Article 68(2), Rule 87(3), Regulation 94, and Article 8 of the Code of Professional Conduct for Counsel. 284 Katanga and Chui, ICC-01/04-01/07-474, paras 21–22. 285 Tadic´, para. 42. 286 Rule 87(3)(a) and Regulation 94(g) Registry Regulations; see Katanga and Chui, ICC01/04-01/07-475, para. 59; Prosecutor v Katanga and Chui, Décision sur la protection de 21 témoins relevant de l’article 67–2 du Statut et/ou de la règle 77 du Règlement de procédure et de preuve, ICC-01/04-01/07-1332, 24 July 2009. 287 Lubanga, ICC-01/04-01/06-462, p. 6; Lubanga, ICC-01/04-01/06-1119, paras 128–129. 288 Kony et al., ICC-02/04-01/05-134, para. 21; Situation in DRC, ICC-01/04-374, para. 28; Katanga and Chui, ICC-01/04-01/07-579. 289 Lubanga, ICC-01/04-01/06-773, para. 50; Prosecutor v Kony et al., Decision on Victims’ Applications for Participation a/0192/07 to a/0194/07, a/0196/07, a/0200/07, a/0204/07, a/0206/07, a/0209/07, a/0212/07, a/0216/07, a/0217/07, a/0219/07 to a/0221/07, a/02228/07 to a/0230/07, a/0234/07, a/0235/07, a/0237/07, a/0324/07, and a/0326/07 under Rule 89, ICC-02/04-01/05-375, 10 March 2009, pp. 7–8.

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Court of Human Rights.290 The European Court recognises that in certain situations it is ‘necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest’.291 Although Article 68(5) allows the Prosecutor not to disclose any evidence if it ‘may lead to the grave endangerment of the security of a witness or his or her family’, it is qualified by ‘prior to the commencement of the trial’, meaning that victims who testify in the trial will have their identity disclosed to the defence. Generally, the Court has required testifying victims to relinquish their anonymity so as to ensure the fair trial rights of the defendant.292 However, the human rights jurisprudence does allow victims to testify anonymously provided there is an identifiable risk and the evidence given is not sole or decisive in the defendant’s conviction. Thus the Court’s willingness to force victims to choose between testifying and maintaining the anonymity seems to be at odds with the jurisprudence of the European Court, considering the risk of violating a victim’s rights to life, personal integrity, and privacy if they are identified, such as occurred before the ICTR. A solution suggested during the drafting of the Rules of Procedure and Evidence was the appointment of an ‘independent guardian of the witness’.293 The guardian would investigate the identity and reliability of the victim, so as to ensure the rights of the defendant and the protection of victims. The Court would monitor the role of the guardian. The defence could still question the victim on the veracity of their testimony, such as dates, locations, and activities. This approach would maintain the anonymity of testifying victims, as well as being consistent with human rights standards by guaranteeing adequate judicial oversight and procedural safeguards, provided it is not the sole or decisive evidence on which the Court relies on to ensure a conviction. Nonetheless, there remains a disagreement within the Court on how to ensure an effective balance between the rights of the defendant and victims when it comes to anonymity, especially in relation to the extent of victim participation. Lessons can hopefully be learnt from the ICTY experience, as discussed in Chapter 2, where in the Tadic´ case the Tribunal allowed anonymity on the basis that the judges would know victims’

290 Kostovski v the Netherlands, App. no. 11454/85 (ECtHR, 20 November 1982), paras 43–44; Doorson v the Netherlands, paras 69–72; Rowe and Davis v the United Kingdom, App. No. 28901/95 (ECtHR, 16 February 2000); see Katanga and Chui, ICC-01/04-01/07-474, n. 64; in UK anonymous witnesses are permitted under s. 86, Coroners and Justice Act 2009. 291 Rowe and Davis ibid., para. 61, cited from Katanga and Chui, ICC-01/04-01/07-475, p. 21. 292 Katanga and Chui, ICC-01/04-01/07-1788-tENG, paras 92–93. 293 Proposal submitted by Italy concerning the Rules of Procedure and Evidence Protection of Victims’ and Witnesses’ Identity, PCNICC/1999/WGRPE/DP.20, 28 July 1999; see Brady Note 252, p. 450.

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identity and be able to assess their authenticity. The legal framework of the ICC for protecting victims and witnesses places a greater emphasis on their needs than the ad hoc tribunals. Additionally, in light of Article 21(3) the Court is obliged to interpret the Rome Statute in light of human rights law, which does allow victim anonymity when testifying and participating. Accordingly, for the ICC judges a fair balance between victim and defendant rights would allow anonymous testifying and participating provided appropriate safeguards are maintained. b Responsiveness to victims’ needs The ICC judges have striven to ensure that protection measures respond to victims’ needs. This can be seen in the Court’s approach to the determination of harm in deciding whether protection measures are necessary. It has found that harm is not limited to the physical sense, but can also include psychological harm and even serious forms of intimidation in certain cases, such as death threats.294 In ordering protection measures the Court requires an individual to be ‘exposed to an evidenced based (established) danger of harm or death’.295 However, the Office of the Prosecutor (OTP) has argued that such a high threshold puts individuals at too much risk before being able to avail of the protection programme. Instead, the OTP contended that risk should be ‘as close as possible to zero’ and ‘eliminated’.296 This was rejected by the Trial Chamber as inappropriate in practice.297 Instead, the Court’s approach is consistent with human rights law, which requires a ‘real and immediate’ danger.298 It could be said that the Court is more responsive to victims’ needs by not requiring the danger to be imminent. Article 68(1) obliges the Court to ‘take appropriate measures to protect . . . victims’ without qualifying which victims are to be protected. The protection of potentially millions of victims who suffered crimes within the jurisdiction of the ICC would be unworkable in practice. The approach of the VWU in interpreting Rules 85 and 87 has been to protect those ‘victims who appear before the Court’, i.e. victims testifying or participating in person

294 Ibid., para. 29. 295 Prosecutor v Lubanga, Decision on the Prosecution and Defence Applications for Leave to Appeal the Trial Chamber’s ‘Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters’, ICC-01/04-01/06-1557, 16 December 2008, paras 27–28. 296 Prosecutor v Lubanga, Decision issuing a Confidential and a Public Redacted Version of ‘Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters’, ICC-01/04-01/06-1311-Anx2, 8 May 2008, para. 56. 297 Ibid., para. 78. 298 Osman v United Kingdom, App. no. 23452/94 (ECtHR, 28 October 1998), para. 116; see Doak Ch. 1 Note 194, pp. 39–44.

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before the Court.299 However, the Court has a wider obligation to victims under Article 68(1), which does not specifically refer just to those ‘appearing before the Court’.300 Accordingly, the Court has ordered protection measures not only for victims appearing before it as witnesses or participants, but also those who are applying to participate.301 Yet, even extending protection to those applying to participate before the ICC can still number in their thousands. Moreover, the Court does not have the resources to provide individual protection measures on the ground, especially in cases of continuing conflict, such as in the DRC.302 Instead, the Court has used redactions of victims’ identity to protect them when they are applying to the Court and participating before the ICC.303 This approach is a workable solution to the wide definition of victims in Rule 85 by respecting the privacy and safety of all victims who interact with the Court. The most extreme protective measure of the Court is to relocate a victim, witness, or other person to a different region or country in order to protect them. Relocation measures have been a contentious issue within the ICC. The Prosecutor has used ‘preventative relocation’ of witnesses to move individuals who are at risk, against the advice of the VWU. In one case the Prosecutor forcibly removed two witnesses from their homes and family ties to another location.304 Once moved they were identified as the witnesses of the Court and were unable to return to their homes safely, thus they needed to be admitted into the Court’s witness protection programme for permanent relocation.305 The Appeals Chamber recognised, in endorsing the arguments of the VWU, that relocation is a, serious matter that can . . . have a ‘dramatic impact’ and ‘serious effect’ upon the life of an individual, particularly in terms of removing a witness from their normal surroundings and family ties and re-settling that person into a new environment. It may well have long-term consequences for the individual who is relocated – including potentially placing an individual at increased risk by highlighting his or her involvement with the Court and making it more difficult for that individual to move back to the place from which he or she was relocated, even in circumstances where it was intended that the relocation

299 300 301 302

Article 43(6) and Rule 17(2)(a); see Lubanga, ICC-01/04-01/06-1078. See ibid., ICC-01/04-01/06-1078, para. 20. Kony et al., ICC-02/04-01/05-134, para. 21. Lubanga, ICC-01/04-01/06-462, p. 6; ibid., ICC-02/04-01/05-134, paras 21–24; Situation in DRC, ICC-01/04-374, paras 20–21; Kony et al., ICC-02/04-01/05-375, pp. 7–8. 303 Lubanga, ICC-01/04-01/06-462, p. 6; ibid., ICC-02/04-01/05-134, para. 24. 304 Prosecutor v Katanga and Chui, Victims and Witnesses Unit’s Considerations on the System of Witness Protection and the Practice of ‘Preventive Relocation’, The Registry, ICC01/04-01/07-585, 12 June 2008, paras 39–42. 305 Ibid.

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should be only provisional. Where relocation occurs, it is likely to involve careful and possibly long-term planning for the safety and wellbeing of the witness concerned.306 This understanding of the Court reflects the individual, familial, and social impact of relocating a person. The decision therefore represents the Court taking an individual-focused perspective which is more likely to serve the interests of victims, rather than the interests of the Prosecutor. In this case, the Appeals Chamber ruled that the VWU is in the best position to determine who is to be relocated, due to its expertise, legal position, and criteria, along with the consultation and consent of the individual.307 This approach is more respectful of victims’ autonomy and responsive to their needs rather than to facilitate the agenda of the Prosecutor in prosecuting perpetrators. Special measures can also ensure the Court is responsive to the safety and psychological needs of victims. The Court’s Rules permit the attendance of a support person during a victim’s testimony, including ‘counsel, a legal representative, a psychologist or a family member’.308 This reflects domestic practices and the UN Victims’ Declaration position towards vulnerable victims and witnesses.309 Rule 88(2) goes further than the practice of the ICTY, which provided a support officer in an adjacent room to support witnesses before, during, and after their testimony,310 by allowing support persons to also attend the testimony of the individual in court. This attendance could be vital for a vulnerable individual in alleviating some of their stress or apprehension in testifying. Additionally, the Court has used live video-link evidence for vulnerable witnesses from their home areas in order to minimise the disruption in their life and the risk of attention being drawn to them who may be noticed missing if they travel to The Hague to testify, such as occurred before the ad hoc tribunals. In the Lubanga trial, for instance, the Chamber used video-link testimony for three witnesses.311 This is in line with human rights law and procedural justice to ensure proceedings minimise inconvenience to victims and protect them from further harm.312 306 Prosecutor v Katanga and Chui, On the Appeal of the Prosecutor against the ‘Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules’ of Pre-Trial Chamber I, ICC01/04-01/07-776, 26 November 2008, para. 66; endorsing ICC-01/04-01/07-585; a Special Relocation Fund amongst State Parties has been established to sponsor relocations. 307 Ibid., ICC-01/04-01/07-776, paras 92 and 98. 308 Rule 88(2). 309 Ibid., Principle 6(c)–(d), UN Victims’ Declaration; see Brady Note 252. 310 Information booklet on ICTY Witnesses Ch. 2 Note 125, pp. 15–16. 311 The Reflections of a Trial Judge, 6 December 2010, ASP-9, para. 15. 312 Principle 6(d), UN Victims’ Declaration.

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The judges have also been respectful to victims when testifying or presenting their views before the Court. Rule 88(5) stipulates that the ‘Chamber shall be vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence’.313 The judges so far have controlled cross-examination and been supportive of victim-witnesses and participating victims by giving them numerous breaks when they need them during their testimony. In contrast to previous tribunals, the Court usually allows victims and victim-witnesses to testify by first ‘telling their story’ in narrative form, without interruptions or leading questions.314 This may avoid some of the dissatisfaction victims faced when testifying at previous tribunals. The judges have also gone beyond their obligations in the Statute and RPE by being empathetic and respectful to victims, thanking them for attending and helping the Court to determine the truth, as well as wishing them the best of health.315 This respect displays procedural justice by valuing their input and listening to what they want to say.316 c Victim-orientated justice? The judicial interpretation by the judges of the ICC goes beyond the functional use of measures by the ad hoc tribunals to ensure a witness’ testimony, by instead recognising the needs and rights of victims to be protected and supported from further trauma. This is consistent with notions of procedural justice for victims and human rights standards. A fair balance between the rights of victims and the defendant has yet to be struck in some areas, such as anonymity, with a preference for protecting the rights of the accused. The Court can take note of the human rights jurisprudence in this area so as to avoid the mistakes of the ad hoc tribunals. In practice, the Kenyan situation has raised a number of concerns with different actors engaging in measures to intimidate witnesses and victims, such as threats, bribery, and social pressure.317 The VWU has moved a number of victims and witnesses because of threats, with the Court issuing an arrest warrant for Kenyan journalist Walter Barasa for bribing

313 Rules 70–71 also exclude issue of consent in questioning victims of sexual violence. 314 See McGonigle Ch. 1 Note 30, p. 322, fn. 610. 315 See for example the two victims that testified in the Katanga and Chui trial, Witness DRCV19-P-0002, ICC-01/04-01/07-T-233-Red-ENG, 23 February 2011, p. 53 lines 7–19, and Witness DRC-V19-P-0004, ICC-01/04-01/07-T-235-Red-ENG, 25 February 2011, p. 45 lines 19–25. 316 See Chapter 1. 317 See Prosecutor v Ruto and Sang, ICC-01/09-01/11-896-Corr-Red, 5 September 2013.

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prosecution witnesses. The passing of a motion by the Kenyan Parliament to remove the International Crimes Act in Kenya has only solidified hostility towards the Court as well as to witnesses and victims. Modern technology poses a further problem for the Court as public proceedings of the Court are streamed online: there are real risks that if a participant in the Court’s proceedings mentions a witness’ or victim’s name it could be used to identify them or posted on to a social media platform, with the first witness in the Ruto and Sang case identified by such means.319 The Court has been proactive in protecting victims in these cases, by delaying disclosure of witnesses’ identities and redacting identifying information.320 However, the extent to which the Court as an international organ can achieve protection on the ground is questionable, and requires compliance of State Parties. The inability of witnesses and victims to feel safe before the Court resulted in the Kenyatta trial being delayed after a number of key witnesses pulled out due to safety concerns.321 In more general terms, the focus of the Court is to protect victims in line with their ‘particular needs and circumstances’.322 The VWU and the judges’ sensitivity to victims creates a more supportive environment for them. The success of protection and special measures remains to be seen in the long term. In comparison to previous tribunals, the judges of the ICC are more willing to recognise that the rights of the defendant can be limited to protect victims and avoid further victimisation through proceedings. This may reflect a better understanding of victims’ needs and recognition of their importance in procedural justice. Initial indications would suggest that most victims who have interacted with the Court have been very satisfied with the way they are treated.323 Overall, the treatment and protection system of the ICC is victim-orientated justice by being responsive to their needs.

318 Warrant of Arrest for Walter Osapiri Barasa, ICC-01/09-01/13-1-Red2, 2 August 2013; similar charges have been brought against senior members of Jean-Pierre Bemba’s defence team and Bemba himself – Warrant of Arrest for Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisse Arido, ICC-01/05-01/13-1-Red2-tENG, 5 December 2013. 319 Acknowledged by the Trial Chamber V(a) in the Ruto and Sang case, ICC-01/09-01/11T-32-Red-ENG, 18 September 2013. 320 Such as the Protocol establishing a redaction regime in the case of the Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, ICC-01/09-02/11-495-AnxA-Corr, 5 October 2012. 321 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following an application seeking an adjournment of the provisional trial date, 19 December 2013. 322 Rules 17(2)(a) and 86. 323 Luc Walleyn, The Prosecution of International Crimes and the Role of Victims’ Lawyers, in Ferstman et al. Ch. 1 Note 21 353–367, p. 365.

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F Conclusion The start of this chapter quoted the UN Secretary-General Kofi Annan stating that the Court’s ‘overriding interests must be that of the victims and the international community’, with other commentators saying victims are at the heart of international criminal justice. Although the victim provisions of the ICC may be innovative in international criminal justice, heralding them as a ‘high-water mark’ is misleading when compared to more advanced regional human rights courts’ jurisprudence and national practice. The criminal proceedings of the ICC are retributive in nature, and the meaning of justice for victims for the purposes of the Court is constructed in a retributive manner or in functional terms to assist the judges in clarifying the truth. Although it is unrealistic to assume that victims’ interests would dominate the ICC, the drafters intended that one of the purposes of Court is to deliver justice to victims. The construct of victimorientated justice developed in Chapter 1 does provide some insight into how the ICC can be responsive to victims’ needs whilst balancing them against other interests. When examining the Court’s proceedings the adherence to victims’ interests and needs in proceedings is less evident. The provisions in the Rome Statute do offer victims some form of procedural justice by treating them fairly and with respect, in contrast to previous tribunals. However, these have not resulted in the ICC being responsive to their substantive rights. Even though the Court has recognised victims’ rights to truth and justice, their input is not sufficiently considered in the determination of these issues, particularly in the investigation. Where victims’ interests are adhered to is when they do not conflict with or infringe the rights of the defendant or the independence of the Prosecutor, namely certain protection measures and reparations. Accordingly, this gives the impression that victims’ role in the criminal proceedings of the ICC is symbolic. Reparations at the ICC could offer a more victim-centred justice, or at least satisfy some of their substantive needs.

4

Reparations and responsibility under the Rome Statute

A Introduction The inclusion of reparations in the Rome Statute is an important advance in international criminal justice, in comparison to past tribunals.1 With the numerous developments in national, international, and human rights law, reparations for international crimes based on state responsibility have become a fundamental component of redressing such serious crimes. However, unlike its international and national counterparts, the Court’s regime is based on individual criminal responsibility. Accordingly, the reparations regime of the ICC is sui generis. Moreover, the Pre-Trial Chamber I has declared that reparations are ‘not only one of the Statute’s unique features. It is also a key feature . . . the success of the Court is, to some extent, linked to the success of its reparation system.’2 This chapter builds on the theoretical discussion in Chapter 1 by examining whether the Rome Statute’s provisions on reparations can deliver victim-centred justice. This can be contrasted to victim-orientated justice discussed in the previous chapter on the criminal proceedings of the ICC, which has to be balanced with other interests in order to determine justice. This chapter submits that even though the reparation regime of the ICC was established to provide justice to victims, its structural limitations of being connected with the criminal trial will restrict its effectiveness in remedying victims’ harm. Accordingly, the Court cannot by itself sufficiently redress the harm suffered by victims with reparations. Instead, the ICC requires the support of the Trust Fund and State Parties to assist its reparations regime. This chapter begins by considering the theoretical and normative basis of reparations, before outlining the drafting of reparation provisions and then the Court’s reparation regime under the Rome Statute. The subsequent section examines the interpretation of the reparation regime by 1 Justice for Victims: The ICC’s Reparation Mandate, Redress, May 2011. 2 Prosecutor v Lubanga, Decision on the Prosecutor’s Application for a Warrant of Arrest, ICC01/04-01/06-8-US-Corr, 24 February 2006, para. 136.

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the ICC, and practical difficulties in light of international and human rights jurisprudence. The final parts of this chapter assess whether solutions can be found to these challenges through the work of the Trust Fund and state responsibility. The chapter concludes by finding that reparations at the ICC will only be successful through complementarity with State Parties.

B The theoretical and normative basis of reparations Reparations are measures which are meant to repair the harm caused to an injured party.3 As established in the Chorzow Factory case, they are to ‘as far as possible, wipe-out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’.4 The 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UNBPG) states that reparations are intended to ‘promote justice by redress’.5 For this book, reparations are victim-centred justice as they concentrate on remedying victims’ harm. Drawing from civil law principles in equity and tort in many national jurisdictions, reparations seek to return the victim to the status quo ante (original position) through restitutio in integrum (returning to the victim all they have lost).6 Therefore, they can be the instruments of corrective justice.7 However as discussed in Chapter 1, corrective justice is more of a mathematical formula of ensuring equality. Rombouts and Paramentier contend that returning victims to their original position may restore them to a position of inequality, such as discriminated minority, or it may be impossible to return them as they may be severely injured or dead.8 In light of this issue human rights law has found that reparations are not meant to enrich or impoverish victims or their heirs, but to repair their harm.9 Instead of being backward looking, reparations can be prospective as a right that can provide victims with the agency and means to build a

3 See A Sourcebook for Victims of Torture and other Violations of Human Rights and International Humanitarian Law, Redress, 2003. 4 Chorzow Factory, 1928, para. 125. 5 Principle 15, A/RES/60/147. 6 Velásquez Rodríguez, paras 25–26; Plan de Sánchez Massacre, para. 52; Blake v Guatemala, Reparations, Series C No. 48 (IACtHR, 22 January 1999), para. 31; Papamichalopoulos and Others v Greece, para. 34; Dinah Shelton, Remedies in International Human Rights Law (Oxford University Press 2005), pp. 9 and 65. 7 See Loayza-Tamayo v Peru, Reparations, Series C No. 43 (IACtHR, 27 November 1998), para. 151. 8 Rombouts and Parmentier Ch. 1 Note 148. 9 Garrido and Baigorria v Argentina, Judgment, Series C No. 39 (IACtHR, 27 August 1998), para. 43.

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new life. Reparations can also involve distributive justice by redressing inequalities in society through the redistribution of goods to prevent recurrence of violations in the future, such as the representation of different ethnic groups in government. Therefore remedies can be more broadly construed as reparative in nature, rather than simply corrective.11 It has been suggested that reparations can be understood as measures of deterrence to dissuade individuals or states from committing wrongful acts. An economic theory of reparations asserts that it ‘ought to deter possible wrongdoers from causing (greater) social costs in the future’12 by equating ‘the value of damages with the value of harm’.13 However, certain harms cannot be quantified in monetary terms. Moreover, deterrence focuses on punishing the perpetrator and their future acts, rather than redressing the suffering of the victim. In international law and human rights law reparations are non-punitive so as to focus on remedying the harm of the victim.14 For the purpose of this book, reparations are predominately reparative in nature to remedy the harm suffered by victims, but responsibility still plays an important part in determining who should provide them. To clarify reparations it is perhaps useful to reduce it down to three core elements: (1) acknowledgement of victims’ suffering; (2) appropriate types of reparations to remedy their harm; and (3) made by those responsible. Acknowledgement serves to publicly accept the suffering of victims and to recognise them as ‘victims’, discussed as recognition in Chapter 1. The second element pertains to ensuring that appropriate measures are taken to effective remedy victims’ harm, this is discussed further below in the types of reparations. Together acknowledgement and effective remedy of victims’ harm can affirm their dignity and discontinuity of suffering in the past by ‘correction in the old and the creation of the new’.15 1 Effective remedy Reparations in international law and human rights law fall under the heading of an effective remedy for victims. Remedies are means to redress a harm or violation through procedural mechanisms such as courts, and

10 The ‘proyecto de vida’ (life project) established for a time by the IACtHR in Loayza Tamayo, paras 147–148. 11 Separate Opinion of Judge Cançado Trindade, the Street Children case, para. 42. 12 Rombouts and Paramentier Ch. 1 Note 148, p. 159. 13 Shelton Note 6, p. 18. 14 Velásquez Rodríguez, para. 38; ILC Commentaries on Articles of State Responsibility, pp. 99 and 107; Principle 15, UNBPG. 15 Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others (CCT17/96) [1996] ZACC 16, para. 21; Teitel Ch. 1 Note 260, p. 147.

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substantive outcomes, i.e. convictions and reparation orders.16 International humanitarian law (IHL) has for a long time recognised that, at least in international armed conflicts, states are responsible to remedy the harm caused from any violation of IHL through compensation.17 In human rights law, remedies have long been established as essential for individuals to seek redress against the state for violating their rights.18 According to the UNBPG, victims’ right to remedies includes ‘equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms’.19 As discussed in Chapter 1, remedies can be synonymous with justice for victims or victim-centred justice, and reflect both procedural and substantive elements.20 Reparations also contain these elements. Procedural justice for reparations involves victims to be informed, to participate, to be able to claim reparations, and to appeal decisions. Substantively, reparations redress victims’ harm through appropriate measures. Reparations can also encompass complex identities of victim-perpetrators, whereby their victimisation can be acknowledged, but the amount or types of reparations available may be reduced or barred to reflect their responsibility and remedy the harm they caused to other individuals. The discussion of an effective remedy throughout this chapter in relation to the ICC can therefore be understood as ensuring victims’ procedural and substantive rights to reparations. 2 Responsibility Responsibility is tied to accountability, which is concerned with ensuring that those who are culpable for causing the violation are appropriately sanctioned.21 For victims such accountability is evinced by identifying those parties responsible, holding them to account for their actions, issuing a

16 Shelton Note 6, p. 7. 17 Article 3 of The Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV), and Article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977. 18 See for instance Article 8 of the Universal Declaration of Human Rights, and Article 2 of the International Covenant on Civil and Political Rights. 19 Principle 11, UNBPG. 20 The distinction between justice for victims and victim-centred justice is that the former is from victims’ perspective of what justice means to them based on their needs, whereas the latter is the determination of justice by the Court being responsive to victims’ needs. Victim-orientated justice is the Court balancing victims’ interests with other parties’ rights to decide justice, as discussed in Chapter 1. 21 Kleffner Ch. 1 Note 15, p. 240.

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judgment on their liability, and requiring them to provide reparations.22 Attaching responsibility for reparations to perpetrators, whether individual, state, or organisational, can provide an important psychological function for victims in appropriately directing blame at those who committed the atrocity against them and to relieve their guilt.23 Reparations made by the responsible perpetrator can also help to symbolise their commitment to remedying the past and to be held to account for their actions. Thus responsibility for reparations distinguishes such measures from charity or humanitarian assistance by achieving some form of accountability.24 Responsibility for reparations stems from a wrongful act by a person or entity, which contravenes the rights of an injured party. As Shelton points out, it is the, ‘rights-infringing nature of the wrongful conduct that is the source of the claim. Otherwise a person’s losses due to a falling tree would be legally equivalent to an injury resulting from torture.’25 There are three levels of responsibility for reparations generally recognised in international law for international crimes: (1) individual; (2) state; and (3) international. A fourth will also be suggested below for organisations. Together these different types of responsibility reflect the diversity of legally culpable actors in international crimes, which can overlap.26 First, individual responsibility arises from the autonomy and capacity of individuals to make their own free and informed decisions, with them being held to account for their consequences.27 In domestic law, individuals can be responsible for their wrongful acts in both civil and criminal proceedings depending on whether the act is defined as criminal by violating public interests or just giving rise to damages between private parties.28 Obliging a responsible individual to make reparations reestablishes the legal order through holding them accountable and remedying the harm they have caused. The ad hoc tribunals permitted compensation and restitution to be based on the individual criminal

22 Prosecutor v Thomas Lubanga, Decision Establishing the Principles and Procedures to be applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 179. 23 Brandon Hamber, Narrowing the Micro and Macro: A Psychological Perspective on Reparations in Societies in Transition, in P. de Greiff (ed.), The Handbook of Reparations (Oxford University Press 2006) 560–588, p. 566. 24 Carla Ferstman and Mariana Goetz, Reparations before the International Criminal Court: The Early Jurisprudence, in C. Ferstman, M. Goetz, and A. Stephens (eds) Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Brill 2009) 313–350, p. 341. 25 Ibid., p. 12. 26 Bystanders may be morally culpable for international crimes, but not legally. 27 Andrew Ashworth, Principles of Criminal Law (Oxford University Press 2009, 6th edn). 28 Shelton Note 6, p. 25.

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responsibility of perpetrators convicted before them, though no orders were ever made.29 Second, state responsibility occurs when a state violates an international obligation, such as under an international treaty.30 A breach of primary rules by a state committing a wrongful act, e.g. violating an obligation under a treaty, creates a new relationship between two or more states, requiring the responsible one under secondary rules, i.e. on responsibility, to cease the breach and provide reparations to the injured state.31 As stated in the Chorzow Factory case ‘[i]t is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form’.32 State responsibility allows for a remedy to be made to an injured party, while also functioning as a condemnation of the state’s breach and the ‘restoration of the international legality, [and] respect for international law’.33 The International Court of Justice has recognised that although most reparation orders in international law are inter-state, in certain cases a state can be ordered to provide reparations to individuals.34 This is the position in human rights law, where individuals and groups are right-holders who can directly claim reparations against states for violating their rights.35 State responsibility can also emanate from jus cogens (non-derogable) norms, which impose strict liability on states for committing international crimes such as genocide, war crimes, and crimes against humanity, as well as gross violations of human rights. Breaches of jus cogens norms are deemed ‘objectively illegal’ or wrongful as they violate the fundamental interests of the international community.36 A state cannot be held criminally responsible for international crimes, as established at Nuremberg ‘[c]rimes against international law are committed by men, not by abstract

29 Articles 24(3) and 23(3) of the ICTY and ICTR Statutes respectively as well as common Rule 106, RPE. 30 Article 2, RSIWA. 31 United Kingdom v Albania, the Corfu Channel case, Judgment of 9 April 1949, ICJ Reports 1949, pp. 4–169, p. 23; ILC Articles 1–2 and commentaries; Eric David, Primary and Secondary Rules, in J. Crawford, A. Pellet, and S. Olleson (eds), The Law of International Responsibility (Oxford University Press 2011) 27–33. 32 Chorzow Factory, p. 21; see also Article 31, RSIWA. 33 Alain Pellet, The Definition of Responsibility in International Law, in Crawford et al. Note 31 4–15, p. 15. 34 See the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136, paras 151–153; see Liesbeth Zegveld, Victims’ Reparations Claims and International Criminal Courts: Incompatible Values? Journal of International Criminal Justice 8 (2010) 79–111; cf. Article 33(2), ILC Responsibility of States for Internationally Wrongful Acts (RSIWA), Yearbook of the International Law Commission (2001), vol. II (Part 2). 35 Velásquez Rodríguez, para. 134. 36 Article 53, Vienna Convention; Orakhelashvili Ch. 1 Note 6, p. 242; Prosecutor v Kupreškic´ et al. (IT-95-16) Judgment, 14 January 2000, para. 520; Article 40, RSIWA.

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entities’. Instead when jus cogens norms are breached, the responsible state is under an obligation to prosecute the perpetrators and provide reparations to the victims, in order to cease and alleviate the harm, thereby reasserting their non-derogable status.38 Where a state fails to comply with their obligations arising from breaching a jus cogens norm, obligatio erga omnes (obligations flowing to all) occur, whereby the collective interests of other states affected by the breach can seek to invoke the responsibility of the responsible state.39 Third, international responsibility is reflected in erga omnes obligations, which require every state to ensure the enforcement of binding international law. Under the Article 48 of the Articles on State Responsibility (RSIWA), which sets down principles on state responsibility, a non-injured state can invoke the responsibility of another state where the obligation breached is owed to a group of states and protects a collective interest, such as in multilateral treaties, i.e. ‘obligations erga omnes partes’, or it is owed to the international community as a whole.40 It is due to the ‘importance of the rights involved’ that non-injured states have a ‘legal interest’ in ensuring their protection and the maintenance of international law.41 The commission of international crimes is the ‘concern of all States’ as they ‘threaten the peace and security of humankind and . . . shock the conscience of humanity’.42 A non-injured state which invokes the responsibility of another is entitled to claim from the responsible state cessation of the wrongful act, guarantees of non-repetition, and fulfilment of reparation to an injured state or the beneficiaries of the obligation breached.43 Furthermore, for serious breach of jus cogens obligations, all states are required to take lawful action to bring such a breach to an end and to refuse to recognise the situation as lawful.44 Fourth, organisational responsibility relates to the mass, organised violence carried out by non-state armed groups, which holds the organisation responsible collectively through its members. Drumbl points out that individual criminal responsibility has limited utility when such crimes are committed on a collective basis with individual participation deeply conformist.45 Instead he distinguishes collective responsibility from

37 Judgment of the International Military Tribunal, IMT Official Documents, Vol. 1 (1947) p. 223. 38 Article 40, RSIWA; Orakhelashvili Ch. 1 Note 6, p. 243. 39 Bassiouni Ch. 1 Note 4, p. 72. 40 See ILC Commentaries RSIWA Note 21, p. 126. 41 Barcelona Traction, Light and Power Company, Limited, Judgment [1970] ICJ Reports 3, para. 33. 42 Ibid., paras 33–34; Bassiouni Ch. 1 Note 4, p. 69; Article 48, RSIWA. 43 Article 48(2). 44 Articles 40 and 41, RSIWA. 45 Drumbl Ch. 1 Note 47, p. 24.

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‘collective punishment’ due to its non-criminal sanctions, thereby avoiding liberal concerns of collectively punishing such individuals.46 Kelly further supports the responsibility of individuals as members of a group as a basis for responsibility of reparations, owing to complicity with the action of the group.47 Members of an armed group agree with the group’s principles, purpose, or aims, and by themselves in a normal society would not agree to such actions, but for the group.48 Moreover, as members of an armed group expressing approval of the organisation’s action and benefit from membership of the group, they should be collectively responsible for the acts of the group and the ‘cost’ of reparation.49 The collective behaviour of members in an organisation reflects the collective pressure, organisation, and culture through discipline and orders which conditions individuals to collectively act as an armed group, thus lending itself to organisational responsibility and collectively seeking reparations from members of a group, rather than just individuals.50 In relation to reparations such groups may be more able to provide reparations than just individuals, as they may have more resources or control over land, and can prevent reoccurrence of violations through training of members, or continue to maintain authority over a region that enables them to facilitate measures, such as the construction of memorials or recovery of the bodies of those disappeared.51 Organisational responsibility reflects the collective nature of these crimes, which are distinct from state and individual responsibility, as they are not legal entities and do not attach criminal responsibility.52 However, where these groups are unable to provide reparations the state should provide them to victims on the principle of subsidiary in that the state is ultimately responsible for providing a remedy to victims of international crimes.53 The state can compel the compliance of these armed groups with such reparation measures through administrative and judicial mechanisms, or to indemnify the government for reparations paid to victims.54 Accordingly organisational responsibility would hold all members collectively responsible for reparations and together with other types of responsibility better reflect the pluralistic culpability of international crimes. 46 Ibid., p. 25. 47 Erin Kelly, Reparative Justice, in T. Isaacs and R. Vernon (eds), Accountability for Collective Wrongdoing (Cambridge University Press 2011) 193–209, p. 201. 48 Ibid., p. 202; Drumbl Ch. 1 Note 47, p. 29. 49 Kelly ibid., p. 207. 50 Kleffner Ch. 1 Note 15, p. 244. 51 Ron Dudai, Closing the Gap: Symbolic Reparations and Armed Groups, International Review of the Red Cross 93(883) (September 2011) 783–808. 52 See Jann K. Kleffner, The Applicability of International Humanitarian Law to Organized Armed Groups, International Review of the Red Cross 93(882) (June 2011) 443–461, p. 450. 53 Principle 16, UNBPG. 54 Principles 15 and 17, UNBPG.

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C The International Criminal Court’s reparation regime Reparations have been notably absent from international criminal law. With the introduction of reparation provisions in the Rome Statute of the ICC this shortcoming has been addressed on paper, though it remains to be seen whether it will be an effective remedy for victims in practice. This section begins by considering the drafting of the reparations provisions within the Rome Statute, before outlining the Court’s reparation regime. 1 Drafting of reparation provisions As mentioned in the previous chapter, the inclusion of victim provisions within the Rome Statute was the result of: the participation of numerous states and NGOs in drafting; the criticisms of the ad hoc tribunals of neglecting victims’ interests; and developments in victimology, international law, and human rights law. Although previous tribunals offered the possibility of compensation and restitution, as noted in Chapter 2, a reparation order was never made. The ad hoc tribunals were confounded by the challenge of determining who should receive reparations, weak statutory provisions, and the lack of funding for reparation orders. Reports by judges in both the ad hoc tribunals rejected compensation provisions on the grounds that it would be time-consuming, delay their work, and undermine the rights of the defendant to an expeditious trial. These same issues face the ICC. Nevertheless, the inclusion of reparations within the Rome Statute demonstrates the indivisibility of accountability and reparations in effectively remedying the harm caused to victims by international crimes. In the early drafts of the Statute of the ICC, the International Law Commission (ILC) specified that compensation was to be determined by the Court and enforced through national courts as with the provisions at the ad hoc tribunals.55 However, many delegates were worried that reparations, considered a civil matter, would be inappropriate for a criminal court owing to their complexity and the large numbers of victims involved in international crimes.56 As a compromise, the ILC draft Statute (1993) included a trust fund under the UN Secretary-General for the ‘benefit of victims of crime’ collected from fines or confiscated property.57

55 Fiona McKay, Are Reparations Appropriately Addressed in the ICC Statute? In D. Shelton (ed.), International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Transnational Publishers 2000) 163–174, p. 167. 56 Report of the International Law Commission on the Work of its 44th Session, 4 May to 24 July 1992, Official Records of the General Assembly, 47th session, Supplement No. 10, paras 88–92. 57 Article 53(4), Report of the International Law Commission on the Work of its 45th Session, UN Doc. A/48/10, 1993.

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Nonetheless, the Preparatory Committee, established to draft the Statute for the Rome Conference, included such a reparation provision. This differed considerably from the final Article 75, as it originally included state responsibility for reparations. Under Article 73(b) of the draft Statute, the Court could make a reparation order against a state if the convicted person is unable to do so and ‘in committing the offence, was acting on behalf of the State in an official capacity, and within the course and scope of his/her authority’.58 Article 73(c) also provided that where crimes were committed by non-state actors, the Court may recommend the state to ‘grant an appropriate form of reparations to victims’.59 Therefore Article 73 reflected the position of international and human rights law that reparations should be the responsibility of the state if the perpetrator is indigent.60 At the beginning of the Rome Conference, reparations were undetermined and included a number of proposals, which provided for both state responsibility and direct orders by the Court against individuals. Many states wanted to avoid reparation orders being made against them; some saw that reparations would detract from the purpose of the Court to punish perpetrators, while others wanted to ensure effective reparations for victims through state paid orders.61 Motivated by NGOs, delegations modified a joint proposal made by France and the United Kingdom during the Preparatory Committee to arrive at the final draft of Article 75.62 The delegates realised that retributive justice through punishment of the defendant was not enough to satisfy victims’ needs for justice and to ensure them an effective remedy.63 Therefore the inclusion of reparation at the ICC under Article 75 was an attempt by the drafters to deliver ‘justice for victims’64 or ‘justice in a wider sense’ reflecting norms in human rights law.65 The Trust Fund for Victims under Article 79 was also adopted to act as a repository for fines and to provide legal assistance to victims.66

58 Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1, 14 April 1998, pp. 116–118. 59 Ibid. 60 Principle 16, UNBPG. 61 McKay Note 55; Muttukumaru Ch. 1 Note 282; Boven Ch. 3 Note 7, p. 900. 62 Proposal by France and the United Kingdom of Great Britain, A/AC.249/1998/WG.4/ DP.19, 10 February 1998. 63 Muttukumaru Ch. 1 Note 282, p. 264. 64 McKay Note 55, p. 166. 65 Muttukumaru Ch. 1 Note 282, p. 264. 66 International Seminar on victims’ access to the International Criminal Court, PCNICC/1999/WGRPE/INF.2. Rule F; see also Thordis Ingadottir, The International Criminal Court: The Trust Fund for Victims (Article 79 of the Rome Statute), A Discussion Paper (PICT February 2001), p. 27.

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Although reparations were accepted as part of the ICC framework, the drafters intended that the Court should focus on individual criminal responsibility.67 Muttukumaru suggests that if state responsibility had been included in Article 75 it would have resulted in the rejection of the whole article, thereby preventing victims from accessing reparations through the Court.68 However, as the rest of this chapter will argue, individual criminal responsibility for reparations at the ICC will be insufficient to provide victims with an effective remedy, and instead requires a reparative complementarity approach based on State Parties’ obligations under the Rome Statute. 2 Outline of the reparation regime of the ICC Turning to the provisions of the Rome Statute, the reparations regime of the ICC is made up of Court-ordered reparations under Article 75 and a Trust Fund for Victims under Article 79. Article 75 titled ‘Reparation to victims’ states: 1.

2.

3. 4.

5. 6.

The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

67 Muttukumaru Ch. 1 Note 282, p. 268. 68 Ibid., p. 268.

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There are a number of lacunae in Article 75 including the principles of the reparation regime, the role of victims, the appropriate types of reparations, and the cooperation of State Parties. These lacunae provide judges with the flexibility to determine the scope and extent of reparations. The judges can order reparations directly against the convicted person or through the Trust Fund for Victims.69 The Court has the power to order State Parties to seize a defendant’s assets derived from international crimes to be used for reparations or fines.70 Victims and other interested parties can make representations to the Court on the substance of the reparation orders.71 Additionally, State Parties have a role to play in cooperating with the Court and enforcing reparation orders.72 The Rome Statute also protects victims’ rights to claim reparation before other international or national bodies.73 There are a number of advantages in an international criminal justice mechanism adjudicating on reparations. The ICC offers victims an avenue to claim reparations. As international crimes can invariably involve the actions or inactions of a state, it may be unwilling to allow victims to claim reparations through local courts. Moreover, collective violence or conflict may have destroyed a country’s judicial infrastructure and/or killed judicial personnel making victims’ domestic claims difficult, if not impossible. In addition, reparation orders by the Court could have the added value of being independent and impartial, as they are determined by an external international body, which may promote perceptions of fairness. This could be important in establishing reparations as a norm for domestic institutions to follow. By including reparations in the mandate of the ICC it can acknowledge and redress the suffering of victims, as well as determining the guilt of the perpetrator. Reparations at the ICC represent the broadening of international criminal justice beyond retributive justice. Under the Rome Statute reparations are not punitive, as they do not appear under Article 77 on applicable penalties, which include separate punitive orders such as fines and forfeitures.74 Furthermore, the title ‘Reparations to victims’ indicates that reparations at the ICC are directed at remedying victims’ harm. This is consistent with human rights law which affirms the victim-centred nature of reparations by focusing on remedying harm.75 However, reparations at the ICC are not completely distinct from the retributive function of the

69 70 71 72 73 74

Article 75(2). Articles 75(2) and 75(4), 57(3)(e), 93(1)(k), and Rules 99, 146–148. Article 75(3). Article 75(4) and (5). Article 75(6). See Conor McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge University Press 2012). 75 Velásquez Rodriguez, para. 38; Principle 15, UNBPG.

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Court, as reparations are based on the conviction of a defendant and the crimes they are convicted of. The second part of the reparation regime of the ICC under Article 79 is the Trust Fund for Victims (TFV), established by the Assembly of State Parties in 2002.76 Article 79 states: 1. 2. 3.

A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

The TFV has a dual mandate of supporting reparation orders made by the Court and assisting victims. Its first mandate under Articles 79(2) and 75(2) is to transfer money or property collected by fines or forfeitures from the defendant or convicted person through an order of the Court.77 Additionally, the TFV can supplement funds already deposited with it to be used for reparations orders where the convicted person is indigent and there are insufficient resources for victims.78 The second mandate of the TFV is to provide ‘physical or psychological rehabilitation or material support for the benefit of victims and their families’ who have suffered from crimes within the jurisdiction of the Court under Rule 85.79 This covers a wider category of beneficiaries than those who are likely to receive reparations ordered by the Court against a convicted person.80 In this role the TFV is similar to the UN Trust Funds established for Torture, Slavery, and to End Violence against Women.81 The flexible mandate of the TFV means it can fund assistance to victims without having to wait for the conviction of the defendant;82 this adheres to the principle in human rights law that a victim should receive support without the perpetrator having to be identified, apprehended, prosecuted,

76 77 78 79 80 81

Resolution ICC-ASP/1/Res.6, adopted at the 3rd plenary meeting, 9 September 2002. ICC-01/04-439, para. 10; ICC-02/04-114, para. 10; ICC-01/05-29, para. 7. TFV Regulation 56. On the definition of victims; Article 79(1); TFV Regulations 42 and 50(a)(i). Ingadottir Note 66, p. 27. A/48/520; ibid., p. 28; Shelton Note 6, p. 236; The Role of the United Nations Development Fund for Women in Eliminating Violence Against Women, A/RES/50/166, 16 February 1996. 82 Ingadottir Note 66, p. 27; Marieke Wierda and Pablo de Greiff, Reparations and the International Criminal Court: A Prospective Role for the Trust Fund for Victims, International Centre for Transitional Justice, 2004.

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or convicted.83 As of 2013, the TFV funded projects in Uganda, the Democratic Republic of Congo (DRC), and the Central African Republic (CAR).84 Beneficiaries of the TFV are selected on the basis of demographic data, targeted outreach, and consultation with victims to identify those with the most need.85 For instance, in the Ugandan situation, the TFV identified victims of mutilations as a group who received little or no donor or government support, and so funded a surgical initiative to provide physical rehabilitation through plastic surgery to those affected.86 In order to maximise the benefits of the Trust Fund to the greatest number of victims, the TFV collectivises them into groups which will receive communal assistance rather than individual support, so as to provide more efficient disbursement and to reduce infrastructure costs.87 In 2013 alone the Trust Fund supported programmes for over 110,000 victims, such as reconstructive surgery, village saving schemes, counselling, and community reconciliation.88 Funding for the TFV comes from a number of sources, including fines or forfeitures and awards for reparations collected by the Court, as well as voluntary donations and contributions from the Assembly of State Parties (ASP).89 Between 2004 and 2013 the TFV collected 13.02 million from 33 countries, with 5.9 million (2007–2013) spent on projects in Northern Uganda and the DRC.90 For many victims the projects supported by the TFV have transformed their lives by helping them to heal and integrate into society.91 By way of example, in 2003 Santa, a 35 year old Northern Uganda woman, was burnt inside her home as part of a Lord’s Resistance Army’s attack on her village. The burns disfigured her face and neck, and as a result she became immobile and stigmatised in her community. In 2008 she received surgery through AVSI92 and Interplast funded by the TFV. Before the surgical operation, Santa says,

83 Principle 2, UN Victims’ Declaration; Principle 9, UNBPG; adopted by the TFV see ICC02/04-114 para. 30; ICC-01/04-439, para. 30. 84 TFV Summer Progress Report 2013; activities in CAR were brought to a halt in early 2013 after Séléka rebels overthrew the Bozizé government. 85 TFV Regulations 60–61. 86 See TFV Summer 2011 Progress Report, July 2011, p. 21. 87 ICC-02/04-114, para. 34; ICC-01/04-439, para. 34. 88 See the TFV Winter 2012 Progress Report. 89 Ibid., para. 2; Article 79(2) and Rule 98 of the RPE; see also Regulations of the Trust Fund for Victims, ICC-ASP/4/Res.3, 2005, Regulations 20–41. 90 TFV Programme Progress Report Fall 2010; TFV Programme Progress Report Summer 2013. 91 TFV Summer 2011 Progress Report. 92 Association of Volunteers in International Service Foundation.

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. . . my eyes would not see, my lips were twisted, and coupled with a stiff neck, I was unable to cook or dig . . . but now I can happily cook, and dig and my eyes are just fine.93 Schabas suggests that the TFV is an expensive development agency and states should instead give their money to Oxfam, or for the Court to wait until the Prosecutor gets a wealthy perpetrator for reparations, so that the Trust Fund can just facilitate the transfer of assets to victims.94 However, the assistance mandate of the TFV is important as it specifically targets victims of international crimes, in comparison to humanitarian assistance which provides support to the general population. In the CAR, for instance, the TFV funded support to victims of sexual violence who were not being assisted by governmental or non-governmental agencies, attesting to its importance in helping vulnerable victims.95 The assistance mandate of the Trust Fund for Victims is a novelty of the Rome Statute, both in the sense of making a meaningful impact in the lives of victims and assisting them without the need to determine the identity or responsibility of the perpetrator. Thus it is a victim-focused initiative. This is in sharp contrast to the retributive justice of the Court’s criminal trial or reparation orders, which focus on the defendant or the convicted person. The success of the reparation regime of the ICC to be responsive to victims’ needs will depend on the way in which it is interpreted. In August 2012 Trial Chamber I in the Lubanga case issued its first reparation decision which provides some insight into the future interpretation of the Court’s reparation regime.

D Interpreting the International Criminal Court’s reparation regime For its part, the language of Article 75 is left open-ended, enabling the judges to draw from a number of sources to determine the principles and scope of reparations.96 Article 21 stipulates that the Court shall apply the Rome Statute and Rules of Procedure and Evidence first, and then ‘where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’.97 The Appeals Chamber of the ICC found that judges can only apply international law to lacunae when interpreting the Rome

93 94 95 96

Ibid., p. 23. Schabas, Ch. 3 Note 244, p. 501. TFV Summer 2011 Progress Report, p. 15. Article 75(1); David Donat-Cattin, Article 75: Reparations to Victims, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Hart 2008) 1399–1412, p. 1402. 97 Article 21(1)(a)–(b).

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Statute.98 As a number of these exist in Article 75 the principles established in international law on reparations provides guidance to the Court’s judges in interpreting reparations at the ICC. The purpose of reparations outlined in international law of ‘wiping out the consequences of an illegal act’, noted at the start of this chapter, offers an important guiding principle for the Court’s reparation regime.99 In order for reparations to be an effective remedy, further principles may be used, such as appropriateness, by responding to the harm with the most suitable type of reparation; and proportionality, by going no further or no less than fully remedying the victims’ harm.100 In the first reparations decision in the Lubanga case, Trial Chamber I also recognised the need to ensure victims are treated fairly with respect to their dignity, nondiscrimination, and non-stigmatisation, particularly with regards to gender.101 Importantly, the Chamber found that reparations should also ‘secure, whenever possible, reconciliation between the convicted person, the victims of the crimes and the affected communities’.102 The judges’ motivation for this was to overcome the limited charges, which resulted in a narrow scope of victims who could benefit from a reparations order. Additionally, victims of the charges only came from one side of the conflict in Ituri, which could cause further resentment and re-stigmatisation of child soldiers.103 As discussed further below, this approach may indicate the Court trying to offer reparations which are more directed at reconciliation than remedying the harm of those who suffered from the crimes. Nevertheless, the judges acknowledged that even though international criminal justice is punitive, the inclusion of reparations recognises the ‘need to provide effective remedies for victims’.104 Article 21(3) obliges judges to interpret the Rome Statute consistently with ‘internationally recognized human rights’. The Appeal Chamber has held, ‘Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court. Its provisions must be interpreted

98 ICC-01/04-168, paras 33–42; see Elizabeth Odio Benito, The Development and Interpretation of Principles of Reparation: The Case Law of the IACHR and its Possible Contribution to the Jurisprudence of the ICC, in C. Eboe-Osuji (ed.), Protecting Humanity: Essays in International Law and Policy in Honour of Navanethem Pillay (Martinus Nijhoff 2010) 571–594, p. 592. 99 Chorzow Factory, para. 125. 100 See Article 31, RSIWA and ILC Commentaries, p. 94; also recognised in human rights law, Principles 2, 3, and 15 of the UNBPG; see Velásquez Rodríguez, para. 66; Hugh Jordan, para. 159; Bozize v Central African Republic, Communication no. 449/1990, UN Doc. CCPR/C/50/D/428/1990, 26 April 1994. 101 Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, paras 187–192 and 202. 102 Ibid., para. 193. 103 Ibid., fn. 383. 104 Ibid., para. 177.

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and more importantly applied in accordance with internationally recognized human rights.’105 Therefore the ICC must interpret and apply reparations in line with internationally recognised human rights, which could have wide reaching implications on the scope and content of reparations at the Court.106 Trial Chamber I in the reparations decision in the Lubanga case drew heavily from the jurisprudence of human rights law.107 However, the ICC is not a human rights court, and there is likely to be a number of differences between the two fora in their conceptions of reparations, particularly with regard to individual and state responsibility. The Inter-American Court of Human Rights has distinguished the two: The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.108 Including reparations in a criminal court which focuses on the responsibility of individuals blurs the distinction between the two. Bearing in mind the limited resources of the ICC, this issue raises a number of difficulties on (1) the number of victims that could be eligible, (2) their role in determining reparations, and (3) the types of reparations that can be ordered against convicted persons. The drafters of the Rome Statute left most of these issues unsettled so as to be determined through judicial interpretation. Therefore, this section examines these concerns before moving on to consider in the final section of this chapter whether they could be resolved by the Trust Fund for Victims, or through state responsibility. 1 Eligibility of victims Article 75(1) requires the Trial Chamber to determine ‘the scope and extent of any damage, loss and injury to, or in respect of, victims’. A definition of damage, loss, or injury is absent from the statutory or procedural framework of the Court. Nonetheless, following the UN Victims’ Declaration harm can include physical and psychological damage or injury,

105 Prosecutor v Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute of 3 October 2006, ICC-01/04-01/06-772, 14 December 2006, para. 37. 106 See Dinah Shelton, Reparations for Victims of International Crimes, in D. Shelton Note 55 137–161. 107 Lubanga, ICC-01/04-01/06-2904. 108 Velásquez Rodríquez, para. 134; Pueblo Bello Massacre v Colombia, Merits, Reparations and Costs, Series C No. 140 (IACtHR, 31 January 2006), paras 91, 112, and 122.

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economic loss, and substantial impairment of fundamental rights.109 This abides by the interpretation of the Court of harm for victim participation, discussed in the previous chapter.110 This approach was adopted by Trial Chamber I in the Lubanga reparation decision, and not only ensures consistency between the trial and reparations stage, but also links the recognition of harm to a remedy.111 Although the English version of Article 75(1) and (2) only refers to reparations being made ‘to, or in respect of, victims’, the French version identifies reparations being made to ‘aux victimes ou à leurs ayants droit’ (the victims or their dependants/family members).112 The exclusion of the word ‘family’ from the final English text of Article 75 was due to disagreements on its definition.113 In line with the Court’s jurisprudence on participation and norms established in international human rights law, which include victims of indirect harm, the English version’s language of ‘in respect of ’ must include indirect victims.114 Furthermore, in relation to Article 33 of the 1969 Vienna Convention on the Law of Treaties, the language which follows the object and purpose of the treaty should prevail.115 In this case the French text is preferred, due to it following more closely the object and purpose of the Rome Statute, as the drafters intended to do justice to victims, both direct and indirect, and to reflect the impact of the harm caused by international crimes in reality.116 Accordingly, Trial Chamber I in the Lubanga case recognised that both direct and indirect victims will be able to claim reparations before the ICC.117 In addition, other types of victims may be able to claim reparations. In light of Rule 85(b) certain legal persons could benefit from reparations, such as a school or hospital harmed by international crimes.118 The language of Article 75(2) stipulates that reparations are to be made against a convicted person, meaning that only victims of the crimes the 109 110 111 112

113 114

115 116 117 118

Principles 1 and 2; Principle 8, UNBPG. Situation in DRC, para. 115. Lubanga, ICC-01/04-01/06-2904, paras 228–229. Statut de Rome de la Cour pénale internationale, A/CONF.183/9, Article 75(1) and (2); Gilbert Bitti and Gabriela Gonzalez Rivas, The Reparations Provisions for Victims under the Rome Statute of the International Criminal Court, in International Court of Arbitration (ed.), Redressing Injustice through Mass Claims Processes: Innovative Responses to Unique Challenges (Oxford University Press 2006) 299–322, p. 311. Dwertmann Ch. 3 Note 22, p. 86; Schabas Ch. 1 Note 19, p. 911. See Principle 2, UN Victims’ Declaration, and Principle 8, UNBPG; see X v Federal Republic of Germany, App. no. 4185/69 (ECtHR, 13 July 1970); Aloeboetoe et al. v Suriname, Reparations and Costs, Series C No. 15 (IACtHR, 10 September 1993), para. 54. UNTS vol. 1155, p. 331. Muttukumaru Ch. 1 Note 282, p. 264. Lubanga, ICC-01/04-01/06-2904, paras 194–201. For example, a/0188/06 (Situation in DRC, ‘Corrigendum à la “Décision sur les demandes de participation” ’), ICC-01/04-423-Corr, 31 January 2008, paras 142–143; followed in Lubanga, ICC-01/04-01/06-2904, para. 197.

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defendant is convicted of will be able to claim reparations. The Court can only prosecute a select number of persons and crimes, due to its limited resources. Moreover, as discussed in Chapter 3, victims do not have any input into the prosecutorial selection of perpetrators and crimes, thereby denying them their procedural right to have autonomous standing to bring a reparation claim to the Court. Consequently, in practice it is likely that very few victims will be eligible for reparations before the Court.119 This distinguishes the ICC from human rights law, which permits victims to have standing to claim reparations if they have suffered a violation of their rights, thereby being victim-focused rather than the convict-focused nature of the ICC. As a result, the reparation regime of the ICC creates a reparation gap. As discussed in Chapter 1, providing reparations to certain victims may label them as more worthy than others, causing further victimisation to those excluded. Moreover, distribution of a convicted person’s assets to victims at the ICC could deny others a resource to claim reparations, such as in the Lubanga case which only recognised child soldiers as victims.120 The labelling of victims deserving of recognition is brought into sharper focus in the Lubanga case due to the ethnicity of the conflict in Ituri, which involved fighting between the Hema and Lendu. In Lubanga the victims, who are all child soldiers, belong to the Hema group, whereas victims of Lubanga’s other suspected crimes, which he is not charged with at the ICC, are Lendu. Furthermore, in the Katanga and Chui case which also deals with Ituri conflict, a few of the victims are Lendu former child soldiers, but the majority before the Court are Hema. This risks creating a hierarchy of suffering and causing further victimisation to victims in the Lendu community through denying their recognition and access to reparations, despite suffering from massacres and other crimes committed by Lubanga’s militia.121 This is the result of unrepresentative prosecutorial selection during investigation. Therefore there is a need for domestic reparation bodies to complement the Court to bridge this gap, as discussed in the final section. In order to address this disparity, the prosecution in its submission to the Court on reparations in the Lubanga case asserted that reparations should not be limited to those victims connected to the charges, but should inter alios (among other people) include ‘civilians of any ethnic group who suffered at the hands of [Lubanga’s militia (the UPC)] without restriction to the period of the charges’.122 This was based on the prosecution

119 120 121 122

Ferstman and Goetz Note 24, p. 318. Lubanga, ICC-01/04-01/06-1813. See HRW Ch. 3 Note 195. Prosecution’s Submissions on the Principles and Procedures to be applied in Reparations, ICC-01/04-01/06-2867, 18 April 2012, para. 20.

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recognising the limited nature of the charges against Mr Lubanga and their own narrow prosecution.123 There is nothing in Article 75 of the Rome Statute which restricts reparations to the charges the accused is convicted of in trial proceedings; though to order reparations against any crime committed by the convicted person would require further investigation and proceedings to ensure sufficient connection and evidence of the harm caused by the convicted person’s crimes to the victim. The judges acknowledged the shortcomings of the charges for the purpose of reparations and in their reparation decision in the Lubanga case, as will be discussed further below. The judges tried to overcome it by directing reparations to be based on a more collective or community based approach. However, the Chamber did not go as far as the prosecution, and limited the beneficiaries of reparations to those who had suffered personal harm as result of the crimes Mr Lubanga was found guilty of.124 Ultimately, eligibility is an important part of access to justice for victims and acknowledgement of their harm, but is problematic to achieve given the limited capacity of the ICC. 2 Reparation proceedings Under Article 75, reparations are to be made against a convicted person, indicating that reparation proceedings will commence after a defendant has been found guilty.125 Reparation proceedings are an important way for victims to avail of their procedural rights. By presenting their interests it can help the Court determine reparations that can more effectively remedy their harm. Progressing to the Court’s reparation stage is not automatic, but requires a victim to request reparations proceedings or the Court to initiate on its own motion.126 Additionally, under Article 75(2) the use of the word ‘may’ indicates that there is no obligation on the Court to order reparations against a convicted person, and thus no explicit right for victims to reparations. However, the ICC has recognised the importance of reparations for victims and to the ‘success’ of the Court,127 indicating that such proceedings will usually follow a conviction. Article 75(3) is the key provision for victims to inform the Court of their views on reparations.128 In making submissions to the ICC, victims can request the type of reparations and describe their damage, loss, or

123 124 125 126 127

Ibid., para. 18. Lubanga, ICC-01/04-01/06-2904, para. 194. See also Article 76(3). Rules 94–95. Prosecutor v Lubanga, Decision on the Prosecutor’s Application for a Warrant of Arrest, ICC-01/04-01/06-8-US-Corr, 24 February 2006, para. 136. 128 See also Article 82(4), and Rule 97(2); Rules 94(2), 95(1), 96, and 218(4) also provide notification to victims on reparations consistent with Principle 24, UNBPG.

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injury. Human rights courts have found it important to hear victims’ views on the content, implementation, and operation of reparations, such as the location of a clinic, services offered, and time-frame, in order to remedy effectively their harm.130 Yet, the language of Article 75(3) – that the Court ‘may invite’ representations – signifies a discretionary element in permitting victims’ representations. The French and Spanish versions of Article 75(3) require that the ‘Court shall take account’ of representations omitting the phrase ‘may invite’.131 Read in light of Article 33 of the Vienna Convention of Treaties, the French and Spanish versions reflect a meaning which follows the object and purpose of the Rome Statute. Additionally, the French delegation, which proposed the draft of Article 75 with the United Kingdom,132 suggested that victim representations were important to ensuring the Court had the complete information before it.133 Together these sources suggest that victim representations to the Court should be considered in determining reparations; this is consistent with procedural justice for victims by permitting their input into decisions which affect their interests. Zegveld compares the participation of victims under Article 75 to the practice in civil law countries of partie civile, where victims join the prosecution’s criminal case so as to make a compensation claim upon the defendant’s conviction.134 Article 75 may share some of the procedural aspects of partie civile, such as leading evidence, participation in the criminal trial, and a right to appeal. Furthermore, the focus on the individual responsibility of a convicted person indicates a more civil claim. However, Article 75 is titled ‘Reparations to Victims’ in the Rome Statute suggesting a more substantive right to reparations, than civil law damages or compensation. This is due to the usage of the word ‘reparations’ in international and human rights law, of which compensation is only one type. Furthermore, the Court has also distinguished victims’ role in criminal proceedings to ensure their substantive rights to truth, justice, and reparations.135 The role of victims in reparations proceedings may be more participatory than just providing representations. Judge Kirsch suggests that in comparison

129 Rule 94(1). 130 Moiwana Community, paras 213 and 217; Saramaka People v Suriname, Interpretation of the Judgment on Preliminary Objections, Merits, Reparations, and Costs Series C No. 185 (IACtHR, 12 August 2008), para. 17; Carlton Waterhouse, The Good, the Bad and the Ugly: Moral Agency and the Role of Victims in Reparations Programs, University of Pennsylvania Journal of International Law 31(1) (2009) 257–294, p. 258; Impunity Principles Report, E/CN.4/2005/102, para. 59. 131 Donat-Cattin Note 96, p. 1407. 132 Proposal by France and the United Kingdom of Great Britain, A/AC.249/1998/WG.4/ DP.19, 10 February 1998. 133 Réparations dues aux victimes: Intervention de la France, 17 March 1998, p. 4. 134 See Zegveld Note 34. 135 See Chapter 3.

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to participation in the trial under Article 68(3), victims in reparation proceedings will play a more leading role, such as submitting evidence and calling witnesses.136 Victim participation under Article 75(3) does not face the same limitations as in the criminal trial with Article 68(3), where it has to be in victims’ personal interests and balanced against rights of the defendant and a fair and impartial trial. Victims can also appeal a reparation order if they are ‘adversely affected’ by it, giving them a procedural remedy which they do not have in the criminal trial proceedings before the Court.137 Staker suggests that victims could make an appeal on this ground if the Court refused to order reparations on their behalf.138 However, the discretionary language of Article 75 suggests that victims have no right to reparations before the ICC, i.e. no legal entitlement procedurally or substantively to reparations. Thus as with the criminal trial, victims at the ICC have a subsidiary role, with no guarantees that their interests or needs will be addressed by the Court. Of course such a stance is understandable for the ICC, given the challenges the Court faces in practice. The ability of thousands of victims to participate and communicate with the Court will be tempered by its limited resources. The drafters of Article 75 felt that where there are a few victims, the Trial Chamber could hear evidence from each victim on his/her views and individual damage, loss, or injury.139 The boards of the Assembly of State Parties (ASP) have suggested that where a defendant is indigent reparations proceedings should be brief so as to conserve resources for reparation orders, rather than spent on legal aid and other court costs associated with victim participation.140 In light of the above discussion on Article 75(3), the Court is obliged to receive victims’ representations, though the provision does not distinguish whether their representations are in written or oral form. As a compromise in cases of mass victimisation it is likely that victim participation could be reduced to written representations, rather than being excluded entirely or limited to a few victims. There are a number of solutions within the legal framework of the Court which allow mass representation and participation of victims in proceedings. The Court could use a small number of victims’ legal representatives (VLRs) to participate on the victims’ behalf in proceedings while

136 Partly Dissenting Opinion of Judge Philippe Kirsch, ICC-01/04-01/06-1432-Anx, 23 July 2008, para. 22; see Rule 94 RPE. 137 Article 82(4). 138 Christopher Staker, Article 82: Appeal against Other Decisions, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos 1999) 1029–1032, p. 1032. 139 Draft Article 73 fn. 6, UN Doc. A/CONF.183/C.1/WGPM/L.2/Add.7, 3 July 1998. 140 Establishing effective reparation procedures and principles for the International Criminal Court, September 2011, VRWG, fn. 3, citing the Report of the Committee on Budget and Finance, 17th Session, para. 36.

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allowing written representations to be made by individuals, as the Court has done in relation to their participation in the trial. Additionally, consulting victims possibly through the organs of the Registry could document their views on reparations.141 Alternatively, under Rule 97, victims, their legal representatives, and the convicted person could request, or the Court of its own motion could appoint, experts to ‘assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims’.142 Experts have been used in other reparation mechanisms to consult victims and develop reparation programmes which were acceptable to all the parties involved.143 They can also provide additional information on the suffering of victims that may have been excluded from the trial, as well as expertise on victimisation from different professional perspectives, such as psychology, criminology, and medical.144 Therefore experts could overcome some of the criticism of the ad hoc tribunals (being time-consuming and unfamiliar) by injecting their knowledge into the ICC so as to expedite the Court’s reparation proceedings. Together these measures could help the Court to balance its restricted resources against being overwhelmed by mass victim participation. In the Lubanga case, under Article 75(3) Trial Chamber I issued an invitation to any interested individuals or parties to make submissions on the principles and procedures related to reparations.145 In all, five NGOs responded to the invitation.146 Their reports included details on reparation jurisprudence in human rights law and national practices, as well as views in Ituri on reparations.147 The Court accepted these reports on the basis that, these organisations are in a position to supply information and assistance that will be of direct relevance to issues related to reparations that otherwise will not be available to the Court, or would be costly and time consuming to secure.148

141 See Situation in the Republic of Kenya, ICC-01/09-24. 142 Rule 97(2). 143 See the role of a Special Master in Swiss banks litigation in the US, Ferstman and Goetz Note 24, p. 343; see also the appointment of experts in Aloeboetoe, para. 39. 144 See 19 Tradesmen, expert witness testimony, pp. 36–39; Redress Note 1, p. 51. 145 Lubanga, Scheduling Order concerning Timetable for Sentencing and Reparations, ICC01/04-01/06-2844, 14 March 2012. 146 Women’s Initiatives for Gender Justice; International Center for Transitional Justice; United Nations Children’s Fund (UNICEF); the Fondation Congolaise pour la Promotion des Droits humains et la Paix, and Avocats san frontières which made representations with four Congolese organisations – Justice Plus, Terre des Enfants, Centre Pelican – Training for Peace and Justice, Journalistes en action pour la Paix, and Fédération des Jeunes pour la Paix Mondiale. 147 See Lubanga, ICC-01/04-01/06-2904. 148 Lubanga, Decision Granting Leave to make Representations in the Reparations Proceedings, ICC-01/04-01/06-2870, 20 April 2012, para. 19.

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Representations on reparations were also made by the parties and participants in the Lubanga case including the prosecution, defence, victims’ legal representatives, the TFV, the Registrar, and the OPCV. Additionally, as part of the adoption of the five point plan by the TFV, outlined below, and the Registry’s proposal, the Court also found that a team of experts should be retained to assist the judges in the assessment of harm of victims, the effect of the crimes on the direct victims of the crimes (child soldiers), to identify the most appropriate type of reparations, who should be awarded reparations, and how to access the funds for these purposes.149 Trial Chamber I then delegated the appointment and overseeing of the experts work to the TFV.150 However, the Chamber went further by recognising the TFV is ‘well placed’ due to its operation in the DRC to ‘determine appropriate forms of reparations and to implement them’.151 This was part of the five step plan advocated by the TFV, which was supposed to ensure transparency and procedural justice by allowing victims to be involved in the decision making process.152 The five step plan was summarised by Trial Chamber I as: First, the TFV, the Registry, the OPCV and the experts, should establish which localities ought to be involved in the reparations process in the present case (focusing particularly on the places referred to in the Judgment and especially where the crimes are committed). Although the Chamber referred in the Article 74 Decision to several particular localities, the reparations programme is not limited to those that were mentioned. Second, there should be a process of consultation in the localities that are identified. Third, an assessment of harm should be carried out during this consultation phase by the team of experts. Fourth, public debates should be held in each locality in order to explain the reparations principles and procedures, and to address the victims’ expectations. The final step is the collection of proposals for collective reparations that are to be developed in each locality, which are then to be presented to the Chamber for its approval.153 In their reparation decision the judges outlined their view that reparations should ensure effective participation.154 Yet, adopting the five step plan of the TFV assigned the procedural and substantive aspect of the reparations

149 150 151 152

Lubanga, ICC-01/04-01/06-2904, para. 263. Ibid., para. 265. Ibid., para. 266. Lubanga, Observations on Reparations in Response to the Scheduling Order of 14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, para. 188. 153 Lubanga, ICC-01/04-01/06-2904, para. 282. 154 Lubanga, ICC-01/04-01/06-2904, paras 177 and 203.

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regime to the Trust Fund, with a newly constituted chamber only having oversight and monitoring functions. Subsequently, the legal representatives for the victims appealed the decision on a number of grounds including the Trial Chamber delegating ‘its own responsibilities for matters of reparations to two non-judicial entities’.155 Victims’ legal team two argued that such transfer of powers to the TFV enabled it to have an ‘unfettered discretion’,156 with victims’ legal team one believed it constituted a ‘violation’ of Article 75(2), as reparations are only to be made against a convicted person and ordered ‘through’ the Trust Fund even if the person is indigent.157 These applications by the victims raised questions as to whether or not the TFV will ensure procedural justice to victims by considering their interests, and the extent to which victims can challenge the Trust Fund’s decisions through the new constituted trial chamber. The decision also has important implications for the types of reparations that will be ordered for victims. 3 Types of reparations Article 75(1) and (2) of the Rome Statute specify that the Court can order reparations ‘including restitution, compensation and rehabilitation’. Neither the Rome Statute nor the Rules of Procedure and Evidence (RPE) define the contents of these reparations, leaving it to judicial discretion. However, international law and human rights law recognise that reparations include: restitution, compensation, rehabilitation, measures of satisfaction, and guarantees of non-repetition.158 These various types of reparations seek to remedy an individual or a group’s harm in different ways, each having their own benefits and drawbacks.159 The Inter-American

155 Lubanga, Observations of the Vo2 Team of Legal Representatives of Victims in Accordance with Directions, ICC 01/04 01/06-2923, ICC-01/04-01/06-2931-Corr-tENG, 19 October 2012, paras 19–22. 156 Ibid., para. 18. 157 Lubanga, Appeal against Trial Chamber I’s Decision Establishing the Principles and Procedures to be applied to Reparation of 7 August 2012, ICC-01/04-01/06-2914-tENG, 18 September 2012, para. 19; see further submissions by the VLRs against the appeal by the defence on the reparation decision in the Lubanga case – Réponse au Mémoire de la Défense relatif à l’appel contre la ‘Decision establishing the principles and procedures to be applied to reparations’ du 7 août 2012, ICC-01/04-01/06-3007, 7 April 2013; Joint Response to the ‘Mémoire de la Défense de M. Thomas Lubanga relatif à l’appel à l’encontre de la “Decision establishing the principles and procedures to be applied to reparations” ’, ICC-01/04-01/06-3010, 8 April 2013. 158 Ibid.; Principles 19–23, UNBPG; Articles 30 and 35–37, RSIWA, but does not include rehabilitation; Loayza Tamayo, para. 85; International Humanitarian Law only refers to compensation – Article 3 of The Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV), and Article 91 of the Protocol Additional I, 8 June 1977. 159 Garrido and Baigorria, para. 41; Blake, para. 34; 19 Tradesmen v Colombia, para. 223.

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Court of Human Rights has emphasised that a combination of measures is necessary to redress the differing harms victims of serious violations suffer.160 The ICC is bound by international human rights law under Article 21(3) and can apply international law principles under Article 21(2). Thus the Court is in a position to draw from this jurisprudence established on these different types of reparations to ensure its orders effectively remedy victims’ suffering. a Restitution Restitution seeks to ‘re-establish the situation that existed before [a] violation occurred’.161 It can include the return of property or to one’s place of residence, as well as restitution in kind, i.e. the provision of something similar, such as a new house.162 In the Inter-American Court case of Loayza Tamayo v Peru, a Peruvian Professor was arrested, detained incommunicado, subjected to torture, inhumane, and degrading treatment, and forced to leave the country. The Court ordered the restoration of her liberty, former employment benefits, including her pension, her job, and salary until she was able to rejoin teaching again.163 Restitution can return the victim to their original position in certain respects. However, in Blake v Guatemala, involving the execution and disappearance of two US citizens by military forces, the Inter-American Court found the murder of the two victims made restitutio in integrum to the status quo ante ‘impossible, insufficient, and inadequate’. As such, the Inter-American Court awarded $151,000 in compensation to their next of kin for their ‘suffering, intense anguish, frustration in the face of Guatemala’s failure to investigate and the cover up of what occurred’.164 b Compensation Compensation seeks to provide monetary or economic awards to victims for the harm or loss they have suffered.165 In many legal systems, victims of crime or their next of kin, especially in homicide, are provided with 160 See Plan de Sánchez Massacre, para. 93; Pueblo Bello Massacre; Moiwana Community; Ituango Massacres v Colombia, Preliminary Objection, Merits, Reparations and Costs, Series C No. 148 (IACtHR, 1 July 2006); the Las Dos Erres Massacre. 161 Shelton Note 6, p. 272; see Principles 8–11, UN Victims’ Declaration, and Principle 19, UNBPG. 162 Ibid., Shelton; Principle 19, UNBPG; Papamichalopoulos and others v Greece, para. 38; Chorzow Factory, para. 125. 163 See Loayza-Tamayo. 164 Blake, paras 42, 50, and 57. 165 See The Right to a Remedy and to Reparation for Gross Human Rights Violations: A Practitioners’ Guide, International Commission of Jurists, 2006, p. 123; see Principles 12–13, UN Victims’ Declaration; Principle 20, UNBPG.

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compensation for their injury and loss. In international law compensation is a substitute where restitution is impossible.167 Compensation can enable victims the ‘freedom of choice’ to spend the money as they see fit to redress their suffering.168 According to the Lusitania case, it ‘is measured by pecuniary standards, because, says Grotius, “money is the common measure of valuable things” ’.169 Compensation can cover: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.170 It therefore encompasses both pecuniary and non-pecuniary losses. Traditionally, the regional human rights courts only ordered compensation to cover quantifiable damages, such as economic loss or medical treatment expenses. However, with the recognition that certain harms can cause more intangible damage, such as a person’s reputation, the courts began to award compensation for non-pecuniary or moral damages. Nonpecuniary or moral damages provide awards for harm to an individual’s dignity which cannot be monetarily quantified, and so is based on the principles of equity.171 The Inter-American Court has expanded the use of compensation further to cover past and present suffering, as well as the loss of the victim’s future potential earnings which would have been made if had they not suffered from the crime.172 To put this into context, in the Caracoza v Venezuela case, 276 civilians, including a number of children, were killed by government forces in response to public protests during a state of emergency.173 The

166 In the UK, Criminal Injuries Compensation Authority; in France Articles 85–91, 371–375, and 418–426 of the Code of Criminal Procedure; and diyya in Islamic law, see Muhammad Abdel Haleem, Compensation for Homicide in Islamic Shari’a, in M. Abdel Haleem, I. Edge, and O. Adel Sharif (eds), Criminal Justice in Islam: Judicial Procedure in the Shari’ah (Tauris 2003) 97–108. 167 Chorzow Factory, para. 125; Article 36, RSIWA. 168 Truth and Reconciliation Commission of South Africa Report (1998) Vol. 5, p. 179. 169 Opinion in the Lusitania Cases, 1 November 1923, Recueil de sentences arbitrales, Vol. VII, p. 32, at 35. 170 Principle 20, UNBPG. 171 B.J. v Denmark, Views of 10 May 2000, CERD/C/56/D/17/1999, para. 7; Velásquez Rodríguez, para. 48; see Shelton Note 6, p. 37. 172 Loayza-Tamayo, paras 117, 147–150. 173 Reparations and Costs, Series C No. 95 (IACtHR, 29 August 2002).

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Inter-American Court awarded the 37 victims killed, their 44 next of kin, and three survivors $31,000–63,000 for pecuniary damages as the result of funeral and medical costs, as well as loss of earnings. An additional $2,000–53,000 was ordered for non-pecuniary damages due to the ‘various types of physical and psychological ailments, grief, anguish, intense fear, and frustration’ they all suffered as a result.174 Compensation can therefore be used to indemnify a wide range of harm that victims can suffer from. In cases of mass victimisation involving hundreds or thousands of victims, compensation can be an efficient way to disburse funds to victims without having to work out the modalities of returning property or establishing long-term support programmes.175 For instance, the UN Claims Commission established after the Gulf War awarded $52.4 billion of compensation to 1.55 million victims who suffered harm as a result of Iraq’s invasion of Kuwait.176 However, such a large fund is generally rare in postconflict situations, due to the damage caused to the local economy and infrastructure, and so fully remedying the harm through compensation may be unviable. Instead more creative options, such as annual pensions, tax breaks, or university scholarships, could be awarded to victims to make compensation more economically viable to countries emerging from conflict or gross violations of human rights. Although the utility of compensation is apparent, quantifying the suffering of victims into monetary amounts can denigrate the value of human life and dignity by placing a price on a person or loved one’s suffering or life. In the Street Children case before the Inter-American Court involving the abduction, torture, and murder of three children and two young adults by the Guatemalan police, Judge Cançado Trindade decried the use of compensation as reducing humans into economic values or ‘homo oeconomicus’,177 thereby rejecting an economic analysis of reparations. He continued: one ought to focus the whole theme of the reparations for violations of human rights as from the integrality of the personality of the victims, discarding any attempt of mercantilization – and the resulting trivialization – of such reparations. It is not a question of denying importance to the indemnizations, but rather of warning for the risks of reducing the wide range of reparations to simple indemnizations. It is not by mere chance that contemporary legal doctrine has been 174 175 176 177

Ibid., para. 100. Waterhouse Note 130, p. 261; Moiwana Community v Suriname, paras 213–215. UN War Crimes Commission webpage: www.uncc.ch (accessed 10 December 2012). The Street Children case, Separate Opinion of Judge Cançado Trindade, para. 34, citing Loayza Tamayo, Joint Separate Opinion of Judges A.A. Cançado Trindade and A. Abreu Burelli, para. 9.

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attempting to devise distinct forms of reparation – inter alia, restitutio in integrum, satisfaction, indemnizations, guarantees of non-repetition of the wrongful acts – from the perspective of the victims, so as to fulfil their needs and claims, and to seek their full rehabilitation.178 Therefore compensation is useful, but is only one component of remedying victims’ harm. As encapsulated by Shelton, monetary compensation is, incapable of restoring or replacing the rights that have been violated and, as a substitute remedy, are sometimes inadequate to redress fully the harm . . . [it can however] supply the means for whatever part of the former life and projects remain possible and may allow for new ones.179 c Rehabilitation Rehabilitation, the third type of reparation mentioned in Article 75, can be a type of restitution as it is the process of trying to reinstate an ‘individual’s full health and reputation after the trauma of a serious attack on one’s physical and mental integrity . . . [so as to] restore what has been lost’.180 However, it can be distinguished from restitution as rehabilitation involves healing the personal integrity of the individual rather than returning goods or benefits to them. The World Health Organisation defines rehabilitation as, ‘the combined and co-ordinated use of medical, social, education and vocational measures for training or retraining the individual to the highest possible level of functional ability’.181 The UN Victims’ Declaration also calls for ‘necessary material, medical, psychological and social assistance’ to victims.182 Rehabilitation may need to go beyond individual assistance to remedy familial, communal, or social bonds damaged as a result of the crime or violation, such as reconciliation measures between communities or education programmes to sensitise communities to victims’ suffering.183 The European Court of Human Rights has limited rehabilitation for physical and psychological harm to compensation for the cost of medical

178 179 180 181

The Street Children case ibid., para. 28. Shelton Note 6, p. 291; Waterhouse Note 130, pp. 260–261. Shelton ibid., p. 275; see Principle 21, UNBPG. World Health Organisation, Expert Committee on Medical Rehabilitation, Second Report, Technical Report Series 419 (1968), p. 6, cited from Clara Sandoval, Rehabilitation as a Form of Reparation under International Law, Redress, December 2009, p. 8. 182 Principle 14. 183 See the TRC Report Vol. 5, p. 175.

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treatment.184 The Inter-American Court followed the same approach until the 19 Tradesmen v Colombia case in 2004 where it ordered compensation together with rehabilitation measures.185 In this case, involving the execution and disappearance by paramilitary and military forces of 19 merchants, an expert witness testified that the victims’ next of kin suffered psychological harm as a result, and excessively consummed drugs and alcohol in order to cope with the harm caused.186 The Inter-American Court ordered the state to provide specialised healthcare without charge to the next of kin on an individual, familial, or collective level and to deal with any substance abuse.187 In the Plan de Sánchez Massacre case, the Guatemalan army attacked an indigenous Mayan village killing 268 civilians. Mostly women and the elderly were massacred, girls were raped, and homes destroyed causing the displacement of the civilian population. Building on the 19 Tradesmen case, the Inter-American Court ordered rehabilitation expanding it beyond healthcare to include: a housing and development programme; a healthcare centre; Mayan education; and infrastructure (a road, sewage, and potage water system) for the remaining 317 survivors.188 These forms of rehabilitation not only redressed the suffering at the individual level, but allowed the community as a whole to rebuild and continue its cultural activities. Rehabilitation has therefore developed from just remedying the victim’s physical or psychological harm, to providing measures to repair a wide scope of damage that affects families and communities. d Other forms of reparation Although Article 75 only mentions three types of reparation, the Court may use other forms recognised in international and human rights law of satisfaction and guarantees of non-repetition. Mégret suggests that one of the reasons why more property or monetary based reparations of restitution, compensation, and rehabilitation only appear in the Rome Statute is due to the other types requiring the action and responsibility by the state rather than individuals.189 This is in line with Muttukumaru’s observations

184 See Sandoval Note 181, pp. 45–50; Predicaˇ v Romania, App. no. 42344/07 (ECtHR, 7 June 2011), para. 85. 185 19 Tradesmen, para. 278. 186 Carlos Martín Beristain, doctor, specialist on the care of victims of torture, human rights violations, and other forms of violence, ibid., pp. 32–36; cited by the Court at paras 276–278. 187 Ibid., para. 278. 188 Plan de Sánchez Massacre, paras 105 and 110. 189 Frédéric Mégret, The International Criminal Court Statute and the Failure to Mention Symbolic Reparations, International Review of Victimology 6 (2009) 127–147.

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of the drafters wanting to avoid state responsibility. However, the omission of satisfaction and guarantees of non-repetition does not mean that they are redundant. The use of the term ‘including’ in Article 75(1) and (2) suggests that the three types of reparations mentioned are illustrative rather than conclusive, thereby permitting the addition of other types of reparations.191 This is further supported by Rule 94(1)(f ) of the Rules of Procedure and Evidence (RPE) which mentions ‘other forms of remedy’ that a victim can request.192 The Lubanga decision on reparations acknowledged this point stating that the list in Article 75 is ‘not exclusive’, and can include other types of reparations such as those with a ‘symbolic, preventative or transformative value’.193 1 M E A S U RE S O F S ATIS FAC TION

Measures of satisfaction repair the moral damage suffered by victims, in that they are supposed to reaffirm the victim’s dignity and acknowledge their suffering.194 They can also ‘awaken [. . .] public awareness to avoid repetition’, and ‘maintain remembrance of the victim’.195 This can help to counter the ideological element of international crimes and impunity, outlined in Chapter 1 that such victims deserved to be harmed as they are labelled sub-human or political enemies, by publicly and officially recognising victims’ harm and reaffirming their trust in the state and society.196 In international law, satisfaction involves a variety of measures that endeavour to repair the moral damage of a state, i.e. the ‘honour, dignity and prestige’ caused by a violation or crime that cannot be redressed by restitution or compensation, due to its intangible and unquantifiable nature.197 Measures of satisfaction are therefore symbolic and include ‘an acknowledgement of the breach, an expression of regret, [or] a formal apology’.198 A judgment by a court against a state or individual for a crime

190 Muttukumaru Ch. 1 Note 282, p. 268. 191 Mégret Note 189, p. 136. 192 See also the original victim application form for reparations, part F(1) which refers to ‘other form of reparations’. 193 Lubanga, ICC-01/04-01/06-2904, para. 222. 194 Plan de Sánchez Massacre, para. 93; Shelton Note 6, p. 78. 195 Principle 22, UNBPG; 19 Tradesmen, paras 272–273; Myrna Mack-Chang, para. 286. 196 Correa Ch. 1 Note 140. 197 Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded 9 July 1986 between the two states and which related to the problems arising from the Rainbow Warrior affair, 30 April 1990, UNRIAA, vol. XX, 215–284, pp. 267–273; Corfu Channel case; see ILC Commentary on RSIWA (A/56/10), 2001, p. 105; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3, para. 75. 198 Article 37(2), RSIWA.

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or violation can also be a measure of satisfaction as it attributes and determines their responsibility.199 In human rights law, satisfaction is more broadly conceived as fulfilling victims’ needs for non-monetary outcomes such as justice, recognition of their suffering, the truth, and reaffirming their dignity.200 As such, satisfaction is generally considered a residual form of reparation that is required to remedy fully victims’ harm.201 This broader interpretation of satisfaction may be more applicable to the ICC, due to human rights law focusing on victims as individuals and groups of atrocities akin to crimes against humanity, such as massacres. The Inter-American Court has ordered satisfaction measures including: prosecution of those responsible;202 cessation of the violation;203 plaques and memorials;204 renaming a well-known street, square, or school in the name of the victim(s);205 the search, identification, and burial of victims or massacred or were disappeared;206 and scholarships for victims.207 These can promote reconciliation within society and prevent future violations by establishing the facts of what occurred, who was responsible, and who the victims were.208 Satisfaction can also allow community reintegration. Memorials, scholarships, and other official acknowledgements help to memorialise publicly what happened, reconcile differences, and emphasise that they cannot be repeated in the future.209 By way of example, in the Mapiripán Massacre v Colombia case, over 100 paramilitaries attacked the town of Mapiripán and detained, tortured, and executed at least 49 civilians, destroyed their bodies, and threw them into a river, causing the survivors to abandon the town and seek refuge elsewhere. The Inter-American Court ordered the state to construct a memorial; provide rehabilitation to survivors and families; identify, recover, and return the remains of victims

199 See the Corfu Channel case, p. 35; Rainbow Warrior affair, pp. 272–273. 200 Velásquez Rodríguez, para. 36; El Amparo v Venezuela, Reparations and Costs, Series C No. 28 (IACtHR, 14 September 1996), para. 35; Loayza Tamayo, para. 153; Moiwana Community, para. 216; see Principle 22(b, d, f, and h), UNBPG; Mégret Note 189, p. 129. 201 McCarthy Note 74, p. 170. 202 Velásquez-Rodriquez, paras 34–35; Plan de Sánchez Massacre, paras 98–99; Principle 22(f), UNBPG. 203 Principle 22(a), UNBPG. 204 Myrna Mack-Chang, para. 284; Moiwana Community, para. 218; Pueblo Bello Massacre, para. 278; Principle 22(g), UNBPG. 205 Myrna Mack-Chang, para. 286; Street Children, para. 103; Contreras et al. v El Salvador, Merits, Reparations and Costs, Series C No. 232 (IACtHR, 31 August 2011), paras 207–208; Principle 22(g), UNBPG. 206 Pueblo Bello Massacre, paras 270–273; Principle 22(c), UNBPG; Article 15, International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). 207 Myrna Mack-Chang, para. 285. 208 19 Tradesmen, paras 258–259; Plan de Sánchez Massacre, para. 93; see also Principle 22, UNBPG. 209 Moiwana Community, para. 218.

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to their next of kin; and to guarantee the safe return of the survivors to Mapiripán, allowing them to reintegrate into the community and the possibility of future reconciliation.210 This reconciliation element of satisfaction measures strongly perpetuated the Lubanga reparation decision with the judges finding that reparations at the Court are to be more symbolic in nature.211 In this decision, Trial Chamber I recognised the judgment against Mr Lubanga could serve to raise awareness of child soldiers and deter their perpetration in the future, and that the reparations ordered should follow suit so as to ensure effective reintegration of child soldiers into society.212 2 G U A RAN T E E S O F N ON - REPETITION

The second form of alternative reparations is the guarantee of nonrepetition. These are legislative amendments and institutional reforms made by states to prevent the repetition of violations and atrocities.213 Mégret defines guarantees of non-repetition as ‘a commitment made by the State to never engage again in the practices that led to violations, backed by a number of reforms and restructuring initiatives to make good on that promise’.214 Guarantees of non-repetition can include ensuring effective civilian control over military forces, strengthening judicial independence, and promoting human rights standards.215 For instance, in the Ituango Massacre v Colombia case before the Inter-American Court, 19 civilians were murdered by paramilitary forces, who also looted property, detained, tortured, and displaced the civilian population. Although the massacre was carried out by non-state actors, it had occurred due to Colombia’s failure to protect its citizens and to properly investigate, prosecute, and punish those responsible. The Court ordered Colombia to carry out human rights education programmes for its armed forces and security agencies because of their collaboration, tolerance, and acquiescence of the violations.216 The Inter-American Court also uses guarantees of non-repetition to raise public awareness, to improve ‘collective memory’, and to move beyond just the removal of laws by creating new

210 211 212 213

Mapiripán Massacre, paras 305–315. Lubanga, ICC-01/04-01/06-2904, paras 238–244. Ibid. Principle 23, UNBPG; Article 30, RSIWA; Article 24(5), ICPPED; see also Garrido and Baigorria, para. 41; Plan de Sánchez Massacre, para. 54; Moiwana Community case, para. 216. 214 See Mégret Note 189, p. 130. 215 See Principle 23, UNBPG. Strictly speaking guarantees of non-repetition are forward looking remedies not concerned with redressing the harm caused to individuals claiming reparations. Instead guarantees of non-repetition try to provide wider political and society benefits, and to prevent future victimisation. 216 Ituango Massacre, para. 409.

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state support mechanisms to prevent recurrence of violations in the future.217 Accordingly, they can redress the causes of the conflict, such as abusive armed forces, so as to avoid future victimisation. In all, the jurisprudence on reparations affirms that different types are available to victims of mass atrocities. The Inter-American Court has developed a corpus of jurisprudence on reparations which aims to be sensitive to victims’ needs and is insightful for the ICC in achieving victimcentred justice. Yet, it is unclear whether the ICC has the jurisdiction or the will to order measures of satisfaction or guarantees of non-repetition, which are normally used against states to carry out programmes and reforms, instead of individuals.218 This has divided commentators. Mégret points out that the ICC could potentially order measures of satisfaction and guarantees of non-repetition, especially for groups where individual compensation to numerous victims would be insufficient. He places them in the wider purpose of the Court in delivering reparations, which are more than just restitutio in integrum, but transformative justice as they seek to transform the situation of the victims and society through various remedies and reforms, making the ICC an ‘actor of transitional justice’ rather than just an international criminal court.219 However, Mégret does not deal with the issue of state responsibility, instead preferring other forms of reparation to be carried out by the Court through the Trust Fund, which in itself raises certain problems on capacity and responsibility. Donat-Cattin takes a similar approach to Mégret. Although DonatCattin states that the ICC does not have the jurisdiction to order reparations against states, measures of satisfaction and guarantees of non-repetition could be ordered by the Court, without suggesting whether the individual or the Trust Fund should be responsible for carrying these types of reparations out.220 Keller excludes other forms of reparation on account of the Court’s lack of jurisdiction over states.221 Henzelin, Heiskanen, and Mettraux also neglect satisfaction and guarantees of nonrepetition owing to their absence from Article 75.222 However, to remedy effectively the harm suffered by victims and to be compliant with human rights jurisprudence, all five types of reparations are necessary due to the extent of harm international crimes cause and to achieve victim-centred justice. The Court may need to call upon a state to provide reparations to

217 218 219 220 221

Plan de Sánchez Massacre, para. 104. Muttukumaru Ch. 1 Note 282, p. 264. Mégret Note 189. Donat-Cattin Note 96, p. 1411. Linda M. Keller, Seeking Justice at the International Criminal Court: Victims’ Reparations, Thomas Jefferson Law Review 29(2) (2007) 189–217, p. 195. 222 Marc Henzelin, Veijo Heiskanen, and Guenael Mettraux, Reparations to Victims before the International Criminal Court: Lessons from International Mass Claims Processes, Criminal Law Forum 17(3/4) (2006) 317–344; Zegveld Note 34.

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victims in order to ensure an effective remedy; this point is returned to in the final section of this chapter. The ICC ordering all these types of reparations raises a number of difficulties in relation to individual responsibility. 4 Difficulties in ordering reparations before the ICC There are a number of difficulties in ordering certain reparations against defendants before the Court, of which three are identified here. First, reparation awards will be inadequate as convicted persons before the Court are likely to be indigent or have hidden their assets. The Court can request State Parties to freeze bank accounts and seize any assets of the accused to be used for reparations.223 However as Jorda and Hemptinne point out, many defendants before the ad hoc tribunals were unable to afford the cost of their own defence, making it rare for defendants before the ICC to afford a reparation scheme for thousands of victims, as in the Lubanga case.224 The Court can use the reserves of the Trust Fund for Victims (TFV) to supplement reparations orders against the convicted person.225 In 2013 the TFV had 1.8 million in reserve for the Court to use for reparations in its first two cases against Lubanga and Katanga.226 Yet, this funding is likely to be insufficient to support the needs of the victims in these two cases, who already number in their hundreds with further applications pending.227 Victims in the Bemba case may have a better chance of claiming reparations based on the defendant’s resources, as 5.2 million of his assets were seized by the Court.228 Yet, even in this case there are 4,898 victims, and 478 applications for reparation.229 If Bemba is convicted and the numbers of victims remain at this amount for the reparation stage,

223 Articles 57(3)(e), 77(2), 93(1)(k), and 109; and Rule 218; see Prosecutor v Thomas Lubanga, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, ICC-01/04-01/06-8-US-Corr, 24 February 2006, paras 136–141. 224 Jorda and de Hemptinne Ch. 1 Note 226, p. 1415; Wierda and Greiff Note 82, p. 10; see Lubanga, ICC-01/04-01/06-2904, para. 269. 225 Article 75(2) and Rule 98. 226 TFV Board of Directors Raises Reparations Reserve to 1.8 Million Euros Thu, ICC Press Release, 21 March 2013. 227 517, 151 in Lubanga and 366 in Katanga, as of December 2013. 228 Prosecutor v Bemba, Decision et demande en vue d’obtenir l’identification, la localisation, le gel et la saisie des biens et avoirs adressées a la republique Portugaise, ICC-01/05-01/08-8-US-Exp, 27 May 2008; Portugal Seizes Booty of Suspected Congolese War Criminal: Report, AFP, 22 July 2008. 229 Bemba, ICC-01/05-01/08-2401; Notification to the Defence and Legal Representatives of the Applicants of Applications for Reparation Pursuant to Rule 94(2) of the Rules of Procedure and Evidence, 25 October 2013, ICC-01/05-01/08-2847.

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they would receive less than 1,000 each. This would be far less than the tens to hundreds of thousands of euros ordered by the regional human rights courts to each victim, plus rehabilitation and measures of satisfaction to remedy effectively their harm.230 For instance, the Abuyeva and others v Russia case before the European Court involved the killing of 24 civilians by Russian aerial bombardment of a refugee ‘safe zone’ in Chechnya. The Court ordered between 30,000 and 120,000 to the victims for death of a relative or injuries suffered.231 In the Mapiripán Massacre v Colombia case the Inter-American Court awarded between $50,000 and $350,000 for the torture, dismemberment, murder, and disposal of at least 49 civilians in a nearby river, along with other types of reparations.232 Although these amounts were awarded against states, they were decided on an equitable basis to remedy victims’ harm. Both these regional human rights courts came to these amounts due to the seriousness of the violations against these individuals to the extent that they were compared to crimes against humanity. These cases therefore provide a good comparison to the crimes before the ICC and the appropriate amount required to compensate their harm. Despite the crimes before the ICC being the most serious and grave, the reparations based on the resources of the convicted person or the TFV are likely to be grossly insufficient to remedy the suffering of victims. This is in contrast to reparation orders by human rights courts against states, which are more likely to have the resources and capacity to provide mass-claim reparation programmes. Consequently, the reliance on individual responsibility by the Court impedes the amount of reparations victims can receive from the ICC. A number of commentators have suggested that reparations should be made on a collective or symbolic basis, due to lack of available resources, the potential thousands or tens of thousands of victims requesting reparations, and the time required to analyse each claim at the ICC.233 The Court could order collective reparations to be paid by the convicted person or the TFV in order to maximise their limited resources.234 Individual reparations are measures aimed at remedying the individual person’s harm, such as restitution or compensation for looted property. Collective reparations are awarded to a group to remedy their communal harm, such as a memorial for victims of a massacre, but they can also benefit society as a whole, e.g. human rights education of military forces. For instance in the

230 See Pablo de Greiff, Reparations and Justice, in J. Miller and R. Kumar (eds), Reparations: Interdisciplinary Inquiries (Oxford University Press 2007) 153–175, pp. 158–159; Sandoval-Villalba Ch. 1 Note 179. 231 App. no. 27065/05 (ECtHR, 2 December 2010). 232 Merits, Reparations and Costs, Series C No. 134 (IACtHR, 15 September 2005). 233 Keller Note 221; Mégret Note 189; Ferstman and Goetz Note 24; Wierda and Greiff Note 82; Rombouts Ch. 1 Note 130, p. 200. 234 Rule 97(1).

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Saramaka People v Suriname, the Inter-American Court ordered collective reparations to protect the Saramakas’ communal rights to land and compensation to be paid into a development fund for them.235 Symbolic reparations can be both individual and collective as they recognise the victim’s or group’s harm or ‘moral status’236 by offering a small monetary sum or constructing a memorial to acknowledge their suffering.237 There are a number of benefits to collective and symbolic reparations. Collective reparations can be cheaper to implement than mass compensation or restitution claims, such as constructing a memorial for the massacre of dozens of victims, instead of awarding them individual monetary amounts. They apply equally to a group of victims thereby avoiding a hierarchy of suffering sometimes associated with compensation awards, which address each individual’s particular suffering that can lead to varying levels between victims.238 Collective reparations can also potentially benefit other victims who are not part of a case before the ICC, such as the construction of a health centre in an area. However, collective reparations risk compromising individual victims’ right to a remedy by being utilitarian and responding to the needs of the group. Collective reparations can marginalise certain vulnerable groups, such as women, children, the elderly, or minority groups, who may have additional or different needs. Furthermore, the community or group to which collective reparations are directed at may not identify themselves as a collective entity with shared interests or needs. Reparations are instead supposed to remedy appropriately all victims’ harm, both individual and collective.239 The Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC) only allow collective awards and explicitly preclude individual monetary payments.240 Excluding individual restitution or compensation could allow the harm of international crimes to remain, such as poverty as a result of the death of the breadwinner in a family, destruction of an individual’s possessions or home, or a severe physical or psychological disability preventing them from earning a living. Additionally, the UN Human Rights Committee has ruled that ‘symbolic’ or less than full compensation is inadequate and ineffective as a remedy.241

235 Saramaka People v Suriname, paras 194–202. 236 Conor McCarthy, Reparations under the Rome Statute of the International Criminal Court and Reparative Justice Theory, International Journal of Transitional Justice 3(2) (2009) 250–271, p. 271. 237 See Albert Wilson v the Philippines, Communication No. 868/1999, UN Doc. CCPR/ C/79/D/868/1999 (2003). 238 Wierda and Greiff Note 82, p. 6. 239 Rianne Letschert and Theo Van Boven, Providing Reparations in Situations of Mass Victimisation, in Letschert et al. Ch. 1 Note 10 153–184, p. 170. 240 Rule 23(1)(b) and 23 quinquies(1). 241 Albert Wilson, para. 5.14.

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Individual and collective reparations are not mutually exclusive, but complement each other in remedying the different aspects of victims’ harm, particularly in light of the suffering that international crimes cause to individuals and groups, as explored in Chapter 1.242 This could preclude the sole reliance on symbolic reparations to redress victims’ harm. The use of both individual and collective reparations is supported by the jurisprudence of the Inter-American Court and the UNBPG;243 the Court should follow such an approach in order to provide victim-centred justice. The ICC Rules of Procedure and Evidence (RPE) permit judges to award individual and/or collective reparations.244 The Court could order the construction of a memorial or a health centre to provide rehabilitation, using the confiscated assets of the convicted person to fund these programmes. Alternatively, the convicted person could voluntarily apologise, such as in the Duch case before the Extraordinary Chambers in the Cambodian Courts;245 offer knowledge on the whereabouts of victims’ bodies, as occurred in the Nikolic´ case before the ICTY;246 make a full, public disclosure of what happened to allow the victims to find out the truth, such as Jean Kambanda at the ICTR;247 or order their armed forces to stop committing atrocities. In the Lubanga reparation decision Trial Chamber I mooted that the convicted person could contribute to ‘nonmonetary’ or ‘symbolic’ reparations, such as ‘a public or private apology to the victims’, which would be ‘only appropriate with his agreement’, but this would not form part of the Court’s order.248 So far Mr Lubanga has not apologised, or made any other form of symbolic reparation. Trial Chamber I in Lubanga reparation decision recognised that individual and collective reparations could be ordered concurrently.249 Significantly, it dismissed victims’ individual applications for reparation, and instead favoured collective reparations directed at helping child soldiers and their communities.250 This was on the basis that community based reparations would be ‘more beneficial and have greater utility than individual awards, given the limited funds available and the fact that this approach does not require costly and resource intensive verification

242 Principle 8, UNBPG. 243 See for instance 19 Tradesmen, para. 222; Plan de Sanchez Massacre, paras 54 and 93; Principles 8, 19–23, UNBPG. 244 Rule 97(1). 245 Prosecutor v Guek Eav Kaing alias ‘Duch’, ECCC, Judgment, 001/18-07-2007/ECCC/TC, 26 July 2010. 246 Prosecutor v Dragan Nikolic´, IT-94-2-S, Transcript, 3 November 2003 pp. 239–258; Combs, Ch. 1 Note 48, pp. 194–195. 247 Prosecutor v Jean Kambanda, ICTR 97-23-S, 4 September 1998, para. 50. 248 Lubanga, ICC-01/04-01/06-2904, para. 269. 249 Ibid., para. 220. 250 Ibid., para. 274.

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procedures’. Additionally, the Court was more inclined to make reparations on a community basis in order to ensure that reparations to certain individuals would not cause them further victimisation within Ituri, as other victims from other communities were excluded from reparations.252 However, this was contrary to the wishes of the victims who advocated for both individual and collective reparations.253 It is important to note that victims argued against community reparations on the grounds that the community ‘accepted this behaviour [the recruitment and use of child soldiers in the conflict] for the most part and supported the leaders who engaged in it. Many even collaborated.’254 Accordingly, reparations ordered on a community basis do not directly remedy the harm suffered by victims, could cause secondary victimisation, and portrays the Court’s reparation regime as symbolic. This may be the result of the judges in the Lubanga case interpreting the ICC reparations regime as serving a more reconciliation purpose than a remedial one, owing to the defendant being indigent, difficulties in ordering individual reparations to child soldiers of one community in Ituri, and having to rely on the TFV. The judges may also be trying to overcome the shortcomings of the criminal trial and its limited charges by maximising the scope of beneficiaries of reparations to the community rather than a specific group of individuals. Nonetheless, such an approach reduces the meaningfulness and effectiveness of reparations by failing to clearly and publicly acknowledge those individuals who suffered harm and responding to the needs of those most affected by these crimes. This decision to pursue more collective reparations for victims of international crimes before the ICC has impacted other victims’ perceptions of the Court in meaningfully addressing their needs. This is apparent in the Kenyan case of Ruto and Sang, whereby at least 47 victims have pulled out of participating at the Court. One of the predominant issues the victim cited for pulling out was that reparations would be ordered collectively, such as the construction of a hospital, meaning that perpetrators who continue to live near victims would be able to benefit from the harm they

251 Ibid. 252 Ibid., paras 240 and 244. 253 Lubanga, Observations on the Sentence and Reparations by Victims a/0001/06, a/0003/06, a/0007/06, a/00049/06, a/0149/07, a/0155/07, a/0156/07, a/0162/07, a/0149/08, a/0404/08, a/0405/08, a/0406/08, a/0407/08, a/0409/08, a/0523/08, a/0610/08, a/0611/08, a/0053/09, a/0249/09, a/0292/09, a/0398/09, and a/1622/10, ICC-01/04-01/06-2864-tENG, 18 April 2012; Observations du groupe de victimes VO2 concernant la fixation de la peine et des réparations, ICC-01/04-01/06-2869, 18 April 2012. 254 Ibid., ICC-01/04-01/06-2864-tENG, para. 16.

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caused.255 The victims’ submission cited other concerns with the selection of perpetrators, engagement with the peace process, and compensation claims before the Kenyan High Court, but the predominate concern remained the potential use of collective reparations at the end of the ICC. The victims would instead prefer compensation, even if it was a very little amount. Otherwise the victims felt disillusioned and justice could not be achieved before the Court. Such a position, while representing only some of the victims in the case, supports the importance of respecting victims’ views in such important decision making, and goes back to one of the elements of reparations in acknowledging victims’ specific harm, rather than benefiting the community. However, the legal representative of these victims did raise his concerns that such a submission by the victims reflected intimidation by the members of the community to pull out of ICC proceedings.256 A second problem is that individuals cannot carry out certain types of reparation, such as rehabilitation, satisfaction, and guarantees of nonrepetition. An apology by a convicted person could lack sincerity as it may only be due to criminal and appeal proceedings being complete, or to obtain a reduced sentence.257 Moreover, a convicted person lacks the capacity to perform other reparations which can only be facilitated by the state, such as physical recovery of victims’ bodies and reform of institutions which caused victimisation. Therefore reparations based on individual responsibility of a convicted person are likely to be limited to monetary or proprietary based reparations. It may be more feasible to consider organisational responsibility for non-state actors such as Lubanga’s militia, the UPC, to be responsible for reparations in order to collectively hold all the perpetrators responsible for the crimes, as together they may have more capacity and resources to provide reparations to victims. In such instances the role of the state to facilitate reparations or to provide them if the nonstate armed group is unable to, would better ensure victims are able to receive reparations for their harm. Third, by only concentrating on the responsibility of a convicted person ICC reparation orders may exclude the responsibility of the state in victims’ harm. International crimes can involve both individuals, such as a

255 Prosecutor v Ruto and Sang, Common Legal Representative for Victims’ Comprehensive Report on the Withdrawal of Victims from the Turbo area by Letter dated 5 June 2013, ICC-01/09-01/11-896-Corr-Red, 5 September 2013, para. 12. The letter was based on the wishes of 93 victims – 47 of whom had their participation status confirmed in the case, with 13 whose status is unclear, and 33 outside the scope of the case. There were some 628 victims participating as of December 2013. 256 Ibid., para. 16. 257 Mégret Note 189.

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Head of State, as well as state institutions. For example, Omar al-Bashir, President of Sudan, has been indicted by the ICC for international crimes committed in Darfur, which were carried out by state institutions, such as the Sudanese army, and other actors, e.g. the Janjaweed.259 As such, a number of perpetrators, groups, and institutions may be responsible for victims’ harm. The state can necessarily be involved in international crimes, due to their widespread and systematic nature as explored in Chapter 1.260 Prosecuting only an individual perpetrator, such as a Head of State, allows the victimising structures and other perpetrators to enjoy impunity leaving victims ‘defenceless’ and ‘fosters chronic recidivism’.261 Therefore, such partial responsibility undermines the Rome Statute’s objective of ending impunity and delivering justice to victims. The Trust Fund for Victims is supposed to supplement the shortcomings of reparations against convicted persons before the ICC.

E Reparations through the Trust Fund for Victims As discussed above, the TFV has two mandates: to be a repository of fines and forfeitures of assets so as to provide a reserve for ICC reparation orders; and to fund assistance to victims within the Court’s jurisdiction. The TFV could provide a solution to the specific challenges outlined above: the convicted person being indigent, and their inability to carry out the reparation programmes themselves. For the first issue, a number of scholars have suggested that problems of the convicted person being indigent can be overcome by the TFV.262 Fischer goes as far to declare that the TFV, ‘is the mechanism through which the international community can “right the wrongs” of international . . . crimes’.263 This is unrealistic given the limited resources of the Trust Fund and the multitude of victims within the Court’s jurisdiction. These challenges may mean that awards through the TFV would be small, inadequate, and symbolic by being unable to fully remedy victims’ harm.

258 André Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International Law, International and Comparative Law Quarterly 52(3) (2003) 615–640. 259 See Prosecutor v Al Bashir, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC02/05-01/09-1, 4 March 2009; Prosecutor v Al Bashir, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, 12 July 2010. 260 See A.A. Cançado-Trindade, The Access of Individuals to International Justice (Oxford University Press 2011). 261 ‘White Van’ case, para. 173. 262 Keller Note 221; Mégret Note 189; Jorda and Hemptinne Ch. 1 Note 226. 263 Peter Fischer, The Victims Trust Fund of the International Criminal Court: Formation of a Functional Reparations Scheme, Emory International Law Review 17(1) (2003) 187–240, p. 240.

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As the cases before the Court increase, it is also questionable whether reliance on the Trust Fund’s resources is sustainable in the future. On the second issue, with regard to the inability or lack of capacity of the convicted person to carry out reparative programmes, the ICC could use the TFV as it has funded the operation of a number of assistance programmes in the DRC and Northern Uganda. These programmes could be extended to cover victims in a reparation order by the Court. The Trust Fund could also facilitate the construction of memorials, commemoration days, or scholarships for victims. The TFV has no physical presence itself in these situations, but funds programmes which are carried out by intermediaries, such as intergovernmental, international, or national NGOs. The five-step plan of the TFV in the Lubanga case indicates the Court’s willingness to delegate the adjudication of reparations to this assistance body. Nevertheless, using the TFV to address these two concerns raises the conceptual problem of attributing responsibility. First, if reparations and assistance are both funded by the resources of the Trust Fund and carried out by NGOs, it makes it difficult to distinguish reparations ordered by the Court from charity or humanitarian aid, which target individuals because of their vulnerability or need rather than rights.264 Perhaps some victims will just want assistance, but by placing responsibility for reparations with the TFV, it has the effect of transforming such a right into a discretionary service which lacks transparency and prevents victims from holding it to account by challenging its decisions. Designating reparations to be provided through the TFV as assistance to victims equates it with charity connoting pity and disempowering them as helpless, vulnerable objects of moral concern, rather than a rights discourse where victims are subjects ‘empowering’ them to seek remedy against those responsible, reinforcing their legal entitlement and agency. Second, the conceptual coherence of reparations is further undermined by the responsible party not being held liable for reparations. This is because the funds used by the TFV do not come from convicted persons, but are voluntary contributions made by State Parties of the Rome Statute. Jorda and de Hemptinne suggest the use of the reparations through the TFV demonstrates State Parties wanting to ensure their collective interests of remedying victims’ harm, such as under erga omnes partes.265 However, erga omnes partes only gives rise to other State Parties invoking the responsibility of the state which has committed the breach, rather than them undertaking the responsibility to provide reparations.266 This issue goes back to the theoretical basis of reparations mentioned at the start of this

264 Ferstman and Goetz Note 24, p. 341. 265 Jorda and de Hemptinne Ch. 1 Note 226, p. 1416. 266 Article 48, RSIWA.

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chapter, where responsibility arises on the basis of a wrongful act by an individual, organisation, and/or state. A responsible individual or state is obliged to make reparations to remedy the harm they have caused so as to hold them accountable and to vindicate the law. For victims, the origin of reparations can be important as the culpable person is made to acknowledge and remedy their suffering.267 To exclude such an aspect neglects the corrective and reparative justice elements of reparations. The focus of the ICC on the convicted person thus creates conceptual difficulties in the locus of responsibility. As the Court has not committed a wrongful act, granting reparations through the Trust Fund does not infer that the ICC is responsible by fulfilling the obligations of a state, nor does this give rise to victims’ right to make such claims against the ICC. Focusing on one institution to provide justice and reparations to millions of victims is clearly unrealistic. However, as the Rome Statute was established to provide justice to victims and to end impunity, the mandate of the Statute needs be reconciled with the practice of the Court. The solution to this lies in the notion of complementarity and state responsibility, in that State Parties have the primary responsibility to fulfil the Rome Statute’s mandate, with the ICC only being a last resort. Reparations through the ICC do not negate a state’s responsibility to provide reparations to victims.268 Thus the reparation regime of the Rome Statute includes the Court and State Parties working together to provide justice to victims through accountability and reparations in order to end impunity.

F State responsibility for reparations As outlined above, state responsibility for reparations only arises when a state commits a wrongful act. A state is not responsible for all conduct within its jurisdiction, such as that committed by non-state actors, unless a rebel movement becomes the new government.269 It is only responsible when its actions or inactions are considered wrongful in themselves, separate from the violations committed by the non-state actors.270 A state’s responsibility for its inactions arises where: it does not protect its citizens from non-state actors committing international crimes;271 or it fails to investigate, prosecute, and punish those who commit international crimes.272 This second part is consistent with State Parties’ obligation

267 268 269 270 271

Walleyn Ch. 3 Note 323, p. 362. Article 75(6). Article 10(1), RSIWA; Principle 12, UN Victims’ Declaration; Principle 16, UNBPG. Pueblo Bello Massacre, para. 123. Velásquez Rodríguez, paras 175–176; Loayza-Tamayo, para. 168; General Comment No. 31, para. 8. 272 Article 146, Geneva Convention (IV), 75 UNTS 287; Velásquez Rodriguez, para. 32; Osman v United Kingdom, App. no. 23452/94 (ECtHR, 28 October 1998), para. 115.

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under the Rome Statute to investigate and prosecute those responsible for international crimes. The failure of a state to do so acknowledges the existence of impunity. As discussed in Chapter 1, international crimes generally involve the actions or inactions of a state owing to their widespread and systematic scale. International criminal justice only holds those individuals most responsible to account, but is meant to be complemented by states who have the primary obligation to provide reparations to victims of international crimes. The Court by focusing only on the responsibility of individuals for international crimes displaces responsibility from the state and obscures the reality of international crimes, which are committed by both. International law and human rights law recognise the ‘duality’273 of responsibility at the individual and state level for international crimes, which ‘co-exist . . . for the eradication of impunity’.274 The individual perpetrator is criminally punished and the state is responsible for investigating, prosecuting, and punishing those responsible and providing reparations to victims.275 Holding all individuals accountable for international crimes may not be enough to end impunity, especially where state institutions committed atrocities or allowed a cause of victimisation to continue, such as abusive or discriminative policies of the armed forces, as in South Africa under apartheid. In practice, due to the limitations of evidence or criminal court capacity it is unlikely that all or even most perpetrators will be held to account, but states can ensure that all or most victims can receive redress through reparations. In addition, a state cannot be held criminally responsible as it is a legal entity; therefore reparations remain the primary means for holding it accountable.276 Reparations are necessary to fill the gap between retributive justice and remedying victims’ harm, including the causes of victimisation. As the purposes of the Rome Statute and the International Criminal Court are to end impunity and deliver justice for victims, this section will examine how state responsibility for reparations can be used to complement the Court’s orders.

273 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment [2007] ICJ Reports 43, para. 173; Anzualdo Castro v Peru, Preliminary Objection, Merits, Reparations and Costs, Series C No. 202 (IACtHR, 22 September 2009), para. 125; Article 58, RSIWA. 274 Separate Opinion of Judge Cançado Trindade, Plan de Sánchez Massacre, para. 39. 275 Velásquez Rodríquez, para. 134; Pueblo Bello Massacre, paras 91, 112, and 122; Principle 16, UNBPG. 276 Judgment of the International Military Tribunal, IMT Official Documents, Vol. 1 (1947), p. 223.

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1 State responsibility and the Rome Statute: reparative complementarity The ICC only has jurisdiction over individuals who commit international crimes and not states.277 As mentioned above on the drafting of the reparation provisions in the Rome Statute, the drafters excluded state responsibility for the purposes of reparations.278 Conversely, the Rome Statute does not transfer responsibility for reparations to the ICC. Rather the Rome Statute maintains state responsibility for reparations, as can be seen in Article 25(4) which stipulates ‘[n]o provision . . . relating to individual criminal responsibility shall affect the responsibility of States under international law’.279 This is supported by Article 75 which touches upon state cooperation and enforcement of the Court’s reparation orders.280 The drafters intended that these references to the state would recognise that it is in the best position to remedy as far as possible the consequences committed by international crimes.281 Accordingly, the ICC would establish reparation principles and leave them for national authorities to implement.282 This evidences a reparative complementarity approach, whereby the state is primarily responsible for reparations, with the ICC only ordering reparations in the cases before it. Such an approach is connected to the external element of justice for victims at the ICC, discussed in Chapter 1, by maximising the impact of the Court through catalysing states to fulfil their obligations. Reparative complementarity would not require State Parties to follow the decisions of the ICC on reparations, but it would require them to develop domestic mechanisms based on the UNBPG that would enable victims to claim reparations against perpetrators, culpable organisations, or the state. Importantly for the reparation regime of the ICC, reparative complementarity could overcome its shortcomings through the support of reparation mechanisms in State Parties. As the ICC has no jurisdiction over states it cannot hold them responsible when they do not provide reparations to victims. However, other State Parties can invoke the responsibility of a state which has committed a breach based on obligations erga omnes partes, i.e. as part of a multilateral treaty, which affects a collective interest.283 With regards to the Rome Statute, the obligation to investigate and prosecute those responsible is

277 Article 1, Rome Statute. 278 Muttukumaru Ch. 1 Note 282, p. 264; see also Resolution ICC-ASP/10/Res.3, 20 December 2011, para. 2. 279 Article 25(4), Rome Statute. 280 Article 75(4) and (5) discussed below. 281 Réparations dues aux victimes: Intervention de la France, Rome Conference, 17 March 1998, p. 3. 282 Ibid., p. 2; see also Draft Article 43(3)(c), Proposal Submitted by Egypt for Article 43, A/ AC.249/WP.11, 19 August 1996. 283 Article 48, RSIWA.

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breached when a state is unwilling or unable to do so, and therefore it affects State Parties’ collective interest in ending impunity, as discussed in Chapter 1.284 The Inter-American Court has also recognised that the failure to eliminate impunity violates victims’ right of access to justice, requiring the other states to collectively adopt all measures to ensure it does not continue.285 With regards to reparations, in invoking the responsibility of a state which has breached its obligations, other State Parties can require it to cease the breach and make guarantees of non-repetition, as well as performance of reparations to beneficiaries of the obligation breached.286 One way to do this outside the Rome Statute is to bring a claim before the International Court of Justice (ICJ).287 This could be an important enforcement mechanism to ensure the compliance of states with the Court’s reparation orders. Without such enforcement, the ICC would become powerless, abstract, and an ineffective remedy for victims. There are specific provisions within the Rome Statute for the Court to involve State Parties in reparations orders. The ICC could call upon a responsible state to complement the Court’s reparation orders based on Articles 75(4) and (5). Article 75(4) enables the ICC to request certain types of reparations from a state. Under the provision the Court, ‘may . . . determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under Article 93, paragraph 1’. Under Part 9 of the Rome Statute on ‘International Co-operation and Judicial Assistance’, Article 93(1) on ‘co-operation’ stipulates that State Parties ‘shall’ comply with any requests made by the Court under this article. In relation to reparations, Articles 93(1)(g), (k), and (l) are noteworthy. Starting with Article 93(1)(k), the most relevant provision to reparations, enables the Court to request State Parties to identify, trace, freeze, and seize any property or assets belonging to the convicted person to support reparation orders. This could provide an important avenue for victims to seek restitution of their property and fund reparation orders. Article 93(1)(g) on ‘the exhumation and examination of grave sites’ could also be useful for measures of satisfaction ordered by the ICC in identifying and returning the bodies of victims to their next of kin. Of course, use of the word ‘may’ in the article implies there is no obligation

284 Article 48(1)(a), RSIWA; moreover, this also may breach jus cogens obligations which are owed to the international community as a whole allowing other State Parties to invoke responsibility under Article 48(1)(b), as well as 40 and 41, RSIWA. 285 Goiburú et al. v Paraguay, Merits, Reparations and Costs, Series C No. 153 (IACtHR, 22 September 2006), para. 131; Anzualdo Castro v Peru, para. 125. 286 Article 48(2)(b), RSIWA. 287 Article 36, Statute of the International Court of Justice, 18 April 1946; a similar obligation under Articles 6 and 7 of the 1984 UN Convention Against Torture was invoked before the ICJ in the case of Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), 20 July 2012.

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on judges to order measures under Article 93(1). Such requests under Article 93(1)(g) or (k) would be consistent with the jurisprudence established by the regional human rights courts and international human rights conventions, which obligate a state to restore property and the bodies of deceased victims.288 Clearly in most cases these measures will not be a full and effective remedy. Article 93(1)(l) permits the Court to request cooperation from a state to provide ‘any other type of assistance’ to give effect to a reparations order. This could be a broader basis to request a state to complement the Court’s reparation regime. Unlike Article 75(4), Article 75(5) is not limited to the measures outlined in Article 93(1), so it may provide a wider avenue for the ICC call upon a state to carry out other reparation measures. Under this Article ‘[a] State Party shall give effect to a decision under this article as if the provisions of Article 109 were applicable to this article’. Article 109(1) on ‘enforcement’ stipulates that State Parties ‘shall give effect’ to the enforcement of fines and forfeitures ordered by the ICC. This requires State Parties to enforce the reparation orders at the national level. Turning again to the Vienna Convention on the Law of Treaties, the ICC judges could rely on the preparatory work of Article 75 in interpreting its application.289 In earlier drafts of Article 75, the Court could determine the scope and extent of victimisation as well as the principles for reparation so that victims could rely on it to pursue remedies in domestic proceedings.290 Rule 219 of the RPE affirms this by requiring states not to modify ‘the reparations specified by the Court, the scope or the extent of any damage, loss or injury determined by the Court or the principles stated in the order, and shall facilitate the enforcement of such order’. Furthermore, Article 88 of the Rome Statute obliges each State Party to ensure that there are procedures available in their national law for cooperation with the Court. Therefore under Article 75(5) the Court could make a reparations judgment and outline principles and the extent of victimisation to be enforced through domestic courts. Under the Rome Statute a state would be responsible for complementing reparations at the ICC in two situations. In the first situation we can term ‘basic reparative complementarity’, the Court could call upon a responsible State Party to supplement reparation orders made by the ICC against a convicted person under Article 75. In this situation, there are three levels where the Court could call upon a responsible state. To begin with, where the convicted person has the assets to fund reparations for all victims, the Court could request a state to provide certain reparations

288 Article 15, ICPPED, UN Doc. A/RES/61/177 (2006); Papamichalopoulos and others v Greece, para. 38; Pueblo Bello Massacre, paras 270–273. 289 Article 32(1). 290 Preparatory Committee Report Vol. I, para. 282.

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which are impossible for the incarcerated person to carry out, such as rehabilitation, measures of satisfaction, and guarantees of non-repetition. In the second instance, where the convicted person is indigent, the Court after determining the extent of victimisation and appropriate reparations could call upon a state to provide reparations to victims, with the TFV only used to provide interim rehabilitation, consistent with its current assistance mandate, so as to avoid any conceptual difficulties with reparations and to minimise the continuing effects of the crimes on victims. This would be coherent with the responsibility of a state under international law and human rights law for its actions or inactions in international crimes and impunity, and the principle of subsidarity.291 The state could pursue the resources of members of an armed group, which the convicted person is also a member, to indemnify the state, or seek out other responsible actors such as corporations which facilitated such crimes. In the third instance, where the convicted person is indigent and a responsible state is unwilling to provide reparations to victims, the Court could refer the matter to the ASP or Security Council, for its failure to comply with a request of the Court, thereby engaging international responsibility.292 The second situation of ‘comprehensive reparative complementarity’, responsible states would have a general obligation to provide a dedicated national reparation mechanism and process for all victims of international crimes, including those outside the reparation decisions of the ICC, in order to end the effects of impunity and to provide an effective remedy.293 This would remove the reparations gap between those few victims before the ICC and the majority who had suffered from international crimes. This approach adheres to the principle in human rights law that reparations are based on the victims’ harm without the need for the perpetrator to be identified, apprehended, prosecuted, or convicted, i.e. victimcentred.294 It would also require the state to provide reparations even where the individual perpetrator is identified and convicted, but indigent, so that state provision of reparations in a subsidiary role to individual responsibility would ensure that all victims, regardless of the perpetrator’s affiliation, would be able to receive reparations.295 The motivation for states to create such mechanisms and processes would be to avoid costly and lengthy civil litigation against the state, which

291 Article 40, RSIWA; Velásquez Rodríguez, paras 175–177; Blake, para. 64; 19 Tradesmen, para. 175; Principles 15–16, UNBPG. 292 Article 87(7). 293 See Report of the International Commission of Inquiry on Darfur to the SecretaryGeneral, S/2005/60, 1 February 2005, paras 591–600. 294 See Principle 2, UN Victims’ Declaration; Principle 9, UNBPG. 295 Principle 16, UNBPG.

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can be a political liability in terms of human rights compliance. This mechanism/policy approach, rather than court based, would remove the burden from victims bringing civil claims and provide sufficient evidence against perpetrators to obtain redress, or to exhaust all domestic remedies before being able to bring a case against the state at a regional human rights court. This principle of subsidiary would require states to provide full reparations for victims, due to the serious and harmful nature of international crimes.297 Accordingly State Parties would provide streamlined reparation mechanisms to all victims of collective violence. As the Court only has jurisdiction over convicted persons for the purposes of reparations, the Statute does not provide proceedings to adjudicate on this second situation. Therefore it would be incumbent on the state to carry out reparations consistent with principles and the UNBPG. Failure of a responsible state to provide reparations could be enforced by State Parties through the ICJ on the basis of international responsibility, or victims could claim violation of their rights at regional human rights courts on the grounds of state responsibility. In the Lubanga decision Trial Chamber I tentatively indicated that a reparative complementarity approach is possible by finding that State Parties and the international community are ‘entitled to institute other forms of reparation’.298 The Chamber stated that such reparations could include, establishing or assisting campaigns that are designed to improve the position of victims; by issuing certificates that acknowledge the harm particular individuals experienced; setting up outreach and promotional programmes that inform victims as to the outcome of the trial; and educational campaigns that aim at reducing the stigmatisation and marginalisation of the victims of the present crimes. These steps can contribute to society’s awareness of the crimes committed by Mr Lubanga and the need to foster improved attitudes towards events of this kind, and ensure that children play an active role within their communities.299 Although the decision does not recognise State Parties’ obligations for reparations under the Rome Statute and includes mostly symbolic,

296 IOM report Ch. 2 Note 195, p. 19. 297 In comparison to many national compensation schemes whereby the state only provides damages and costs to victims of crime; see Rianne Letschert and Karin Ammerlaan, Compensation and Reparation for Victims of Terrorism, in R. Letschert, I. Staiger, and A. Pemberton (eds), Assisting Victims of Terrorism: Towards a European Standard of Justice (Springer 2010) 215–266, p. 231. 298 Lubanga, ICC-01/04-01/06-2904, para. 239. 299 Ibid.

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informational, and reconciliatory measures, it does suggest that the reparation orders by the ICC are insufficient in themselves. As such, this requires the cooperation of State Parties and the international community to complement the work of the Court in order to remedy victims’ harm. The Assembly of State Parties has recently passed a resolution that liability for reparations within the framework with the Rome Statute is limited to individuals, not State Parties.300 However, to guarantee the success of reparative complementarity, binding State Parties through obligations would be better in securing effective remedies for victims. 2 Reparative complementarity: a solution? 301 Effectively, the inclusion of reparative complementarity follows the drafters’ intentions on reparations by recognising that the state is in the best position to carry them out. It is also in harmony with states’ obligations under international law and human rights law. This approach is still interpretatively and legally possible due to the ambiguous language of Article 75, the jus cogens nature of international crimes, and the obligation to provide reparations.302 In applying reparative complementarity to the problems facing the Court’s reparation regime – limited reparations, inadequate resources, and the issue of responsibility – state responsibility could be a solution to these inadequacies. The Extraordinary Chambers in the Courts of Cambodia (ECCC) in its reparations decision in the Duch case came to a similar finding.303 The Cambodian Chamber found that victims’ reparation requests for rehabilitation and memorials should be carried out by the Cambodian government or non-governmental organisations. The Chamber refused to order measures of satisfaction or rehabilitation to be carried out by the Cambodian Court on the grounds that such measures interfered with the national government’s prerogatives to provide reparations. A distinction must be drawn between the reparations regimes of the ECCC and the ICC. The ECCC is based on a partie civile system in Cambodian law, which allows victims to attach their civil claims to a criminal prosecution. Additionally, the ECCC Internal Rules stipulate a restricted scope of only collective and

300 Victims and Affected Communities, Reparations and Trust Fund for Victims, ICCASP/12/Res.5, para. 9. 301 See Luke Moffett, Reparative Complementarity: Ensuring an Effective Remedy for Victims in the Reparation Regime of the International Criminal Court, International Journal of Human Rights 17(3) (2013) 368–390. 302 Separate Opinion of Judge A.A. Cançado-Trindade, Street Children, para. 36; ‘White Van’ case, para. 173; Ituango Massacres, paras 128–129. 303 Duch, 001/18-07-2007/ECCC/TC, Judgment, para. 66.

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moral reparations, and do not include a trust fund for victims. In contrast, at the ICC reparations under Article 75 are likely to be based on international and human rights law, which permit different types. Moreover, Article 75(4) and (5) specify state cooperation and enforcement of reparations with the ICC. Nevertheless, the Duch decision is still relevant as it indicates an important point: that the state is primarily responsible for reparations. The difficulty with the Duch decision is that the ECCC refused to call upon the Cambodian government to fulfil its international obligations to provide reparations for all the victims of the Khmer Rouge. At the ICC calling upon a State Party to provide extensive reparation programmes could consume a post-conflict country’s GDP and may be disproportionate, or it may not have the ‘independence, credibility or capacity’ to create effective reparation programmes by itself.305 Instead, impoverished states could provide reparations over a number of years such as an annual pension, rather than a lump sum, with reparations justified on the basis of a country’s priorities in contrast to its defence budget.306 In such instances, there may be a role for other State Parties, as members of the ASP, to provide support through capacity building, such as sending experts, as they currently do in building states’ prosecutorial competence.307 Moreover, as Van Der Wilt points outs, there is a margin of appreciation for State Parties in fulfilling their obligations under the Rome Statute, in that they do not have to follow the exact procedure established for the Court, but can adapt it to their own domestic procedures provided they follow substantive law of the ICC, such as the crimes and requests by the Court.308 However, there are certain procedural provisions states would have to adopt for domestic mechanisms to remedy victims’ harm, including their protection and participation in proceedings to ensure effective reparations. Reparation decisions at the ICC should thus place victims at the centre by determining their harm and appropriate types to remedy it effectively, then to decide where the resources should come from, instead of being dictated by the convicted person’s assets. Otherwise, reparations are centred on the successful conviction of the perpetrator, resulting in

304 Rule 23 of the ECCC Internal Rules (Rev. 8); these rules were amended after the Duch judgment to include a fund for victims; see Redress Note 1, pp. 22–23. 305 Articles 35 and 37, RSIWA; Cecily Rose, An Emerging Norm: The Duty of States to Provide Reparations for Human Rights Violations by Non-State Actors, Hastings International and Comparative Law Review 33(2) (2010) 307–343, p. 309. 306 See Correa Ch. 1 Note 140, 185–234. 307 In Uganda, see Justice for Serious Crimes before National Courts: Uganda’s International Crimes Division, HRW, 2011. 308 Harmen van der Wilt, Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court, International Criminal Law Review 8 (2008) 229–272.

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symbolic reparations for victims. The difficulty of reparations in international criminal justice is compounded by its asymmetrical nature, which concentrates on the responsibility of single perpetrators despite international crimes involving thousands of victims. This is not to remove reparations from the ICC, but to seek solutions which allow the Court to move from a solely retributive justice institution to a more reparative justice one and achieve victim-centred justice. Key to the success of the reparation regime of the ICC is the support of other State Parties through reparative complementarity.

G Conclusion Reparations provide the opportunity for the ICC to push the boundaries of international criminal justice beyond defendant-focused criminal justice, by delivering justice directly to victims of international crimes. Thus international criminal justice moves from retributive justice to a more remedial one. However, a narrow reading of the Rome Statute, which sees the convicted person as the only source of reparation, will be inadequate to remedy victims’ suffering and may be a source of secondary victimisation. Although the TFV can fund some assistance, it is not reparation. The Lubanga decision which has delegated the decision making process to the TFV and Registry has already been decried by victims as neglecting their interests and unlikely to provide an effective remedy to their harm. In order to offer justice to victims under the Rome Statute, State Parties need to remedy impunity by prosecuting those responsible and awarding reparations to victims. As this chapter has argued, the ICC does not absolve State Parties from their obligations to provide reparations to victims of international crimes, rather it affirms it. Perhaps the dissatisfaction with the asymmetrical individualised responsibility of the ICC reparation regime rests in the failure of the Court to reflect the reality of how international crimes occur, wherein perpetration and responsibility is not individualised, but is orchestrated collective violence through multiple actors and institutions. Accordingly pinning the blame on one individual, such as Thomas Lubanga, is grossly unsatisfactory given the reality of the context to which crimes arise, such as the conflict in the DRC involving numerous states and non-state actors, and resulting in millions of deaths with continued violence and insecurity. Furthermore the impact of a certain group of victims receiving reparations only serves to distinguish them as more deserving than others, as they have by chance had their case successfully heard and resolved by the ICC. This in itself only reinforces a hierarchy of victims and notions of more deserving victims, which in itself is likely to cause secondary victimisation and lead to further insecurity when co-opted by community and ethnic narratives of the conflict. Conceivably a more sustainable and fair approach to reparations would include all victims and be based at the state level.

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Of course states, such as the DRC, may have other pressing public priorities in spending its revenue, which requires international organisations such as the ICC to ensure states place victims at the centre of any reconstruction or transition from the past. Reparative complementarity under the Rome Statute seems to offer a solution to the problems faced by the reparation regime of the ICC, as well as to complement other responsibility regimes in international law and human rights law. The growing international and human rights jurisprudence establishes that reparations are victim-centred measures of redress. Additionally, this jurisprudence has recognised that prosecutions and reparations are necessary and inter-connected parts in remedying international crimes. This is due to the serious and widespread harm these crimes cause to victims. The development of international criminal justice through the inclusion of reparations within the Rome Statute demonstrates that prosecution on its own is no longer recognised as sufficient by itself to remedy the harm caused to victims of international crimes. The next chapter examines how the external element of the Court in catalysing justice for victims in domestic jurisdictions through complementarity has worked in practice in the situation of Northern Uganda at the ICC.

5

The impact of the International Criminal Court on victims in Northern Uganda

A Introduction The first state referral and case before the ICC was on the situation in Northern Uganda. In order to gain a greater insight into the success of the ICC outside the courtroom, this chapter examines the Ugandan situation, with regard to the delivery of the Rome Statute’s objectives of ending impunity and providing justice to victims. As the last two chapters have argued, realisation of victims’ substantive rights to truth, justice, and reparations under the Rome Statute will be through the actions of State Parties, as only a fraction of them are likely to gain access to the ICC. Accordingly, the success of the Court in delivering justice to victims is not only to be judged by how many of them participate, are protected, or receive reparations before the ICC, but how State Parties fulfil their obligations under the Rome Statute to investigate and prosecute those responsible, as well as to provide reparations. Thus this involves the external element of the Court achieving justice for victims by catalysing the Ugandan government to fulfil its obligations under the Rome Statute, mentioned in Chapter 1. Although the ICC has only been operating for ten years and opened its investigation in Uganda in 2004, this chapter analyses the Court’s work up until the end of 2013 and suggests the need to seek enforcement of the Ugandan government’s obligations under the Rome Statute. The views of key stakeholders, including victims, are integrated into the text to provide anecdotal knowledge of their perceptions of the Court and domestic developments. This bottom-up perspective attempts to add clarity to assessing the situation in Northern Uganda. This chapter begins by outlining the historical and political context of the Northern Ugandan conflict, as well as the scale of victimisation caused by it. The following section discusses the impact of the ICC on the conflict, before examining victims in the Court’s proceedings. The subsequent section analyses complementarity in how the Ugandan government is fulfilling its obligations under the Rome Statute and the impact of the ICC in Uganda by considering what norms, values, and standards have been

The ICC and victims in Northern Uganda 197 internalised by domestic institutions and actors through the Court’s intervention. The chapter concludes by finding that the Rome Statute’s objectives of ending impunity and delivering justice to victims in Northern Uganda have not been achieved.

B Background to the Northern Ugandan conflict Since 1986, the Ugandan government has been fighting various northern rebel groups, most notably the Lord’s Resistance Army.1 Although the conflict has its roots in colonialism, it is also the result of cycles of victimisation through atrocities committed by both northern and southern forces. Many Acholi, who make up a large proportion of Northern Ugandans, see the current conflict as revenge for the ‘Luwero triangle’ massacres. These massacres were committed against southern civilians in the 1980s by the Ugandan army mostly made up of northern Acholi and Lango soldiers under northern President Milton Obote. With the coming to power in 1986 of Yoweri Museveni, a south-westerner, Northern Ugandans feared brutal reprisals for Luwero, which many witnessed. This brought back memories of Idi Amin’s massacre of Acholi and other northerners in the 1970s.2 Over the past 25 years the conflict in Northern Uganda has been defined by its brutal use of violence against civilians by both the Lord’s Resistance Army and the Ugandan government. The Lord’s Resistance Army (LRA) led by Joseph Kony has been fighting the Ugandan government since 1987.3 The LRA has cut off civilians’ lips, ears, noses, and limbs;4 burnt civilians alive in their homes; abducted and used 24,000–38,000 children and 28,000–37,000 adults as combatants, porters, and ‘wives’, and committed mass murder, pillaging, and torture.5 Some of the most notable LRA massacres include the 1995 Atiak massacre of over 200 civilians, the 2004 Barlonyo massacre where over 300 civilians

1 See Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (Zed Book 2006); Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (Oxford University Press 2011). 2 Allen ibid., pp. 28–30; Branch ibid., p. 57. 3 See Ruddy Doom and Koen Vlassenroot, Kony’s Message: A New Koine? The Lord’s Resistance Army in Northern Uganda, African Affairs 98(390) (1999) 5–36. 4 Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda, HRW, 2005, pp. 20–21. 5 UNICEF Uganda Report December 2005; Abducted and Abused: Renewed Conflict in Northern Uganda, HRW, 2003; P. Pham, P. Vinck, and E. Stover, Abducted: The Lord’s Resistance Army and Forced Conscription in Northern Uganda, Berkeley-Tulane Initiative on Vulnerable Populations, June 2007.

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were killed, and the 2004 Lukodi massacre of 60 civilians.6 Those abducted by the LRA were also subjected to beatings, torture, and in many cases forced to kill their families, civilians, or other abductees as part of their initiation. Although the LRA does not generally commit rape when attacking villages or camps, those girls and women captured in raids are often forcibly used as ‘wives’ for commanders, thereby institutionalising rape and sexual slavery.7 The Uganda army (UPDF, previously NRA)8 is also responsible for atrocities, abuses, and neglect committed as part of its ‘counter-insurgency’ strategy against the LRA and other northern rebellions.9 Since 1986, the NRA/UPDF has used brutal counter-insurgency tactics against the LRA. These have at times indiscriminately targeted the whole Northern Ugandan civilian population, such as extra-judicial executions, torture, rape, and pillaging. From 1996–2006, the UPDF also used murder, torture, and aerial bombardment to corral over 90 per cent of the northern population, some two million civilians, into so-called “protected villages”. Often the UPDF gave civilians days or even hours to leave their homes before shelling or shooting them on sight.10 The ‘protective villages’ title is a misnomer, considering the camps were inadequately protected by the UPDF.11 Moreover, without effective assistance, the camps resulted in high civilian mortality, due to insanitary conditions, lack of food, and insufficient medical supplies.12 Between January and July 2005 alone, some 25,694 civilians died (including 10,054 children) in protected villages in Northern Uganda, of which 3,971 were killed in combat, giving an average figure of 1,000 civilians dying each week from camp conditions.13

6 See Remembering the Atiak Massacre April 20th 1995, Justice and Reconciliation Project, Gulu District NGO Forum, Field Note No. 4, April 2007; Kill Every Living Thing: The Barlonyo Massacre, Justice and Reconciliation Project (JRP), Gulu District NGO Forum, Field Note IX, February 2009; The Lukodi Massacre, 19th May 2004, Field Note XIII, April 2011. 7 HRW Note 4, pp. 21–22; Allen Note 1 p. 43; interview with former LRA members, Gulu, 7 July 2011. 8 Uganda People’s Defence Force/National Resistance Army. 9 Adam Branch, Uganda’s Civil War and the Politics of ICC Intervention, Ethics and International Affairs 21(2) (2007) 179–198, p. 180. 10 Breaking the Circle: Protecting Human Rights in the Northern War Zone, Amnesty International, 1999, AI Index: AFR 59/001/1999; and Nowhere to Hide: Humanitarian Protection Threats in Northern Uganda, Civil Society Organisations for Peace in Northern Uganda, 2004. 11 HRW Note 5, p. 64. 12 Health and Mortality Survey among Internally Displaced Persons in Gulu, Kitgum and Pader Districts, Northern Uganda, Ugandan Ministry of Health, WHO, UNICEF, WFP, UNFPA, and IRC, 2005; see Between Two Fires: The Human Rights Situation in ‘Protected Camps’ in Gulu District, Human Rights Focus (HURIFO), 2002. 13 Ministry of Health ibid.

The ICC and victims in Northern Uganda 199 The Ugandan security forces also perpetrated numerous abuses and atrocities. The UPDF and the Local Defence Units (LDU) often beat, tortured and killed civilians who left the camps, dissented, or refused to join them.14 Ugandan security forces have been implicated in numerous rapes as well as forcibly recruiting children as combatants.15 Additionally, the insecurity in Northern Uganda meant civilians’ livestock, possessions, and homes were subjected to pillaging and destruction by government forces, particularly in relation to their prized cattle, which were decimated by raids from UPDF soldiers and neighbouring Karamojong raiders.16 Some UPDF commanders have also profited from the conflict, through seizing displaced people’s land or corruption.17 Accordingly, the Acholi saying ‘when two elephants fight, it is the grass who suffers’18 epitomises the brutality of the conflict on the civilian population. One elderly woman commented that both parties were ‘crushing us like nothing’ with people being ‘burnt like leaves’.19 Dolan characterises the situation of Northern Ugandans as ‘social torture . . . evidence[d] in widespread violation, dread, discretion, dependency, debilitation and humiliation of all which are tactics and symptoms typical of torture, but perpetrated on a mass rather than individual scale’.20 Consequently, most Northern Ugandans have been directly and indirectly victimised, due to both the violence and the ‘piny marac’ (bad surroundings) such as structural inequalities, displacement, neglect of basic needs, and economic and political marginalisation.21 Despite the removal of the LRA from Northern Uganda and the return of relative peace in 2006, victims and affected communities still feel the effects of the conflict with many continuing to suffer from painful memories, disability, and poverty. As the result of at least 25 years of conflict, there are numerous victims, with the conflict spilling into the neighbouring countries of South Sudan, Central African Republic, and the Democratic Republic of Congo (DRC). Victimisation and suffering in Northern Uganda is not limited to certain groups or localities, but is endemic. Research carried out by the Berkeley Human Rights Center suggests the extent of Northern Ugandans’ victimisation with 95 per cent of respondents identifying themselves as direct

14 See HRW Note 5. 15 AI report Note 10; HURIFO Note 12, pp. 15–17. 16 The head of cattle in northern Uganda in 1985 numbered some 285,000, by 1997 it numbered as little as 5,000, an economic loss of some US$25 million; Robert Gersony, The Anguish of Northern Uganda, USAID, 1997, p. 31. 17 Allen Note 1, p. 49. 18 Interview, female victim, 9 July 2011. 19 Interview, 9 July 2011. 20 Chris Dolan, Social Torture: The Case of Northern Uganda, 1986–2006 (Berghahn Books 2011), p. 1. 21 Sverker Finnström, Living with Bad Surroundings (Duke Press 2008), pp. 10–14.

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victims,22 88 per cent reporting being displaced, 57 per cent household members killed, and 45 per cent abducted, with many Northern Ugandans subjected to numerous other crimes and violations.23 As such, the UN Office of the High Commissioner for Human Rights has recognised victims’ suffering as ‘a wide range of physical, emotional, psychological, cultural and economic harms, both as individuals and communities . . . different harms have had a compounding effect’.24 Victimisation is also complex with children or adults being abducted by the LRA and forced to commit crimes, causing them to be both victims and perpetrators.25 Abductees can suffer from stigmatisation upon returning home, due to them being forced to commit crimes against their local communities. Girls and women can suffer sexual abuse and violence in captivity, and as a result be ostracised upon returning home.26 In sum, victimisation in Northern Uganda is endemic, compounding, and complex. This is consistent with the discussion in Chapter 1 on the harm international crimes cause. Responses to the conflict need to remedy this harm as well as the sources of the victimisation and inequality, such as southern National Resistance Movement’s dominance of the government and military, northern political marginalisation, ineffectual local courts and police, and impunity for crimes committed. Yet, there has been little or no accountability for those responsible or remedies for victims for these abuses and atrocities; ‘impunity is a drug’ which has fuelled the conflict in Northern Uganda.27 Traditionally, the Ugandan government has responded to the conflict through a carrot and stick approach – amnesties and military force. Military operations against the LRA have always resulted in violent backlashes against civilians.28 The Ugandan Amnesty Act 2000, which enabled members of the LRA to return home without the fear of prosecution, was introduced after persistent advocacy by the Acholi Religious Leaders Peace Initiative (ARLPI) as a means to achieve peace, reconciliation, and forgiveness for the Northern

22 When the War Ends: Peace, Justice, and Social Reconstruction in Northern Uganda, Human Rights Center, University of California Berkeley, 2007, p. 27. 23 Transitioning to Peace: A Population-based Survey on Attitudes about Social Reconstruction and Justice in Northern Uganda, Human Rights Center, University of California Berkeley, December 2010, p. 22. 24 Making Peace Our Own: Victims’ Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda, Office of the United Nations High Commissioner for Human Rights (OHCHR), 2007, pp. 4–5. 25 See HRW Note 5; Worst Place to be a Child, Civil Society Organisation for Peace in Northern Uganda, March 2007; OHCHR ibid. 26 OHCHR ibid., pp. 9–10; Victims, Perpetrators or Heroes? Child Soldiers before the International Criminal Court, Redress, 2006, p. 15. 27 Doom and Vlassenroot Note 3, p. 27. 28 See Allen Note 1; Dolan Note 20.

The ICC and victims in Northern Uganda 201 29

Ugandan conflict. Local chiefs have also used traditional ceremonies to cleanse the returnee’s spirit and reconcile them with their victims and communities.30 The use of amnesties and traditional ceremonies can offer peace and reconciliation, but impunity remains without accountability for those most responsible and reparations to victims. It is within this context that the International Criminal Court (ICC) intervened.

C The intervention of the ICC in Northern Uganda In 2003, Uganda was the first situation to be referred to the ICC by the Ugandan government, citing its inability to apprehend and prosecute the LRA, due to them operating outside the borders of Uganda.31 On 29 July 2004, the Prosecutor of the ICC announced the opening of an investigation into the situation in Uganda.32 The Pre-Trial Chamber II (PTC-II) unsealed the arrest warrants on 13 October 2005, naming the top five LRA commanders Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen.33 Since 2005, Lukwiya and Otti have been confirmed killed.34 The three outstanding commanders remain at large and continue to kill with impunity.35 The issuing of the ICC arrest warrants for the LRA leadership has yet to result in the apprehension and prosecution of the three remaining commanders. The following sub-sections examine the direct impact of the ICC on the Northern Ugandan conflict and subsequent legal developments at the ICC for victims.

29 Allen ibid., p. 78; Zachary Lomo and Lucy Hovil, Behind the Violence: The War in Northern Uganda, ISS Monograph No. 99, March 2004, p. 13; Louise Mallinder, Uganda at a Crossroads: Narrowing the Amnesty? Working Paper from Beyond Legalism: Amnesties, Transition and Conflict Transformation, 2009, p. 22. 30 See Roco Wat I Acoli, Restoring Relationships in Acholi-land: Traditional Approaches to Justice and Reintegration, Liu Institute for Global Issues, Gulu District NGO Forum, Ker Kwaro Acholi, 2005. 31 Situation in Uganda, Referral of the Situation Concerning the Lord’s Resistance Army, submitted by the Republic of Uganda, 16 December 2003. 32 Situation in Uganda, Prosecutor of the International Criminal Court Opens an Investigation into Northern Uganda, ICC-OTP-20040729-65, 29 July 2004. 33 Prosecutor v Kony et al., Decision on the Prosecutor’s Application for Unsealing of the Warrants of Arrest, ICC-02/04-01/05-52, 13 October 2005. 34 The ICC has only been able to confirm the death of Lukwiya through a DNA test; see Prosecutor v Lukwiya, Decision to Terminate the Proceedings against Raska Lukwiya, ICC02/04-01/05-248, 11 July 2007; Uganda’s LRA confirm Otti Death, BBC News, 23 January 2008; Prosecutor v Otti, OTP’s Submission of Information regarding Vincent Otti, ICC02/04-01/05-258, 8 November 2008. 35 See Trail of Death LRA Atrocities in North-eastern Congo, HRW, 27 March 2010.

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1 The impact of the ICC on the Northern Ugandan conflict The investigation by the Prosecutor of the ICC has had some positive impact on the conflict in Northern Uganda. The LRA arrest warrants highlighted victims’ suffering by bringing international attention to the conflict. Grono and O’Brien suggest that the arrest warrants pushed the LRA to seek peace in order to avoid prosecution, as well as prompted the Sudanese government to stop supporting them and instead allow the UPDF to pursue them in southern Sudan.36 Since 2006 the LRA have been kept outside Uganda allowing displaced civilians to return to their homes and to rebuild their lives. The resulting peace process and ceasefire have vastly improved the security situation in Northern Uganda. The Court’s impact on the peace process, it must be noted, did not occur in a vacuum, nor was it the sole factor in bringing the LRA to the peace talks. The increased military cooperation of central Africa governments against the LRA, effectiveness of the UPDF, and the support of the Sudanese government, also encouraged the willingness of the LRA to seek peace.37 Yet local leaders contend that the ICC was a ‘stumbling block’ for the peace process, due to the unwillingness of the Court to withdraw the arrest warrants, which led to the process to collapse.38 They argue that the Court’s intervention in Northern Uganda is at odds with local approaches, such as amnesties and traditional justice mechanisms. The refusal of the Court to remove the arrest warrants for the LRA leadership has resulted in local hostility, particularly amongst religious and traditional leaders.39 Together amnesties and traditional ceremonies were considered by opponents of the ICC as the best way to deal with the complex victimisation of abductees, who had been forced to commit atrocities. This was especially true for children, who were mostly believed to be ‘innocent’ by their families and communities.40 The intervention by the ICC therefore clouded the victimisation and responsibility of abductees and the hope for peace. This perception has perpetuated a myopic dichotomy of peace versus justice and local versus international, where the ICC is seen to be pursuing the LRA against the peace sought by local leaders and their

36 Nick Grono and Adam O’Brien, Justice in Conflict? The ICC and Peace Processes, in N. Waddell and P. Clark (eds), Courting Conflict? Justice, Peace and the ICC in Africa (Royal African Society 2008) 13–20, p. 15; see also Marieke Wierda and Michael Otim, Justice at Juba: International Obligations and Local Demand in Northern Uganda, in Waddell and Clark ibid. 21–28, p. 22. 37 Grono and O’Brien ibid., p. 15. 38 OHCHR Note 24, p. 52; see Marieke Schomerus, ‘A Terrorist is not a Person like Me’: An Interview with Joseph Kony, in T. Allen and K. Vlassenroot (eds), The Lord’s Resistance Army: Myth and Reality (Zed Books 2010) 113–131. 39 See Allen Note 1; Branch Note 1. 40 Finnström Note 21, p. 222.

The ICC and victims in Northern Uganda 203 stance of ‘peace first, justice later’.41 This has hampered support for the Court in Northern Uganda, and over-simplified the nature of the conflict and the means to resolve it. The ICC has tried to counter this by conducting outreach activities in Northern Uganda organising events, training, and information sessions with communities, victims, civil society, and local leaders to improve their understanding of the Court and to counter perceptions that it is against peace.42 Victims’ views of the intervention of the ICC have varied over time, due to the influence of the peace negotiations and the prevailing discourse of peace versus justice, but their demands for accountability and redress have not changed much.43 This can be seen by 84 per cent of Northern Ugandan respondents’ support for accountability measures, 89 per cent for determination of the truth, and 87 per cent for amnesties.44 Thus victims have a multi-faceted notion of justice that is not simply broken down into the dichotomy of peace versus justice.45 Additionally, in contrast to transitional justice arguments raised in Chapter 1 of international criminal justice being contrary to local needs, some victims consider that the ICC to be more impartial and independent than national courts.46 However, many would prefer to see justice locally, suggesting in situ proceedings of the Court in Northern Uganda would be appropriate if any of the LRA indictees are captured.47 Thus victims have diverse needs which require a comprehensive approach.48 Despite the dichotomy of peace versus justice and local versus international, the Court’s impact on the conflict, amongst other factors, has been mostly positive in terms of peace and security for Northern Uganda. However, the LRA leadership have not yet been prosecuted and punished for their crimes, nor have UPDF leaders who have also been implicated in atrocities in the DRC.49 Sadly, the ICC, without the support of State Parties to apprehend the LRA, remains powerless to stop the atrocities they

41 See Peace First, Justice Later, Refugee Law Project Working Paper No. 17, July 2005. 42 See ICC Outreach Reports Ch. 3 Note 147. 43 See Berkeley Human Rights Center reports: Forgotten Voices: A Population-based Survey on Attitudes about Peace and Justice in Northern Uganda, July 2005; When the War Ends: A Population-based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Northern Uganda, October 2007; Human Rights Center, University of California Berkeley Note 23. 44 Human Rights Center, University of California Berkeley ibid., pp. 39–46. 45 OHCHR Note 24. 46 Human Rights Center, University of California Berkeley Note 23, p. 41. 47 Ibid. 48 Ibid. 49 See Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003 (OHCHR), August 2010.

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continue to commit in Central Africa. The Ugandan government has also been unwilling to hold senior UPDF commanders and politicians responsible for atrocities. Proceedings before the ICC have enabled some victims to access the Court. 2 Proceedings before the International Criminal Court Due to the LRA commanders remaining at large, there have been very few proceedings before the ICC. Nonetheless, the ICC proceedings on Northern Uganda, involving victims’ applications to participate, protection measures, and an admissibility hearing, have been important in acknowledging their suffering and allowing their views to be heard. This section examines the investigation and selection of charges in recognising victims’ suffering, before moving on to discuss victim participation, protection, reparations, and the Trust Fund for Victims. a Victim recognition The arrest warrants against the LRA indictees include murder, enslavement, rape, sexual enslavement, inhumane acts of inflicting serious bodily injury, pillaging, and the forced enlistment of children committed as part of attacks on two Internally Displaced Persons (IDP) camps.50 These charges encapsulate the suffering of LRA victims. However, a number of factors, such as the one-sided nature of the investigation, bring into question the impartiality and suitability of the Court’s intervention. Additionally, questions still remain about one of the indictees, Dominic Ongwen, and the recognition of LRA victims in other countries and outside the temporal jurisdiction of the Court. Collectively these issues undermine victims’ recognition before the ICC. First, on the one-sided nature of the investigation of the ICC, arrest warrants have only been issued for the LRA, but not the UPDF.51 The Office of the Prosecutor (OTP) has stated that investigations on the UPDF and the Ugandan government remain on-going, but no warrants have been forthcoming.52 The preference of prosecuting LRA crimes is that they have been ‘much more numerous and of much higher gravity than alleged crimes committed by the UPDF ’,53 and the ‘maintenance of impartiality cannot be equated with equality of blame’.54 The crimes committed by the

50 See the Arrest Warrants Note 33. 51 Otim and Wierda Note 36, p. 22. 52 Statement by the Chief Prosecutor on the Uganda Arrest Warrants, 14 October 2005, pp. 2–3. 53 Ibid. 54 Matthew Brubacher, The ICC Investigation of the Lord’s Resistance Army: An Insider’s View, in Allen and Vlassenroot Note 38 262–277, p. 269.

The ICC and victims in Northern Uganda 205 LRA are more numerous and have a higher gravity by seeking to cause widespread and systematic harm to victims through massacres, mutilations, burning people alive, and forced recruitment. However, the Ugandan government’s response to such crimes has been ineffectual by its inadequate protection of the civilian population, lack of investigation, prosecution, and punishment of those responsible, and use of disproportionate force against civilians. The UPDF has committed numerous atrocities on a widespread and systematic scale, with two million civilians affected through forced displacement alone.55 Tens of thousands of Northern Ugandans have also died, at least, from the government’s counter-insurgency and internment policy. Recognising the responsibility of the Ugandan government is not about equality of blame, but acknowledgement that both through its actions and inactions the government caused further suffering to victims. There have been a handful of soldiers prosecuted before military courts for certain murders and cases of torture.56 Yet there has been no accountability within the higher echelons of the Ugandan army or government for the mass forced displacement and abuses against Northern Ugandan civilians, or for its failure to protect them.57 Additionally, military courts are closed to the public and victims, which prevents them from knowing who is prosecuted and for which crimes, thereby undermining transparency and effective accountability.58 For forced displacement the prosecution of individual soldiers is insufficient, as it was a government policy which implicates the state’s responsibility. The use of force to displace and corral civilians into camps and then to neglect their basic needs could amount to crimes against humanity. This is due to it affecting 90 per cent of the Northern Ugandan population as part of a widespread or systematic attack against the civilian population in the furtherance of the state’s policy to commit such an attack.59 Displacement by force is justifiable under international law, which permits it if demanded by ‘imperative military reasons’ or the ‘security of the civilians’. This is on the condition ‘that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and

55 56 57 58

See AI report Note 10; HURIFO Note 12; HRW Note 5. See Gulu Court Martial Convicts 120 UPDF Soldiers, New Vision, 20 September 2007. See Dolan Note 20, pp. 151–152. Left to their Own Devices: The Continued Suffering of Victims of the Conflict in Northern Uganda and the Need for Reparation, Amnesty International, 2008, p. 17; interview with a member of civil society, Gulu, 13 July 2011. 59 Under the Rome Statute: Article 7(1)(d) Crime against humanity of deportation or forcible transfer of population; and Article 7(1)(e) Crime against humanity of imprisonment or other severe deprivation of physical liberty.

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nutrition’.60 With displacement lasting over ten years and civilians in the camps dying at five times the rate of those being killed in combat, a case could be made that the government’s policy of ‘protected villages’ was not completely imperative, nor did the camps provide satisfactory conditions for civilians.61 Alternatively, such conditions within the protected villages could be extermination as a crime against humanity, by the ‘intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’.62 Moreover, the use of 24 hour warnings to civilians to leave their homes by the UPDF before facing bombardment or being shot on sight as suspected rebel collaborators, thus making them ‘legitimate’ targets of the government’s use of torture, pillaging, and extra-judicial executions, indicates the illegality of such activities as war crimes.63 Others have gone as far to say that the Northern Ugandans suffering, especially the Acholi, is the ‘slow destruction of an entire ethnic group . . . [amounting] to genocide’.64 This harm is consistent with the findings of the ICTR in the Akayesu case that genocide by physical destruction can be a ‘slow death’ through a ‘subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement’.65 It would be difficult to prove the Ugandan government’s specific intent or dolus specialis to commit genocide. No matter what the crime amounts to, the lack of accountability has prevented the recognition of the numerous victims of the Ugandan government. Consequently, this has caused them further psychological suffering and denied them access to the Court. It also undermines the positive impact, legitimacy, and impartiality of the ICC in Northern Uganda. The cooperation between the ICC and the Ugandan government has been perceived by some commentators to compromise the impartiality and independence of the Court. The appearance of the ICC Prosecutor Luis Moreno Ocampo with President Museveni at the announcement of the state referral in January 2004 has perpetuated a biased perception of the Court’s intervention in Northern Uganda.66 Without its own police force or resources in Uganda, the ICC is heavily reliant on the cooperation and protection of the Ugandan government. This dependence and failure to prosecute the UPDF has led Ssenyonjo to define the Court’s prosecution of

60 Article 17(1), Additional Protocol II to the Geneva Conventions of 1977; Article 8(e) (viii), Rome Statute. 61 See HRW Note 5, pp. 60–68. 62 Article 7(1)(c), 7(2)(b), or a war crime under Article 8(e), Rome Statute. 63 See Article 8(e)(i, iv, or v). 64 Olara Otunnu MP, in Branch Note 9, p. 182. 65 The Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, paras 505–506. 66 Allen Note 1, p. 128.

The ICC and victims in Northern Uganda 207 the LRA as a ‘political tool’ of the Ugandan government.67 Branch argues that their criminalisation legitimises the government’s use of force, thereby perpetuating only the responsibility of the LRA for crimes committed during the conflict.68 This may be part of a structural or political limitation of the Court in relation to state referrals, where the Court can only intervene in a situation to the extent that it does not challenge the legitimacy of the state or its narrative of the conflict. As a result the ICC, at least implicitly, will always cooperate with the state, though in Uganda it was perceived as colluding with the Ugandan government which compromised its impartiality. This perceived bias has been strongly voiced by victims as one of the most disappointing parts of the intervention of the ICC, as it denies the recognition of their harm as a result of the actions or inactions of the Ugandan government. As one member of civil society commented, the prosecution of the LRA represented ‘victor’s justice’.69 This provides a direct parallel to criticism of the Second World War tribunals. A former LRA abductee also believed that ‘the ICC is together with the government of Uganda’.70 Accordingly, many victims find it difficult to discern the impact the ICC has made.71 Most support the proposition that the Court would increase its legitimacy in Northern Uganda if the arrest warrants were executed and UPDF perpetrators prosecuted.72 Second, one of the main fears of the Court’s intervention in Northern Uganda was that it would arrest and punish all those who fought with the LRA. This fear is apparent with one of the indictees in the ICC arrest warrants, Dominic Ongwen, a senior LRA commander, but also a victim of the group.73 Ongwen, like thousands of other Northern Ugandan children, was abducted at the age of ten on his way to school and suffered the same initiation as other LRA abductees.74 However, Ongwen rose through the ranks as a result of being a skilled fighter and the deaths of senior commanders.75 As Baines states, charged with enslavement, ‘Ongwen is the

67 Manisuli Ssenyonjo, The International Criminal Court and the Lord’s Resistance Army Leaders: Prosecution or Amnesty? Netherlands International Law Review 59 (2007) 51–80, p. 54. 68 Branch Note 1, pp. 189–193. 69 Interview, Kampala, 30 June 2011. 70 Interview, Gulu, 7 July 2011. 71 The Impact of the ICC on Victims and Affected Communities, Uganda Victims’ Foundation (UVF), March 2010, p. 6; Human Rights Center, University of California Berkeley Note 23, p. 43. 72 UVF report ibid., p. 6. 73 Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen, JRP Field Note 7, July 2008; Erin K. Baines, Complex Political Perpetrators: Reflections on Dominic Ongwen, Journal of Modern African Studies 47(2) (2009) 163–191. 74 Ibid. 75 Ibid.

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first known person to be charged with the war crimes which he is also a victim’.76 The ICC will face a difficult balance on the complicated issue of the responsibility of child soldiers who become adult commanders without losing sight of their victimisation and indoctrination from a young age. Such a decision will also establish a precedent for Ugandan courts on how to deal with other abducted LRA commanders. Third, a further issue which remains unresolved is how the ICC will deal with additional crimes committed by the LRA. The LRA arrest warrants were issued in 2005 and focus exclusively on crimes in Northern Uganda, despite them committing crimes in neighbouring countries in this time.77 The Prosecutor has the power to amend the warrants to include new charges78 and has indicated that investigations of LRA crimes are still on-going.79 However, only victims who suffered crimes within the jurisdiction of the Uganda situation are able to apply to participate. Currently, there is a backlog of nearly 2,000 applications which the Court has yet to decide on, and since 2009 there have been no victim application proceedings.80 With minimum staffing and funding of the Victims Participation and Reparations Section, which facilitates victims’ application and participation, alongside the scaling down of the Ugandan field office in Kampala to focus on other situations, it remains unclear whether the ICC will bring forward new charges to include LRA crimes committed in the DRC, Central African Republic, and South Sudan. Finally, the Court’s narrow temporal jurisdiction under the Rome Statute limits victim recognition before the ICC. The temporal scope of the Court only covers crimes committed after the Rome Statute came into force on 1 July 2002.81 With the conflict going back to at least 1986 and the LRA being pushed out of Uganda in 2006, the majority of crimes Northern Ugandan victims suffered from are likely to be outside the Court’s jurisdiction. Additionally, victim recognition is not representative geographically, as certain areas were more affected by violence during different periods, such as the town of Gulu, which suffered the brunt of the violence pre-2002 by both parties, and is therefore mostly excluded from the Court’s jurisdiction.82 As a result, victims who suffered before 2002 are

76 Ibid., pp. 163–164. 77 See Allen Note 1. 78 Under Articles 58(6) and 61(4), and Rule 128 of the RPE; the Pre-Trial Chamber can also request the Prosecutor to amend the charges to include other crimes, under Article 61(7) (c)(ii). 79 Prosecutor v Kony et al., ICC-02/04-01/05-52, para. 24; see also Prosecutorial Strategy 2009–2012, OTP, 1 February 2010, para. 32. 80 Kony et al., ICC-02/04-01/05-375. 81 Article 11 of the Rome Statute; see for instance victim applications rejected for a/121/07 and a/0124/07, ICC-02/04-01/05-356. 82 Interview, ICC official, Kampala, 28 June 2011.

The ICC and victims in Northern Uganda 209 unable to participate in proceedings or to receive any reparations from the perpetrators if any cases are completed before the ICC. The limited temporal scope of the ICC may also explain the lack of charges against the Ugandan government, due to the policy of protected villages beginning in 1996 and the government’s brutal counter-insurgency operating since 1986. As established in Chapter 3 to ensure justice for victims, while accepting the limits of a criminal court, victim recognition should be based on a representative picture of suffering in a conflict. This is to enable acknowledgement of the scale of victimisation and to provide a clear historical narrative. Despite the attention the ICC warrants have brought to victims’ suffering in Northern Uganda, their recognition before the Court has fallen short of providing a representative picture and an accurate documentation of the conflict. Black and white conceptions of perpetrator and victim inhibit the recognition of the complex victimisation in Northern Uganda. With the indictment of Ongwen, the Court endangers labelling all LRA combatants as simply perpetrators, when many of them were also victims of the LRA and the Ugandan government’s failure to protect them. Furthermore, as Allen argues, the obligation on the Prosecutor to conduct investigations on the basis of the interests of victims and justice, as required under Article 53(1)(c) of the Rome Statute, requires analysing which victims and whose justice are relevant to the ICC investigation in the Northern Ugandan conflict.83 Victims are unable to participate in the investigation stage which prevents them from effectively presenting their interests to the Prosecutor in selecting which crimes to prosecute, as discussed in Chapter 3. This restrictive recognition of victims in Northern Uganda has hindered victims’ access to the ICC through participation. b Victim participation As of December 2013, there are 21 victims, all of whom are Ugandan, participating in the Uganda situation and 41 in the Kony et al. case before the ICC.84 Although the arrest warrants for the LRA remain outstanding, victims have had only one opportunity to participate at the ICC during the admissibility proceeding, regarding whether the case should still be heard before the Court or referred back to Uganda. The admissibility proceedings were initiated by PTC-II, due to the Ugandan government suggesting that by having adequate judicial mechanisms in place the Kony et al. case 83 Allen Note 1, p. 177. 84 See Situation in Uganda, ICC-02/04-101, 10 August 2007; Situation in Uganda, Decision on Victims’ Applications for Participation, ICC-02/04-125, 14 March 2008; Situation in Uganda, Decision on Victims’ Applications for Participation, ICC-02/04-170, 17 November 2008; Prosecutor v Kony et al., Decision on Victim’s Applications for Participation, ICC02/04-01/05-356, 21 November 2008.

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would no longer be admissible before the ICC, thereby removing the threat of arrest and transfer to The Hague from the minds of the LRA commanders.85 However, PTC-II emphasised that the determination of whether the Ugandan situation and the LRA case were still within the jurisdiction of the ICC was a decision for the Court to make rather than the Ugandan government.86 Before the PTC-II decision, the Office of Public Counsel for Victims (OPCV) made observations on the developments in Uganda based on its own research and the views of 237 victims, including the 62 victims already participating in the case and situation.87 Additionally, Redress and the Uganda Victims’ Foundation (UVF ) submitted an amicus curiae brief on the status of the Ugandan government’s implementation of the Agreement and Annexure, relevant legal texts, and the experiences of victims seeking justice under Ugandan courts.88 The amicus identified the continued impunity and lack of access to justice for victims in Uganda, with Redress and the UVF also rejecting local formal criminal justice mechanisms and the government’s sincerity in providing them redress. This, alongside the submissions by the OPCV, were rejected by the Trial Chamber as ‘unsuitable to build the background for a proper determination’ of admissibility at this stage.89 The Chamber based its decision on the lack of clear legalisation, procedure, physical institutions, and expertise in Uganda to be able to prosecute the Kony et al. case.90 Despite victims’ representations being rejected, their participation in the proceedings ensured that their voices were heard and documented by the Court, which provided a more accurate account of developments on the ground. The outright rejection by the Court of the victims’ interests is disconcerting, suggesting that their views and concerns are unimportant in determining judicial issues. Although admissibility is a procedural issue rather than a substantive one, referring the case back to Uganda would have a significant impact on victims’ access to justice, and therefore it is not just a

85 Prosecutor v Kony et al., Decision on the Admissibility of the Case under Article 19(1) of the Statute, ICC-02/04-01/05-377, 10 March 2009, paras 43–51; see Prosecutor v Kony et al., Ugandan government’s response to the ICC’s requests for information, in the Annex to the Report by the Registrar on the Execution of the ‘Request for Information from the Republic of Uganda on the Status of Execution of the Warrants of Arrest’, ICC-02/0401/05-286-Anx2, 28 March 2008. 86 See Admissibility Decision ibid., para. 51. 87 Prosecutor v Kony et al., Observations on Behalf of Victims Pursuant to Article 19(1) of the Rome Statute with 55 Public Annexes and 45 Redacted Annexes, Office of Public Counsel for Victims, ICC-02/04-01/05-349, 18 November 2008. 88 Prosecutor v Kony et al., Amicus Curiae submitted Pursuant to the Pre-Trial Chamber II ‘Decision on Application for Leave to Submit Observations under Rule 103’, ICC-02/0401/05-353, 5 November 2008. 89 Kony et al., ICC-02/04-01/05-377, para. 50. 90 Ibid., paras 49–52.

The ICC and victims in Northern Uganda 211 procedural issue. This may further indicate that victim participation is not meaningful in important decisions. In light of the purpose of victim participation outlined in the previous two chapters, it is clear that participation does not offer victims the opportunity to have their interests determined in decisions on truth, justice, or reparations, particularly when the perpetrators remain at large and they cannot challenge the selection of the LRA as the only indictees. Accordingly, it is questionable whether victim applications to the ICC are worthwhile, when victims and intermediaries are taking the time and effort to fill in forms, reliving the trauma, and expecting some sort of response from the ICC when in the end the Court is not making the effort to reciprocate by deciding on their applications and taking their views into account. For those victims who have participated at the ICC, outreach programmes, or through the Trust Fund, the views of the Court are somewhat more positive.91 Victims participating at the ICC believe it gives them an important opportunity to have their views heard.92 As one victim said to an ICC official, ‘I know what I have written, that is my voice, my story. It is leaving my village to go to another place, it is very important to me and I want the world to know what happened.’93 This is the official account, but a number of victims interviewed by the author were also keen to participate at the ICC in order to tell the world the crimes they endured. As such, there remains a willingness by victims to engage with the Court to ensure accountability and redress for the harm they have suffered. c Victim treatment and protection The ICC has paid greater attention to the treatment and protection of victims. In the decision on unsealing the arrest warrants in the Kony et al. case, the Court decided that due to the continued ‘unpredictability of the security environment in Uganda’ and the need ‘to ensure to the fullest extent possible the safety and protection of victims and witnesses’, it was necessary to redact all the names and identifying information of victims and witnesses.94 Since the beginning of the investigation in Northern Uganda, the Office of the Prosecutor (OTP) and the Victims and Witnesses Unit (VWU) have also made inroads in developing a treatment and protective security plan for victims and witnesses in Uganda. The Initial Response System (IRS) established a 24 hour emergency hotline in four areas of Northern Uganda covering 11 towns in cooperation with the

91 See Outreach Report 2010; TFV Fall Progress Report 2010. 92 Final Report on Visits by ICC States Parties Delegates to Uganda January to June 2010, No Peace Without Justice (NPWJ), 2010, p. 41. 93 Interview, ICC official, Kampala, 28 June 2011. 94 Prosecutor v Kony et al., ICC-02/04-01/05-52, para. 22.

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Ugandan Police Force.95 The IRS includes training of local police, regular contact with local authorities, and testing the responsiveness of the system.96 There had been no reported protection problems with victims or witnesses involved with the ICC, and due to improved security in Uganda, the system is under assessment of whether or not to be cancelled.97 The establishment of a protection programme in Uganda for victims and witnesses, which traditionally did not have one, is an important step in building the capacity of local institutions, such as the Ugandan Police, to protect such vulnerable individuals. In relation to treatment, the prosecution and the VWU have also instituted a medical and psycho-social support programme for victims both participating as witnesses and as participants.98 Nonetheless, the protection of victims and witnesses by the Court does have some faults. Without its own protection units or police force, the ICC is reliant on government forces to carry out the bulk of its protection programme.99 This may bring into question the effectiveness of the system if any warrants are issued against the Ugandan government, as the protection programme may not protect victims of government abuses. Additionally, the OTP may have already put some victims at risk, or at least hindered its investigations of atrocities by government forces through the use of UPDF escorts when conducting interviews of Northern Ugandan victims and witnesses.100 d Reparations and the Trust Fund for Victims As reparation proceedings of the ICC are reliant on the conviction of a defendant, no reparation orders have yet been issued by the Court. However, the Trust Fund for Victims (TFV) has been active in funding assistance to some of the victims in Northern Uganda.101 Between 2007 and 2013 the Trust Fund funded 16 projects which have directly reached 39,750 victims and members of affected communities.102 As the security situation has improved in Northern Uganda, the TFV has become the biggest support agency in providing assistance and rehabilitation to 95 96 97 98 99 100 101

Kampala Field Office Report, para. 8. Ibid., para. 10. Interview, ICC official, Kampala, 28 June 2011; ibid., para. 8. Kampala Field Office Report, para. 11. Ibid., para. 10. Branch Note 1, p. 188. Rule 98(5) of RPE, and Regulation 48 of the TFV, Situation in Uganda, Decision on Notification of the Trust Fund for Victims and on its Request for Leave to respond to OPCD’s Observations on the Notification, ICC-02/04-126, 19 March 2008. 102 Learning from the TFV’s Second Mandate: From Implementing Rehabilitation Assistance to Reparations, Fall 2010, Programme Progress Report, p. 22; Summer 2011 Programme Progress Report; Winter 2011 Programme Progress Report.

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victims. One TFV official identified the Trust Fund’s work as more ‘corrective’ than humanitarian assistance, as it specifically focuses on victims of crimes within the Court’s jurisdiction, distinguishing it from humanitarian assistance which supports the needs of the general affected population.104 The Trust Fund’s supported projects in Uganda include medical and psychological rehabilitation, vocational training and farming equipment, victim sensitisation, and reconciliation. Five of the TFV projects have provided physical rehabilitation, including reconstructive surgery and prosthetic limbs, to 1,200 victims of mutilation.105 As mentioned in the previous chapter, with regard to Santa, these programmes funded by the TFV can vastly improve victims’ lives. Despite TFV projects directly benefiting 39,750 victims, these numbers need to be broken down into different types of assistance otherwise its effectiveness may be overstated as assisting the needs of a larger group of victims than in reality. The majority of victims who have benefited from funding of the TFV have received victim sensitisation, which involves informing them and communities about their rights, or community reconciliation through peace builders, who promote healing, victims’ rights, and reconciliation in communities. By 2013, of the 39,750 direct victims of the TFV, the majority 26,144 of them have benefited from community peace building, rather than more substantive or tangible assistance, such as medical treatment, counselling, or livelihoods projects.106 In the case of such endemic and compounding victimisation, it is questionable whether using peace builders is the most appropriate form of assistance and expenditure of the resources of the TFV, considering the more tangible forms of support desperately needed by Northern Ugandan victims.107 Moreover, the long term harmful consequences caused by international crimes raises the concern of how long the TFV can sustain its support to these victims. Although the TFV determines the scope and extent of assistance programmes based on its own research, victims have no access to an application process or participation on the selection of projects or beneficiaries.108 This is not to deride its usefulness or importance, but to highlight that the Trust Fund is only funding certain types of assistance to a limited group of victims. In comparison to justice for victims outlined in

103 104 105 106 107 108

Interview with TFV official, Kampala, 28 June 2011. Ibid. TFV Fall Progress Report 2010, p. 20. Summer 2011 Programme Progress Report, p. 6, and Summer 2013 Report, p. 12. See the final section. See UVF Report Note 71.

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Chapter 1 the TFV is insufficient to remedy victims’ harm.109 As such, the TFV constitutes only interim assistance. With regards to reparations, the Ugandan government will probably be the only source for victims’ claims, due to the LRA unlikely to have any resources after years of fighting. However, as reparation proceedings follow the conviction of the accused, reparations will not be decided by the ICC until the LRA indictees are apprehended, which could mean that a decision would be years away, if ever. A further limitation of the reparations at the Court arises from the narrow charges against the LRA defendants, which concentrate on attacks on two IDP camps. Therefore, even if the LRA indictees are apprehended, reparations will only be available to the victims of these two attacks. This means that victims will have to seek reparations against the Ugandan government through domestic mechanisms. In all, victims in Northern Uganda are disappointed and frustrated by the ICC, due to its long delays, bias, limited assistance, and failure to execute arrest warrants and provide reparations.110 As one victim noted, the ICC ‘keeps on singing, singing’111 the same song about State Parties needing to arrest the LRA without any result, making the Court appear ‘not serious’ in delivering justice to victims.112 As another stated, ‘the ICC is full of words; they are not putting things into action . . . it should not continue deceiving people’.113 These viewpoints may indicate a general sentiment among victims that the intervention of the ICC in Northern Uganda has failed to deliver justice to them. As I have argued, the Court is only responsible for delivering justice for the few cases that reach it, with the majority of victims reliant on remedies by their government. However, the Court has not called upon the Ugandan government to complement the Court in this respect. The Ugandan government has nevertheless introduced a number of legal reforms.

D Complementarity in Northern Uganda Complementarity is the relationship between the ICC and State Parties, which recognises that State Parties have the primary obligation to end impunity by prosecuting those responsible, with the Court as a last resort. Positive complementarity is the incorporation of the Rome Statute and its principles into a State Party’s legal system, through ratifying legislation

109 See Adrian di Giovanni, The Prospect of ICC Reparations in the Case Concerning Northern Uganda: On a Collision Course with Incoherence? Journal of International Law and International Relations 2(2) (2005–2006) 25–64, p. 60. 110 NPWJ Note 92, p. 42. 111 Male victim, focus group one, 9 July 2011. 112 Interview male LRA abductee, Gulu, 7 July 2011. 113 Female victim, focus group one, 9 July 2011.

The ICC and victims in Northern Uganda 215 and ensuring the competence of national courts to prosecute international crimes. As discussed in the two previous chapters, a victimorientated approach to complementarity, based on State Parties’ obligations under the Rome Statute to end impunity and in line with human rights standards, requires realisation of victims’ procedural and substantive rights through determination of the truth, justice, and reparations. As discussed in Chapter 1, the limits of the ICC to deliver justice to victims requires the use of complementarity as the external element of the Court in catalysing State Parties to fulfil their obligations towards victims in order to deliver justice to those outside the few cases before the Court. The catalysing impact of the Rome Statute and the ICC can be seen in domestic jurisdictions through the inclusion of accountability and victim measures. Thus the goals of ending impunity and justice for victims is to be primarily delivered through State Parties; however, without any clear guidance, oversight, or enforcement by the ICC on or of State Parties’ obligations, at least in Uganda, the practice of complementarity is unlikely to achieve the purpose of the Rome Statute. This section begins by examining the 2006–2008 Juba peace process, the most comprehensive peace agreement between the Ugandan government and the LRA, which provides a background for later developments. The following sub-sections examine the legal developments in Uganda on the Amnesty Act 2000, the ICC Act 2010, and the International Crimes Division (ICD). The final sub-section pays attention to victims’ access to justice and reparations in Northern Uganda to assess from their perspective whether the Ugandan government has complemented the ICC in ending impunity and delivering them justice. 1 The Juba peace process The most significant legal impact of the intervention of the ICC in Northern Uganda has been on the peace process. This was initiated in 2006 by the Ceasefire Agreement between the Ugandan government and the LRA in Juba, Southern Sudan.114 The unsealing of the LRA arrest warrants prompted both parties to seek a domestic solution to the conflict, after military intervention in Sudan had failed to defeat the LRA or to protect Ugandan civilians.115 The LRA demanded that the ICC arrest warrants be withdrawn as a precondition to their final signing of the agreement.116 The Court refused to do so and the peace process collapsed. This was 114 Agreement on Cessation of Hostilities between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement, Juba, Sudan, 26 August 2006. 115 Allen Note 1, pp. 50–53. 116 See Clause 37, the Agreement on Implementation and Monitoring Mechanisms between the Government of the Republic of Uganda and Lord’s Resistance Army/Movement, Juba, Sudan, 29 February 2008; Otim and Wierda Note 36, p. 23.

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confirmed by the new UPDF military offensive, Operation Lightning Thunder, in December 2008 against the LRA in the Great Lakes Region. Before the collapse of the peace process, the parties had accepted a number of agreements, most notably the Agreement on Accountability and Reconciliation and its corresponding Annexure, which provide a ‘blueprint’ for future transitional justice developments within Northern Uganda.117 The Rome Statute’s influence on these two documents is apparent from the numerous provisions on victims and accountability, which mirror its language. As such, the Agreement itself is justified by the parties on the basis that it is ‘essential to acknowledge and address the suffering of victims . . . to promote and facilitate their right to contribute to society’.118 Thus they are recognised as the key justification and stakeholders in the success of the transitional process. The Agreement also deems accountability as crucial in ‘preventing impunity and promoting redress’.119 This is a substantial shift from previous attempted resolutions to the conflict, of military force and amnesties, to supporting accountability and redress to victims. The Agreement defines victims as ‘persons who individually or collectively have adversely suffered harm as a consequence of crimes and human rights violations committed during the conflict’. The ‘conflict’ is defined as the period from 1986 in the north and north-east of Uganda.120 This definition is quite inclusive, covering individual and collective suffering as well as human rights violations, and therefore represents a broader approach than the Rome Statute’s ratione materiae.121 Defining victims of the conflict as far back as 1986 is a wider temporal scope than of the ICC of 1 July 2002; therefore the Agreement demonstrates a more inclusive recognition of those who suffered during the whole conflict. The incorporation of provisions on victim participation, protection, and reparations within the Agreement and Annexure indicates the positive impact of the ICC, as they are not usually recognised in the Ugandan criminal justice system and Constitution.122 For victim participation, Clause 8.2

117 Prosecutor v Kony et al., B. Kainamura, Ugandan Attorney General, Decision on Responses to Observations submitted under Rule 103, ICC-02/04-01/05-369-Anx2, 18 February 2009; Agreement on Accountability and Reconciliation signed between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement (LRA/M), 29 June 2007; Annexure to the Agreement on Accountability and Reconciliation, 19 February 2008. 118 Clause 8.1, Agreement on Accountability and Reconciliation; see also paragraph 2 of the Preamble. 119 Paragraph 3, Preamble of the Agreement. 120 Clause 1, Agreement. 121 See Article 5, and Rule 85 RPE. 122 Under Article 50 of the Ugandan Constitution victims do have a right to remedy, but this is limited to government violations; interviews with members of the Ugandan judiciary and legal profession.

The ICC and victims in Northern Uganda 217 of the Agreement adopts similar language to that used by the Court, that the government ‘shall promote the effective and meaningful participation of victims in accountability and reconciliation proceedings’.123 This right to participation is supported by victims’ right to be ‘informed of the processes and any decisions affecting their interests’.124 Victims are also entitled to legal representation at the expense of the state.125 However, victim participation is ambiguous on the way in which ‘effective and meaningful participation’ will be interpreted. In the trial of Thomas Kwoyelo, discussed below, victims were unable to participate in proceedings, but instead were occasionally consulted through limited outreach to affected communities.126 This practice by the Ugandan government exemplifies the empty nature of the provision, and is contrary to the interpretation by the ICC of effective and meaningful victim participation which is meant to ensure victims’ input into proceedings and the realisation of their substantive rights to truth, justice, and reparations.127 For protection, Clause 8.4 specifies that victims’ ‘dignity, privacy and security’ shall be respected and protected throughout the implementation of accountability and reconciliation mechanisms, adopting similar language to the Rome Statute.128 Additionally, the Agreement and Annexure also seek to protect and promote the interests of vulnerable groups, such as women and children.129 This integrates the standards established by the Rome Statute and other human rights documents.130 However, formal measures have yet to emerge to protect victims and witnesses.131 In December 2013, a bill on witness protection for the ICD was still being scrutinised by the Ugandan Parliament. In relation to reparations, the Agreement takes a wide approach, including ‘rehabilitation; restitution; compensation; guarantees of nonrecurrence and other symbolic measures [satisfaction], such as apologies,

123 This is reaffirmed in the Annexure under Clause 24; see Lubanga, ICC-01/04-01/061119, 18 January 2008, para. 85; Katanga and Chui, ICC-01/04-01/07-474, 13 May 2008, paras 51 and 157; Bemba, ICC-02/05-02/09-136, 6 October 2009, para. 7. 124 Clauses 8.2 and 8.3 of the Agreement. 125 Clauses 3.7 and 3.9. 126 See Benchmarks for Justice for Serious Crimes in Northern Uganda, HRW, 2011, pp. 22–25. 127 See Chapter 3. 128 Article 68(1) Rome Statute; see the Annexure Clause 4(3) on witness protection. 129 Clauses 10–12 of the Agreement, as well as Clauses 4(c), 4(e), 4(f), 8, 13(c), 20, and 24 under the Annexure. 130 Articles 57(1)(b) and 68(1) Rome Statute, and Rule 85 RPE; UN Convention on the Rights of the Child, UN Doc. A/RES/44/25, 20 November 1989. 131 Interview, a member of civil society, Kampala, 30 July 2011; Uganda Gets Time to Solve Witness Safety Problem, IWPR, 3 October 2011.

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memorials and commemorations’.132 Reparations can be ordered individually or collectively.133 Although Ugandan civil and criminal proceedings permit compensation to ‘victims of wrongs’, the Agreement goes beyond monetary awards.134 Furthermore, the Implementation Protocol to the Agreement on Comprehensive Solutions stipulates that the government will be responsible for providing ‘a special fund for victims, out of which reparations shall be paid’, similar to the Trust Fund for Victims.135 Therefore these provisions acknowledge the Ugandan government’s responsibility and its obligation to provide reparations for the conflict consistent with reparative complementarity. Despite the legal impact of the Rome Statute and human rights law is apparent, like other victim provisions, the clauses on reparations do not detail the modalities of implementation. The Annexure outlines that the government will ‘establish the necessary arrangements for making reparations’, but this is predicated on the government reviewing the ‘financial and institutional requirements for reparations’.136 Accordingly, such a reparation programme under the Agreement and Annexure is discretionary as it may ‘not be driven by the needs of victims but by the government’s decision on how many resources to allocate to it’.137 As of December 2013, a reparations programme has yet to emerge for Northern Ugandan victims. Despite recognising the importance of victims in the transitional justice process, the Agreement and Annexure provide weak legal and procedural protection of their rights. Victims’ assistance needs are also not addressed, such as medical and psycho-social support.138 Although provisions for victims within the Agreement and Annexure appear progressive, victims are left reliant on the Ugandan government’s discretion as to the modalities of the provisions. Furthermore, they have no recourse to challenge government decisions through judicial review or to access their rights through other independent mechanisms.139 The Agreement also stipulates different standards of accountability. Under Clause 4.1, the LRA is to be prosecuted before ‘special justice

132 Clause 12; see also Clauses 9.1, 12–14 of the Agreement on Comprehensive Solutions between the Government of the Republic of Uganda and Lord’s Resistance Army/Movement, Juba, Sudan, 2 May 2007; Clauses 13 and 14 of the Comprehensive Solutions Agreement also recognise the need to restore livestock and compensate land lost during the conflict in Northern Uganda. 133 Clauses 6.4, 9.2, and 9.3. 134 Article 126(2)(c), Ugandan Constitution; Article 126 of the Trial on Indictments Act, Ch. 23. 135 Clause 28, Juba, 22 February 2008. 136 Clauses 16–17, Annexure. 137 Comprehensive Plan to End Impunity, Amnesty International, AFR 59/001/2008, March 2008, p. 23. 138 UVF Statement on Juba Annex, 10 April 2008, p. 2. 139 Amnesty International Note 137, p. 23.

The ICC and victims in Northern Uganda 219 processes’, such as the International Crimes Division of the High Court, and traditional ceremonies, whereas government forces will be held to account before existing criminal justice process.140 Traditional justice ceremonies, such as mato oput and culo kwor, are meant to provide an ‘overarching justice framework’ through formal and ‘complementary alternative justice mechanisms’.141 However, these mechanisms could promote impunity and undermine justice for victims, due to their lack of procedural protection for victims, women, children, and other vulnerable groups, as well as their ‘inconsistency with established human rights standards’ under the Ugandan Constitution.142 The Agreement does clarify that these traditional justice mechanisms will only occur after ‘full accountability’ and therefore they will not be a substitute for prosecutions.143 Nonetheless, there remains a risk that different accountability mechanisms within the Agreement and Annexure could impair victims’ access to justice and create inequality. This has become apparent with the use of the ICD for only LRA defendants, while UPDF perpetrators are prosecuted behind closed doors in military courts. Notwithstanding the progressive nature of the peace process to incorporate provisions for victims, they have not yet been formalised into the Ugandan legal system. The Ugandan government has stated that the Agreement and Annexure are not legally binding, owing to Kony’s failure to sign them.144 Although the ICC had a positive impact on the contents of the Agreement and Annexure, both remain ambiguous on practical implementation of accountability and victim provisions. Thus the Agreement and the Annexure are a ‘blueprint’ for transitional justice in Uganda, but does not offer any concrete redress for victims. The Ugandan government’s amendment of the Amnesty Act 2000, the passing of the International Criminal Court Act 2010, and the creation of the International Crimes Division, emphasise a very selective implementation of the Agreement and the obligations under the Rome Statute. These legal reforms highlight the weakness of complementarity in protecting victims’ interests or ensuring practical congruence with the Rome Statute, as will be seen with the discussion of reparations in the final part of this section.

140 Ibid., p. 13. 141 Mato oput involves ‘traditional rituals performed by the Acholi to reconcile parties formerly in conflict’ such as drinking the bitter root, culo kwor involves ‘compensation to atone for homicide’, Clause 1 of the Agreement; see Roco Wat I Acoli Note 30; Clause 5.3 of the Agreement and Clause 19 of the Annexure. 142 UVF statement Note 138, p. 3; Articles 32–36 and 42. 143 Clause 1 of the Agreement. 144 Prosecutor v Kony et al., B. Kainamura, Ugandan Attorney General, Decision Initiating Proceedings under Article 19, Requesting Observations and Appointing Counsel for the Defence, ICC-02/04-01/05-354-Anx2, 18 November 2008, p. 2.

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2 The Amnesty Act 2000 The Ugandan Amnesty Act 2000 offers a blanket pardon from prosecution to any Ugandan citizen, who since 2 January 1986 has engaged in or is engaging in war or armed rebellion against the Ugandan government.145 The Amnesty Act makes no distinction between the gravity of the atrocities, the number of crimes committed, or the seniority of the reporter.146 This blanket amnesty means that a person who commanded a rebel movement that killed thousands of civilians could be pardoned in the same way as a person who was abducted and forced to commit atrocities. Amnesty reporters also do not have to disclose the truth about their crimes or to offer an apology to their victims.147 Senior LRA commanders responsible for international crimes, such as Kenneth Banya, Sam Kolo, and Patrick Opiyo Makasi, have been given amnesties, with other commanders given multiple amnesties, epitomising the prevalence of impunity.148 Over 13,000 former members of the LRA received an amnesty.149 Therefore, the Amnesty Act directly conflicts with the Rome Statute by allowing impunity for international crimes. For victims, the Amnesty Act also denies them the truth, and ‘a right to an effective remedy before an impartial and independent court’.150 Furthermore, demobilisation programmes supply each amnesty reporter with financial, domestic, and agricultural awards. This discriminates between victim groups, as victims of other crimes who were not abducted receive no support, and this has caused resentment.151 Demobilisation programmes can also create a ‘culture of entitlement’ for those resorting to violence.152 As one Northern Ugandan lawyer stated, ‘I am a victim, but I do not have the benefits of a perpetrator who is also a victim.’153 However, amnesty has been beneficial for the tens of thousands of abductees who are victims themselves, as one Northern Ugandan pointed out, ‘if the amnesty was not working, all of us would have been put in prison now’.154 Some victims also distinguished victim-perpetrators and the leadership of LRA. For instance, they believed that because Kwoyelo was

145 Section 2. 146 Mallinder Note 29, p. 23. 147 Section 3(2); see Whose Justice? Perceptions of Uganda’s Amnesty Act 2000: The Potential for Conflict Resolution and Long-Term Reconciliation, Refugee Law Project Working Paper No. 15, 2005; OHCHR report Note 25, para. 54. 148 Former Kony Strategist Banya gets Amnesty, New Vision, 13 August 2004; Former LRA Man Makasi, Wife get Amnesty, New Vision, 5 November 2007; Mallinder Note 29, p. 24. 149 Amnesty or Prosecution for War Criminals? IRIN, 17 May 2012. 150 Ssenyonjo Note 67, p. 76. 151 Redress report Note 26, p. 14. 152 Refugee Law Project Working Paper No. 15 Note 147, p. 25. 153 Interview, Gulu, 5 July 2011. 154 Male victim, focus group 5, 14 July 2011.

The ICC and victims in Northern Uganda 221 abducted as a child he should receive an amnesty, ‘Kony was his elder . . . children perform exactly what they have been taught. Kwoyelo learnt from Joseph Kony.’155 Other focus groups also considered that Kony should be tried and punished, instead of receiving an amnesty.156 Conversely, victims of crimes committed by Kwoyelo deemed that he should be held accountable for his crimes, demonstrating the conflicting interests of victims.157 Accordingly, as a Northern Ugandan member of civil society acknowledged, amnesty is a ‘double-edged sword’ in Northern Uganda.158 The prosecution of all perpetrators is insufficient to do justice for Northern Ugandan victims. By the same token, amnesties cannot be blanket. To victims it is acceptable for those low-level perpetrators who were abducted and forced to commit crimes to receive an amnesty, but not for senior commanders who voluntarily joined the LRA.159 The Court’s intervention in Uganda influenced an amendment of the Amnesty Act. Originally tabled in 2003, the Amnesty (Amendment) Act 2006 prevents rebel leaders from applying for amnesty.160 They are only ineligible for amnesty after a declaration by the Minister for Internal Affairs, who then proposes a statutory instrument for the approval of Parliament.161 In 2010 the Minister’s application to disqualify Kony, Odhiambo, Ongwen, and Thomas Kwoyelo from applying for amnesties was unsuccessful after opposition in Parliament.162 The impact of the ICC on the Amnesty (Amendment) Act does suggest that amnesties are no longer blanket, or is every person eligible. Additionally, the Juba peace agreements make no affirmative acceptance of amnesties.163 However, on 23 May 2012 the Amnesty Act was not renewed by the Ugandan government bringing its application to an end. In May 2013 the amnesty was reintroduced for a further two years. If Kony surrenders before this date, he could claim an amnesty, preventing him from being prosecuted before Ugandan courts.164 The Amnesty Act does not prevent the jurisdiction of the ICC, meaning the Ugandan government would still be obliged under the Rome Statute to transfer the LRA indictees to The Hague. Nonetheless, the Court made no reference to the continuation of the Amnesty Act in its admissibility decision, and thus missed an important opportunity to 155 156 157 158 159 160 161 162 163 164

Male victim, focus group 5, 14 July 2011. Focus groups 1 and 2, 9 July 2011. Focus group 1, 9 July 2011. Interview, Kampala, 30 June 2011. See ‘The Dust has Not Yet Settled’, Victims’ Views on the Right to Remedy and Reparation, A Report from the Greater North of Uganda, OHCHR, 2011, p. 69. Mallinder Note 29, p. 24. Section 2, The Amnesty (Amendment) Act 2006, inserting Section 2A to the Amnesty Act 2000. Government withdraws Kony Motion, New Vision, 15 April 2010. Clause 3.9. ICD official, Kampala, 1 July 2011.

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reprimand the Ugandan government for offering a blanket amnesty to senior perpetrators in violation of its obligations under the Rome Statute. 3 The International Criminal Court Act 2010 The most positive legislative impact of the ICC on the Ugandan legal system has been the adoption of the International Criminal Court Act 2010 (ICC Act).165 The Act, for the first time, allows international crimes to be prosecuted under Ugandan criminal law. Although Uganda ratified the Rome Statute in 2002, the belated nature of the ICC Act was due to fears that, at least in the 2006 Bill, it would derail the peace negotiations with the LRA.166 For victims, the ICC Act represents an important step towards them accessing justice for international crimes in Uganda. As Denis Hamson Obua MP, a victim and survivor of the war, stated, the Act ‘brings justice closer to the people . . . it will open the door to the victims of the war to present their grievances directly to the national courts that will be established’.167 As such, the ICC Act includes a number of provisions for victims on protection and reparations.168 Despite Mr Obua’s optimism, these provisions all relate to enforcing requests or orders made by the ICC, thus they do not provide any legal rights to victims in Ugandan courts. For instance, in relation to reparations, section 64 of the ICC Act recognises the Ugandan government’s specific obligation to enforce reparation orders by the ICC in a case, but not a general obligation to provide reparations to all victims of international crimes in the Northern Ugandan conflict, as outlined in the previous chapter. The ICC Act does offer greater recognition of victims suffering through improved definitions of crimes. For instance, rape in Ugandan criminal law is defined as ‘unlawful carnal knowledge of a woman or girl, without her consent’ or through force.169 Whereas, under the ICC Act, incorporating the Rome Statute’s definition, rape is the invasion of a person through penetration into any part of the body with a sexual organ or object without genuine consent.170 Clearly, the Ugandan definition of rape is archaic, ambiguous as to ‘unlawful carnal knowledge’, excludes male

165 The International Criminal Court Act 2010, Uganda Gazette No. 39 Vol. CIII, 25 June 2010. 166 Fred Ruhindi, The Minister of State for Justice and Constitutional Affairs/Deputy Attorney-General, The International Criminal Court Bill, Parliamentary Debates (Hansard), Official Report Fourth Session – Third Meeting, Wednesday 10 March 2010, at 4.12. 167 Ibid., at 3.09. 168 Sections 46, 58, and 64. 169 Section 123, Penal Code Act 1950. 170 Article 7(1)(g)-1 Elements of Crimes paras 1 and 2, mirrored in Articles 8(2)(b)(xxii)-1 and 8(2)(e)(vi)-1.

The ICC and victims in Northern Uganda 223 victims and penetration with an object.171 The crime of enlisting or conscripting children and civilians to participate in hostilities is also inadequately recognised in Ugandan criminal law as abduction.172 This does not represent the magnitude and seriousness of suffering of civilians and child soldiers, such as being subjected to beatings, sexual violence, forced to kill, maim, and loot.173 Furthermore, Ugandan domestic criminal law did not previously provide a clear definition of torture, permitting impunity for state agents.174 The inclusion of the Rome Statute’s definition of torture provides victims with an avenue for redress if the state or non-state actors use torture.175 Additionally, for mass crimes, reliance on Uganda’s domestic criminal law through multiple charges, such as murder, does not reflect the grave, ‘widespread and systematic’ nature of crimes against humanity or discriminatory nature of other crimes.176 This is contrary to the distinction of international crimes from domestic ones argued in Chapter 1. The ICC Act therefore increases the recognition of victims and their access to justice through the incorporation of the crimes under the Rome Statute into Ugandan law. The practice of the ICD, established in the wake of the ICC Act, explicitly excludes reference to the Rome Statute in the charges against its first accused, Thomas Kwoyelo, due to concerns of non-retroactivity. Instead, the prosecution relied on Ugandan criminal law and the Geneva Conventions Act 1964, which incorporates the Geneva Conventions into Ugandan law. However, the application of the Geneva Conventions is limited to common Article 3, i.e. war crimes committed during an internal conflict such as torture, outrages upon human dignity, taking of hostages, and extra-judicial executions.177 This excludes numerous other crimes including gender specific crimes such as rape, sexual slavery, and forced prostitution, as well as forced displacement and enlistment or conscription of civilians and children into hostilities, which all characterised many of the

171 See Uganda v Kyamusungu Ivan, Criminal Session Case No. 107/96 High Court; Uganda v Odwong Dennis and Olanya Dickson (1992–1993) HCB 71; see Lillian TibatemwaEkirikubinza, Sexual Assaults and Offences against Morality (Fountain Publishers 2005), pp. 4–5. 172 Section 126, Penal Code Act 1950. 173 See Redress report Note 26; Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), Rome Statute. 174 See Torture in Uganda, Redress, 2007; torture is prohibited under Article 24 of the Ugandan Constitution, but this can only give rise to a claim before the Ugandan Human Rights Commission, rather than a basis of criminal prosecution. 175 Articles 7(1)(f), 8(2)(a)(ii), and 8(2)(c)(i), Rome Statute. 176 Benchmarks for Justice for Serious Crimes in Northern Uganda, HRW, 2008, pp. 25–26; Article 7(1), Rome Statute. 177 Although it could be argued as an international conflict involving Sudan and Uganda, due to their use of proxy forces, see Doom and Vlassenroot Note 3, pp. 28–30.

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crimes committed during the Northern Uganda conflict.178 Reliance on these domestic laws, rather than the ICC Act, will thus exclude the majority of victims and provide an unrepresentative picture of the crimes committed in Northern Uganda. As a result, the ICC Act signifies a very limited application of the Rome Statute, without incorporating any victim provisions. Moreover, as the Act was only passed in 2010 the legal principle of non-retroactivity prevents its application to the Northern Ugandan conflict, as in the Kwoyelo case.179 4 International Crimes Division The Juba Annexure of the Accountability and Reconciliation Agreement stipulated a special division of the High Court to be created ‘to try individuals who are alleged to have committed serious crimes during the conflict’.180 Despite the collapse of the Juba peace process, the Ugandan government established the International Crimes Division (ICD) in July 2008 in order to institute accountability and to fulfil the principle of complementarity under the ICC.181 The ICD is meant to prosecute persons who committed international crimes in Uganda without the limitation of the temporal scope of the ICC.182 Thus the ICD is supposed to be a way to fill the impunity gap left by the Court’s indictment of the LRA leadership. However as mentioned, under Clause 4.1 of the Agreement, the ICD is to be only used for LRA, not the UPDF. Nonetheless, the creation of the ICD represents the Ugandan government striving to fulfil its obligations to investigate and prosecute those responsible for international crimes, as well as the impact of ICC in catalysing domestic judicial capacity.183 One civil society observer stated that the establishment of the ICD is ‘heavily driven’ by the intervention of the ICC, with a senior ICD official saying the Court was the ‘trigger for national mechanisms’.184 The first indictee before the ICD was Colonel Thomas Kwoyelo, a former LRA commander, who was captured in a UPDF offensive against the LRA in the DRC in 2009. Kwoyelo was charged with 12 counts of wilful murder, taking hostages, and kidnap with intent to murder under the

178 These offences could be included as ‘outrages upon human dignity’, but the Ugandan judiciary is unlikely to take such a broad interpretation which is reliant on customary international law, given the reticence in applying international law. 179 Cf. Article 15(2), International Covenant on Civil and Political Rights. 180 Para. 7. 181 Based on Article 141 of the Ugandan Constitution; see High Court Divisions (War Crimes) website: www.judicature.go.ug/data/smenu/18/International_Crimes_Division. html (accessed 10 December 2013). 182 Based on existing law under section 14 of the Ugandan Judicature Act 1996. 183 Under Article 141 of the Constitution and Section 20 of the Judicature Act 1996. 184 Interviews, Kampala, 29 June and 1 July 2011.

The ICC and victims in Northern Uganda 225 Geneva Convention Act 1964. He also faced 53 counts under the Ugandan Penal Code 1950 for murder, kidnap with the intent to murder, causing serious injury, extensive destruction to property, and aggravated robbery committed in Northern Uganda from 1994–1996.185 The trial commenced in Gulu, Northern Uganda in July 2011. Holding the trial in Gulu allowed victims to attend from neighbouring Pabbo area where the crimes occurred. However, they were unable to participate, and none of them were called as witnesses due to the trial being suspended.186 The Ugandan Constitutional Court dismissed the case against Kwoyelo in September 2011, after accepting his appeal that the government had discriminated against him by denying his amnesty claim.187 The collapse of the Kwoyelo trial affirms that impunity is the law in Uganda; this is contrary to the Ugandan government’s obligation to prosecution perpetrators under the Rome Statute. As one civil society interviewee noted, ‘State co-operation is compromised’ through the use of amnesties.188 Five other prosecutions are planned by the prosecution unit of the ICD for crimes committed in the Northern Ugandan conflict.189 The Amnesty Act 2000 ended in May 2012 coinciding with the capture of General Caesar Achellam, a possible trial may be forthcoming. However, in May 2013 the Ugandan Parliament reenacted the Amnesty Act for two more years, but it did not cover the ‘one year window’ between May 2012 and May 2013 when there was no amnesty law, so Achellam could apply under this though it is unclear if he would be accepted.190 Although with Achellam, like many others, he was allegedly abducted as a child into the LRA, and so there remain issues as regards addressing his responsibility and victimisation. The ICD has not integrated victim provisions under the Agreement and Annexure.191 In relation to victim participation, the Ugandan legal system is based on the adversarial trial in common law, which only allows victims to participate as witnesses, with their victimisation only being recognised upon a successful prosecution. Within the ICD, debates on victim participation have been too readily dismissed on the grounds that it does not comply with the adversarial trial tradition and would prejudice juries against the defendant.192 However, the Ugandan High Court, including

185 186 187 188 189 190 191

Final Amended Indictment of Thomas Kwoyelo, 5 July 2011. Although 60 victim-witnesses had been scheduled to testify. Thomas Kwoyelo v Uganda, Constitutional Petition No. 036/11, 22 September 2011. Interview, Kampala, 30 June 2011. Interview, ICD official, Kampala, 27 June 2011. Yasiin Mugerwa, Lawmakers Agree to Extend Amnesty Act, Daily Monitor, 16 May 2013. See Statement on Protection Needs for Victims and Witnesses Likely to Engage with the War Crimes Division of the High Court of Uganda and Transitional Justice Mechanisms, Uganda Victims Foundation, 15 November 2008. 192 Stocktaking: Complementarity, International Centre for Transitional Justice, Marieke Wierda, 2010, p. 3; interviews with ICD staff, June/July 2011.

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the ICD, does not use juries, and the unfamiliarity of judges and other practitioners with victim participation could be overcome with training and regulations of proceedings. Some officials of the ICD believe consultation with their staff at outreach sessions are a more appropriate form of victim participation, and this is practice of the ICD.193 Yet, excluding victims from the investigation and trial proceedings prevents their interests from being heard, as well as independent oversight and accountability of the prosecution and the court. With regards to protection measures, a formal system has not been put in place; instead the court relies on informal protection through the local police. Reparations are also excluded from the ICD, as according to one official, Kwoyelo is indigent and the government has no intention to provide reparations through the court.194 This exemplifies the difficulty with using the ICD as a remedy for victims, which not only fails to provide them with procedural justice through participation, information, and protection, but also denies them access to substantive redress through reparations. Moreover, the prosecution of individual perpetrators focuses on the responsibility of the LRA while avoiding the responsibility of the Ugandan government in the conflict. The basis of the ICD is to complement the work of ICC under the Rome Statute. However, its lack of victim provisions emphasises the defendant-focused nature of the court, which is only concerned with prosecuting the defendant rather than delivering justice to victims. By focusing on only one party of the conflict, and using restrictive and antiquated crimes, it further limits the recognition of victims and their access to justice. State Parties do have some discretion on how to prosecute perpetrators and to end impunity.195 There may be difficulties for a State Party and legal practitioners to change their legal system to cater for victims, especially in adversarial criminal trials which are unfamiliar with victim participation. Although reparations could be provided through another body, the focus on the ICD as the sole mechanism to complement the ICC and to redress the conflict detracts from seeking to remedy the victims’ harm. This is due to the retributive justice of the ICD as a criminal justice institution, which focuses on the punishment of perpetrators of international crimes. The challenge for the Court’s impact is to ensure that the purpose of the Rome Statute, in delivering justice to victims and ending impunity, is effectively translated on to the ground. The practice of complementarity in Uganda does not fulfil the Rome Statute’s mandate, due to the discretionary and non-enforced obligations on State Parties, which allow the

193 Interviews with ICD staff, June/July 2011. 194 Interview in Kampala, 27 June 2011. 195 See van der Wilt Ch. 4 Note 308.

The ICC and victims in Northern Uganda 227 Ugandan government to avoid its obligations. As such, the ICD is an ineffective accountability mechanism which appears to be a veneer for impunity and denial of justice to victims. Instead, an enforcement model based on state responsibility is required. As the next sub-section points out, victims strongly identify with state responsibility, the need for truth, justice, and reparations, and the continuing impunity which currently exists under complementarity. 5 Northern Ugandan victims’ access to justice and reparations Chapter 1 outlined that owing to the limitations of the ICC in delivering justice to victims an external examination is needed into how the Court catalyses domestic justice mechanisms to be responsive to victims’ needs. As discussed in Chapter 4, State Parties are under an obligation to investigate and prosecute individuals responsible for international crimes, with a failure to do so giving rise to a situation of impunity and the obligation to make reparations to victims. Other State Parties can seek enforcement of these obligations (erga omnes partes) by invoking the responsibility of the responsible state. However, as this sub-section will reveal victims have been denied access to justice, perpetrators have not been investigated or prosecuted, and reparations have only been paid to a few groups. The situation in Northern Uganda for victims does not evidence that they have access to justice to remedy their harm. The judicial infrastructure of Northern Uganda has been devastated by decades of conflict, with few cases reaching the courts. Even if victims want to access justice they have to pay their way on account of insufficient government funding of the police and judiciary, widespread corruption, and state interference. Many victims cannot afford legal representation, to travel to court, or even to pay the police for their transport costs.196 Consequently, there is a ‘justice gap’ between those few victims who can seek justice at the ICC and avail of their rights, and the thousands of other Northern Ugandan victims who have to rely on national courts, where they are unlikely to receive any redress. In relation to accountability within Uganda, there have been a number of UPDF cases heard before Ugandan military courts.197 These cases only represent the tip of the iceberg by prosecuting a few low-ranking personnel. Alternative mechanisms through traditional justice, such as mato oput, a traditional Acholi reconciliation ritual, could provide local justice, but they are not widely supported and lack protection measures for vulnerable

196 See Amnesty International Note 58. 197 The OHCHR reports the prosecution of six members of LDU and the local UPDF commander for the extrajudicial killing of ten IDPs in 2006, OHCHR Note 24, para. 13.

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groups.198 The Ugandan Human Rights Commission (UHRC) also offers redress for victims and is often more accessible being located in a number of towns, uncomplicated proceedings, and is able to award compensation.199 However, the UHRC can only examine human rights violations committed by government forces. Furthermore, the inability of the justice system to respond to crimes can be seen by the increasing use of ‘mob justice’ in Uganda, which in 2008 and 2009 killed 700 people.200 As noted by the OHCHR, there is ‘a general lack of confidence within the justice system due to delays in judicial proceedings, disregard for victims’ rights, a high number of dismissals in court and a lack of free legal assistance’.201 With regards to reparations, there is strong support amongst Northern Ugandans for such measures.202 Victims view both individual and collective reparations as a necessary, if not fundamental, part of remedying the conflict in Northern Uganda.203 Some believe compensation paid directly into their hands is an important means of repairing the harm they have suffered, so that they can determine for themselves the best way to spend it, as ‘money speaks’.204 This could also avoid the money going into the hands of officials, risking it being lost through bureaucracy and corruption. For the pillaging of livestock, some victims propose the replacement of cattle, but one victim group noted that the government’s restocking programme used weak and sick animals. They instead considered compensation as a more appropriate remedy.205 Others believed that with so many victims in Northern Uganda there may not be enough money for all of them. Therefore other forms of reparations could be more appropriate, such as rehabilitation that could ‘support very many people’, e.g. medical and psychological assistance, social and health services, housing, education, and vocational training.206 Measures of satisfaction, such as memorials, are

198 See Allen Note 1; Human Rights Center, University of California Berkeley Note 23. 199 Activities of the Office of the High Commissioner for Human Rights in Uganda, OHCHR, A/HRC/7/38/Add.2, 2008, para. 27. 200 Ugandan Human Rights Commission Annual Report 2010, p. 77; OHCHR ibid., para. 38. 201 OHCHR Note 199, para. 31. 202 Human Rights Center, University of California Berkeley Note 23, p. 44. 203 Quantitative research by the Berkeley Human Rights Center supports these findings, with respondents identifying memorials (90 per cent), cattle restocking (74 per cent), financial compensation (66 per cent), housing (44 per cent), education (38 per cent), and counselling (22 per cent), as important; Human Rights Center, University of California Berkeley Note 23, pp. 44–46. 204 Male victim, focus group three, 10 July 2011; Human Rights Center, University of California Berkeley ibid., p. 44. 205 Interview, Gulu, 6 July 2011. 206 Focus group one, 9 July 2011.

The ICC and victims in Northern Uganda 229 also seen as an important way to remember the past and to inform future generations.207 These views reflect the jurisprudence established in human rights law, as discussed in the previous chapter. They also provide some insight into the diversity of needs, which may require more than one type of reparation.208 Additionally, a crime can have a different impact on certain groups, so reparations should respond to the harm suffered by victims rather than the crime. By way of example, male children who were abducted by the LRA were generally used as soldiers whereas female children were used as ‘wives’.209 Both would need rehabilitation and compensation, but female abductees would also need community sensitisation to avoid stigma and treatment for any sexually transmitted diseases or reproductive health injuries.210 A reparations regime for Northern Uganda should offer comprehensive remedies which can be sensitive to these different needs. Reparations by the Ugandan government could serve to acknowledge its responsibility for atrocities, either committed by its own forces, its failure to protect civilians from attacks by the LRA or raids by the Karamojong, or for allowing the situation of impunity to exist by failing to investigate and prosecute those responsible.211 Victims strongly believed that the government should be responsible for reparations for atrocities they committed against them, for forcing them into the ‘protected villages’, and inadequately protecting them against the LRA.212 Research conducted by Berkeley Human Rights Center indicated that 64 per cent of Northern Ugandan respondents identified the government as responsible. As one former LRA abductee remarked, the government left the Northern Ugandan civilian population ‘in the hands of the rebels’.213 Victims have formed a number of associations to claim reparations against the government through the Ugandan courts. For example, the Acholi War Debt Claimants Association, was successful in settling with the government for Shs2 billion (£500,000) for their 14,000 claimants for livestock and agriculture equipment taken during the conflict, a tiny fraction of their original Shs45 trillion (£12 billion) claimed for full compensation. Though there have been persistent complaints about delays and corruption. There have also been a handful of cases before the Gulu High Court

207 208 209 210 211 212

Male elder victim, focus group one, 9 July 2011. See OHCHR Note 159, pp. 71–93. Ibid., pp. 79–80. Ibid.; see also TFV Summer Progress Report 2011, pp. 25–27. OHCHR Note 159, pp. 68–72. All five victim groups supported this when asked who was responsible for the crimes they suffered and reparations, with some also identifying the LRA with the government; see also Human Rights Center, University of California Berkeley Note 23, p. 39. 213 Interview, Gulu, 7 July 2011.

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where individual victims have been able to overcome the barriers to justice and to claim compensation from members of the UPDF,214 but there are no reported cases against the LRA due to the predominance of amnesties. Instead of a general reparations programme for victims of the Northern Ugandan conflict the government has declared that developmental programmes, such as Northern Ugandan Social Action Fund (NUSF ), and the Peace Recovery and Development Plan (PRDP), are reparations.215 However, these programmes involve reconstruction of infrastructure and development of social services to the general population. They are therefore not reparations, as they do not specifically focus on victims and seek to remedy their harm, nor do they involve acknowledgement of their harm and the Ugandan government’s responsibility.216 The government has provided reparations to certain victims. For instance, in the Mukura massacre on 11 July 1989, the UPDF rounded up 300 male civilians suspected of being LRA collaborators and put them in a train wagon. When they were released four hours later, 69 of them had suffocated to death.217 Only in June 2010 did the government apologise, complete the memorial site for the mass grave with a public library, and pay Shs200 million (£50,000) of compensation.218 Yet, the provision of reparations at this time coincided with the presidential elections, and could be interpreted as a ‘political manoeuvre’ to gain support in a traditionally anti-government area.219 Moreover, victims were not consulted about the amount of compensation. Additionally, some of them were excluded, and it left other victim groups questioning why they did not receive the same.220 Although this massacre was clearly the responsibility of the Ugandan government, it has been unwilling to make reparations in similar cases. Victims are also frustrated with the politics of reparations. Some Northern Ugandans referred to the compensation paid to the victims of the World Cup Final Kampala bombings in 2010, which was paid within weeks, or reparations made to victims of the conflict in Southern Sudan, whereas victims of the Northern Ugandan conflict have received virtually no reparations in the last 25 years.221 One individual asked ‘are we not human

214 See Marcelino Ladaa v Ivan Opok [2008] UGHC 133 (29 August 2008); William Abura v Attorney General [2008] UGHC 40 (14 November 2008); Odong Cypriano v Attorney General [2009] UGHC 55 (30 April 2009). 215 President asks Acholi to Let Go of Past, Daily Monitor, 29 November 2011. 216 Interview with human rights observer, Kampala, 20 June 2011. 217 See the Mukura Massacre of 1989, Justice and Reconciliation Project, Field Note XII, March 2011. 218 Ibid. 219 Ibid., p. 17. 220 Interview with a member of civil society, Gulu, 14 July 2011. 221 Focus groups one and two, 9–10 July 2011.

The ICC and victims in Northern Uganda 231 beings?’ expressing the violation of their right to an effective remedy.222 This point also emphasises their discrimination and denial of their inherent human dignity, by refusing them any reparations in comparison to their southern and northern neighbours. Instead, reparations paid by the Ugandan government to victims have been piecemeal and politically opportunistic.223 Such politicisation of reparations and the exclusion of Northern Ugandan victims undermines their dignity and causes secondary victimisation.224 As one victim said ‘we never see change . . . [we] are waiting in vain’.225 The causes of victimisation in Northern Uganda remain unaddressed. As the history of Uganda has on numerous occasions demonstrated, the failure to redress victimisation of the past can lead to its repetition in the future. In all, complementarity in Uganda can be characterised as retributive justice, and not victim-orientated justice as it is unresponsive to the needs and interests of victims. The ICC has not tried to maximise justice to victims beyond its own structural limitations by encouraging the Ugandan government to fulfil its obligations under the Rome Statute.226 Although it influenced the Juba peace process, subsequent developments have not resulted in tangible rights for victims. Complementarity does allow State Parties some discretion in its implementation, i.e. a ‘margin of appreciation’, to ‘give effect to norms in light of local understandings’.227 As discussed in Chapter 1 on transitional justice, any lasting solution must come from within the country itself.228 However, by neglecting the rights of victims as those most affected by the conflict it can only perpetuate the situation of impunity and division from the southern government. Reparations could redress some of the problems facing Northern Ugandans, but the ICC cannot achieve this on its own. A reparative complementarity approach under the Rome Statute, delineated in the last chapter, could provide victims with access to reparations and address the causes of victimisation, which are beyond the capacity of the ICC, such as guarantees of non-repetition. This would be based on the Ugandan government responsibility for committing atrocities, failing to protect civilians, and allowing the situation of impunity to remain. The unwillingness of the Ugandan government to provide reparations could be countered by using international responsibility based on erga omnes. As established in Chapter 4, other State Parties could invoke the responsibility of the Ugandan government before the ICJ to fulfil its obligations to investigate and prosecute

222 223 224 225 226 227 228

Male victim, focus group three, 14 July 2011. See Uganda to Compensate LRA Victims Ahead of Vote, Reuters, 18 June 2010. Correa Ch. 1 Note 140, pp. 189–190. Male elder victim, focus group one, 9 July 2011. Schabas Ch. 1 Note 19, p. 27. Ryngaert Ch. 1 Note 299, p. 166. Joinet Report Ch. 1 Note 269, para. 28.

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those responsible under the Rome Statute, as well as to provide reparations to victims.

E Conclusion Although it may be too soon to judge, the International Criminal Court’s intervention in Northern Uganda has so far not delivered adequately the Rome Statute’s two main objectives of ending impunity and delivering justice to victims. As long as the arrest warrants for the LRA remain unenforced and without arrest warrants being issued against those within the UPDF and the Ugandan government, the impact and impartiality of the ICC will be questioned. The failure of the Prosecutor of the ICC to investigate and prosecute crimes committed by both sides, and the unwillingness of the Court in its admissibility decision to declare that amnesties for senior commanders incompatible with the object and purpose of the Rome Statute, permits impunity to remain the law in Uganda. Without any reparations or assistance, many victims continue to suffer from the crimes that were committed against them, with the existence of impunity causing further psychological harm. As the discussion in the previous section emphasises, the ICC has not encouraged the Ugandan government to satisfy Northern Ugandan victims’ complex understanding of justice as entailing amnesties, accountability, and reparations, nor does it offer redress to the enduring and complex victimisation in Northern Uganda. The Court’s involvement in Northern Uganda illuminated the plight of victims. However, in light of the theories discussed in Chapter 1, the danger with the ICC and its extension through positive complementarity is that by using only retributive justice as ‘justice for victims’, it does not sufficiently remedy victims’ harm. The ICC and positive complementarity can also inhibit the understanding of justice, to the extent that an international construction of justice as retribution imposed on a local context can create further injustice by neglecting certain victims, and perpetuating impunity by excluding certain perpetrators. As such, victim provisions at the ICC have not entirely enabled victims to have ownership of justice at the Court. Complementarity in Northern Uganda has not extended justice for victims to those outside the Court. The Ugandan government’s selective prosecution of perpetrators indicates that its approach to complementarity is focused on the individual responsibility of the LRA, while avoiding its own responsibility in the conflict. The creation of the International Crimes Division may appear to be a complementarity success, an extension of the Court’s normative impact; however, for a significant number of victims it represents a very superficial response to a conflict which caused mass and enduring suffering. Consequently, it remains to be seen whether wider accountability and reparation processes could provide a meaningful or effective remedy to those most affected by international

The ICC and victims in Northern Uganda 233 crimes committed during the conflict. If complementarity is supposed to be State Parties taking primary responsibility in ending impunity and fulfilling their obligations, it has not yet been successful in Uganda. With the scaling down of the ICC field office in the Uganda situation and the Court refusing further victim applications, there is a danger of neglecting and forgetting the victims of the Northern Ugandan conflict, which will only affirm impunity and deny justice to them. It is perhaps time to consider victim-orientated complementarity at the state level to ensure the structural limitations of the ICC to deliver justice to victims are supplemented effectively by domestic processes.

6

Victim-orientated complementarity A wider perspective

Complementarity is supposed to ensure that State Parties support the work of the ICC as the Court itself is unable to investigate and prosecute all those responsible for international crimes. It necessarily follows if the purpose of the Rome Statute is to end impunity and ensure justice for victims both the ICC and State Parties have obligations to fulfil these objectives, in light of the limitations of the ICC identified in previous chapters. Accordingly as the ICC is a Court of last resort, the onus and responsibility to provide for victims remains with states. The intervention of the International Criminal Court in Uganda has been analysed in detail in the previous chapter, due to the author’s field work there. This chapter takes a broader examination of the remaining situations before the Court, to tease out the influence of the ICC in these countries in achieving justice for victims. At the time of writing in December 2013, there were eight situations before the ICC with 21 cases, and a further eight countries under preliminary investigation. This chapter begins with a discussion of victimorientated complementarity, before turning to examine the six of eight situations which are under investigation by the ICC.1

A Victim-orientated complementarity Victim-orientated complementarity is concerned with ensuring that justice for victims of international crimes is incorporated into domestic processes and legislation to complement the work of the Court in ending impunity for such crimes. Justice for victims in this book has focused on victims’ procedural and substantive rights, but there are two additional elements to facilitate positive victim-orientated complementarity. The third element is to have effective domestic institutions and mechanisms in place to realise victims’ rights, with the fourth being the local political will to 1 Further situations of Mali (ICC-01/12) and the deaths resulting from the Israeli Defence Forces’ invasion of a passenger vessel (ICC-01/13), which was part of a flotilla to Gaza, have been referred to the ICC, but as of yet no arrest warrants have been issued and are not examined in this chapter.

Victim-orientated complementarity 235 protect and vindicate these rights – thus all four elements are mutually reinforcing. The ICC to an extent incorporates the third and fourth elements, through the provisions and preamble of the Rome Statute, as well as its judicial decisions. Yet as the ICC is a court of last resort in realising justice for victims, it means State Parties are responsible at the first instance to provide these additional elements, as part of the external element of justice for victims discussed in Chapter 1. Nevertheless it may be difficult for states to find the resources to develop domestic mechanisms and the political support to provide for victims’ rights as positive victim-orientated complementarity, particularly where there is no enforcement or guidance from the Court. This chapter seeks to discern whether the relevant situational countries before the ICC have enacted domestic provisions for victims that could help to determine whether the state is fulfilling victim-orientated complementarity. To aid the examination of victim-orientated complementarity it is perhaps worth examining it in terms of negative and positive complementarity to distinguish between the role of the Court in examining situations and the practice of State Parties. 1 Negative victim-orientated complementarity In essence the third and fourth elements of justice for victims broadly reflect the requirements of admissibility before the Court, as to whether a case is being or has been investigated or prosecuted by a state, unless it is unwilling or unable to genuinely carry out an investigation or prosecution.2 Alternatively worded from a State Party perspective, it is the lengths to which a state has to fulfil in terms of positive complementarity to avoid the case going before the ICC. Admissibility decisions delineate the ICC judges’ view as to what complementarity entails. A victim-orientated approach to admissibility of cases in front of the Court, and by extension negative complementarity, would require examination of ‘ability’ as to whether State Parties have domestic mechanisms which include measures for victims to participate in investigations and proceedings, to obtain protection and support, and to claim reparations. Albeit there should be some flexibility or margin of appreciation for states to achieve justice for victims within their own unique context and legal system. Failure to show effective victim provisions would not always countermand ability, but would be a factor in determining ability, highlighting the importance of aligning domestic processes on international crimes with the purpose of the Rome Statute and the ICC in achieving justice for victims. The Court itself has been attuned to such considerations. The Appeal Chamber in the Katanga admissibility appeal dismissed that inactivity would prevent an assessment of ability or willingness, on the grounds that it would

2 Article 17(1)(a) and (b).

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be contrary to the object and purpose of the Rome Statute ‘to put an end to impunity’ by allowing it to ‘persist unchecked and thousands of victims would be denied justice’.3 Although this is more a rhetorical use of victims, it equates impunity with justice for victims, which illuminates the established human rights jurisprudence on these issues, making such a leap to victimorientated complementarity that much closer in the future. However, the Court has yet to specifically find that a case is admissible to the ICC or even to consider victim provisions as a factor of unwillingness or inability. The issue was raised in the Libya situation, discussed further below, but was not a factor relied on by the judges in their decision. Accordingly the lack of scrutiny by the ICC judges means that positive victim-orientated complementarity, as to what State Parties are doing themselves in domestic proceedings, remains ambiguous, or at worse irrelevant, to the ICC. 2 Positive victim-orientated complementarity Positive victim-orientated complementarity would require states to develop procedural rules within such domestic accountability mechanisms to enable victims’ interests to be presented and considered, as well as for victims to obtain justice, truth, and reparations. Importantly at the domestic level, states would recognise victims who suffer harm as a result of international crimes, thereby not politicising victims, but acknowledging harm and tackling responsibility of complex victim–perpetrator identities. State Parties would not need to incorporate the Rome Statute’s victim provisions, particularly Article 68(3) on participation which is quite broad, or to follow the decisions of the Court. Instead states should have some flexibility to create accountability mechanisms when emerging from conflict or dictatorship, considering there may be a mass loss of life and/ or displacement, substantial destruction to judicial infrastructure, inadequate resources to fund, or continuing instability. Yet such discretion to achieve accountability should be framed with delivering justice for victims to ensure that those responsible are held to account, not necessarily that all perpetrators have to be prosecuted, but that those responsible are identified, held responsible for their actions, their liability judged, and required to provide reparations, including disclosure of the ‘truth’.4 Such a position is based in reality, where after mass conflict evidence may be destroyed or witnesses untraceable or dead, which can prevent the full truth or complete justice being achieved. Instead such an approach would ensure that some form of justice for victims is delivered, rather than being 3 Prosecutor v Katanga, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/0401/07-1497, 25 September 2009, para. 79. 4 See Louise Mallinder and Kieran McEvoy, Rethinking Amnesties: Atrocity, Accountability and Impunity in Postconflict Societies, Contemporary Social Science 6(1) (2011) 107–128.

Victim-orientated complementarity 237 limited to criminal trials and the high evidential threshold for convictions to determine whether victims receive redress. Positive victim-orientated complementarity does not mean that states are alone in delivering justice for victims, there is a role for the ICC and Assembly of State Parties (ASP). As outlined with negative victimorientated complementarity, the ICC in its admissibility decision acts as a last resort, but initial examination of complementarity could be through monitoring of the ASP.5 As with European Convention of Human Rights and the Committee of Ministers, effective international monitoring of compliance with the Rome Statute should be a role for the ASP to take a lead on, particularly in ensuring erga omnes obligations amongst states to fulfil their duties to investigate and prosecute those most responsible for international crimes.6 The ASP could promote minimum standards or principles of justice for victims for states to follow, not harmonisation of the Court’s approach, as each country has unique legal, historical, political, and social contexts that can go beyond these minimum requirements. The ASP in a knowledge transfer and capacity building function could also assist State Parties to develop their domestic judicial and legal capacity, as well as to encourage the political will to recognise victims’ rights as a fundamental part of effectively ending impunity.7 Such initiatives could be assisted by international organisations and civil society, as discussed below in relation to the mobile courts in the DRC. This approach would better integrate the ICC as part of local transitional justice processes. The Court needs to find the correct balance in complementarity to ensure State Parties are fulfilling their obligations under the Rome Statute, while allowing some flexibility for states to respond to local needs. Although the Rome Statute defines complementarity as State Parties’ obligations to investigate and prosecute perpetrators of international crimes, to effectively end impunity a victim-orientated approach is required. This external element of justice for victims, outlined in Chapter 1, requires a state to recognise victims’ suffering and rights, and try to remedy their harm and the causes of victimisation to prevent their recurrence. From a critical victimological perspective it would also require states to remove barriers to victim recognition and access to justice, to remedy the harm of all those who have suffered and not those who deserve to be recognised or fall into the government’s narrative of the conflict. Where State Parties are

5 The ASP can create subsidiary bodies to monitor and evaluate the work of the Court under Article 121(4), Rome Statute. 6 Article 87(7) defines a narrow role for the ASP in relation to state non-cooperation with the Court. An alternative could be through the Inter-American System whereby compliance with court decisions and the American Convention is monitored by the Court and the Commission. 7 Article 87(5); see Supporting the Transition Process: Lessons Learned and Best Practices in Knowledge Transfer, OSCE-ODIHR Report, September 2009.

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unwilling to do this, invoking responsibility under erga omnes partes may be an avenue to ensure the fulfilment of their obligations under the Rome Statute and to realise the external element of justice for victims. Key to achieving positive victim-orientated complementarity would be effective knowledge transfer on the needs and interests of victims of international crimes, e.g. training prosecutors, judges, and police officers through seminars on the sensitive treatment and protection of victims and witnesses, radio broadcasts, or seminars for journalists. Beyond the criminal justice system it would also require the development of reparation mechanisms and dissemination of information of victims’ rights in other transitional justice programmes. In the long term training manuals and programmes could be developed, and legislation drafted. The Review Conference of the ICC in Kampala did ‘encourage’ governments, communities, and civil organisations at the national and local level to actively play a role in sensitising victims on their rights, to assist them in their social reintegration and participation in consultations ‘to combat a culture of impunity for these crimes’.8 Such a role in coordinating positive victim-orientated complementarity could be through the ASP; however, in November 2012 the ASP noted: certain States have expressed the need to be cautious with regard to the role that the Assembly can or should play vis-à-vis encouraging States to adopt victims’ participation and reparation strategies at a domestic level; others have expressed concerns with regard to intermingling the notion of complementarity which has been the subject of judicial decisions, with the unique system of victims’ participation under the Rome Statute.9 This position is unsurprising given that there are 122 State Parties of the Rome Statute, with different legal systems. With regards to ‘intermingling’ notions of complementarity, impunity and justice for the victim are interconnected, particularly in relation to human rights law and best practices in transitional justice, making justice for victims necessary to achieve ending impunity. Victim participation has been subject to extensive judicial decision making and continues to be, but does not require strict adherence by State Parties, instead in light of different legal systems flexible standards in this area would be more appropriate. In relation to reparations, victim-orientated complementarity is necessary to effectively remedy the harm suffered by all victims, not just those before the ICC. If the ASP is serious about the purpose of the ICC and the Rome Statute to end impunity and deliver justice to victims, it is necessary for State Parties 8 Kampala Conference Resolution on the Impact of the Rome Statute System on Victims and Affected Communities, RC/Res.2, 2010, para. 4. 9 Report of the Bureau on Victims and Affected Communities and the Trust Fund for Victims and Reparations, ASP, ICC-ASP/11/32, 2012, para. 33.

Victim-orientated complementarity 239 to complement the ICC and fulfil their implied obligations under the Rome Statute through victim-orientated complementarity. This position is reflected in the 12th ASP meeting (November 2013) where the ASP adopted a more progressive, albeit in the soft language of ‘call’ and ‘invite’ State Parties to adopt the 1985 UNBP10 and 2005 UNBPG11 for victims and ‘to act in solidarity with victims’. This changing position of the ASP, while not taking the lead on ensuring domestic implementation of victim provisions, does recognise the limitations of the Court and concerns with making justice for the victim more effective through domestic processes. In relation to the situations before the ICC there remain different levels of domestic implementation of victim provisions, which would be more coordinated and effective if there was scrutiny from the Court and the ASP.

B Situations before the International Criminal Court It is worth turning to examine state practice in those situations before the ICC to identify any emerging evidence of victim-orientated complementarity, notwithstanding it being uncoordinated and unenforced. This section analyses the situational countries before the ICC and how they have incorporated victims in their proceedings and mechanisms. In light of victim-orientated complementarity, the rest of this chapter explores the extent to which the ICC and Rome Statute have influenced State Parties in implementing provisions for victims of international crimes to complement the Court. Following on from the analysis in the previous chapter with the situation in Uganda, the rest of this chapter explores the extent to which states in situations before the ICC have incorporated a victimorientated approach to complementarity. Three elements drawing from justice for victims in Chapter 1 are relevant here for our analysis – (1) legislation for international crimes, to recognise victims, (2) procedural justice, and (3) substantive justice – due to the overlap in proceedings and decisions, procedural and substantive justice are both dealt with under the headings of ‘victims’ access to justice’. 1 Democratic Republic of Congo (DRC) a Situation and case background before the ICC The conflicts in the DRC began in 1996 after refugees from the Rwandan genocide sought haven in eastern Congo 1994, where sporadic former 10 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985. 11 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005.

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genocidaires launched attacks into Rwanda provoking an invasion of Rwandan, Ugandan, and Burundian forces into the DRC to destroy these groups.12 Continuing insecurity, localised conflicts, and intervention of neighbouring governments has meant that sporadic violence and impunity continues. The conflict has, according to some estimates, resulted in the deaths of over five million civilians, with rampant sexual violence, millions displaced from their homes, and thousands of children used in armed conflict.13 In light of the violence in the east of the country, the DRC was the first situation to be accepted by the Court for investigation in June 2004, after the Congolese government made a self-referral of the DRC situation to the ICC in April 2004. The ICC has issued six arrest warrants covering the Ituri conflict in north-eastern DRC and the Kivus conflict in eastern DRC. At the time of writing in December 2013 the trial in the Lubanga case was completed, a trial against Germain Katanga is continuing, proceedings against Bosco Ntaganda are pending, one outstanding arrest warrant remains against Sylvestre Mudacumura (leader of the Kivu based FDLR),14 and charges for two defendants were dropped (Callixte Mbarushimana and Mathieu Ngudjolo Chui).15 The charges against Chui were abandoned in December 2012 after three years of trial proceedings against him and his coaccused Germain Katanga, for their role in leading Ntingi and Lendu militias in the Ituri conflict. The judges dismissed the charges against Chui on the grounds that the evidence presented by the prosecution was insufficient to establish that he had ordered children to be militarily trained, used them as personal bodyguards during the attack on the village of Bogoro where over 200 civilians were killed, and survivors were imprisoned in a room filled with corpses, as well as women raped, property pillaged, and buildings destroyed.16 Despite the gravity of these charges, the

12 See Prunier Ch. 2 Note 82. 13 See Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003, August 2010 (hereafter Mapping Report); Amber Peterman, Tia Palermo, and Caryn Bredenkamp, Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo, American Journal of Public Health 101(6) 1060–1067. 14 Forces Démocratiques pour la Libération du Rwanda. 15 Callixte Mbarushimana as executive secretary of the FDLR was charged with five counts of crimes against humanity and eight counts of war crimes, due to his senior role in the FDLR strategy of attacking the civilian population to create a ‘humanitarian catastrophe’ to improve their political bargaining power. The PTC-I refused to confirm the charges due to Mbarushimana’s lack of individual responsibility in the military command structure to carry out such crimes; see Decision on the Confirmation of Charges, ICC-01/0401/10-465-Red, 16 December 2011. 16 Prosecutor v Mathieu Ngudjolo Chui, Judgment Pursuant to Article 74 of the Statute, ICC01/04-02/12-3, 18 December 2012; this decision has been appealed by the OTP.

Victim-orientated complementarity 241 collapse of the Chui case suggests the difficulties of the ICC securing convictions in such insecure situations such as in the DRC. Further problems with the DRC situation before the ICC rest in the scale of the conflict. The ICC is only able to deal with crimes committed after 1 July 2002, due to its limited jurisdiction, despite the conflicts, and possibly the greatest number of crimes committed, occurred between 1998–2002. Those individuals who have been brought before the ICC are all rebel leaders, with no state forces held to account, or those of other states, such as Rwanda and Uganda, who have backed rebel groups in Ituri or the Kivus.17 Although state responsibility is outside the Court’s jurisdictional scope, the leaders of Uganda and Rwanda have not been indicted, perhaps due to a lack of evidence implicating them directly in crimes committed in the DRC. The lack of sufficient evidence has dogged the success of the investigation, prosecution, and conviction of individuals before the ICC for international crimes committed in the DRC. That said the Congolese government has been unable to effectively complement the work of the Court, owing to entrenched impunity through a lack of capacity of domestic mechanisms and weak political will in the aftermath of the 1996–2003 conflict, as well as continued fighting in the east of the country, which has ravaged the state after years of internal decay and corruption under President Mobutu.18 b Domestic developments – military and mobile justice A number of initiatives to address the conflict in the DRC has been considered in recent years.19 However, no comprehensive process has yet emerged, with mass violence and impunity continuing to blight the

17 See Unfinished Business: Closing Gaps in the Selection of ICC Cases, HRW, September 2011; Final Report of the Group of Experts on the Democratic Republic of the Congo, 21 November 2008, S/2008/773, paras 61–68. 18 See Prunier Ch. 2 Note 82; Mapping Report Note 13. 19 The Sun City Peace Agreement 2002 included provisions to establish ‘an International Criminal Court for the Democratic Republic of Congo, endowed with the necessary competence to take cognisance of crimes of genocide, crimes against humanity, war crimes and mass violations of human rights committed or presumed committed since 30 June 1960 as well as those committed or presumed committed during the two wars of 1996 and 1998’ (Resolution No. DIC/CPR/05). An amnesty for those individuals responsible for acts of war and political crimes who confess and denounce their offences, but excluded genocide, war crimes and crimes against humanity; a National Truth and Reconciliation Commission tasked with ‘the responsibility of re-establishing the truth, and promoting peace, justice, forgiveness and national reconciliation . . . the Commission will be responsible for deciding the fate of the victims of the said crimes, for hearing them, and taking all the necessary measures to compensate them and completely restore their dignity’ (Resolution No. DIC/COR/04).

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eastern part of the country.20 In spite of this, efforts to ensure accountability for international crimes have been meted out through the military courts, which have in themselves been influenced by the Rome Statute and the ICC. The military courts are the primary mechanism to address individual criminal responsibility for international crimes in the DRC, even if the defendant is a civilian.21 A number of prosecutions have been brought against various state and non-state actors who have committed international crimes based on the Congolese Military Penal Code,22 with a number resulting in conviction.23 The judges in the military courts have turned to the Rome Statute at times to overcome discrepancies or gaps in the Penal Code.24 However, the judges have not incorporated the legal reasoning of the ICC or other international criminal jurisprudence into their judgments, and at times have not properly applied the elements of an offence to the facts of the case.25 More serious concerns remain with the impartiality of the military courts and their ability to guarantee the fair trial rights of defendants and victims before them, discussed further below.26 A number of mobile military courts have also operated in the DRC on an ad hoc basis, which entail investigators, lawyers, court staff, and judges travelling around certain areas collecting evidence and holding hearings outdoors.27 The UN peacekeeping force (MONUSCO) provides logistical and security support, with civil society organisations supporting defence and victim representatives before the court.28 The mobile courts have been 20 The National Truth and Reconciliation Commission failed to operate in practice; see Laura Davis and Priscilla Hayner, Difficult Peace, Limited Justice: Ten Years of Peacemaking in the DRC, International Center for Transitional Justice (ICTJ), March 2009, pp. 16–20. 21 See Case Study: The Application of the Rome Statute of the International Criminal Court by the Courts of the Democratic Republic of Congo, Avocats Sans Frontières, 2009 (hereafter ASF Report). 22 Efforts to pass an international crimes bill through the Congolese Parliament, which included a hybrid criminal tribunal, have been met with fierce criticism by the Senate. 23 See ASF Report Note 21, citing the cases of CM de l’Equateur, Affaire Mutins de Mbandaka, 15 June 2007, RPA 615/2006; 7 TMG de Mbandaka, Affaire Songo Mboyo, 12 April 2006, RP 084/05; 8 CM de l’Equateur, Affaire Songo Mboyo, 7 June 2006, RPA 014/06; 9 TMG de l’Ituri, Affaire Bongi, 24 March 2006, RP 018/06; 10 TMG de l’Ituri, Affaire Kahwa, 2 August 2006, RP 039/06; 11 TMG de l’Ituri, Affaire Bavi, 19 February 2007, RP 101/06. 24 See ASF Report Note 21, citing cases such as Mbandaka and Songo Mboyo, pp. 17–20. 25 See ASF Report Note 21. 26 Mapping Report Note 13, para. 858. 27 Passy Mubalama and Simon Jennings, Roving Courts in Eastern Congo, IWPR, 13 February 2013. 28 See Putting Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda, and Kenya, Open Society, 2011, pp. 52–53 (hereafter Open Society report); these courts have been supported by organisations such as the Open Society Justice Initiative, American Bar Association Rule of Law Initiative, OHCHR, Avocats Sans Frontières, and REJUSCO.

Victim-orientated complementarity 243 an important way for delivering justice in seemingly intractable impunity, particularly for sexual violence, as well as building the capacity of local legal practitioners.29 As one civil society organisation notes: In its first 36 months of operation (from October 2009 through October 2012), a mobile gender court operating in South Kivu made important progress toward meeting the urgent need to bring justice closer to citizens by holding 20 court sessions in remote areas of the province. It heard 382 cases, with 204 convictions for rape, 82 convictions for other offenses, and 67 acquittals. Twenty-nine cases are pending. Sentences for rape ranged from 1 to 20 years, with significant financial penalties added in some cases.30 Dealing with sexual violence is important in the DRC owing to its prevalence, but the mobile courts should also address other common international crimes, such as mass killing, torture, forced displacement, and use of child soldiers, to representatively recognise as many victims of the conflict as possible so as to enable them to access justice and to claim reparations. Although there are serious problems with prison facilities and victims receiving reparations, the mobile courts represent the role civil society organisations can play in building the capacity of domestic mechanisms to provide victims with some justice. Nonetheless, these developments have not been followed by domestic legislation to ensure access to justice and recognition for all victims. 1 L E G I S L ATI O N ON IN TERN ATION AL C RIM ES

As the DRC is a monist country31 it means that the Rome Statute came into effect domestically when it was published in the Official Journal of the

29 See Tessa Khan and Jim Wormington, Mobile Courts in the DRC: Lessons from Development for International Criminal Justice, Oxford Transitional Justice Research Working Paper, 2011. 30 Justice in DRC Mobile Courts Combat Rape and Impunity in Eastern Congo, Open Society Foundation, 2013, p. 7. 31 Whereby ratified international treaties are accepted as a part of domestic constitutional law; Article 215 of the DRC Constitution, Journal Officiel de la République Démocratique du Congo, Constitution de la République Démocratique du Congo, 47ème année, 18 février 2006; see Dunia P. Zongwe, Taking Leaves out of the International Criminal Court Statute: The Direct Application of International Criminal Law by Military Courts in the Democratic Republic of Congo, Israel Law Review 46(2) (2013) 249–269; ASF Report Note 21, pp. 10–14.

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DRC in December 2002.32 Thus the temporal scope of the Rome Statute for domestic mechanisms extends from December 2002 onwards. Many of the prosecutions by the military and mobile courts relate to crimes committed from 2003 onwards, with little or no investigation into the height of the Congo wars between 1996 and 2002. Nevertheless, the military and mobile courts have been using the Military Penal Code to cover a range of crimes, particularly sexual violence against women, such as in the military court case of Songo Mboyo, where six Congolese soldiers were convicted of rape and looting committed against the local population of Songo Mboyo and Bongandanga in December 2003 as crimes against humanity;33 and the mobile court case of Lieutenant Colonel Kibibi Mutware involving the mass rape of 60 women in Fizi, which saw nine defendants including Mutware convicted of rape as a crime against humanity.34 However, the courts have at times been unfamiliar with the legal elements of some of the crimes, or unwilling to recognise the crimes in the Rome Statute as applicable.35 For instance, in the Jean-Pierre Biyoyo case, involving soldiers who had deserted the army along with a secondary school teacher began a rebel movement under Biyoyo’s leadership, abducted and used children as combatants. The military court refused to classify the crimes against Biyoyo as war crimes of using child soldiers, but convicted him of desertion and other military offences, and within a year he was back in the Congolese army as a Lieutenant Colonel.36 This unfamiliarity is also evident in sexual violence cases, despite reform and passage of the 2006 Law on Sexual Violence, judges still struggle to apply this statute which includes a definition of rape akin to the Rome Statute and sexual slavery.37 Domestic legislation to integrate the international crimes within the Rome Statute into Congolese law was proposed in the International Crimes bill in 2008 to overcome interpretation issues in the military courts, to facilitate cooperation with the ICC, and to give civilian courts

32 Even though the statute was ratified by Presidential Decree in March 2002 – Legislative decree no. 003/2002 of 30 March 2002 approving the ratification of the Rome Statute of the International Criminal Court of 17 July 1998, Journal Officiel de la République Démocratique du Congo, instruments internationaux et régionaux relatifs aux droits de l’homme ratifiés par la République Démocratique du Congo, 43ème année, Special edition 5 Décembre 2002, 169–243. 33 Mapping Report Note 13, paras 862–863. 34 James Ellis and Dan Kuwali, Lt. Col. Kibibi Mutware Guilty of Mass Rape, Mobile Gender Courts, Yearbook of International Humanitarian Law 14 (2011). 35 See ASF Report Note 21. 36 Judgment issued 17 March 2006 concerning acts committed in Uvira in the DRC, in Rwanda and in Burundi, RP 096/2006-RP 101/2006 and RMP 292/KMC/06-RMP 206/ KMC/06; Mapping Report Note 13, para. 887. 37 Law No. 06/018 of 20 July 2006; see New Laws have Little Impact on Sexual Violence in DRC, IRIN News, 7 June 2011.

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jurisdiction over international crimes. The bill would have amended the Congolese Criminal Penal Code to include genocide, war crimes, and crimes against humanity, as well as to exclude the death penalty for such crimes, which has often been ordered by the military courts.39 Although the bill would have provided clearer content of international crimes and their elements, enabling better recognition of victims, it has encountered technical problems in ensuring coherence with domestic military, criminal justice, and penal reforms. In 2011 a bill to incorporate the Rome Statute and to create a mixed hybrid tribunal for crimes raised by the UN Mapping Report on violations committed between 1996 and 2003, was rejected by the Congolese Senate on the grounds that it violated the country’s sovereignty with the use of international personnel in the Congolese judicial system.40 Perhaps a more indirect impact of the ICC can be seen in relation to amnesty laws promulgated since 2002, which have excluded amnesties for perpetrators responsible for international crimes;41 however, this has not resulted in mass prosecutions or accountability measures for those responsible for such crimes. Furthermore, judges have at times been confused over the application of the amnesty law, or disillusioned with the Congolese government’s use of injunctions to prevent prosecutions or to absolve those who are responsible for international crimes by integrating them into the Congolese army (FARDC).42 Although the Rome Statute and ICC have impacted upon the Congolese legal system, there remains some ambiguity over the application of international crimes in domestic law to recognise victims and the political will to ensure its enforcement. 2 V I CTI M S ’ A C C ES S TO J US TIC E

As the Congolese legal system is based on the Belgian civil law system, victims are able to participate in criminal proceedings as partie civile.43 A number of victims through legal representatives have been successful in obtaining compensation judgments in the military and mobile courts. By way of example, in the Mbandaka case 3,000–4,000 soldiers who were newly integrated into the Congolese army from the rebel group the MLC, mutinied and pillaged the city of Mbandaka killing six civilians, raping 46 38 Open Society report Note 28, p. 21; see Joseph Kazadi Mpiana, La Cour pénale internationale et la République Démocratique du Congo: 10 ans après – Étude de l’impact du Statut de la Cour pénale internationale dans le droit interne congolais, Revue québécoise de droit international 25(1) (2012) 57–90. 39 Ibid. 40 See Ellis and Kuwali Note 34, p. 2. 41 Point III.8 of the Pretoria Global and Inclusive Agreement; Law No. 05/023 of 19 December 2005; Presidential Decree No. 03-001 of 15 April 2003; Law 09/003 of 7 May 2009. 42 Mapping Report Note 13, paras 971–972. 43 Article 69, Décret du 6 août 1959 portant le Code de procédure pénale.

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others, and committing other crimes including torture. At first instance the Military Tribunal awarded $500–15,000 to the 18 victims before the court against both the defendants and the state, on the basis that the soldiers were agents of the state.44 On appeal the military appeal court accepted seven further victims to the proceedings, awarding $126,000 to the 25 victims before the court.45 Interestingly, the military courts have been willing to accept the responsibility of the state for reparations in international crimes, whether through its own agents, such as government soldiers, to even soldiers of rebel groups who fought alongside government forces,46 as well as the state failing to administer effectively public services.47 The military courts have also found individual perpetrators and the state jointly responsible for reparations in a number of cases.48 This position of the courts more accurately reflects the way in which international crimes occur and the responsibility of different actors, not just individuals, but also the state, thereby lending itself to more effective accountability and reparative complementarity in line with the ICC. Nevertheless in practice victims face a number of serious hurdles that prevent them from claiming and receiving reparations. First the procedural rules of partie civile have the effect of individualising victims’ claims, meaning that they are unable to collectively bring group actions on shared resources and representation. Partie civile also reduces victims’ interests to just compensation, when they may need other forms of reparations, or to pursue truth and justice. In addition, as international crimes are only dealt with by the military courts, victims do not have the same legal rights as they would before civilian courts, such as challenging the prosecutor’s decision not to bring a prosecution.49 This has the effect of victims’ interests being ignored by the military judges and limits their access to justice. Where cases are brought before the military courts which involve victims, they face strict evidential requirements to support such claims. For instance, in rape cases a judge requires a medical certificate within 48 hours of the crime, which is nearly impossible to obtain owing to the lack of medical personnel and infrastructure in the DRC.50 Compensation awards are at the judge’s discretion, making them inconsistent and vary 44 Based on Articles 258 and 260 of the Congolese Civil Code; see ASF Report Note 21, pp. 84–91. 45 ASF Report ibid., p. 1; Sharanjeet Parmar and Guy Mushiata, Judgment Denied: The Failure to Fulfil Court-ordered Reparations for Victims of Serious Crimes in the Democratic Republic of the Congo, ICTJ, May 2012 (hereafter ICTJ Briefing). 46 Military Court of Katanga, Affaire Ankoro, 20 December 2004, RP 01/2003 and RP 02/2004; ASF Report ibid., p. 86. 47 MC of Equateur, Affaire Songo Mboyo, 7 June 2006, RPA 014/06. 48 Ibid., pp. 43–44; MC of Katanga, Affaire Mitwaba, 25 April 2007, RP 011/2006, p. 10; TMG de L’Ituri, Affaire Mutins de Bunia, 18 June 2007, RP 008/2007, p. 28. 49 Mapping Report Note 13, para. 968. 50 ICTJ Briefing Note 45, p. 3.

Victim-orientated complementarity 247 between claims due to the lack of fixed parameters. Accordingly such compensation may not necessarily be a sufficient amount to effectively remedy the harm suffered by victims.51 An extra hurdle for victims remains in the enforcement of compensation claims, which involve complex rules and exorbitant expense.52 Even if victims can overcome these issues, the Congolese government has been unwilling to pay compensation to victims.53 Unsurprisingly, victims have not yet received any compensation from cases heard before the military or mobile courts.54 This is likely to affect victims’ trust in the Congolese legal system. The DRC Truth and Reconciliation Commission was empowered to provide reparations to victims, but they were never considered.55 Other international forums, such as the International Court of Justice (ICJ) found the Ugandan state responsible for a number of international crimes for its involvement in the Congolese conflict and ordered it to make reparations to the DRC in compensation, but it has yet to do so.56 The ICJ dismissed claims of similar crimes, including genocide, committed by Rwanda despite evidence suggesting otherwise.57 In all, notwithstanding a number of significant judgments, reparations at the national level in the DRC have not yet materialised. In relation to protection measures, the influence of the Rome Statute can been seen in the reforms of the Congolese legal system on victim and witness protection. The Congolese Parliament in 2006 introduced measures to protect the ‘security, physical and psychological well-being, dignity and respect of the privacy of ’ victims, their families and witnesses of sexual violence, which included closed sessions and anonymity.58 Similarly the bill to implement the Rome Statute into Congolese law included provisions which would criminalise victim and witness intimidation for all crimes, not just international ones, as well as to include Article 68(1) of the Rome Statute to take ‘appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’.59 51 52 53 54 55 56

Ibid. Ibid. ASF Report Note 21, p. 91. ICTJ Briefing Note 45, p. 2. ICTJ Briefing Note 45, p. 31. Democratic Republic of the Congo v Uganda, Armed Activities on the Territory of the Congo, 19 December 2005; the amount claimed by the DRC government ranged from $10–15 billion. 57 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p. 6; see Mapping Report Note 13. 58 Article 74bis, section 2, Code of Criminal Procedure; see ibid., pp. 13–15; this provision is similar to Article 68(1) of the Rome Statute. 59 Articles 128-1, 129, and 1-1, Loi modifiant et completant certaines dispositions du code penal, du code de l’organisation et de la competence judiciaires, du code penal militaire et du code judiciaire militaire, en application du statut de la cour penale international, 2005; ibid., p. 16.

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However as mentioned, this bill was rejected by the Congolese Parliament, though the 2006 Act offers similar protection and is available to all victims and witnesses of crimes. In practice there is no state mechanism to protect victims who appear as witnesses or as partie civile, which may further discourage individuals from coming forward to testify or claim compensation.60 Inadequate judicial infrastructure, limited resources, police, and prosecution staff means that measures to ensure confidentiality do not occur.61 This is only worsened with poor prison infrastructure in the DRC, which has resulted in a number of those convicted of international crimes escaping. There is a real concern that due to inadequate prison facilities victims and witnesses may face reprisals. However with the mobile courts, witness and victim protection has been provided by civil society groups and by the UN peacekeeping force in the Congo (MONUSCO), which includes safe houses, relocation, and medical and psychological support.62 Although protection is a growing concern in the DRC for proceedings, in practice outside the mobile courts there are real risks to victims and witnesses without sufficient state capacity to protect them. 3 V I CTI M - O RI E NTATED C OM PLEM EN TARITY ?

Impunity remains deeply entrenched in the DRC despite a number of cases prosecuted before the military or mobile courts. The judicial system lacks sufficient resources, whether through financial assistance, personnel, transport, or facilities to conduct investigations and trials. Moreover, international crimes are only adjudicated by the military courts, bringing into question their independence and ability to ensure fair trial rights for defendants, victims, and children before them.63 Added to this is the scale of the conflict from 1996 which has involved numerous state and non-state actors, both within the DRC and neighbouring states, with millions of victims. The colossal task for the DRC government to prosecute each individual responsible is unrealistic. This is apparent in some of the cases that have been heard by the courts, such as in the Songo Mboyo case where even though six individuals were convicted of rape and looting as crimes against humanity, some 78 perpetrators were identified, with many of those who were prosecuted later escaping from prison.64 Added to this problem is that the majority of victims are unlikely to be able to identify or locate the perpetrators responsible, because of the mass scale of the crimes 60 See Isabelle Fery, Executive Summary of a Study on the Protection of Victims and Witnesses in D.R. Congo, Protection International, July 2012. 61 Ibid., p. 15. 62 Open Society report Note 28, pp. 31–32. 63 See Mapping Report Note 13, Section 3(III). 64 Mapping Report Note 13, para. 863.

Victim-orientated complementarity 249 perpetrated against them, which prevents them from claiming reparations.65 In all victims and affected communities in the DRC have yet to receive justice for the harm they have suffered, impunity continues to prevail, with many continuing to be displaced due to on-going violence. As a result, victims can feel disillusioned with the ability of national or international judicial mechanisms in delivering justice to them, and reducing their confidence to participate in such processes.66 2 Darfur (Sudan) a Situation and case background before the ICC Sudan is not a State Party to the Rome Statute, instead the situation in Darfur was referred to the ICC by the UN Security Council in March 2005, with the Prosecutor opening an investigation in June 2005. The referral was based on violence in Darfur by the Sudanese military and the Janjaweed militia against rebel forces, which caused the internal displacement of 1.65 million civilians and a further 200,000 seeking refuge in neighbouring Chad. Tens of thousands were directly killed by the violence, with the mass destruction of homes and pillaging, as well as the widespread and systematic use of torture and sexual violence against civilians.67 The UN Commission of Inquiry established to investigate the violence found that crimes against humanity had been committed, but genocide was not a policy of government forces, due to the absent specific intent (dolus specialis).68 The Commission of Inquiry identified a number of perpetrators responsible for the violence, which was passed on to the ICC. The ICC investigation focused on violence by both state and rebel groups. Seven individuals have been indicted with arrest warrants issued for four senior members of the Sudanese government and the Janjaweed – Ahmad Harun, Abdel Raheem Muhammad Hussein (Defence Minister), and Sudanese President Omar Hassan Ahmad al-Bashir; and leader of the Janjaweed Ali Kushayb – all indicted for murder, forcible transfer, and rape as crimes against humanity and intentionally directing attacks against a civilian population and pillaging as war crimes, amongst other charges. Notably President al-Bashir has been indicted for three counts of genocide, which more accurately reflect victims’ suffering as many of the civilians targeted were members of the Fur, Masalit, and Zaghawa ethnic groups.69

65 Khan and Wormington Note 29, p. 32. 66 Ibid. 67 See Report of the International Commission of Inquiry on Darfur to the SecretaryGeneral, S/2005/60, 1 February 2005. 68 Ibid., paras 640–642. 69 See Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, 12 July 2010.

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Indictments by the ICC have not been one-sided with three members of the rebel groups also accused of international crimes – Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus70 (Justice and Equality Movement), and Bahar Idriss Abu Garda (United Resistance Front) – for attacking African Union peacekeepers in Haskanita, South Darfur. Members of the Sudanese government have not yet been brought before the Court, but Abu Garda, Jerbo, and Banda have voluntarily submitted themselves before the Court. However, the charges against Abu Garda were dropped due to limited evidence, with only Banda facing trial in 2014 after Jerbo’s death. Ultimately, while the Prosecutor has provided a representative prosecution of all actors involved in the Darfur conflict, Sudan’s lack of cooperation has meant that only rebel leaders have appeared before the ICC. b Domestic developments – non-cooperation Accountability for atrocities in Darfur has not been addressed domestically in Sudan. The UN Commission of Inquiry found that there was a lack of political will by Sudanese authorities and rebel groups to hold those responsible for international crimes to account, with the government’s actions constituting ‘more a window-dressing operation than a real and effective response to large scale criminality linked to the armed conflict’.71 That said the Sudanese government established a Special Criminal Court on the Events in Darfur (SCCED), the day after the Prosecutor’s announcement of an investigation, to demonstrate the government’s ability to investigate and prosecute international crimes domestically.72 The Special Court would prosecute domestic crimes and those falling under international humanitarian law (i.e. war crimes); however, in practice it has only ever prosecuted ordinary crimes such as theft.73 Other investigative units have been established, such as the Judicial Investigations Committee, the Special Prosecutions Commissions, the Committees against Rape, and the Unit for Combating Crimes against Women and Children in the Ministry of Justice, to investigate and prosecute crimes committed in Darfur since 2003, but due to political interference they have yet to result in any trials or convictions.74

70 The case against Saleh Jerbo was terminated in October 2013 after the Court confirmed his death; Decision Terminating the Proceedings against Mr Jerbo, ICC-02/05-03/09-512Red, 4 October 2013. 71 Commission of Inquiry (CoI) Report, para. 567. 72 See Lack of Conviction: The Special Criminal Court on the Events in Darfur, HRW, June 2006. 73 Report of the African Union High-level Panel on Darfur (AUPD), October 2009, paras 215–217. 74 See 15th Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005), 5 June 2012.

Victim-orientated complementarity 251 1 L E G I S L ATI O N ON IN TERN ATION AL C RIM ES

As Sudan is not a State Party to the Rome Statute it has little or no legal basis to prosecute international crimes in domestic courts until recently. Under existing domestic criminal law, there are a number of gaps, such as torture being undefined in the Sudanese Criminal Code.75 In 2009 the Sudanese government amended the Criminal Act 1991 to include genocide, war crimes, and crimes against humanity into the domestic criminal law.76 The amended act by and large incorporates many of the international crimes included in the Rome Statute, in particular sexual violence as crimes against humanity.77 However, a number of inconsistencies in Sudanese law remain. The definition of genocide and rape included in the amended Criminal Act 1991 do not completely follow the Rome Statute’s definitions, as there are ambiguities as to what acts will satisfy the Sudanese provisions. In addition, these newly incorporated international crimes cannot be used to prosecute crimes pre-2009 under the principle of non-retroactivity.78 Moreover the Armed Forces Act 2007, although expressly prohibiting violations of international humanitarian law and international human rights law, maintains Article 34(2) which requires the President to waive immunity for members of the military before a criminal prosecution or civil claim can be brought. Furthermore, the Armed Forces Act does not recognise victims’ right to reparation for international crimes or gross violations.79 As a result, the legal landscape in Sudan for international crimes is somewhat inconsistent. Maybe only through interpreting international crimes in light of customary law and jurisprudence of the international courts would this be overcome, but it requires sufficient education of the Sudanese judiciary, which is unlikely considering the current political climate of unwillingness and impunity in the country. 2 V I CTI M S ’ A C C ES S TO J US TIC E

As an Islamic based legal system victims are permitted to participate in criminal proceedings, and to claim compensation and restitution in 75 Arrested Development: Sudan’s Constitutional Court, Access to Justice and the Effective Protection of Human Rights, Redress and Sudan Human Rights Monitor, August 2012, pp. 16–17. 76 Suliman Baldo, Sudan: Impact of the Rome Statute and the International Criminal Court, ICTJ, May 2010, p. 3. 77 See Mohamed Abdelsalam Babiker, The Prosecution of International Crimes under Sudan’s Criminal and Military Laws: Developments, Gaps and Limitations, in L. Oette (ed.), Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan (Ashgate 2011) 161–181. 78 AU Report Note 73, paras 229–234, citing Article 34 (4) of the 2005 Interim National Constitution of Sudan. 79 Babiker Note 77, p. 180.

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substitute of the death penalty for perpetrators.80 However, there are serious deficiencies in ensuring accountability and victims’ access to justice. Women are actively discriminated against in the Sudanese criminal justice system, as they do not have the same rights to directly and autonomously participate before the courts, present evidence as witnesses, or to avail of legal aid as men do.81 Witness and victim protection in criminal proceedings is non-existent, with police officers or prosecutors having no capacity to record victim’s testimony confidentially or to treat victims of sexual violence in a sensitive manner.82 In practice, victims are unable to access domestic courts to seek redress, whether criminal or civil, as there are a number of prohibitive hurdles such as high costs, strict legal requirements, and immunities for perpetrators.83 With regards to reparation, the Commission of Inquiry recommended that in conjunction with the referral of the situation to the ICC a Compensation Commission be established by the UN Security Council to compensate victims of gross violations of human rights and to redress their rights.84 Interestingly, and in the same vein as reparative complementarity, the Commission of Inquiry found that as international crimes implicitly involve the state, the Sudanese government is responsible for providing reparations to victims.85 However as Evans points out, the UN Security Council in its referral of the Darfur situation to the ICC, failed to recommend the establishment of the Compensation Commission, mentioning only Article 75 and 79 of the Rome Statute and ‘encouraging States to contribute to the ICC Trust Fund for Victims’.86 This follows a more general approach by the international community to neglect the rights of victims in the debates on Darfur, by instead concentrating on retributive justice before the ICC.87 Domestically the issue of reparations was maintained in the Darfur Peace Agreement signed in May 2006, which includes extensive provisions on reparations for victims, incorporating both international legal standards and traditional local practices.88 Reparations are to be provided 80 AU Report Note 73, para. 212. 81 Mohamed Abdelsalam Babiker, Criminal Justice and Human Rights: An Agenda for Effective Human Rights Protection in Sudan’s New Constitution, Redress and Sudan Human Rights Monitor, March 2012, p. 6. 82 HRW Note 72, pp. 29–30. 83 See Redress and Sudan Human Rights Monitor Note 75, pp. 25–27. 84 CoI Report Note 71 paras 570 and 590–603. 85 Ibid., paras 593–595 and 598. 86 Evans Ch. 2 Note 198, p. 144; UN Security Council Resolution 1593 on the Referral of the Situation in Darfur to the ICC, S/RES/1593, 31 March 2005. 87 Outcome of the Expert Consultation on the Issue of Protecting the Human Rights of Civilians in Armed Conflict: Report of the United Nations High Commissioner for Human Rights, A/HRC/11/31, 4 June 2009, para. 39. 88 See paras 194–213; its language or terms do not indicate any influence of the Rome Statute.

Victim-orientated complementarity 253 through a Darfur Compensation Commission, which can offer a range of reparations including traditional forms of compensation; provision of livestock, veterinary medicines, or agricultural tools; rehabilitation; acknowledgement and acceptance of responsibility; and guarantees of non-repetition.89 The Commission would be supported by a Compensation Fund to provide interim awards in the first three months with the Sudanese government providing an initial $30 million to the fund.90 Further support through the Darfur Reconstruction and Development Fund would ensure reconstruction and rehabilitation of the infrastructure and farming in Darfur.91 However, as discussed in previous chapters, while development can complement reparations, they are distinct from each other with development being more general assistance to a population, whereas reparations are directed at remedying the harm suffered by victims. Ultimately, the Sudanese government has yet to implement these provisions. 3 V I CTI M - O RI E NTATED C OM PLEM EN TARITY ?

The Darfur situation exemplifies the ‘perverse’ incentive of complementarity, where states implement politically driven investigation and prosecutorial mechanisms, which do not end impunity, but reinforce it.92 There is no meaningful accountability in Sudan, with continuing violations in Darfur.93 Victims are unable to access justice and secure an effective remedy of their harm with the effects of impunity continuing to persist. It is clear that both the state and the law itself are a source of victimisation by denying recognition to those individuals and groups which suffer harm and preventing them from accessing justice. The attention of the ICC in Darfur has focused the debate of justice around retributive justice, closing the space for realisation of justice for victims as an acceptable way to complement the work of the Court. 3 Central African Republic (CAR) a Situation and case background before the ICC The situation in the Central African Republic was referred to the ICC by the Bozizé government in December 2004. The referral covered the 89 Darfur Peace Agreement 2006 para. 207; see Suliman Baldo and Lisa Magarell, Reparation and the Darfur Peace Process: Ensuring Victims’ Rights, ICTJ, November 2007. 90 Ibid., paras 210 and 213. 91 Ibid., para. 154. 92 Christopher K. Hall, Positive Complementarity in Action, in C. Stahn and M. El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press 2011) 1014–1051, p. 1034. 93 See 18th Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005), 11 December 2013.

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violence related to the failed military coup in October 2002 led by Francoise Bozizé against former President Ange-Félix Patassé, which was crushed with use of Congolese Jean-Pierre Bemba militia, the Mouvement de libération du Congo (MLC), and other mercenaries; and the subsequent successful coup led by Bozizé which ousted Patassé in March 2003. As the CAR had ratified the Rome Statute in October 2001, these crimes were in the temporal jurisdiction of the Court. In May 2007 the Prosecutor of the ICC opened an investigation into these crimes, citing in particular the high prevalence of sexual violence and rape during the 2002–2003 period.94 In May 2008 the ICC issued an arrest warrant against Jean-Pierre Bemba for the role of the MLC in committing rape and torture as both war crimes and crimes against humanity against the CAR civilian population, as well as further war crimes of outrages upon human dignity, in particular humiliating and degrading treatment, and pillaging.95 Murder was later added to the arrest warrant as both war crimes and crimes against humanity, but due to lack of evidence the torture charges were dropped by PTC-III in the confirmation of charges decision.96 Bemba was arrested in May 2008 in Belgium and extradited to the ICC, where in early 2014 his trial is nearly completed. However, other individuals identified by CAR authorities and human rights groups for their responsibility for atrocities committed have not been indicted before the ICC. Patassé died in April 2011, and Bozizé was ousted himself from power in March 2013 and exiled to Cameroon, despite his forces being involved in a number of atrocities against CAR civilians in the north of the country.97 There remains a perception that justice before the ICC was politically motivated and did not provide an impartial prosecution of all those responsible.98 b Domestic developments – the phantom state99 Domestic accountability mechanisms have been all but absent in the CAR. The case against Jean-Pierre Bemba originated in the CAR, where an investigation had begun into the role of former President Patassé and others in a number of crimes including murder, rape, torture, and theft committed in 2002–2003. However the CAR Court of Cassation openly acknowledged 94 Prosecutor opens Investigation in the Central African Republic, ICC Press Release, ICCOTP-20070522-220, 22 May 2007. 95 Warrant of Arrest for Jean-Pierre Bemba Gombo, ICC-01/05-01/08-1-tENG, 23 May 2008. 96 Prosecutor v Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009. 97 See State of Anarchy Rebellion and Abuses against Civilians, HRW, September 2007. 98 See HRW Note 17, pp. 31–33. 99 Central African Republic: Anatomy of a Phantom State, International Crisis Group, Africa Report No. 136, 13 December 2007.

Victim-orientated complementarity 255 that the country’s judicial system was unable to genuinely carry out an effective investigation or prosecution of these individuals, who were all outside the territorial jurisdiction of the CAR, and instead found that the ICC would better deal with these individuals.100 Some further trials have been held against Patassé supporters, but have been noted for their ineffectiveness and bias.101 The recent coup d’état by the rebel group Séléka destroyed many courts and police stations, as well as their records.102 Insecurity and impunity continues to plague the country, with groups such as the Lord’s Resistance Army in the east and more widespread fighting amongst ex-Séléka and anti-Balaka forces often targeting civilians, without the pursuit of accountability from the government in Bangui. 1 L E G I S L ATI O N ON IN TERN ATION AL C RIM ES

As the Central African Republic is a monist state, the Rome Statute has applied since October 2001, when it was ratified by the CAR government. In January 2010 the crimes of genocide, war crimes, and crimes against humanity were incorporated into the CAR Penal Code.103 The CAR judiciary has yet to apply these international crimes in any cases coming before them. That being said, President Bozizé passed an amnesty law in 2008, which excluded international crimes, but provided a broad amnesty for all his supporters.104 Although there may be no conflict between the amnesty law and the international crimes incorporated into CAR Penal Code, it could allow atrocities to be characterised as ‘domestic crimes’ in order to avail of the amnesty law, thereby enabling impunity. Prosecutions or other forms of accountability are unlikely due to the lack of political will or ability to bring such cases in the CAR. 2 V I CTI M S ’ A C C ES S TO J US TIC E

As the CAR is a former French colony it retains many of its criminal procedures, such as partie civile, enabling victims to participate in criminal proceedings and to claim damages.105 However, there have been no completed domestic trials of those responsible for international crimes. Even if there were trials, the judicial system would be unable to facilitate victim participation. In the admissibility decision in the Bemba case the OPCV 100 Central African Republic v Ange-Félix Patassé and Others, Judgment, 11 April 2006. 101 See Forgotten, Stigmatised: The Double Suffering of Victims of International Crimes, FIDH, No. 457/2, October 2006, pp. 32–39. 102 ‘I Can Still Smell the Dead’: The Forgotten Human Rights Crisis in the Central African Republic, HRW, September 2013, pp. 70–71. 103 Articles 152–154. 104 Confronting Past Crimes at the National Level, ICTJ, April 2009. 105 Articles 2–4 and 59–62, Republique Centrafricaine Presidence de la Republique, Loi No. 10.001 portant Code Penal Centrafricain, 6 Janviér 2010.

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provided a summary of victims’ views on national proceedings in the CAR, citing their concerns that the country’s judicial system was inadequately resourced, both financially and in terms of judges who are unable to determine international crimes, lack impartiality, incapable of protecting them in proceedings, and could not guarantee their rights.106 The representations also noted that some of the victims had unsuccessfully tried to initiate criminal proceedings for events that occurred in 2002–2003, but the national authorities took no action.107 These representations suggest that victims would be unwilling to seek redress domestically, and even if they did so there is no capacity or willingness by the CAR government to ensure those responsible are held to account or victims’ harm remedied. After Séléka overthrew the Bozizé regime, a Commission of Inquiry was established to identify those responsible for human rights violations since 2002, with the purpose of identifying victims and assessing the levels of damages for compensation.108 However, the Commission has yet to begin its work and is unlikely to find sufficient funding for its own operation, never mind for reparations. 3 V I CTI M - O RI E NTATED C OM PLEM EN TARITY ?

The lack of political will or capacity to ensure accountability for international crimes represents the biggest challenge to ending impunity and delivering justice to victims of the CAR conflict and continuing insecurity. Although the ICC can investigate and prosecute those most responsible for international crimes, and provide some limited form of redress to victims, it cannot replace the state. There is a clear need in such a situation to focus the attention of the Assembly of State Parties, NGOs, and civil society to develop the capacity of the state to function and provide justice to victims. 4 Kenya a Situation and case background before the ICC The Kenyan situation arose from the post-election violence (PEV) that occurred between December 2007 and February 2008, after the election returned President Kibaki amid claims of electoral fraud. The violence involved armed groups from both of the main political parties (PNU and ODM) and members of the police targeting individuals based on ethnicity 106 Prosecutor v Bemba, Response by the Legal Representative of Victims to the Defence’s Challenge on Admissibility of the Case Pursuant to Articles 17 and 19(2 (a) of the Rome Statute, ICC-01/05-01/08-742, 1 April 2010, paras 86–89. 107 Ibid., para. 90. 108 Decree No. 13.106, 22 May 2013; see HRW Note 102, pp. 69–70.

Victim-orientated complementarity 257 or political party affiliation resulting in 1,133–1,200 people killed, 3,561 injured, with rape and sexual violence committed against more than 900 individuals, and 117,216 private properties destroyed and 350,000 Kenyans displaced.109 The Prosecutor of the ICC for the first time used his prerogative under proprio motu to request an investigation to be opened into the Kenyan situation, on the basis of crimes against humanity committed as part of the PEV.110 The inability requirement under Article 17 of the Rome Statute was supported by the Kenyan government failing to pass a bill through the Kenyan Parliament, which would have created a Special Tribunal to investigate and prosecute those responsible, discussed further below. In March 2010 PTC-II authorised the investigation in the PEV in Kenya citing that such crimes appeared widespread, corroborating victims’ representations about the brutality of the violence and the devastating impact of such crimes upon them.111 Summons to appear were issued against six individuals in March 2011, broadly covering both PEV protagonists in the opposition and government.112 Upon the confirmation of charges the case of three individuals (Ruto and Sang in case one, and Kenyatta in case two) proceeded to trial. These cases have been noted for their political interference. After new elections in March 2013, Kenyatta and Ruto were elected as President and Deputy President of Kenya respectively. The trial for Ruto with co-accused Sang began in September 2013, and Kenyatta’s trial was supposed to commence in February 2014, to facilitate both suspects to continue to carry out their governmental responsibilities. However, coverage of the Kenyan trials at the ICC has been dominated by issues of state sovereignty and the Court ‘targeting Africans’, as was similarly raised in the Bashir indictment for Darfur. Ruto and Kenyatta petitioned the African Union (AU), which passed a resolution that the ICC trials of the two men should only proceed once they step down from office, and the UN Security Council for the

109 See The Commission of Inquiry into the Post-Election Violence, Final Report, October 2008 (‘Waki Report’). 110 Article 15(1), Rome Statute; Request for Authorisation of an Investigation Pursuant to Article 15, ICC-01/09-3, 26 November 2009. 111 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, paras 192–196. 112 Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-01, 8 March 2011; Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11-01, 8 March 2011; indictees included senior politicians, a radio broadcaster, a former head of the civil service, and a former police commissioner.

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cases to be deferred for a year, which was rejected in November 2013.113 The Court has allowed Kenyatta to attend only certain proceedings, including those where victims present their views and concerns, representations on sentencing, and reparation proceedings.114 A similar decision in the Ruto case by the Trial Chamber was overturned by the Appeal Chamber, limiting such excusal to only exceptional circumstances.115 At the 12th ASP meeting a resolution was adopted to modify Rule 134 of the Rules of Procedure and Evidence of the ICC to allowing heads of state to appear before the Court via video-link.116 Further political interference with the Court occurred in September 2013, when Kenyan MPs in both houses passed a motion to begin the process of Kenya withdrawing from the Rome Statute, which would not affect the jurisdiction of the ICC over current cases and state cooperation, but represents more symbolic dissatisfaction with the Court. b Domestic developments – politicising justice In Kenya itself, the judicial system has been criticised for its corruption and lack of independence, despite its sufficient infrastructure and staffing.117 Political and ethnic based violence, as a result of British colonialism, in the years after independence have never been fully investigated or redressed, with much of the conflict revolving around land disputes.118 Due to international attention and pressure there has been greater attention to accountability for political and ethnic violence after the PEV. As a result in 2008 the Commission of Inquiry (‘Waki Commission’) set up by the Kenyan government to investigate the PEV found that the Kenyan criminal justice system was ‘weak’ with its investigation ability the ‘weakest’,

113 AU Decision on Africa’s Relationship with the International Criminal Court (ICC), Ext/ Assembly/AU/Dec.1, October 2013; UN Security Council Resolution seeking Deferral of Kenyan Leaders’ Trial Fails to Win Adoption, with 7 Voting in Favour, 8 Abstaining, SC/11176, 15 November 2013; similar claims by the AU to the ICC and UN Security Council were rejected in 2011; see Bernard Momanyi and Simon Jennings, Kenya Seeks Delay to ICC Trials, IWPR, 17 October 2013. 114 Prosecutor v Kenyatta, Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, ICC-01/09-02/11-830, 18 October 2013. 115 Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC01/09-01/11-777, 18 June 2013; Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(a) of 18 June 2013 titled ‘Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial’, ICC-01/09-01/11-1066, 25 October 2013. 116 Amendments to the Rules of Procedure and Evidence, ICC-ASP/12/Res.7, 27 November 2013. 117 See Prosecuting International and Other Serious Crimes in Kenya, ICTJ, April 2013. 118 See TRJC Final Report 2013; Simon Robins, ‘To Live as Other Kenyans Do’: A Study of the Reparative Demands of Kenyan Victims of Human Rights Violations, ICTJ, July 2011.

Victim-orientated complementarity 259 and as a result ‘promotes impunity’.119 The Waki Commission recommended that a Special Tribunal should be established in Kenya to, seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya. The Special Tribunal shall achieve this through the investigation, prosecution and adjudication of such crimes.120 The Commission suggested that the Special Tribunal would be a hybrid court based on Kenyan domestic law and the International Crimes Bill as the subject matter for crimes and staffed by Kenyan and international judges. The advantage of having a Special Tribunal would avoid relying on domestic Kenyan courts to prosecute politically contentious cases, and minimise the risk of political influence and partiality.121 The Tribunal was supposed to form part of the three pronged approach pursued by the Kenyan government on the PEV with the ICC as one option to hold those ‘big fish’ responsible, the Special Tribunal for Kenya to hold middle level perpetrators to account, and the Truth, Justice and Reconciliation Commission to address the widespread nature of the violence and its historical context.122 However, subsequent efforts by the Kenyan government to pass legislation for the Special Tribunal were rejected by Parliament over issues of state sovereignty and the use of international personnel. Instead of a hybrid tribunal in October 2012 the Kenyan Judicial Services Commission recommended the establishment of an International Crimes Division in the High Court of Kenya, similar to that in Uganda.123 The Kenyan International Crimes Division was established in April 2013, but serious concerns remain over its impartiality and ability to guarantee witness protection, already evidenced in a number of cases on the PEV prosecuted through the Kenyan criminal courts.124 Accordingly investigating and prosecuting international crimes remains difficult where there are systemic issues of corruption and political manipulation of the domestic criminal justice system. A Special Tribunal would have been better positioned to 119 120 121 122

Waki Report Note 109, p. 469. Ibid., p. 472. Ibid. See Stephen Brown and Chandra Lekha Sriram, The Big Fish won’t Fry Themselves: Criminal Accountability for Post-election Violence in Kenya, African Affairs (2012) 111(443) 244–260. 123 Report of the Committee of the Judicial Service Commission on the Establishment of an International Crimes Division in the High Court of Kenya, October 2012. 124 Bernard Momanyi, Kenya’s Special Court Faces Uphill Task, IWPR, 10 January 2013; ‘Turning Pebbles’: Evading Accountability for Post-election Violence in Kenya, HRW, 2011.

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avoid these concerns, its rejection reflects the need for domestic political willingness to end impunity and reform of state institutions to prevent the reoccurrence of violence. The ‘third prong’ of accountability in Kenya, and a way to address historical grievances and prevent reoccurrence, was with the Truth, Justice and Reconciliation Commission of Kenya (TRJC). The Commission was created in 2008 to establish an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office, both serving and retired, between 12th December 1963 and 28th February 2008.125 The TRJC could offer individuals an amnesty, but it excluded those responsible for a broad range of international crimes and gross violations of human rights, and could suggest that certain individuals be prosecuted.126 The TRJC was also empowered to recommend prosecutions and reparations for anyone who suffered harm as a result of a gross violation of human rights.127 Upon release of its final report in May 2013, the Commission found that the British colonial administration had committed horrific and gross violations of human rights, as had all three subsequent Presidents of Kenya through the Kenyan police and army.128 The TJRC recommended that those responsible for massacres, political assassinations, torture and ill-treatment, and sexual violation should be prosecuted, alongside other measures such as apologies, memorials, reparations, and measures to prevent repetition, discussed further below.129 These measures have yet to be adopted by the Kenyan government, but if they were would provide comprehensive redress to victims. In terms of peace and security, the Kenyan presidential elections in March 2013 did not see a repetition of the level of violence witnessed after the 2007 election. That said pre-election violence flared up in some areas with over 477 killed and 118,000 people displaced, with reports that the Kenyan government failed to carry out investigations into allegations that MPs, a minister, and other leaders were involved, enabling impunity for perpetrators and the causes of the PEV to remain unresolved.130 There 125 Section 5, Truth, Justice and Reconciliation Act 2008. 126 Section 34(3) excludes those responsible for ‘genocide, crimes against humanity, gross violation of human rights or an act, omission or offence constituting a gross violation of human right including extrajudicial execution, enforced disappearance, sexual assault, rape and torture’. 127 Sections 6(k) and 42. 128 TRJC Final Report 2013. 129 TRJC Report Volume IV, pp. 63–68. 130 See Kenya: Investigate All Politicians in Tana River Violence: Police Failed to Prevent Clashes Despite Warnings, HRW, 13 September 2012.

Victim-orientated complementarity 261 continues to be issues with the adequacy of domestic legislation to cover international crimes that occurred during the PEV, as well as victims’ access to procedural and substantive justice in Kenya. 1 L E G I S L ATI O N ON IN TERN ATION AL C RIM ES

As a dualist country, Kenya ratified the Rome Statute in March 2005, but only passed the International Crimes Act in January 2009, which incorporates the Rome Statute, including definitions of international crimes, into Kenyan law.131 The Act itself is to facilitate cooperation with the ICC and does not create any new structures to address international crimes domestically in Kenya, similar to the International Criminal Court Act in Uganda.132 However as in Uganda, the Kenyan Act does not cover the violence committed in 2007–2008 under the principle of non-retroactivity. Thus even if a Special Tribunal was created in Kenya it would have to rely on existing domestic law at the time of the PEV. This existing legislation includes the Kenyan Penal Code and the Geneva Convention Acts, but the Geneva Convention Act is unlikely to apply to the PEV as the violence did not rise to a non-international armed conflict, meaning that domestic prosecution of crimes is unlikely to provide an adequate characterisation of international crimes.133 Furthermore, the Kenyan Parliament motion to remove Kenya from the jurisdiction of the ICC, would mean that any domestic mechanism would be unable to apply international crimes, particularly accountability for the crimes against humanity that occurred during the PEV. 2 V I CTI M S ’ A C C ES S TO J US TIC E

Kenya is a former British colony and continues to follow many aspects of the English common law system in its adversarial criminal proceedings. Accordingly victims in Kenyan criminal trials do not have a role in proceedings as a party. However, as in England and Wales, Kenyan victims can bring a private prosecution, but this requires consent of a magistrate; the Attorney General, who is Director of Public Prosecutions (DPP), can also take over a prosecution at any time or prevent a prosecution if it is politically motivated.134 Further difficulties remain for victims in finding

131 International Crimes Act 2009, No. 16 of 2008. 132 See Antonina Okuta, National Legislation for Prosecution of International Crimes in Kenya, Journal of International Criminal Justice 7 (2009) 1063–1076. 133 Ibid., p. 1065. 134 Section 88, Kenyan Criminal Procedural Code 2009; see Jonathan Mwalili, The Role and Function of Prosecution in Criminal Justice, UNAFEI, Resource Material Series No. 53, 1999; Richard Kimani and S. M. Maina v Nathan Kahara, Criminal (Revision) Case No. 11/83.

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sufficient financial resources to sustain such a prosecution.135 In public prosecutions brought by the DPP, the Prosecutor is obligated to consult victims about any plea bargains with the suspect, with victims also allowed to make impact statements on sentencing.136 In addition, a Kenyan criminal court can order compensation or restitution to injured parties upon conviction of a defendant.137 With regards to victim protection, a Witness Protection Act was passed in 2006 to provide protection for witnesses in criminal and other proceedings, as well as establishment of the Witness Protection Agency, which began operating in 2009.138 The Agency has been criticised for its lack of independence, as the Attorney General would decide which witnesses accessed the system,139 ambiguities as to who was covered and what measures were available, as well as it being unlikely to offer effective confidentiality and protection of witnesses and victims.140 An amended act passed in 2010 addressed some of these criticisms, such as removing the power of the Attorney General, as well as including a Victims’ Compensation Fund to provide compensation and restitution for victims of crimes, but scepticism remains in the effectiveness of the underfunded Agency.141 Witness reforms have been part of wider changes to the criminal justice system by the government to improve the impartiality and effectiveness of the system.142 Yet in practice concerns still remain with political interference and intimidation of witnesses and victims of the PEV.143 Representations made to the ICC by the Common Legal Representative for Victims makes clear that the majority of victims supported holding the trial in The Hague as opposed to Kenya due to security concerns.144 This reflects a continuing lack of confidence in the Kenyan criminal justice system despite reform. In relation to a domestic court which would address the crimes committed during the PEV a number of important victim provisions were suggested in the government’s bill (the draft Statute for the Special Tribunal for Kenya), to fulfil the Waki Commission’s recommendation for a Special 135 A private prosecutor can be sued for costs by the suspect if the trial collapses, Section 171(b), Criminal Procedural Code 2009. 136 Sections 137D(c) and 329A-F, Criminal Procedural Code 2009. 137 Sections 175(2) and 177, Criminal Procedural Code 2009. 138 See Chris Mahony, The Justice Sector Afterthought: Witness Protection in Africa, ISS, May 2010, pp. 111–138. 139 Section 5(1), Witness Protection Act 2006. 140 See Critique of the Witness Protection Act and Amendment Bill, Kenyan Section of the International Commission of Jurists, 2010. 141 Section 3I, the Witness Protection (Amendment) Act 2010; ibid. 142 ICTJ Report Note 117 pp. 4–5. 143 See Prosecutor v Ruto and Sang, ICC-01/09-01/11-896-Corr-Red, 5 September 2013. 144 See Prosecutor v Ruto and Sang, Common Legal Representative for Victims’ Observations in Relation to the ‘Joint Defence Application for Change of Place Where the Court Shall Sit for Trial’, ICC-01/09-01/11-620, 25 February 2013.

Victim-orientated complementarity 263 Tribunal. Although the bill was defeated in Parliament, the victim provisions within it broadly reflected the Rome Statute. Article 42 titled the ‘Rights of Victims’ effectively transposed Article 68(3) of the Rome Statute on victim participation into the Statute for the Special Tribunal. Article 47 also provided ‘compensation’ for victims, with trial proceedings to require the protection of victims and witnesses.145 The impact of the Rome Statute is apparent in these provisions, albeit their broad nature for participation and the restriction to compensation instead of reparations. Nonetheless as the bill was defeated and the International Crimes Act 2009 inapplicable to the PEV, the only way victims can access justice and reparations would be through the TJRC. Apart from its accountability provisions, the final report of the TJRC also recommended reparations, representing a more inclusive approach to remedying harm well outside the scope of the temporal jurisdiction of the ICC, by covering the period from 1963–2008. It is worth discussing in more detail the recommendations of the TJRC as it is intuitive for other states and the ICC. Although the majority of victims who made representations to the Commission and to other organisations requested financial compensation, the TJRC categorised and prioritised victims to assist those most vulnerable and to make reparations more comprehensive, manageable, and feasible.146 The Commission did this by first organising victims of gross violations of human rights into the following categories: (1) violations of the right to life; (2) violations to the right to personal integrity, including sexual or gender based violence; (3) forcible transfer of populations; (4) historical and contemporary land injustices; and (5) systematic marginalisation. The TJRC then prioritised victims in categories 1 and 2 as those most vulnerable as Priority A, including those in category 3 who had died as a result of displacement. Victims in the Priority A group would be eligible for monetary compensation through a ten year annual pension, as well as medical and psychological vouchers to fund rehabilitation. Under the TJRC reparation recommendations, all victims in the five categories are entitled to collective reparations, with other victims in Priority B only able to claim collective reparations. These collective reparations are to address the ‘policies and practices that negatives impacted entire groups of people’,147 and include measures such as apologies, memorials, micro-financing for business opportunities, health services, counselling, or skill training, as well as land restitution or resettlement for those displaced.148 The purpose of these collective reparations is to ‘provide recognition of victims’ experiences, restore their dignity and 145 Article 31, with Article 21 stipulating such protection measures would be provided for in the Rules of Procedure and Evidence. 146 TRJC Report Volume IV, pp. 97–122. 147 Ibid., p. 107. 148 Ibid., p. 108.

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reputation, and demonstrate the State’s acknowledgement of responsibility for violations and its resolve to ensure non-recurrence’.149 A number of victims have begun suing the state for failing to protect them properly, or to investigate or to prosecute those responsible for the harm they suffered during the PEV.150 Some victims have been successful is suing the Kenyan government for violence committed by police forces during the PEV, but none have yet received any compensation.151 The recommendations of the TJRC have thus far not been implemented by the Kenyan government to remedy the harm suffered during the PEV, but to also address historical atrocities and injustices in order to prevent their reoccurrence.152 3 V I C TI M - O R I E NTATED C OM PLEM EN TARITY ?

Despite the capacity of the Kenyan judicial system to provide accountability for international crimes there remains a lack of political will to end impunity and deliver justice to victims. The debate on the ICC in Kenya has been politicised and dominated by the issues of retributive justice and state sovereignty rather than justice for victims. The TJRC recommendations represent a mature approach to reparations, which would go beyond complementing the ICC and redressing the PEV to effectively delivering comprehensive reparative justice to victims of injustice since 1963. However politicisation of the conflict and addressing its aftermath, which have extended to the international level through pressure on the African Union, UN Security Council, and ASP, represent the extent to which political pressure can be used to undermine the purposes of the Rome Statute to end impunity and prevent justice for victims. Such political resistance to domestic accountability reinforces the need for impartiality at the ICC, but with the limitations of the Court in delivering justice for victims necessitates a strong commitment of the Court, ASP, other international bodies, and State Parties to ensure domestic compliance in delivering effective remedies to victims of international crimes.

149 Ibid., p. 114. 150 Victims of Kenyan 2007–2008 Post-election Violence Sue for Compensation, Sabahi, 14 February 2013; J.J. Wangui, Kenyan Rape Victims Seek Compensation, Reporting Kenya, 14 August 2013. 151 Emmanuel Igunza, Kenyan Police Violence Victims Fight for Justice, IWPR, 16 July 2012. 152 See Allan Ngari, Reparative Justice, Institute for Justice and Reconciliation, Kenya Policy Brief No. 4, October 2013.

Victim-orientated complementarity 265 5 Ivory Coast (Côte d’Ivoire) a Situation and case background before the ICC The situation in the Ivory Coast came before the attention of the ICC through the Prosecutor exercising his proprio motu powers to initiate an investigation following a declaration of the Ivorian government affirming the Court’s jurisdiction, after violence surrounding the presidential elections in November 2010. The presidential elections resulted in a majority win for opposition leader Alassane Ouattara against incumbent President Laurent Gbagbo. However, President Gbagbo refused to step down, instead exploited ethnic ties by initiating targeted violence against Ouattara supporters, as well as civilians from northern Ivory Coast or from other West African countries, resulting in the deaths of over 3,000 civilians and at least 150 women being raped.153 At the same time Ouattara forces in the north of the country began an offensive against pro-Gbagbo held areas. In April 2011 UN peacekeeping and French forces launched an attack with Ouattara troops against forces loyal to Laurent Gbagbo and took the presidential residence detaining Laurent Gbagbo and his family. Alassane Ouattara was installed as President in May 2011. However, in the aftermath of violence it became clear that international crimes had been committed by both sides, since the previous contested election in 2000, which resulted in a de facto north–south division of the country and serious violence in 2002.154 In relation to the temporal scope of the jurisdiction of the ICC, the Ivory Coast ratified the Rome Statute in February 2013, but had accepted the Court’s jurisdiction in April 2003 to cover crimes committed since 19 September 2002.155 In October 2011 Pre-Trial Chamber III authorised the Prosecutor to open his investigation into the events surrounding the 2010

153 See UN Human Rights Council, Report of the International Commission of Inquiry on Côte d’Ivoire, A/HRC/17/48, 2011 (hereafter COI Report); ‘They Killed Them Like It was Nothing’: The Need for Justice for Côte d’Ivoire’s Post-Election Crimes, HRW, 2011. 154 See ‘They Looked at his Identity Card and Shot him Dead’: Six Months of Post-Electoral Violence in Côte D’Ivoire, Amnesty International, AFR 31/002/2011, 2011; HRW ibid.; and COI Report ibid. 155 Under Article 12(3), Rome Statute; Declaration Accepting the Jurisdiction of the International Criminal Court dated 18 April 2003, ICC-02/11-01/1-l29-Anxl6-tENG, www. legal-tools.org/doc/e44492/ (accessed 12 December 2013); this Declaration was reaffirmed by President Ouattara in a series of letters to the OTP in December 2010 and May 2011.

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presidential election.156 In February 2012, the Chamber expanded the scope of the investigation to include crimes dating back to 19 September 2002, on the grounds that the judges deemed the ‘ongoing crisis involving a prolonged political dispute and power-struggle culminated in the events’ that led to violence surrounding the presidential election in November 2010. This is a progressive interpretation by the judges at the ICC that will hopefully enable a more representative recognition of victims who suffered harm as a result of the Ivorian conflict. The Court has issued arrest warrants for three individuals – former President Laurent Gbagbo, his wife Simone Gbagbo, and Charles Blé Goudé. Laurent Gbagbo was transferred from the Ivory Coast in November 2011 on an arrest warrant for murder, rape and other forms of sexual violence, persecution, and other inhumane acts as crimes against humanity.157 Currently there are 199 victims participating in his case.158 In November 2012 Pre-Trial Chamber III unsealed the arrest warrant for Simone Gbagbo for the same charges as her husband.159 However, the Ivorian government refuses to hand over Simone Gbagbo, as she is due to stand trial in the Ivory Coast for crimes against humanity. The third suspect, Charles Blé Goudé, a member of Gbagbo’s inner circle and involved in the postelection violence through his planning, training, arming, and directing of youths who were integrated into the pro-Gbagbo army (FDS). He was arrested in Ghana and transferred to Ivory Coast in January 2013 to stand trial before domestic courts.160 To date only pro-Gbagbo forces have been indicted before the ICC, despite both sides committing international crimes.161 This may be explained by the Prosecutor’s ‘sequential’ investigation strategy by investigating pro-Gbagbo forces first, before moving on to

156 The Prosecutor had focused on the period commencing 28 November 2010 surrounding the election on the basis that the violence in Ivory Coast had reached unprecedented levels, and there was substantial information available to establish that certain crimes had occurred during this period; Situation in the Republic of Ivory Coast, Request for Authorisation of an Investigation Pursuant to Article 15, ICC-02/11-3, 23 June 2011, para. 41. 157 Warrant of Arrest for Laurent Gbagbo, ICC-02/11-01/11-1, 23 November 2011. 158 The case was at the confirmation stage when the judges requested the Prosecutor to provide further evidence or conduct further investigation with regards to the charges against Mr Gbagbo – Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013. 159 Warrant of Arrest for Simone Gbagbo, ICC-02/11-01/12-1, 29 February 2012, unsealed 22 November 2012. 160 His arrest warrant by the ICC outlines his alleged role in murder, rape and other forms of sexual violence, other inhumane acts, and persecution as crimes against humanity; Warrant of Arrest for Charles Blé Goudé, ICC-02/11-02/11, 21 December 2011, unsealed 30 September 2013. 161 Amnesty International Note 154; HRW Note 153; and COI Report Note 153.

Victim-orientated complementarity 267 162

pro-Ouattara forces. Yet as time passes without any forthcoming proOuattara supporters being indicted, public perceptions in Ivory Coast of the ICC are increasingly considered one-sided and ‘playing politics’, undermining the Court’s credibility and ability to representatively recognise victims of the Ivorian conflict.163 b Domestic developments – developing capacity Since coming to power President Ouattara has introduced a number of accountability measures to address the post-election violence in Ivory Coast through establishing a National Commission of Inquiry,164 a Special Investigative Cell,165 and a Dialogue, Truth and Reconciliation Commission (CDVR).166 The National Commission of Inquiry began in January 2012 to investigate allegations of gross violations of human rights and international humanitarian law. The final report of the Commission documented the crimes committed by both parties to the conflict, but it was beyond its remit to point to individual criminal responsibility.167 The Special Investigative Cell was established by the government to conduct criminal investigations into crimes committed since December 2010, due to the courts not yet operating after the conflict. The military courts are also prosecuting members of the armed forces for crimes, and so far in one case five former Gbagbo military officers, including the former head of the Republican Guard, General Bruno Dogbo Blé, were convicted of abduction and murder, with General Dogbo Blé receiving a 15 year sentence.168 However, while there have been efforts to secure accountability with more than 150 individuals charged with post-election crimes, it mostly includes pro-Gbagbo supporters, which risks undermining the impartiality of the process and preventing justice for victims for those crimes committed by pro-Ouattara supporters.169 So far militia leader Amadé Ouérémi is the only pro-Ouattara supporter who has been indicted and arrested for his role in the Duékoué massacre of several hundred people in March 2011 by pro-Ouattara forces.170 The charging of mostly pro-Gbagbo supporters may reflect political pressure and instability 162 Turning Rhetoric into Reality: Accountability for Serious International Crimes in Côte d’Ivoire, HRW, 2013, pp. 35–36. 163 Ibid., p. 37. 164 Commission nationale d’enquête, created 15 June 2011. 165 Cellule spéciale d’enquête, created 24 June 2011. 166 Commission dialogue, vérité et reconciliation, 13 July 2011, www.cdvr.ci; see HRW Note 162. 167 Rapport d’enquête sur les violations des droits de l’homme et du droit international humanitaire survenues dans la période du 31 octobre 2010 au 15 mai 2011, 2012. 168 See, 5 Gbagbo loyalists sentenced in Ivory Coast, AP News, 11 October 2012. 169 HRW report Note 162, p. 28. 170 See Ivory Coast: The Fight Against Impunity at a Crossroad, FIDH, October 2013.

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with pro-Ouattara allies and the Ouattara government meaning that such investigations and charges will be ‘sequential’, i.e. pursued in the future against pro-Ouattara forces.171 The final accountability mechanism in the Ivory Coast is the CDVR, which is tasked with examining the causes of the post-election violence, the acts and patterns of violations, and ways for the country to overcome its legacy through reconciliation and acknowledgement of those who have been victimised.172 The Commission will recommend institutional reforms, reparations for victims and appropriate memorials. However, as with other accountability mechanisms in Ivory Coast, the Commission lacks sufficient funds to operate slowing its progress.173 1 L E GI S L A TI O N ON IN TERN ATION AL C RIM ES

As mentioned above, although the Ivorian government ratified the Rome Statute in February 2013, the government accepted the jurisdiction of the ICC back to September 2002. As a monist country the Rome Statute should be directly applicable in the Ivory Coast from this date,174 as in the experience of the DRC, without violating the principle of non-retroactivity. This could be useful for Ivorian prosecutors and judges, as many of the international crimes in the Rome Statute are not defined in the Ivorian Penal Code. By way of example, the Ivorian Penal Code does not criminalise torture175 or enforced disappearances,176 which were often committed by both protagonists of the conflict. Furthermore, Article 354 of the Penal Code does not adequately define rape, making it difficult for victims to be recognised and to claim reparation.177 It remains to be seen whether the Ivorian prosecutors and judges will follow such an approach adopted in the DRC and use the Rome Statute to fill in gaps in the domestic penal code. An international crimes bill to implement the international crimes in the Rome Statute would more coherently and clearly incorporate these crimes into Ivorian law. Consistent legislation has also been passed with the Rome Statute in relation to the Linas-Marcoussis peace agreement in 2003 after the coup d’état and resulting violence. The agreement established that the national reconciliation government should release and provide an amnesty for all 171 172 173 174 175

Ibid., p. 29. Ibid., p. 32. Ibid., p. 33. Article 86, Ivorian Constitution 2000; see HRW Note 162, p. 71. Article 3 of the Ivorian Constitution states that ‘inhuman and cruel, degrading and humiliating, physical or moral torture, physical violence and mutilation and all forms of degradation of the human being’ are forbidden and punished by law; Côte d’Ivoire: The Victor’s Law, Amnesty International, AFR 31/001/2013, 2013, p. 65. 176 Ibid., p. 66. 177 Ibid., p. 66.

Victim-orientated complementarity 269 soldiers detained on grounds of national security or exiled, but would exclude those perpetrators of grave economic crimes and grave violations of human rights and international humanitarian law.178 On 19 August 2003 the Ivory Coast Assembly adopted the Amnesty Law.179 The Amnesty Law excludes those perpetrators mentioned in the peace agreement, as well as anyone responsible for international crimes under Articles 5–8 of the Rome Statute.180 The Amnesty Law also prevents any prosecutions against amnesty applicants as well as to bar any monetary or restitutionary claims by victims.181 Nevertheless, Article 10 of the Amnesty Law stipulates that the state assumes the duty to provide reparations to victims by any appropriate means to repair the damage from any offence amnestied.182 This is compliant with Principle 16 of the UN Principles on Remedies and Reparations, and will hopefully ensure that all victims of the conflict, not just those whose perpetrators received an amnesty, will be provided with full, effective, and appropriate reparations.183 2 V I CTI M S ’ A C C ES S TO J US TIC E

As the Ivory Coast is a civil law system, its criminal proceedings allow victims, who have suffered harm, to join the prosecution’s case and present evidence through their legal representative.184 Victims can also claim damages against the defendant as partie civile, as well as restitution, and usually make their presentation for damages before the prosecution’s final statement.185 However, victims who participate as partie civile cannot testify as witnesses in the trial, and face similar evidential and resource difficulties as those faced in the DRC.186 That being said a number of human rights organisations are currently representing 75 victims in a number of cases against both parties of the conflict, including the case against Mrs Gbagbo, in order to obtain reparations.187 Although there are criminal provisions for witness intimidation, there is no official system for witness or victim protection or measures during

178 Chapter VII, para. 5, Linas-Marcoussis Agreement of 24 January 2003, ICC-02/11-01/11129-Anx17-tENG. 179 Law No. 2003-309. 180 Article 4(d). 181 Article 5. 182 The peace agreement also specified that the national reconciliation government to take measures to compensate and rehabilitate the victims of the conflict, on the basis of the report of the National Human Rights Commission; Chapter VI, para. 4. 183 A/RES/60/147, 2005. 184 Article 2, Ivory Coast Criminal Procedural Code. 185 Articles 409, 469–472, and 412. 186 Article 413. 187 See FIDH report Note 170.

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court proceedings.188 In practice the Ivorian judicial system has been ravaged by the conflict and political hegemony, which has undermined judicial independence.189 Furthermore, there are no provisions in place to inform victims of participation in criminal proceedings or to claim damages. In addition, the lack of witness or victim protection has already impacted individuals’ willingness to engage with authorities on the crimes that occurred.190 It is likely that redress for victims will be more forthcoming through the CDVR, and in light of the state’s obligation under Article 10 of the Amnesty Law to provide reparations to victims of international crimes. Where criminal prosecutions do occur, there should be coordination with the CDVR to ensure that victims are able to participate where their interests are affected and that appropriate reparations are provided by both. 3 V I C TI M - O R I E NTATED C OM PLEM EN TARITY ?

In all, the situation in the Ivory Coast represents a genuine effort to ensure accountability for the conflict, with clear political will in developing domestic capacity. It remains to be seen whether the CDVR will result in justice for victims, as the partie civile provisions are unlikely to deliver redress to all victims of the conflict. Particular concerns remain with investigations focusing mostly on pro-Gbagbo forces, despite numerous reports and the Ivorian Commission finding that both sides had committed international crimes. Nevertheless the effect of the ICC and Rome Statute can be seen in the Ivory Coast’s approach to accountability, especially in relation to its amnesty law. It will be interesting to see whether the ICC and Ivorian government can complement each other in delivering justice to all victims of the conflict. 6 Libya a Situation and case background before the ICC The Libya situation was referred to the ICC by the UN Security Council in February 2011 after widespread violence by the Libyan government against civilians who were protesting as part of the Arab Spring uprising.191 The ICC issued arrest warrants for three members of the Libyan government including the former Libyan Head of State Muammar Gaddafi, his son and former de facto Libyan Prime Minister Saif Al-Islam Gaddafi, and former head of military intelligence Abdullah Al-Senussi, for their criminal 188 République de Côte d’Ivoire, Loi No. 81–640 du 31 Juillet 1981 Instituant le Code Péna, Article 253; see HRW Note 162, pp. 54–55. 189 Amnesty International Note 175, p. 68; HRW Note 162, p. 41. 190 HRW ibid., p. 54. 191 UN Security Resolution 1970 (2011), S/RES/1970 (2011).

Victim-orientated complementarity 271 responsibility for commission of murder and persecution as crimes against humanity. Rebel forces overthrew the Gaddafi regime in late 2011 with the assistance of NATO air strikes, and killed Muammar Gaddafi during a firefight in Sirte in October 2011, thereby terminating the case against him before the ICC. Saif Gaddafi and Abdullah Al-Senussi were apprehended and transferred to Libyan government custody, but the government refused to cooperate with the ICC in transferring the suspects to the Court. However, as of yet no indictments have been issued against rebels or NATO forces, despite documentation of atrocities.192 b Domestic developments – victims and complementarity Domestic developments in the Libya situation have been highlighted by the admissibility challenges by the Libyan government to have Gaddafi and AlSenussi tried in Libya rather than The Hague. The Libyan government’s two admissibility challenges against surrendering Gaddafi and Al-Senussi to the ICC have been met with mixed results; the first was rejected by the PTC-I for Gaddafi, but the second was accepted for Al-Senussi, discussed further below.193 The Libyan government based their admissibility claims on the grounds that the Libyan judicial system is willing and able to provide a fair trial to the two suspects. There have been a number of developments to address the Libyan conflict domestically, through the passing of the Transitional Justice Law in September 2012, which includes the establishment of a National Fact-Finding and Reconciliation Commission to investigate human rights violations and a victims’ compensation fund.194 In practice for victims the admissibility challenge at the ICC by the Libyan government in the Saif Al-Islam Gaddafi case raised concerns of whether there is effective domestic legislation covering international crimes which recognises the harm suffered by victims, and whether the state is able to hold genuine investigations and prosecutions in light of provisions for victims.195 192 Report of the International Commission of Inquiry into Libya, UN HRC, A/HRC/19/68, March 2012; Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya, HRW, May 2012; Death of a Dictator: Bloody Vengeance in Sirte, HRW, October 2012. 193 Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi, ICC-01/1101/11-344-Red, 31 May 2013; Decision on the Admissibility of the Case against Abdullah Al-Senussi, ICC-01/11-01/11-466-Red, 11 October 2013. 194 Report of the International Commission of Inquiry on Libya, UN Human Rights Council, A/HRC/19/68, 2 March 2012, para. 108; an amnesty law was also introduced, but excluded a number of serious crimes such as murder, rape, and torture, and does not affect victims’ right to restitution or compensation; ibid., para. 109. 195 These two issues stem from the language of Article 17(1)(a): having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where: ‘The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.’

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1 L E GI S L A TI O N ON IN TERN ATION AL C RIM ES

With regards to the domestic legislation to cover international crimes, Libya is not a State Party to the Rome Statute, owing to the situation being referred to the ICC by the UN Security Council. The concern here with admissibility is whether the Libyan government investigation against Gaddafi, based on domestic crimes, sufficiently covers the same person and conduct as the case before the ICC,196 in order to allow the Libyan government to exert its jurisdiction over the case. Notwithstanding the Libyan government’s intention to incorporate a bill on international crimes, the cases against Gaddafi would be based on domestic crimes of murder and torture,197 not the international offences of murder and persecution as crimes against humanity, which he was sought before the ICC. Pre-Trial Chamber I held that ‘the assessment of domestic proceedings should focus on the alleged conduct and not its legal characterisation’.198 Furthermore, the Chamber found that investigating and prosecuting an individual under ‘ordinary crimes’ could be sufficient, provided they cover the same conduct, with the absence of Libyan law to criminalise crimes against humanity not making a case admissible before the Court.199 On the basis of the evidence submitted by the Libyan government, PTC-I found the conduct being investigated by Libyan authorities to be the same as the ICC. The issue with this finding is that in relation to victim recognition the reliance on ordinary crimes does not properly characterise such atrocities. In the Gaddafi case the suspect is being investigated for his use of militias and the apparatus of the state to carry out murder and persecution against the civilian protestors and opponents of the Gaddafi regime on a widespread and systematic scale. Although the Libyan authorities are investigating international crimes by relying on witness statements to evidence such use of militias and state involvement.200 Defining such offences as merely ‘ordinary crimes’ negates the links between the individual murders and persecution of civilians by failing to acknowledge the mass scale, state involvement, ideological motivation, and gravity of such atrocities, which factually characterises and distinguishes them from domestic crimes. As a result of accepting such legal characterisations of international crimes as

196 Prosecutor v Lubanga, Decision concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, 24 February 2006, para. 31. 197 As well as incitement to civil war, indiscriminate killings, misuse of authority against individuals, arresting people without just cause, and unjustified deprivation of personal liberty pursuant to articles 368, 435, 293, 296, 431, 433, and 434 of the Libyan Criminal Code. 198 Prosecutor v Saif Al-Islam Gaddafi, ICC-01/11-01/11-344, para. 85. 199 Ibid., para. 88. 200 Ibid., para. 134.

Victim-orientated complementarity 273 ‘ordinary crimes’ as sufficient, the ICC is failing to properly ensure that states are complementing the ICC and, in more general terms, to encourage that accurate facts and the truth emerge from such domestic processes. This may be a more common limitation of criminal law and trials in addressing mass atrocities, and in ensuring some form of accountability for international crimes at the domestic level. Yet if we want to enable victims to participate in proceedings, claim reparations, and to assist in the determination of truth and justice, the way in which we define atrocities will act as a gateway to access such provisions. 2 V I CTI M S ’ A C C ES S TO J US TIC E

The second issue of the admissibility decision concerns victim provisions in the determination of the capacity and willingness of Libyan authorities to investigate and prosecute international crimes. The legal system of Libya is based on Islamic law, which traditionally enables victims to participate in criminal proceedings,201 to claim damages,202 and avail of witness protection measures at the discretion of the trial judge.203 Although these domestic procedures exist, they are not developed to deal with international crimes, involving numerous individuals who may want to participate and claim reparations. Furthermore, protection measures in the Libyan criminal justice system are discretionary and do not provide any special measure for victims or witnesses who testify.204 One of the submissions by the OPCV noted that some victims did not trust the Libyan judicial system, it was ill-equipped to deal with international crimes, and the ICC would be more impartial. They were also concerned that there were no guarantees for them to participate effectively in proceedings, or to obtain reparations or protection measures.205 201 Articles 61 and 173 of the Libyan Code of Criminal Procedure, victims can participate in a criminal investigation individually or through a lawyer; Prosecutor v Saif Al-Islam Gaddafi, OPCV’s observations on ‘Libyan Government’s Further Submissions on Issues Related to the Admissibility of the Case against Saif Al-Islam Gaddafi’, ICC-01/11-01/11-279, 18 February 2013, paras 49–51. 202 Such as Diya Compensation for Killings Pursuant to Law No. 7 of 1988, Prosecutor v Saif Al-Islam Gaddafi, ‘Libyan Government’s Further Submissions on Issues Related to the Admissibility of the Case Against Saif Al-Islam Gaddafi’, ICC-01/11-01/11-258-Red2, 25 January 2013, para. 82. 203 Article 275 of the Libyan Criminal Procedure Code, which includes video link testimony, witness anonymity, and closed sessions; Prosecutor v Saif Al-Islam Gaddafi, Libyan Government’s Consolidated Reply to the Responses of the Prosecution, OPCD, and OPCV to its Further Submissions on Issues Related to the Admissibility of the Case against Saif AlIslam Gaddafi (Libya’s Reply), ICC-01/11-01/11-293-Red, 4 March 2013, para. 64. 204 OPCV’s observations, ICC-01/11-01/11-279, para. 65. 205 Prosecutor v Saif Al-Islam Gaddafi, Observations on Behalf of Victims on the Government of Libya’s Application Pursuant to Article 19 of the Rome Statute, ICC-01/11-01/11-166Red-Corr, 5 June 2012, paras 52–54.

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The Libyan government argued that states do not have to implement domestic legislation on victim participation as part of complementarity or follow the Court’s unique system.206 Interestingly while dismissing the requirement of incorporation of victim provisions within national proceedings, the Libyan government asserted that victim participation before the ICC was largely influenced by a recognition that international trials away from the seat of the alleged criminality lead to a sense of disconnection and disenfranchisement for the victims. A local trial, by its very existence, minimises (if not negates entirely) these problems. The prosecution of international crimes by national courts, regardless of the precise modalities for victim participation, has an important expressive value for victims by restoring the authority of the law where it has been ignored and assisting in strengthening the criminal justice infrastructure . . . it is national proceedings in Libya’s courts rather than the remote confines of The Hague that can best facilitate access and a sense of ownership by the thousands of victims and their families. Indeed, the democratic legitimacy of the current Government and its transitional justice policy is a reflection of the wishes of the victims whose sacrifices made freedom possible for the Libyan people. Thus victim participation was characterised as ensuring local ownership in proceedings. However as the previous chapters have detailed, victim participation is primarily aimed at ensuring victims’ interests are presented and considered, overcoming disconnection and disenfranchisement are not always achieved by local courts, as the experience in other situations attests. As the OPCV pointed out, the Libyan government has yet to detail how it will enable victims to participate and what resources will be put in place to ensure meaningful and effective participation in national proceedings.207 Although states should be providing accountability mechanisms locally, it is about having the judicial capacity and willingness to ensure that victims’ interests are considered and outcomes of justice, truth, and reparations can satisfy their needs. Pre-Trial Chamber I in deciding the admissibility of the Saif Al-Islam Gaddafi case noted the Libyan government’s argument on victim participation, but did not consider it for the purposes of determining ability or willingness. Instead it held that the vagueness of specific witness protection measures in domestic proceedings was a consideration for finding a lack of capacity of the Libyan authorities to investigate and prosecute the case.

206 Libya’s Reply, ICC-01/11-01/11-293-Red, 4 March 2013, paras 57–59 and 64. 207 Prosecutor v Saif Al-Islam Gaddafi, ICC-01/011-01/11-279, para. 52.

Victim-orientated complementarity 275 In contrast the admissibility decision for the Al-Senussi case before the ICC allowed the Libyan authorities to retain jurisdiction over Mr Al-Senussi to prosecute him before domestic courts, despite serious protection concerns, including the kidnapping of his daughter by a government aligned militia as part of their ‘witness protection’.208 For the minute, at least, the judges of the ICC have yet to find that victim participation and reparations measures constitute factors in assessing the ability or willingness of a state to carry out genuine investigations and prosecutions of international crimes. 3 V I CTI M - O RI E NTATED C OM PLEM EN TARITY ?

As the cessation of hostilities in the Libyan conflict is relatively recent at the time of writing, continuing instability with local militias, reconstructing judicial infrastructure and implementing justice for victims have not yet been realised. The Libyan situation does raise issues of victim recognition through the use of ordinary crimes to achieve accountability for international crimes, as it limits recognising the differing levels of responsibility in these international crimes and the specific need for reparations, not just compensation, for victims. That said the Libyan situation itself does indicate the difficulties of domestic capacity to carry out justice for victims of international crimes.

C Victim-orientated complementarity in practice From the examination of these different contexts we can begin to discern the emerging implementation of certain provisions for victims of international crimes. Of course a caveat to victim-orientated complementarity is that it may be difficult to distinguish or even find that the adoption of provisions for victims is a result of the Rome Statute. States themselves have taken different approaches to addressing international crimes, depending on the legal system, but more importantly because of the prevailing political climate both nationally and internationally. Some states, such as Ivory Coast, have promoted victims’ rights, but as of yet lack capacity to implement remedies for victims. States at the other end of the scale have neglected victims and adopted cynical complementarity measures, such as the Special Tribunal in Sudan for the violence in Darfur. There has been some capacity building by NGOs which have promoted the rights of victims, such as the mobile courts in the DRC, but there has not been a coordinated approach by the ICC or the ASP to ensure consistent adoption of measures for victims. This is because it is an international criminal justice system, not a human rights one where responsibility of the state to

208 See Decision on the Admissibility of the Case Against Abdullah Al-Senussi, ICC-01/1101/11-466-Red, 11 October 2013.

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fulfil certain obligations is at the centre of the system. At the ICC such responsibilities for the state have yet to crystallise into clear obligations and monitoring mechanisms. The rest of this section examines in more detail the three elements of: (1) legislation for international crimes to adequately recognise victims; (2) procedural justice for victims; and (3) substantive justice for victims. 1 Legislation for international crimes to recognising victims The implementation and the application of domestic legislation of international crimes is important in recognising victims’ harm and to enable them to access justice. Critical victimology would suggest that to ensure recognition of victims’ harm, characterising certain offences as international crimes better reflects the reality of the harm suffered by victims, as discussed in Chapter 1. In monist countries, where international agreements are ratified into national law it is not always sufficient by itself to ensure compliance with the Rome Statute, such as in the case of the DRC. Dualist countries, where the Rome Statute has to be passed as national legislation before it can become domestically effective as in Kenya and Uganda, face temporal jurisdiction difficulties under the principle of non-retroactivity if international crimes are not already incorporated into domestic law. Article 15(2) of the International Covenant on Civil and Political Rights (ICCPR) stipulates that principle of non-retroactivity is inapplicable to customary international criminal law, providing a basis for investigation and prosecutions of such crimes, but difficulties remain in judges being sufficiently educated and confident in applying such customary international law which does not exist in national law. The DRC experience of judges’ willingness to apply the Rome Statute directly, is tempered by them failing to refer to jurisprudence or to apply the crimes appropriately. This would indicate that there remains a need for domestic legislation which stipulate the definitions of international crimes in the Rome Statute to resolve inconsistencies with domestic criminal law, as well as training for legal practitioners on international criminal law. That said the Rome Statute itself is not a perfect codification of customary international criminal law. As with the other situations it would seem that universal adoption of the Rome Statute209 or at least customary international crimes into domestic law by states, which included provisions for victims would be the best way ensure that there was a sufficient and consistent legal basis for victims of international crimes to obtain justice. As legislation on international crimes is likely to be a legal basis for victims to seek recognition and remedy for their suffering, in situations

209 See the Complementarity Resolution adopted at the Kampala Review Conference, RC/ Res.1, 2010, preamble para. 5.

Victim-orientated complementarity 277 where legislation is adopted after the violence it may mean that victims cannot receive adequate acknowledgement that their suffering was as a result of international crimes. Earlier chapters cited the limited temporal scope limits of the ICC could be overcome by domestic accountability; however, this chapter and the previous one on the Ugandan situation suggest that this may not be the case, due to the issue of inadequate domestic legislation to characterise international crimes or the principle of non-retroactivity of legislation to domesticate the Rome Statute. Really this is a legally constructed problem wherein reliance on law and its principles prevents recognising and remedying victims’ harm. The use of a criminal court as the avenue for redress for victims, as with the ICC, is the source of this problem, as such courts have to ensure that individuals are not punished for laws that were not prohibited at the time of the violence as a principle of the rule of law. Such a position would suggest criminal processes being supported with alternative accountability measures, such as truth commissions and reparations mechanisms to ensure victims obtain acknowledgement and effective redress for their suffering. Although the situations before the ICC have been triggered by different means (UN Security Council referral, state self-referral, or proprio motu), such a distinction has not impacted upon states’ willingness to follow a victim-orientated complementarity. There have been differing levels of state cooperation following a UN Security referral with non-cooperation in Sudan, but efforts in Libya to effectively investigate and prosecute those responsible for international crimes. A similar picture emerges with proprio motu investigations in Kenya and the Ivory Coast. The distinction is more based on the domestic political will, rather than the method by which the situation comes within the jurisdiction of the ICC. There is a bigger concern with situations such as Kenya where politics are invoked such as issues of sovereignty, justice for victims is politicised, and the ICC being characterised as Western imperialism/neo-colonialism by targeting Africans. In a number of situations before the ICC there is a reluctance to adopt legislation which would recognise victims in this way. Furthermore in situations such as Kenya, Sudan, and the Ivory Coast, there is a danger that politicisation of victims, as some are considered more deserving than others, may result in the state and the law itself becoming a source of victimisation through impunity for such crimes and victims not being recognised. This requires intervention by the ASP and the ICC to ensure such impunity does not continue and all victims have the opportunity to access justice. 2 Procedural justice for victims There have been some steps to ensure procedural justice for victims through existing domestic provisions for participation, but there is

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insufficient support, assistance, and protection for victims in proceedings, or capacity to provide information. In all the situations examined there was no dissemination of information of victims’ rights, perhaps the only information for victims was related to consultation of the Truth, Justice and Reconciliation Commission in Kenya. There is a serious concern in all the legal systems, examined in this chapter and the previous one, of the inadequacy of witness and victim protection bodies and measures in court proceedings. As discussed in Chapter 1 victim and witness protection is necessary to secure prosecutions as well as to affirm the security of such individuals after such violence.210 Furthermore the absence of any victim support or assistance means that victims are left to bear alone the psychological and physical burdens of engaging with a court. The inclusion of victim provisions within different situations examined in this chapter reflects traditional criminal proceedings provisions rather than as a result of the impact of the Rome Statute or ICC. As such, civil and Islamic legal systems are more able to provide victim participation and reparation in domestic criminal proceedings consistent with their traditional legal system. That said concerns remain in practice in how meaningful domestic provisions are in the face of international crimes, with procedural rules needing to be reformed to allow collective participation. Moreover, partie civile and other criminal justice based processes that enable victims to claim compensation upon conviction suffer from the same problems as the ICC, of being selective and limited to those who are charged, prosecuted, and convicted of such crimes. To provide comprehensive reparations there is an acute need for State Parties in the aftermath of mass violence to create national reparation mechanisms to remove the burden from victims of claiming reparations through criminal proceedings, flexible evidential rules, and to be more inclusive to all those who have suffered. 3 Substantive justice for victims With regards to substantive justice for victims, as of yet in the situations examined here and in the previous chapter on Uganda, outcomes of truth, justice, or reparation have not been achieved. There are serious post-conflict challenges in securing justice outcomes for victims, such as insecurity and political instability (keeping allies and supporters on board), repairing judicial infrastructure, independence, and building capacity; collecting sufficient evidence; and finding sufficient resources to fund such endeavours. The Uganda case exemplifies the difficulty of countries transitioning from conflict, bringing into question the ability of a state to reform the criminal justice system while dealing with the past,

210 See Mahony Note 138.

Victim-orientated complementarity 279 which is incredibly difficult even when there are sufficient resources and political attention to doing so, such as in South Africa and Northern Ireland. In a number of the situations discussed in this chapter, some of the conflicts are on-going or only recently ceased meaning the analysis here is only short term, and it is hoped in the long term more victimorientated complementarity initiatives can be discerned in such situations. In situations under preliminary examination by the Prosecutor of the ICC there has been some progress for victims’ rights. In Guinea in the aftermath of the massacre of over 150 civilians and the rape of dozens of women and girls in the Conakry stadium in September 2009, over 300 victims have given statements to investigative judges and are participating as partie civile in the investigation into the massacre.211 Although no case as of yet is forthcoming, the attention to victims in the case is noteworthy, by documenting their statements and enabling them to participate from the investigation stage is important in acknowledging their suffering and framing the process around their experience. In Colombia the government has enacted a number of victim laws which enable reparations to be claimed against individual perpetrators and collectively against armed groups, with a subsidiary role for the state if these responsibile individuals and organisations are indigent. Monitoring by the Inter-American Court and Commission of Human Rights is more likely to be an important force of change for victims’ rights in Colombia; the Rome Statute at least has encouraged the investigation and prosecution of such crimes.212 That all being said there are emerging signs of positive victim-orientated complementarity in the situations examined here. Certain perpetrators of international crimes are being prosecuted, victims are bringing compensation cases, and there are some efforts to incorporate victim provisions in domestic legislation. Perhaps the biggest and most promising area for positive victim-orientated complementarity is through transitional justice processes, such as the Kenyan Truth, Justice and Reconciliation Commission. This may seem unsatisfactory on a strict positive complementarity approach that non-criminal justice mechanisms are the best way to realise justice for victims of international crimes. This book has emphasised the limitations of criminal courts in responding to international crimes, as have other commentators. The flexibility of transitional justice processes can enable a greater number of victims to access justice. Of course there are limitations of transitional justice processes, identified in Chapter 1, but where they are used to complement the ICC it is hoped that greater protection of victims’ rights can be ensured.

211 Waiting for Justice: Accountability before Guinea’s Courts for the September 28, 2009 Stadium Massacre, Rapes, and Other Abuses, HRW, December 2012. 212 Isabella Bueno and Andrea Diaz Rozas, Which Approach to Justice in Colombia under the Era of the ICC? International Criminal Law Review 13(1) (2013) 211–247.

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D Conclusion There are tentative signs that in situations before the ICC there is some willingness and development of capacity to provide justice for victims of international crimes at the domestic level to complement the work of the ICC. Developing domestic victim provisions is in line with transitional justice best practices and human rights principles. Nevertheless the impact of the ICC can be discerned from similar provisions being adopted from the Rome Statute into domestic legislation and processes, with the threat of losing jurisdiction over an investigation giving states some impetus to introduce provisions. However, there remains a consistent lack of political will of State Parties to effectively ensure victims obtain justice. As a result, the effects of impunity continue to cause further suffering to victims by states preventing them from obtaining recognition of their harm and an effective remedy. There is a need for the ICC and the ASP to monitor the extent to which states adopt victim provisions to ensure justice for victims of international crimes and to effectively end impunity. Victim provisions to recognition, participation, protection, and reparation should become part and parcel of understanding and enforcing complementarity, if the ICC and State Parties want to fulfil the purpose of the Rome Statute, and to move beyond the rhetoric and structural limitations of the ICC to realise justice for victims of international crimes and to end impunity.

7

Conclusion

There have been numerous victim developments since the inception of international criminal justice. The inclusion of various victim provisions within international criminal tribunals and courts has theoretically broadened their scope from retributive justice to more victim-orientated justice. This book has tried to flesh out the meaning of justice for victims and its application to the International Criminal Court. However, one of the major challenges of meeting victims’ needs within international criminal justice is to respond effectively and meaningfully through a single court to international crimes. International criminal justice thus faces structural limitations as well as political ones, owing to the contentious nature of victims and justice in the aftermath of international crimes, which can result in further friction with the intervention of the international community in domestic affairs. The previous chapters reveal the difficulties in delivering justice to victims of international crimes through the ICC. This conclusion will bring together the key themes discussed in this book, as well as outlining the findings and recommendations, before closing with some final remarks.

A The International Criminal Court: justice for victims? The ICC has made a number of innovations with regards to victims by enabling them to participate, avail of protection and support measures, and to claim reparations. The first ten years of the Court’s existence has involved eight situations and 21 cases, though all have focused on crimes in Africa. The prosecution of a number of perpetrators of international crimes does try to tackle the impunity of such crimes and the denial of victims’ recognition, such as charges of genocide in Darfur, ethnic conflict in the DRC and Kenya, and sexual violence in the Central African Republic. The Lubanga case and the situation in Northern Uganda have highlighted the plight of children in conflict and the illegality of recruiting them into armed groups. The intervention of the ICC in Uganda established the importance of victims as part of the transitional justice process. As such, the ICC can be seen to have to some influence on states

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in recognising the importance of victims in dealing with international crimes. The difficulty remains in developing such gains into more substantive developments for victims at the domestic level. Using the theory of justice to victims constructed in Chapter 1, this book makes four findings: (1) the role of victims in proceedings is symbolic and they have yet to fully realise their substantive rights; (2) current international crimes of genocide, war crimes, and crimes against humanity may not recognise victims of other comparable serious violence; (3) redressing international crimes and ending impunity requires more than prosecuting individuals due to state and other actors’ involvement in such crimes; and (4) State Parties are responsible for complementing the Court through investigations, prosecutions, and reparations. 1 Justice for victims at the ICC is symbolic First, with regards to victims’ role in proceedings at the ICC being symbolic, this can be seen from the limitations placed on victim participation in Chapter 3 and the reliance on the resources of the convicted person and the TFV in reparations discussed in Chapter 4. This is consistent with the findings of Letschert et al. who also believe the Court can at best officially acknowledge victims’ suffering.1 A symbolic role for victims at the ICC is unsurprising considering the nature of international crimes and the limited resources of the Court. In relation to outcomes, in the Court’s first ten years it has only made one judgment in the Lubanga case. This is in comparison to ad hoc tribunals, which in the space of less than 20 years have tried 211 suspects and convicted 116 perpetrators. This underlines the inadequacy of the outcomes of the ICC in its first decade. At the individual level, the introduction of this book presented the testimony of James who witnessed the murder of his family; as Chapter 5 emphasised the ICC has not yet delivered justice to James and other Northern Ugandan victims, rather justice for victims is a ‘song’ which prosecutors and others sing without meaningfully considering victims’ interests. The ICC may from its own perspective provide justice to victims, at least in a retributive sense for those victims participating before the Court. This perspective may be valid in terms of the purpose of international criminal justice to prosecute and punish individual perpetrators. However, as this book suggests, international criminal justice is no longer a legal island unto itself, but is increasingly part of a broader legal landscape of international law and transitional justice in many of these situations where international crimes occurred. Together with the pervasive integration of human rights and insights from critical victimology, victims are considered key stakeholders with emerging rights to protect their interests in both

1 Letschert et al. Ch. 1 Note 143, p. 646.

Conclusion 283 domestic and international mechanisms. Accordingly international criminal justice can no longer be immune from such pressures. Although rhetoric or symbolic justice for victims may be the current approach of the ICC, to be relevant and seen as a mechanism for redress for victims, the Court will need to encourage states to implement justice for victims to overcome its structural limitations and to move beyond the rhetoric to realising redress for victims of international crimes. International criminal justice does need victims, as discussed in Chapter 1. Henham suggests that victim provisions are possibly included in the ICC to improve its legitimacy by giving the appearance that it provides justice to victims procedurally and substantively so as to ensure their cooperation.2 It could be said that the justice for victims is symbolic for this reason. It is also worth noting that not all victims may want to participate at the ICC for their own safety or personal, social, or cultural reasons. However, in light of developments and standards established in international, human rights, and national law, justice for victims is to ensure that the harm they have suffered is effectively remedied. This returns the debate to the notion that justice should respond to those most affected by crime, the victims, as the so-called ‘faces of injustice’. Although victims have the choice of whether to engage with the ICC or not, they need clear information about what the Court can offer them so as to avoid false expectations and secondary victimisation. The ICC itself should try to deliver more meaningful justice to victims in order to ensure its future success. 2 International criminal justice does not recognise other forms of serious violence An apparent issue throughout this book has been the difficulties of victim recognition to acknowledge those individuals and groups who suffer harm as a result of international crimes. The trouble with international criminal law is its limited jurisdiction and selective prosecution of crimes, possibly due to insufficient evidence, which can prevent the recognition of victims of international crimes. As discussed in Chapter 1, international crimes involve particular elements that distinguish them from domestic crimes. From a legal perspective in order for international crimes to be applicable they have to fall within the definitions of genocide, war crimes, or crimes against humanity. However, from a critical victimology viewpoint the effect of serious violence on victims in light of the five distinguishing elements of international crimes outlined in Chapter 1, may exclude certain victimisation, such as where individuals are subjected to genocidal acts, which seek to destroy them in whole or as a part as a political group, civilians who are

2 See Ralph Henham, Conceptualising Access to Justice and Victims’ Rights in International Sentencing, Social and Legal Studies 13(1) (2004) 27–55, p. 30.

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victims of indiscriminate violence by an armed group, which does not rise to the definition of a non-international armed conflict, or victims of rape or disappearances that do not satisfy the requirement of ‘widespread’ or ‘systematic’. As such, these individuals and groups are denied recognition and therefore justice, despite suffering serious collective violence which should be the concern of the international community. There are other serious concerns from a critical victimological perspective of the politicisation of violence and victims: why prosecute crimes in Kenya, but not Syria, why Libya, but not Sri Lanka? Victims have suffered immensely in these situations, but because a state has not signed up to the Rome Statute, or members of the UN Security Council have not referred the situations in Syria or Sri Lanka to the ICC, there is a disparity in justice. If such suffering is a serious concern to the international community it should demand justice for those victims. However, political and strategic interests of states can counter such demands and deny recognition and justice to victims. A critical victimology approach to international crimes would also suggest that states should see the Rome Statute as the minimum of international criminal justice, as other violence which causes similar suffering to victims, but falls outside the legal definitions or temporal jurisdiction, should be redressed by states, due to the serious suffering such violence causes. Such serious harm requires substantive justice outcomes of truth, justice, and reparations. Perhaps this is due to the criminal component of international criminal law and the issue of non-retroactivity. If so then other transitional justice mechanisms should be used and perhaps a broader construction of crimes against humanity for the purposes of only reparations could be considered. Thus the focus of victim-centred justice would be on remedying suffering, rather than basing justice on identification, prosecution, and conviction of perpetrators. 3 Ending impunity requires the prosecution of individuals and the engagement of state responsibility As discussed in Chapter 1 and as the case study in Chapter 5 revealed, states can be involved in international crimes through their actions or inactions. However, as the ICC only addresses individual criminal responsibility of a select number of perpetrators, the causes of victimisation can remain, such as abusive military forces. It is necessary to invoke state responsibility so as to reflect the reality of international crimes and the state’s involvement through its perpetration, collaboration, acquiescence, or failure to protect its citizens. As Chapter 4 mentioned, international law and human rights law have recognised the ‘duality’ of responsibility with international crimes and the need to tackle both to end impunity. Ending impunity for international crimes requires those most responsible to be held to account and remedies provided to victims. As Chapter 4

Conclusion 285 outlined, reparations based on individual criminal responsibility will be insufficient to remedy victims’ harm and cannot tackle the causes of victimisation. Therefore state and organisational responsibility are necessary parts of remedying international crimes and doing justice for victims. Complementarity thus must include this holistic approach to wipe out, as far as possible, the harm caused by international crimes and the effects of impunity upon victims. Accordingly, effectively ending impunity requires both individual and state responsibility. Incorporating such an approach at the ICC would be consistent with jurisprudence established in international law and human rights law. 4 State Parties are responsible for complementing the Court through accountability and reparation mechanisms The ICC has seen a theoretical broadening of justice for victims beyond criminal justice, to include victims’ procedural and substantive rights. However, by itself the Court is not enough. Instead, it requires State Parties to develop remedial mechanisms for victims to ensure their needs and interests are catered for. Thus State Parties are meant to fulfil their obligations under the Rome Statute through complementarity. The danger with international crimes is that the state itself is likely to be involved or large parts of society have participated in or supported such crimes. The notion of justice and recognising victims can be contentious in post-conflict societies, making the state less inclined to deal with such issues. However, this is contrary to State Parties’ obligations under the Rome Statute and in international law. As the examination of the situations before the ICC indicated, complementarity promotes a defendant-focused or retributive conception, which only concentrates on the responsibility of certain individuals, rather than remedying the suffering of victims. Manifestations of positive complementarity, such as the International Crimes Division in Uganda, therefore fail to respond effectively and meaningfully to a significant number of victims’ expectations and needs. This by itself may continue the harmful effects of impunity by denying victims justice and allowing the structures which caused the victimisation to occur to remain in place. Additionally, this could risk future victimisation and conflict.3 As the limitations of the ICC in prosecution and reparations have been made apparent in the previous chapters, State Parties have an obligation to ensure justice for victims. This is consistent with their obligations under the Rome Statute and international law. Otherwise, there will be a real gap in justice and reparations between the ICC and victims relying on domestic courts. As the InterAmerican Court of Human Rights has pointed out, the failure to end

3 See Mamdani Ch. 1 Note 277.

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impunity leads to the defencelessness of victims and chronic recidivism, both of which are contrary to the object and purpose of the Rome Statute.4 The external element of justice for victims at the Court of victimorientated complementarity has not yet witnessed State Parties delivering justice to victims through domestic proceedings. By State Parties not fulfilling their obligations under the Rome Statute it necessarily limits justice to those few who can access the ICC. Accordingly, the ICC can better realise justice for victims within its proceedings and orders, as well as with complementarity. Thus this book makes a number of recommendations which try to bridge the gap between the theory of justice for victims and the practice of the ICC. Such an approach is about moving justice for victims at the ICC from a symbolic function to a more effective remedy that will help to realise victims’ rights and assist the Court in ending impunity.

B Recommendations I Use victims’ applications to acknowledge the occurrence of international crimes Victims’ applications which are examined and accepted by the Court could be used to map out victimisation that occurred as a result of international crimes so as to provide a more accurate historical account. The recording of victimisation could serve to officially and publicly acknowledge victims’ suffering to counter impunity and denial of their harm, as well as to clarify the facts and inform transitional justice processes. This could assist the Court’s reparation orders when it is determining the extent and scale of victimisation for State Parties to complement. To provide a more representative picture the Court may need to carry out more outreach to affected communities to ensure they can submit applications to the ICC. II Victim participation in ICC investigations to protect victims’ interests A role for victims in the investigation at the ICC is consistent with human rights law to guarantee an effective investigation. Judges would need to scrutinise victims’ participation to ensure they are not fraudulent or politically motivated. Participation through VLRs could maintain professional and confidential representation of victims’ interests, while protecting the integrity of the Prosecutor’s investigations. Investigations should be representative of victims’ suffering as far as possible so as to ensure truth and justice. The Pre-Trial Chamber could also provide oversight of the Prosecutor’s discretion so as to guarantee that the interests of victims are being duly considered and that the Court minimises any secondary victimisation,

4 ‘White Van’ case, para. 173.

Conclusion 287 as well as negating criticisms of partial impunity and politically motivated selective justice. III Judges should consider victims’ interests more in the determination of outcomes An almost silent part of Article 68(3) is that victims’ views and concerns are to be presented and ‘considered’ by the Court. The ICC judges have recognised victims’ rights in light of human rights law and victimological research, and allowed them to be represented. However, victim participation has not been meaningful in influencing judicial decision making. This does not require victims’ interests to dominate; rather it means that judges should give more weight to victims’ interests when balancing them against the rights and interests of other parties in making decisions. This may require judges to be more sensitised to victims’ perspectives and needs through training in this emerging and growing area, so as to ensure their participation is meaningful and able to satisfy their substantive rights. On the other side of this, information through outreach provided by the Court and civil society should manage victims’ expectations as to what is possible and what is not before the ICC, to avoid secondary victimisation when expectations are not met. IV Allow anonymous participation and testimony of victims Anonymity is necessary in the aftermath of international crimes to protect victims from further harm. Victims who come before the Court should have access to this level of protection. The Court is obliged to protect victims, who should not have to choose between participation and protection. Thus anonymous and non-anonymous victims should have the same procedural rights before the ICC. Safeguards should be in place to protect the rights of the defendant and ensure the veracity of victims’ identity, such as an independent guardian discussed in Chapter 3. Additionally, as judges will know the identity of the victim or witness they should be able to determine their authenticity, as established in Tadic´ before the ICTY. Together these safeguards should adequately balance the rights of victims and defendants. V Call upon State Parties to complement the Court’s reparations orders For ICC reparations orders, calling upon a responsible state to support the Court’s reparation order is necessary to remedy effectively victims’ harm, as outlined in Chapter 4. Requesting State Parties to provide reparations as part of a reparations order against a convicted person and wider national reparations mechanisms, could ensure an effective remedy to victims both conceptually and practically by providing the necessary resources and institutional capacity. This could bridge the gap between those few before the ICC and other victims of international crimes. Reparations based on state responsibility can more adequately remedy

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international crimes and the effects of impunity which occur and exist due to the actions and inactions of the state. With regards to the Trust Fund, its assistance mandate should remain supporting victims’ rehabilitation needs while they await reparations. The role of the TFV in the reparation regime of the ICC should be limited to just facilitating the transfer of convicted persons’ resources, rather than to fund reparations. In situations such as Northern Uganda where no perpetrators have been apprehended, reparative complementarity should be engaged based on the state’s responsibility. Such an approach would be an important part of delivering some measure of justice to victims and ending the effects of impunity on them. VI Monitor and enforce complementarity to guarantee victims’ rights and to effectively end impunity With regards to complementarity, the Court and Assembly of State Parties should engage in greater monitoring and enforcement of positive complementarity to ensure the mandate of the Rome Statute is being fulfilled. State Parties are obliged under the Rome Statute to investigate and prosecute those individuals most responsible for international crimes. Where they breach this obligation other State Parties could invoke the responsibility of the responsible state before the ICJ to seek fulfilment of its obligations and the provision of reparations to victims, as outlined in Chapter 4. The Court could issue official guidance on how impunity can effectively be ended through complementarity and delineate State Parties’ obligations under the Rome Statute. The ICC should allow State Parties a margin of appreciation in fulfilling their obligations, so as to be flexible to local needs and domestic legal frameworks, provided they effectively and meaningfully ensure victims’ rights. The experience of the regional human rights courts could provide some guidance here.

C Final remarks As the first decade of the ICC has come to a close and over 15 years since the signing of the Rome Statute, the international community and states have taken the first few steps in providing justice for victims. The inclusion of numerous victim provisions within the Rome Statute in 1998 was innovative on paper, but the ICC still needs to make them effective and meaningful in practice. Issues remain within the Court in relation to victim participation and reparations being symbolic. On the ground, in the Court’s first state referral of the situation in Uganda, victims continue to suffer the consequences of the conflict, and impunity still prevails. Examination of other situations before the ICC reveals that the Ugandan situation is not unique, as other states have not delivered justice to victims domestically. The ICC and State Parties need to reassess why this is; has the objective of delivering justice for victims and ending impunity been

Conclusion 289 unrealistic or just rhetoric? This maybe reflects the political environment both internationally and locally which impinge on the work of the ICC and domestic implementation of victims’ rights. Although the ICC has been symbolic justice for victims, the Court is also an aspiration to remedy the harm of international crimes and to end impunity. The first decade of the ICC has not seen the realisation of the Rome Statute’s objectives of ending impunity and providing justice to victims, but it does not mean it can never be. Although there are serious challenges facing the Court, it requires thinking of innovative solutions to bring international criminal justice into the twenty-first century by realising justice for victims. The ICC cannot be expected to achieve justice for millions of victims. Key to ensuring this is for State Parties to complement the Court by including victims’ rights in domestic procedures. This book has examined the ICC and provision of justice for victims, and has made a few recommendations to bridge the gap between the two, but due to the complexity of international crimes and victims there is no remedial touchstone. The ICC is just over ten years old, it needs to reflect on its experience in this time, not to neglect situations, and learn how to better deliver justice to victims and end impunity more effectively in its coming years. Numerous disagreements and divergent approaches remain, underlining the need for a theory to guide victims’ role in proceedings of the Court and the practice of State Parties. If we are serious about ending impunity and addressing international crimes we have to start with doing justice for those most affected by them, the victims; only by doing so will international criminal justice be meaningful to victims like James, and help to mitigate the recurrence of international crimes in the future. Fundamental to this is recognising that justice for victims begins with the state; the ICC is only a court of last resort.

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Index

access to justice see justice, access to accountability 36, 146–7, 151, 203, 205, 216–19, 227, 236, 242, 255–6, 277, 285–6 Acholi 197, 199–200, 206, 277 Acholi Religious Leaders Peace Initiative 200 Acholi War Debt Claimants Association 229 acknowledgement 27, 31, 36–7, 90, 145, 173–4, 205, 230, 264, 268, 277 ad hoc tribunals 64–85; in comparison to the ICC 117–18, 129–31, 134–5, 137, 140, 147–8, 151, 165, 177, 282 adversarial 47, 49, 60, 63, 67, 72, 85, 88–9, 92, 101, 225–6, 261 African Charter on Human and People’s Rights 66 African Union (AU) 250, 257, 264 Akayesu, Jean-Paul 68, 70, 85, 206 Al-Bashir, Omar 183, 249, 257 Al-Senussi, Abdullah 270–5 American Convention on Human Rights 66 amicus curiae 62, 70, 72, 112, 210 amnesty 29, 46, 48, 55; CAR 255; DRC 241n19, 245; Ivory Coast 268–70; Kenya 260; Libya 271n190; Uganda 200–3, 220–2, 225, 230, 232 Annan, Kofi 87, 142 anonymity: ad hoc tribunals 76–8; DRC 247; ICC participation 108–10, 128, 287; ICC protection 135–7, 148; Libya 273n203 apology 16, 27, 42, 47, 80, 125, 173, 180, 182, 217, 220, 230, 260, 263 applications, victims to the ICC 96, 99, 105, 127, 177, 208, 211, 286; collective 111–14

Arab Spring 270 Aristotle 25 Article 68(3) see participation, ICC Article 75; see reparations, ICC Article 79 see Trust Fund for Victims (TFV) Assembly of State Parties (ASP) 56, 127, 155–6, 164, 190–3, 237–9, 237n5–6, 256, 258, 264, 275, 277, 280, 288 Atiak massacre 197 balancing interests 12, 26, 31, 36–7, 45, 50, 71, 75–80, 100–9, 125–6, 128–9, 133–7, 140, 142, 164 Barbie trial 64 Barlonyo massacre 197 Bemba, Jean-Pierre 104, 106–8, 110–11, 113, 118, 122, 177, 254–5 Benito, Odio 124 Bentham, Jeremy 13 Bosnia 68–9, 83 Bozizé, François 122, 253–6 Cançado Trindade, Antônio Augusto 170 Central African Republic 253–6 child soldiers 23, 34, 55, 92, 111, 121, 158, 161, 166, 175, 180–1, 208, 223, 243–4, 281; see also Ongwen, Dominic Chui, Mathieu Ngudjolo 106, 249 Colombia 172, 174–5, 178, 279 commission of inquiry 249–52, 256, 258, 267 compensation 12, 25, 27, 29, 37, 41–2, 94, 102, 146, 151, 163, 168–71, 176, 178–9, 182, 191n297; ad hoc tribunals 66, 83; Darfur 251–3, 256; DRC 245–8; ICTY 83–4; Islamic law 85, 95; Kenya 262–4; Libya 271;

304

Index

compensation continued Uganda 217–18, 219n141, 228–30, 228n203 complementarity 51–3, 55–6, 128, 144, 214–15; negative 51, 235–6; positive 52, 214–15, 236–9; see also victimorientated complementarity confidentiality measures: ad hoc tribunals 75–6, 78; DRC 248; ICC 132, 135; Kenya 262 corrective justice 25, 26, 30, 144 crime of aggression 10n12, 61, 92 crimes against humanity 10, 54, 244–5, 248–9, 251, 254–5, 257, 259, 261, 266, 270, 272, 282–3; ad hoc tribunals 67–8; ICC 148, 174, 178; Nuremberg and Tokyo 61–2; Uganda 205, 223 crimes against peace 61; see also crime of aggression criminal justice theories 12–17; see also retributive justice; utilitarianism Croatia 69 damages see compensation Darfur 183, 249–53 death penalty 245, 252 defendant, rights of 3, 12, 16, 44–5, 50, 56; ad hoc tribunals 76–8, 85; ICC 88, 95, 100–10, 113, 125–8, 135–6, 141–2, 151, 164, 287 Democratic Republic of Congo 70, 92–3, 156, 199, 203, 239–49 deterrence 15, 145 Dialogue, Truth and Reconciliation Commission (CDVR) 267, 270 disappearances 29, 32, 39, 82, 92, 150, 168, 172, 174, 268, 284 distributive justice 25 Drumbl, Mark A. 15–16 dualist 261, 276 Duch (Guek Eav Kaing) 180, 192–3 Duékoué massacre 267 Eichmann, Adolf 64 emotional harm see harm equality of arms 16, 101, 104–5 erga omnes 149, 184, 187, 227, 231, 237–8 European Court of Human Rights (ECtHR) 44–5, 105, 115–16, 136, 171, 178 evidence 14, 36, 39–40, 46, 53, 57, 62–3, 69–73, 93–4, 97, 99, 124, 126,

139, 162–4, 186, 191, 236, 240–2, 247, 250, 254, 266n158, 269, 272, 278, 283; victim participation 102–8, 119–22 Extraordinary Chambers in the Courts of Cambodia (ECCC) 4, 95, 126, 179–80, 192 fair trial 3, 56; rights 45, 60, 76–8, 88, 101–8, 115, 125–6, 136, 242, 248, 271 fairness 24–6, 31, 45, 125, 154 FDLR (Forces Démocratiques pour la Libération du Rwanda) 240 forced disappearances see disappearances gacaca courts 47–8 Gaddafi, Muammar 270–1 Gaddafi, Saif Al-Islam 270–5 Gaza 234n1 Gbagbo, Laurent 111, 114, 265–70 Gbagbo, Simone 266 Geneva Conventions 65, 223, 225, 261 genocide 9–11, 18, 54, 64–5, 68–70, 80–1, 85, 148, 206, 238, 245, 247, 249, 251, 255, 281–3; UN Convention 65, 68 Goudé, Charles Blé 266 guarantees of non-repetition 37, 83, 149, 175–7, 182, 188, 231, 253 guilty pleas 82, 123 Guinea 279 harm 17–21, 91; economic loss 18, 81, 91; emotional 18, 28, 91; indirect 18, 91; physical 18, 27, 81, 91, 137; psychological 18, 28, 81, 91, 137; redress 25, 27, 30–1, 34–6 Harun, Ahmad 249 Hema 161, 240 Human Rights Committee 179 human rights law 43–5, 49–50, 174 immunity 251 impact statement, victim 41, 73, 81–2, 95, 123–5, 262 impunity 30, 44, 51–3 indigent 152, 155, 164, 167, 177, 181, 183, 190, 226, 279 individual criminal responsibility 12, 54, 147–8, 153, 187, 242, 267, 284–5; see also responsibility information, needs 33

Index Inter-American Court of Human Rights (IACtHR) 43–4, 116, 159, 168–70, 172, 174–6, 178–80, 188, 279, 285 interests of justice 53, 120, 209 interests of victims 53, 104, 116, 118, 120, 139, 209 International Court of Justice (ICJ) 148, 188, 191, 231, 247, 288 International Covenant on Civil and Political Rights (ICCPR) 66, 224n179, 276 international crimes 10–12; responsibility for 110, 119, 147–51 International Crimes Division (Uganda) 215, 219, 224–7, 232, 285 International Crimes Division (Kenya) 259 International Criminal Court (ICC) 38; proceedings 86–142; reparations 143–95; see also complementarity, Rome Statute international criminal justice 9–12, 39–41 International Criminal Tribunal for the Former Yugoslavia (ICTY) 64–85 International Criminal Tribunal for Rwanda (ICTR) 64–85 international humanitarian law 9, 36n203, 64, 83, 90, 146, 167n158, 250–1, 267, 269 International Law Commission 88, 151 International Organisation for Migration 84 investigation: obligations 56–7, 119; representative picture 69, 94, 120, 209, 224, 286; victim participation 115–20 Islamic law 60n8, 66, 88, 95, 169n166, 251, 273 Israeli Defence Forces 234n1 Ituri 118, 121, 125, 158, 161, 165, 180–1, 240–1 Ivory Coast (Côte d’Ivoire) 97, 114, 265–70 Janjaweed 183, 249 Juba peace process 215–19jurisdiction: ICC 92–3; ratione materiae 61–2, 67–8, 92, 216; temporal 68–9, 92–3, 204, 208–9, 216, 224, 244, 254, 263, 255, 276–7, 284; territorial 69, 93 jus cogens 9, 148–9, 188n284, 192 justice 25–6; access to 3, 12, 22, 44, 56, 94, 146, 162, 188, 210, 215, 219, 223,

305

226–7, 237, 243, 245, 251–2, 255, 261, 269, 273; corrective 25–6, 30, 144; distributive 13, 25–6, 30, 145; procedural 31–4; reparative 50, 185, 194, 264; restorative 41–3, 47–9, 89; retributive 12–15, 26, 36, 46, 61, 94–5, 123–5, 232, 253, 264, 282, 285; right to 35–6, 81, 85, 89, 96, 100, 102, 121–2, 126; substantive 34–7; victimcentred 44, 48, 56, 94, 100, 143–4, 146, 146n20, 176, 180, 194, 284; victim-orientated 2, 45, 56–8, 77, 82, 86–7, 90, 100, 105, 107, 119, 125, 128, 133, 140–2, 146n20, 231, 281 justice for victims 37–41, 55–6, 281–6 Kant, Immanuel 13 Karadžic´, Radovan 80 Katanga, Germain 106, 177, 240 Katyn massacre 62 Kenya 97, 102, 118, 140–1, 181–2, 256–64; Truth, Justice and Reconciliation Commission 259–60, 263–4, 279 Kenyatta, Uhuru Muigai 141, 257–8 Kenyan Truth, Justice and Reconciliation Commission (TJRC) 259–60, 263–4, 278–9 Kirsch, Phillipe 128 Kony, Joseph 197, 201, 209, 211 Kosovo 69 Kushayb, Ali 249 Kwoyelo, Thomas 5, 217, 220–6 legal aid 127, 164, 252 legal representation see victims’ legal representatives (VLRs) Leipzig trials 59 Lendu 161, 240 Libya 270–5 Linas-Marcoussis peace agreement 268–9 Lord’s Resistance Army (LRA) 156, 197–233, 255 Lubanga, Thomas 92–3, 100, 103, 106–7, 111, 120–7, 139, 240, 281–2; reparation decision 157–62, 165–7, 173, 175, 177, 180–2, 191, 194 Lukodi massacre 198 Lukwiya, Raska 201 McGonigle, Brianne 4, 105, 114, 119 Mali 234n1 mato oput 219, 219n141, 227

306

Index

Mbandaka case 245–6 Mbarushimana, Callixte 240 measures of satisfaction 37, 173–6, 182, 188, 192, 217, 228–9 memorials 37, 150, 174, 178–80, 184, 192, 218, 228, 228n203, 230, 260, 263, 268 Miloševic´, Slobodan 69, 71, 77–8, 80, 120 mobile courts (DRC) 242–3 Mobutu Sese Seko 241 monist 243, 255, 268, 276 MONUSCO (UN DRC peacekeeping force) 242, 248 Mouvement de libération du Congo (MLC) 107–8, 118, 122, 245, 254 Mudacumura, Sylvestre 240 Mukura massacre 230 Museveni, Yoweri 197, 206 NATO 271 nebenklage 94, 126 Nikolic´, Dragan 82, 180 non-governmental organisations (NGOs) 72, 87, 92, 96, 151–2, 165, 184, 256, 275 non-retroactivity, principle of 223–4, 251, 261, 268, 276–7, 284 Northern Ireland 22, 279 notification 74, 100, 111, 162n128 Ntaganda, Bosco 99, 240 Nuremberg Tribunal 15, 59–64, 73, 87, 148 Odhiambo, Okot 201, 221 Office of the Prosecutor (OTP) 51–2, 137, 204, 211–12Office of Public Counsel for Victims (OPCV) 96, 111–12, 166, 210, 255, 273–4 Ongwen, Dominic 23, 201, 204, 207, 209, 221 Otti, Vincent 201 Ouattara, Alassane 265–70 outrages upon human dignity 223 outreach 74, 111, 156, 191, 203, 211, 217, 226, 286–7 Papon trial 64 participation 33, 49–50, 282, 287; CAR 255–6; collective 110–15; complementarity 238, 278; Darfur 251–2; DRC 245–6; ICC 94–128; investigation 115–20, 286; Ivory Coast

268; Kenya 263; Libya 274–5; modalities 71–3, 100, 102–8, 113, 116; purpose 95–6; Uganda 225–6; see also nebenklage; partie civile partie civile 94, 126, 163, 192, 245–6, 248, 255, 269–70, 278–9 Peace Recovery and Development Plan (PRDP) 230 pension 168, 170, 193, 263 personal interests 98–100, 103, 126, 164 Pikis, Georghios 101–2, 128 Plan de Sánchez massacre 172 privacy 27, 33–4, 75, 129, 131–2, 136, 138, 217, 247 private prosecution 41, 95, 95n49, 116n179, 261 procedural justice 31–4; ad hoc tribunals 71–81; ICC 86, 93, 100, 111, 115, 128–9, 139–42; Nuremberg and Tokyo 62–3 proprio motu 257, 265, 277, 97 prosecution 116; obligations 46, 51, 56–7, 71, 119, 149 protection 28; ad hoc tribunals 66, 74–81; DRC 247–8; ICC 109, 131–41; Ivory Coast 269–70; Kenya 262–3; Libya 273; Nuremberg and Tokyo 63; Uganda 217, 226; see also anonymity; confidentiality measures; redactions radical evil 14, 123 rape 19–20, 61–2, 68–70, 72, 74, 80–1, 123–4, 172, 198–9, 222–3, 240, 243–4, 246, 248–51, 254, 257, 265–6, 268, 279, 284 Rawls, John 26 recognition 21–4, 33, 283–4; ad hoc tribunals 67–71; CAR 255; Darfur 251; DRC 243–5; ICC 90–4; Ivory Coast 268–9; Kenya 261; Libya 272–3; Nuremberg and Tokyo tribunals 61–2; Uganda 204–9; see also victim(s), recognition reconciliation 15–16, 28, 46–8, 55, 64–5, 84, 96, 123, 125, 156–8, 171, 174–5, 181, 200–1, 213, 217, 268 redactions 74, 115, 131, 134–5, 138, 141, 211 Redress Trust 112, 210 Registry (ICC) 96, 111–12, 114, 126–7, 165–6, 194 Regulation ‘55’ 120

Index rehabilitation 14, 18, 34, 37, 75, 131, 155–6, 171–2, 180, 190, 192, 212, 213, 217, 228–9, 253, 263, 288 relocation 74, 131, 138–9, 248 remedy 29–31, 35–8, 43–4, 145–6; see also reparations reparations 143–95, 217–8; CAR 256; collective 179–81; community 180–2; complementarity 187–95, 231; Darfur 252–3; ICC 143–95; individual 178–82; Kenya 263–4; obligations 148, 162; proceedings 162–7; right to 36–7, 162; symbolic 173, 179; types 167–83; Uganda; see also compensation; guarantees of nonrepetition; measures of satisfaction; rehabilitation; responsibility; restitution reparative complementarity 187–95, 231 reparative justice 50, 185, 194, 264 responsibility 146–50; armed groups (organisational) 149–50, 182, 285; individual 12, 54, 147–8; international 149; state 54, 147–9, 173, 185–92, 284–6 restitution 25, 37, 42, 63, 67, 83, 147, 151, 153, 168–71, 178–9, 188, 217, 251, 261, 263, 269 restorative justice 41–3, 47–9, 89, 103 retributive justice 12–15, 26, 36, 46, 49, 61, 94–5, 123–5, 232, 253, 264, 282, 285 Rome Statute 92, 163, 284; drafting 38–9, 87–90, 95–6, 110, 129, 151–3, 172–3, 189; see also ICC Rule 85 see victim(s), definition rule of law 14, 40, 96, 277 Rules of Procedure and Evidence (RPE) 87–91, 96, 100, 102, 113–14, 129, 132, 136, 140, 157, 167, 173, 180, 258 Ruto, William Samoei 141, 257–8 Rwanda 10–11, 48, 64, 68, 70, 72, 74, 79–81, 239–41, 247; see also ICTR Rwandan Patriotic Front (RPF) 70–1 Sang, Joshua Arap 141, 257–8 satisfaction see measures of satisfaction Schabas, William 127, 157 sentencing, Nuremberg and Tokyo 63; ad hoc tribunals 81–2; ICC 123–5 sexual slavery 62, 64, , 68, 70, 92, 120, 198, 223, 244

307

sexual violence 20, 34, 281; ad hoc tribunals 68–9, 72, 84; CAR 254; Darfur 249, 251–2; DRC 240, 243–4, 247; ICC 92, 106, 112, 114, 121–4, 131–2, 140, 157; Ivory Coast 266; Kenya 257; Uganda 223 Sierra Leone: Special Court 50, 84; Truth Commission 50, 84 Songo Mboyo case 244, 248 South African Truth and Reconciliation Commission 48 Special Criminal Court on the Events in Darfur (SCCED) 250, 275 special measures 132–3, 139, 141, 247, 273 Special Tribunal for Lebanon 95 Steiner, Sylvia 1107 128 subsidiary, principle of 150, 164, 190–1, 279 substantive justice 34–7; ad hoc tribunals 81–4; ICC 86, 89, 96, 116, 120, 142; Nuremberg and Tokyo 63–4 Sudan see Darfur suffering see harm Tadic´, Duško 68, 75–8, 136, 287 Tokyo Tribunal 59–64, 73, 87 torture 19, 29, 39, 48, 68, 81, 115n172, 147, 155, 168, 170, 174–5, 178, 188n287, 197–9, 205–6, 223, 243, 246, 249, 251, 254, 260, 268, 272; UN Convention against Torture 66 traditional justice 55, 125, 252–3, 273, 284; Uganda 201–2, 219, 219n141, 227 transitional justice 45–9, 176 treatment: ad hoc tribunals 66, 74–81; ICC 128–41; Nuremberg and Tokyo 63 Trust Fund for Victims (TFV) 108, 131, 152, 154–7, 183–5, 204, 212–14, 218, 252 truth commissions 47–8; DRC 242n20; Ivory Coast 267, 270; Kenya 259–60, 263–4, 279; South Africa 48 truth, right to 35, 81–2, 85, 89, 96, 100, 102–8, 120–3 Turkish Military Tribunal 59 Uganda 92, 97, 131, 156, 184, 196–233 Uganda Victims’ Foundation (UVF) 210 Ugandan army (UPDF) 198

308

Index

Ugandan Human Rights Commission 228 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victim of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UNBPG) 89, 91, 144, 146, 180, 187, 191, 239, 269 UN Claims Commission 83n193, 170 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 17, 26, 32, 65, 67, 89, 91, 94, 98, 129, 139, 159, 171, 239 UN Security Council 64, 67, 83–4, 87, 190, 249, 252, 257, 264, 270, 272, 277, 284 Universal Declaration of Human Rights 65 UPC (Union des Patriotes Congolais) 121–2, 161, 182 utilitarianism 13–15 victim (s): ad hoc tribunals 71–80; agency 21, 33–4, 37, 107, 113, 144, 184; assistance 34, 278; blame 20–3, 63–4, 80; complex 23, 31, 37, 202 (victim-perpetrators); concept 17; definition 19–22, 67, 90–1, 94, 138; eligibility 159–62; ‘ideal’ 21, 31; impact statements (see impact statements); ICC 94–6, 100, 103–6, 116, 121, 123, 129–41, 164, 172; intimidation 76, 78–9, 137, 141, 182, 247, 262; label 21–4; legal persons 90–1, 160; needs 26–9; participation (see participation); recognition 21–4, 33, 204–9 (see recognition); responsibility 19–20, 31, 37, 202, 208; rights 31, 184; secondary 18; support 89, 278; tertiary 18; see also justice; reparations; truth victim-centred justice 43, 48, 56, 94, 100, 143–4, 146, 146n20, 176, 180, 194, 284

victim-orientated complementarity 56, 234–9; in practice 275–80 victim-orientated justice 2, 45, 56–8, 77, 82, 86–7, 90, 100, 105, 107, 119, 125, 128, 133, 140–2, 146n20, 231, 281 victim-witness 60, 62, 73, 78–80, 140 victim participation see participation victim provisions see participation; protection; recognition; reparations; treatment victim recognition see recognition, victim victims’ legal representatives (VLRs) 99–100, 103–7, 110–14, 117–27, 132, 164–6, 262, 286 victims’ rights see victim (s), rights victimisation 2, 7, 10–11, 17–24, 27–8, 30–1, 34–5, 37, 61, 65, 69, 93, 104, 106, 108, 146, 161, 170, 176, 181–2, 189–90, 197, 199–200, 202, 208–9, 213, 225, 231, 237, 253, 277, 283–7; secondary 31–2, 58, 62, 71, 78–81, 86, 122, 132–3, 181, 194, 231, 283–7 victimology 19–20; critical 20, 24, 31, 54, 69, 92, 137, 276, 282–4; feminist 20; radical 20; positive 19–20 Victims and Witnesses Unit (VWU) 96, 130–1, 137–41, 211–12Victims’ Declaration see UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Victims Participation and Reparation Section (VPRS) 96–7, 113 victor’s justice 22, 54, 62, 70, 207 Waki Commission 258–9 war crimes 10, 54, 61, 148, 206, 208, 223, 244–5, 249–51, 254–5, 281–3 witness 12, 18–19, 28, 33, 39–40; ad hoc tribunals 66, 74–81; ICC 109, 131–41; Nuremberg and Tokyo 60, 62–3; see also protection; relocation Women’s Tribunal on Japanese Military Sexual Slavery 64