Reparations and Assistance for Victims: Lessons from the ICC and Colombia

This post is based on my new paper in the International Journal of Transitional Justice’s forthcoming special issue, “Reconsidering Appropriate Responses to Victims of Conflict,” guest edited by Juan Mendez. Comments are welcomed!

In March 2015, the Appeals Chamber of the International Criminal Court issued its first-ever judgment on reparations, in the Thomas Lubanga Dyilo case, confirming the Court’s historic commitment to moving beyond retributive justice for victims of the gravest crimes. At the same time, it urged the Court’s Trust Fund for Victims (TFV) to issue assistance measures to victims who fall outside the scope of victimization determined at trial [Reparations Judgment, para. 215]. The use of assistance to complement, fill in, or expand reparations programs is both novel and increasing in international law and transitional justice, yet there is little research focused specifically on their combination.

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A Peace March supported by the Colombian Victims’ Unit, which implements reparations and assistance for victims of the armed conflict. Source: Victims’ Unit

In my paper in the forthcoming special issue on victims in the International Journal of Transitional Justice, edited by Juan Mendez, I present two contemporary examples where reparations and assistance are being combined for victims of grave crimes: the ICC’s forthcoming reparations awards in the Democratic Republic of the Congo [see here and here] and Colombia’s recent reparations program – Law 1448 – for victims of its armed conflict.

The relationship between ‘reparations’ and ‘assistance’ exposes fundamental tensions at the heart of transitional justice: between inclusive and exclusive approaches to reparative justice; between the legal strictures of redress and the complex realities of violence; and, ultimately, between the supposed symbolic power of reparative justice and victims’ experience of reparations in practice. While scholars and practitioners often assume that reparations and assistance are clearly distinct, their combination suggests otherwise. Both the ICC and Colombian cases highlight that the line between reparations and assistance can become blurry in practice. They can look similar in form, have similar impacts, be distributed through similar processes and, I argue, impart similar notions of responsibility and recognition to victims of grave crimes and gross violations of human rights.

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Call for Papers – ICTR Legacy Symposium – Deadline 15 August

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The International Criminal Tribunal for Rwanda has launched a call for papers for an International Symposium on the Legacy of the ICTR to be held in Arusha, Tanzania on 6-7 November 2014.

With the ICTR’s closure scheduled for 2015, the Symposium aims to provide an opportunity for experts in the field of international justice to reflect on the ICTR’s contributions to the development of international humanitarian law, administration of justice, and promotion of the rule of law, particularly in the Great Lakes Region. We invite experts in the field to submit proposals for papers to be presented during the Symposium.

Applicants should submit the following by 15 August via email to the ICTR Legacy Committee at ictrlegacy@un.org: (1) a 300 word abstract of the proposed paper; (2) the author’s name, title, and affiliation (if any); (3) the author’s Curriculum Vitae/Résumé; and (4) the author’s contact details including phone number and email address.

The Legacy Committee further notes that “successful applicants will receive an invitation to submit a paper by 5 September 2014 and a first draft of papers will be expected to be submitted by 17 October 2014. Submission of an application will be considered as acknowledgement that the author is available to be in Arusha from 5-8 November 2014 to participate in the Symposium. The ICTR will endeavour to cover travel and accommodation for successful applicants.

Papers should focus on the topics indicated in the draft programme, which can be found at http://unmict.org/ictr-remembers/docs/legacy_symposium-draft_agenda.pdf

Rwanda 20 Years Later

by Jacqueline Murekatete

Jacqueline Murekatete is a New York-based attorney, a human rights activist, and a Women’s Media Center SheSource Expert. She is currently working on a book about her genocide experience and prevention work as well as starting a human rights organization through which she plans to continue her advocacy and raise support for genocide survivors. The following is cross-posted from the Women’s Media Center, where it was first published on July 2, 2014.

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A remembrance ceremony for families killed during the genocide. photo courtesy of GAERG (a Rwandan-based survivors’ organization)

About three years ago, I returned to Rwanda for the first time since the 1994 genocide. Upon returning to the village where I grew up, I was both saddened and angry as I realized there was no sign my family ever lived there. Yams and cassava were growing in the same spot where my family’s home once stood. Horrific memories came flooding back.

From April to July of each year, Rwanda and the world commemorate the genocide. This year marks the twentieth anniversary of the genocide. But for those of us who lived through it, in some ways, it may as well have been yesterday. Even today, I am deeply troubled by the memories of those 100 days in which neighbor turned against neighbor, friends became enemies, and even priests and nuns actively participated in the killing of those who sought refuge in churches.

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How Do Witnesses Feel Testifying Against Accused War Criminals?

By Stephen Smith Cody and Robin Mejia

Stephen Smith Cody directs the Atrocity Response Program at the University of California, Berkeley’s Human Rights Center, where he designs and manages research related to human rights violations in the Central African Republic, Democratic Republic of the Congo, Kenya, Sudan, and Uganda. Stephen holds a PhD in sociology and JD, both from Berkeley. You can follow him hereRobin Mejia is a journalist and researcher whose work has appeared in the Los Angeles Times, The Washington Post Magazine, Wired, Nature, Mother Jones and many other outlets. Currently, she is pursing a PhD in biostatistics at UC Berkeley and working as a researcher for the Human Rights Center at UC Berkeley School of Law.

This is cross-posted from The Huffington Post.

A protected witness testifies at the International Criminal Court. Source: Reporting Kenya

A protected witness testifies at the International Criminal Court. Source: Reporting Kenya

Witnesses who testify at the International Criminal Court (ICC) against accused war criminals often take great risks to do so. Yet, until now, their voices have been missing from discussions about how the ICC is fulfilling its responsibility to prepare and protect those who testify.

The Human Rights Center at UC Berkeley School of Law has just released “Bearing Witness at the International Criminal Court,” the first empirical study to document the perspectives of ICC witnesses, many of whom survived heinous violations of human rights. The study surveys more than 100 witnesses from the first two ICC cases, those against Congolese warlords Thomas Lubanga Dyilo and Germain Katanga.

From the ICC’s inception, the Court has set out to serve and protect witnesses who may be survivors of conflict-related sexual violence, genocide, war crimes, or crimes against humanity. Yet this past year has brought allegations of sexual assault committed by ICC staff in the Democratic Republic of Congo and reports of government intimidation of potential witnesses in the cases against sitting Kenyan President Uhuru Kenyatta and Deputy President William Ruto for crimes against humanity.

Scholars and advocates have debated how best to prepare and protect witnesses who testify — basing strategies mostly on anecdotal evidence. Now we have data.

These data show that despite the burden of traveling long distances, often from central Africa to The Hague, to testify, and waiting days or weeks without family or friends before confronting hostile lawyers and the accused, most witnesses reported positive experiences with the Court.

Asked to describe their overall feelings about participating in the trials on a scale of 1 to 5 (least to most positive), women reported an average rating of 4.6, and men 4.4. Fully 96 percent of women and 93 percent of men said they were glad that they had agreed to testify, and most said that they would be willing to serve as a witness again.

“I felt like I was letting go of something I’d been holding on to,” said one witness.

Another explained, “I want to fight against impunity. I want justice to be done.”

Witnesses expressed a duty to testify to ensure an acknowledgement of the killing of loved ones, neighbors, and colleagues.

“I felt naked, very exposed, vulnerable,” said one witness interviewed for the study. “I felt a very heavy responsibility having to take part in the process of justice.”

Although most witnesses had no previous court experience at home or abroad, they reported that pretrial orientations and support services helped assuage their anxieties.

“All the information, preparation, and advice I received helped me a lot,” said one witness. “This made it easier for me during my testimony period.”

Witnesses reported feeling safe during their preparation for trial as well as afterward, with women feeling slightly more secure than men.

However, the findings also reveal ongoing concerns about being identified and targeted. Most women and men reported using some form of identity protection at trial. And many survey participants expressed fear about potential repercussions following trial. “Now, after my testimony, I will have a bigger need for protection,” said one witness.

The study also shows some divides in the ways that men and women experience trials. Women, on average, viewed their interactions with the ICC more positively. Yet only 60 percent of women believed that their testimony helped establish the truth, as compared with more than 70 percent of men.

Also, somewhat surprisingly, only a quarter of witnesses in the study were women, and they provided almost all the testimony on sexual violence. Understanding why women participate in trials at lower rates than men and whether they are being used disproportionately to testify about sexual violence are key issues for the court to address.

Additionally, more data are needed to understand what happens to witnesses when they return home. The Court has developed a survey that is intended to be offered six months after a witness lands back in his or her home country; however, due to logistical, safety and financial constraints, fewer than half of eligible witnesses had been approached to take the survey. Therefore, we can say little at this point about the long-term impact of testifying in international criminal cases.

Protecting witnesses can be challenging and expensive, especially in the long term, and the ICC’s commitment to witnesses after they have appeared at trial is critical.

“Now that I have completed my testimony, I hope the ICC does not abandon us,” said one witness, articulating a looming issue for the ICC and all who care about international justice.

In spite of the limitations of the survey and uncertainty of long-term witness protection, the Human Rights Center’s study suggests that when done right, testifying at international criminal trials can be a safe and even empowering experience.

Katanga Accepts Conviction and Expresses Regret for Victims’ Suffering: What About Reparations?

By Stephen Smith Cody

Stephen Smith Cody directs the Atrocity Response Program at the University of California, Berkeley’s Human Rights Center, where he designs and manages research related to human rights violations in the Central African Republic, Democratic Republic of the Congo, Kenya, Sudan, and Uganda. Stephen holds a PhD in sociology and JD, both from Berkeley. You can follow him here. This is cross-posted from The Huffington Post.

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International Criminal Court staff speak about the Court’s activities to residents of Bogoro, the town in the eastern Democratic Republic of Congo at the center of the trials against Germain Katanga and Mathew Ngudjolo Chui. Source: Human Rights Watch

Few observers expected Germain Katanga, a militia leader found guilty of promoting ruthless attacks on civilians in eastern Congo, to lay down his arms and accept the judgment of the International Criminal Court (ICC). However, according to a statement from the ICC’s Office of the Prosecutor released Wednesday, both the Katanga defense team and the prosecution team discontinued their appeals, making the Court’s guilty judgment and sentence of 12 years imprisonment final.

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The Ntaganda confirmation of charges decision: A victory for gender justice?

by Rosemary Grey

Rosemary Grey is a PhD Candidate at the School of Social Sciences, Faculty of Arts and Social Sciences, University of New South Wales. She has previously written for Beyond The Hague on the possibility of trying persecution on the grounds of sexual orientation under the Rome Statute. Rose can be reached at r.grey@unsw.edu.au and here.

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Nyankunde, Ituri District, Democratic Republic of the Congo. Ituri experienced some of the bloodiest fighting of the Congo Wars. Source: Peter Dixon

On Monday, Pre-Trial Chamber II of the International Criminal Court (ICC) confirmed the charges against alleged war criminal Bosco Ntaganda, the former commander of an armed group active in the Ituri District of the Democratic Republic of Congo called the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (UPC-FPLC). For some background on the Ituri conflict, see previous BTH posts here and here.

The Pre-Trial Chamber’s decision considers several important issues, including the sexual exploitation of child soldiers by their commanders. While the case has been underway since 2006, the charges of sexual violence against the child soldiers are a relatively recent development.

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The Victim in the Security Council

by Chris Tenove

Chris Tenove is a Doctoral Candidate in Political Science at the University of British Columbia. You can find more of his writing at his personal site, from which the following is cross-posted, and follow him at @cjtenove.

On May 22, U.S. Ambassador Samantha Power asked Qusai Zakariya of Syria to stand up in the gallery of the United Nations Security Council. Ambassador Power was in the midst of arguing for a draft resolution to refer the Syrian conflict to the International Criminal Court. She had to justify a resolution that some – including Ambassador Power herself in the past – had suggested could undermine a peace deal, and that was doomed to be vetoed by China and Russia. (Others have commented on the speech and the U.S. strategy, here and here.) Mr. Zakariya, a victim of a chemical attack, would be part of that justification.

Memorial Ceremony Held At UN For Holocaust Commemoration Day

Several scholars have written about how different actors make assertions about victims of international crimes in order to promote their aims or authority. Among others, Kendall and Nouwen argue that “the Victims” is an abstract category that justifies international criminal justice and displaces the voices of actual victims; Sagan has claimed that African war criminals and victims are discursive subjects integral to the project of cosmopolitan liberal justice; and Dixon and I argued that victims are central to claims about legal, expert and moral authority. So it is interesting to look closely at the rhetorical deployment of Mr. Zakariya.

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