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.

UnidadVictimasColombia

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.

Continue reading

Advertisements

Reparations in Ituri: A Long Awaited Judgment in the Lubanga Trial

Yesterday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the appeals against the Trial Chamber (TC)’s Decision Establishing the Principles and Procedures to be applied to Reparations (decision on reparations) in the case against Thomas Lubanga. This landmark ruling, together with the recent judgments in the Lubanga and Ngudjolo cases and the decision not to appeal the trial judgment in Katanga, are clear signs that the ICC is getting ready to deliver its first ever reparations. The unfolding of this reparative process in the Ituri district of the DRC highlights the challenges the ICC faces in trying to reconcile the notion of individual criminal responsibility with the mass scale of the crimes over which it holds jurisdiction. It further provides an acute illustration of the key tensions stemming from the fact that the ICC judicial process aims to be not merely punitive but also reparative.

Ituri District: Where forthcoming reparations will now seek to repair the harm from a war that happened over ten years ago

(For background on the Ituri war and trials, we’ve written extensively about the region, all of which you can find here.)

In its decision on reparations, the TC underlined the importance of reparations, both as a “well-established and basic human right” and as a reflection of the “need to go beyond the notion of punitive justice.” While noting that reparations oblige the convicted person to repair the harm he or she caused, the TC found that they could contribute more broadly to the communities that were affected and assist in promoting reconciliation. In yesterday’s judgment, the AC seems to have adopted the same approach.

Continue reading

Is the ICC’s Trust Fund for Victims a Judicial Entity?

Last week, the Executive Director of the ICC’s Trust Fund for Victims, Pieter de Baan, spoke to the “Group of Friends of the ICC” in New York. This was the first of the Group’s proposed annual “high level meetings” to “highlight the importance of the ICC in relation to accountability, prevention and justice for victims.” This meeting focused on victims’ rights and the need for reparative justice. Mr. De Baan spoke about the work the TFV has carried out under its assistance (or “second”) mandate in northern Uganda and eastern DRC and of the work it may soon carry out under the banner of reparations in Ituri. Other speakers included the trauma expert Yael Danieli and Sandra Uwiringiyimana, a massacre survivor from eastern Congo who came to the U.S. as a refugee. Both Ms. Danieli and Ms. Uwiringiyimana delivered powerful and moving testimonies. The full program is available here.

TFV

The Trust Fund for Victims (trustfundforvictims.org)

The meeting did not, however, venture into the tricky details of how exactly reparations will work at the ICC, still a subject of lively debate almost two years after the Court’s first reparations order (there was also a debate over whether the 7 August, 2012 Decision counted as an order or just as a decision on principles, which I don’t go into here). Indeed, despite the TFV’s valuable experience delivering assistance to vulnerable populations in ICC situation countries, the precise role it is supposed to play in a Court-ordered reparations process is still not clear.      Continue reading