Meaningful victim participation – but only if you can pay for it?

 

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Near Gulu, Uganda

 

On May 26th, the Single Judge of the Trial Chamber IX denied legal aid to 2/3 of victims participating in the Ongwen case – the ICC’s only case so far in relation to the Lord’s Resistance Army rebellion that for years terrorized communities in northern Uganda. The Single Judge’s decision does not come as a complete surprise: it affirms the interpretation of rules on financial  assistance for victims proposed by the Pre-Trial Chamber in November 2015, which I wrote about previously. In a broader perspective, it is not only a decision on legal aid, it is a step towards focusing victims’ representation with the ICC’s Office of Public Counsel for Victims (OPCV) and limiting victims’ procedural rights, specifically victims’ right to choose their legal representative.

Currently, a total of 2064 victims are admitted to participate in the trial, scheduled to begin in December. Why were 1434 of these victims denied legal aid? Have they failed to prove their indigence? Have their lawyers failed to meet the standards of quality and cost efficient representation?  No. The reasons underlying the Single Judge’s decision have nothing to do with the victims’ indigence or performance of their counsel. The 1434 victims were denied legal aid because they agreed to choose the same representative without engaging the Court’s assistance. Unlike the remaining 592 victims, who made no decision on their legal representation and for whom the Chamber appointed the ICC’s OPCV to act as a Common Legal Representative (CLR), these 1434 victims have fully exercised their freedom to choose a legal representative in accordance with the rules. Importantly, their choice has been approved by the Court as being without prejudice to the effectiveness of proceedings. This decision strikes a blow to meaningful victim participation, it is based on a mid-reading of the rules and is inconsistent with previous practice of the Court. Continue reading

Representation of victims in the Ongwen case

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The Hague to Gulu, Uganda (photo: Google maps)

The confirmation of charges hearing in the case of Dominic Ongwen has begun. Many victims of the conflict in northern Uganda have been waiting for this moment for the past ten years. More than 2000 victims had been admitted to voice their views and concerns in the case brought by the Prosecutor against one of the top LRA commanders. How will they do that? Through their legal representatives standing in a court room in The Hague, 10,000 km north of where most of the participating victims reside.

Inclusion of victims in the ICC proceedings has been and continues to be one of the most hailed features of the Rome Statute system. There are many doubts, however, as to how it is being implemented. In light of the ongoing (never ending?) debate on “meaningful participation” of victims in ICC proceedings, it is worth looking at the recent developments in the Ongwen case regarding victims’ representation. The effectiveness of victims’ participation in the ICC proceedings depends largely on the performance of their counsel.

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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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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.

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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What does recognition mean?

[updated 11 February, 2014]

The element of recognition that is part and parcel of reparations, and that makes them different from mere compensatory schemes, will typically require targeting victims for special treatment. This is part of what it means to give them recognition.

– Pablo de Greiff

It’s well-accepted today in international justice circles that victims want recognition. It’s also well-accepted that recognition is good for victims. Mariana Goetz of REDRESS said recently, for example, that “the quality of the recognition that the process provides [victims] may be more important than the final result.” But what does recognition mean? And how is it good for victims of grave crimes?

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Source: Report of the Panel on Remedies and Reparations for Victims of Sexual Violence in the Congo (OHCHR)

On the one hand, there’s the assumption that victims want to be recognized as such. “Victims have indicated they want to be recognized by the international community at large,” according to the Registry, “as victims of the crimes committed against themselves, their families, neighbors, and ethnic groups.”

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The latest twist in the case of Thomas Kwoyelo

by Paul Bradfield

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Thomas Kwoyelo awaits the start of his trial in Gulu, July 2011. Photo: Justice and Reconciliation Project

A few days ago, former Lord’s Resistance Army (‘LRA’) rebel commander, Thomas Kwoyelo, seemingly made a direct appeal to President Yoweri Museveni to be pardoned for crimes he is alleged to have committed in northern Uganda during the civil war. In an interview with the government-sponsored newspaper, the New Vision, Kwoyelo is quoted as saying:

“Having undergone various rehabilitation programmes, I have realised my past mistakes like any other Ugandan who erred.

I pray that the President gives me a second chance in life.” Kwoyelo, who is currently on a peacemaking and reconciliation programme, said he has benefited from the course and pledged to practice what he has learnt because it calls for reconciliation with God and the society he wronged.

“I am willing to work with the Government at all cost. Once considered for clemency, I swear never to go back to rebel activities,” he said.

This plea for clemency, and the timing of it, is intriguing for a number of reasons. But first, some background and context for those not familiar with the case of Thomas Kwoyelo.

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