18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 5 (6 December 2019)
Name of the Event: Establishing Reparative Justice for Victims of International Crimes in Africa (Side Event co-hosted by Ireland and the Institute for Security Studies)
Overview by: Andreina De Leo, Junior Research Associate PILPG-NL
Main Highlights:
Presentation of the Report Reparative justice: an afterthought in accountability for international crime.
Discussion on the main shortcomings and challenges of the current reparation framework for victims of international crimes
Summary of the Event:
The side event began with an opening remark by the Ambassador of Ireland to The Netherlands, Kevin Kelly. He emphasized that the topic of the event is of vital importance for Ireland. Indeed, he mentioned that the Irish government contributes to the Trust Fund for Victims (TFV) as it believes in the necessity of supporting victims in their quest for justice and the need of states to take their responsibilities seriously in this regard.
The chair of the event, Allan Ngari, Senior Researcher at the Institute for Security Studies (ISS), opened the discussion. He first presented the report he co-authored on the topic, titled Reparative justice: an afterthought in accountability for international crime, which analyses different methods for redressing victims of international crime. He stressed that an underlying problem of reparative justice is that states often do not consider reparation as part of accountability, but rather focus solely on prosecution, which may be problematic in terms of victims’ rights and their participation in the proceedings. He then introduced the panelists.
The first speaker, Judge Marc Perrin de Brichambaut, Second Vice-President of the International Criminal Court, reflected on the ICC’s approaches to reparative justice, in light of three cases: Katanga, Lubanga and al-Mahdi. In this regard, he recalled that the burden of reparation lies with the convicted person, that the identification of the victim and the determination of the harm is a judicial consideration and that victims have the right to participate in the proceedings. He also stressed that the legal role of the TFV is now clear: framing a Draft Implementation Plan for the approval of the Trial Chamber. However, implementation may lead to difficulties in certain situations, in particular in active or recurring conflict areas. Indeed, he emphasized that, even though a machinery for reparations has been put together, it is not entirely set up and there is still a long way to go to effectively deliver reparative justice to victims of international crimes. In this regard, challenges include the difficulties of the process of identification, as well as protection of vulnerable victims and the relationship between collective reparation and individual rights. In this context, it is particularly important to take the time to listen to the victims’ preferences concerning their expected form of reparation, which is usually monetary compensation, but at the same time managing expectations and convey the message that in certain situations it is just not feasible. He concluded his intervention by stressing that the biggest limit to the delivery of effective reparative justice lies in the fact that reparation is only considered after a conviction. He finally suggested that a fertile ground for solving shortcomings could be exploring the relationship between the reparations and the assistance programs of the TFV, with the idea of starting to prepare reparations on the ground from the very beginning of the procedure.
The second speaker, Dr. Steven Kayuni, Advocate of the High Court of Malawi and ISS Consultant, also focused on the shortcomings of the reparation frameworks for international crimes and on the necessity to have an honest discussion about what is effective and what is adequate not to fail the expectations of the victims. He underlined that states have the main responsibility when it comes to deliver justice for victims and that the responsibility to repair should be conceived as a corollary of the principle of responsibility to protect. He also agreed with Judge Marc Perrin de Brichambaut in prospecting a change in thinking on the structure of the process of reparative justice, whereby reparations should be assessed at the beginning of the case, and not only after a conviction. Indeed, he stressed that acknowledging that people have suffered should be separated from convicting perpetrators. He suggested to introduce the idea of complementary reparations based on working with national institutions to provide redress for victims.
These two interventions were followed by a discussion. Pieter de Baan, Executive Director of TFV, underlined the challenges posed by the fact that victim participation is usually taken on by the heads of households, rather than by all members of the family, which excludes women from participation and Dr. Julie Fraser, Assistant Professor at Utrecht University and affiliated expert with PILPG, reflected on the adequacy of putting too much emphasis on ICC’s reparations. She questioned whether it may not be more appropriate to focus on a state’s human rights obligation, rather than individual criminal liability with regard to reparations. Furthermore, it was also noticed that reparation programs should be accompanied by the enhancement of governmental actions to ensure that victims receive appropriate redress. For example, the ministries of health could be supported in setting up clinics capable of delivering long-term support to traumatized victims.
Finally, Philipp Ambach, Head of Victims Participation and Reparations of the ICC, reflected once again on the importance of managing expectations. Alongside some of the shortcomings discussed, he mentioned that the lack of a direct liaison between the Registry and the victims’ community, as well as the limited information regarding the functioning of the Court, may lead to disappointments and misunderstandings concerning reparations, which needs to be taken into account and reflected upon.