Longing for a Lost Ideal: The Historic Struggle for Jerusalem’s Temple Mount

Dome of the Rock

 

Dome of the Rock

Dome of the Rock, April 2017. Picture by Laurien Vastenhout

 

By Laurien Vastenhout

 

During last month’s Pesach, tensions raised in the Old City of Jerusalem, Israel. Religious Jews had sacrificed a lamb close to the Temple Mount, an area administered by a Muslim religious trust. A few weeks before, the Israeli High Court had upheld the police decision to block a Passover reenactment on the archeological site close to the Temple Mount. Instead, the group was allowed to have the ceremony at the heart of the Jewish Quarter, outside the Hurva Synagogue, only a few hundred meters way from the Temple Mount. Despite some setbacks– the electricity went out for more than two hours, no famous rabbis attended, and the priests ‘ran out’ of blood from the lamb even before they reached the specially prepared vessels – the activists still rejoiced. This was the first time the reenactment had taken place so close to the Temple Mount. At the end of the same month during Yom HaShoah. Jewish Temple Mount activists hung a protest placard at the entrance to the Temple Mount, protesting against its closure to Jews on Israel’s Holocaust Memorial Day. This article examines why the Temple Mount continues to be a recurring source for controversy and struggle, both to Jews and Muslims.

 

Wandering around the area of the Temple Mount and the Western Wall, one can find Jews who are collecting money for ‘the reconstruction of the Temple’. After they have donated money, tourists receive a small red bracelet in return. However, it seems as if many of these tourists do now know that a reconstruction of the Temple unequivocally means that the Dome of the Rock, the Islamic shrine with its characteristic golden cupola, has to be removed first. The Dome of the Rock dates from the 7th century when Caliph Abd al-Malik erected the glorious octagonal building (by then not yet capped by the golden dome). The building is said to house the rock on which Abraham bound Isaac for sacrifice. Also, this was the place where the prophet Mohammed rose from the earth on a winged steed to meet Abraham, Moses and Jesus in heaven. The rock, as the story goes, wanted to follow, but as Mohammed pushed it back to earth, he left a footprint on it which is still to be seen today.

 

The construction of the Islamic shrine followed centuries of power struggles within the city between, amongst others, Christians, Romans, Jews and Ottoman Muslims. On the exact same place, Herod’s Temple had been standing centuries before, which in turn had replaced the First Temple, Salomon’s Temple. Salomon’s Temple had been destroyed by the Babylonians in 586 BCE. In 70 C.E. Herod’s ‘second’ Temple*, by then the largest and most awe-inspiring religious monument in the world – glittering with gold and shining white stone –, was destroyed by Titus, the Roman Supreme Military Commander. After two destructions, the Temple would never be resurrected again. To Jews, similar to Muslims, the site is a Holy place. Inside the first Temple, in Holy of Holies, the Ark of the Covenant was located, constructed during the Israelites’ wandering in the Sinaï desert and an important symbol of the Jewish faith. The Ark symbolises the only physical manifestation of God on earth as its construction had been commanded by God to Moses. Although the contents of the Ark have been debated, there is a general consensus that it contained the tablets with the Ten Commandments. To Jews, the Temple is therefore much more than just a building. As a result, the last destruction in 70 C.E. has incited an unprecedented sense of longing and feeling of religious loss.

 

The destruction of the last Temple has become a symbol of human search for a lost ideal. The rituals that have taken place at this site are recorded in an extraordinary level of detail and show the religious importance and centrality of the site. No wonder that the capture of Jerusalem during the Six-Day-War in 1967 and the subsequent capture of the Temple Mount by the Israelis aroused feelings of excitement. Up until then, the site had been ‘lost’ to the Jews. At the end of this war, Israeli Minister of Defence Moshe Dayan proclaimed that the Israeli government wanted to preserve religious freedom for all faiths in Jerusalem, handing over administrative control of the Temple Mount compound to the Jordanian Waqf – a Jordanian appointed Islamic body – while the overall security of the area was maintained by Israel. Jews could visit the Temple Mount, but were not allowed to have religious services at the site as this is now considered a prayer site for Muslims. This is still the reality today. It should be noted here that Orthodox Jews are not allowed enter the site until the Messias comes **. This is why the Rabbi has forbidden them to enter the site, as a sign at the entrance to the Mount indicates. This clearly illustrates the different ways in which the Temple Mount is approached by various Jewish groups in Israeli society.

 

Throughout history, the site has incited actions that experts refer to as ‘the Jerusalem Syndrom’ – a religious madness which comes to a head in the shadow of the Temple Mount. In 1969, a non-Jewish Australian tourist set fire to the Al-Aqsa Mosque, situated on the Temple Mount, claiming he was ‘the Lord’s Missionary’. In 1982, an Israeli soldier went on a shooting rampage in the Al-Aqsa mosque because he hoped to become King of the Jews by liberating the spot. The recent actions can be seen in this light as well – extremist groups try to enlarge their authority on the site and feel it is their right to use the site as a place of religious enactment and remembrance. Despite, or because of, their perseverance, rules at the Temple Mount are strict and seem to have become even stricter over the past years – one is not allowed to bring any religious objects to the site, nor to pray on the Temple Mount.

 

The longing for the lost Temple has resulted in the establishment of Talmud Schools, where scholars are being trained in the rituals of priesthood in case a new Temple is built. Some Rabbis also claim they know the whereabouts of the Ark of the Covenant which was located in the First Temple until its destruction. Although organisations such as the “Jerusalem Temple Foundation” or “the Temple Institute” have been in a constant battle with the state of Israel, the recent acquittal of the youngsters who protested at the closure of the site during Yom Hashoah, might indicate that government policies are shifting.

 

Without doubt, the Temple mount is a symbol that goes to the heart of the Israeli/Palestinian conflict. Over the past years, the Israeli government has at times closed the entrance to the Temple Mount, claiming that the atmosphere was too tense. In doing so, they withheld Arabs to pray at the site which, in turn, led to serious political tensions and protests. Far more than a physical site, the Temple Mount, on which the Temple itself is ironically absent, has become a spiritual and political site, loaded with meaning. It is a monument of the imagination for the Jews and a the oldest existing religious Islamic monument which is, after Mecca and Medina, the third important religious site to Muslims.

 

*  Depending on whether your count Zerubbabel’s Temple a building in its own right. In 538 BC, Zerubbabel, the leader of the tribe of Judah, was part of the first wave of Jewish captives to return to Jerusalem. He immediately began with the rebuilding of the lost Temple of Solomon. However, he had much fewer resources.  There was a group of Jews in Jerusalem who were rather disappointed with the Temple. To their minds, it did not even begin to compare with the splendor of Solomon’s temple.

** Religious Jews do not consider Jesus as the Messias and are still waiting for the coming of the Messias.

Film Review: A Good Wife – The Family Life of a War Criminal

Film poster to A Good Wife (Dobra Zena)

 

Film poster to A Good Wife (Dobra Zena)

Film poster to A Good Wife (Dobra Zena)


By Koen Kluessien and Marieke Zoodsma 

 

Perhaps one of the most disturbing (moving) images from the wars in the former Yugoslavia are those shot on the so-called Scorpion Tape. The tape is named after the paramilitary unit that produced the video, Škorpioni – who curiously named themselves after their favorite weapon, the Škorpion vz. 61 machine pistol. The Scorpions, founded in 1991, were a Serbian nationalist paramilitary group consisting of several hundred armed groups who were involved in multiple combat operations during the wars. The full-length 2-hour tape depicts the activities of the unit between 1994 and 1995, with the Trnovo murders in July 1995 as its disturbing climax. It shows how members of the unit transport six Bosniak men who were captured after the fall of Srebrenica, physically and mentally abuse them, and finally execute them. In Serbia, where a culture of denial about (Serbia’s involvement in) the war crimes is widespread, the video caused huge commotion after it was made public in 2005 during the trial of Slobodan Milošević, leading to several arrests of those Scorpion members captured on the tape.


So, one might ask, who kept the tape for all these years? Who knew about its existence and why did that person come forward with it after ten years? A Good Wife (Dobra Zena)
, one of the featured films of the Movies that Matter Film Festival 2016 and now On Tour, questions such as these are cleverly intertwined in the storyline. The film shows the family life of one of the members of the Scorpion unit, several years after the war. It is reminiscent of the ordinary life of a mobster that is told in the HBO series The Sopranos, in which the story focuses on the criminal activity of mafioso Tony Soprano but primarily aims to depict the everyday life of his family. This is also the aim of A Good Wife: instead of outlining the life of Serbian paramilitary Vlado (who even has an uncanny resemblance to Tony Soprano: fat, slightly balding, and with an appearance that breathes authority) it focuses on his wife Milena. The film asks the question what the family members of a paramilitary – or a mobster for that matter – know, and more importantly, want to know.


According to sociologist Stanley Cohen, this paradox of both knowing and not-knowing lies at the heart of the concept of denial (read here Marieke’s article on current day examples of denial and Koen’s article on genocide denial by Serbian politicians). Denial is intrinsically partial as some information is always registered. What is important is what one does with that information. Milena knows her husband was in the military during the war and we see her watching the news about the aftermath of the mass atrocities committed by Serbian units. However, she does not ask him any questions, not even when she sees him getting heavily agitated after watching a human rights activist comment on the war crimes on the television. She has a suspicion but does not have an “enquiring mind”, as Stanley Cohen would call it.


Alienation and demonization are often heard reactions to distance oneself from the cruel actions of perpetrators of mass atrocities. It is easier to see perpetrators of mass violence as intrinsically evil people. They can thereby remain the so-called “Other”; something that stands so far from us that we do not truly have to understand it. A Good Wife excellently depicts the opposite. It provides the audience with a unique insight into the ordinary life of a war criminal, when the violence is over and life turns back to “normal”. Yes, Vlado is easily annoyed, has a bad relationship with his eldest (progressive) daughter, and is still an overt believer of the nationalist Serbian cause – but furthermore comes across as the average husband. We see him buying jewelry for Milena’s birthday, sitting at the head of the dinner table, and going out together with friends. As the film progresses, however, coping techniques cannot hold back his lingering trauma and it starts to affect his family life.


The key scene in the storyline of A Good Wife is the moment when Milena finds a copy of the Scorpion tape in one of her husband’s drawers. Unaware of what the tape actually contains, she turns it on and sees her husband and his comrades commit the above-described crimes. Heavily upset she turns it off. The leading question of the film remains, now that she cannot deny the involvement of her husband in these crimes, what will she do with the evidence?

 

The actual Scorpion tape was found by Nataša Kandić, a human rights activist from Belgrade, who tracked down one of the Scorpion members that was in possession of the tape. There had been twenty copies, but when Slobodan Medić Boca (the commander of the Scorpions) realized that the images could be used against him, he ordered the destruction of the footage. However, one Scorpion who was not present at the executions and did not have good relations with his former comrades made an extra copy and hid it in Bosnia. On the same day, the tape was sent to the Special Prosecutor for War Crimes in Belgrade and to the Office of the Prosecutor at the ICTY. When the video was played in Serbia, it was the first time Serbia was confronted with a crime committed by Serb forces in Bosnia.

 

Serbian politicians later acknowledged the crime. At that point it seemed like the Serbian “state of denial” was about to change and Serbians would be ready to deal with their past. Indeed, many people still give credit to the tape for “sending shockwaves through society”. Unfortunately, the truth is slightly different. Quickly the discourse changed back to usual statements showing the unwillingness to confront the past. The taped killings were relativized by pointing out crimes committed against Serbs that were still unpunished. When asked why the video had not had more effect, Dejan Anastasijević, a journalist for the newspaper Vreme, responded: “Public opinion [has been] cemented by now – it’s been 10 years. All I can say is that the capability of the human mind of refusing to face unpleasant facts keeps on amazing me”.

 

A Good Wife depicts the family life of a war criminal as if they were your neighbors. Hopefully, it will also prove to be not only a thought provoking film filled with well-written symbolism and moving actors but also a step forward in taking down the wall of denial in Serbia.

 

 

Elections in the Netherlands: what the outcome of the Dutch Elections says about the universality of human rights

Demonstration for the rights of refugees in Lausanne, France on 15 September 2015  (cc-by-nc-nd)
Demonstration for the rights of refugees in France on 15 September 2015  (cc-by-nc-nd)

Demonstration for the rights of refugees in France on 15 September 2015 (cc-by-nc-nd)

 

By Arja Oomkens -

 

“Will you consider the rights of children when you vote this week?”

- “Sure! Who are you going to vote for?”

“I don’t have a residence permit, so I’m not allowed to vote.

- “Really, how come? Your Dutch is perfect!”

 

Last week, Anood (22) campaigned for children’s rights before the final debate on the Dutch parliamentary elections in The Hague. Her goal was to encourage young adults to go and vote, and for them to consider their impact on the protection of human rights. She described to passersby her daily reality of feeling Dutch while living in fear of being sent back to Iraq – a country that she has no connection with, because she grew up in the Netherlands. She hoped to engage youngsters to think about the significance of their vote: “Especially during elections, citizens cannot avert their eyes. Every vote makes a difference.”

 

In 2008, Anood fled with her family from Iraq to the Netherlands. Nine years later, she has a high school degree and studies biology in The Netherlands, speaks fluent Dutch, and has built up a large network of friends. And yet, every day Anood wakes up with the possibility of being sent back to Iraq. How is it possible that she still has no residence permit?

 

In 2012, the newly elected members of parliament were posed similar questions. This resulted in arrangements being made for a so-called Child Pardon Act. The aim of this act was to grant residency to children who had resided in the Netherlands for at least five years. For the first months of 2013, this policy worked reasonably effectively. But after May 2013, the criteria became so strict that hitherto 95% of children’s applications have been rejected.

 

The main reason for rejection is the fact that the legal status of children depends on the actions (or inactions) of their parents or guardians. For example, children who apply for the Child Pardon Act are rejected if their parents do not “cooperate” with the authorities by leaving the Netherlands. When parents are awaiting appeal in their own asylum-procedure, they are expected to leave the Netherlands during this period, and take their children with them. For this reason, the Child Pardon Act did not offer a solution to Anood, and more than thousand other children. These children are punished based on the unreasonable criteria their parents have to fulfill.

 

The Child Pardon Act is an illustrative example of the overly strict and inadequate immigration law and policy in the Netherlands. Being too restrictive, it unfairly excludes children who have resided in the Netherlands for over five years, leaving them with no clear future perspective.

 

It also illustrates how political (and public) support for the rights of refugees, and in effect human rights, has eroded over the past few years in the Netherlands. The outcome of last week’s elections confirms this. Despite Anood’s plea, the results show that the majority of Dutch citizens did not vote for the universality of human rights. For various reasons, many Dutch citizens see their own rights eroding and are inclined to vote for right wing parties that promise their protection. While Prime Minister Mark Rutte made some highly controversial statements during his election campaign, his political party still became the largest in parliament. In his most widespread election-statement, a letter to “all Dutch citizens,” Rutte stated: people “who come to our country […] misuse our freedom and spoil everything” must either “behave normally, or go away.”

 

This normalization of the use of discriminatory language is a cause for concern. By alluding to immigrants in his election-statement, Prime Minister Rutte generalizes all immigrants as belonging to the same group, blaming them for all sorts of disturbances in Dutch society. First of all, from a legal perspective, this is problematic since the protection of human dignity and non-discrimination are considered universal and fundamental in European and international law, whereas Rutte implies that such rights are rather relative. Second, the normalization of such discriminatory language has great implications on a societal level, as it constructs and reinforces a social hierarchy between people, and groups of people, and furthers polarization. In the run up to the elections, Dutch-Moroccan producer Abdelkarim El-Fassi pointed out how he experiences this polarization on a personal level. While he grew up in the Netherlands and has always been open-minded, the current political debate makes him want to withdraw into the Dutch-Moroccan community.

 

To create space for understanding individual situations, such as the situation of Anood and her family, steps must be taken to condemn the normalization of discriminatory language. One option is via legal avenues, such as the Dutch court that found far-right leader Geert Wilders guilty of inciting discrimination against Dutch Moroccans – although this arguably worked out to his advantage. Therefore, most importantly, discriminatory language must be condemned by public opinion. A first step in this direction is to engage in personal contact. In doing so, individuals and groups move closer to each other, and towards a more cohesive society – as a recent study by Dutch news website De Correspondent aptly illustrates. Through an open and active attitude of Dutch residents, and by having voices like Anoods be heard – as well as the many other diverse voices of people in similar situations in the Netherlands – it becomes easier to sympathize with one another.

 

“Citizens cannot avert their eyes,” Anood said during the election campaign. When open communication and condemnation of discriminatory language becomes the norm, there is no need to fear for the devaluation of human rights as universal values. As the conversation between Anood and a man on the street in The Hague shows, there is a great discrepancy between the urgency of the plight of refugee and immigrant children in The Netherlands and a general understanding of their situation. Because of the open conversation Anood initiated there in The Hague, this man can put a face and voice together with a clear example of the inadequacies of Dutch immigration policy. But not all people in situations like Anood’s are fluent in Dutch or have a platform to tell their stories. Hopefully, her example can serve as an opportunity to open up the debate; to move beyond the current rhetoric, and inform people of the restrictive immigration policies enforced throughout the country on people like Anood, who have as much right to be here as any other Dutch person.

 

 

 

 

 

 

Populist rivalry: Trump’s impact on the future and politics of Israel

Trump_CPAC_2011

 

Trump_CPAC_2011

 Trump speaking at CPAC 2011 (creative commons).

 

By Laurien Vastenhout

 

After a period of disbelief and evasive responses, the world now has to face that Donald Trump is President of the United States. To the extent possible, Trump’s measured victory speech in November was ‘hopeful’; at least his tone had softened somewhat. It was not unthinkable that he had played a harsh election campaign, but in practice would be more appeasing. These were encouraging signs. However, the interview with the UK’s Times and the German tabloid Bild last week indicated that there was no moderation after all. With Trump’s support of the UK’s ‘hard’ Brexit, and China’s president Xi Jinping’s announcement to protect the world’s economy against Trump, it seems that the entire world politics and economy is about to change over the course of the coming months and years. One of the crucial topics that has to be examined in this context is the everlasting conflict between Israel and Palestine in the Middle East and the role of the United States herein. A friend and true (financial) supporter of Israel for many years, Trump is about to break with the decades of cautious US policy vis-à-vis the conflict. What can we expect from the Trump administration in the Middle East? And is Benjamin Netanyahu, current Prime-minister of Israel and chairman of the right-wing Likud Party indeed as happy with the Trump’s support as it seemed in his tweet of December, 28 2016, in which he thanked Trump for the warm friendship and clear-cut  support for Israel? This article seeks to create insight in the multiple dangers that lie ahead.

 

There are two individuals Trump nominated on central positions who we should investigate more closely: David Friedman, appointed ambassador to Israel, and his son-in-law Jared Kushner. Friedman is a pro-Israel hardliner, and strongly opposes the two-state solution. Being part of Trump’s advisory team, David Friedman co-authored a 16-point action plan in November last year in which his views on the difficult situation in Israel/Palestine are outlined. The Trump administration will ensure that ‘Israel receives maximum military, strategic and tactical cooperation from the United States’, the plan stated. Between the lines, one can read the rejection of the apparent ‘anti-Israel’ attitude of the United Nation (UN) members– see the recent United States Security Council resolution from which the US abstained –  and a strong support for an undivided Jerusalem capital. The latter is a highly sensitive topic as Palestine seeks to maintain the Eastern part of Jerusalem as future capital of Palestine, while Israel believes all of Jerusalem should belong to their country. The attempted relocation of the Main Office of the US Embassy from Tel Aviv to Jerusalem therefore is an important indicator of the political line chosen by the Trump administration. Moreover, Friedman is president of the American Friends of Beit El, which supports Israeli hardline settlement movements and believes that Israel is legally entitled to annex the West Bank.

 

Trump’s son-in law Jared Kushner, who is appointed to orchestrate a deal between Israel and Palestine has no experience with politics in the Middle East at all. Although, as an orthodox Jew, he is undoubtedly concerned with the area, his complete unfamiliarity with both Israeli and Palestinian politicians is disquieting. Kusner’s links to a far-right Jewish settlement in the West Bank, to which he donated money, are not very promising either. Clearly, the settler movement will have solid backing in Trump’s administration. Palestinians and their allies have repeatedly called on the UN to force Israel to stop with the settlements as it causes hindrance to serious negotiations. As a result, one of Trump’s major political goals, to reach an agreement in the ongoing conflict, seems a utopian line of thought. All of these difficulties, added to his wish to pull out of the nuclear pact signed with Iran in 2016, raise concern about the position of Arab countries of the Middle East.

 

Ironically, Trump’s presidency does not only raise difficulties for Arab countries and Palestine in particular; Benjamin Netanyahu might in fact be not so happy with Trump’s involvement in the region either. Netanyahu’s policies on the settlements in the West Bank over the past years can be characterised by ambiguity and delay. By pretending to keep a two-state solution alive, Netanyahu has often safeguarded the support of the United Stated for himself at the cost of more right-wing politicians. Now important positions in the Trump-administration are taken by pro-settler politicians, this tactic has become ineffectual. Haaretz columnist Chemi Shalev has somewhat ironically indicated that Trump is in fact making Netanyahu seem a ‘left wing defeatist’. In practice, this means that Netanyahu’s position is threatened by his far-right Minister of Education and political leader of the extreme right-wing party HaJehoedie (The Jewish Home Party): Naftali Bennett.

 

Bennett has suggested that Trump’s election signals the end of the two-state solution and the attempts to establish a Palestinian state. Obviously, he uses Trump’s to pressure Netanyahu to recognise the settlements as permanent. Through his statements, Bennett has secured the support of the majority of the Jewish settlers. For a right-wing political leader, this support is of key importance. Netanyahu’s recent aggressive response towards the UN resolution to end Israeli settlements in Palestinian territories at the end of 2016, indicates that he feels he has to win back right-wing voters. Both Netanyahu and Bennett are increasingly using right-wing, nationalistic discourse to prevail. In the case of Bennett, it is no secret that he aims to become Prime Minister himself. Not only is this an alarming development in Israeli politics, it also might cause that Jews around the world feel increasingly disconnected with the country. This, in turn, will result in an increasing isolation of the country.

 

The current situation in Israel and the proposed policies of the Trump administration, which do not favour a two-state solution, are thus worrisome. Although supported by the US, Israel will become a lone wolf in world politics due to its increasing hard stance vis-à-vis settlements in the West Bank. Both internal and external forces ensure that a solution to the long-standing conflict seems further away than ever, despite Trump’s genuine believe that his administration will broker an agreement. Bennett’s recent declaration that he will propose a bill to extent Israeli sovereignty to Maale Adumin, the third-large Jewish settlement in the West Bank, shows that a first major step has already been taken. The coming weeks and months we will have to wait and see how US policies unfold in the region. Without doubt, Maale Adumin will be the first test case and major determinant of America’s policies in the Middle East.

Victims and reparations at the ICC

midden logo icc

Logo of the International Criminal Court

 

By Amani Chibashimba (guest writer) -

The International Criminal Court (ICC) was created by the Rome Statute of 1998 in a way to conclude the efforts that have been made to fight international criminality since the end of the Second World War. Its creation is considered to be a success as it derived from a diplomatic agreement between States, which differs from its predecessors, the International Criminal Tribunals (for the ex-Yugoslavia and Rwanda), which were ‘imposed’ by the United Nations. The ICC has jurisdiction over the gravest breach of international law, namely the crimes of genocide, crimes against humanity and war crimes. Since it was established by an agreement between states, it does not have a police force and counts on the cooperation of member states to arrest the accused.

In its efforts to fight international criminality, the ICC has brought many new notions that are very likely to influence the development of international criminal justice and international law. The most interesting innovation though, would be the reparation for victims. This notion is framed in the Rome Statute in a very distinct way, as individuals are going to be obliged to provide reparations to victims, following their sentencing, as provided by article 75(2):

The Court may make an order directly against a convicted person specifying appropriate reparation to, or in respect of, victims, including restitution, compensation and rehabilitation

The challenges of the enforcement of the notion of reparation will be the purpose of this article. In international law, the notion of reparation is not new, but the individuation of the reparation will be quite an innovation. International law recognizes mainly the notion of reparation by states. This has been implemented in several cases, where states were to provide reparation following a judgment in which the states misdeed was proven by law. At the ICC only individuals are judged, therefore the ICC reparation will be imposed following the conviction of an accused individual. Reparation is thus linked to individual criminal liability. The first two convictions at the ICC in the cases of Lubanga (December 2014) and Katanga (May 2014) – both related to the situation in Congo – gave the ICC the opportunity to implement Article 75 for the first time.

On the 7th August 2012 Trial Chamber I of the ICC issued a decision in the case against Thomas Lubanga for the first time on the principles that would be applied to reparations for victims. Here, two challenges were already deplorable: Mr. Lubanga was declared bankrupt and individual reparation for his victims was impossible to conceive. Lubanga was convicted for conscripting and enlisting children under the age of 15 in armed groups and using them to participate actively in hostilities. He was accused to have done this in the district of Ituri, meaning we have countless potential victims from whom to draw those eligible for reparation. Since it was not possible to award individual reparation, it was decided that collective reparation should be awarded by creating activities that would be beneficial for the victims. On 3rd March 2015, the Appeal Chamber issued its final decision on this matter and decided that the Trust Fund for Victims (TFV) should present a draft for collective reparation in this case.

The Courts TFV has been involved in collective assistance projects related to child soldiers in the DRC. When the final decision will be issued, it will be most definitely drawn from those existing projects. Also for this case, since Lubanga is not financially able to provide reparation for its countless victims, the Court has decided that the TFV should be the one presenting a plan for reparation. However, we should be aware that neither the Rome Statute, nor the Rules of Procedure and Evidence (RPE), nor the TFV Regulation mention that the TFV should be a substitute body tasked to provide reparation for a convicted person declared bankrupt by the Court. Nevertheless, TFV regulation 42 states that the resources of the Trust Fund shall be for the benefit of the victims of crimes within the jurisdiction of the Court…”, this is why it was admissible for the Court to order the TFV to act as a substitute body and repair the victims of Mr. Lubanga.

On 27th August 2014, the Courts Trial Chamber II issued an order to the Registry to report on applications for reparation for the case against Germain Katanga, the second case. Unlike Lubanga, Katanga was convicted for crimes committed in a specific village (Bogoro) on a specific day (24th February 2003). Awarding reparation for this case will be dependent on those two elements. In 2003, some 364 victims were recognized to participate in the trial for the Katanga case. These are supposed to be people who have suffered acts for which Katanga was accused, meaning they have suffered from the attack which happened in the village of Bogoro in the morning of the 24th February 2003.

It is important to remember that Mr. Katanga was convicted for much less acts than he was charged. His charges included: willful killing, murder, directing an attack against a civilian population as such, destruction of property, pillage, using children under the age of 15 to participate actively in hostilities, sexual slavery, and rape. However, in his conviction, only four charges were retained: as an accessory for murder (as a crime against humanity and as a war crime), attack against a civilian population as such, destruction of enemys property, and pillaging. This means that not all the victims who participated in the proceedings as witnesses for the crimes he was charged with, will be included in the reparation process. This applies, for example, to women who were raped or enslaved following the attack of Bogoro village.

Looking at these two cases and thinking of what the reparation scheme is going to be, one can see already some challenging aspects which will come out in time of actually awarding reparations or implementing those decisions. We should keep in mind the nature of the crimes and their impact on the victims as well as the essence and meaning of the intended reparation. Despite the fact that the victims in both cases are entitled to reparation, it will be hard to apply the same rules in both situations, as the circumstances in both cases are fundamentally different. However, the reparations will depend on the same three key elements: conviction; definition of beneficiary, and applicability of the principles provided for by the Rome Statute and RPE.

Concerning the conviction in the case of Katanga, it is likely that there will be a lot of frustration as many victims will be excluded from the reparation process because the crimes for which they were victimized were not part of the conviction. It will be challenging to explain to a woman who was raped on the 24th February 2003 during the attack of Bogoro, that she is not a suitable’ victim for this case because the prosecutor did not prove his case beyond reasonable doubt. Does this mean they are not victims? How to recognize their victimhood? This is likely to influence the very essence of reparation and the perception of justice the Court has been striving for. Concerning the definition of victimwho will benefit from reparation, this will be very narrow. In the case of Katanga, only those inhabitants of Bogoro (or strangers who happened to be present there on the morning of the 24th February 2003) who suffered an injury (physical, moral or material) due to the misdeed of Mr. Katanga, shall be considered. However, proving that you were in the village that day will prove to be challenging, especially because everybody fled, some for good, some to return only after many years.

The case against Lubanga opens another practical question: who are victims? Lubanga was convicted for conscripting children in the whole district of Ituri, in which large number of people live. In addition, he committed this crime more than a decade ago, which makes it less likely for the victims to come forward now. Overall, it will be challenging to apply the principles, as laid down in the Statute and the RPE, to actual cases. With regard to, for example, the indigence of the defendants, adjustments must be made. The main reason why those rules have to be laid down is, to my opinion, to make sure that they lay down the path for the development of more adequate and inclusive principles. They should then be flexible.

The final decisions on the reparation for both cases are still pending. It will be interesting to see if there will be similarities between the two very different cases when it comes to applying those principles of reparation. We have already witnessed some of the shortcomings, namely the insolvency of the defendant, the enormous amount of destruction to be repaired, or the huge number of concerned victims. The challenge will be for the ICC to provide for a reparation scheme which will reinforce its legitimacy. Adding to its already controversial review, another failure in the form of ill-placed or unsatisfactory reparations will only serve to decrease its consideration and question its legitimacy.