Hidden layers: ulterior motives for contributing to UN peacekeeping missions

Memorial for the killed Belgian UNAMIR soldiers, Kigali (Rwanda) - by JA ALT, via Wikimedia Commons
Memorial for the killed Belgian UNAMIR soldiers, Kigali (Rwanda) - by JA ALT, via Wikimedia Commons

Memorial for the killed Belgian UNAMIR soldiers, Kigali (Rwanda) – by JA ALT, via Wikimedia Commons

 

By Iona Mulder – 

 

While UN peacekeeping missions have the intention and mandate to bring peace and stability, they come with a cost. Since the first mission in 1948, 3.599 UN-soldiers have died. Certain countries share the biggest losses in peacekeeping soldiers under UN flag: 137 soldiers from Ghana lost their life during a mission, 163 Indian nationals, 122 Canadian, 150 soldiers from Nigeria, 142 from Pakistan, 114 Ethiopian soldiers of which 29 in a relatively recent mission in Darfur, and this list is extensive. What motivates states to send their troops to foreign places to solve conflicts that are not their own? After the members of the Security Council decided to establish a peace mission, the challenge begins to bring together sufficient troops to enable the mission. As the UN does not have its own army, this responsibility falls on the shoulders of its member states. The question whether or not to contribute troops will lead its own political life in every member state country. A good example is the debate in the Netherlands in 2013 on the contribution to the UN mission in Mali. Some parties were against the mission; the SP and PvdSD were of the opinion that the aim of the mission was too ambitious, the PVV stated that it was the responsibility of ‘the Muslim countries’ to control the extremists in the north of Mali.

 

It seems to be expected that those states that are motivated to contribute troops are states that pioneer in the protection of human rights and who are not preoccupied with conflict within their own borders. However, over the last two decades, the opposite seems to be the case, as countries in Africa and Asia were the largest contributors of troops (more specifically Nigeria, Rwanda, and Ethiopia; Bangladesh, India, and Pakistan). These countries are not particularly known for their internal stability, now and in the past, or for their good human rights records. Why, then, do these nations make such effort to bring peace and stability elsewhere?

 

What these countries have in common is that they have little political power within the UN, which is mainly in the hands of the permanent members. Moreover, they share an ambition to expand their political influence in the UN and international politics in general. They believe that delivering troops to the peace keeping mission will develop their political network, creating a political credit that will result in more inclusive politics within the UN. Another motivation for these states to participate is that the UN provides a sum of money to cover the expenses of the missions, which will help to upgrade their army through the received training, the materials and salary. Besides these shared motivations, every government has its own incentive to contribute troops based on the political situation at national level.

 

Rwanda is one of the countries which in recent years contributed a relative amount of troops to UN missions. I will use Rwanda as an example to show how political situations at the national level can motivate the state to contribute to international peacekeeping missions. In 1994, Rwanda itself was subject of a peacekeeping mission to avoid escalation of violence between Hutu and Tutsi: the mission became one of the biggest failures in the history of UN peacekeeping operations. After the killing of ten Belgium blue helmets by Hutu militia, most of the contributing countries decided to withdraw their troops, leaving the Rwandan people to their fate. Between April and July 1994 an estimated of 800.000 people, mainly Tutsi, were killed. Finally, an army composed of Tutsi refugees, the Rwandan Patriotic Front (RPF), invaded Rwanda from Uganda, took over power and put a stop to the mass killing.

 

Since 2004 Rwanda has become one of biggest providers of troops to the UN and the AU (African Union). On their first mission, the 150 Rwandese soldiers received much respect as they were well trained, disciplined, and there is a broad inclusion of woman within their army. Within Rwanda, they are presented as national pride. During my research on how the current Rwandan government is legitimatizing its power, I found that the contribution of troops to the UN is an essential element of the government’s policy. The current government mainly consist of those associated with the RPF, its power in the country is legitimized by the effort to stop the genocide and create a climate of stability and security. At the international level, this legitimization is strengthened by the guilt of international failure to stop the genocide, which puts the RPF on a higher moral level than the international community. Many scholars have called this type of power legitimization “genocide credit”.

 

This “genocide credit” is essential for the Rwandan government for two reasons. First of all, it has made Rwanda a “donor darling”. The relatively rapid recovery of the country after the genocide and continuing economic growth has been made possible due to vast sums of donor money that were pumped in the reconstruction of the country. Now, twenty-two years after the genocide, around half of Rwanda’s national budget is still generated by donors. Much of Rwanda’s national stability is therefore dependent on the continuity of this flow of donor money. Secondly, another effect of this genocide credit is that for many years after the genocide, it was seen as politically incorrect to critically examine the Rwandan government’s policy. As a result, the international community has overlooked or ignored the fact that the Rwandan government’s policy is not as pretty as it seems at first sight.

 

A decade after the genocide the “genocide credit” started to crumble, making space for international criticism on the Rwandan government. More and more foreign countries were criticizing Rwanda for not respecting democratic values and human rights. Moreover, as many countries point out, is that the government’s reconciliation program is resulting in censorship and social inequality. It is here that the peacekeeping missions come into the picture. The Rwandan government needed to revitalize the “genocide credit” by reconfirming its high morale. The peace keeping missions provide the perfect opportunity to do so; contributing to peace and security in the rest of the world, stop genocide from happening in other countries, and help Africa to solve its own in problems. The contribution to the UN peacekeeping missions is thus a way to repaint a positive picture to the world and distract the international community from the negative elements of its national policy. It can be stated that the Rwandan government is abusing the peacekeeping mission to restore its power.

 

The question that remains: is practicing politics by means of UN peacekeeping missions by definition a bad thing? I am of the opinion it is not, only if the motivations of the contributing countries contradict the aims of the peacekeeping missions itself. More importantly, the contribution to peacekeeping missions by relatively smaller and less influential countries can provide a tool for nations to develop political power to oppose the power of the permanent member of the UN – making the UN more inclusive and democratic. The positive contribution of these countries should not be uncritically accepted as a reflection of their national politics, as there is more to it than good intentions. The case of Rwanda is the perfect example.

 

The power of the UN to protect Humanity Part II – The endless conflict in South Sudan

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President Salva_Kiir_Mayardit, UN

President Kiir speaking to reporters before the headquarters of the Security Council, (CC-Photo Credit: Jenny Rockett)

 

By Iona Mulder -

In 2011, the Security Council assigned a peace-keeping mission, UNMISS, to South Sudan to help stabilize this young turbulent nation. In my previous article, I described the bureaucratic progress of the deployment of the mission in South Sudan as the intended ideal process of the founders of UN to protect humanity worldwide. Unfortunately, this positive note does not extend to the actual results of the mission on the ground in South Sudan. There is one thing that can be stated with certainty: the UN (peacekeeping) mission so far has failed its mandate to contribute to the stability of the country, and to protect its population against violence when its government neglects to do so.

The mission started in 2011 to help the government to build the new nation, however, in 2013 the government of South Sudan split into two factions. President Kiir accused the Vice-President Riek Machar of attempting a coup and sacked him and the rest of the Parliament. Riek Machar denied the accusation, stating that the President Kirr was creating a dictatorship. The remaining government and the opposition group of Machar both mobilized their support to pick up arms and fight by their side, leading up to a civil war. As a result of the violence, tens thousands of people have been killed, and over three million people fled their home – resulting in the destruction of South Sudan’s infrastructure and economic system that was mainly based on agriculture and oil. In 2015, a peace agreement, including a cease-fire, was signed between the conflicting parties. But already from the beginning, there was little trust in the implementation of this peace agreement, as it was signed under immense international pressure and the threat of a weapon embargo. In July 2016, new fighting broke out in Juba, the capital of South Sudan, that was being described as widespread ethnic violence by United Nations Special Adviser on the Prevention of Genocide. There were already many previous warnings of massive food shortage all over the country, but in February this year, the UN officially declared a famine in multiple parts of the country. Little blame for the famine can be distributed to circumstances of nature. It is the result of years of fighting, in which the civilians are heavily targeted, and the unjust distribution of the nation’s sources by the government.

How is it possible that one of the world’s most powerful organization in its third largest mission, seems powerless to bring a solution on a political level or provide civilians protection or even humanitarian assistance? Even in the six safe areas that the UN has established around the country, in which an average o f 200.000 people seeks refuge, the mission has been unable to guarantee a place where its residents can feel safe. Sexual violence, as in the rest of the country, is a daily reality and in February 2016 a safe area was burned to the ground, in the outbreak of violence July of the same year the protection side in Juba was heavily attacked. After this attack, the UN-secretary general Ban Ki-moon dismissed the commander of the mission, after it became apparent that the peacekeepers had utterly failed to protect civilians during these attacks, even within the safe area. “The report from a UN special investigation found that a lack of leadership in the UNMISS ended in a “chaotic and ineffective response” during the heavy fighting in the capital, Juba, from July 8 to 11 that killed dozens of people.”

The main reason for the failing mission is the noncooperation and opposition of the government of South Sudan to the mission. The government more than often has denied peacekeepers access to areas where civilians were in need of protection or humanitarian assistance. Although the third biggest mission in the world, the mission does not have the capacity in mandate, staff or material to force such access. The UN does not have its own army but has to rely on the military of the signatory nations. The process of assembling an army or adjust its mandate is a bureaucratic and time-consuming process, making it impossible to respond to urgent matters. Moreover, although the Security Council agrees that UNMISS is necessary for South Sudan, it is unable to make a political fist to fight the Government’s resistance against the mission, because Russia veto’s any resolution that directly affects the South Sudanese Government.

The primary example of these problems is the deployment of the so-called Regional Protection Force. This force of 4000 strong was authorized by the Security Council, including by Russia, in August 2016 after the outbreak of violence in July that year. Due to the bureaucratic process of assembling this force, it was still not ready to operate almost a half year later. Primarily, the South Sudanese Government accepted the force deployment under the threat of weapon embargo. However, in December Russia vetoed a resolution for a weapon embargo, which gave the Government the confidence to refuse the deployment of the Regional Protection Force without facing serious consequences. This refusal led to a further delay, because of the logistical and bureaucratic restraints. Thus, even after hearing warnings in December 2016 that the conflict might escalate into a genocide and a new Security Council resolution for the expansion of the Mission and an urge for a rapid deployment of the Regional Protection Force, the force is now April 2017, still not operating. However, as Casie Copeland of the Crisis Group reported, the mandate for the Regional Protection Force only extents to Juba, while in the meantime the conflict has moved its center to other regions, and it is there that people are in need of protection, not in Juba.

The South Sudanese Government and its political supporters play a political game as they are unwilling to end the conflict. If the UN continues to play this game, it will always be one step behind. There could be an approach by the UN that would help to circumvent this game of the national government. The UN has to switch its diplomatic and military focus from the national conflicts to regional or local conflicts. This approach is especially suitable for layered societies as that of South Sudan. It is often assumed that the national crisis – the conflict between the two former factions of the parliament – is the motor behind most of the violence in the country. However, South Sudan consist of many communities, which are bound by clan, local, family, ethnic or religious affiliations. The national conflict is often used by local communities to sort out their local conflicts with other communities. For example, a village will support the party opposite of their rival neighboring community with whom they have a bone to pick. Moreover, these local communities are the ones with the most interest in peace. It is the civilians who are paying the price of the conflict, not the political or military national leaders.

As the scholar Séverine Autesserre concludes in an article on the conflict in the Republic of Congo, local peace-building and reconciliation will reduce the level of violence on the ground. Her evidence for this argument is the conflict in North-East of Congo that (re)started in the beginning of the nineties. In 2003 a national peace agreement was signed, leading to the withdrawal of international players in the conflict. However, the conflict continued long after, because the local conflicts between the eight different ethnic and local groups in the region were not addressed in the settlement. Thus, local reconciliation could reduce violence after a conflict broke out. Moreover, it could also have a deterrent effect, as the national conflict might still spark the violence, but local settlements minimize the change that the violence is to spread out over the country. Finally, it might even put internal pressure on the government to implement a peace agreement.

Fortunately, in a report written by Secretary-General in cooperation with the African Union, the advice is given to the UN to put more focus on political engagement on a local level, as political solutions at national level seem fruitless, because of national and international unwillingness to end the conflict. As stated in this report: “The Mission’s increased focus on strengthening mechanisms for peaceful coexistence at the community level should be understood as a front-line protection intervention and part of an overarching political strategy.” If the UN can succeed in applying this strategy on a broad basis, they might be one step ahead of those who prefer the conflict to continue and for South Sudan to remain a state in chaos.

There is one issue that remains unsolved, and that is the inability of the UN to intervene adequate to changing situation, because of the slow bureaucratic (and political) process of putting together an peacekeeping army. An analysis of this process will be the subject of the last article of this series.

Mass Atrocities in the Digital Age – Can We Stop a Genocide With Our Cell Phone?

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6573384761_04390963e1_b

Todd Lappin  (CC-BY)

 

By Koen Kluessien -

“Never again” is an oft-repeated quote at Holocaust remembrances and unlike the adagio “lest we forget”, it encompasses a call to action to prevent future mass atrocities. The idea is that through remembering past atrocities history will not repeat itself – a notion that was also echoed in international policies. For example, in 1948 the United Nations established the Universal Declaration of Human Rights, a concept that arose directly from the experience of the Second World War. Still, the declaration’s thirty articles could not stop South Africa’s ruling National Party that was then introducing apartheid as an official government policy. This lack of direct action became exemplary for policies that followed.  In 2005 the Responsibility to Protect (R2P) was endorsed by all member states of the United Nations to prevent genocide, war crimes, ethnic cleansing, and crimes against humanity. However, due to international political divisions, the Security Council has failed to uphold its basic function: the maintenance of international peace and security. Now it seems independent organizations are taking matters in their own hands to prevent and deal with mass atrocities How? Through technology.

Genocides do not happen over the course of a day, it is a long-term and deliberate process. This means that although only military intervention will stop the extermination, there are other means of ending the process before it reaches the phase of mass killing. This is especially important to note given the fact that most national governments and transnational organizations such as the United Nations are reluctant or do not have the resources to intervene. In ten stages Gregory Stanton has explained how the process of most genocides has to go through each of the phases before it can reach a new level. Stanton emphasizes that the ten stages are predictable and above all, can be stopped by preventive measures.

The Sentinel Project is one of many organizations attempting to prevent future genocides with the help of technology and Stanton’s ten stages of genocide. One of the obvious strategies of the organization is to gather information through social media. Twitter and Facebook have already demonstrated to be very successful assets to retrieve information from repressive regimes. A slightly more elaborate endeavor is to ‘crowdsource’ information through mobile phones. Ushahidi (meaning “testimony” in Swahili) is one application through which people have mapped reports of different crises. Through the app, users can retrieve, manage, and map data. This way researchers and policy makers will have a bulk of shared information instead of a number of individual entries. Or in the words of the creators of Ushahidi:

We built software to meet our own needs: the need to tell the story – the many stories – that were unfolding, spreading, exploding in an informational vacuum. We began as technology users who focused on making our own communities more resilient.

 

data-management

Source: https://www.ushahidi.com/

 

Still, these techniques predominantly focus on those phases in the genocidal process in which much of the harm has already been done. The Sentinel Project’s most exciting field of expertise is the area in which technology can play a role in the actual prevention of genocides. Even Hollywood actor George Clooney wants a part in it. Together with the Sentinel Project’s founder John Prendergast Clooney has conceived the Satellite Sentinel Project (SSP), during a joint visit to South Sudan in 2010. The Project produces reports on the state of the conflict in the regions between Sudan and South Sudan. Through satellite imagery and analysis, the project draws up reporting that is then sent to the press and policymakers. Clooney has jokingly referred to it as the “anti-genocide paparazzi”. Although the organization’s  subtitle “The world is watching because you are watching” has a Hollywood-like flair to it, it is a new form of research that is to be taken seriously. SSP has already located numerous human rights violations. The organization was for example the first to find evidence of the destroying of the villages of Maker Abior, Todach, and Tajalei in Sudan’s Abyei region.

 

Satellite_image_of_the_burning_of_Tajalei,_March_6,_2011

Satellite image of the burning of Tajalei, Sudan (6 March 2011). Source: Digital Globe/Satellite Sentinel Project

 

One does not have to be a spy anymore to use satellite imagery. These days, there are numerous companies that have half a dozen satellites orbiting around the globe for your viewing pleasure. Some images can display about 50 cm² in each pixel of your computer screen. To be more specific: it is detailed enough to tell the difference between cars and military trucks and track the movement of troops from space. Lars Bromley, a high-ranking UN imagery analyst, has described the private satellite imagery as “Google Earth on lots of steroids”.

Unfortunately, the SSP was disbanded in 2015. According to its founders this was due to the start of a new project in which Prendergast and Clooney try to dismantle the networks of perpetrators and facilitators of armed conflict through the analysis of their financial supporters. Yet it must be taken into account that a lack of success must have played a role in the disbanding of the organization. Although the organization was fairly successful in indicating human rights violations, it never led to any serious direct impact. Crisis mapping expert Patrick Meier states that one important reason for the lack of success is time. It takes between eight to twenty-four hours for the satellite imagery to develop, whereas raiding a village can be done in less than a few hours. More importantly, deterrence is a strategy that only truly works when governments threaten with direct and immense retaliation so that aggressors will suffer great damage as a result of their action. Clearly, this was not an option for the SSP, an independent organization without any military or police force.

The lack of direct impact on conflicts should not be a reason to simply stop using technology to end human rights violations. The problem is not the way in which the data is gathered, but the implementation of the information. Clearly, satellite imagery and information sent from mobile phones in the region should not be focused on the deterrence of genocidaires. Instead, it should be a way to hold our own governments accountable to their Responsibility to Protect. In the past, R2P as a mere commitment signed by UN member states has proven to be inadequate. Still, with more organizations finding ways to implement technology in their analyses and more people documenting what is happening on the ground, governments can be held accountable with more up-to-date and detailed reports of human rights violations. By all means, technology will contribute to R2P’s third pillar that focuses on the fact that

in a rapidly unfolding emergency situation, the United Nations, regional, subregional and national decision makers must remain focused on saving lives through “timely and decisive” action […].

We have to be tenacious in finding new tools for genocide research. Only then will technology play a role in winning the fight against genocide.

The Power of the UN to protect Humanity – Part I The Security Council

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UN Security Council meeting on Syria, on December 18, 2015. Take a good look at who raised their hands and who did not (State Department photo/ Public Domain)

 

By Iona Mulder -

 

The UN was founded after the Second World War with the primary goal of protecting peace and security in the world. One of the most important elements of this goal is the protection of people all around the world against similar atrocities that were committed by the Nazi regime; these atrocities are now framed as crimes against humanities and genocide. But who decides and how is decided within this unique and powerful international organization, that currently includes 193 states, that action is necessary to confront issues of crimes against humanity? I will provide insight into this question in a series of several articles. The intention is not to be exhaustive, but to provide a top-down overview of the decision-making process of this powerful organization, to show its competence and its weaknesses. This first article begins with the top of the chain were political decisions for action are taken: the Security Council.

Although the UN as a whole can be seen as leading the politics of the international community, its power is bound by the obligation to respect the sovereignty of states. The right to sovereignty means that the UN cannot interfere within national affairs without the permission of the state itself. This rule is the number one principle of international law. However, the Security Council forms the exception; it is the only organ that can in specific situations interfere with this fundamental principle of sovereignty – even with the use of force, often described as “use of all necessary means”. It can do so in the name of the protection of international peace and security, as described in Chapter VII of the founding charter of the UN. Whether a situation is a threat to peace and security and what measures should be taken, will be determined by a vote of the fifteen states that are a member of the council. There are five permanent members, US, UK, Russia, China, France, those countries that were considered as superpowers after The Second World War, and ten non-permanent that change every two years. These world-changing decisions on peace and security issues are made by the representative of the members states simply raising their hand, as if they were in a classroom. Live-streams of the voting meetings can be viewed at the website UN television. A decision, called a resolution, will be accepted when nine of the members vote in favor, and none of the permanent member uses their right to veto a decision.

Since the end of the eighties, the Security Council has often considered widespread international crimes against humanity as a threat to security of the international community. Examples of such situations are Former Yugoslavia, Somalia, Rwanda, Sierra Leone, The Democratic Republic of the Congo. The more recent case of South-Sudan shows how the decision-making at the Security Council ideally works. Last November 11th, United Nations Special Adviser on the Prevention of Genocide, Adama Dieng, made a visit to the young state of South-Sudan. His role as a Special Advisor is to collect information and advice and warn the Secretary-General and the Security Council of the UN on grave human rights violations of ethnic and racial origin that genocide that might escalate into genocide. The reason for his visit was continuing reports of ethnic violence in South-Sudan. In a speech before the Security Council he stated: “Last week, I saw all the signs that ethnic hatred and targeting of civilians could evolve into genocide if something is not done now to stop it. I urge the Security Council and Members States of the region to be united, and to take action.”

Already since 2011 there is a UN mission stationed within South-Sudan named UNMISS with the mandate to protect civilians, monitor, investigate human rights, and to give assistance to build up the new state. Over the years the mission was already expanded. However, as Adama Dieng has specified within his speech before the Security Council, neither the UNMISS nor strong calls upon the South Sudanese government, not even a ceasefire that was established in 2015, have led to a positive progress of the stability and security of the country. On the contrary, the violence has increased and spread over a larger area; the government army is overall feared by the population, and the current South Sudanese President Kirr made statements that incite even more violence among the different political/ethnic groups within the country.

Following Adama Dieng’s advice and call to take action before the Security Council, the Security Council decided last December 16th to expand the UNMISS even more with 4500 soldiers and broaden its mandate. This mandate now includes among other things the unlimited access for the Special Advisor to monitor, investigate and report on incidents of hate speech and incitement to violence and actively participate in the mission in the implementation of the ceasefire, including the disarmament, demobilization and reintegration of different armed groups in South Sudan. In this case, the Security Council took the words of the Special Advisor into account and took action to protect the population of South Sudan. There are, however, two loopholes. First of all, the Security Council is not obligated to council the Special Advisor if the member states are not interested in doing so. Secondly, the member states might not vote for any action or one the permanent members can use its right to veto to uphold any action. This often happens when political interest come into play.

The most compelling example nowadays is the case of Syria. Special Advisor Adama Dieng has made fifteen public statements on the desperate situation of the civil population in Syria. He has not once been invited by the Security Council to speak about this subject. Moreover, Russia has used its veto right six times since the beginning of the conflict to uphold a UN Mission with a mandate regarding the protection of civilians or the persecution of those responsible for violence against civilians and the use of chemical weapons. China has taken the same position five times. The reason for Russia and China to do so is their political alliance with the Syrian government. If they would allow such a UN mission to be implemented, this would minimize the power of the Syrian government and thereby damage their political interested. Henceforth, the Security Council is completely paralyzed to take any action. It is undeniable that the Security Council is failing to fulfill its responsibility to protect the population of Syria.

The situation in Syria is the ultimate display that the UN system to prevent any large-scale human right violations is dependent on the political will of the members of the Security Council and primarily the permanent members. The five permanent member states can stand in the way of the protection of many innocent civilians, merely because it is against their own political interest to so, even when all the other members are of the opinion that measures are imperative to secure the safety of certain populations. It is clear that if the Security Council wants to function as is intended by its founders, the voting powers must be distributed more equitably among the UN member states. This very critical note aside, the Security Council intervenes in some situations to protect civil population when a state is unable or unwilling to protect them, as is shown in the case of South-Sudan. The following question is, of course, will this action minimize or halt the violence. The UN human right protection systems involve many other organs than the Security Council and the Special Advisor. Their role, work and the success of their actions on the ground will be discussed in the following articles of this series.

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.