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.

The Voice of an Ignored Community. The Tibetan Government in Exile

KL Lau/Drepung Monatery (CC BY-NC-ND)

 

KL Lau/Drepung Monatery (CC BY-NC-ND)

KL Lau/Drepung Monatery (CC BY-NC-ND)

 

By Sarah Weber (guest writer) – 

It is now almost seventy years ago that China annexed Tibet and ever since the Tibetans have suffered repression, injustice and loss of individual freedom. The People’s Republic of China (PRC) invaded Tibet in 1950, referring to it as the “peaceful liberation of Tibet”. Initially, the PRC granted national regional autonomy and cultural freedom. The seventeen point agreement, the document that is seen to affirm Chinese sovereignty over Tibet, guaranteed that the existing political system and the authority of the Dalai Lama would not be altered. In reality, Tibet’s whole structure has changed and in fact a slow cultural genocide is taking place.

Today, Tibetans are confronted with forced assimilation and the destruction of their cultural heritage. Those who demand independence or oppose the Chinese rule are arrested, tortured and given long prison terms on charges of Disturbing National Security. Moreover, the Chinese government encourages a large number of ethnic Han Chinese immigrants to settle in Tibet, reducing the Tibetans to a minority in their own country. This in turn leads to an economic marginalization; 70% of business in the capital, Lhasa, are now owned or run by ethnic Chinese. In schools, the Tibetan language has been severely restricted and Tibetan textbooks replaced by Chinese ones.

Regarding the religious infrastructure, the Cultural Revolution has caused the destruction of over 6000 monasteries and religious institutions, equating to 95% of the overall total. Only a few monasteries are left and they function more as tourist attractions than spiritual centers. On top of that, since the occupation, an estimated number of 1.2 Million Tibetans have been killed in labour camps and prisons and around 130,000 live in exile today. 6 Million Tibetans still live inside Tibet.

It seems that the international community has abandoned its outspoken commitment to human rights in the case of Tibet and hardly any country’s leadership is willing to oppose China. Gains in commerce and trade are considered far more important than the cessation of human rights violations or preservation of an ancient culture. For the Tibetans, however, the issue is pressing and whether they live in exile or not, it is of utmost importance that there is a movement that protects the struggle for freedom, the culture and its people.

The 14th Dalai Lama, Tenzin Gyatso, escaped to India on March 10, 1959 followed by some 80.000 Tibetans. Upon arrival, he immediately introduced democratic reforms including the foundation of a government in exile, the Central Tibetan Administration (CTA), currently seated in Dharamsala, India. The CTA’s task is to rehabilitate refugees, to protect Tibetan culture and language by promoting an efficient school system and to oversee religious affairs. Additionally, it attempts to draw the attention of the world to the crisis unfolding in Tibet whilst ensuring the continuity of the freedom struggle. The CTA’s ongoing focus on education as a central tenant of the state stands in stark contrast to the worldwide trend of shrinking the welfare state and demonstrates its commitment to social values. The CTA is composed of seven different departments representing priorities of the Tibetan community at large namely Religion & Culture, Home, Finance, Education, Security, Information & International Relations and Health.

Next to a popularly elected prime minister and a parliament of 43 members, this government includes a judiciary. The highest judicial authority in the exile community is the “Tibetan Supreme Justice Commission”. The Commission is responsible for adjudicating civil disputes within the community but does not handle criminal cases, as this is recognized as the preserve of host governments. The function of the CTA is governed by a constitution, “The Charter of Tibetans in Exile”. The charter ensures a clear separation of power among the three branches of government and it professes to adhere to the Universal Declaration of Human Rights. The prime minister is elected for a period of five years and the next election is due to take place in March 2016.

The CTA’s experiment with modern democracy is a preparation for a future free Tibet. Yet, it is not designed to be the institution that will take power thereafter. The Dalai Lama has announced that the exile government will be dissolved as soon as Tibet attains freedom and that power will be transferred to a transitional government headed by an interim-president for at most two years. Thereafter, power will be handed over to a popularly elected government. 

The challenge of every exile government is to exercise legal power whilst residing in another country and to run a state that effectively does not exist. Any government, whether in exile or not, matters mainly when it is recognized by other governments and a majority of the people it claims to representFor the Tibetans, both inside and outside Tibet, the CTA is recognized as the sole and legitimate representation and the CTA maintains that Tibet is an independent state under unlawful occupation. Yet, the question is whether an exile government can ever be legitimate according to international law. The notion remains a relative concept, as every state can decide who it accepts as a legitimate government. Officially, Tibet is an integral part of China so the government in exile is internationally not considered legitimate, since that would imply a change in the legal status of Tibet. Most countries maintain friendship with China and therefore avoid taking a position in favor of the Tibetan cause for fear of commercial ramifications. So practically, the CTA’s mandate is legally void. Yet, for the Tibetans its existence is essential for survival.

The establishment of the CTA is a rather unique example in the history of statesmanship. The Dalai Lama had to convince Tibetans to accept a democratic administration in which he would no longer be the head of state, as was traditionally his role. Step by step, he ceded power until he eventually stepped down in 2001. Compared to other cases, where the head of state clinches on to power, unwilling to step down, even ready to unleash a civil war, the Tibetan democratization process is a particular example as the process has been top-down in contrast to normal democratization processes. Moreover, the mandate of exile governments is mostly temporary and only transitional, often set up for a time of war and for the redevelopments thereafter. The CTA, however, has existed for almost seventy years and can be expected to exist for the indefinite future.

An international community should prioritize the protection of human rights and the prevention of a cultural genocide over economic interests. Unfortunately this is not the case. So even if the CTA is currently not able to influence the situation in Tibet directly, with its work it guarantees that the struggle for existence goes on. It is the voice of a muted people that makes sure that those silenced by circumstance and injustice are given the most basic of rights; a voice to be heard with.

 

 

 

 

Ending Statelessness: the long road ahead

UN Photo/CC BY-NC-NC

UN Photo/CC BY-NC-NC

 

By Arja Oomkens -

 

Exactly one year ago, UNHCR launched a global campaign aimed at ending statelessness, a phenomenon that is often described as a “devastating legal limbo”. But what is statelessness exactly, and why is it so important to combat its consequences? The UNHCR report that came out yesterday explains the debilitating impact of statelessness on children. Today, I will use this report as a starting point to provide a bird’s eye view of the issues surrounding statelessness. How is it possible that this phenomenon excludes millions of people worldwide from a dignified and humane life?

 

The story of Rashid forms an illustrative example. Rashid, 27, was born in Maungdaw, Myanmar. He is a Rohingya, a Muslim minority that has faced decades of segregation. Since the 1970s, the Rohingya have been deprived of their citizenship, restricted in their movements, and have suffered en masse persecution. Rashid fled to Bangladesh with his mother, after his father, who was a Muslim rights activist, was killed and his sister was arrested. Because of a legitimate fear of persecution, and because he was explicitly deprived of his citizenship in Myanmar, Rashid could not go back to his home country when his temporary legal stay in Bangladesh expired. Therefore, he moved to the Netherlands to seek protection. He applied for asylum twice, but both of his requests were rejected.

 

As a result, Rashid is stuck in the Netherlands. On the one hand he is an illegal resident, while on the other hand, he cannot be expelled because neither Bangladesh nor Myanmar will accept him. Without a state to take responsibility for him, he lacks access to health care, education, employment opportunities, property rights and the ability to freely move around across borders. It is also impossible to get married, open a bank account or get a driving license. Unlike many others, Rashid cannot take these rights for granted.

 

Statelessness, as famously described by Hannah Arendt (2004), means the loss of the “right to have rights”. As the example of Rashid illustrates, stateless people lack the social and economic access necessary to fulfill their most basic human needs. Worse still, in the words of António Guterres, the United Nations High Commissioner for Refugees, “statelessness makes people feel like their very existence is a crime”. Without citizenship rights, and no state to protect them, they are forced into a life of invisibility.

 

One can become stateless for a myriad of reasons. First of all, people may become stateless with the dissolution and separation of states. For example, the dissolution of the USSR in 1991 left large numbers of people stateless. Of these people, over 370,000 people still lack a nationality in Estonia and Latvia. Another reason for becoming stateless is because of conflicts of nationality laws between certain countries, which may cause statelessness at birth or later in life. This happens when, for example, two states claim that the other is responsible for the bestowment of a nationality. In addition, people are forced into statelessness as a direct result of discrimination (e.g. against women or other specific ethnic groups). The 1,2 million stateless Rohingya in Myanmar are a case in point of ethnic discrimination and the categorical denial of citizenship.

 

The relatively unknown concept of statelessness affects at least 10 million people worldwide – a number that excludes many people who might hold formal citizenship but are prevented from enjoying citizenship rights. Unfortunately, this number is expanding continuously; UNHCR estimates that one stateless baby is born every ten minutes. In addition, the conflict in Syria further exacerbates the problem. The mass displacement of four million refugees into neighboring countries places children at great risk of statelessness. For Syrians abroad, the possibility to register newborns is limited. Because most Syrians flee from the persecution by their own government, it is implausible that they will register a newborn in a Syrian embassy. Within the borders of Syria, discriminatory nationality laws ensure that Syrian children can only acquire nationality through their fathers. Since the conflict has left 25 per cent of Syrian households fatherless, this gender discrimination causes registration at birth to be an unattainable goal for many.

 

The global campaign launched by UNHCR last year aims to intensify efforts to end statelessness within ten years. The campaign was launched in light of the 60th anniversary of the 1954 UN Convention Relating to the Status of Stateless Persons, which, alongside the 1961 Convention on the Reduction of Statelessness, is to provide the international legal basis to end statelessness. With the campaign, UNHCR calls on nations to take on 10 actions to end statelessness.

 

During its first year, the campaign focused on ending childhood statelessness. The UNHCR report that came out today urges all states to allow children to gain the nationality of the country in which they are born if they would otherwise be stateless; to reform laws that prevent mothers from passing their nationality to their children on an equal basis as fathers; eliminate laws and practices that deny children nationality because of their ethnicity, race or religion; and ensure universal birth registration to prevent statelessness. Because issues surrounding statelessness are often felt first during childhood, the report thereby aims to address the core of the problem.

 

There are three reasons why states are expected to cooperate. First, the two Statelessness Conventions require governments that have ratified to provide a minimum set of human rights (1954), and to reduce statelessness (1961). Second, international law recognizes the right of every child to a nationality; this is set out in Article 7 of the almost universally ratified United Nations Convention on the Rights of the Child. Third, state cooperation is expected not only to be in the child’s best interests, but also in the interest of the state since the right to education, health, and work will contribute to the integration and social cohesion of any society.

 

With regard to those who have become stateless as a result of the Syrian conflict, the Jordanian government has already set a good example. To ensure that every child begins life with a birth certificate – which serves as proof of identity and a direct link to Syria – the Jordanian government established a personal status court and civil status department within the Zaatari refugee camp. In light of these developments, 3,597 Syrian children born in this camp have been registered over the past two years.

 

The UNHCR campaign has received a great deal of international attention, and has even culminated in thorough cooperation with civil society initiatives – see for example the recent report by the European Network on Statelessness. Hopefully, these efforts will have a positive impact on the millions of stateless people worldwide. For Rashid, and many others like him, there has only been the promise of the establishment of a statelessness determination procedure in the Netherlands. Because the Dutch government is a state party to the two Statelessness conventions, the recognition of Rashid as a stateless person means that he is entitled to a secure legal status and enjoyment of the rights afforded under these conventions, such as the right to education, employment, and housing. Furthermore, the recognition of Rashid as a stateless person would mean that he has the right to an identity document under article 27 of the 1954 Convention. This is of great importance, because carrying identification is mandatory at all times in the Netherlands (since 2004). At this moment, stateless persons are often unable to meet this requirement, and, without being able to identify themselves, they risk arbitrary detention. Therefore, to ensure that he is not left invisible – without equal rights and any sense of human dignity – it is imperative that the Netherlands will follow up on its promise to develop the long-awaited procedure to determine statelessness, including a procedure to provide ID documents for stateless persons.

 

Overall, the situation of Rashid in the Netherlands illustrates how pressing the need is to address the plight of stateless people worldwide. Not only the Netherlands, but all state parties to the 1954 and 1961 Convention must follow up on their obligations under these conventions. If states would do so, UNHCR’s global campaign to end statelessness within ten years may suddenly become a feasible goal.