Exposing “Ghosts” – An Online Hunt for Assad’s Thugs in Europe

A member of the Shabiha, with a tattoo of President Assad on his disproportionately large left arm
A member of the Shabiha, with a tattoo of President Assad on his disproportionately large left arm

A member of the Shabiha, with a tattoo of President Assad on his disproportionately large left arm

By Koen Kluessien -

 

“We love Assad because the government gave us all the power – if I wanted to take something, kill a person or rape a girl I could […]. The government gave me 30,000 Syrian pounds per month and an extra 10,000 per person that I captured or killed. I raped one girl, and my commander raped many times. It was normal.” This confession describes only one of many atrocities perpetrated by the Shabiha. According to a 2016 country report on Human Rights Practices conducted by the US State Department, these militias systematically perpetrated rape and other attacks on civilian populations. At least 7,672 incidents of sexual abuse were perpetrated since the beginning of the conflict. These predominantly Alawite pro-Assad death squads intimidate, rape, and kill Syrians who oppose the regime. It is no coincidence that Shabiha is Arabic for “ghost” or “shadow”. The militias feel untouchable. Some of these “ghosts” have now found their way to Europe, while their crimes have remained unpunished.

The Shabiha have been around for a long time. In the 1980s and 90s they smuggled food, cigarettes, and other commodities into Lebanon, selling these products with a huge profit. The smuggling was state sponsored and seemingly innocent. However, on the other side of the border luxury cars, guns, and drugs were smuggled from Lebanon into Syria’s state controlled economy. The Shabiha were nothing short of Syrian mobsters and were known for their brutal way of protecting their own business. When Bashar al-Assad came to power, the group was said to be disbanded. However, when the Syrian protestors took to the streets, the Shabiha gangs evolved into militia groups. This time not simply to smuggle products from and to Syria, but also to beat civilians into submission.

The Shabiha are Assad’s militia on steroids, literally. The members of the death squads are often described as wearing trainers and civilians clothes, added with a military style crew cut. What stands out most is their physique. According to one physician many of the members are recruited from bodybuilding gyms and are given steroids. This results in the militiamen resembling a somewhat chubbier and far more scarier version of Arnold Schwarzenegger. It must be added that many of the current Shabiha do not resemble this stereotypical look anymore. Still, they are far from ordinary men.

One question that immediately arises is: why are these fighters granted asylum? And more importantly, what are they doing here? There is not yet a clear cut answer to both questions, but open source research by human rights activists provides us with some answers. Humanitarian asylum is only granted to civilians, not to fighters. UNHCR clearly states that “military activity is incompatible with the very institution of asylum. Persons who pursue military activities in a country of asylum cannot be asylum-seekers or refugees.” Still, government militants are often not seen as a threat to the European way of life. Shabiha smoke and drink, are not devout Muslims, and wear Western clothes. With the authorities unaware of the crimes these militias committed, they are generally seen as people who would integrate into our society easily.

The militiamen are under close scrutiny of a special team within the Dutch police force. Still, even the police often has to rely on anonymous tips from refugees who have recognized war criminals. Militias have also been located by open source researchers in European countries such as Germany, Sweden, and the Netherlands. Still, they feel untouchable, even when they are not directly protected by the Syrian government. The alleged war criminals carelessly post photos of their whereabouts on Facebook and other social media. Luckily, this makes it easier for researches to locate them and link them to photos and videos of them wearing combat uniforms and committing war crimes. Already a number of researchers and organizations are posting the names and details of foreign fighters who have been geolocated in European cities. Combined with eyewitness accounts from victims who are now asylum seekers and human rights reports this information can counter impunity. More importantly, human rights activists have received intelligence that a number of Shabiha have been sent by Syrian regime intelligence (the Mukhabarat) to spy on refugees.

Layth Ayman Munshdi is one example of a fighter that sought refuge in Europe and was tracked down by open source researcher Ben Davies, simply using social media. Munshdi joined a pro-regime militia to fight in the armed conflict Moreover, he took part in executions. He also posted photos of himself standing on the bodies of the dead Sunni men he most likely murdered. Later he was located in Neustadt, Germany simply because he uploaded photos from his new life in Europe. He remained there for several months, until Syrians started posting about the crimes he committed. Munshdi consequently deleted his account, he was then lost out of sight for a while. He now resides in Damascus and rejoined the Shi’a militias in Damascus.

 

Layth Ayman Munshdi as a fighter and as an “asylum seeker” in Greece

Layth Ayman Munshdi as a fighter and as an “asylum seeker” in Greece

 

The human rights activists conducting the much needed open source research are often Syrian refugees themselves. Needless to say, these researchers are biased in one way or another. When one researchers was asked if he would also publish articles on war criminals from the Syrian opposition he stated that he had not yet found any. It is clear that there is a margin of error to the research. Still, they analyze every detail there is to be found about the individuals. The information is then corroborated with human rights organizations on the ground.

Much of the open source research is conducted by human rights activists that are not part of a police force. They provide us with some much needed awareness on the crimes of the Syrian regime, but they lack any form of judicial power. Luckily, some of the pro-Assad militias residing in Europe are now on the radar of police forces and intelligence agencies. Special war crimes units have started interviewing eyewitnesses and victims, in case a Syrian tribunal is ever established. This pro-active attitude is essential to build a case against war criminals. Still, it is unclear if such a war crimes tribunal will ever come to fruition. Many countries see Assad as the lesser of two evils, arguing that to fight ISIL they must maintain diplomatic relations with the Assad regime. Consequently ignoring that the atrocities committed by the regime forces are often as atrocious as those committed by the Islamic State. If the Shabiha escape any form of sentencing, they will forever haunt the minds of their victims.

 

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.

 

 

 

 

 

 

Different Shades of Denial: are the White House and the German far right relativizing the Holocaust?

Auschwitz II-Birkenau, November 2016. Picture by Marieke Zoodsma
Auschwitz II-Birkenau, November 2016. Picture by Marieke Zoodsma

Auschwitz II-Birkenau, November 2016. Picture by Marieke Zoodsma

By Marieke Zoodsma

 

January is an important month for those involved in Holocaust remembrance; the 27th of January, the day that Auschwitz concentration camp was liberated by the Red Army, is International Holocaust Remembrance Day. It is a month in which events are organised that involve Holocaust remembrance or topics related to the crimes of the Nazi regime, such as the Nooit Meer Auschwitz lecture in Amsterdam. It is also a month in which politicians engage in public statements regarding (the commemoration of) the Holocaust and the Second World War. However, it is also in the realm of politics where genocide, be it the Holocaust or any other, can become a dangerously fluid, unclear and undefined concept. Lobbyists, activists, and politicians from all different sides of the political spectrum use the term for their own agenda, thereby often (wilfully?) misinterpreting the facts. I will point out two examples.


At a speech in Dresden
on the 17th of January, Björn Höcke, a politician from the German right-wing Alternative for Germany party (AfD), labelled the Berlin Holocaust memorial a ‘monument of shame’. Höcke, a former history teacher, said; “Until now, our mental state continues to be that of a totally defeated people. We Germans are the only people in the world that have planted a monument of shame in the heart of their capital.”. General outrage from within as well as outside Germany followed as Höcke was being condemned for his statement as being anti-Semitic and a demagogue. One way or another, it is highly questionable if a political figure should engage in such inflammatory comments on (the remembrance of) a not-so-long-ago history. Perhaps his political agenda guided him otherwise.


The United States White House commemorated International Holocaust Remembrance Day with a statement. The statement reads: “It is with a heavy heart and somber mind that we remember and honor the victims, survivors, heroes of the Holocaust. It is impossible to fully fathom the depravity and horror inflicted on innocent people by Nazi terror.”. Here too the statement was followed by astonishment since it did not include Jews, Judaism or antisemitism. Jonathan Freedlander commented in The Guardian: “The Nazis were broad in their hatred, targeting Roma, gay people and disabled people, as well as socialists, communists and many others. But any full account of that period begins with the recognition that Jews were singled out for total eradication.”. According to professor Deborah Lipstadt, whose story on Holocaust denial is intriguingly depicted in the film Denial, it is a form of classic “softcore denial” of the Holocaust. According to Lipstadt, the statement is not necessarily denying the facts but it minimizes them; arguing that the Jews as a group were not particularly targeted for destruction. This way, the Holocaust is de-Judaized.


Denial comes in many shapes and forms. The deaths in a genocide can for instance be rationalized as a result of an ‘age old conflict’ (as the Bosnian Serb leader Radovan Karadžić did during the Bosnian war), or the statistics can be questioned or minimized. A common form of denial, especially among lawyers and politicians, is the claim that what is going on is not genocide. It is a definitional argument of which the United States State Department employees were fully aware when they drafted a memo in May 1994 (during the Rwandan genocide) saying; “Be careful … Genocide finding could commit U.S.G. to actually ‘do something’”. Different actors can deny certain things from having happened, from individual politicians to states – such as Turkey denying the Armenian genocide.


In the described statements, Holocaust denial or not, politicians are venturing out onto a slippery slope. Where the German politician Höcke can be said to trivialize the remembrance of the Holocaust, the United States government is minimizing the suffering of the Jews in the Holocaust. As with many historical events – and perhaps especially commemorations – the Holocaust is being used for political agendas. Höcke, in the face of the refugee crisis and the recent terrorist attack in Berlin, might want to construct the image of a unified glorious German people to build on a better and brighter future instead of a defeated people with a shameful past. The motives for the United States might be focussed on combating the Jews “special pleading” over the Holocaust.


The sociologist Stanley Cohen offers an interesting perspective in his influential work States of Denial (2001). Trying to answer the question “how could people simultaneously know and not know about certain matters?”, Cohen argues that there seem to be “states of mind, or even whole cultures, in which we know and we don’t know at the same time”. The language that was being used during the extermination process is hereby an important aspect. The euphemisms, or language rules, that were deployed in the extermination process made it possible to deny what was actually happening; “the victims of Nazi atrocities were ‘deported’ to ‘work camps’ for ‘special actions’”. The meaning of the Holocaust is hereby simultaneously literally denied and one can thus claim it did not happen – during but also afterwards the genocide itself.


These language rules that are being used to literally deny and thereby reject the actual meaning of the Holocaust sound awkwardly reminiscent to the “alternative facts” (“falsehoods”, or in other words: denying the truth) of the new Trump administration. And we venture out further on that slippery slope…

 

The Netherlands and “Criminal Refugees” from Afghanistan: political misconceptions

Edo Dijkgraaf - Raad van State (CC-BY)

 

Edo Dijkgraaf - Raad van State (CC-BY)

Edo Dijkgraaf – Raad van State (CC-BY)

 

By Arja Oomkens

 

On 23 September 2016, the Dutch Section of the International Commission of Jurists (NJCM), a commission that focuses on the protection of human rights in the Netherlands, announced that they had filed a lawsuit against the Dutch state for a wrongful act committed with respect to an Afghan person with a valid asylum residence permit.

 

The Afghan asylum-seeker in question fled for fear of persecution by the Taliban during the late 90’s and received asylum in the Netherlands. Eighteen years later, when the Dutch State found out that he had worked for the secret services of the Afghan communist regime (1978-1992), his residence permit was withdrawn without any individual investigation.

 

This was possible because of Dutch immigration policy on Afghanistan (set up in 2000): it stipulates that everyone who has worked for the Afghan secret services between 1978 and 1992 has per definition committed serious human rights abuses and is therefore not entitled to an asylum residence permit. These persons are excluded from the protection guaranteed under the Refugee Convention because they meet the criteria for article 1F of this Convention. Therefore, they are referred to by the Dutch state as so-called “1F-ers,” or in the terms of the media: “criminal asylum-seekers.”

 

The Dutch state is one of the few[1] EU member states that requires alleged “1F-ers” to prove that they were not involved in any human rights abuses. In this specific situation, the Afghan person denied any involvement in 1F classified human rights abuses, since he had only worked within the administrative division of the secret services. Nevertheless, because he did not have any documents to prove his point, the Dutch state applied the 1F principle to withdraw his residence permit.

 

It is important to note in this regard that it is unlikely that any other decision could have been made in a similar situation. Gaibar Hasami, a board-member of the Dutch 1F Foundation, points out that a lot of people that worked for the Afghan secret services did not know that human rights abuses were being committed in the name of their employer. This had to do with the fact that the majority of 80.000 people worked for the “above-ground” secret services, while a minority worked for the “underground” secret services – only the latter committed human rights abuses. However, it is impossible to prove this since the secret services have done everything within their power to hide any evidence that points to human rights abuses. With no evidence available to prove their guilt or innocence, “1F-ers” are excluded from protection based on the premise that there are serious reasons for considering their involvement in human rights abuses two decades ago.

 

Consequently, the Afghan “1F-er” in question appeared before the Council of State, the highest authority in the Netherlands with respect to immigration affairs, to appeal the withdrawal of his residence permit. As with all other appeals with regard to Dutch 1F immigration policy on Afghanistan, the Council of State upheld the decision to withdraw his residence permit.

 

From the perspective of the Afghan “1F-er” and the NJCM this decision violates European Union law because no individual investigation was conducted, and because no reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) in Luxembourg was made. Based on EU law, the withdrawal of residency under such circumstances would mean a wrongful act was committed by the Dutch State. Therefore, the implicated Afghan person and the NJCM now ask the District Court in The Hague to confirm this verdict.

 

Evidently, such a verdict will be in the interest of all alleged Afghan “1F-ers.” Because the situation in Afghanistan is still dangerous for them, many Afghan “1F-ers” – who have lived in the Netherlands for up to 20 years – cannot be expelled by the Dutch State. Their situation nevertheless remains insecure: when the security situation in Afghanistan changes they may be expelled at any time. Is this reasonable when they have built up their family life in the Netherlands? Even though there has never been any investigation into the specific circumstances of their situation?

 

One thing must not be forgotten: Afghan “1F-ers” who have lived in the Netherlands for almost two decades initially applied for asylum because they feared persecution in Afghanistan. In the abovementioned case, the Afghan asylum-seeker entered the Netherlands because of his fear of persecution by the Taliban. The Dutch state considered his story credible and therefore granted him asylum. This means it was considered credible that the Afghan asylum-seeker had been victimized and would be victimized again by the Taliban if sent back. Therefore, Dutch 1F immigration policy on Afghanistan does not protect victims of human rights abuses as it can wrongly exclude asylum-seekers in need of protection.

 

Article 1F is part of a convention drawn up to protect those in need of protection, yet in practice, its application in the Netherlands leads to blatant injustices. Based on political misconceptions of responsibility (both of the state and of the person), it fails to protect those it was designed to. Under 1F, victims are turned into perpetrators, their most fundamental rights upended, and ultimately, their safety and wellbeing compromised. For now, “1F-ers” like the Afghan person in this article have no option but to wait, hoping that the outcome of the lawsuit against the Dutch state can change their situation.

 

[1] Next to the Netherlands, only the Czech Republic consistently reverses the burden of proof with regard to a 1F situation, see this website for more info.

 

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.