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.

Film Review: Im Labyrinth des Schweigens – “The Disclosure of a Disturbed Past”

Copyright: Beeldbank WO2- NIOD

 

Main defendant Wilhelm Boger, on the photo left, awaits the beginning of the Frankfurt Auschwitz trial in April 1964. In the background a map of the infamous Auschwitz concentration camp. Copyright: Image Bank WW2- NIOD

 

By Laurien Vastenhout and Marieke Zoodsma – 

 

It was not the handsome leading actor on the promotion poster of the film Im Labyrinth des Schweigens (Labyrinth of Lies) that stirred our young historians’ blood. This was rather caused by the endless number of high-up filling cabinets with documents and dossiers surrounding him, perhaps sloppily archived, but a dream for any historian to dig into. These dossiers are the thousands and thousands of personnel files of the Schutzstaffel (SS), the major paramilitary organization that was, under the command of Heinrich Himmler, primarily responsible for many of the crimes perpetrated during the Nazi-regime. The poster depicts the Berlin Document Center, the central collection point of the American administration for documentation from the time of Nazism. Here, our leading actor, the Frankfurter prosecutor Johann Radmann, initiates his major investigation into the crimes committed at the Auschwitz concentration camp. The film starts at the end of the 1950s in West Germany. Radmann is startled by the fact that no one ever seems to have heard of Auschwitz concentration camp – let alone of the atrocities committed there.

 

This idea of (willful) ignorance of the atrocities committed during the Second World War by the Nazis in the post-war period has been thoroughly investigated by Dan Stone in his recent work Goodbye to all That (2014). He underlines that a consensus on the memory of the Second World War was formulated in Germany. In the communist East-Germany, the capitalist system was blamed for this dark period in German history. In the West, there was a tendency to remain entirely silent on the period. Instead of finding a way to deal with the difficult past in which particular groups had suffered tremendously, the idea that this history had already been sufficiently dealt with prevailed, particularly in the West. Those that were deemed guilty had received their punishments through the Nuremberg trials and, from this perspective, the country had been completely denazified.  Stone has argued that this was a constructed consensus that was necessary in order to restore the country, allowing the German citizens to go on with their lives rather easily without having to think of the disturbing past. This can be seen as the central starting point of Im Labyrinth des Schweigens, with an ambitious young prosecutor who, as the story continues, slowly and painfully opens up this disturbing past.

 

In his publication Legacies of Dachau (2008), Harold Marcuse has also illustrated this deliberate silencing of the past by describing the way the Dachau concentration camp was viewed by German society in the post-war period. The municipality of Dachau refused both to construct signs indicating where the camp was located as well as the construction of a metro stop when a new metro line was built. All efforts were directed to make people remember the ‘good’ things of Dachau, for example that it used to be a place with a significant community of painters before the war. The war period was, in short, entirely ignored. This unwillingness of authorities to investigate the past, or even to pay attention to it in the first place, is a reoccurring theme in Im Labyrinth des Schweigens. Johann Radmann and his prosecuting team become visibly frustrated with the fact that the authorities they have to work with, refuse to actively help find the alleged Nazi perpetrators.         

 

The film neatly portrays how politically charged this search for, and the eventual arrest of, alleged Nazi war criminals has been. Even though 50 years have passed since the Frankfurt Auschwitz trials (1963-1965) and international law has quickly developed afterwards, with international tribunals sprouting up like sunflowers in the sun, the politicization of the arrest of alleged war criminals is still as relevant today as it was then. As Radmann digs further in the evidence on crimes committed at Auschwitz, he learns about Joseph Mengele, the infamous Nazi-doctor of Auschwitz who performed medical experiments on the camp prisoners – at that time Mengele is at large and living in Argentina. Radmann decides he wants to bring Mengele to justice, that he ought to be the ‘big fish’ of these trials; “Mengele is Auschwitz”, he claims. The unwillingness of the West-German authorities to arrest Mengele, even when he visits his family in Germany, is reminiscence of the International Criminal Court’s (ICC) 2009 arrest warrant of Omar Al-Bashir – the still presiding Sudanese president who is indicted for genocide and crimes against humanity (see Iona’s recent interview with professor Samuel Totten on the Sudan-conflict). When the Mossad (the Israeli intelligence agency) captures Adolph Eichmann in May 1960, Mengele flees to Paraguay and eventually dies a free man in 1979.

 

As the film is largely based on events that have actually taken place, it is a decent and thorough portrayal of the difficulties faced by anyone who wanted to call attention to the troubled past in a period (1950s and early 1960s) when the large majority remained silent. The historical accuracy is praiseworthy, despite the dramatization of some events – with arrests of suspected Nazi criminals taking place even while they are in the dentist’s chair. The film ends with the actual start of the trials which could leave the viewer feeling somewhat unsatisfied. However, the director’s choice not to focus on the perpetrators and the trial itself but mostly on the pre-trial period, where the silence and lies present in German society are most visible, is a favorable decision. This story is not about the war criminals and the actual trial, it is about the difficult disclosure of a disturbed past.

 

Only last week, the 93-year old “Accountant of Auschwitz” Oskar Gröning, who was assigned with the confiscation of luggage of prisoners at Auschwitz, has gone on trial in Germany. Of the approximately 7,000 SS-officers who served at Auschwitz and its sub-camps, no more than a hundred of them have faced trial and even less went to prison. On January 27th of this year, the 70th commemoration of the liberation of Auschwitz was held. Next week on the 5th of May, the Netherlands will celebrate their 70-year liberation of Nazi-occupation. Let these trials, how belated and perhaps incomplete as they might be, be a remembrance of the stories untold by the thousands of victims of dictatorial and genocidal regimes. Perhaps not justice but the opening up of silence, of the labyrinth of lies as the film cleverly portrays, is thus primarily served.

Whose Genocide? An Analysis of the Definition of Genocide

Sarah McGowen/Flickr

 

Sarah McGowen/Flickr (CC BY-NC-SA)

By Marieke Zoodsma -

 

Almost 25 years ago, the countries that once formed Yugoslavia were disrupted by heavy violence. The consequences of this bloody war, as I also wrote in my previous article on missing persons in Bosnia and Herzegovina, are still alive and present today. The judgment ruled in the Croatia vs. Serbia case by the International Court of Justice (ICJ) in The Hague this week was one of these echoes of the Balkan wars, except this might be seen as the final closure of one bitter chapter. The crucial and leading question that led this chapter to endure for a quarter of a decade; did either one of the parties commit acts of genocide?

 

For Croatia, who filed the suit at the ICJ in 1999, genocide had been committed during the three months bombing by Yugoslav forces of the town of Vukovar in 1991. Serbia, considered to be the legal successor of the Federal Republic of Yugoslavia, filed a counter-claim of genocide in 2006 for the crimes that were committed during ‘Operation Storm’ in 1995 – an operation led by the Croatian army to re-take the territory that had been lost to the Serb forces in 1991. The fifteen judges of the ICJ this week rejected both claims of genocide, thereby ending one of the most bitterly contested disputes left by the Balkan wars. Not only does this judgment open up the way to more peaceful relations between the two countries (as Serbian president Nikolić repeated in the media), it also eliminates the question of the compensation of damages, and spares the European Union the humiliation of having one member state (Croatia) and an applicant member (Serbia) state being found guilty of genocide.

 

The main argument for genocide to be rejected was that “the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group” was missing in both claims. This leads us to the definition of genocide, which has been controversial ever since its inception through the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. According to Article 2 of the Genocide Convention:

 

“… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

  • Killing members of the group
  • Causing serious bodily or mental harm to members of the group
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
  • Imposing measures intended to prevent births within the group
  • Forcibly transferring children of the group to another group”

 

There are several striking aspects to be found in this definition of genocide that can be seen as problematic. What exactly is meant by ‘in whole or in part’, at what point is such a proportion of a group destroyed that it can be seen as ‘in part’? Also, the distinction between victim categories are rather limited by leaving out other historically targeted groups such as political or economic groups. And who is the genocidal perpetrator, the agent of destruction? Can this be one person, a group or should it be a regime? But what has often been called one of the core issues with the UN definition of genocide is its inclusion of the word ‘intent’. How does one prove ‘intent’? How does one connect a ‘genocidal intent’ to the actual events that happened on the ground? As seen in the ICJ-ruling of this week, or in others before that at the ICC (International Criminal Court) and ICTY ( International Criminal Tribunal for the former Yugoslavia ), proving intent turned out to be one of the most challenging aspects of this definition, for scientists as well as jurists in a court of law.

 

There is no doubt that terrible crimes have happened during the Yugoslav wars, and the ICJ judgment emphasizes that crimes against humanity did occur. However, the assumption of explicit prior intentionality as the criteria for genocide is often difficult to reconstruct or to connect to specific behaviour. Although a campaign of annihilation might be evident, intent might not be publicly declared and therefore difficult to demonstrate where no proof of thoughts exist. The only expression of a guilty state of mind would be a confession, public statements or speeches. Such expressions are rare to almost non-existent, not even for acknowledged genocides such as the Holocaust or the Rwandan genocide. The court ruling in the Croatia vs. Serbia case was therefore not very surprising, especially since no Serb or Croat has ever been charged with genocide in each other’s territory. In its decision, the court wrote, “What is generally called ‘ethnic cleansing‘ does not in itself constitute a form of genocide. Genocide presupposes the intent physically to destroy, in whole or in part, a human group as such, and not merely a desire to expel it from a specific territory.”

 

So where does this leave us? The obvious conclusion is that the generally used definition of genocide creates more ambiguity than it resolves. Social scientists have been trying to escape the ‘conceptual muddle’ created by the inclusion of genocidal intent in the definition of genocide by using different definitions, by excluding the word altogether or by substituting it for a different term. In the world of international criminal law, however, ‘intent’ is included in the definition of genocide that is incorporated in the statutes of the international courts, thus making it impossible to avoid the problems created by it. As Natasha Kurt, lecturer at King’s College London, rightly states; “Ultimately this case shows the politically motivated nature of the claims and counterclaims by both Serbia and Croatia, which cannot be upheld legally”.

 

The ambiguity of genocide has made it an attractive and thereby misused and misunderstood concept. It is considered the crime of all crimes, the denotation of absolute evil, and has therefore been applied to – justifiable or not – very different situations of mass violence. But genocide does not only consist of the killing sites where the murders were carried out. Genocide is not just an event, it is a long and enduring process – a continuum of destruction – involving many agencies, actors, and institutions. The intentionality of such actors and institutions to commit genocidal acts is, as is seen in cases before the ICJ and ICTY, highly unlikely to be proven in court. Perhaps it is thus time to depart from the narrow definition drawn in the Genocide Convention and start exploring, as social scientists have done, a broader, less political or morally challenged, definition to define the crime of genocide.