(co-hosted by Costa Rica, Liechtenstein and the Netherlands)
Overview by Isabella Banks, Research Associate PILPG NL
Since the Rome Statute entered into force, both States Parties and victims have had outsized expectations about what the International Criminal Court (ICC) can achieve.
The ICC can and should listen to victims and take their views into consideration by democratizing their participation in international criminal justice.
Incorporating a retributive element to traditional and restorative approaches to justice may make them more appropriate and meaningful for victims of atrocity crimes, according to Dr. Roestenburg.
Financial and psychological empowerment can help survivors of sexual violence overcome stigma and become agents of change.
Hosted by the Institute for Justice and Reconciliation (IJR) and moderated by Project Officer Niv Bachu, this side event aimed to explore challenges related to survivor-centered justice. These include questions such as: What differentiates a victim from a survivor? What should be done with perpetrators who are also survivors? Is prosecution the most effective tool available to survivors of mass atrocity? How can civil society practically and effectively administer justice to survivors of mass atrocity?
Ms. Bachu introduced the speakers: Phakiso Mochochoko, Head of the Jurisdiction, Complementarity, and Cooperation Division at the ICC; Dr. Helen Hintjens, Assistant Professor at the Institute of Social Studies; Ingrid Burtenberg, Senior Researcher at the IJR; and Malini Laxminarayan, Programme Officer at the Denis Mukwege Foundation in The Hague.
Before giving the speakers the floor, Ms. Bachu provided background on information the IJR. The IJR was launched in Cape Town, South Africa in 2000, in the wake of the Truth and Reconciliation Commission (TRC). Today the institute explores projects and partnerships that help to build fair, democratic, and inclusive societies in Africa. Its mission is to enable communities to promote reconciliation and apply human-centered approaches to socio-economic justice.
Mr. Mochochoko spoke first. In his role as division head at the ICC, Mr. Mochochoko focuses on cooperation as well as complementarity. As someone who was closely involved in negotiating the Rome Statute, he shared that he was struck by how early in the process the notion of complementarity was agreed upon by the States Parties. It helped to assuage widespread state concerns about sovereignty and the implications of a supranational body. He explained that the principle of complementarity is applied in two ways: 1) in preliminary examinations to assess admissibility; and 2) in the investigations, to coordinate with national systems and try to ensure that lower-ranking perpetrators are prosecuted in addition to the high-level perpetrators that the ICC focuses on.
Mr. Mochochoko explained that complementarity has so far not operated in the way that is supposed to according to the Statute. He stressed that the question should not be “what is the ICC doing about this?” but rather “what are the national institutions doing about this?” In other words, the ICC has been treated as a court of first instance when it should be a court of last resort. He pointed out that no one imagined the issue of self-referrals, and called upon the international community to return to the principles envisaged in the Rome Statute.
He added that with regard to the criticism received about the duration of preliminary examinations, the ICC tries to encourage states to actively investigate and prosecute as is envisaged under complementarity but that it has not been particularly successful in this. He outlined a number of challenges: 1) lack of political will on the part of states; 2) lack of state resources, which the ICC cannot assist with; 3) state claims of lack of capacity, which the ICC also cannot assist with. The ICC is currently urging states to enhance their own judicial capacity through bilateral agreements or rule of law programs – something that Ms. Bachu pointed out the IJR may be able to assist with. He concluded with the remark that states do not seem to understand how complementarity is intended to work.
Dr. Mark Kersten spoke next, focusing on participation and engagement with victims in international criminal justice. From the outset, he noted that he does not purport to speak on behalf of victims and survivors. He argued that the ICC can and should listen to victims and take their views into consideration by democratizing their participation in international criminal justice. He criticized the tendency to speak about victims as a singularity with singular desires, noting the wide range of victims’ views towards the ICC. He stated that more attention should be paid to the core motivations of these individuals and that the reality that they are likely mixed is not something the ICC should run away from.
He noted that the existing literature on victim disenchantment with the ICC is overwhelmingly written by European or American authors and that their presumption to represent victims is problematic. He further questioned whether this “blame game” was beneficial to the victims themselves and proposed that perhaps a collective apology for letting them down would be more meaningful. He questioned why, for example, victims who are skeptical of the ICC and have fair critiques to bring to the table are not given a platform at the Assembly of States Parties (ASP). He suggested that their participation could be particularly valuable for alleviating tensions and minimizing negative impacts around the peace vs. justice debate.
Dr. Kersten observed that international criminal justice stakeholders have a tendency to subsume victims into one category (victims of mass atrocity) that has one solution (justice before the ICC). This can be insulting to victims who have different ideas about how post-conflict justice should look. He pointed out that there are interesting possibilities that account for the varied interests and motivations of victims. In particular, he advocated for creative sentencing options that bridge the gap between retributive and restorative justice. He highlighted Colombia’s efforts to consider rehabilitation of FARC perpetrators and reconciliation with affected communities in sentencing. He also suggested that the Ongwen case could be an opportunity to incorporate participatory traditional justice practices in sentencing. Victims could also be engaged more at the preliminary examination stage. Lastly, he stated that the ICC should not assume that victims are opposed to ICC justice.
Dr. Roestenburg-Morgan then introduced her research on the extent to which restorative and traditional mechanisms can benefit survivors of mass atrocity. She began by establishing that there is a presumption that justice is by nature retributive, but that if you look at post-conflict societies, you see a more complex picture. Prosecutions can de-stabilize a region and holistic systems of justice are often advocated. In Africa in particular, one sees a plethora of justice mechanisms, many of which are restorative (such as truth commissions) or traditional (such as Mato oput). She noted that traditional justice mechanisms can be quite valuable in terms of cost effectiveness and capacity to promote healing. Proponents also highlight their participatory nature, which can lead to meaningful engagement between victims and perpetrators as well as a greater emphasis on truth-telling.
In investigating whether such mechanisms are adequate measure for survivors of mass atrocities, Dr. Roestenburg found that they can only be effective if a retributive element of prosecution is included in their broader framework. She posited that this is due to the unique gravity, scale, and manner in which atrocity crimes are committed. Furthermore, states have an international obligation to prosecute which they cannot merely forego. Finally, it is sometimes implicit in restorative justice mechanisms that the victim must forgive the perpetrator, and this is not something that many victims of atrocity crimes are willing to do. She concluded that traditional and restorative justice mechanisms may need to be modified in order to fulfill the “genuineness requirement” under the Rome Statute, and that states should have minimum due process standards in place for atrocity crimes.
Dr. Hintjens opened with a critique of the notion that “just because justice takes a long time, it will never happen.” She also criticized the widespread use of the term “survivors,” explaining that she found it to be a far too fluid, catch-all term for atrocity crimes – particularly when used to describe perpetrators. She then raised the question: to what constituency do displaced victims belong? She described the work of her colleague Jackson Odong of the Refugee Law Project, who is currently setting up a museum in Gulu, Northern Uganda, on the topic. The purpose of the museum is to invert the assumption that crimes are always committed in a clearly-defined place against victims with access to local justice mechanisms.
Dr. Laxminarayan spoke last, summarizing her survivor-led work at the Denis Mukwege Foundation. She explained that with conflict-related sexual violence, stigma is pervasive and the first step for survivors is therefore to break the silence about what happened to them. Because of this, the Foundation views justice in terms of truth and recognition and works to empower survivors to become agents of change. Survivor empowerment can be financial (taking the form of reparations, education, livelihood programs) or psychological (initiatives that help survivors become leaders and speak out against violence and gender inequalities).
Dr. Laxminarayanalso introduced the global survivor network, which was created in resistance to top-down, non-participatory approaches to conflict-related sexual violence. She noted for example that the network was dissatisfied with the report on conflict-related sexual violence published by the UN Secretary General earlier this year. The network works to connect survivors of sexual violence in 20 countries with the goals of: building solidarity; breaking the silence; exchanging knowledge; documenting the past, and advocating for their rights. Within the network, there is a focus on sharing statements of support.
A question from the audience entailed whether victim expectations might be unfairly raised by survivor-centered justice initiatives at the ICC. Mr. Mochochoko replied that from the moment the ICC opened, victims were communicating with the ICC about what the Court could do for them. For example, he noted that the victims who the ICC interacts with are often living in very poor conditions and expect the Court to assist them with this, despite the fact that this is beyond the scope of the Court’s work. In conclusion, he suggested that victim expectations would be high regardless of these survivor-centered initiatives. Dr. Kersten agreed that the ICC can never reach what he called the “goldie locks standard” (referencing Darryl Robinson’s paper, “Inescapable Dyads: Why the ICC Cannot Win”) with respect to a the range of issues it is expected to address.