Overview by Isabella Banks and Juan Manuel Martinez Rojas, Research Associates PILPG NL
Transitional justice processes that have been designed to benefit victims often heavily limit their engagement.
Meaningful victim participation in transitional justice can take many forms – it can be formal or informal, active or passive – and should be tailored to the local context.
Transformative transitional justice mechanisms should address the root causes of violence and focus on non-repetition.
Co-hosted by the Ministry of Foreign Affairs of the Netherlands, the Republic of Uganda, Advocats Sans Frontières (ASF), Impunity Watch, and Redress, this side event explored the challenges and opportunities for ensuring the active participation of victims in processes that have been designed for their benefit, but which often heavily limit their engagement. It focused primarily on lessons that the International Criminal Court (ICC) can learn from the experiences of two case studies: Uganda and Guatemala.
In her introduction to the event, moderator and Research Coordinator at ASF Elisa Novic noted that the inclusion of victim participation in the Rome Statute is innovative but not without its challenges. Among the greatest challenges is determining how meaningful victim participation can be ensured in contexts where systems are not prepared for it.
Permanent Representative of the Netherlands to the ICC and the Organization for the Prohibition of Chemical Weapons (OPCW) Paul van den IJssel followed Ms. Novic with opening remarks, highlighting the importance of ensuring victim participation at the ICC.
Ms. Marlies Stappers, Executive Director of Impunity Watch, spoke first, providing an overview of the challenges the international community has faced in its efforts to operationalize victim participation over the past decade. She pointed out that international actors now agree that victim participation is central to transitional justice and that this represents significant progress in the field. She attributed much of this progress to activism on the part of victims in the early years. Unfortunately, she noted, many of these mechanisms have become very bureaucratic, technical, and internationalized to the point that they exclude the victims who helped make them possible. She called for more meaningful victim participation at the early stages of transitional justice processes and emphasized the importance of transitional justice mechanisms that address the root causes of violence and focus on non-repetition as well as empower victims and expand their role in designing the mechanisms.
Ms. Stappers acknowledged that participation can take many forms and depends largely on the local context. She also distinguished between formal victim participation, including participation as ICC witnesses, parties to trial, or consultants to peace processes, and informal participation, including activism, advocacy, or involvement in memorialization projects.
Ms. Patricia Bako, Project Officer of ASF, spoke next, sharing her experience as a civil society advocate of victim participation in Uganda. Her comments centered on her work with the victims of Thomas Kwoyelo, whose case is currently before Uganda’s High Court. After providing a brief history of the ICD (originally named the War Crimes Division) as well as the case of Mr. Kwoyelo (which began in 2010), Ms. Bako explained the ASF’s role in developing rules of procedure for the special division. Because Uganda is a common law country, victim participation was not part of the existing legal framework and had to be introduced. Beginning in 2016, ASF helped train lawyers appointed by the Court to serve on victim counsels. In partnership with Redress, ASF helped the lawyers identify the victims they were tasked with representing and conduct outreach to raise victims’ awareness of the case. ASF also worked with the Court’s registrar to develop and distribute a form through which victims could apply to be involved in the Kwoyelo case. The victim counsels conducted additional outreach to obtain information that was missing from the forms, and legal assistants were trained to help screen the applications.
Ms. Bako noted that throughout this process, victims often ask about the possibility of receiving reparations. She stressed that as the case moves forward, it is important that participation remains meaningful and that “the end game” for victims is clear. The rules and procedure of the ICD provides that reparations will only be addressed at the end of the case. The victim counsels are therefore working towards holding outreach events that help to build trust among victims and give them hope throughout the process rather than focusing solely on information collection.
Elizabeth Ibanda-Nahamya, Judge of the Residual Mechanism for Criminal Tribunals and former judge of the International Crimes Division (ICD) of Uganda’s High Court, described the Ugandan experience with victim participation from an institutional perspective. She began by expressing how much her first-hand experience as a judge had affirmed the value of victim participation in the criminal justice system. Disapproving of victims’ marginalization, she also acknowledged that giving victims a voice in transitional justice processes is easier said than done.
Justice Ibanda-Nahamya highlighted two developments that have helped to broaden victim participation in transitional justice: the ICC’s legal framework and Uganda’s transitional justice policy. She pointed out that in developing new rules of procedure for victim participation, Uganda’s ICD drew significantly from the ICC rules of procedure. Still, she stated that the victim counsels of the ICD were not well-equipped. Without sufficient funding, the Court’s victim application process was inefficient and its victim outreach strategy ineffective. To date, victims have received limited support from the Court. Justice Ibanda-Nahamya expressed regret that the ICC does not consider it within its mandate to support local institutions.
Uganda’s transitional justice policy emerged in response to the reality that formal justice mechanisms are not enough to fully address the needs of victims. It provides for judicial and non-judicial processes to fulfill victims’ right to redress. Justice Ibanda-Nahamya called the policy “a victim-centered document” in the sense that victims were consulted at various points throughout the drafting process. At the same time, she noted that it still needed to be passed into law and acknowledged that it may be excessively ambitious about what it can achieve. She stressed the importance of managing victim expectations around what benefits they will realistically receive through participation. In conclusion, she called on the international community to ensure that transitional justice processes are participatory and incorporate elements of restorative justice.
After the Ugandan experience section, Alejandro Rodriguez, human rights defender and researcher at Impunity Watch and also a Guatemalan lawyer presented 3 cases of transformative victim participation in the Guatemalan transitional justice process.
In first place, he provided a brief context of the Guatemalan transitional justice system. According to Impunity Watch from all the gross human rights violations in Guatemala the cases brought to justice represent less than 1%, and there are just 25% sentences in those cases. The Inter-American Court of Human Rights (IACHR) has established that Guatemala has a large impunity issue. Mr. Rodríguez added that 80% of victims are Mayan people and for them the language, social, and ethnic barriers are way bigger.
About victims’ participation he said that they were able to take part in the processes, request and bring evidence, intervene in oral trials, submit requests for reparation in case of condemnatory sentence. Also, he noted that collective associations can be private accusers. He argued that there are 3 emblematic cases of strategic litigation that should be pointed out: The first one is the case against former dictator Efrain Ríos Montt for genocide against the Ichil people from 1982 to 1983 consisting of indiscriminate massacres, looting, and sexual assaults to women. The expert said that in 2013, Ríos Montt was sentenced to 80 years for genocide counts. Later, the sentence was annulated by the Constitutional Court due to high pressure from economic and political elites. Finally, he was convicted to 20 years of imprisonment for genocide through the Guatemalan army. For building up the case, Rodríguez said that the cultural perspective was a key issue and it facilitated establishing the litigation objectives. The legal support from the Asociación Justicia y Reparación(AJR) contributed largely to strength the process, after their intervention, the Public Ministry decided to create a ‘Transitional Justice Table’. Finally, Rodríguez mentioned that the judgment for genocide shocked the national consciousness and contributed significantly to the fight against racism.
The second case addressed concerned several widows that were taken as sexual slaves by the army in Sepur Zarco. For Rodríguez, the women were stigmatized after the war but with the support from several organizations they managed to organize human rights workshops in their region. Those responsible were sentenced for crimes against humanity, torture, and slavery. In the judgment a reparation section was included ordering the Government to build schools, health centers, and give scholarship for universities to the youth in the region, land restitution, and the women were able to transform their life and their own position within the community.
Rodríguez finally addressed the case of the Molina Taissen family. Emma Molina Taissen was arrested and transferred to a military barrack, where she was victim of torture and sexual offences. She managed to flee the premises but in the recapture operative, her brother was kidnapped and disappeared. The Chief of the Army and Intelligence was convicted for being part of a joint criminal enterprise responsible for over 45.000 enforced disappearances. According to the expert, the case had serious implications for the Molina Taissen family and they had to live in exile form 1983. Finally, the IACHR called for an end to impunity in this case and after 14 years the case was brought before a Guatemalan court with several strong security measures in order to grant victims participation. After the judgement, civil society called for the passing of a law and a national policy plan to find the missing persons.
In conclusion for Rodríguez, transitional justice processes can only be successful if victims participate and transform their life to acquire prominence through a comprehensive strategy that includes psychological help and a litigation strategy. Also, transitional justice processes should have a political strategy, according to him. He moreover remarked that a communications strategy that is able to stand out in defense of victims in case they suffer revictimization and stigmatization is required. Finally, he affirmed that a security strategy that grants confidence and protection for victims is needed. With those elements, it is possible to conduct a real strategic litigation, which allows strong victim participation for promote their rights, he concluded.
An audience member asked if there was any interplay between the victims participating in the ICC’s Ongwen case and the victims of theKwoyelo case before the national court. Ms. Bako stated that the victims of Thomas Kwoyelo felt that the ICC case was moving faster than theirs and in their frustration, have said that they wished they were the victims of Ongwen. Interim assistance and reparations from the Trust Fund for Victims (TFV) is not available to the victims of Kwoyelo, and it is not clear where those victims benefits will come from. With that said, organizations working on the two cases do interact, especially for victim participation trainings.
Ugandan Ambassador Mirjam Blaak Sow also noted that many victims who were asked to participate as witnesses in the Kwoyelo case refused on the basis that they were already witnesses in the Ongwen case. Uganda has worked with the ICC extensively around witness protection and information exchange in the two cases, seeing these efforts as a win-win form of complementarity.
Another member of the audience asked whether efforts were being made to support victims in Uganda who were not part of either case. She asked what kind of psychosocial support was made available to victims so that they – rather than civil society actors – could be the face of the movement. Ms. Bako responded that other organizations have done important work to rehabilitate victims in Northern Uganda, particularly with regard to medical surgeries for those whose faces were disfigured by members of the LRA. The TFV has played an important role in supporting these local organizations. However, Ms. Bako noted that government-funded victim assistance programs in these areas were excessively focused on development rather than reparations. As for psychosocial support, she replied that all victim outreach activities organized by civil society actors involve a counselor who works to build rapport with the victims. She stated that it is not yet clear how the ICD will be involved in delivering psychosocial support.
Justice Ibanda-Nahamya agreed with audience member about the challenge of bringing victims to the forefront and admitted that victim advocacy is progressing in baby steps. She also acknowledged that psychosocial support is not often available in Uganda and very much needed given the number of wars that have occurred. She called on civil society to take up the challenge of providing psychosocial support for victims before trials come up, and noted that they are currently working to identify and bring together experts in that area.
Before closing, a Ugandan lawyer in the audience shared his own experience of victimization and intrusive flashbacks over the course of his life. He stressed that if it is not possible to deliver reparations to victims then at minimum, psychosocial support should be delivered. Ambassador Blaak Sow closed the event by stating that the legacy of the war in Uganda remains an enormous problem – particularly for the young people who have been affected and stigmatized by their communities. “We feel we have a lost a generation,” she said, emphasizing that hardly anyone had not been affected by the war and that it would take a long time for the country to recover. She concluded that she felt that the Ugandan representatives at the event had learned a lot from their colleagues in Guatemala.