ASP18 Side Event: In the Aftermath of ISIL: Community Hearings for Gender-Based Violence Survivors and their Communities in Iraq

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: In the Aftermath of ISIL: Community Hearings for Gender-Based Violence Survivors and their Communities in Iraq (Side Event co-hosted by Canada and MADRE)

Overview by: Signe Wolf Børm, Junior Research Associate PILPG-NL

 Main Highlights:

• Community hearings are necessary to reintegrate victims of crimes committed by Daesh into their communities, as well as to increase awareness and to prevent similar events from occurring in the future.

• The Iraqi people are dissatisfied with the leaders of ISIS being prosecuted for their membership of the organisation, rather than for the specific crimes against the people.

Summary of the Event: 

Lisa Davis opened this side event on community hearings for survivors of gender-based violence in Iraq by underlining the necessity to achieve justice for the victims of Daesh. She stated that women need to be recognized and have their stories heard. Having a public hearing will assist in building support for criminal trials in the future, and encourages the reintegration of the victims of gender-based crimes and sexual assault. Lastly, Ms. Davis stated that accountability does not need to start in the Hague and that community hearings can promote stability and reintegration.

Renja Alaaldin, Iraqi advocate for MADRE, explained that MADRE started its project on justice and accountability through community hearings, because it believed people want truth and reconciliation, and because community hearings can be helpful in raising awareness, increasing public recognition, and to promote accountability.

Lisa Davis, associate professor of law at the University of New York; Co-Director of the Human Rights & Gender Justice Clinic; and senior legal advisor for MADRE, explored how community hearings can bring about peace, accountability, and reconciliation. She stated that the current situation in Iraq is characterized by a great civil dissatisfaction relating to accountability, jobs, and the killings of protesters. She noted that the people of Iraq want accountability for the crimes committed by ISIS. The Organization of Women's Freedom in Iraq (OWFI) has documented hundreds of sexual and gender-based crimes and handed over documentation to the ICC and the Office of the Prosecutor. The documentation has been stored by evidence collecting bodies such as the United Nations Investigative Team to Promote Accountability for Crimes Committed by Daesh/ISIL (UNITAD) and the International, Impartial and Independent Mechanism for Syria (IIIM). Ms. Davis highlighted the importance of accountability, justice, and for victims and survivors to have a chance to tell their stories. For the situation as it is, community hearings provide for reconciliation, the start of a healing process, and an opportunity to understand the greater picture of the conflict. Ms. Davis explained that these proceedings allow taking account of the events that have taken place within the country, allow academic and policymakers to consider the root causes of the conflict, which laws are lacking, as well as, to consider what the community needs to satisfy the needs of the individuals displaced due to the conflict.

Ms. Davis went on to state that there is a problem with the reintegration of women living under ISIS. This is because the association with ISIS makes reintegration into their communities almost impossible. A community hearing, however, could allow communities to understand the issues and allow for reintegration, as history in this context has taught us that tribunals have worked, and therefore also can work in Iraq. Ms. Davis lastly urged to act now, because of the risk of the cycle of violence repeating itself. 

Yanar Mohammed, president of the organization Women's Freedom spoke next. Ms. Mohammed discussed the situation of women enslaved by ISIS, explaining that these women were left without homes and family because they are shamed by their communities as a result of their forced marriages, and the children they gave birth to as a result of rape within the forced marriages. She stated that women should not have to live with this shame, they should be reintegrated into their communities, and in doing so, know that the future of their children is also secured. Ms. Mohammed noted that the international community should put a system in place and that this goal could only be ensured if the community is willing to recognize, respect, and support the women, as the women find themselves in a situation in which they are losing their wellbeing and their health altogether. A community hearing could be capable of ensuring survivors of these crimes to not have to hide anymore because they will be recognized, and it will turn them into a survivor in the eye of the community rather than a co-perpetrator. Such a hearing should furthermore lead to women affected receiving reparations to ensure that they can provide for their children and their future. A community hearing is moreover a step toward preventing the same acts happening again in the future - but this requires recognition first.

Agnes Callamard, UN Special Rapporteur on extrajudicial, summary or arbitrary executions spoke last and in an eloquent manner told the audience about the observation she had made on the matter. Ms. Callamard had visited Iraq right after the end of the war in 2017, when she realized that little attention was given to justice and reparations but even less attention was given to the victims, who will rarely speak in a trial. It was furthermore pointed out that the ongoing trials against the leaders of ISIS are based on their membership of the organization (which if they are convicted will lead to a death sentence), but not on the specific atrocities committed against civilians and particularly women.

Ms. Callamard noted that there about 170 mass graves in Iraq related to the recent war crimes. There are many more graves however and there are stories that come with all of them, but so do the Daesh soldier currently detained in the Iraqi prisons. The stories being told now, Ms. Callamard said do not to give the closure necessary. The justice necessary for the people in Iraq, as well as Syria, has not been prioritized by their governments nor the international community, she noted. Ms. Callamard clarified that it was not only the Yazidi women, but similar situations applied to Shia, Suni, and Christian women, who have not come forward to tell their stories yet because they have not been given the space to do so. These women should be enabled to tell their stories and in the current climate, civil society will be the main actors towards promoting justice. Ms. Callamard stated in regard to community hearings that they are not capable of replacing formal justice, but that these are necessary to start breaking the current system and the lack of care for justice. She concluded that civil society will be a key factor in doing so. She further mentioned that the Iraqi people are not satisfied with the current form of justice being done, as it was expressed that, killing ISIS leaders without trial is not good enough. Ms. Callamard explained that people recognize that community hearings will allow the truth to be spoken, which in turn will allow communities to better understand and reintegrate victims. To conclude Ms. Callamard noted that “this has been the decade of impunity. Embarking on a new decade next year, I am asking everyone to make the next decade the one of accountability.”

ASP18 Side Event: The Promise of Complementarity in Uganda: Challenges and Opportunities in Delivering Justice to Victims

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 2 (3 December 2019)

Name of the Event: The Promise of Complementarity in Uganda: Challenges and Opportunities in Delivering Justice to Victims (Side Event co-hosted by Uganda, the United Kingdom, and Justice Rapid Response (JRR))

Overview by: Signe Wolf Børm, Junior Research Associate PILPG-NL

Main Highlights:

• This side event focused on complementarity in Uganda. 

• The International Crimes Division (ICD) of the High Court of Uganda was set up in 2008 to deal with civil wars and other national conflicts. The High Court tried alleged perpetrators of crimes against humanity. The High Court of Uganda faces challenges, however, such as lack of capacity to deal with sensitive evidence and its admissibility in court. 

• The main challenge faced in Uganda in its quest to deliver justice is communication with the victims of the conflict. Ms. Solomy Awiidi highlighted that information concerning ongoing cases often is limited. 

Summary of the Event:

Judge Joanna Korner QC, former Senior Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY), initiated the meeting by reiterating the importance of the complementarity principle: the ICC is a court of last resort and should therefore only be called upon when a national court is either unable or unwilling to act. She clarified that the ICC does not offer a perfect roadmap on how to deal with specific conflicts, this was rather said to require a local response. Judge Korner went on to state that, from every perspective but in particular from that of the victim, it is preferable if prosecution occurs in the country where crimes are committed. She exemplified this by referring to her experience from the ICTY, stating that difficulties arose when a Yugoslavian witness had to be transported to the Hague to give evidence.

Judge Korner then focused on Uganda, acknowledging that Uganda has taken responsibility, launched investigations, and had acquired the capacity building necessary, particularly concerning sexual and gender-based violence. She highlighted that based on her experience from the ICTY, investigations into war crimes are extremely complex and challenging for the investigators and the court system in any country. She acknowledged that such processes are even more demanding in a country that is still recovering or suffering. Judge Korner, therefore, concluded that Uganda, having taken this task upon itself, has stepped up and has hopefully set an example of how other states can do the same.

Justice Henry Adonyo, head of the International Crimes Division of the High Court of Uganda, then outlined the structure of the International Crimes Division (ICD), a special division of the High Court of Uganda. The ICD was set up in 2008 to deal with civil wars and other national conflicts, and the court tried alleged perpetrators of crimes against humanity. Justice Henry Adonyo in his speech particularly focused on the trials of individuals form the Lord's Resistance Army (LRA). It was noted that witness participation is taking place at the High Court of Uganda but that the matter is difficult as Uganda has no unit for the protection of witnesses and victims. Another issue highlighted concerned the lack of capacities to deal with sensitive evidence and its admissibility in court. Uganda inherited its legal system from the United Kingdom and is therefore of an adversarial nature. This further contributes to the difficulties as victims are denied participation in a trial, and a solution to this matter has yet to be provided.

Hereafter, Ms. Florence Owinji Akello, Assistant Director of public prosecutions in Uganda, went on to discuss the challenge of the “amnesty law”. This act provides amnesty to certain people, for instance to some of the LRA leaders. An issue that has arisen is how the public will be explained why not all of the LRA leaders were given amnesty. A further issue highlighted by Ms. Akello was how the prosecution will determine who will serve as witnesses, and how to allow them to reproduce their story without being suppressed.

Ms. Solomy Awiidi, a transnational justice lawyer working for the Refugee project, highlighted some of the needs of victims and witnesses. Ms. Awiidi provided expert knowledge on communication with victims and victim communities. One of the key issues highlighted was that information concerning ongoing cases often is limited. Ms. Awiidi and her co-workers, however, have experienced that giving victims and victim communities information on a case is received positively. Providing victims with information helps them to manage expectations and affirms that there is a genuine interest in prosecuting. It was further mentioned that victims can be provided with educational information into how a trial works, why and how the perpetrator can afford legal protection, and why witness statements are important for trial. Ms. Awiidi underlined the importance of educating victims on how the procedure of testifying in court works and how contributions can be made. Another issue mentioned concerned the geographical representation of areas affected within one trial. It was described that a large area affected by crimes was covered in the trial and this led to the question of how the prosecutor can convince that voices of each part of the country will be heard and all concerns will be addressed. A final issue mentioned by Ms. Awiidi was the court’s lack of jurisdiction to prosecute crimes that were committed before 2010.

Lastly, Ms. Serena Gates, a UK barrister and Justice Rapid Response (JRR) expert, highlighted the necessity to look at the challenges of the case holistically. She pointed out that restrictions on the safety of both prosecutors and witnesses constitute a real issue and that the resources to deal with these issues are lacking. On a more practical level, it was stated that the systems used for filing and documenting the process is based on a paper system. 

It was concluded that it is necessary for lawyers to be able to adapt to the situations in which they find themselves to achieve the best results and to obtain the evidence necessary for trial. Sexual and gender-based violence, for instance, is stigmatized and when it is talked about, it is often done through the use of colloquial phrases which allows a victim to only indirectly state that the occurrence took place. A solution to this particular issue is the use of role-play exercises and mock trials. This can make lawyers more comfortable with having these conversations, which in turn will make it more natural for the victims to talk about what happened to them.

ASP18 Side Event: Turning Challenges into Opportunities: Rethinking the UN and Civil Society Cooperation towards accountability in Syria and Myanmar

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: Turning Challenges into Opportunities: Rethinking the UN and Civil Society Cooperation towards accountability in Syria and Myanmar (Side Event co-hosted by the Netherlands and Switzerland)

Overview by: Francisca De Castro, Junior Research Associate PILPG-NL

Summary of the Event:

This panel discussion on UN and Civil Society cooperation towards accountability in Syria and Myanmar was moderated by Nynke Staal, legal officer of the Ministry of Foreign Affairs of the Netherlands. Ms. Staal first noted that the name of the event reflects the situation perfectly, since a couple of years ago there was just hope that the situation in Syria would be referred to the ICC, and as the call is still there, in the meantime, the international community established accountability mechanisms like the International, Impartial and Independent Mechanism (IIIM) for Syria. 

Ms. Staal touched upon several challenges the IIIM faces. During expert meetings, it became evident that there was a clear need for building trust between the international and Syrian community as after all these years civil society had lost trust. Communication was needed. The Netherlands and Switzerland organized meetings between Syrian civil society and the IIIM to see which relationships needed to be built. A second challenge of the IIIM was the clarification of its purposes and to manage expectations. This process continues to this day and has resulted in a protocol. Dialogues on specific issues continue, but one of the results the IIIM has taken upon itself is to take a victim centered approach. 

Ms. Catherine Marchi-Uhel, head of the IIIM, talked about the necessity of the IIIM and the challenges it faces. She stated that professionals in the international community have a certain prejudice that civil society doesn’t speak the same diplomatic and technical language and that they have unreasonable expectations. National organizations sometimes forget that international NGOs are at the forefront of shifting the attention of the international community through information and advocacy. Ms. Marchi-Uhel stated that international civil society organizations and national organizations are not mutually exclusive, they are in clear need of one another. CSOs role was not limited to documenting the atrocities, they play a critical role placing crimes in the relevant contexts. They provide feedback on lessons learned which proved extremely useful to the IIIM. The IIIM’s mandate focuses on filling gaps in targeted investigations and it assists courts and tribunals which prosecute or may prosecute in the future. Ms. Marchi-Uhel reminded participants that the IIIM can only assist prosecutions within jurisdictions that respect due process and human rights. She said that domestic jurisdictions are doing the utmost to make use of all possibilities for justice, including using universal jurisdiction to prosecute higher-ranking officials.

Mr. Refik Hodzic, communications advisor for the Independent Investigative Mechanism for Myanmar (IIMM), explained how his job is illustrative of the commitment to building the relationship between civil society and professionals of the international community. He was brought to the mechanism to try to conceptualize the strategy of engagement with civil society. Many lessons are to be learned from the IIIM. Around 80%-90% of efforts are currently made to populate the institution with staff that could competently carry out the mandate. Mr. Hodzic said that the crucial role of civil society plays is evident. It is unfolding in the context which is very challenging on various fronts. However, there are many other external challenges that impact the capacity of the mechanism to build a constructive relation with civil society. Mr. Hodzic mentioned that the IIMM focuses on establishing substantive relationships with people who are most affected by the success of the institution. Those people are also the main source for evidence collection. One of the challenges for the IIMM is the situation in Bangladesh. The possible repatriation of refugees in Bangladesh towards Myanmar means that witnesses might become inaccessible to the mechanism. Mr. Hodzic furthermore said that a problem for the victims is that they have to provide their testimonies continuously, to different organizations, without knowing what is being done with the information. The IIMM is thinking of ways to show results to those testifying so that progress can be followed. Mr. Hodzic mentioned how this can also give victims a space for advocacy for as they have the feeling that their work matters.

Mr. Christian Mahr, director of external operations at the ICC Registry, talked from the viewpoint of the Court. He highlighted the importance of victim participation and cooperation between civil society and the organs of the Court. He said that cooperation does not not only mean getting the victims to talk about their situation, but also bringing the Court outside of The Hague and into the field. He emphasized that during the preliminary examination stage, it is about trying to find partnerships with civil society to find credible information as to open an investigation. He highlighted that the ICC provides retributive and restorative justice (through the TFV) which is why this contact is important not only in the preliminary examination stages but also during and after potential trials. 

The last two panelists to intervene where Mr. Mazen Dawish from the Syrian Center for Media and Freedom of Expression and Ms. Razia Sultana, chairperson of the Rohingya Women Welfare society, who spoke about their experiences as both victims and members of civil society groups. Mr. Dawish was rejoiced to see that there is an increasing respect for civil society and acknowledgment of partnership between civil society and international institutions working towards accountability. He noted that the work of the IIIM has helped to create a partnership based on trust and cooperation. From the civil society viewpoint, he mentioned that civil society was at first reluctant to work with the IIIM because they feared that the IIIM would take resources in Syria without truly accomplishing anything. But he was rejoiced that cooperation with the IIIM bore its fruits. He said that the partnership has helped to increase civil society’s knowledge and professionalism, and it has helped the IIIM to better understand the needs of civil society, and thus being able to give more specific help. He noted that civil society remains to face some challenges, like expanding their tools and partnering with the right organizations that have the potential to be useful in achieving justice. Ms. Razia Sultana, talked about the dire conditions of women in refugee camps in Bangladesh, and how they are still being persecuted as women. In fact, reports have shown that there is systematic rape happening to the Rohingya. She said that victims want the criminal justice system to repair the harm that has been done to them, like the restoration of citizenship that was taken from them, and that only through the exchange with organs like the IIMM can they truly tell their story and help the international community understand their needs. 

ASP18 Side Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2019

18th  SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2019 (Side Event co-hosted by Bulgaria, Finland, Niger, Senegal, Slovenia, Tunisia, Uruguay, and the ICC Office of the Prosecutor (OTP))

Overview by: Rachel Grand, Junior Research Associate PILPG-NL

Main Highlights: 

• Current Preliminary Examinations – Venezuela, Colombia, Guinea, Republic of Iraq, Nigeria, Palestine, Philippines, Ukraine, and Bangladesh/Myanmar.

• Prosecutor Fatou Bensouda discussed 3 key themes of the 2019 report – the OTP’s approach and phase 1 analysis, finalization and abstract timelines, and operational capacity/prioritization.

• Questions  – on preliminary examinations in Latin America, Palestine, Nigeria, and the investigation into the situation in Bangladesh/Myanmar.

• Read the OTP’s report Preliminary Examination Activities 2019 here. 

Summary of the Event: 

The ICC Prosecutor, Fatou Bensouda, launched the Office of the Prosecutor's annual report on Preliminary Examinations (published a day earlier on 5 December) during this event. The Prosecutor first provided an overview of the OTP’s Preliminary Examination (PE) Activities of 2019, discussing the PE’s in Venezuela, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Republic of the Philippines, Ukraine, and Bangladesh/Myanmar. 

Regarding the PE into the situation in Venezuela, she said her office would conclude the subject matter assessment in early 2020. Following that, there will be an assessment of admissibility, and her office will continue to see if crimes committed fall under the Court's jurisdiction. The Prosecutor mentioned the UN's fact-finding mission in Venezuela and noted she looks forward to cooperating with them. She continued with the PE into Colombia, in which her office is currently assessing information from national authorities. The Prosecutor could not say whether the PE will conclude in 2020 since the reality of the long-term and complex proceedings in Colombia need to be reflected. However, she expressed hope to meet specific benchmarks if the present trend will continue, and the PE will conclude. Regarding Guinea, the Prosecutor mentioned the PE stage had been painfully long due to unrest in the country, and she expressed hope there are no further delays in the proceedings. Concerning the situation in the Republic of Iraq, the OTP looks at the admissibility requirement and domestic proceedings, as well as into allegations of the blocking of the investigations. For Nigeria, the Prosecutor noted that the conduct of national proceedings has been renewed this week and she stressed the urgency of the situation. Similarly, she noted the urgency of the PE into Palestine. She noted the criticism the office has received from both sides on the delay of a decision. She affirmed that her office plans to make a decision rapidly but has many facts to consider. The Prosecutor finally discussed the PE in the Philippines and Ukraine, for which determinations should follow soon. She concluded discussing the opening of the investigation into Bangladesh/Myanmar, for which the OTP has already taken measures for the roll out of the investigation, and the appeal hearings concluding today on the potential authorization of an investigation into alleged crimes committed in Afghanistan. 

Following this overview, the Prosecutor discussed three key themes present in the 2019 report, concerning the OTP’s approach and a number of considerations and challenges. First, she touched upon the OTP’s approach and phase one analysis. She described how phase one is devoted to conducting analysis specifically looking at jurisdiction. This phase serves as a filtering process in which the OTP transforms the 795 Article 15 communications they received this year into detailed reports. Since 2012, her office has produced 50 of these reports. She emphasized the goal of providing greater transparency in this process. Further, she explained that phase two is a more detailed assessment of jurisdiction, phase three looks at admissibility, and phase four determines if the investigation would be in the interest of justice. All of the current PE’s are in phase three, except Venezuela. 

Second, the Prosecutor talked about the finalization of PE’s. She cited the several advancements made in multiple of the PE’s and said she hopes to reach decisions soon. She announced that she aims to reach a decision on all phase three PE’s before the end of her tenure, whether that be advancing to an investigation if criteria are met, not advancing to an investigation if criteria are not met, or publishing a detailed report if it is not yet time to make a decision. Regarding finalization, the Prosecutor addressed abstract timelines and noted they may fail to represent the complexities of PEs where more jurisdiction and admissibility issues need to be looked at. She lastly restated that many of the PE’s are in the stage in which a decision whether to proceed with an investigation is close to being reached.  

Third, the Prosecutor addressed the operational capacity of the OTP. She highlighted the fact that there are many PE’s, but that the capacity to address all of them is lacking. This leads to prioritization of the selection of cases. While prioritization is a key term, she noted that we must be certain about what it means and how to apply it. The Prosecutor further noted that her office is at the breaking point to sustain its current activities and faces increasing operational challenges of cooperation and interference. She emphasized that stakeholders and the review process need to consider the heavy burdens and complex problems of the OTP to meet its mandate.

The floor then opened to questions. A representative from a group of NGOs from Colombia, Venezuela, and Mexico made a statement about PE’s in Latin America. Rod Rastan, Legal Advisor to the Office of the Prosecutor, responded by saying that activity in the region shows progress, but the OTP is assessing what that progress means and if the activity is genuine. He noted regarding Mexico that the OTP continues to receive communication on preliminary examinations already decided on and can always revisit them with new information. This was also a point the Prosecutor reiterated later when Dr. David Donat Cattin, Secretary-General of Parliamentarians for Global Action asked about the reopening of PE’s and the permanent storage of evidence. 

Several participants, including Reuters Journalist Stephanie van den Berg, Raji Surani from PCHR, and a representative from Al Haq raised concerns over the Palestine PE. These questions focused on the length of this PE and the language the Prosecutor used in providing context for the situation in the report. Mr. Rastan and the Prosecutor responded to these questions by expressing their understanding of the deep frustrations felt, and noted they are trying to be as transparent as possible. They also reiterated that they are dealing with complex factual and legal issues and are grateful for the cooperation of the Palestinian authorities and NGOs. 

Netsanet Belay from Amnesty International enquired int the Nigeria PE. Mr. Rastan and the Prosecutor reiterated their recognition of frustrations and noted that a decision on Nigeria would come before the Prosecutor's tenure ends. Additionally, they emphasized the commitment of the new Nigerian authorities in prosecuting individuals who committed international crimes domestically. The Prosecutor also mentioned the frank discussion she had with the Nigerian Vice President and Attorney General recently. 

Deputy Prosecutor, James Stewart, took the opportunity to express his trust in the OTP’s staff. He noted that although the resources of the analysis section are few, they are of high quality. “The quality of the work done by the OTP is of the highest order,” he concluded.

The final question came from a legal advisor of the Polish embassy, who asked if the ICC would cooperate with the ICJ regarding the Bangladesh/Myanmar situation. Both the Prosecutor and Mr. Rastan, said they were two different institutions that follow their independent mandates. Nonetheless, they will follow each other's proceedings closely and will cooperate with all entities and fact-finding mechanisms in the process. 

The Prosecutor concluded the event saying that pressure to her office is present, but that this  pressure does not have any bearing on the work the OTP does in applying the law.

ASP18 Side Event: Establishing Reparative Justice for Victims of International Crimes in Africa

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 5 (6 December 2019)

Name of the Event: Establishing Reparative Justice for Victims of International Crimes in Africa (Side Event co-hosted by Ireland and the Institute for Security Studies)

Overview by: Andreina De Leo, Junior Research Associate PILPG-NL

Main Highlights:

• Presentation of the Report Reparative justice: an afterthought in accountability for international crime.

• Discussion on the main shortcomings and challenges of the current reparation framework for victims of international crimes

Summary of the Event:

The side event began with an opening remark by the Ambassador of Ireland to The Netherlands, Kevin Kelly. He emphasized that the topic of the event is of vital importance for Ireland. Indeed, he mentioned that the Irish government contributes to the Trust Fund for Victims (TFV) as it believes in the necessity of supporting victims in their quest for justice and the need of states to take their responsibilities seriously in this regard.

The chair of the event, Allan Ngari, Senior Researcher at the Institute for Security Studies (ISS), opened the discussion. He first presented the report he co-authored on the topic, titled Reparative justice: an afterthought in accountability for international crime, which analyses different methods for redressing victims of international crime. He stressed that an underlying problem of reparative justice is that states often do not consider reparation as part of accountability, but rather focus solely on prosecution, which may be problematic in terms of victims’ rights and their participation in the proceedings. He then introduced the panelists.

The first speaker, Judge Marc Perrin de Brichambaut, Second Vice-President of the International Criminal Court, reflected on the ICC’s approaches to reparative justice, in light of three cases: Katanga, Lubanga and al-Mahdi. In this regard, he recalled that the burden of reparation lies with the convicted person, that the identification of the victim and the determination of the harm is a judicial consideration and that victims have the right to participate in the proceedings. He also stressed that the legal role of the TFV is now clear: framing a Draft Implementation Plan for the approval of the Trial Chamber. However, implementation may lead to difficulties in certain situations, in particular in active or recurring conflict areas. Indeed, he emphasized that, even though a machinery for reparations has been put together, it is not entirely set up and there is still a long way to go to effectively deliver reparative justice to victims of international crimes. In this regard, challenges include the difficulties of the process of identification, as well as protection of vulnerable victims and the relationship between collective reparation and individual rights. In this context, it is particularly important to take the time to listen to the victims’ preferences concerning their expected form of reparation, which is usually monetary compensation, but at the same time managing expectations and convey the message that in certain situations it is just not feasible. He concluded his intervention by stressing that the biggest limit to the delivery of effective reparative justice lies in the fact that reparation is only considered after a conviction. He finally suggested that a fertile ground for solving shortcomings could be exploring the relationship between the reparations and the assistance programs of the TFV, with the idea of starting to prepare reparations on the ground from the very beginning of the procedure. 

The second speaker, Dr. Steven Kayuni, Advocate of the High Court of Malawi and ISS Consultant, also focused on the shortcomings of the reparation frameworks for international crimes and on the necessity to have an honest discussion about what is effective and what is adequate not to fail the expectations of the victims. He underlined that states have the main responsibility when it comes to deliver justice for victims and that the responsibility to repair should be conceived as a corollary of the principle of responsibility to protect. He also agreed with Judge Marc Perrin de Brichambaut in prospecting a change in thinking on the structure of the process of reparative justice, whereby reparations should be assessed at the beginning of the case, and not only after a conviction. Indeed, he stressed that acknowledging that people have suffered should be separated from convicting perpetrators. He suggested to introduce the idea of complementary reparations based on working with national institutions to provide redress for victims.

These two interventions were followed by a discussion. Pieter de Baan, Executive Director of TFV, underlined the challenges posed by the fact that victim participation is usually taken on by the heads of households, rather than by all members of the family, which excludes women from participation and Dr. Julie Fraser, Assistant Professor at Utrecht University and affiliated expert with PILPG, reflected on the adequacy of putting too much emphasis on ICC’s reparations. She questioned whether it may not be more appropriate to focus on a state’s human rights obligation, rather than individual criminal liability with regard to reparations. Furthermore, it was also noticed that reparation programs should be accompanied by the enhancement of governmental actions to ensure that victims receive appropriate redress. For example, the ministries of health could be supported in setting up clinics capable of delivering long-term support to traumatized victims.

Finally, Philipp Ambach, Head of Victims Participation and Reparations of the ICC, reflected once again on the importance of managing expectations. Alongside some of the shortcomings discussed, he mentioned that the lack of a direct liaison between the Registry and the victims’ community, as well as the limited information regarding the functioning of the Court, may lead to disappointments and misunderstandings concerning reparations, which needs to be taken into account and reflected upon.