Please find below a commentary written by Emily Kenney, a consultant on transitional justice at UN Women. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.
On April 5, 2016, Trial Chamber V of the International Criminal Court (ICC) decided by majority to terminate the case against William Samoie Ruto and Joshua Arap Sang. The defendants had been accused of crimes against humanity in relation to Kenya’s 2007-2008 post-election violence. While the ICC may never determine the identity of those responsible for these crimes (the Ruto and Sang decision is currently open for appeal, and the ICC’s investigation in Kenya is still technically ongoing), there is no doubt that the violence left thousands of victims in its wake.
Where does the apparent conclusion of this case leave the victims of Kenya’s post-election violence? It is important to note that trials are continuing in domestic courts, and as recently as last month, victims appeared before the Kenyan High Court, describing their ongoing mental anguish and asking for compensation for their suffering.
For these victims, reparations are not just necessary to ease their suffering or to set them on the path toward economic empowerment. There is an international obligation on the part of the Kenyan government to provide them, for which there has been wavering respect.
Under international law, States have a well-established legal duty to provide reparation for gross violations of international human rights law and serious violations of international humanitarian law. The UN General Assembly adopted basic principles and guidelines of the right to a remedy and reparation for victims in 2005, and Kenya’s constitution and national laws also recognize the rights of victims in this regard.
After the post-election violence in Kenya, the government formed a Truth, Justice and Reconciliation Commission (TJRC) to investigate human rights abuses committed between December 12, 1963 and February 28, 2008 and to suggest appropriate remedial action, including with regard to reparations for victims. The TJRC final report, released in 2013, recommended a comprehensive package of individual and collective reparations for victims of a broad range of violations, including sexual and gender-based violence, forced displacement, and historic marginalization. The TJRC further recommended that the Kenyan National Assembly adopt regulations enshrining the reparations plan as law.
The National Assembly has yet to act on the TJRC’s recommendation on reparations. In 2015, President Uhuru Kenyatta created US$110 million Restorative Justice Fund for victims. That fund has yet to be operationalized.
With Kenya uncommitted to delivering reparations to victims, for years, hope had rested with the ICC’s case against Ruto and Sang, and the possibility that compensation might come through a conviction, as it will for victims in the Thomas Lubanga case—the court’s first conviction and reparations decision. Under article 75(2) of the Rome Statute, the court may make an order directly against a convicted person specifying appropriate reparations to victims.
The termination of the case against Ruto and Sang would appear to foreclose the possibility of a reparations order at the ICC. However, in the trial chamber’s decision, the two judges in the majority disagreed as to whether compensation might still be available to victims. Judge Robert Fremr contended that compensation could not be awarded because there had been no conviction in the case, but Judge Chile Eboe-Osuji argued that reparations need not be dependent on a conviction—thus leaving open the possibility that court-ordered reparations for Kenyan victims might still be possible.
In his opinion, Judge Eboe-Osuji wrote that there is no general principle of law that requires a conviction as a prerequisite to reparations. Furthermore, it would be undesirable for the ICC to require as much: victimhood is an objective reality that burdens victims, regardless of question of individual criminal responsibility. The ICC can establish victimhood, even if it fails to convict the accused, and on this basis, it can award reparations.
As precedent for the award of reparations without a conviction, Judge Eboe-Osuji pointed to the criminal injuries compensation schemes in “many national jurisdictions.” The footnote for this statement cites New Zealand, Ontario (Canada), the United Kingdom, and Western Australia. Despite Judge Eboe-Osuji’s assertion, there appears to be rather limited precedent for the award of reparations for gross violations of human rights in national criminal courts without a conviction. However, Judge Eboe-Osuji overlooks the significant work of regional and international human rights courts, which have long demanded that States pay reparations to victims without making an individual determination of criminal responsibility. These bodies instead make a determination of State responsibility for a violation—much like the judge proposes the ICC do in relation to Kenya. While the European Court of Human Rights and the African Court on Human and Peoples’ Rights have the power to order victim compensation, the Inter-American Court of Human Rights has been particularly assertive in its exercise of these powers.
In his opinion on the Ruto and Sang case, Judge Eboe-Osuji wondered aloud whether there may be “scope for the Court to require the Government to make adequate reparation to the victims of post-election violence.” He proposed that a State’s meddling in a prosecution—as Kenya has—could trigger the court’s jurisdiction to issue an order of reparations against that State. He references Article 4(1) of the Rome Statute, which gives the Court “such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purpose.”
Effectively, Judge Eboe-Osuji suggested that Article 4(1) provides the ICC with jurisdiction to make determinations of State responsibility—even if only for the purposes of reparations decisions, further confined to the limited set of cases where there is clear evidence of State interference. While this would be a welcoming move to victims in Kenya, Judge Eboe-Osuji’s proposal would also significantly expand the powers of the court implicit in the Rome Statute, to include those more often associated with a human rights body. This would undoubtedly trigger concern from States Parties that may feel this is beyond the scope of an international criminal tribunal, which is only tasked to prosecute individuals for grave crimes. It also seems unlikely that the government of Kenya, which has obstructed the work of the court to-date, and has been unwilling to live up to its own promises to provide reparations to victims, would be willing to deliver reparations that are ordered in The Hague.
A clearer and less controversial path for assistance to victims in Kenya would be through the ICC’s Trust Fund for Victims (TFV). The TFV already has a clear mandate from States Parties to provide physical, psychological, and material support to victims and their families, separately from, and prior to, a conviction by the court. Victim assistance is legally distinct from reparations, as reparations must be tied to an acknowledgement of responsibility; assistance would not relieve Kenya from its obligation under international law to provide reparations for victims. However, assistance could significantly benefit Kenyan victims. It could also relieve States Parties from concern over expansion of the court’s powers.
In February, Human Rights Watch released I Just Sit and Wait to Die: Reparations for Survivors of Kenya’s 2007-2008 Post-Election Sexual Violence. The report details the significant physical and psychological trauma and socioeconomic hardship that an estimated 900 survivors of sexual violence during the post-election violence continue to experience, worsened by the Kenyan government’s failure to provide medical care, psychosocial support, monetary compensation, and other redress. The emotional victim testimony shared in the report—referenced in its title—makes it clear that comprehensive reparations, alongside other forms of victim support, are an urgent necessity. This is the case for not only survivors of sexual violence, but also victims who have suffered other crimes, including the hundreds of thousands that have been displaced from their homes and victims of police shootings. The Government of Kenya must act on its legal obligation to provide reparations, but the ICC and its Trust Fund for Victims can, and should, also play a significant role in addressing the untenable situation of victims of post-election violence in Kenya.