Last week, Justice Hub published an opinion written by Kenyan human rights and victims’ advocate Maina Chamaka criticizing the ICC trial chamber decision denying reparations to Kenyan post-election violence victims who suffered harm as a result of the crimes allegedly committed by Deputy President William Ruto and former radio journalist Joshua arap Sang. This follows an earlier court decision that prematurely terminated the case against the two accused, albeit without prejudice to future prosecution.
As an NGO actor who has also had the opportunity to interact with victims of grave crimes in Northern Uganda, this decision is a bitter pill to swallow. However, as a lawyer I can understand the legal reasoning behind it. Article 75 of the Rome Statute is clear in as far as it requires a conviction of an accused person before the court can consider an award of reparations.
The negative reaction to the decision by victims’ rights advocates and victims themselves is yet another indication of the main challenge the court faces – high expectations. Victims will often expect much more from the ICC than they expect from their own national courts, which face challenges of corruption, lack of independence, and limited capacity to try grave crimes. The international nature of the court and regular citing of its commitment to bring an end to impunity for perpetrators of serious crimes leads victim communities to expect that ICC staff will carry out thorough investigations, that those most responsible will be brought to book, that judges will be independent, that the prosecutor will win the case, and that reparations will be awarded
The reality however is that the ICC is far from perfect, and therefore these expectations are mere assumptions. This is why in ICC situation countries, like Uganda and the Democratic Republic of Congo (DRC) for example, you will often hear criticisms regarding the court’s failure to indict alleged government perpetrators. During a number of the outreach sessions I attended with victim communities in Northern Uganda, there was always the expectation that the ICC intervention will result in reparations for victims.
Even in cases where reparations are provided, delays in implementing programs leave victims frustrated. The wait for reparations is still ongoing in the trial of Thomas Lubanga many years after the court’s conviction and back and forth decisions. The intended beneficiaries of this reparations program could not have envisaged that the process would take this long. Additionally, because reparations are related to specific cases brought by the prosecution, eventual reparation programs may benefit only a limited number of people.
Despite this record of disappointment, the ICC is still held on a pedestal. Its beneficiaries in situation countries expect it to perform in an impeccable manner. Other international courts addressing mass crimes, such as the International Criminal Tribunal for the former Yugoslavia and Special Court for Sierra Leone, have also been held to the same high standard. While the ICC can address some of these challenges by reinforcing its outreach programs, it will never be able to fulfill the victim communities’ huge expectations.
Nonetheless, the court has to still play its role in toning down these expectations. For example, right from the start of intervening in a situation country, it has to clearly explain its mandate to victim communities, i.e. what it can and cannot do as a court of law. This should not be left as an afterthought and addressed only following obstacles encountered in a particular case. The outreach sessions I have attended often cover general issues such as victim participation and ICC processes vis-à-vis reconciliation, with limited time dedicated to detailed discussions on how the court’s reparations process works. The explanation for this may be the fact that cases are still in their early stages and therefore delving into discussions on reparations seems premature. However, looking at the Kenya experience, it is never too early to broach this subject.
The ICC also needs to continuously explain its complementary role to communities and its partners on the ground. This can best be done through collaborative outreach sessions with national judicial institutions tasked with pursuing accountability in-country. In that way, communities are able to have joint discussions with both the ICC staff and national actors that ultimately ensure that they have a clear understanding on the roles and limitations of each institution.
Fluidity of the court’s outreach approaches and systems is very critical in order to limit backlash. Whereas national courts may successfully carry out their work with zero or limited outreach programs, for courts like the ICC, outreach is a very important tool that needs to be consistently revamped, implemented, reviewed, and monitored in close partnership with local actors on the ground. While it is important to tailor outreach programs to suit specific country contexts in which the court operates, the court’s outreach team needs to constantly draw lessons from its experiences in other contexts. Learning from the trial chamber’s cited decision regarding reparations for Kenya post-election violence victims and the delays in implementing reparation programs in the DRC, the court’s outreach program in other situation countries, such as Uganda whose cases are still in their early stages, should prioritize convening of candid victim community conversations specifically on the question of reparations.
There is need for continued emphasis of an ICC court-wide approach to outreach in order to send out a unified message on different questions raised by victim communities and also allow them to hear directly from different teams involved in any given court process. The ICC has to move away from the usual practice of having one-off involvement of Hague-based staff in outreach sessions.
The majority of victims often see the ICC’s intervention as timely and therefore place all their hopes in the institution. The tough reality only hits home after first-hand experience when they realize that like national courts, the ICC has its limits and may not provide all the answers and justice that they seek.
And so the cycle of false hope continues in the ICC’s next country of intervention.