One of the most problematic aspects of the ICC is the role assigned to the security council (UNSC) to refer situations to the Court (art 13) and to suspend proceedings before the Court for a year (art 16).
Whatever its justification, it is problematic because it preserves the politicized role of the UNSC in a judicial body and projects the selectivity of the UNSC when acting to create ad hoc criminal tribunals in the past.
From an African perspective, the African Union has cited the role of the UNSC in its accusations against what it regards as selectivity on the ICC's part. One has to note that this accusation against the ICC may appear unfair because in situations where the court cannot act because a matter cannot get to the court either through a state referral or proprio motu initiative by the prosecutor only the UNSC can trigger jurisdiction. The problem however, is not that the UNSC can, and has in fact referred some situations to the court - Darfur and Libya - but that it has acted selectively. Commentators and the AU point for instance to possible war crimes committed during Operation Cast Lead in Gaza within the same time frame. Some go as far as Iraq and Afghanistan.
Until now, the ICC has been mum about the potential political role of the UNSC in the court. The ICC's supporters for their part have been quick to dismiss this as a minor issue, noting that once a matter gets to the court, only legal criteria become relevant. While this is true, it has to be acknow3ledged that the manner in which the UNSC has evolved not only in referrals but also in refusing to defer (esp Darfur) has had an impact on the international legitimacy of the ICC. In any case, the statutorily protected prosecutorial role in charging suspects is another site for potential politicisation but has received but limited attention until now.
In a surprising turn of events, the outgoing Prosecutor Moreno-Ocampo (perhaps emboldened by his impending departure and can now afford to be frank) has admitted that there is a double standard at the ICC.
Read his recent comments reported by Opinio Juris here.
Tuesday, November 8, 2011
Saturday, April 9, 2011
UK Denies Responsibility for Torture of Mau Mau
The hearing of a case filed by four Mau Mau veterans who waited 50 years for their day in court have commenced in London. The claim by the veterans is that the UK governmnet is responsible for torture they suffered at the hands of the colonial administration. The UK government opened by denying responsiblity, claiming that the UK government was separate from the colonial administration in Kenya which functioned as an autonomous entity. For this reason, the UK government cannot bear responsility for atrocities suffered. Without getting into the merits, the UK argument does not square with the ide of 'Empire': that all foreign possesions were part of the British Empire with London exercising varying degrees of control on the overseas territories. The case may turn on whether sufficient link is established between the two in a manner that infers responsibility for the UK government.
Although it is not clear whether this will feature in arguments, this case raises an interesting question relating to the law of state responsibility. Can governments that take over after the end of colonial rule be hel legally, and morally responsibile for the departed colonial administration?
Two theories are applicable. First, that of universal succession, in terms of which post colonial government inherits all obligations incurred by the departing power. If this were to apply to the instant case, then Kenya is liable to pay compensation to the Mau Mau veterans. The second theory is the 'clean slate' (tabula rasa) approach. This approach holds that the new governmnt starts afresh, and cannot be held liable for the conduct of the departing colonial government. This is most gavoured by newly independent states for obvious reasons. This approach was favoured by Nile basin states that rejected the Nile Water Agreement of 1929, granting Egypt the lion's share of the Nile waters. The Nile Agreement has been replaced with a multilateral one, Nile Treaty of 2010.
On the Mau Mau case, see here
Although it is not clear whether this will feature in arguments, this case raises an interesting question relating to the law of state responsibility. Can governments that take over after the end of colonial rule be hel legally, and morally responsibile for the departed colonial administration?
Two theories are applicable. First, that of universal succession, in terms of which post colonial government inherits all obligations incurred by the departing power. If this were to apply to the instant case, then Kenya is liable to pay compensation to the Mau Mau veterans. The second theory is the 'clean slate' (tabula rasa) approach. This approach holds that the new governmnt starts afresh, and cannot be held liable for the conduct of the departing colonial government. This is most gavoured by newly independent states for obvious reasons. This approach was favoured by Nile basin states that rejected the Nile Water Agreement of 1929, granting Egypt the lion's share of the Nile waters. The Nile Agreement has been replaced with a multilateral one, Nile Treaty of 2010.
On the Mau Mau case, see here
Tuesday, March 1, 2011
Kenya's Deferral Request Should Worry the ICC
For some thoughts on this issue, see this short piece published by the Royal African Society. In this article, I argue that the kenyan and Sudan are linked in a number of ways, and that while basic legal criteria are not met to secure deferral, links with Sudanese situation complicates decision-making for the UNSC. I conclude that whatever happens, the ICC is unlikely to re-emerge unscathed.
Tuesday, December 21, 2010
No Need For a Referendum to Withdraw from Rome Statute, Treaties and Conventions
Like the contentious Al Bashir visit, the naming of 6 suspects by ICC Prosecutor Ocampo has evoked very disturbing comments about the new constitution.
For Kenyans to reap fully from the new constitution, we must not interpret the constitution in a manner that undermines rights and offends against the naked letter of the Constitution. Judge Musinga’s recent ruling on boundaries is a good example (jurisdicction).
But we must also not interpret it too restrictively, and without much reflection because this would make it difficult for government to perform its functions, including engaging Kenya in international affairs. The suggestion by some MPs and lawyers that we need a referendum to withdraw from an international treaty – in this case the Rome Statute – is a perfect example.
I suspect that these views are largely due to limited understanding of relevant international law and comparative experience.
I have commented before (during the Al Bashir saga) on the place of international law under Kenyan law, in view of our new constitution. I feel constrained to revisit some of my arguments in view of the current furore.
The relevant parts of the Constitution, articles 2(5) and 2(6) respectively read as follows:
The general rules of international law shall form part of the law of Kenya
Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.
These two provisions simply regulate the relationship between domestic/national law and international law. They have nothing to do with the supremacy of the constitution. The two provisions were placed in the wrong section of the constitution by COE, but it is not fatal. On the naked letter of those provisions, as well as comparative experience, they need not be interpreted differently simply because they are in the section ‘supremacy of the constitution’.
Contrary to views expressed by by Hon Mutula, Karua, Mungatana and Muite and echoed elsewhere, a plain reading of 2(5) and 2(6) shows that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the constitution.
This is not an academic distinction. This reasoning is in line with major legal traditions in the world, including our own, unless we want to invent a new tradition which would make it difficult for us to engage internationally. There are other serious implications, but the main one is that Kenya can only join or withdraw from any treaty – even minor bilateral treaties – by approval of a referendum! Even as a matter of pragmatism and policy, it is the wrong interpretation, in view of the number of agreements Kenya signs with foreign nations, and the expense of running a single referendum! Our engagement internationally would suffer significant, unwarranted hiccups......
The only difference is between custom and treaties is how the two categories of rules of international law become part of Kenyan law.
General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states eg the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.
These customary rules, are superior rules and automatically form part of Kenyan law. No legislation is needed to make customary rules part of Kenyan law. Because some customary rules are contained in treaties, once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. All other rules of international law ie non-customary rules contained in treaties and conventions (art 2.6 above) only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.
The words ‘under this constitution’ at the end of art 2(6) do NOT mean that treaties like the Rome Statute form part of the Constitution. And this is where the MPs named above get it completely wrong. ‘Under this constitution’ means ‘as provided by the constitution’. In other words, the constitution provides how treaties and conventions form part of Kenyan law. Note the difference with article 2(5) which omits ‘under this constitution’, because custom forms part of our law or is incorporated automatically in Kenyan law when a new international custom emerges.
Our constitution provides how treaties form part of Kenyan law by vesting full legislative powers in Parliament. In terms of our constitution, the executive negotiates, ratifies and withdraws from treaties. Parliament translates treaties into Kenyan law by passing legislation. It also has full powers to repeal or amend any law it makes, including the International Crimes Act.
We can question Parliament’s motives or that of the movers of the motion. We can oppose withdrawal from the ICC for other reasons, including the imperatives for justice. And I understand those opposed to repealing the International Crimes Act or withdrawing from the ICC to be saying that it is not advisable, and that it is in fact duplicitous to make this attempt. But it is very strange indeed to suggest that it is unconstitutional for parliament to do legislative work! Under the old and new constitution, and the constitution of any country, it is the work of Parliament to make and unmake laws! In fact, we would be acting unconstitutionally if we prevented Parliament engaging in lawmaking through various mechanisms, including motions.
Constitutionally, parliament’s powers are limited to legislating, which includes translating treaties into Kenyan law. But they cannot negotiate or withdraw from a treaty. They can only pass a motion asking the executive to do so. This is not unconstitutional. It is up to the executive to take the process forward, or refuse to do so. The new constitution demarcates functions but proposes cooperative engagement between the three arms of government and levels of government: national and county. It cannot be unconstitutional for one arm or level of government – while keeping to its functions – to remind or request another to perform a constitutional function.
While noting that repealing the International Crimes Act does not amount to withdrawing from the ICC, the Rome Statute is clear that any State Party can withdraw (art 127). As an international lawyer, I don’t know of any treaty (including the UN Charter) that would bar a party from withdrawing. I explore conditions of withdrawal in another post.
In conclusion, I must emphasise that there is no need to amend the Constitution because the Rome Statute – just like other treaties ratified by Kenya – does not form part of the Constitution. The argument that the Rome Statute and other treaties form part of the constitution is unsupported by both comparative experience and a plain reading of art 2(6) or any other provision in the Constitution. As argued, to suggest otherwise produces a result that we do not want to live with: making it near impossible for the executive to speedily, effectively engage Kenya internationally through negotiated agreements.
Beyond legal arguments, and while noting that repealing the International Crimes Act neither withdraws Kenya from the ICC nor stops current ICC process, what can be asked of parliament is: what alternatives are we offering for real justice for victims?
I explore the idea of options in another post.
For Kenyans to reap fully from the new constitution, we must not interpret the constitution in a manner that undermines rights and offends against the naked letter of the Constitution. Judge Musinga’s recent ruling on boundaries is a good example (jurisdicction).
But we must also not interpret it too restrictively, and without much reflection because this would make it difficult for government to perform its functions, including engaging Kenya in international affairs. The suggestion by some MPs and lawyers that we need a referendum to withdraw from an international treaty – in this case the Rome Statute – is a perfect example.
I suspect that these views are largely due to limited understanding of relevant international law and comparative experience.
I have commented before (during the Al Bashir saga) on the place of international law under Kenyan law, in view of our new constitution. I feel constrained to revisit some of my arguments in view of the current furore.
The relevant parts of the Constitution, articles 2(5) and 2(6) respectively read as follows:
The general rules of international law shall form part of the law of Kenya
Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.
These two provisions simply regulate the relationship between domestic/national law and international law. They have nothing to do with the supremacy of the constitution. The two provisions were placed in the wrong section of the constitution by COE, but it is not fatal. On the naked letter of those provisions, as well as comparative experience, they need not be interpreted differently simply because they are in the section ‘supremacy of the constitution’.
Contrary to views expressed by by Hon Mutula, Karua, Mungatana and Muite and echoed elsewhere, a plain reading of 2(5) and 2(6) shows that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the constitution.
This is not an academic distinction. This reasoning is in line with major legal traditions in the world, including our own, unless we want to invent a new tradition which would make it difficult for us to engage internationally. There are other serious implications, but the main one is that Kenya can only join or withdraw from any treaty – even minor bilateral treaties – by approval of a referendum! Even as a matter of pragmatism and policy, it is the wrong interpretation, in view of the number of agreements Kenya signs with foreign nations, and the expense of running a single referendum! Our engagement internationally would suffer significant, unwarranted hiccups......
The only difference is between custom and treaties is how the two categories of rules of international law become part of Kenyan law.
General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states eg the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.
These customary rules, are superior rules and automatically form part of Kenyan law. No legislation is needed to make customary rules part of Kenyan law. Because some customary rules are contained in treaties, once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. All other rules of international law ie non-customary rules contained in treaties and conventions (art 2.6 above) only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.
The words ‘under this constitution’ at the end of art 2(6) do NOT mean that treaties like the Rome Statute form part of the Constitution. And this is where the MPs named above get it completely wrong. ‘Under this constitution’ means ‘as provided by the constitution’. In other words, the constitution provides how treaties and conventions form part of Kenyan law. Note the difference with article 2(5) which omits ‘under this constitution’, because custom forms part of our law or is incorporated automatically in Kenyan law when a new international custom emerges.
Our constitution provides how treaties form part of Kenyan law by vesting full legislative powers in Parliament. In terms of our constitution, the executive negotiates, ratifies and withdraws from treaties. Parliament translates treaties into Kenyan law by passing legislation. It also has full powers to repeal or amend any law it makes, including the International Crimes Act.
We can question Parliament’s motives or that of the movers of the motion. We can oppose withdrawal from the ICC for other reasons, including the imperatives for justice. And I understand those opposed to repealing the International Crimes Act or withdrawing from the ICC to be saying that it is not advisable, and that it is in fact duplicitous to make this attempt. But it is very strange indeed to suggest that it is unconstitutional for parliament to do legislative work! Under the old and new constitution, and the constitution of any country, it is the work of Parliament to make and unmake laws! In fact, we would be acting unconstitutionally if we prevented Parliament engaging in lawmaking through various mechanisms, including motions.
Constitutionally, parliament’s powers are limited to legislating, which includes translating treaties into Kenyan law. But they cannot negotiate or withdraw from a treaty. They can only pass a motion asking the executive to do so. This is not unconstitutional. It is up to the executive to take the process forward, or refuse to do so. The new constitution demarcates functions but proposes cooperative engagement between the three arms of government and levels of government: national and county. It cannot be unconstitutional for one arm or level of government – while keeping to its functions – to remind or request another to perform a constitutional function.
While noting that repealing the International Crimes Act does not amount to withdrawing from the ICC, the Rome Statute is clear that any State Party can withdraw (art 127). As an international lawyer, I don’t know of any treaty (including the UN Charter) that would bar a party from withdrawing. I explore conditions of withdrawal in another post.
In conclusion, I must emphasise that there is no need to amend the Constitution because the Rome Statute – just like other treaties ratified by Kenya – does not form part of the Constitution. The argument that the Rome Statute and other treaties form part of the constitution is unsupported by both comparative experience and a plain reading of art 2(6) or any other provision in the Constitution. As argued, to suggest otherwise produces a result that we do not want to live with: making it near impossible for the executive to speedily, effectively engage Kenya internationally through negotiated agreements.
Beyond legal arguments, and while noting that repealing the International Crimes Act neither withdraws Kenya from the ICC nor stops current ICC process, what can be asked of parliament is: what alternatives are we offering for real justice for victims?
I explore the idea of options in another post.
Thursday, November 25, 2010
Trial of Somali Pirates Opens in Hamburg
The trial of 10 Somali pirates has opened in the German city of Hamburg. This is the first such trial in 40 years. Read more here.
Sunday, November 21, 2010
New Book on Militias, Rebels and Islamist Militants
A new book, Militias, Rebels and Islamist Militants: Human Insecurity and State Crisis edited by Wafula Okumu and Augustine Ikelegbe has been published by the Institute for Security Studies (Pretoria, October 2010).
This seminal work explores how armed non-state groups have emerged as key players in African politics and armed conflicts since the 1990s. The book is a critical,multidisciplinary and comprehensive study of the threats that militias, rebels and Islamist militants pose to human security and the state in Africa. Through case studies utilising multidisciplinary approaches and concepts, analytical frameworks and perspectives cutting across the social sciences and humanities, the book conceptualises armed non-state groups in Africa through their links to the state.
My contribution to the book, (chapter 4)titled, 'Armed non-state entities in international law: status and challenges of accountability' (pages 89-119): attempts to distinguish the various categories of actors – national liberation movements, rebels and militia as well as other relevant groups – in legal context; reviews international law and the branches that are relevant to these groups – in particular rebel movements and militia groups;outlines the legislative responses by the African Union and United Nations to rebels and militia activities win the African context; and provides an overview of the breaches of international law committed by these groups and how international and national legal regimes have held them accountable, and some of the challenges of holding perpetrators accountable under international law.
The 552 page book is downloadable in full at http://www.issafrica.org/pgcontent.php?UID=30496
This seminal work explores how armed non-state groups have emerged as key players in African politics and armed conflicts since the 1990s. The book is a critical,multidisciplinary and comprehensive study of the threats that militias, rebels and Islamist militants pose to human security and the state in Africa. Through case studies utilising multidisciplinary approaches and concepts, analytical frameworks and perspectives cutting across the social sciences and humanities, the book conceptualises armed non-state groups in Africa through their links to the state.
My contribution to the book, (chapter 4)titled, 'Armed non-state entities in international law: status and challenges of accountability' (pages 89-119): attempts to distinguish the various categories of actors – national liberation movements, rebels and militia as well as other relevant groups – in legal context; reviews international law and the branches that are relevant to these groups – in particular rebel movements and militia groups;outlines the legislative responses by the African Union and United Nations to rebels and militia activities win the African context; and provides an overview of the breaches of international law committed by these groups and how international and national legal regimes have held them accountable, and some of the challenges of holding perpetrators accountable under international law.
The 552 page book is downloadable in full at http://www.issafrica.org/pgcontent.php?UID=30496
Friday, November 5, 2010
My New Book on Victims and the International Criminal Court
My new book, Rethinking International Criminal Law: Restorative Justice and the Rights of Victims in the International Criminal Court (2010) has been published by Lap Lambert Academic Publishers in Germany. It is available at major stores in the US and Europe as well as www.amazon.com [see: http://www.amazon.com/s/ref=ntt_athr_dp_sr_1?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Godfrey%20Musila] and www.morebooks.de (follow this link https://www.morebooks.de/store/gb/book/rethinking-international-criminal-law/isbn/978-3-8433-6810-0) (Morebooks offers free shipping worldwide).
More About the Book
Since the International Military Tribunal (IMT) at Nuremberg, the first international tribunal to try individuals for international crimes, the role of victims of international crimes in international criminal proceedings has been limited to that of witnesses. The ad hoc international tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) did not change this position. As such, the International Criminal Court (ICC) is the first international criminal tribunal to provide for the rights of victims to participate in their own right in criminal proceedings. Similarly, it is the first such tribunal to provide for their right to reparations.
This study focuses on the right of victims to participation and to reparations under the Rome Statute of the International Criminal Court. It argues that the ICC offers an opportunity for the entrenchment of the concerns of victims in the international criminal process. However, it suggests that this depends on what framework of justice the Court adopts. The study further argues that previous international criminal tribunals – the IMT at Nuremberg and the ad hoc International Criminal Tribunals (ICTY, ICTR and SCSL) – operated on retributive and utilitarian theories of criminal justice that are exclusionary of and inimical to specific concerns of victims of international crimes. The largely retributive and utilitarian objects driving these systems limited victims to a peripheral status in the process and failed to address fully the harm occasioned to victims.
This study suggests that the ICC should adopt a restorative justice paradigm in order to give full effect to the rights of victims while protecting the rights of defendants and meeting the law enforcement functions of the Court. The study reviews the relevant texts – the Rome Statute, its Rules of Evidence and Procedure and other instruments – and demonstrates that the ICC framework provides a basis for such a restorative justice paradigm. In order to suggest a trajectory for the operationalisation of the ICC victims’ rights regime underpinned by principles of restorative justice, the study attempts a systematic review of the rights of victims in criminal law processes in select domestic criminal justice systems (including the USA, France, United Kingdom), international human rights tribunals and other international courts. At the same time, the study reviews the implementation of reparations in various contexts and makes suggestions as to how the ICC and the Victim Trust Fund of the ICC should proceed in this regard within the relevant legal and institutional framework.
In relation to the right to participate, the study concludes that Article 68(3) of the Rome Statute – the general provision on the subject – strikes the right balance between the right of victims to participate, defence rights to an expeditious trial and the law enforcement function of the Prosecutor. However, it argues that the scope of victim participation at various stages of the proceedings will depend on, among others, the paradigm of justice adopted by the Court and, in view of the Prosecutor’s seemingly knee-jerk opposition to victim participation, the attitude adopted by the Court itself to this new right of victims. The study reviews relevant texts and concluded that the Rome Statute’s victims’ rights regime presupposes a restorative model of justice – understood as values and principles rather than ‘practices’ and ‘methods’ as applied in some national criminal justice systems. Restorative justice contemplates a central role for victims of crime in relevant proceedings. Henceforth, the rights of defendants must not only be weighed against the concerns of the Prosecutor but also the right of victims to participate.
The study concludes further that the tests established for victims’ participation – appropriateness, the requirement for their personal interests to be affected and the rights of defendants – present serious challenges in view of the fact that ICC crimes for the most part will involve mass atrocity. The number of victims who may eventually participate in particular proceedings is thus very small. The study notes that while the provision for legal representation of victims alleviates some of the difficulties associated with participation by a varied mix of victims in complex proceedings, it may be considered as diminishing the impact of direct participation. While the scope and modes of victim participation will vary at various phases of proceedings, current jurisprudence at the ICC shows that the Court seems to favor a broad presumption of victim participation. Since full realization by victims of the right to participate will depend on the role that the Court will play, it is crucial that the right paradigm of justice is adopted.
With respect to the right to reparations, the study notes that this is perhaps the greatest innovation in the Rome Statute. The study finds that the Rome Statute establishes two ‘focal points’ for purposes of reparations – the Court and the Victim Trust Fund (VTF) – in close relationship with each other. Drawing from the experience of national criminal justice systems, the study acknowledges the practical difficulties involved in vesting a criminal court with a reparation function argues that this will pose particular challenges to the Court. These include the need to protect the right of a defendant to a speedy trial, the presumption of innocence and to conduct efficient proceedings. Having reviewed the texts and relevant jurisprudence, the study concludes that various mechanisms, including various permissive rules and the creation of the Victim Trust Fund make it possible to address some of the difficulties associated with the right to reparations in the ICC.
The study further notes that while a reading of the relevant provisions establish the possibility of the Court and Victim Trust Fund instituting independent reparations schemes, it is imperative that the two collaborate in order to give full effect to that function. In any case, while Regulation 56 of the Court’s Regulations provides for the possibility of considering reparations issues during the main trial, the fact that a reparation order against an accused is dependent on finding of guilt of the accused, it necessarily means that a definitive finding on reparation has to come after that.
Further, the study concludes that in context of mass atrocities and the possibility that numerous victims may prove the requisite links to a case to obtain reparations, holding joint proceedings would complicate and burden the trial. However, the study endorses the initial view of the Court that evidence concerning reparations could, at least in part – where appropriate, and in the interest of efficiency and victims – be considered during the trial.
The study further concludes that the Victim Trust Fund, which presents greater flexibility than the Court in terms of standards of proof, the requirement for criminal liability and various other mechanisms should be allowed a more prominent role in the processing of reparations. A survey of various mass reparation schemes – Holocaust reparations, South African Truth and Reconciliation Commission, the Rwandan Gacaca model and the United Nations Compensation Commission (UNCC), as well as the United States’ Alien Tort Claims Act (ATCA), a particular mass tort litigation mechanism – offer some useful lessons on a range of challenging reparation related questions.
The study concludes that while the Rome Statute offers an important opportunity for victims in terms of reparations, various challenges including shortage of funds and the large number of victims requires that situation countries – those states under investigation by the ICC and from which victims are drawn – cannot abandon their primary responsibility of providing appropriate remedies for victims. The ICC is not, and cannot be a panacea for the concerns of victims of international crimes.
More About the Book
Since the International Military Tribunal (IMT) at Nuremberg, the first international tribunal to try individuals for international crimes, the role of victims of international crimes in international criminal proceedings has been limited to that of witnesses. The ad hoc international tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) did not change this position. As such, the International Criminal Court (ICC) is the first international criminal tribunal to provide for the rights of victims to participate in their own right in criminal proceedings. Similarly, it is the first such tribunal to provide for their right to reparations.
This study focuses on the right of victims to participation and to reparations under the Rome Statute of the International Criminal Court. It argues that the ICC offers an opportunity for the entrenchment of the concerns of victims in the international criminal process. However, it suggests that this depends on what framework of justice the Court adopts. The study further argues that previous international criminal tribunals – the IMT at Nuremberg and the ad hoc International Criminal Tribunals (ICTY, ICTR and SCSL) – operated on retributive and utilitarian theories of criminal justice that are exclusionary of and inimical to specific concerns of victims of international crimes. The largely retributive and utilitarian objects driving these systems limited victims to a peripheral status in the process and failed to address fully the harm occasioned to victims.
This study suggests that the ICC should adopt a restorative justice paradigm in order to give full effect to the rights of victims while protecting the rights of defendants and meeting the law enforcement functions of the Court. The study reviews the relevant texts – the Rome Statute, its Rules of Evidence and Procedure and other instruments – and demonstrates that the ICC framework provides a basis for such a restorative justice paradigm. In order to suggest a trajectory for the operationalisation of the ICC victims’ rights regime underpinned by principles of restorative justice, the study attempts a systematic review of the rights of victims in criminal law processes in select domestic criminal justice systems (including the USA, France, United Kingdom), international human rights tribunals and other international courts. At the same time, the study reviews the implementation of reparations in various contexts and makes suggestions as to how the ICC and the Victim Trust Fund of the ICC should proceed in this regard within the relevant legal and institutional framework.
In relation to the right to participate, the study concludes that Article 68(3) of the Rome Statute – the general provision on the subject – strikes the right balance between the right of victims to participate, defence rights to an expeditious trial and the law enforcement function of the Prosecutor. However, it argues that the scope of victim participation at various stages of the proceedings will depend on, among others, the paradigm of justice adopted by the Court and, in view of the Prosecutor’s seemingly knee-jerk opposition to victim participation, the attitude adopted by the Court itself to this new right of victims. The study reviews relevant texts and concluded that the Rome Statute’s victims’ rights regime presupposes a restorative model of justice – understood as values and principles rather than ‘practices’ and ‘methods’ as applied in some national criminal justice systems. Restorative justice contemplates a central role for victims of crime in relevant proceedings. Henceforth, the rights of defendants must not only be weighed against the concerns of the Prosecutor but also the right of victims to participate.
The study concludes further that the tests established for victims’ participation – appropriateness, the requirement for their personal interests to be affected and the rights of defendants – present serious challenges in view of the fact that ICC crimes for the most part will involve mass atrocity. The number of victims who may eventually participate in particular proceedings is thus very small. The study notes that while the provision for legal representation of victims alleviates some of the difficulties associated with participation by a varied mix of victims in complex proceedings, it may be considered as diminishing the impact of direct participation. While the scope and modes of victim participation will vary at various phases of proceedings, current jurisprudence at the ICC shows that the Court seems to favor a broad presumption of victim participation. Since full realization by victims of the right to participate will depend on the role that the Court will play, it is crucial that the right paradigm of justice is adopted.
With respect to the right to reparations, the study notes that this is perhaps the greatest innovation in the Rome Statute. The study finds that the Rome Statute establishes two ‘focal points’ for purposes of reparations – the Court and the Victim Trust Fund (VTF) – in close relationship with each other. Drawing from the experience of national criminal justice systems, the study acknowledges the practical difficulties involved in vesting a criminal court with a reparation function argues that this will pose particular challenges to the Court. These include the need to protect the right of a defendant to a speedy trial, the presumption of innocence and to conduct efficient proceedings. Having reviewed the texts and relevant jurisprudence, the study concludes that various mechanisms, including various permissive rules and the creation of the Victim Trust Fund make it possible to address some of the difficulties associated with the right to reparations in the ICC.
The study further notes that while a reading of the relevant provisions establish the possibility of the Court and Victim Trust Fund instituting independent reparations schemes, it is imperative that the two collaborate in order to give full effect to that function. In any case, while Regulation 56 of the Court’s Regulations provides for the possibility of considering reparations issues during the main trial, the fact that a reparation order against an accused is dependent on finding of guilt of the accused, it necessarily means that a definitive finding on reparation has to come after that.
Further, the study concludes that in context of mass atrocities and the possibility that numerous victims may prove the requisite links to a case to obtain reparations, holding joint proceedings would complicate and burden the trial. However, the study endorses the initial view of the Court that evidence concerning reparations could, at least in part – where appropriate, and in the interest of efficiency and victims – be considered during the trial.
The study further concludes that the Victim Trust Fund, which presents greater flexibility than the Court in terms of standards of proof, the requirement for criminal liability and various other mechanisms should be allowed a more prominent role in the processing of reparations. A survey of various mass reparation schemes – Holocaust reparations, South African Truth and Reconciliation Commission, the Rwandan Gacaca model and the United Nations Compensation Commission (UNCC), as well as the United States’ Alien Tort Claims Act (ATCA), a particular mass tort litigation mechanism – offer some useful lessons on a range of challenging reparation related questions.
The study concludes that while the Rome Statute offers an important opportunity for victims in terms of reparations, various challenges including shortage of funds and the large number of victims requires that situation countries – those states under investigation by the ICC and from which victims are drawn – cannot abandon their primary responsibility of providing appropriate remedies for victims. The ICC is not, and cannot be a panacea for the concerns of victims of international crimes.
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