Waiting for Bemba – The ICC and Transformative Reparations in Cases of Sexual Violence

Reparations in cases of sexual violence within international law discourse have been discussed a lot lately. Following the rich jurisprudence of the Inter American Court of Human Rights (IACHR) and recently published guidelines of the International Center of Transitional Justice (ICTJ) for court-ordered reparations in cases of sexual violence, eyes start to turn towards the ICC. In this decision from 21 March 2016 the ICC has convicted the Congolese Movement of Liberation of the Congo (MLC) leader Jean-Pierre Bemba for the crimes committed by his troops in the Central African Republic between 2002-2003. It was the first time that the Court acknowledged rape as war crime and crime against humanity.

Reparations at the ICC

The introduction of a reparation system within an international criminal tribunal certainly is an experimental step: Most international criminal tribunals have thus far abstained from the reparation question – presumably mostly with regards to the quantity of victims in mass atrocities. The ICC has dared the step and even pointed out that the success of the Court itself is somewhat linked to the success of its reparation system.

Article 75 of the Rome Statute does not yet say much about the nature of reparations. It establishes the responsibility of the Trust Fund for Victims (TFV) whose secondary task is assistance in conflict regions (Article 79). One can already assume that the lines tend to get blurred here. The reparation system has been, from the very beginning, criticized for various reasons: For being too undefined, too distractive from the already ambitious goal of criminal prosecution and simply unrealistic in that the Court does not have the sufficient funding.

The concrete nature of reparations is to be established within court decisions. With the reparation decisions in Lubanga and – very recently – Katanga, the ICC has already given examples on how article 75 and 79 of the Rome Statute could be interpreted. The decisions differ in that Lubanga relies mostly on collective symbolic reparations.  The decision in Katanga on the other hand combines collective reparations with more individual need for compensation.

In the context of Bemba, it is important to take into account the different levels of impact sexual violence has on victims as well as the resulting needs. A lot of research has been done in the past to address this issue. The recent ICTJ study is only one example. Bemba is the first convict who actually has significant assets to be granted to victims involved. With the masses of victims, however, the sum per person does not quite reach the threshold of what would be considered sufficient compensation. One starts to think about mechanisms beyond purely financial compensation.

Transformative Justice: The IACtHR as trendsetter

The notion of transformative reparations is often used in this context – be it in academic articles, UN guideline principles or in IACtHR decisions. What do those transformative reparations imply? Instead of aiming at restitutio ad integrum, transformative reparations take a rather corrective approach in that they intend to address social, economic and political inequalities. Nancy Fraser, one of the leading feminist voices in the debate,establishes a trivalent model of representation, recognition and redistribution. In an ideal scenario, gender just reparations manage to address all of those.

Indeed, the jurisprudence of the IACtHR has given quite some inspiring examples of how transformative reparations could look like and is now often referred to as model par excellence with regards to gender just reparations. The decision “Gonzales et al v. Mexico” (Cotton Field Judgement) from 2009 explicitly recognizes the root of the problem at stake being deeply gendered stereotypes that need to be addressed by states in form of reparations. Accordingly, in its decisions, the Court not only establishes personalized reparations for victims but also identifies in how far the state involved is to be held responsible and has to change its politics and legislation.

Should the ICC follow suit?

Can the ICC be an equally successful guarantor of transformative reparations? For many reasons, the ICC is very different from the IACtHR. First and foremost, it is not addressing states but individuals. For the establishment of its reparation policy, the ICC is thus not holding the states accountable but comes up with its own plan. Specifically with regards to the notion of transformative reparations it is unclear how the ICC is deriving its legal mandate to transform societies. Critics accuse the ICC of neo-colonial ambitions in this regard.

Also, it needs to be stressed that the ICC is primarily a criminal court and not a human rights body. Its reparation policy can thus be criticized for serving as a mere “add-on” to the criminal procedure and being thus more perpetrator than victim centered in nature. In consequence, sexual violence was disregarded in the ICC’s reparations decision on Lubanga, although it had occurred, for the sole reason that Lubanga was not convicted of them.

Finally, one must not forget the importance of individual redress. Going mostly for symbolic and collective redress entails the danger of secondary victimization of those who come to The Hague and relive their trauma in hearings in the hope to be awarded personal compensation. Reparations and assistance are in their nature very different from each other and should not be mixed up.

Transformation is an ambitious goal – even more so for a “giant without limbs”. However and as shown by the decisions of the IACtHR, reparations can be used as a powerful tool to acknowledge harm and even shape politics. The ICC might just need a shift within its system. As proposed by Luke Moffett, one could think of a system of reparative complementarity that takes responsibility away from the Trust Fund for Victims and back to the state level.  The inspirational example of Ruanda’s gender policy, that currently is in the global top five in closing gender disparities, shows what can be achieved on a state level. And. of course, the outcome creates a much higher level of legitimacy.

In the case of Bemba three submissions (here, here and here) have already been handed to the ICC as concrete proposals on how reparations should look like. One now has to wait and see what the ICC decides.

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