Kampala launch of ICC reparations report

(Another in IntLawGrrls' series of Kampala Conference posts)

KAMPALA, Uganda – The adoption in 1998 of the Rome Statute of the International Criminal Court marked the first time that an international criminal body was authorized to award against individual perpetrators of mass atrocities a range of reparations for the benefit of their victims. In the years since, the ICC’s reparations scheme has generated a high level of expectations. Indeed, some have gone so far as to suggest that the very success of the Court will depend on its ability to effectively implement the Statute’s reparations regime. Nevertheless, little is known about how the scheme will work in practice. This is due in part to the fact that the documents governing the ICC establish the scheme in very general terms, and in part to the fact that the scheme is sui generis in that it is the first international process designed to award reparations to victims of mass atrocities in the context of criminal proceedings against individual perpetrators.

The aim of the latest in a series of ICC reports by the War Crimes Research Office (for which I serve as Director) of American University Washington College of Law, entitled Case-Based Reparations at the International Criminal Court, is, 1st, to highlight the need for the Court to establish principles relating to the operation of this scheme outside of the context of any single case; and 2d, to offer a number of proposals for the Court to consider when drafting these principles.

Among the issues that the Report suggests that the Court should consider when drafting its principles on reparations are the following:
► Timing. As a general matter, the report recommends that the Trial Chamber hold a separate reparations phase, after the Chamber has made a determination that an accused is guilty for one or more crimes under the jurisdiction of the Court.

► Definition of victims. The report proposes that, consistent with the definition of victim for purposes of participation, the Court make clear that “harm” may include material, physical, and psychological harm, and can attach to both direct and indirect victims; causation should be based on a standard of “proximate cause”; and the standard of proof should be something akin to preponderance of evidence/balance of probabilities. Importantly, the report suggests that the principles should make clear that the Chambers have wide discretion with regards to the evidence they may consider in evaluating whether the standard has been met.
► Types of available reparations. The report emphasizes that the Court should expressly recognize that there is no one-size-fits-all approach to reparations. Rather, the individual circumstances of each case must be considered and any combination of the different forms of reparations may be awarded, including both collective and individual. Significantly, some commentators have distinguished between perpetrators with assets and those without assets, suggesting that reparations should take the form of monetary compensation where the perpetrator is found to have resources. The report takes the position that the Court should not necessarily assume this to be true or that other forms of reparations are only appropriate in the case of perpetrators with limited or no resources. Indeed, it argues that there are a number of reasons why dispensing individual compensation payments directly to victims may not be the most appropriate award, even where the Court has access to a perpetrator’s assets.

► Use of experts. In all but most straightforward of cases, the report recommends that the Trial Chambers invoke its authority under Rule 97(2) of the ICC Rules of Procedure and Evidence to appoint appropriate experts to assist it in determining the scope and modalities of reparations awards. It further recommends that experts be used not only for processing awards (that is, making findings of fact regarding who qualifies as a victim and the harm suffered), but also for advising the Court on the substance of reparations awards, after extensive consultation with victims and other potential stakeholders.

► Role for the Trust Fund for Victims regarding case-based reparations awards. The report recommends that, wherever practicable, a Chamber should designate the Trust Fund for Victims as the “appropriate experts” under Rule 97(2) of the ICC Rules of Procedure and Evidence to assist it in the processing and determination of a reparations award. Several factors support the use of the Trust Fund for Victims in this context:

1st. Because the Trust Fund is authorized to provide assistance to victims of crimes falling within the jurisdiction of the Court outside the context of case-based reparations, it will often be the case that, by the time a Trial Chamber issues a final judgment convicting a particular perpetrator, the Trust Fund will have already conducted significant activity for the benefit of victims of the more general situation from which the individual case arose.

2d. Moreover, in determining which projects to implement under its general assistance mandate, the Trust Fund engages in many of the activities that will need to be undertaken in the processing and determination of case-based reparations awards.

3d. Finally, the report suggests that the use of the Trust Fund for Victims as the “appropriate experts” envisioned under Rule 97(2) is warranted because the Fund is a permanent institution that will have an ongoing relationship with the Court, which offers a benefit over the use of ad hoc bodies of experts appointed on a case-by-case basis in two ways. The Trust Fund will benefit from institutional knowledge and lessons learned in the implementation of both its general assistance and, over time, court-ordered reparations awards. And as a permanent institution, the Fund will be able to develop processes that its staff will follow across cases and situations, thereby increasing the likelihood that reparation awards will be perceived as fair.

The launch of the report – the twelfth in the ICC Legal Analysis and Education Project of the War Crimes Research Office (prior post) – was held on Friday evening, at the end of the first week of the Review Conference of the Rome Statute of the International Criminal Court near Kampala, Uganda. The panel discussion included remarks by Miia Aro-Sánchez (Embassy of Finland in The Hague) and Elena Bornand (Embassy of Chile in The Hague) – both of whom served as focal points on the impact of the Rome Statute system on victims and affected communities – Elizabeth Rehn, the Chairperson of the Trust Fund for Victims, yours truly and Katherine Cleary, Assistant Director of the War Crimes Research Office. The launch was attended by representatives of States Parties and nongovernmental organizations as well as ICC officials, including Kristin Kalla, the Acting Director of the Trust Fund for Victims and Paulina Massida, head of the ICC’s Office of Public Counsel for Victims.

(Cross-posted at ASIL Blog - ICC Review Conference)

New report on cumulative charging at ICC

A new report on cumulative charging has just been released by the War Crimes Research Office, American University Washington College of the Law, for which I serve as Director.
Cumulative charging has become an issue in Prosecutor v. Jean-Pierre Bemba Gombo, an International Criminal Court case arising out of violence in the Central African Republic. (Prior IntLawGrrls posts available here.)

On 15 June 2009, the ICC's Pre-Trial Chamber II issued a decision that both confirmed and denied various charges lodged against Bemba, and then sent the confirmed charges to trial.

The Prosecution had alleged that Bemba bore responsibility for these offenses based on evidence establishing, inter alia, his role in numerous acts of rape committed against civilians in the Central African Republic. Importantly, the Pre-Trial Chamber did find sufficient evidence to establish substantial grounds to believe that these acts of rape took place, and that the accused could be held criminally responsible for the acts. Yet, it held that the Prosecution had acted inappropriately by bringing “cumulative charges” based on the acts of rape. Thus it confirmed only the charges of rape as a crime against humanity and rape as a war crime, and dismissed the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime.

The report just issued by our War Crimes Research Office examines 2 determinations of the Bemba Pre-Trial Chamber:

► That the practice of cumulative charging is not warranted in the context of the ICC as a general matter; and

► That, in the Bemba case before it, the charges of torture as a crime against humanity and outrage upon personal dignity as a war crime were inappropriately cumulative.

The report begins with a discussion of cumulative charging in international criminal bodies, where the practice is widely accepted. It then lays out the relevant jurisprudence from the Bemba case. Finally, the report analyzes the Bemba jurisprudence and offers recommendations.

In particular, the report concludes that:

► Nothing prohibits the practice of cumulative charging at the ICC, and

► Persuasive reasons exist to permit the practice.

On this basis, the report recommends that the ICC broadly permit cumulative charging, or, at a minimum, that it permit multiple charges based on the same evidence where each charge contains a materially distinct element.

International Gender Justice Dialogue

From 20-21 April, the Women's Initiatives for Gender Justice in collaboration with the Nobel Women's Initiative hosted the International Gender Justice Dialogue, in Puerto Vallarta, Mexico.

The goal was to bring together gender experts, feminist legal theorists, peace mediators, legal practitioners, jurists, women’s rights advocates, policy makers, members of the media, and activists to identify and develop a strategic, shared agenda for advancing gender justice around the globe.

Although most participants from Europe and Africa were unable to attend because of the volcanic eruption in Iceland (which grounded flights throughout Europe), participants from other regions gathered for a day of panels and a second day of working group discussions. Among the highlights was Women's Initiatives Executive Director and IntlawGrrl guest/alumna Brigid Inder's (pictured right) opening speech, which you can read here.
As Professor Tina Dolgopol (pictured left left), of Flinder Law School in Adelaide, South Australia, noted in her observations about the first day,

A recurrent theme is the necessity of building networks, ensuring that your work
is based on an agreed and transparent set of principles and that you communicate often with your supporters. We hear these ideas from those involved in peace processes, justice networks and from the promotion of women’s rights generally.

IntLawGrrls Kelly Askin and I spoke on a panel entitled "Prosecutions and Jurisprudence - What have we achieved and what remains to be done," along with Professor Catharine A. MacKinnon, who sent in her comments via video. The session was moderated by IntLawGrrl guest/alumna Valerie Oosterveld.

One of the areas I touched on was a project we are undertaking that will hopefully contribute to the process of how we better assess the jurisprudence coming out of the international criminal tribunals, and therefore, the impact these tribunals are having on gender justice.
In October 2008, my office (the War Crimes Research Office at American University's Washington College of Law) organized, in collaboration with the WCL's Women's International Law Program, a two-day conference on “Prosecuting Sexual and Gender-Based Crimes Before International/ized Criminal Courts.” Participants brainstormed about potential strategies and what was needed to improve the prosecution of sexual- and gender-based crimes before these tribunals. High on the list was the need for a modern, searchable, online database of cases (and related documents) coming out of these tribunals, focused on sexual- and gender-based crimes. In response to this need, last year we launched the Gender and ICL Jurisprudence Collections Project. The project has four phases:

1) collection of key decisions, orders and judgments relating to sexual and gender-based violence and making them available online so that you will be able to search them within and across courts;
2) key-wording those cases to facilitate searches relating to how these tribunals have handled cases involving sexual and gender-based violence;
3) digesting those cases with a view to highlighting the facts, allegations or factors affecting the prosecution of such crimes; and
4) providing commentaries on a select number of cases we identify as critical to understanding the development of the law in this area.

The basic aim of the project is to facilitate research in this area by practitioners, advocates and academics, but more importantly to “surface” the decisions that may go unnoticed between indictment and judgment, but which have important consequences for how sexual and gender-based violence is treated by these tribunals.
Follow outcomes from the Gender Justice Dialogue working groups here.

On the Job! Jurisprudence Collections Coordinator

(On the Job! pays occasional notice to interesting intlaw job notices) The War Crimes Research Office (WCRO) at American University Washington College of Law is seeking a qualified and highly motivated candidate for the position of Jurisprudence Collections Coordinator. This individual will be responsible for implementing and supervising the collection, organization, and indexing and digesting jurisprudence from international/ized courts and tribunals. The goal is to create and maintain a highly flexible legal research tool for practitioners worldwide.
After completion of the initial indexing project, the Coordinator will be expected to maintain and improve the Collection, work with the WCRO Director to explore opportunities for expansion, and help to maximize use of the resource among international/ized criminal courts, NGOs working in the field, academic institutions, and other relevant constituencies. The Coordinator may also be called upon to take on discrete research projects, depending on WCRO needs and the Coordinator's abilities.
Position Requirements:
► A high level of proficiency with Internet-based research, Microsoft Office, and Adobe Acrobat essential
► Familiarity with document management software or digital asset management required; familiarity with Extensis preferred
► Familiarity with web content development and content management systems preferred
► Knowledge of international/ized criminal tribunals, international humanitarian law and/or international criminal law
► Excellent oral and written English skills required
► Excellent organizational skills and attention to detail essential
This is a part-time 27 hour/week position at $20/hour with the potential to become full-time.
To Apply: Applicants should send a detailed resume, cover letter, writing sample, and the names and contact information for three references to WCRO Director Susana SáCouto by email at warcrimes@wcl.american.edu.

New Report on Victim Participation at the ICC

The War Crimes Research Office (WCRO) of American University Washington College of Law has recently issued a new report on Victim Participation at the Case Stage of Proceedings, examining the unique and innovative victim participation scheme of International Criminal Court.
This is the WCRO's second report on the subject of victim participation at the ICC. The first was primarily directed at the question of victim participation during the investigation stage of the Court’s proceedings. This report reviews the jurisprudence of the Court since the release of the first report over a year ago, with a particular emphasis on decisions pertaining to victim participation at the case stage.
Despite the wealth of expert analysis on the issue of victim participation -- both inside the Court and out -- there remains little clarity as to the purpose of the scheme or how it should operate. In part, the lack of clarity stems from the fact that Article 68(3) of the Rome Statute, which constitutes the foundational provision for victim participation before the Court, leaves a great deal of discretion to the Chambers to determine how and when victims will be permitted to exercise their right to present their views and concerns to the Court. Nevertheless, more than three years after Pre-Trial Chamber I’s first decision addressing the scope of victim participation, confusion remains as to the purpose of the scheme and how it should operate.
Only a fraction of the victims who have applied to participate in proceedings before the Court have received a response to their requests, and many of those who have had their applications evaluated have had to wait many months or years to learn whether their applications were denied or granted. At the same time, the participation rights granted to victims remain largely potential participation rights, as the Chambers have for the most part held that any victim wishing to exercise any form of participation must apply to the Chamber for permission and that such applications will be evaluated on a ‘case-by-case’ basis. Another issue addressed in the report is that the judges of the Court have adopted differing approaches toward the implementation of the scheme, resulting in victims in some cases having less extensive rights than victims in other cases.
The goal of the report is to contribute to the ongoing effort to render the victim participation scheme meaningful by identifying certain aspects of the scheme as implemented thus far that might benefit from review and offering recommendations consistent with the intent of the drafters that created the scheme.
The report is available here.

Go On! International Criminal Court prosecution of sexual & gender-based crimes

(Go On! is an occasional item on symposia of interest.) On July 1, 2002, the Rome Statute of the International Criminal Court entered into force, thus establishing the world’s first permanent court set up to try persons accused of the most serious crimes of international concern. With four investigations of situations ongoing and pre-trial proceedings underway in its first case (prior posts here), the Court is now grappling with how to implement many of the ground-breaking provisions advocates of international justice fought for in the negotiations leading up to Rome Statute, including those relating to sexual and gender-based crimes.
This issue will be addressed at an all-day conference entitled "Prosecuting Sexual and Gender- Based Crimes in the ICC: Translating Promises into Reality" on October 14, 2008, at Washington College of Law, American University, Washington, D.C. Save the date!
Leading experts in international criminal law and feminist jurisprudence will come together to take stock of whether and how the ICC (left) is living up to the promise of the Rome Statute to ensure accountability for sexual and gender-based crimes committed in times of conflict or in the context of genocide or crimes against humanity.
Patricia Viseur Sellers, the former Legal Advisor for Gender-Related Crimes at the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia, will deliver the keynote address. Panelists of practitioners, scholars, and advocates will address questions such as:
► As an institution, has the ICC staffed itself with the appropriate expertise on sexual and gender-based violence, as envisioned by the Rome Statute? If not, what consequences has this had for victims of sexual and gender-based violence?
► What standards is the Court using to determine which crimes are “grave” enough to investigate and prosecute, and do those standards take into account the possibility of gender bias?
► Do these standards allow for sexual and gender-based crimes to be charged and prosecuted with the same vigor as other crime?
► Are there lessons to be learned from the gender jurisprudence of the ad hoc and hybrid criminal tribunals?
This event is being sponsored by the War Crimes Research Office and the Women and International Law Program of Washington College of Law, American University, and by the Women in International Law Interest Group (WILIG) of the American Society of International Law. Details and registration here.

Welcome IntLawGrrl Susana SáCouto

Delighted to announce that Susana SáCouto has joined Rebecca Bratspies this week as IntLawGrrls' newest members.
Susana (left) is the Director of the War Crimes Research Office at the Washington College of Law (WCL), American University, Washington, D.C., which promotes the development and enforcement of international criminal and humanitarian law. A Professorial Lecturer in Residence at WCL, Susana teaches courses on gender and human rights law and on the responses of international humanitarian law and international criminal law to women in conflict, and further directs WCL’s Summer Law Program in The Hague.
Susana he has a rich background and expertise in the fields of human rights law, international humanitarian law, and international criminal law:
► Her most recent publications include "Reflections on the Judgment of the International Court of Justice in Bosnia’s Genocide Case against Serbia and Montenegro,"15 Human Rights Brief 2 (Fall 2007); with Katherine Cleary, "Victim Participation before the International Criminal Court," 17 Transnational Law & Contemporary Problems 73 (2008); and "Advances and Missed Opportunities in the International Prosecution of Gender-Based Crimes," 15 Michigan State Journal of International Law 137 (2007).
► Susana has directed the Legal Services Program at Women Empowered Against Violence, clerked for the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and worked with the Center for Human Rights Legal Action in Guatemala.
► She currently serves as co-chair of the Women’s International Law Interest Group of the American Society for International Law, and was recently awarded The Women’s Law Center 22nd Annual Dorothy Beatty Memorial Award, by the Women's Law Center of Maryland, for significant contributions to women’s rights.
Susana's chosen to dedicate her IntLawGrrls contributions to Sor Juana Inés de la Cruz who, as Susana describes in her post below, was a 17th century Mexican nun known as the America's 1st feminist writer. Sor Juana joins IntLawGrrls' other transnational foremothers in list at right, just below the "visiting from ..." map.
Hearfelt welcome!