Bemba case highlights need for reparative justice

In this final piece in our series commenting on the Bemba Appeals Judgment (previous ones here, here, here, here and here) Amnesty’s International Justice Team reflects on victims’ experience of this and other cases and argues that the focus must change from defining justice for victims solely as outcomes of cases towards improving their experience of the justice process as a whole.

According to their Legal Representative, at the conclusion of the Bemba case thousands of victims of murder, sexual violence, pillage and other crimes committed during the 2002-2003 conflict in Central African Republic (CAR) experienced “deep disappointment and hopelessness”. This is perfectly understandable. After waiting almost 15 years for international justice and then having their hopes raised by the outcome of the trial, the Appeals Chamber’s decision over-turned the conviction of the ICC’s only case in this situation and extinguished victims’ claims for reparations before the Court.

In fact, as FIDH’s recent press release highlights, “deep disappointment and hopelessness” is probably an understatement especially considering the descriptions of the harms still being experienced by victims detailed in the report of the reparations experts appointed in this case. For example, in relation to the victims of the large-scale rape and sexual violence the experts observed:

Their bodies and their beliefs are often destroyed. They are rejected by their own family members, from parents to husbands and by their community’s stigmatisation. The combined impact of these multidimensional effects generates very serious psychological and psychiatric effects. Direct victims of rape are isolated from others, they would either lose their children or be abandoned with them; they also tend to run away so as to shield themselves from the permanent feeling of rejection in their communities. This life of secrecy exacerbates the victims’ individually-suffered self-loathing and self-hate because of what happened to them. Some view the discrimination and the stigma as worse than the rape itself.

Putting aside the specific criticisms of the Appeals Chambers Judgment, acquittals are however part and parcel of a fair and effective system of international criminal justice. Disappointment will be an unavoidable reality for victims at the conclusion of some cases. But that does not mean that the ICC (including the Trust Fund for Victims) must be resigned to the uncertainty of victims’ experience of international justice, blinkered to the complexity of their suffering or, worse still, scale back on the implementation of their rights in order to minimise their expectations.

In recent years, the term “reparative justice” has come into vogue in referring to the ICC’s mandate. For example, in a 2017 Resolution, the Assembly of States Parties recognizes “the reparative justice role of the Court”. However, it is important to understand that the concept involves much more than providing for the opportunity of reparations in the event of a conviction.
Dr. Yael Danieli – an international leading psychologist on trauma and on reparative justice – emphasises that victims’ experience of the international justice process is as important as the outcome of cases, even eventual reparations orders:

Every step throughout the justice experience as a whole [within the Court’s total relationship with victims/survivors]… presents an opportunity for redress and healing. Conversely, every step throughout the justice process might exacerbate the conspiracy of silence by missing or neglecting the opportunity for healing and reintegrating victims into their communities and societies, or worse, by (re)victimising and (re)traumatizing victims.

Thus, while the ICC must independently and impartially determine the guilt or innocence of the accused which may impact on its ability to order reparations, by giving effect to the rights of victims and treating them with respect and dignity throughout the process, the ICC can still contribute towards addressing the harm they have experienced and help them to cope with the uncertain outcomes of cases.

Examining the experience of victims in the Bemba case through the reparative justice lens is beyond the scope of this opinion piece. It requires a detailed evaluation, involving consultations with victims. However, a general review of the case and the ICC’s systems and practices demonstrates that, at present, the Court is not operating along these lines.

Despite the much-lauded efforts of the Special Court of Sierra Leone to engage with victims and affected communities, including conducting town hall meetings across the country at the very start of its work, the ICC has been far more cautious in its interactions with victims during the vital early stages of its process. Until the recent order by the Pre-Trial Chamber to order outreach in the Palestine situation, outreach has been almost non-existent during preliminary examinations. As the Outreach Unit has noted, by the time outreach is initiated later in the process, misinformation is already set in. Without sufficient resources and engagement of the Office of the Prosecutor, the Registry’s Outreach Unit has further struggled to work effectively in complex and often dangerous environments. A 2010 study of outreach in CAR found that the ICC’s efforts, which relied largely on broadcast media and outreach meetings with stakeholder groups, were failing to reach the “information poor”. Victims in CAR do not appear to have been informed, let alone consulted, about the OTP’s controversial strategy of pursuing charges against only one person in relation to the 2002-2003 conflict.

Whilst the Rome Statute broke new ground in providing for the participation of victims in the criminal process, the Court has faced numerous challenges in informing victims of their right to participate. Victims who have applied have often had to complete complex application processes and there have been serious delays in processing victims’ applications. In the Bemba case involving over 5000 victim applicants, 1700 were granted participatory status only after the OTP had concluded the presentation of its evidence.

Legal aid for victims in all situations and cases has been woefully inadequate, including a lack of dedicated resources for legal representatives to consult regularly with their clients, which must have been particularly challenging for the representative in this case. Meanwhile, the long overdue review of the legal aid system continues to be postponed.

Although victims’ legal representatives have played an active role in ICC trials, their ability to participate in the case defining pre-trial phase has been restricted, even though their personal interests of seeking access to justice is at stake during this stage. For victims whose crimes are prosecuted, their ability to engage in the trial has been undermined by uncertainty. In the first 16 years of the ICC, the judges have made little progress in defining coherent and consistent approaches to participation and reparations. Different chambers have adopted sometimes very different approaches in different cases, which has made it very difficult for the Registry to conduct outreach on these issues with any certainty and for legal representatives to inform and seek instructions from their clients. In some cases, new approaches trialled by chambers have negatively impacted on victims’ experience of the justice process.

For example, in the absence of a clear and predictable process to assess the harm suffered by victims for the purposes of determining reparations, the Trial Chamber in the Bemba case appointed a group of experts to consult with victims and develop recommendations in preparation for the reparations process, while the accused’s appeal against conviction was still pending. Although, the appointment of reparations experts to consult with victims should be encouraged and the timing was undoubtedly well-intended to prevent delays in ordering and implementing reparations that have arisen in other cases, the process ultimately raised the expectations of victims for reparations which eventually came to nothing when the conviction was overturned. Although the experts report may still be valuable in other CAR reparation processes, the Chamber’s final decision on reparations in the case unfortunately does little to promote this possibility.

At the conclusion of this case, the ICC appeared unprepared to respond to victims’ disappointment. According to FIDH, months after the Appeals Judgment, most victims do not understand the reasons for the decision to overturn the conviction and only a minority of victims have been able to meet with their legal representative to discuss the decision.

In a welcome move the Trust Fund for Victims announced shortly after the Judgment that it would accelerate re-launching its projects of assistance to victims in CAR that had been originally proposed in 2013 and subsequently cancelled due to security concerns. In its statement the Trust Fund tells victims directly:

You are not forgotten. The harms you have suffered are recognized and urgently call for a meaningful response.

This is probably the closest the ICC got to reparative justice in this case. It can only be hoped that states will reflect on these words and step up to provide the Trust Fund with the resources it needs to carry out these projects. Moreover, given that the Trust Fund can conduct such projects from the start of an investigation into a situation, lessons must be learned to ensure that they are established sooner in other situations with effective strategies to address security concerns.

In light of these realities, victims’ experience of the ICC process throughout this case and their relationship with the Court must have been bewildering. Of course, the outcome of the case, including the termination of their reparations claims before the ICC are no doubt key factors in victims’ disappointment. But, we risk ignoring the complexity of victims’ experiences if convictions are defined as wins for victims and acquittals as losses.

Reparative justice is possible if the ICC acknowledges the importance of its relationship with victims and commits to developing accessible, coherent, consistent and effective systems and processes to give effect to victims’ rights. A long-overdue evaluation and revision of the Court’s Strategy in relation to victims, further development of the Chambers’ Practice Manual and a stronger commitment by states to address the underfunding of ICC victims services and the Trust Fund for Victims would go a long way towards achieving this.

The ICC will never be able to fully address the suffering of all victims but it should still strive to achieve as much as it possibly can throughout its situations and cases. So far, the ICC has been too cautious of victims, too ineffective in giving effect to their rights and too meek in demanding financial and other support from states – all of which have inevitably undermined victims’ experience of international justice. It is no wonder that victims are devastated when the Court delivers acquittals.