The Pursuit of International Criminal Justice and the Construction of Victimhood

By

Ayodele Akenroye

Faculty of Law

McGill University

Montreal, Quebec, Canada

December 2017

A Thesis submitted to McGill University

in partial fulfillment of the requirements of the degree of

Doctor of Civil Law

© Ayodele Akenroye, 2017

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TABLE OF CONTENTS

TABLE OF CONTENTS ______2 Abstract ______5 Résumé ______6 Acknowledgement ______7 Chapter 1: Introduction ______8 1.1. Background and Context ______8 1.2. Victims: A Basic Definition ______12 1.2.1. Who is a Victim of an International Crime? ______12 1.2.2. Victim Identity ______13 1.3. Constructivism as a Theoretical Approach______15 1.4. Research Objectives ______21 1.5. Research Questions and Related Issues ______23 1.6. Research Approach, Contribution to Knowledge and Methodology ______25 1.7. Thesis Structure ______27 Part I. The Construction of Victims in the International Criminal Justice Context ______31 Chapter 2: The Origins of ‘Victimhood’ in International Law ______32 2.1. Introduction ______32 2.2. Slaves: The Original ‘Victims’? ______33 2.2.1. Constructing the Figure of the Slave ______35 2.2.2. Slavery as a “Crime Against Humanity” ______36 2.2.3. Constructing the Figure of the Slave Victim ______39 2.3. Other Notable Antecedents to the ‘Victim’ in International Law ______43 2.4. Conclusion ______46 Chapter 3: The Contemporary Rise of the ‘Victim’ in International Law ______47 3.1. Introduction ______47 3.2. The International Humanitarian Law Framework ______48 3.3. The International Human Rights Law Regime ______59 3.3.1. The European System ______63 3.3.2. The Inter-American System ______66 3.4. The Increasing Connection between the International Human Rights, International Humanitarian and International Criminal Law Regimes. ______73 3.5. Conclusion ______77 Chapter 4: The Rise of the ‘Victim’ in International Criminal Justice ______79 4.1. From Invisibility to Hyper-Visibility ______79 4.2. An Examination of the Role of Victims in International Criminal Trials ______83 4.2.1. The Nuremberg and Tokyo Tribunals ______83 4.2.2. The International Criminal Tribunals for the former Yugoslavia and for Rwanda ______85 4.2.3. Domestic Developments and the Victims’ Rights Movement ______93 4.2.4. The Road to Rome – Establishing the International Criminal Court and the significance of the ‘Turn to Victims’ ______102 4.3. Conclusion ______110 Chapter 5: ‘Victims’ at the International Criminal Court ______111 5.1. Introduction ______111

2 5.2. In The Name of The “Victim”? ______114 5.3. Limits of Justice for Victims at the ICC ______120 5.4. Victim Participation in the Legal Proceedings at the ICC______123 5.5. Victims Protection at the ICC ______136 5.5.1. The Legal Basis of Victim Protection and Treatment ______137 5.5.1.1. The Victims and Witnesses Unit ______138 5.5.1.2. Protective and Special Measures ______140 5.6. Assistance and Reparations for Victims at the ICC ______142 5.7. Conclusion ______146 Conclusion to Part I: The Construction of Victims in the International Criminal Justice Context ______147 Part II. Problematizing Victimhood ______149 Chapter 6: The Production of Victimhood: A Critique ______150 6.1. Introduction ______150 6.2. The Construction of the Victim-Perpetrator Dichotomy ______152 6.2.1. Constructing the Perpetrator in International Law ______155 6.2.2. Constructing the “Ideal Victim” ______163 6.2.3. The Constructive Tension in the Victim-Perpetrator Dichotomy ______165 6.3. The Production of Victims in International Criminal Justice ______172 6.4. Conclusion ______176 Chapter 7: Gender Construction of Victimhood in International Law ______178 7.1. Introduction ______178 7.2. Constructing Gender-Based Sexual Violence in Armed Conflicts ______180 7.3. International Criminal Tribunals’ Narratives on Sexual Violence ______185 7.4. Feminist Narratives on International Law ______192 7.4.1. Feminist Activism and International Law ______197 7.4.2. Gender and Sexual Violence ______200 7.5. Exploring the Narrative on Sexual Violence on Boys and Men ______204 7.5.1. Contextualizing the Dynamic of Sexual Violence Against Men ______211 7.6. Conclusion ______212 Chapter 8: Child Soldiers: Victims or Perpetrators in International Law ______213 8.1. Introduction ______213 8.2. Confronting Child Soldiering in Armed Conflicts ______215 8.2.1. Beyond Uniform Categorisation and the Context of Child Soldiering ______219 8.3. Imagery of Child Soldiers ______220 8.3.1. Girl Child Soldiers – Invisible and Emblematic Victims ______225 8.4. Constructing Child Soldiers in International Law and Policy ______229 8.5. Conclusion ______241 Chapter 9: Beyond the ICC: Neglected and Ambiguous Victims ______244 9.1. Introduction ______244 9.2. Victims of Terrorism ______245 9.2.1. Constructing Victims of Terrorism ______251 9.3. Victims of Slavery and Colonialism______260 9.4. Conclusion ______265 Chapter 10: Concluding Remarks ______267 Bibliography ______271 Primary Sources ______271 International Agreements ______271 Jurisprudence ______272 Reports ______274 Secondary Sources ______275

3 Other Materials ______301

4 Abstract

There has been an increase in the attention paid to victims of international crimes in the context of recent efforts made in the field of international criminal justice. However, international law’s attention to victims is arguably much older. What is new, is the attempt to formalize and legalize the status of victims and the ensuing dilemmas that arise. Moreover, it is clearly not simply the case that international criminal law grants victims’ certain rights.

Rather, in the process of granting such rights, international criminal law constitutes victims.

In doing so, international law is required to constantly arbitrate the complex dilemma surrounding the fundamental nature of victimhood. A certain ‘ideal victim’ is thereby produced. The production of victimhood through international law is arguably part of the self-constitution of international law. This thesis will investigate some of the ways in which victimhood has been produced in the history of international law, and how the continuation of that process can be harnessed to better understand the evolving nature of international law.

Thus, this thesis argues that the production of victimhood in international law and international criminal law remains a fraught and ideologically loaded process.

5 Résumé

Les récents efforts en matière de justice internationale pénale ont accordé une attention croissante aux victimes de crimes internationaux. Toutefois, le droit international s’intéresse aux victimes depuis sans doute beaucoup plus longtemps. Ce qui est nouveau, c’est la tentative de formaliser et de légaliser le statut des victimes, ainsi que les dilemmes que cela suscite. Par ailleurs, il ne s’agit pas simplement d’octroyer aux victimes certains droits en droit international pénal, mais de leur garantir un statut. Dans ce cadre, le droit international doit constamment arbitrer les dilemmes complexes ayant trait à la nature fondamentale de la qualité de victime. Nait dès lors la notion de victime idéale. L’enfantement de la qualité de victime par le droit international participe sans doute de l’autoréalisation du droit international lui-même. Dans la présente thèse, nous examinerons quelques-uns des critères sous-tendant la qualité de victime retenus dans l’histoire du droit international et analyserons la manière dont la poursuite de cette démarche pourrait être maitrisée davantage afin de parvenir à une meilleure compréhension de la nature évolutive du droit international. La désignation des victimes en droit international et en droit international pénal demeure une entreprise complexe et à forte tonalité idéologique.

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Acknowledgement

This work would not be possible without the contributions of numerous individuals.

I would like to express my deepest appreciation and gratitude to Professor Frédéric

Mégret for motivating me to explore this extremely germane and interesting topic, for his valuable guidance and constructive comments in ensuring that I did not lose sight of the important debates in my thesis. Also, for his unwavering enthusiasm toward the topic and for exploring the connections between political theory and international criminal justice that kept me engaged in my research. He also provided financial support to me during the doctoral journey. You have been a tremendous motivator and mentor.

To my committee members, Prof. René Provost and Prof. Colleen Sheppard. Thank you for firmly pushing me towards asking the harder questions and answering them more thoroughly. I would also like to thank you for believing that I could complete this doctoral study, even when faced with financial difficulties. A word of gratitude to Prof. René Provost for providing additional financial support to me out of his research fund.

A special word of gratitude to my external examiner, Prof. Jo-Anne Wemmers, for her very insightful comments on this doctoral thesis.

I wish to acknowledge the financial support I received from the Faculty of Law and

McGill University in the form of a graduate fellowships.

Finally, to my wife Alero, and my boys, Titobiloluwa and Jeremy - you endured

Winnipeg, Montreal, New York, Toronto, The Hague and countless work-filled evenings and weekends to support this. Thanks, and onward to our next chapter.

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Chapter 1: Introduction

1.1. Background and Context

From the ratification of the Rome Statute of the International Criminal Court

(“ICC”) in 2002, to every Annual Meeting of the Assembly of the States, to the International

Criminal Court, victims have been ubiquitous in all the activities, media outreach, calls for funds, and the jurisprudence of the Court. Doing justice for victims has now arguably become the rhetorical centerpiece of the international criminal justice project. But who is the “victim” in international criminal processes? How, and by whom, is she constructed and represented in contemporary international criminal legal scholarship and practice? What space exists within international criminal processes for multiple conceptions of victimhood? What does the production of victimhood do for international law?

One may begin by noting that the quality of victimhood in international law is a contested one. This is not simply the case at the International Criminal Court, where the search for recognition by some victims may conflict with others. Of course, the incidence of these processes make visible some of the struggles involved, but the struggle over victimhood, or its recognition in international law, is arguably a much broader phenomenon that transcends the activities of a single court or indeed, a single branch of international law.

For example, the debate over reparations for slavery or colonialism put into stark focus the fact that some victims may have a harder time securing that status. Of course, victimhood in that case is not, and cannot, be tied to international criminal law processes. The perpetrators are long dead, and neither international nor domestic law arguably penalized the behaviour at the time. However, the victim label remains one that is ardently sought out and which draws, at least partly, on an actualized register of international criminal law. What emerges inevitably is that international law is involved in processes of hierarchization towards victims

8 and victimhood. In that context, the emergence of victim recognition, in the specific context of the ICC, may appear as the tree that hides the forest of constant and almost universal victimization, yet hyper-selective victim designation. Why those victims? Why now? And what does recognition, as such, do to victims?

Second, it is worth noting that the ascription of the victim label is a complex dialectical process. It is not even clear that all victims want to be described and understood as such, although some clearly do. There are certainly benefits – both symbolic and material – to being recognized as a victim. This is particularly the case in the context of the ICC, but one could also make the point more broadly in international law, for example, before international human rights courts. Moreover, the victims’ interest in being described as such does not entirely capture what is at stake. The demand for victimhood is inseparable from the demands for justice. To be recognized as a victim in itself, could count as a form of justice that restores a certain dignity to those who have been harmed; to be recognized as a victim may mean that one obtains reparations for the prejudice suffered. But few victims will seek to obtain that

‘status’ independently of what it is associated with more broadly. For example, in the international criminal justice context, victims may want to be recognized as such, but as a result of a criminal trial that also, perhaps primarily, convicts the person who victimized them.

At the same time, there may be ambiguity and even violence about the ascription of the label. One may not want to be recognized as a victim, or at least only as a victim.1 The victim label may promise more than it can deliver, raising expectations that international law will not and cannot honour. The recognition of victimhood may reinforce problematic assumptions about passivity and meekness. It may also, on occasion, create problematic

1 Christie Nils argues in her seminar book Nils Christie, “The Ideal Victim” in From Crime Policy to Victim Policy (Springer, 1986) 17 at 18. that “..being a victim is not a thing, an objective phenomenon. It will not be the same to all people in all situations externally described as being the “same”. It has to do with the participants definition of the situation. Some will see victory… where others see victims...”

9 dichotomies between, for example, ‘perpetrators’ and ‘victims.’ And it may subsume individuals or subgroups within the broader narratives of collectives, not to mention empower those who ‘speak in the name’ of victims. None of this necessarily impugns the exercise of victim labeling, but should incite one to assess it carefully and critically. We may be witnessing a ‘victim moment’ in international law, but it is not clear what produces that moment and to what end.

Third, whilst victim labelling may be understood as largely for the benefit of victims themselves, one of the goals of this thesis will be to inquire what it does for international criminal law and international law more generally. To be clear, the quality of the victim – now less than ever before– hardly exists entirely independently of international law. The struggle is, for the most part, a struggle to be considered, in the felicitous expression of Sara

Kendall & Sarah Nouwen, as a ‘juridified victim.’2 Victimhood and the law have become entangled. In other words, international law and law generally are heavily solicited in the production of specific legal forms of victimhood. In doing so, they construct a certain

‘objective’ legal notion of what it is to be a victim, which may be contrasted with the

‘subjective,’ non-legal perceptions of what it means. But we have no reason to think that the former exhausts the meaning of the latter.

One of the key questions of this thesis will be what happens to the fluid, psychological, experiential notion of victimhood once it has to pass the test of legal recognition. One intuition of the thesis is that there is never a ‘final’ concept of the victim that could be considered to have obtained legal assent once and for all. Rather, the concept of the victim is constantly evolving under competing pressures. It may depend, for example, on prosecutorial decisions, civil society energies, or the appetite of states to fund large reparations programs. Instead, it is suggested that the legal construction of victimhood is

2 Kendall S & Nouwen S, “Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood” (2014) 76:3–4 Law Contemp Probl Law and Contemporary Problems 235.

10 largely an iterative process: demands are made by victims or occasionally encouraged by the legal superstructure, which leads institutions and courts to produce criteria to define and thereby produce victims. Certain victims are as a result empowered who may then inspire others to come forward who ‘recognize themselves,’ in the legal definitions that have been produced, but may in turn subtly shift the borders of victimhood. Definitions, in that respect, do not simply take stock of the ‘real,’ but contribute to shape it by creating certain incentive structures.

More importantly, the question is what peculiar legal concept of victimhood is produced as a result. We have every reason to believe that the daily, psychological perception of victimhood and the narrow understanding that international law gives of the concept do not necessarily coincide. Certain legitimate forms of victimhood are therefore constructed by international law in ways that are peculiar to international law’s understanding of the world, and that may say as much about international law itself, then some abstract or universal notion of victimhood. Finally, there remains the possibility that although international law designates victims – and in that very specific sense ‘produces’ them – that international law may be implicated in processes of victimization. In other words, that international law comes to the rescue of those it has partly contributed to and may continue to make into victims.

International law itself may at times find it hard to entirely avoid the suspicion that it is not merely bringing succour to victims, but is very literally part of the production of victimization. In that sense, many victims are also, in some ways, victims of the failures of international law, whatever and whoever they may otherwise be victims of.

The central hypotheses of this thesis, therefore, is that victimhood is a complex and contested legally and socially constructed notion that cannot be reduced easily to a unidimensional legal reality. Rather than looking at how international criminal justice treats

‘victims,’ already understood to be a known independently of international law, the emphasis

11 will be on how international criminal justice creates victims through complex dialectical processes and, in the process, how international criminal justice ‘creates itself.’ At any rate, the international criminal justice project has already, and will inevitably, continue to be called upon to arbitrate fundamental conflicts about victimhood. In doing so, it cannot simply hide behind legal definitions of victims in ways that obfuscate the degree to which it is the repository of a peculiar and situated concept of victimhood that it is constantly propping up, but one that has real impact, both legal and non-legal, on the world. A nuanced approach will be required to understand these contesting realities.

1.2. Victims: A Basic Definition

1.2.1. Who is a Victim of an International Crime?

Since the resurgence of international criminal justice in the last two decades, victims of international crimes have become common figures in diplomatic, political and legal rhetoric, and have increasingly been cast as rights-bearing subjects in international law.

Victims play a constitutive role in international criminal justice processes alongside judges, prosecutors, non-governmental agencies and the alleged perpetrators. These roles are constructed through the procedural rules, norms and practices of international criminal tribunals. A fuller discussion of the constitutive role of victims in the practice of the

International Criminal Court can be found in Chapter Five.

First, the word ‘victim’ as an adjective, refers to a person who has suffered direct or indirect harm that is either caused by intentional conduct or as a result of an unintentional event. A ‘victim’ is commonly understood in international criminal law as someone who is or has been affected, injured or killed as a result of a crime against humanity and who is not responsible for the harm caused. There is however an important distinction to highlight.

12 Although, one is arguable always a victim ‘of something’, one may come to be described or even understood, at least for certain functional purposes, as ‘a’ victim.

Certain physical and psychological attributes are associated with the condition of victimhood. These include vulnerability, where individual capabilities are weakened and therefore render the person more likely to be harmed again in similar ways; weakness, being the inability of a person to act autonomously; passivity, which can be contrasted to the dominance of the person causing harm, as well as distress, discouragement and helplessness.3

On one hand, these attributes assume the existence of certain needs as a result of the harm experienced. These include medical, psychosocial, material and financial needs, amongst many others. On the other hand, these attributes assume that the person harmed would have a total or partial inability to meet these needs on his or her own.4 Among other dimensions on the state of victimhood, there is also the argument that victims feel unaccountable for the harm caused and are therefore innocent, as opposed to the perpetrator, who by extension is considered responsible and guilty.5

1.2.2. Victim Identity

Second, the term ‘victim’ as a noun, refers to an identity or status. One is ‘a’ victim, in the same way that a perpetrator is guilty of committing ‘a crime,’ but will be described as a

‘criminal.’ The identity of a ‘victim,’ in the sense of a label or status, can be used either by people affected by a heinous crime to describe themselves, or by others when they refer to such people in their discourse. Rather than indicating the actual state of vulnerability of a person or group and their needs, the term ‘victim,’ when used in this way, relates to a much

3 Valerie M Meredith, “Victim Identity and Respect for Human Dignity: a Terminological Analysis” (2009) 91:874 International Review of the Red Cross 259. 4 Kirsten Campbell, “Victims and Perpetrators of International Crimes: The Problem of the ‘Legal Person’” (2011) 2:2 Journal of International Humanitarian Legal Studies 325. 5 Meredith, supra note 3.

13 more abstract and contestable dimension. This involves issues of self-perception (as a victim or not), identity (understood as the different ways in which one relates to oneself and presents oneself to others), or feelings. Self-worth, self-respect, confidence and dignity, or on the contrary, feelings of demoralization, depression, hurt, recognition, the desire to seek justice, to benefit from reparations, to influence public opinion and to highlight the guilt of perpetrators. These are all emotions that relationally constitute the identity of the victim, and may motivate persons to claim victim status or to attribute this status to others.6

One may demonstrate the complex uses of ‘victimhood’ as a form of identity with the following cases. A young girl who was seriously injured by terrorists in Pakistan became an anti-extremism campaigner, vindicating her rights as a ‘victim’ and demanding forms of justice through her presence and campaign activities at the United Nations. In this narrative, the crucial condition in becoming a victim is not merely suffering from harm inflicted by terrorists in Pakistan, but rather highlighting and embracing one’s victimhood and obtaining global recognition. Another, possibly competing narrative is that of a Sudanese man from a village in Darfur, who lost several members of his family in the genocide and now works with an aid organization in the Darfur region. He maintains a low profile and does not reveal any of the suffering he had gone through to his colleagues. Instead, he appears content to be considered a colleague rather than a ‘victim of the conflict’ – a category of people he himself is helping.7 Finally, one can also see the dialectics of identity in more collective ways. For example, a government might seek to reshape its world image as a ‘victim’ after being the target of a terrorist attack, whereas another state that has experienced similarly deadly events will integrate the episode in its history but will not seek to include the aspect of victimhood in

6 Arvonne S Fraser, “Becoming Human: The Origins and Development of Women’s Human Rights” (1999) 21:4 Human Rights Quarterly 853 at 3. 7 Meredith, supra note 3.

14 a new national identity.8 All of these narratives show that one may be a victim but not see oneself as such; or one might portray or be portrayed as a victim and not truly be one

(according to some views at least). Moreover, this does not mean that individuals or collectives always have the upper hand over whether they are described as victims or not - a process which in many ways may be eluded to them.

It is interesting to note that the attributes linked to the term ‘victim’ when referring to a state of vulnerability remain present when claimed or attributed to a status. In armed conflict, everyone may feel victimized, perhaps even the very authors of the atrocities.

Portraying oneself as a victim may be a way of inverting a certain narrative or of presenting oneself as the ‘underdog’. The implication of those attributes may also, by the same token, negatively affect the people that are meant to be described as ‘victims’ by devaluing them. In other words, being a victim may be a status that is actively sought or one that is shunned.

Moreover, there is a significant dialectic discussion surrounding the relationship between the individual and the collective. Within in a domestic context, victims may well be individual, although their individualized victimhood may be part of a broader generic victimization (e.g. of women, children, etc.) On an international level and particularly within the context of mass crimes, one is almost always both an individual victim and a generic or individual member of a broader group. The term ‘victim’ is often perceived as referring to the individual state of victimhood, when in fact, its impact is more suited to the labelling of a group of individuals.9

1.3. Constructivism as a Theoretical Approach

In understanding what the victim is, this thesis will adopt a constructivist lens that treats the question as one fundamentally of construction. The basic intuition of a

8 Ibid. 9 Ibid.

15 constructivist approach is that ‘victims’ do not exist in the absolute only to be recognized as such by the law. Rather, in deciding who qualifies as a victim and why, the law forms a crucial part of the social construction of victimhood. In other words, we have no way of truly knowing what it means to be a victim except through how victims are portrayed and represented, including by and through, the law. This may be deemed a fairly radical claim.

After all, there must be a certain experiential, or even existential notion of what it is, fundamentally, to be a victim. This may well be, but the experience only becomes accessible to us to the extent that it is mediated, interpreted, explained, showcased, communicated, narrativized, etc. To be clear, claiming that victimhood is ‘constructed’ does not make it less real. On the contrary, it locates victimhood at the intersection of powerful social practices that labeling and anti-labeling deep constraints on what it means to be a victim, the conditions under which one may claim to be a victim, and the treatment one can expect to receive as such.

Constructivism10 has had a great diversity of scholarly uses. It has been used in the social sciences. For example, international relations, and recently international law, have studied the social creation of identity and the evolution of norms.11 A central relevance of constructivism is in its explanation of how international law can influence and shape behavior and identity, and how international law can help inform a richer understanding of the

10 The term Constructivism was coined by Nicholas Greenwood Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Columbia, S.C.: University of South Carolina Press, 1989). but some of the key tenets of the constructivist worldview were present as early as the 1950s, in the “security communities” work undertaken by Karl W Deutsch, Political Community and the North Atlantic area; International Organization in the Light of Historical Experience, (Princeton: Princeton University Press, 1957). Karl Deutsch and his students. 11 “Norms” are standards of behavior created through mutual expectation in a social setting. Many social norms are never transformed into legal norm and the category of “legal norm” is not fixed. Generally, what norms will be included in the category of “legal norm” depends on one’s concept of law. For a fuller discussion on the evolving role of norms in international law and especially on the constructivism and international law, see “Constructivism and International Law” in ’Interdisciplinary Perspectives on International Law and International Relations’ : “The State of the Art” (2013); Jutta Brunnee & Stephen J Toope, “An Interactional Theory of International Legal Obligation” (2008) Jutta Brunnée and Stephen J Toope, LEGITIMACY AND PERSUASION IN INTERNATIONAL LAW, Cambridge University Press, Forthcoming 08; Jutta Brunnée & Stephen J Toope, Legitimacy and Legality in International law: An Interactional Account (Cambridge University Press, 2010).

16 particular roles of different categories of norms in the international law system. So far, constructivist works have focused on the building of social norms through interaction and on the pathways through which they come to influence actors.12 For instance, constructivist scholars in international relations theory argue that identity formation is relational and occurs before, or at least, concurrently with interest formation.13 Interests are therefore defined both in material and non-material terms. While acknowledging the importance of power and material interests, constructivists focus attention on the role that culture, ideas, institutions, discourse, and social norms play in shaping identity and influencing behavior. For this reason, constructivist thought is especially compelling when used to explain the constitution of actors such as victims, which are in great part artifacts of the law’s evolution, and whose fortunes, as a category, are closely tied to the ability of the law to recognize and constitute them as such over time.14

Constructivism also finds deep roots in broader social theory, especially in the work of Max Weber.15 From Weber, constructivists draw the insight that the social world is constructed by intersubjective understandings. These understandings are neither external to individuals (i.e. purely material), nor are they simply inside the heads of individuals

(i.e.purely subjective).16 The work of John Searle, who built on Weber’s theories, has also been influential. Searle argues that “facts” are not all material. Instead, he makes a distinction between brute facts, social facts, and institutional facts. For Searle, “institutional facts exist only within systems of constitutive rules”.17 In a constitutive rule, a new status is assigned to something (e.g., paper becomes money, an injured person becomes a victim, a victim

12 note 11 at 120. 13 Christian Reus-Smit, Duncan Snidal & Ian Hurd, “Constructivism” in The Oxford Handbook of International Relations (Oxford; New York: Oxford University Press, 2008) at 298–316. 14 John G Ruggie, “Continuity and Transformation in the World Polity: Toward a Neorealist Synthesis” in Neorealism and Its Critics (New York: Columbia University Press, 1986) at 131–57. 15 Max Weber, Guenther Roth & Claus Wittich, Economy and Society: An Outline of Interpretive Sociology (Berkeley: University of California Press, 1978). 16 Ibid. 17 John R Searle, The Construction of Social Reality (New York: Free Press, 1995).

17 becomes a survivor, etc.) Because the material features are insufficient to guarantee success in function – paper does not declare itself to be money – “there must be continued collective acceptance or recognition of the validity of the assigned function; otherwise the function cannot be successfully performed”.18 Also, in the realm of international criminal justice, an injured person cannot unilaterally designate himself or herself as a victim. That designation has to come from meeting the eligibility requirements of the Rome Statute, or any other

Statutes of the specialized international tribunals.

Constructivism has made important contributions in understanding the operation of international law, by showing how norms may constitute interests.19 Perhaps, more importantly, constructivism highlights the contribution that legal norms can make to creating specific categories of actors, such as victims and perpetrators, but also witnesses, Samaritans, bystanders, refugees, etc.20 International law provides a grid of intelligibility that allows us to see actors for what they are, especially in a context where there is a struggle over the attribution of relevant labels. International law can thus pose as the arbiter of who is a victim and who is a perpetrator, and in the process, builds its specific naming power. Moreover, constructivism emphasizes the extent to which the process of labeling is, in a sense, always dialectic, as it involves interaction between institutions, norms and various claimants. It is that social interaction in the constitution of victims and victimhood, that this thesis seeks to explore and adopt a constructivist view to help cure some of the weaknesses in the literature.

From a constructivist lens, the successful communication of victimisation and the resulting recognition as a victim depends on how strongly that message can be carried across.

Crucially, it will also depend on the receiver of the communication.21 This is a result of the

18 Ibid at 45. 19 note 11 at 129. 20 Barnett Michael & Finnemore Martha, “Rules for the World: International Organizations in Global Politics” (2004) Cornell University. 21 Rainer Strobl, “Becoming a Victim” in International Handbook of Victimology (2010) 3 at 5.

18 general position that the constituting feature of an action is not intention, but the interpretation of certain behaviour by the receiver of information. Successful communication, in this sense, only means to accept a communicative act as a starting point for further communication or action.22 It does not require a notion of complete common understanding.

For instance, a police officer does not need to feel empathy for the victim to be able to act.

All that is necessary for the police is to perceive the violation of a norm in the victim’s report.23 Other factors such as informal rules and implicit knowledge also play a crucial role for the response to a victim’s report. Therefore, to become a victim, for the police and the justice system, it is of high importance that a person can communicate her experiences in a way that is in accordance with the criteria of the criminal law.

Another aspect of the constructivist perspective is the relativity of the image of the victim, as well as that of its ‘nemesis’ or radical other, the perpetrator.24 Who is construed as a victim or as a perpetrator depends not only on formal rules, which may at least be uniform within a state, but also on informal rules that vary between different cultural and subcultural units. Becoming a victim, in a socially relevant sense, implies the ascription of a special social status according to such rules. Without this status, a person will not be regarded as a victim and will not be a victim in the social world. She will not get the sort of formal support that the recognition of one’s status as a victim can receive from the state.25

Consequently, the element of social recognition as a victim beyond a level of self- identification, is important to the construction of victimhood. That law, in bestowing a certain kind of recognition to victims, forms part of the way in which the victim is constituted; the law is thus the cause, rather than just consequences.

22 Ibid. 23 Ibid. 24 Paul Rock, “MURDERERS, VICTIMS AND ‘SURVIVORS’ The Social Construction of Deviance” (1998) 38:2 The British Journal of Criminology 185. 25 Rainer Strobl, “Constructing the Victim: Theoretical Reflections and Empirical Examples” (2004) 11:2–3 International Review of Victimology 295 at 295.

19 In relation to the international legal structure, the term, “victim of international crimes,” typically refers to a person that meets the criteria laid out in the Rome Statute, or in the relevant Statutes of International Criminal Tribunals, or any other specialized tribunal.

Based on this criteria, some may be considered a ‘victim,’ whilst others are not. Because this is a legal category rather than an existential one, one can become a victim, in the legal sense if one considers oneself as such; or whether a facet of one’s identity defines the whole of it, without considering other attributes that could be central to the perception of oneself. The connection between the term ‘victim’ and the development of legal frameworks on victimhood, which ultimately gives individuals or groups an interest in claiming the status of being a victim, is highly contentious.

It has been argued that subjects, as victims, are ‘produced’26 by being recognized through legal discourse. In this way, only the people who are deemed to match the appropriate legal criteria and definitions at a certain point in time, or in the case of the ICC, occurring after 2002, may officially be recognized as victims of international crimes, thereby being able to benefit from the international criminal justice process. This recognition process is highly shaped by historical and cultural contexts. It may have more to do with seeking harsher punishment for certain perpetrators by emphasizing the degree to which they have victimized others, rather than on a true interest in the plight of victims.27 It could even exclude actual victims and replace them with ‘symbolic victims,’ or ‘representational victims,’ who fill the needs of the accuser. An interesting twist to the construction of the victim is that some people who were affected by armed conflicts, might not define themselves as victims. In comparison, other people, who might not meet the criteria (e.g.

26 I use the word “produce” to refer to the ways in which victimhood is constructed in international law by all the relevant stakeholders, such as judges, diplomats, prosecutors, defence lawyers, investigators etc. It does not have any sociological meaning and its usage runs through the entire thesis. 27 James Dignan, Understanding Victims and Restorative Justice (McGraw-Hill Education (UK), 2004) at 35.

20 perpetrators of crimes) might personally define themselves as victims (e.g. of central authority, or of the ‘system’) and could claim some form of recognition for that identity.28

Moreover, there is no reason to think that, as a result of the crucial dependence on the recognition of one’s status as a victim, those meritorious of that status will actually obtain it, and vice versa. While official recognition of a victim’s harm can affirm that they are not responsible for their suffering, assert their dignity and ability to seek redress,29 in reality individuals are not always recognized as victims because of prevailing political or moral ideas about who deserves to be ‘labeled’ as such.30 In addition, there is a political and instrumental dimension to the construction of victimhood, all the more in fraught transitional environments. The moral connotations of innocence that come with the victim label, for example, can imbue victim advocates with a sense of moral superiority whilst shielding them from scrutiny, or may make those who criticize such advocates appear insensitive or callous.31 Therefore , the victim label has a very powerful meaning that can be easily abused to further the political or moral gains of different participants in the sort of complex transitional environments within which international criminal justice operates.32

1.4. Research Objectives

Accordingly, this doctoral thesis proposes to explore the construction of victimhood in international law, with a particular focus on its construction in and through international criminal law. More specifically, it will examine the suppositions, proclivities and structures of thought behind the construction of victimhood. It uses an interdisciplinary approach,

28 Daniel Muñoz-Rojas & Jean-Jacques Frésard, “The Roots of Behaviour in War: Understanding and Preventing IHL violations” (2004) 86:853 Revue Internationale de la Croix-Rouge/International Review of the Red Cross 189 at 8, 9, 11. 29 Meredith, supra note 3. 30 Richard Quinney, “Who is the Victim?” (1972) 10:3 Criminology 314 at 321. 31 Kieran McEvoy & Kirsten McConnachie, “Victims and Transitional Justice Voice, Agency and Blame” (2013) 22:4 Social & Legal Studies 489. 32 Luke Moffett, Justice for Victims Before the International Criminal Court (Routledge, 2014); Luke Moffett, “Elaborating Justice for Victims at the International Criminal Court Beyond Rhetoric and The Hague” (2015) Journal of International Criminal Justice mqv001.

21 recognizing that victims and their relationship with the international criminal project cut across disciplinary boundaries. In particular, the thesis seeks to conceptualize the socio- legal setting of the emergence of victims in international law. In that respect, it is not simply a positive law thesis, where one would be content with saying what in law, and according to conventional reasoning count as the criteria of victimhood. Such a path would not only be an imperfect indicator of who effectively is designated to be a victim. This process is mediated by symbolic resources and capital, strategies, and struggles; it would also fail to see that the international criminal justice project is constitutive of the reality it claims to simply apply to.

Perhaps, more problematically, it would risk failing to criticize the designation of victimhood, not only in international law’s own terms, but from a broader perspective dedicated to problematizing the very category. The task of an international law scholar, in this view, is not only to assist in applying, strengthening and operationalizing the law, or not even only to understand how the law operates and what its effects (political, cultural, historical, social) might be, but to understand the law as producing social effects rather than merely taking its cue from them.33

This thesis will explore the manner in which victims are constructed in international law, and will question who takes these steps and for what purposes. It will point out some of the inherent ambiguities of the concept, its constant evolution and some of the challenges these create. Among other things, the thesis constructs a genealogy of the victim-perpetrator dichotomy in international law, as it explores how the concept of victimhood is produced in international legal discourse, and connects the development of victimhood to both developments in domestic criminal justice systems and the emergence of the discourse of international human rights.

33 See Judith N Shklar, Legalism: Law, Morals, and Political trials (Harvard University Press, 1964); Hannah Arendt, Eichmann in Jerusalem (Penguin, 1963); Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers, 1999); Frédéric Mégret, “The Politics of International Criminal Justice” (2002) 13:5 European Journal of International Law 1261.

22 The thesis will also explore the way in which the construction of victimhood is dependent on a range of technocratic and administrative discourses that complement the law’s operation. It will emphasize a number of conceptually troublesome and ambiguous cases in which the image of the victim becomes blurred, such as “child-soldiers”, “female perpetrators” (e.g. victims who have also committed international crimes). Finally, the thesis will highlight the ways in which the victim is not only constructed by international law but, in turn, helps to construct international law through his or her agency.

1.5. Research Questions and Related Issues

This research takes place against the background of the debate about the role and purpose served by victims in international law.34 It takes a step back from that debate by looking, what one may think is international law’s contribution to the ongoing category of victimhood, at the manner in which international law has, does, and will continue to inform the processes on the construction of victims and victimhood. Conversely, the thesis seeks to address the way in which victims, or the claim of victimhood, have shaped international law.

Question – This doctoral thesis thus asks three questions: (1) how has international law been constructed by victims? (2) How is that construction problematic? (3) How have the victims or the claims of victimhood been constructed under international law? These questions are particularly important considering recent events in the trajectory of victims’ issues, evolution, advocacy and rights. As will be seen, they are also very closely related in

34 Hannah Arendt, On Violence (Houghton Mifflin Harcourt, 1970); Marc Henzelin, Veijo Heiskanen & Guénaël Mettraux, “Reparations to victims before the International Criminal Court: Lessons from international mass claims processes” (2006) 17 Criminal Law Forum 317; Marc Groenhuijsen, “International protocols on victims’ rights and some reflections on significant recent developments in victimology” in Victimology in South Africa (Pretoria: Van Schaik, 2005) 333 at 333–351; A L M de Brouwer & Mikaela Heikkilä, “Victim Issues: Participation, Protection, Reparation, and Assistance” in International Criminal Procedure (Oxford: Oxford University Press, 2013) 1299 at 1299–1374; Dawn Rothe, “An International Criminal Justice System for Victims? The Situation at the International Criminal Court” in Victimology in South Africa (Van Schaik, 2013) at 287–311; Dawn L Rothe & David Kauzlarich, “Can an International Criminal Justice System Address Victims’ Needs?” in Toward a Victimology of State Crime (London: Routledge, 2014) 173 at 238–249; Christine H Chung, “Victim’s Participation at the International Criminal Court: Are Concessions of the Court Clouding Promise” (2007) 6 Nw UJ Int’l Hum Rts 459 at 459–545.

23 that international law’s evolution is both a consequence and a cause of the development of prevailing notions about victimhood. They are also related in the sense that the problems and ambiguities inherent in the attempt to define legitimate victimhood are productive and part of the constitution of international law.

Claims – The status of victimhood in international law has been constructed in many ways. One central claim of this thesis is that the encounter of the figure of the victim with international law has led to an increasing juridification of what it means to be a victim.

Victims are constructed in international criminal law and international humanitarian law as legal persons who are on the receiving end of illegal acts perpetrated by individuals, including public officials, as well as by non-state actors. In this construct, international law presents victims as autonomous individuals and/or constitutes them as members of groups that criminal, or humanitarian norms seek to protect. International law takes a step further by recognizing certain victims (and not others), as existing in legal relationships of rights and duties to other persons (as individual or members of groups). This juridification is also a rarefication. While many feel that they are being victimized, only some will be recognized as such by the law. With rarefication comes increasing competition over access to juridified victimhood in a context where not everyone can be a victim if the term is to retain any analytical significance.

In addition to being constructed at all by the law, victims are being constructed in particular ways to serve law’s designs. For instance, it has been argued that the human rights project depicts the victim, as well as the essence and the idea of victimhood, as a human being whose ‘dignity and worth” have been violated by the state.35 In the dominant narrative, the victim figure may be projected to be a powerless, helpless innocent whose dignity has

35 Makau W Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights” (2001) 42:1 Harvard International Law Journal 201 at 203.

24 been negated by the offensive actions of the state.36 However, victims might also be portrayed as vengeful, agentic, or resisting. Clearly there is much space within international legal fora for competition over the defining attributes of victimhood.

A related and major claim of this thesis is that the construction of victims in, and through international law, is often problematic. It involves highlighting certain aspects of the individual’s experience that may or may not be defining of who they are, and which often do not do justice to the totality of their experience. In some cases, even distinguishing victims from perpetrators can be difficult. The law only manages, at times, to make these distinctions by focusing quite narrowly on the historical record or some of the political issues involved.

As such, the law is at the very least responsible for what it creates as a result. It is urgent to think of ways in which the problematization of victimhood can lead to new insights about its true nature and function within the broader system of international law.

1.6. Research Approach, Contribution to Knowledge and Methodology

The ambition of this research is to deconstruct the concept of the victim in international law by showing its relative artificiality as a by-product of the international legal project. There may of course be victims beyond the law, but international law has sought to hegemonically claim a certain monopoly of what it means to be a victim. International law certainly has the power to confer a legally recognized form of victim status, one that may be eagerly sought by various constituencies.

This research will make important contributions to international law. By studying how international law has constructed victims, this doctoral work will join a growing body of legal scholarship that seeks to justify international law by reframing its key concepts regarding victims. Furthermore, this research project will examine the (de)construction of

36 Mutua, supra note 35.

25 international law by victims. The purpose of this thesis is to examine the forward-looking aspects of victims’ agency and ask whether this is now a well-established feature of the international legal order. This research is not an attempt at unraveling new factual evidence that would push for new treaties, resolutions or any new legal document on victims’ rights or issues – it goes beyond a simple critique to a reinterpretation of, if you will, existing facts.

The purpose is to (de)construct the hegemonic narrative of international law and to

(re)construct the story of the victims, the colonized and the oppressed and bring it to the fore by contributing to the international legal scholarship in this area. Simply put, it is an attempt to rethink existing facts in light of rethought contexts, thereby illuminating old facts and core realities in a new light.

In order to explore the research questions, this thesis follows a broad constructivist methodology that is interdisciplinary in nature and seeks to reconstruct the totality of factors that goes into the construction of a phenomenon. Clearly, victimhood is partly constructed by the law but it is also simultaneously constructed by a variety of socio-legal influences. In that respect, the thesis moves back and forth between conceptual work, legal analysis and practical engagement with a broad range of interdisciplinary literatures. It brings together history, constructivist theory, victimology, international legal scholarship and an in-depth case study of victim inclusion or exclusion in the international criminal justice project. One of the more historicizing motivations of the project is to understand the concept of the victim as evolving through time.

The foundations of this thesis lie in a thorough analysis of the international instruments that constitute the law applicable by international and hybrid criminal courts, wherein victims may exercise one or more dimensions of their status. Understanding the genesis of these instruments, and the ways in which they were subsequently applied, is a precious source to highlight the sort of thinking that went into granting certain tribunals a

26 victim mandate. In that respect, the thesis will draw on a range of conventional interpretative tools as well as the case law of the tribunals themselves. Emphasis will be given to how and to what extent judicial reasoning has shaped the victims’ status. One of the goals is to understand how victims’ status has been enhanced or weakened by the jurisprudence of international and specialized criminal tribunals particularly in the light of the accused’s right to a fair and impartial trial. Developments before international criminal tribunals will be complemented by the study of other initiatives, such as the work committed by human rights courts, in order to understand the specificity of victims before the ICC. The attempts of secondary literature to grapple with the phenomenon of victimhood will be referenced whenever useful. Finally, although the thesis does not have an empirical component per se, it will seek to draw on the relatively scarce empirical literature on victimhood in international law in order to complement its analysis.

1.7. Thesis Structure

This thesis is divided into 10 total chapters, all of which built on a number of central arguments, but address different issues. This thesis will take on more of an interdisciplinary approach than a doctrinal approach. Chapter 1 is the present introduction. The remaining chapters are divided into two parts. Part 1 contains four chapters – 2, 3, 4 and 5, under the overarching theme of constructing victimhood in international criminal justice. Part 2 contains a further four chapters – 6, 7, 8 and 9, under the overarching theme of problematizing victimhood in the international criminal justice project. Chapter 10 concludes the whole thesis.

Chapter 2 explores the origins of victimhood in international law and argues that the concept of victimhood in international law is not a recent phenomenon. Victimhood is actually a much older process in the development of international law, which is traceable to

27 slaves and slavery, Christian and Jewish minorities in the Orient, aliens and the colonized as the “ultimate” victims.

Chapter 3 builds on the previous chapter and explores the contemporary rise of

‘victim’ in the international law project. It focuses on the cross-fertilization of ideas between the regimes in international humanitarian law and international human rights law, and examines how the construction of victims in these frameworks cumulated into a more individualized, particular and juridifed notions of victims. It further argues that the significant overlap within the regimes laid the groundwork for an increasing recognition on the status of victims in international criminal law.

Chapter 4 further builds on Chapter 3 and explores the ‘invisibilities’ and

‘visibilities’ of victims in the international criminal law project. It argues that part of the visibilities of the victims in the international criminal justice project can be traced to the work of victimologists within domestic jurisdictions which led to a gradual alignment of international law that were first observed at the domestic level.

Chapter 5 explores the representative practises of victims at the International

Criminal Court (ICC). While victims are crucial to the justice effort of international crimes, some form of justice emerging from the jurisprudence of the Court does not mean all victims support the international criminal justice project. The chapter argues that there is a need for sustained attention to the clash of logic and the gap present between the different imageries of victims. In practise, victims have very little power to make their voices heard at the Court.

Chapter 6 seeks to problematize the concepts of victims and perpetrators. The categorization of the two concepts presents complex, contested and problematic legal categories in the aftermath of armed conflicts or political violence. In the midst of paroxistic political struggles, it is usually easier and more gratifying for international law scholars to

28 think in terms of absolutes, or some form of white and black, with little acknowledgement that there may be many shades of gray. This chapter argues there is a need to rethink the idea that victims and perpetrators are two separate and distinct groups and that international law needs to be more nuanced to capture the complexities involved in the victim-perpetrator dichotomy, which is inherent in the aftermath of political violence.

Chapter 7 seek to contextualise the complexities involved in achieving gender justice in the international criminal justice project. Using some examples, the chapter argues that the way in which sexual violence in armed conflicts is addressed in existing international criminal justice processes sometimes leads to the re-victimization of women, as it hinders their transformation in the process from being the subjugated category of passive victims to active agents. This reduces their ability to challenge the hegemonic positions of men in the society. Further the mainstream focus on the role of hegemonic masculinity in the perpetration of sexual violence in armed conflicts tends to be problematic. It gravely masks the experiences of men and boys who might have suffered sexual violence, and refuses to hold women, who might have committed acts of sexual violence during armed conflicts, accountable.

Chapter 8 explores one of the toughest moral and legal problem of this thesis - the lives and realities of child soldiers, both boys and girls. It examines the ongoing criminal trial of Dominic Ongwen at the ICC as a miniature case study. While child soldiers are usually constructed through the logic of extremes, either being extreme victims, extreme perpetrators or extreme heroes, in reality their experiences and identities fall within the messy, ambiguous and paradoxical zones of all three sides of that triangle. This proves to be one of the bigger challenge to contend with, in rebuilding their lives after armed conflicts. No doubt, Ongwen’s ongoing trial at the ICC raises vexing questions on justice, especially on the moral agency of children. This chapter argues that it is imperative that nuances are brought to the narratives of

29 child soldiering in the international criminal justice project, because these narratives matter in shaping and enhancing the legitimacy of the international criminal project in third world countries, where the phenomenon of child soldiery persists. The chapter also argues that in enhancing the legitimacy of the international criminal justice project, a contextual based discussion of how the victimization of child soldiers occur, will reveal that the victim or perpetrator status of child soldiers is not fixed, but is rather subject to change over time.

Chapter 9 expands the framework somewhat by bringing attention to some currently marginalized victims, namely victims of slavery and terrorism. The chapter argues that unless the international legal discourse surrounding victims of slavery and terrorism are conceived in a nuanced manner, the diverse and unique experiences of those affected will remain on the periphery of legal scholarship, with their voices and agency being effectively silenced. The chapter argues that the best way to achieve this is to stop constructing victims of terrorism and slavery as objects whose stories are to be owned by civil society organisations or the academia, and to provide a space for them to share their own stories and actually play the role of political actors.

Chapter 10 concludes that the international criminal justice should take a nuanced approach to the competing interests in the construction of victims as they seek justice to address their suffering and to document their experiences.

30 Part I. The Construction of Victims in the International Criminal Justice Context

31

Chapter 2: The Origins of ‘Victimhood’ in International Law

2.1. Introduction

While in recent years, there has been a renewed interest toward the victims of international crimes, the existence of ‘victims’ of international crime are not a new category in international law, as stated by some commentators.37 International law has had a significant and early influence in activating a role for victims and producing notions of victimhood.

This, it has done at times jointly, and other times separately, from the rise of international criminal law. However, this has almost always developed in ways that are connected to the discussion and emergence of certain concepts of accountability. The archaeology in producing ‘victims’ suggests that international law is attentive to the way in which international legal processes produce subjects that are negatively impacted by them, and that international law often presents itself as a solution for such victims.

By examining the historical context of the position of victims in international criminal law, this chapter charts the construction of victimhood within the broad framework of international law. I argue that the incorporation of the regime of victim agency within the framework of an international criminal court is not simply the next logical step for international criminal law, as is often presented, but rather represents part of an older process of the development of international law. The chapter proceeds in two sections. Section one will chart the history of slaves as being the earliest victims in international law, and thus explores the legal characterization and construction of slavery. The second section builds on the first section by exploring examples of the later developments of victimhood.

37 Carla Ferstman, Victims’ Rights, International Criminal Law, and Proceedings, Oxford Bibliographies, available on http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953- 0106.xml (accessed December 11, 2017)

32 2.2. Slaves: The Original ‘Victims’?

In articulating the history of international criminal justice, most scholars locate the origins of international criminal law in the principles established at the Nuremberg and

Tokyo trials.38 The exclusive focus on the events at the Nuremberg and Tokyo tribunals glosses over issues of slavery in international law, as well as the contributions of the first international criminal tribunals in eradicating slavery, and the agency of Africans in the development of international criminal law. In fact, the slave trade and slavery are among the few universally acknowledged crimes under international law.

Central to the concept of slavery is ownership rights, which are exercised by one person over another person, irrespective of whether those ownership rights are known by the law or not.39 Traditionally, ‘chattel’ slaves were under complete ownership by their slave- masters, and were made to work in plantations where their legal personalities were completely commodified. While every state in the world has abolished “slavery” and the

“slave trade”, contemporary form of “slavery” persist in different sites of the world. Several situations are abound globally, where perpetrators still exercise a power of ownership over victims. Examples range from forced servitude or labour, to sexual slavery, forced marriage, the trafficking of persons for the purposes of prostitution, bonded labour and child labour.

38 Antonio Cassese, “From Nuremberg to Rome: International Military Tribunals to the International Criminal Court” (2002) 1 The Rome Statute of the International Criminal Court: A Commentary 3; Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremburg Legacy (London; New York: Routledge, 2008); Kevin Jon Heller, The Nuremberg Military Tribunals and The Origins of International Criminal Law (Oxford University Press, 2011); Dominic McGoldrick, “Criminal Trials Before International Tribunals: Legality and Legitimacy” in The Permanent International Criminal Court: Legal and Policy Issues, (Oxford: Hart, 2004). 39 Perhaps the most important is a recent decision of the High Court of Australia, R v. Tang [2008] HCA 39 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 28 August 2008). See further: Jean Allain, “R v. Tang-Clarifying the Definition of Slavery in International Law” (2009) 10 Melb J Int’l L 246. The centrality of the powers of ownership in the concept of slavery was codified by the 1926 Slavery Convention: 1926 Slavery Convention, Signed at Geneva on 25 September 1926, 212 U.N.T.S. 17. The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery outlawed ‘institutions and practices similar to slavery’, which includes debt bondage, serfdom, servile marriage and the exploitation of children: 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3.

33 More specific examples include Mauritanians born into hereditary or ‘chattel’ slavery,40

Indian children laboring in brick kilns due to debt bondage,41 Thai fishermen trapped in servitude,42 workers trafficked to construction projects in Qatar,43 girls abducted into sexual slavery by Boko Haram44 and the Islamic State of Iraq and the Levant (ISIL),45 and political prisoners enslaved in the Democratic People’s Republic of Korea (DPRK).46

The UN has been committed to the abolition and elimination of slavery and related practices in all forms and in every part of the world. Despite a plethora of resolutions, recommendations, decisions and high-level meetings emanating from the United Nations, slavery and its associated practices are not dead. On the contrary, the trafficking and sale of victims are flourishing, trade in international prostitution is growing more powerfully, and the exploitation of workers in bonded labour is becoming more organized and widespread.

Even new forms of slavery are emerging and the international community, despite its robust commitments, generally lacks the force to tackle this widespread scourge.47

In short, slavery is a concept that has changed over time but that exhibits powerful continuity. It is arguable a problem nowhere closer to being solved than it was 200 years ago.

This suggests interesting questions for the construction of slavery as a form of victimization.

40 Global Slavery Index: Mauritania, available online at http://www.globalslaveryindex.org/country/mauritania/ (visited May 21, 2016) 41 Global Slavery Index: India, available online at http://www.globalslaveryindex.org/country/india/ (visited May 21, 2016). 42 Global Slavery Index: Thailand, available online at http://www.globalslaveryindex.org/country/thailand/ (visited May 21, 2016). 43 Global Slavery Index: Qatar, available online at http://www.globalslaveryindex.org/country/qatar/ (visited May 21, 2016) 44 F. Bensouda,‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the abduction of schoolgirls in Nigeria’, 8 May 2014, available online at http://www.icc- cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20st atements/statement/Pages/otp-statement-08-05-2014.aspx (visited May 21, 2016). 45 G. Botelho, ‘ISIS: Enslaving, having sex with ‘‘unbelieving’’ women, girls is ok’, CNN, 13 December 2014. 46 Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea, UN Doc. A/HRC/25/63, 7 February 2014. 47 United Nations, Economic And Social Council, Commission On Human Rights, Report Of The Sub- Commission On Prevention Of Discrimination And Protection Of Minorities On Its Forty-Seventh Session, U.N. Doc. E/CN.41996/85. "Traffic in human beings was estimated to generate some 6 billion dollars annually, according to a report of the International Organization of Migration." U.N. Economic Alternatives to Illicit Drug Cultivation, Trafficking Must Be Created, M2 PRESSWIRE, Feb. 19, 1998 (Statement of Pino Arlacchi, Executive Director of the United Nations Office for Drug Control and Crime Prevention).

34 Are victims of slavery the same over time or do they evolve? What does the status of the slave as a victim of a certain practice say about international law? The next sections explore the construction of a slave through the exploration of international law’s engagement with the concepts of slave and slavery.

2.2.1. Constructing the Figure of the Slave

Slavery in some form or the other, is a practice that has long existed and that predates the rise of international law. The term slave has its origins in the word “slav”. The slavs, who inhabited a large part of Eastern Europe, were taken as slaves by the Muslims of Spain during the 9th century AD. All the main religious texts of Judaism, Islam and Christianity recognize slaves as a separate class of people in society. Going further back in time, the Mayans and

Aztecs kept slaves in the Americas, as did the Sumerians and Babylonians in the Near East.

The Egyptians profited from huge numbers of slaves, including the Jews, Europeans and

Ethiopians. The Greeks and Romans kept slaves as soldiers, servants, labourers and even civil servants. The Romans captured slaves from what is now Britain, France and Germany.

Slave armies were kept by the Ottomans and Egyptians. In Imperial Russia, during the first half of the 19th century, one third of the population were serfs, who like slaves in the

Americas, had the status of chattels and could be bought and sold. They were finally freed in

1861 by Emperor Alexander II. Four years later, slavery was abolished in the southern states of America following southern defeat in the American Civil War. In Africa, a number of societies and kingdoms kept slaves before the emergence of commercial contact with

Europeans. These included the Asanti, the Kings of Bonny and Dahomey. These cases exhibit that slaves, or the practice of slavery (both mercantile and domestic), were a well- established phenomena even before contact was made between the Africans and the

Europeans in the 15th Century.

35 International law emerged, therefore, at a time when slavery had long existed. What is interesting, however, is how early international law perpetuated and gave a veneer of legitimacy to the practices of slavery. In other words, far from simply responding to slavery or let alone abolishing it, international law was part of the expansion of the practice of slavery in an increasingly global arena. Re-reading Roman law, many early natural law thinkers understood that slavery was a legitimate by-product of victory in warfare. One could enslave the people one had conquered. Vittoria, for one, asserted that the “Indians” were not slaves by nature in the Aristotelian sense (they could have dominion in both public and private matters), but that they could be made into slaves if they opposed.48

International law also ‘presided,’ as it were, over one of the most expansive drives to put humans in slavery in the form of the Atlantic trade. The Atlantic slave trade and colonial slavery were unique in history: forced, massive and organized by populations from the same continent. At least initially, slave trafficking was made possible by a central and sacred tenet of international law: the freedom of the High Seas. It is there, unencumbered by any sovereign, that slave traffickers could engage in their trade. To be clear, even if international law did not specifically authorize slavery, nor did it specifically prohibit it. In that gap, slavery prospered.

2.2.2. Slavery as a “Crime Against Humanity”

Delegates at the Durban Conference stated that: “Slavery and the slave trade, including the trans-Atlantic slave trade, were appalling tragedies in the history of humanity not only because of their abhorrent barbarism but also in terms of their magnitude, organized nature and especially their negation of the essence of the victims, and… that slavery and the slave trade are a crime against humanity and should always have been so,

48 Francisci De Victoria, De Indis et De ivre belli relectiones (Washington DC: Carnegie Institution of Washington, 1917).

36 especially the trans-Atlantic slave trade.”49 What should we make of such a claim? Is it fundamentally anachronistic? It is my aim in this section to briefly explore the use of the phrase “crimes against humanity” in international law in connection with slavery and the slave trade, long before it was codified in either domestic or international law - even before, it was mentioned at the Nuremberg trials, as frequently cited by legal commentators and scholars.

The suggestion here is that a certain concept of the slave ‘victim’ played a key role in prompting an early resort to international criminal law. This was not inevitable: one could have suppressed the slave trade by force, for example, without specifically criminalizing it.

But criminalization appeared early on as an obvious mechanism to deal with a practice that was as widespread as slavery, and became increasingly more offensive to the growing sensitivity that international law sought to express in the late 19th Century. Slavery and the slave trade were among the few first universally acknowledged crimes in international law, and the abolition of slave trade remains a crucial point of historic significance in international human rights.50 For some, it was the collective moral outrage against the ills of slavery that lead to its eradication, in part, by both military force and coordinated international legal action. This includes the use of international courts, such as the Courts of the Mixed

Commission for the Abolition of the Slave Trade, (“Mixed Commissions”) to try perpetrators of slavery and owners of ships seized on the high seas.51 One of the important conceptual developments which lead to the rise of the contemporary international human rights regime is the idea that violations of human rights are of global and not just local concern.52

49 Declaration, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 31 Aug.-8 Sept. 2001 (Durban, South Africa), available at http://www.un.org/WCAR/ (accessed December 30, 2016) 50 Jenny S Martinez, The Slave Trade and the Origins of International Human Rights Law (OUP USA, 2012). 51 Ibid at 28. 52 Martinez, supra note 50.

37 Linked to the work of these Mixed Commissions are two important concepts: the concept of universal jurisdiction over perpetrators and the concept of crimes against humanity. In eradicating slavery, perpetrators were compared to pirates, or hostis humani generis, who were to be captured and tried for their crimes. Jenny Martinez argues that the term “crimes against humanity” was first used, in reference to the slave trade, more than a century ago by a prominent American jurist, Henry Wheaton53, before it became synonymous with the Nuremberg trials or any nineteenth century legal developments.54

Nonetheless, it is important not to idealize this development too much. There is more than a little retroactive rationalization of a move that occurred for a range of other reasons.

Some are historical and economic and beyond the scope of this thesis, but others are specifically legal. One of the issues that the slave trade raised, aside from the fact that it was thought shocking by liberal internationalists, is that it occurred on the High Seas and as such

‘defied’ the power of any one state to criminalize it. Universal jurisdiction, in that respect, helped to close a loophole in the international legal system, much more than it was based on the contempt in which slavery was held. In other words, the surfacing of that particular victim in international law had much to do with what might be described as a quirk of international law, namely the fact that the system was devoted to freedom of the High Seas on the one hand, but that this freedom could be abused for ends inimical to the broader ethos of international law on the other.

Another important limitation to the criminalization of slavery is that it only criminalized slave-trafficking. Throughout the nineteenth century, international law hardly opposed slavery as a purely domestic practice amongst ‘civilized nations’. The argument in

53 In his 1842 treatise Rights of Visitation and Search, the prominent American International Law Scholar Henry Wheaton described the slave trade as a “crime against” humanity. He uses the term again in his 1845 treatise, where he states that “[p]ublic opinion, stigmatizing the traffic [in slaves] as a crime against humanity led to the action against the slave trade Henry Wheaton, History of the Law of Nations in Europe and America, from the Earliest Times to the Treaty of Washington, 1842 (Dissertations-G, 1973). 54 Martinez, supra note 50; Wheaton, supra note 53.

38 this case was that slavery was a purely internal matter, beyond the purview of international law, even though it might be frowned upon. By the time slavery itself, (and not just slave trafficking), was made illegal under international law by the League of Nations, it was a result of most states making it illegal domestically. In the interval, it could be argued in ways that may well have been prefigured, that the production of some victims of trafficking occurred only at the cost of, or at least with, an implicit and corresponding tolerance of other victims of slavery. Of course, the two were somewhat connected: less slave trafficking would mean that fewer people would be put into slavery in the first place, especially across oceanic spaces.

2.2.3. Constructing the Figure of the Slave Victim

What can we make of these developments in terms of the specific construction of slaves as ‘victims’ under international law? To begin with, one might underline that international law was more interested in slavery than it was in slave victims. In other words, the key focus of criminalization – then as it is now, as one might suggest – was on the perpetrator and his relationship to the international community. This is quite clear in the notion that slave traders are, like pirates, “enemies of mankind,” rather than being enemies of the slaves that they had captured.

As it happens, the development of a concept of slavery, as a universal crime, did not particularly translate into a renewed concern for slaves as victims of such a crime. Of course, there was much rhetorical attention to the horrors of the ‘Middle Passage.’ Despite the trials of the perpetrators of slavery and the slave trade as hostis humani generis in the Mixed

Commissions, victims of slavery themselves were curiously absent. It could be inferred that international law was more about the punishment of perpetrators than doing much for the victims. For example, as victims of slavery lacked participatory rights, were merely used as evidence of the commission of international crimes by the perpetrators. In that respect, one

39 could argue that they were objectified in ways that were not dissimilar from the slavery bonds that they were simultaneously being released from. In fact, the Mixed Commissions hardly allowed anyone to be present for its proceedings, including the Captain of the capturing ship.

Although that position was eventually changed,55 it was quite clear that if the accused themselves could not appear in their own trial, a fortiori victims of slavery could not either.

Indeed, there are very few known cases where slaves testified in the trials of their ‘masters.’

Typical of such cases is the famous Eliza judgement, which turned on whether a ship that had already unloaded all, but one, of its slaves by the time the British gained control of the ship, fell under anti-slavery treaties. The Dutch judge insisted that the ship was no longer covered by the treaties, as the treaties referred to ships containing multiple slaves onboard, and was therefore inapplicable to a situation where one slave was onboard at the time of the capture.56 The British Judge, however, did not agree with this line of analysis, resulting in a third judge, acting as arbitrator, to break the tie. A Dutch arbitrator was selected, and agreed with the British judge, finding that the Eliza, even with one slave onboard at the time of the capture, was subject to condemnation under the treaties.57 At no point in the deliberation was the only slave rescued allowed to participate during court procedures, nor were his interests taken into consideration in the ensuing legal analysis.

55 See Thomas Gregory and Edward Fitzgerald, His Majesty’s Commissioners, to Viscount Castlereagh, 27 November 1819, in (1821) Papers Relative to the Slave Trade. Class A. Correspondence with His Majesty’s Commissioners at Sierra Leone. Class B. Correspondence with Foreign Courts Relative to the Execution of Treaties Contracted by Them with Great Britain for the Prevention of Illicit Traffic in Slaves, and Correspondence with His Majesty’s Commissioners in the Colonies of Those Powers. Class C. Correspondence with France Relative to the Slave Trade. Class D. Correspondence with the United States of America Relative to the Slave Trade, p. 68, House of Commons Parliamentary Papers Online (2006), ProQuest (003) (hereafter cited as Correspondence Relative to the Slave Trade, 1821), http://gateway.proquest.com/openurl?url_ver=Z39.88- 2004&res_dat=xri:hcppus&rft_dat=xri:hcpp:fulltext:1821-007486:76 (accessed December 13, 2017) 56 Commodore Sir G. R. Collier to J. W. Croker, Esq., 13 January 1820, in Communications from and Instructions to Naval Officers, 1819–20, p. 6, http://gateway.proquest.com/openurl?url_ver=Z39.88- 2004&res_dat=xri:hcppus&rft_dat=xri:hcpp:fulltext:1821-007497:6 (accessed December 13, 2017) 57 See Thomas Gregory and Edward Fitzgerald, His Majesty’s Commissioners, to Viscount Castlereagh, 27 November 1819, in Correspondence Relative to the Slave Trade, 1821, p. 68, http://gateway.proquest.com/openurl?url_ver=Z39.88- 2004&res_dat=xri:hcppus&rft_dat=xri:hcpp:fulltext:1821-007486:76 (accessed December 13, 2017)

40 Evidently, there could be no concept of victims of slavery in a legal environment that did not make slave trafficking illegal, let alone criminal. Yet one legacy of slavery is that it arguably ‘invented’ the victim in international law, only to leave the victim in a sort of non- agentic and non-subjective limbo. A person may be deemed a ‘victim’, in name only, yet was not particularly authorized to complain about her plight. That victim, then, had a significant, but arguably a hardly radical influence on the development of international law. Moreover, by the time international law did produce the notion that slavery was illegal, it did so at the cost of portraying the victims of slavery as reductive and problematic.

The figure of a slave is typically couched as a black male or female, originating from

Africa, and being sold into slavery over the Atlantic Ocean. However, this figure of a slave and its Africanization should be questioned. The representations of the “Black Man” and the

“Slave” seem to be the white representation of colonial slavery. When did the slave become

“black”? When did freedom become “white” and servitude “black”? In the absence of critical analysis, this construction abates.

In the production of victimhood, knowledge on the history of the slave and the legacy of colonial slavery, which includes a total loss of self-autonomy and the denial of rights, is crucial in not just perpetuating a single narrative, but also could be useful for descendants of slaves seeking reparation, as would be discussed in a later part of this chapter. The figure of the slave defies Manichaeism, and disrupts the comfort of morality by posing disturbing questions. For instance, racist theories argued that the supposed inferiority of Africans was used as a justification for their enslavement. The chilling logic of this was demonstrated on the slave ship, Zong, in 1781. Many malnourished slaves were thrown overboard on the order of the Captain, and ship owners were subsequently able to claim compensation for the loss of

41 “their” slaves. Here, intentionally killing African slaves was not considered a crime because the Court declared that they were “goods” at the disposal of their owners58.

This construct of the ‘black’ slave lacking human rights negates the European proclamation on the ideas of natural law, human freedom and inalienable rights. For instance, when France declared the universality of human rights and defended them against monarchical European values and privileges, it remained ambiguous on the question of the total emancipation of slaves. This also echoes the general defence of slavery in Europe until the abolitionist movement began its campaign. Even during the abolitionist movement, the figure of the slave, in this case the African slaves, are represented as being passive in the face of oppression. The violence committed to the figures of the slaves led to an engraving in the public consciousness that William Wilberforce ended slavery, and with it, contributed to the erasure of the slaves’ resistance through armed struggle, and culture and spirituality, while under enslavement. The traditional victim of slavery, in international law, is constructed as a figure without liberty and needed international law to rescue it from its marginality and restore her liberty.

Finally, for better or for worse, the construction of slavery under international law highlighted the plight of certain victims, it also shed a problematic light on the causes and perpetrators of slavery. As it happens, Africans were not merely victims of the slave trade, but were also actors in the production of slavery leading to an ambiguous and complex image. With the rise of the large commercial slave trade, driven by European needs, the enslavement of enemies became less of a consequence of a war, and more of a reason to go to war. This was the case in West Africa, where the conflict between the Kingdoms of Oyo and

Dahomey resulted in prisoners of war being taken as slaves on both sides, and then being sold to Europeans. In turn, this ‘African role’ in contributing to the institution of slavery would be

58 Gregson v Gilbert (1783) 3 Doug. KB 232

42 invoked by early colonizers as one reason as to why colonization was necessary. The brutal irony, then, is that slavery, as a practice that the West expanded to an industrial scale over the span of several decades, served to legitimize an even more devastating enterprise, which was itself justified in the name of international law.59

2.3. Other Notable Antecedents to the ‘Victim’ in International Law

Slavery provided one of the original blueprints for the concept of victimhood, but as we have seen, it was an essentially limited interpretation of a ‘victim’. Several significant victim figures have emerged since, and in the course of the history of international law, all of which both prefigure but never fully announce the contemporary victim.

A first type of victim in the nineteenth century, is the victims of various ‘massacres’.

This brought home to a principally Western audience the vulnerability of certain groups.

Among those, Christian and Jewish minorities in the Orient are perhaps historically the most important and well known.60 W. E. Gladstone, for example, condemned the “Bulgarian horrors” in 1876, following massacres of Christians by Ottoman irregulars. The fate of the

Armenians, as a sizeable Christian minority in the East, also featured prominently in the early history of international victimhood. One origin of the notion of ‘crimes against humanity’ lies in this early indignation about the fate of ‘victims’ of campaigns of extermination.

This periodic indignation in the name of the ‘civilized world’ emphasized the plight of victims if only to better justify outside intervention. In this early era, ‘victimhood’ and the claim to speak for it, seemed to have been inseparable from imperial logic and the ‘civilizing

59 Frédéric Mégret, “Droit international et esclavage: pour une réévaluation” (2013) African Yearbook of International Law/Annuaire africain de droit international. 60 Fabian Klose, The Emergence of Humanitarian Intervention: Ideas and Practice from the Nineteenth Century to the Present (Cambridge University Press, 2015); Davide Rodogno, Against Massacre: Humanitarian Interventions in the Ottoman Empire, 1815-1914 (Princeton University Press, 2011).

43 mission’.61 Indeed, it is not as if massacres of populations were not occurring consistently in the Americas or Africa. Rather, outside the limited case of slavery, no international legal language existed at the time to designate those who suffered from such massacres as specifically victims under either the expanded understanding of criminal law or, for that matter, international law. In other words, who stood as a victim was highly discretionary and dependent on political agendas. This resulted in the visibility of some victims clearly eclipsing that of others. Still, the protection of religious minorities did set the foundation for some of the later exercises in protecting such minorities through legal means, as analyzed in the following section.

Another significant and related prelude to the contemporary victim is the figure of the ‘alien’ in international law.62 The ‘alien’ emerged as a result of continued imperial encroachments in the semi-periphery by Western powers who were committed to the rights of their nationals being respected in the ‘lawless’ lands that some of their expatriates inhabited.

Under the ‘international law of the protection of aliens,’63 whenever the latter had been the subject of brutality or property deprivations, they were entitled to bring their case to their sovereign’s attention, in the hopes that they would exercise diplomatic protection. The system was gradually normalized through recourse to Mixed Claims Commissions - dozens of which existed at one point between European states and the US, on the one hand, and Latin

American states on the other.

These heard a variety of petitions from ‘victims’ who were subjected to a ‘denial of justice’ in the form of the courts of the host state failing to diligently investigate and adjudicate their cases. The ambiguity, however, is that strictly speaking, it was not the ‘alien’

61 Gustave Rolin-Jaequemyns, “Droit International et la Phase Actuelle de la Question D’Orient, Le” (1876) 8 Rev Droit Int’l & Legis Comp. 62 Louis B Sohn & Robert R Baxter, “Responsibility of States for Injuries to the Economic Interests of Aliens” (1961) 55 Am J Int’l L 545. 63 Andreas Hans Roth, The Minimum Standard of International Law Applied to Aliens (AW Sijthoff, 1949).

44 who was the victim, but his state. The emerging obligation to provide a certain minimal treatment to foreigners did not vest rights in said foreigners, but instead in their state of nationality, which may or may not have elected to take the case up internationally by exercising diplomatic protection. Again, the figure of the victim that emerges on the international stage is a truncated, partial one, that is as much a by-product of the idiosyncrasies and limitations of the international legal system, as a victim in her own right.

Another significant development in the archaeology of the ‘victim’ in international law is the specific and circumstantial development of petitions systems that followed the First

World War. This included the creation of both minority treaties64 and, more innovatively, the mandate system that applied to former German colonies.65 Central Europeans whose linguistic rights were denied, and Africans complaining of their harsh treatment at the hands of the colonial power routinely petitioned Geneva. These were ‘victims’ under international law in a very early sense, although of course, only as a result of highly peculiar arrangements.

Nonetheless, for the first time, they were presented the right to appeal to the powers that be as victims, and to seek remedies that were not dependent merely on sovereign intervention or the charitable impulse of the international community. This suggested a potentially radical

64 Julius Stone, “Procedure under the minorities treaties” (1932) 26:3 American Journal of International Law 502; Julius Stone, International guarantees of minority rights: procedure of the Council of the League of Nations in theory and practice (H. Milford, Oxford University Press, 1932); Julius Stone, “The Legal Nature of the Minorities Petition” (1931) 12 Brit YB Int’l L 76; Helmer Rosting, “Protection of Minorities by the League of Nations” (1923) 17:4 American Journal of International Law 641; Vladimir Ortakovski, Minorities in the Balkans (Brill-Nijhoff, 2000). 65 Taina Tuori, “From League of Nations Mandates to Decolonization: A History of the Language of Rights in International Law” (2016); Peter Sluglett, “An improvement on colonialism? The ‘A’mandates and their legacy in the Middle East” (2014) 90:2 International Affairs 413; Susan Pedersen, “Samoa on the world stage: Petitions and peoples before the Mandates Commission of the League of Nations” (2012) 40:2 The Journal of Imperial and Commonwealth History 231; Aleksandar Momirov, “The Individual Right to Petition in Internationalized Territories. From Progressive Thought to an Abandoned Practice” (2007) 9 J Hist Int’l L 203; Frederick Lugard, “The Mandate System and the British Mandates” (1924) 72:3736 Journal of the Royal Society of Arts 535; Tilman Dedering, “Petitioning Geneva: Transnational Aspects of Protest and Resistance in South West Africa/Namibia after the First World War” (2009) 35:4 Journal of Southern African Studies 785; Michael Dennis Callahan, A Sacred Trust: The League of Nations and Africa, 1929-1946 (Sussex Academic Press, 2004); Wazi Apoh, “Embroideries of Imperialism: An Archaeo-Historical Overview of Akwamu, Asante, German and British Imperial Hegemonies at Kpando, Ghana.” (2015) 6 Current Perspectives in the Archaeology of Ghana.

45 development, where the victim was viewed as the subject of international law, rather than simply being a rhetorical figure designed to ease the civilizing mission of international law.

Decolonization would eventually transform the framework into one in which the focus was less about the nature of the colonial control exercised, than its very principle that came to be challenged. People under colonial domination or occupation became understood as the ultimate victims, supported in their various struggles against oppression by the non- aligned movement and the General Assembly. However, this more collective and radical sense of victimhood also encountered significant obstacles in terms of its formal recognition.

Colonized peoples hardly had standing under international law. In fact, not even third world states had locus standi when it came to complaining about the ravages of colonization, as

Sierra Leone and Ethiopia learned at their expense before the ICJ.66

2.4. Conclusion

This chapter has sought to deal with the archaeology of the construction of victimhood in international law. It has displayed several instances that have sought to highlight the evolution of the victim in international law, thus showing that for the most part, one could hardly exercise rights in his or her own name, in any context, let alone in the context of international criminal law. Moreover, the chapter has hinted at the limited, partial and problematic ways that international law has sometimes contributed to the construction of the victim in very limited, partial and problematic ways. In the next chapter, I will review the human rights developments that have not only put the victim at their core but have also provided a framework towards a growing emphasis on victims in international criminal justice itself.

66 Oliver J Lissitzyn, “International Law and the Advisory Opinion on Namibia” (1972) 11 Colum J Transnat’l L 50.

46

Chapter 3: The Contemporary Rise of the ‘Victim’ in International Law

3.1. Introduction

Although the history of international law has had some notable antecedents of the victim, these antecedents are, in some ways, ambiguous. The victim has either not been viewed as an individual victim, or has not been deemed a victim that is legally empowered.

What is new, however, is what might be described as the shift from a sense of general, undifferentiated and under-legalized concept of victimhood, to an individualized, particular and juridified notion of victimhood. This shift, in turn, can be understood as part of the gradual alignment of international law with the penal evolutions that were first observed at the domestic level.

To understand the rise of the contemporary victim, one needs to turn to the birth of the international human rights movement as it began, most notably, with the adoption of the

Universal Declaration of Human Rights by the United Nations General Assembly in 1948.

The Universal Declaration of Human Rights was adopted two years after the judgment by the

IMT Nuremberg, which affirmed the principle of individual criminal responsibility. While the Universal Declaration of Human Rights was more hortatory in character, it laid the basis for the idea that individuals, invariably victims, could acquire legal status under international law for harm suffered through the violation of their rights. At the time, this was a contentious and somewhat radical claim. Human beings might well be the victims of human rights violations, but it was unclear what the status of a victim entitled them to, and whether, in fact, it entitled them to much. Complaints by ‘victims’ of human rights violations about their fate at the hands of their sovereign (let alone other sovereigns), inundated the Secretariat of the

United Nations, and were met with mild embarrassment by the UN technocracy. Clearly, one

47 could be a victim in the barest sense of the term, without that quality translating into any meaningful legal categories.

It has been frequently stated, albeit erroneously, that the evolution of core international crimes is centrally linked to the growth of post-war human rights regimes that protected the individual. It has also been argued that the international criminal law regime is posited as “an instrument to protect human rights [and] respond to massive violations of human rights.”67 In this narrative, the victims of international crimes, such as crimes against humanity, war crimes and crimes of genocide, are to be construed as individuals who possesses fundamental rights that the international human rights and international criminal law regimes protects, as well as prohibits its breach.

The following pages would explore the in greater details the framing of the concept of the ‘victim’ in the international humanitarian law, international human rights law and international criminal law frameworks.

3.2. The International Humanitarian Law Framework

The international humanitarian law framework presents one of the first instances of victim sensitivity in international law. One is reminded of Henry Dunant’s description of the battlefield in Solferino and the depiction of wounded and dying soldiers.68 Here were men who suffered as a result of a war, an activity which was otherwise tolerated by international law. However, the notion of ‘victims’ of war, although useful to bring attention to the problem, did not actually lead to taking seriously the idea that war victims should have actionable legal rights. Rather, it justified the creation of a humanitarian-positivist framework with a view to limiting the harm caused by war.

67 Gerhard Werle, “Individual Criminal Responsibility in Article 25 ICC Statute” (2007) 5:4 Journal of International Criminal Justice 953. 68 J H Dunant, “A Memory of Solferino. 1862” (1939) Washington, DC: American National Red Cross.

48 Moreover, it is worth noting that within the international humanitarian law framework, not all individuals are protected in armed conflicts. The laws of war have always, in a sense, highlighted certain de facto ‘victims’ as more meritorious than others. This depends on a range of factors that may flow from positive international law, but may seem hard to justify if one adopts a victimization lens. For example, the legal framework protects certain category of individuals such as prisoners of war, and sick and wounded combatants and civilians. Whether one qualifies as being part of one of these categories of victimhood, furthermore, depends on criteria that have less to do with determining the essence of victimhood, or an empirical assessment into the degree of suffering endured by various groups. Rather, the distinctions are largely endogenous to the operation of the laws of war.

Therefore, the humanitarian enterprise is primarily one of regulating war that only secondarily invokes the figure of the victim, and only a select kind of victim at that.

For example, international humanitarian law draws a fundamental distinction between who is construed as a civilian and who is considered a combatant.69 It also makes a distinction between lawful combatants (those complying with the requirements of the laws of war) and, potentially at least, unlawful combatants (those taking part in the hostilities, but not complying with the laws of war). Furthermore, there is a distinction between civilian objects and military objectives.70 Generally, the persons that do not take a direct part in hostilities are entitled to different protections than those taking a direct role in hostilities, such as members of the armed forces. Finally, the laws of war elaborate these categories in ways that fundamentally vary depending on whether a conflict is international or non-international.

Finally, they only protect victims from certain phenomena, such as wilful killings, torture or inhumane treatment. In other words, what defines victimhood in international humanitarian

69 Stefaan Smis & Kim Van der Borght, “Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, The” (1998) 27 Ga J Int’l & Comp L 345. 70 See Article 48 of Protocol I, Article 13 par. 2 of Protocol II.

49 law is relative to a host of legal circumstances that may have relatively little to do with the lived sense of victimization or harm.

It is also worth noting that the entire edifice of the laws of war only highlight the plight of some victims at the cost of hiding that of others. In particular, the laws of war are traditionally only interested in violations of the law occurring in war (jus in bello) and not preoccupied as such with the legality of the war that is being fought (jus ad bellum). This means that an entire dimension of what might be commonly understood as the ‘victim’ experience of war is ruled out as legally irrelevant by international law. From a jus in bello point of view, collateral harm that is not disproportionate, but also the slow accretion of violence affecting civilians, including property and infrastructure destruction, are not typically deemed illegal. Moreover, harm done to combatants is not considered illegal, even when inflicted by a side to the armed conflict that is violating the prescriptions of jus ad bellum. As a result, soldiers killed, maimed or traumatized as a result of a war of aggression are typically not considered victims in any meaningful international legal sense. One might think that such victims would be taken under consideration by the jus ad bellum itself but that hardly seems to be the case. If anything, wars of aggression are seen as creating rights for the attacked country but not for the particular individual, or even a collective group of victims, who have suffered as a result. War victims certainly do not have an individual right to peace under IHL.71

Courts have generally denied broad claims by victims of war outside the narrow context of violations of jus in bello. A Dutch court, for example, stated that the right to protection could not necessarily translate into a claim for compensation, as it would be absurd since very member of the population affected by the armed conflict is a victim. The Supreme

Court of the Netherlands stated clearly that for the beneficiaries of the right to protection,

71 Liesbeth Zegveld, “Remedies for Victims of Violations of International Humanitarian Law” (2003) 85:851 Revue internationale de la Croix-Rouge/International Review of the Red Cross 497 at 501.

50 notions, such as legal remedies and compensation, are not workable. The Supreme Court held that the rules of IHL do not protect persons against the stresses and tensions that result from air strikes, and do not protect persons to whom the rules and norms have not been violated in concreto.72 The right to invoke the rules of IHL is therefore limited to those who personally were the victims of violations of IHL.73

Victims thus occupy a very ambiguous place in the construction of IHL. While the word itself does not appear in the Geneva Conventions or other humanitarian law treaties, it does appear in the title of the two Protocols either, perhaps betraying the rise of a more humanitarian sensitivity framework.74 IHL applies the term ‘war victims’ to those that suffer as a result of an armed conflict. This construct could be extended to mean an entire population of people involved in armed conflicts.

On the other hand, it remains unclear on whether victims of armed conflicts can claim reparations directly under international law, despite being loosely touted as ‘victims’ under the same law. The policy case for taking victimhood seriously under international humanitarian law is of course a priori quite strong. In terms of enforcement, one would think that international humanitarian law would stand to benefit in terms of enforcement if victims could somehow directly take up claims against states that had violated them. Of course,

72 Para. 3.2. The Supreme Court dismissed a claim first brought in interlocutory proceedings (kort geding) against the Dutch State to order the latter to immediately stop its (participation in) hostilities against the Federal Republic of Yugoslavia (FRY). From 24 March to 10 June 1999, the Netherlands participated in NATO military operations against the FRY. These operations consisted of air attacks. At the time of the hostilities the claimants were mobilized soldiers in active military service of the FRY. One of the legal questions to be determined by the Supreme Court was whether the air attacks could be qualified as violations of IHL. Arguably such a claim would fall under Article 2(4) of the UN Charter prohibiting the use of force. However, this provision is generally denied direct effect in domestic courts; see for example Amsterdam Court of Appeal (Netherlands), Vierde meervoudige burgerlijkekamer, Dedovic v. Kok et al., judgment of 6 July 2000, para. 5.3.6. Similarly: Gerechtshof Amsterdam, Vierde meervoudige burgerlijke kamer, Dedovic v. Kok et al., judgment of 6 July 2000, para. 5.3.23. A distinction is sometimes made in this regard between direct victims and indirect victims of IHL (compare Gerechtshof Amsterdam, Vierde meervoudige burgerlijke kamer, Dedovic v. Kok et al., Judgment of 6 July 2000). 73 Ibid. 74 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protocol of Victims of International Armed Conflicts, 8 June 1977 (hereinafter “Additional Protocol I”) and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 (hereinafter “Additional Protocol II”)

51 criminal and disciplinary sanctions under the laws of war are supposed to have a very similar effect, but in practice they are more about punishing those responsible than providing reparations or some sort of status to those who have suffered from violations. Such a possibility would, of course, enhance the trust of various actors in the laws of war, and provide a significant deterrent against violations.

Whilst such reasoning has become, as we will see, standard under international human rights law, it is at best an afterthought in international humanitarian law, and thus betrays the state-oriented inclination of the law. For many international humanitarian lawyers, the key actors in enforcing international humanitarian law are still by and large the states involved in the particular armed conflicts, as well as other states who act out of an obligation to “respect and ensure respect” for the Conventions. At almost no time is the agency or inherent dignity of victims of war crimes mentioned, at least as a specific international humanitarian law issue.

Whether an individual possesses certain rights under this regime depends on whether they are beneficiaries of IHL rules, or whether the interests of the person are directly laid down and protected by IHL. 75 Historically, victims of serious violations of the rules of IHL are not entitled to compensation in international law. The common belief before, was that only a belligerent party could lay claims to legal entitlement, including violations of IHL that caused damage to specific individuals. The underlying theoretical assumption of this legal construct is that the rules of IHL regulate inter-state or inter-belligerent conduct76, and are commonly worded in terms of the prohibitions applicable to the parties to a conflict. This

75 Albrecht Randelzhofer & Christian Tomuschat, State Responsibility and The Individual: Reparation in Instances of Grave Violations of Human Rights (Martinus Nijhoff Publishers, 1999) at 7; Carl Aage Norgaard & Aarhus universitet, The Position of the Individual in International Law. Munksgaard, 1962) [unpublished] at 48. 76 Paola Gaeta, “Are Victims of Serious Violations of International Humanitarian Law Entitled to Compensation?” (2011) International humanitarian law and international human rights law : pas de deux 305 at 305.

52 traditional framework suggests that obligations are owed by each party to the other, rather than directly to victim populations or the individual victim.

This traditional reluctance to see victims as such has been gradually tempered the rise of human rights language. Although the next section will examine more specific details of how the human rights discourse treats victims, it is worth noting that the move international humanitarian law made toward a more victim-friendly stance had much to do with its oft described ‘humanization,’ as a result of its intersection with human rights. To begin with, the laws of war have increasingly vested rights in certain categories of individuals in war. To be sure, this is not the same as giving victims of war general rights qua victims.

However, it does suggest that the obligations of states create corresponding entitlements for individuals, and thus quite possibly rights, if these obligations were to be violated.

The 1929 Prisoners of War Convention, for example, specified a number of rights.77

In the 1949 Geneva Conventions, the existence of rights conferred on protected persons was affirmed more explicitly.78 In the context of international conflicts, Article 78 of the Third

Geneva Convention gives prisoners of war the right to make known their requests regarding the conditions of captivity to which they are subjected and to complain about such conditions.

Similarly, Article 30 of the Fourth Geneva Convention provides all protected persons with the right to file a complaint with the Protecting Powers, the ICRC and the National Red Cross on any infringements of the Convention. These, and other provisions, created rights of the individual and presupposed the existence of rights.79 It is worth noting, however, that not

77 See for example, Arts 42 and 62, Convention relative to the Treatment of Prisoners of War, of 27 July 1929. 78 In particular, Arts 7 & 8 common to the four Geneva Conventions of 12 August 1949. 79 Other examples of such (often indirect) references are contained in Article 7 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (First Geneva Convention); Articles 6 and 7 of the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Second Geneva Convention ); Articles 7, 14, 84, 105 and 130 of the Convention relative to the Treatment of Prisoners of War of 12 August 1949 (Third Geneva Convention); Articles 5, 7, 8, 27, 38, 80 and 146 of the Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Fourth Geneva Convention); Articles 44(5), 45(3), 75 and 85(4) of 1977 Additional Protocol I; and Article 6(2) of 1977 Additional Protocol II.

53 every state obligation in war creates a corresponding right. For example, the obligation to not target civilians does not as such and explicitly in the Geneva Conventions or their Protocols create a right not to be targeted, nor does it suggest any procedural ramifications of holding such a right.

An unsettled issue within the IHL regime is determining who is entitled for reparations – the state or the individual victims? While the obligation to make reparations for violations of IHL is well established80, IHL instruments are silent on who are the beneficiaries of reparation for violation of IHL. IHL instruments only address the responsibility to compensate. While there is an increasing acceptance that individuals do have a right to make a claim for reparations for violations of international law, of which they are victims,81 the position of the individual victims of violations of IHL remains ambiguous.82

Although there is general consensus that individual victims can benefit from the right to compensation, referred to in the Hague Convention and Additional Protocol I to States, it has not been easy for such victims to enforce the right to reparations – usually compensation – directly before national courts.83 The national courts of various states have considered the claims made by individual victims of violations of IHL and have not arrived at a uniform

80 It is a general principle of public international law that any wrongful act – i.e. any violation of an obligation under international law – gives rise to an obligation to make reparation. See Permanent Court of International Justice, Factory at Chorzow (Claim for Indemnity) case, (Germany v. Poland), (Merits), PCIJ (ser. A) No. 17, 1928, p. 29. See also Article 1 of the Articles on the Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001: “Every internationally wrongful act of a State entails the international responsibility of that State.” UN Doc.A/CN.4/L.602/Rev.1, 26 July 2001 (hereinafter “ILC Articles on State Responsibility”). For an excellent and exhaustive study of law and practice of violations of international humanitarian law, and indeed on “war reparation” more generally, see 81 See, also Principle 15, 2000 draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, UN Doc. E/CN.4/2000/62, 18 January 2001 82 Emanuela-Chiara Gillard, “Reparation for Violations of International Humanitarian Law” (2003) 85:851 International Review of the Red Cross 529 at 536. 83 See, for example, Expert Opinion by Professor Frits Kalshoven, “Article 3 of the Convention (IV) respec- ting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907”, Expert Opinion by Professor Eric David, “The direct effect of Article 3 of the Fourth Hague Convention of 18th October 1907 respecting the Laws and Customs of War on Land” and Expert Opinion by Professor Christopher Greenwood, “Rights to compensation of former prisoners of war and civilian internees under Article 3 of the Hague Convention No. IV, 1907”, all in Isomi Suzuki, I Suzuki & K Nagano, eds, War and the Rights of Individuals: Renaissance of Individual Compensation (Nippon Hyoron-sha, 1999).

54 results. While a small number of claims for compensations by victims have been successful, most have failed on one or more of the following grounds: the fact that the individual claims were precluded by a peace settlement; sovereign immunity; or the non-self-executing nature of the right to reparations under international law.84

For instance, the claims made by individual victims for compensation from Japan, for violations of international humanitarian law were rejected by the courts of Japan on the ground that the lump-sum payments made under the 1951 peace treaty absolved Japan from any further responsibility.85 Also, certain states like Japan and the US, have rejected claims brought against states, either on the ground that sovereign immunity protected the respondent state from scrutiny by national courts86, or that the relevant provisions of IHL did not give the individual victims the necessary standing to pursue their claims directly before domestic courts – i.e. were not self-executing.87

In the 1963 decision of the District Court of Tokyo in Shimoda et al. v. The State, the District Court held that even though there had been a violation of international humanitarian law, individuals could be considered the subjects of rights under international law, only insofar as they had been recognized as such in specific instances, for example in case of mixed arbitral tribunals. Because of this, the court concluded that there was no way

84 Gillard, supra note 82 at 537. 85 International Herald Tribune, November 1998, p. 4. In debates in the parliaments of the Netherlands and the UK, government officials have upheld Japan’s position. 86 Since hierarchically all States are equal, the courts of one State cannot stand in judgment on the actions of another State and traditionally national courts have been reluctant to deviate from this principle, which is the basis of sovereign immunity, even in cases relating to serious violations of human rights and international humanitarian law. The position of international tribunals is different, as States have either agreed to their jurisdiction or it has been imposed upon them by a Security Council resolution. 87 Shimoda et al. v. The State, District Court of Tokyo, Judgment of 7 December 1963, International Law Reports, Vol. 32, 1964, p.626. For a recent application of this approach see X et al. v. the State of Japan, Tokyo High Court, Judgment of 7 August 1996, Japanese Annual of International Law, Vol. 40, 1996, pp. 117 and 188 (claims by former civilian internees from the Netherlands and the UK and by Filipino “comfort women”). See also Goldstar (Panama) SA v. United States, US Court of Appeals, Fourth Circuit, 16 June 1992, International Law Reports, Vol. 96, 1992, p. 55, where the court held that Article 3 of the 1907 Hague Convention does not explicitly provide for a privately enforceable cause of action for victims of violations of international humanitarian law) and Princz v. Federal Republic of Germany, US District Court for the District of Colombia, 813, F. Supp. 22 (1992) and US Court of Appeals for the District of Columbia, 307 US App DC 102, 26 F.3d 1166 (1994).

55 open to an individual who suffered injuries from an act of hostilities contrary to international law to claim damages at the level of international law. The court also held that because of the doctrine of sovereign immunity, individuals are also not able to pursue a claim in national jurisdictions. However, none of these courts denied the underlying right to compensation in

IHL.

The above restrictive decisions on the right to compensation before national court can be contrasted with the view adopted in the German Court of Appeal in 1952 and by the

Greek courts in a case in 2000 against Germany. Here, the jurisdiction of the courts was upheld and the claims of individual victims were considered.88 The Amsterdam District

(Netherlands) in a 6 July 2000 judgement also implicitly recognized the notion of individual rights in IHL. The appellants sought to invoke alleged violations of Additional Protocol I’s

Article 52, which set the rules on the protection of civilian objects during NATO’s bombing of the FRY as a basis of compensatory claims against members of the Dutch Government.

The court rejected this because, in its view, such violations had not occurred. But, while

88 Personal Injuries (Occupied Germany) case, Administrative Court of Appeal of Münster, 9 April 1952, International Law Reports, Vol. 20, 1952, p. 632; Prefecture of Voiotia v. Federal Republic of Germany, Case No. 137/1997; Court of First Instance of Leivadia, 30 October 1997, American Journal of International Law, Vol. 92, 1997, p. 765; Case No.11/2000, Hellenic Supreme Court, 4 May 2000. Subsequent developments in the latter case highlight the further difficulties that may be encountered by victims when they try to enforce a successful claim. The Greek Supreme Court rendered a default judgment against Germany and awarded damages. However, according to Greek law, the authorization of the government is required for such a judgment to be enforced by the seizure of the assets of a foreign State and in this instance the Greek government refused to give the necessary authorization. The plaintiffs then tried to enforce their judgment before the German courts on the basis of a bilateral agreement for the enforcement and recognition of judgments. In June 2003 the German Supreme Court refused to recognize the Greek judgment on the ground that the Greek courts did not have jurisdiction, as the acts in question – reprisals against civilians during the Nazi occupation of Greece – were sovereign acts and were thus covered by sovereign immunity. The Supreme Court went on to consider an agreement concluded between Greece and Germany in September 1990. While this constituted a final settlement of reparations claims arising from the Second World War the Court ruled that it did not preclude legal claims by individual citizens. However, it then held that in reviewing any such claims it had to apply international law as it was in 1944. In view of this, the Court concluded that the plaintiffs did not have a cause of action for damage resulting from Nazi Germany’s violation of the laws of war because in 1944 international law did not provide individuals with a cause of action but conferred it exclusively upon States by means of the right of diplomatic protection.

56 confining the right to invoke the rules to those who personally were victims of violations under IHL, the court recognised the possibility of deriving individual rights from IHL rules.89

These fleeting recognitions of the rights of the victims under international humanitarian law should, however, be seen in the light of the difficulties in enforcing a successful claim. In the Greek cases, the Greek Supreme Court ordered a default judgement against Germany and awarded damages. Premised on Greek law, authorization by the government is required for such a judgement to be enforced through the seizure of assets of a foreign State. In this instance, the Greek government refused to give the necessary authorization. The plaintiffs, being the victims, tried to enforce the judgment before the

German courts based on bilateral agreements for the enforcement and recognition of the judgement.

In June 2003, the German Supreme Court refused to recognize the Greek judgement on the ground that the Greek courts did not have jurisdiction as the acts in question, being reprisals against civilians during the Nazi occupation of Greece, were sovereign acts and were thus covered by sovereign immunity. The Supreme Court went on to consider an agreement concluded between Greece and Germany in September 1990. While this constituted the final settlement of the reparations claims arising out of the Second World

War, the court rule that in reviewing any such claims it had to apply international law as it were in 1944. In light of this, the court concluded that the plaintiffs did not have a cause of action for damages resulting from Nazi Germany’s violations of the laws of war. This was based on the argument that in 1944, international law did not provide individuals with a cause

89 Gerechtshof Amsterdam, Vierde meervoudige burgerlijke kamer, Dedovic v. Kok et al., Judgment of 6 July 2000, para. 5.3.22.

57 of action, but instead, conferred power exclusively upon States by means of the right of diplomatic protection.90

Individuals have been more successful in asserting and enforcing their rights against states for violations of international humanitarian law before international fora, such as with the Mixed Claims Commissions91 and quasi-judicial bodies.92 These Mixed Claims

Commissions and quasi-judicial bodies have different grounds on which losses can be claimed.93 None of the Mixed Claims Commissions expressly refers to violations of IHL. For instance, quasi-judicial bodies like the Eritrea-Ethiopia Claims Commission are required to make a finding of a violation under IHL, while others, like the United Nations Compensation

Commission, are flexible and compensate victims for losses arising out of Iraq’s invasion and occupation of Kuwait, notwithstanding whether or not they were caused by violation of IHL.

In summary, it may be concluded that individuals do have rights under provisions of

IHL, a supposition that finds support in the long-standing cross-fertilization of IHL and human rights law. In fact, the drafting of the Geneva Conventions was already under the influence of the trends, which similarly resulted in the Universal Declaration of Human

Rights.94 The preamble of Additional Protocol II, which is applicable to non-international conflicts underscores, affirms that there is a close relationship between human rights and IHL by stating, “[r]ecalling (…) that international instruments relating to human rights offer a

90 German Supreme Court, Distomo Massacre case, BGH – III ZR 245/98, 26 June 2003 91 Numerous mixed claims commissions have been established since the end of the nineteenth century, often after revolutions and other disturbances of public order marked by the destruction and taking – including expropriation – of private property. 92 In recent years, a number of quasi-judicial bodies have been set up – either by the Security Council or by peace treaty or unilaterally by States or corporations – to review the claims of victims and to award, usually but not exclusively, compensation. 93 An example of a mixed claims commission is the Iran-US Claims Tribunal established as part of a series of treaties – the so-called Algiers Accords – concluded by Iran and the US in 1981. The tribunal has jurisdiction over the claims of US nationals against Iran and of Iranian nationals against the US outstanding at the date of the accords and arising out of debts, contracts, expropriations or other measures affecting property rights. It also has jurisdiction over the claims of the two governments against each other arising out of contractual agreements for the purchase and sale of goods and services. (Article II(1) and (2), Claims Settlement Declaration, 19 January 1981.) 94 Claude Pilloud et al, Commentary on the additional protocols: of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers, 1987) at 1369.

58 basic protection to the human person” and “[e]mphasizing the need to ensure a better protection for the victims of those armed conflicts”. The Protocol has also copied a number of human rights provisions into its text.95 The UN Principles on the Right to a Remedy built upon the close relationship between IHL and human rights law, recognising that IHL is both an undefined set of primary rights and that the secondary right to remedies and reparations are outside, but largely credited to the human right regime.96 Thus, a victim of war remains a limited victim; one that has suffered specifically from violations of the laws of war, rather than war itself, but is an increasingly significant legal victim.

3.3. The International Human Rights Law Regime

The place of victimhood has always been more central within the international human rights regime. One could imagine that the international human rights law regime was entirely about the state’s obligations and only secondarily about rights, or that the regime only granted primary rights rather than secondary rights to reparations, let alone standing before sui generis international tribunals. However, there is no doubt that the long-term tendency of international human rights law has been to magnify the status of a particular type of victim in international law. While the victim of war is, by definition, the victim of a particular kind of activity, and not even of all its negative consequences as we have seen, the victim of a human rights violations is potentially a much broader status, one that covers a

95 Examples are provided in (parts of) Articles 4 and 6 of Additional Protocol II. See ibid., pp. 1399-1400 and p. 1344. 96 The UN Principles on the Right to a Remedy, op. cit. (note 8) also assume that rights exist under IHL, as a right to a remedy undoubtedly presupposes substantive rights. Principle 1 refers to IHL norms that are contained in inter alia treaties and customary law. The Principles refrain from defining the treaties and customary rules in question, leaving the question which primary rights individuals enjoy under IHL unanswered. In fact, all instruments enumerated by the UN Commission on Human Rights in its resolution adopting the UN Principles are human rights treaties, except arguably the Convention on the Rights of the Child, dealing in Article 39 with child victims of armed conflict (which stipulates: “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of (…) armed conflict”). In his final report the Special Rapporteur explains that the UN Principles were drafted with a view to their being applied “in light of future developments in international law”. For this reason, the terms “violations” and “IHL” were not defined, as “their specific content and meaning are likely to evolve over time” (Final Report, op. cit. (note 8), para. 9). The Special Rapporteur may have had in mind here the long-standing cross-fertilization of humanitarian law and human rights law.

59 whole range of rights violations. In short, the violation of any right, almost by definition, creates a victim of rights violations. The reality then, is that victimhood is something that then puts pressure on international institutions for recognition.

Having said that, it remains true that attaining a victim status must be based on the content of particular human rights treaties. Although many individuals or groups might be described as victims of human rights violations under the UN’s Charter, nor does that necessarily give them any quality to act or even any legal recognition. The Human Rights

Council, for example (formerly the Human Rights Commission) is an intergovernmental body that nominates rapporteurs to investigate country-specific or thematic human rights violations and adopts various reports and resolutions as a result. However, it can hardly be said to create or rely on the rights of victims. Primarily, only individuals that claim to be victims of a violation of the rights contained in a treaty acceded to by a State Party, under whose jurisdiction they fall can present an application before the relevant international treaty bodies, or international human rights courts or sue domestically. Here, the emphasis is on the

State being a party to the treaty and having accepted the competence and the jurisdiction of the treaty body before victims can bring claims rather than victimhood in and of itself creating certain rights.

Given the number of both universal and regional human rights instruments, however, it is increasingly the case for many victims that they have international remedies and the accumulation of international bodies regularly dealing with ‘victims’ of human rights violations has certainly been accredited with the idea that the ultimate goal is to ensure that victims have direct and actionable rights to a remedy. As a result, international human rights bodies and courts have increasingly been required to police the distinction between victims and non-victims in international human rights law. In doing this, they have had to navigate

60 between the need to be true to the human rights victim agenda and the reluctance by states to open the ‘floodgates’ of human rights claims.

Three things are worth pointing out in this context. First, the quality of being a victim of rights violations is, in law, fundamentally dependent on providing proof of a human rights violation. In other words, although the heart of proceedings may concern the question of whether a right was violated, one of the most important implications if that is the case is that one is simultaneously recognized as a victim of a rights violation. The quality of being a victim, in other words, does not so much precede as it follows a decision on the merits. At the same time, for litigation and admissibility purposes, one typically needs victims to establish their status prima facie to establish whether they have standing. That procedural status however is a temporary one for the purposes of a case, and only a finding that a rights violation has, in fact, been committed leads to a finding that one is a victim.

Second, a question arises as to whether victims are only direct victims, those whose right was violated or if, borrowing from broader principles of tort law, victims are anyone who suffers harm as a result of the violation. Human rights bodies have been careful to distinguish between direct or indirect victims depending on the applicable human rights framework. Direct victims are persons who have suffered ‘directly’ from serious human rights violations, and indirect victims are “the immediate family and dependants of the direct victim”. These two categories of victims have been recognised by many international legal instruments.97 Indirect victims, however, are more likely to arise in the case of grave human rights violations, notably those involving violence and/or loss of integrity or life. It is rarer to hear, for example, of ‘indirect’ victims of a violation of the right to freedom of expression.

97 See e.g. UN Declaration for Victims of Crime, paras. 1–2; the ICC Rules, Rule 85, and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 8. For scholars in favour of the inclusion of these two groups within the concept of victim under international law, see “The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights” in Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Antwerpen: Intersentia, 2005) at 467.

61 International bodies nonetheless are called upon to arbitrate some of these tensions in an effort to develop a jurisprudence of victimhood that is consistent with fundamental rights premises.

Third, the quality of being a victim may or may not coincide with rights to claim that status before an international body. One might be a ‘victim’ in theory but with no actionable right for a range of reasons typically going to the problem of admissibility (because one has not exhausted domestic remedies, or because the same petition is being considered by another human rights body for example); or one might be a victim but has his or her case taken up by an NGO, as is possible, for example, in the Inter-American system. Obviously, one of the ambitions of international human rights law is to align the experience of human rights victimization with corresponding secondary rights before appropriate mechanisms, but this is not necessarily always fulfilled.

By and large, the early movements to establish international human rights mechanisms was not particularly victim led. For example, the European Court of Human

Rights was created after the Second World War by a number of liberal governmental elites

(such as René Cassin) who thought it would avoid a repeat of what happened to Germany during the inter-war and anchor Europe to significant rights protections. Over time, however, the main beneficiaries of such jurisdictions have increasingly identified with them, and international human rights mechanisms have had strong support of civil society groups. In some cases, such as with the Convention and Committee on the Rights of Persons with

Disabilities, one could see a clear push by persons who considered themselves to have been victims of rights violations as a result of having a disability.

Speaking of ‘victims,’ in the context of human rights may nonetheless be difficult.

There are as many ‘victims’ of human rights violations as there are types of violations, which range from the extremely grave to the trivial. One can certainly not assume that being a

62 victim of a rights violation is significant or defining in the way that being a victim of a major crime is. Nonetheless, while victims of human rights violations do not constitute a uniform group, one might argue they share some common characteristics. These include a desire to be treated with due respect by both human rights and criminal justice systems actors; for information about proceedings and major decisions to be shared with them; and for their views and needs to be taken into consideration. More generally, victims are interested in uncovering the truth through official mechanisms.

The following sections analyse the approaches of the supervisory bodies in constructing victims of human rights violations by the European, Inter-American and African human rights system. Although quite similar in some respects, these systems exhibit key differences, particularly with the degree to which they confer locus standi on victims.

3.3.1. The European System

Article 34 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms (“ECHR”), states that only a person who claims to be the victim of a violation of the rights set forth in the Convention, or the Protocols thereto, by one of the High

Contracting Parties, (a person, non-governmental organization or a group of individuals), can bring an application before the European Court of Human Rights (“ECtHR”).98 On this point, the ECtHR has stated that the concept of victim is interpreted autonomously and irrespective of domestic concepts. This is interesting because it manifests a specific desire for the autonomization of victim concepts in international law. The court has also stated that the concept of victimhood does not imply the necessary existence of prejudice. In other words, the existence of a violation of the Convention is conceivable, even in the absence of

98 Previously, it was only possible for individuals to submit complaints if the accused state had made a declaration accepting the jurisdiction of the court in such cases. However, since the coming into force of Protocol 11, the individual complaints procedure has become an automatic and compulsory procedure for all states parties to the ECHR.

63 prejudice. Finally, the ECtHR has underlined that, like other provisions of the Convention, the term “victim” in Article 34 must also be interpreted in an evolutionary manner and in light of the conditions found in contemporary society.

Regarding the concept of an indirect victim, according to established case-law by the court, the word “victim”, in the context of Article 34 of the Convention, does denote that the person be directly affected by an act or omission. Nevertheless, international norms related to the different categories of victims consider the immediate family or dependents of the direct victims as indirect victims. Indirect victims take on a specific role when a direct victim is unavailable or is unable to claim that his or her rights were violated - for example, in cases where there has been a violation of the right to life, or even more crucially, in cases of disappearances. Moreover, on a case-by-case basis, the ECHR has accepted applications from

“potential” victims,99 that is, from persons who can not complain of being subject to a direct violation, but who risk being victimized by the law, for example.

Having said that, in order to be a victim, one must have suffered a violation, and cannot simply complain about the incompatibility of certain laws with a state’s human rights obligations in abstracto. Being a victim is a concrete rather than merely abstract condition. In the Ouardiri v. Switzerland case, the applicant, being of the Islamic faith, argued that a Swiss ban on building minarets restricted his right to freedom of religion, and violated his right to freedom from discrimination on the grounds of religion. The court faulted the applicant’s arguments for failing to clarify how the law specifically and practically affected him, and thus argued that the applicant did not qualify as neither a direct or indirect victim, or even a potential victim. The court suggested that the outcome could have been different if the permission to build minarets had been denied.100

99 Eur. Ct. H.R., Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31. 100 Ouardiri v. Switzerland and Ligue des musulmans de Suisse v. Switzerland (no. 65840/09 and 66274/09).

64 Being a victim of certain rights, notably the right to life, would entitle victims to certain effective remedies from the state. Moreover, the European Court has contributed to solidifying the status of victims domestically in that context, insisting that victims be taken into account in certain ways. The case of Kelly and others v. The United Kingdom101, dealt with the killing of nine men during a security force operation in Loughgall, Northern Ireland, on the 8th May 1987. This case shed light on the requirements of a victim’s involvement in the investigatory procedure pursuant to the procedural aspect of the state’s obligation to protect the right to life under Article 2 of the ECHR.102 In examining the complaint by the applicants that there had been a lack of an effective investigation into the circumstances of the deaths. This resulted in the ECtHR listing a number of requirements for states to observe when complying with their obligations to carry out effective investigations into alleged violations of the right to life.103

The ECtHR expressly mentioned among these requirements the involvement of the victim’s relatives in the investigatory procedure. In this respect, the ECtHR stated as follows:

For [the maintenance of public confidence in the authorities’ adherence to the rule of

law and preventing any appearance of collusion in or tolerance of unlawful acts],

there must be a sufficient element of public scrutiny of the investigation or its results

to secure accountability in practice as well in theory. The degree of public scrutiny

required may well vary from case to case. In all cases, however, the next of kin of the

victims must be involved in the procedure to the extent necessary to safeguard his or

her legitimate interests.104

101 ECtHR, Kelly and others v. The United Kingdom, Judgment of 4 May 2001, Application No. 30054/96. 102 Ibid. 103 Ibid paras. 95 - 98 104 Ibid para. 98 (emphasis added). See also the following judgments of the ECtHR: Hugh Jordan v. The United Kingdom, Judgment of 4 May 2001, Application No. 24746/94, para. 109; McKerr v. The United Kingdom, Judgment of 4 May 2001, Application No. 28883/95, para. 115; Shanaghan v. The United Kingdom, Judgment of 4 May 2001, Application No. 37715/97, para. 92.

65 This judgement is important in two ways. First, the ECtHR clarified the point that the involvement of the victim’s relatives into the investigation of an alleged violation of the right to life is a general requirement, under the procedural aspect of the state’s obligation under

Article 2 of the ECHR. Second, the ECtHR referred to the legitimate interests of victims – in this case the victim’s relatives – as a rationale for their involvement in criminal proceedings for a violation of the right to life. While the ECtHR implicitly maintained that these interests were limited, this statement is important because the court expressly recognised that victims have legitimate interests in the criminal proceedings of serious human rights violations.

In addition to opening up the concept of victims more broadly, the ECtHR is notable for having been reformed by Protocol 11 so that victims of human rights violations can bring cases directly to the court. There is, in other words, no longer a European Commission filtering cases and taking them up before the court. This previous situation meant that victims could at best ‘piggyback’ on the intervention of the European Commission on Human Rights.

Victims under the European system thus get a direct chance to constitute themselves as victims under the court system. This means that in addition to the quality of victims being recognized fairly broadly, they have significant rights to match.

3.3.2. The Inter-American System

The protection of human rights, especially the fight against impunity, has been a key concern of the Inter-American system. Since its inception and in contentious cases, the Inter-

American Court of Human Rights (“IACtHR”) has interpreted the American Convention on

Human Rights to require states to conduct investigations into human rights violations and prosecute perpetrators. What is crucial is that the respect for rights increasingly becomes an integral way to remedy rights violations so that the rights discourse/framework is implicated into the remedies, and not just the primary violation. In the last decades, there has been a conceptual shift in the approach of the IACtHR so that the investigation and prosecution of

66 human rights violations does not only give rise to a state’s obligation, as initially was the case,105 but that several rights of the victim are integral to it and reparations should be awarded for gross human rights violations.

Article 63.1 of the American Convention of Human Rights (ACHR) establishes the regulating principles applicable to reparations under this treaty, and highlights that an

“injured party” is entitled to reparations. The concept of an “injured party” and “victim” are used interchangeably in the jurisprudence of the ACHR. An analysis of the two concepts is essential in constructing who is a victim entitled to reparations for gross human rights violations.

Article 63.1 states: “if the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.”106 Article

63.1, however, does not define the term “injured party.” In principle, the article should apply once the Court has established that there has been a violation of the ACHR, or another applicable treaty. As such, this would imply that the term ‘injured party’ is synonymous with

‘victim’, as is the case under the ECHR.107 Accordingly, those who are recognised as victims in a judgment of the court would be treated as injured parties for the purposes of reparations.

However, the IACtHR characterized this as a restrictive interpretation and rejected it in the reparations decision of Velásquez Rodríguez, where it recognized the wife and children of a

105 See e.g. IACtHR, Velásquez Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Series C No. 4, paras. 166, 174, 176, and 177. 106 The initial draft of article 63.1 followed former article 50, now article 41, of the ECHR that is, as just seen, more restrictive in nature. In response to the draft, Guatemala presented a new proposal that was wider as it included that the injured 107 Article 41 of the ECHR uses the words ‘injured party’ when dealing with just satisfaction.

67 disappeared man as injured parties.108 For the court, the term ‘injured party’ does not only apply to victims but also to other persons considered to have suffered the effects of the violations even if they are not treated as victims by the court on the merits of the case.

Therefore, as Judge Cançado Trindade held, the concept of an ‘injured party’ is a more ample concept than that of a ‘victim’.109

The court’s arrival in understanding of the term ‘injured party’ has not been easy, as it has had to deal with both the legal gaps in relevant instruments, such as the ACHR, its Rules of Procedure and with factual challenges in difficult cases. The first Rules of Procedure of the

IACtHR were developed by the court during its second session in 1980.110 These rules were inspired by the regulations of the ECtHR and the International Court of Justice, and did not define the term ‘victim’ or ‘injured party’.111 Equally, between the court’s 1989 decision in in

Velásquez Rodríguez and the coming into force of the New Rules of Procedure of the court in

1991, the IACtHR did not explicitly define the terms ‘victims’ or ‘injured party’, even though it had to determine who was to receive reparations for disappearances, which was the first gross and systematic human rights violations it had to deal with.

In some of the earliest cases, the court used the term ‘victim’ to refer to persons who suffer a direct violation of rights under the ACHR, as happened to Manfredo Velásquez

Rodríguez, the victim of a disappearance in the case against Honduras. The court, however, did not give the same status to his next of kin, even if they were awarded reparations.112

Indeed, in the reparations decision, the court awarded monetary reparations for a loss of

108 IACtHR, Velásquez Rodríguez v. Honduras, judgement on reparations, 21 July 1989 at paras. 50-52 109 Concurring opinion of Judge Cançado Trindade, Interpretation of the judgment in the case of law Cantuta v. Peru, 20 November 2007, para. 61. 110 Article 60 of the ACHR mandates the IACtHR to draw up its own Statutes and Rules of Procedure. 111 IACtHR, Annual Report to the General Assembly, 1980, 27. 112 IACtHR, Velásquez Rodríguez v. Honduras, judgment on the merits, 29 July 1988, paras. 2, 119. The dissenting opinion of Judge Piza Escalante in this judgment appears to include the next of kin of Manfredo in the concept of ‘injured party’.

68 earnings caused to Manfredo, his wife and four children, as heirs.113 The court, nevertheless, awarded moral damages directly to all members of the family as it was proven that “they had symptoms of fright, anguish, depression and withdrawal, all because of the disappearance of the head of the family”114, but not because the court recognized them as victims. On the contrary, they were only treated as injured parties. Manfredo was not awarded moral damages and the judgment was considered by the Court as a satisfaction measure.115 Other cases in this period were treated similarly.116 In this first period, the court distinguished between a ‘victim’ and an ‘injured party’. However, the court was of the view that, for the purposes of reparations, the concept of ‘injured party’ had two separate meanings: 1) as a category to be applied to persons who receive reparations awarded by the IACtHR (Manfredo, the disappeared person, and his family); and 2) those persons who, even if not considered to be victims by the Court in the judgment on the merits, are still awarded reparations (the family

Manfredo as heirs and for moral damages).117

In Aloeboetoe v. Suriname, the court faced complex questions relating to reparations and evidence. The IACommHR requested the payment of moral damages to the Saramaka tribe118 and collective reparations, as well as the application of Saramaka’s traditional concept of family for the award of reparations, including the award of reparations to dependents. For the award of reparations, the court distinguished between the victims of the case. The seven

113 Nevetheless, it should be recalled that in the judgment on the Merits, the Court clearly indicated to Honduras that under the ACHR it had and has the obligation to investigate, prosecute and punish the perpetrators of disappearances and to disclose all available information to the next of kin of the disappeared person. In the judgment on reparations, the Court referred to the judgment on the merits to stress that Honduras had and has such an obligation. Velásquez Rodríguez, paras 45-49 and 32-34. 114 Ibid at para. 51 115 Ibid at para. 6 -9 116 IACtHR, Godinez Cruz v. Honduras, judgement on reparations, IACHR Series C no 8, IHRL 1389 (IACHR 1989), 21st July 1989 117 The IACtHR awards reparations for moral and materials damages of a deceased person to his or her heirs. It could be discussed whether such awards are made because the Court considers the heirs as injured parties or just because inheritance law should apply. For the purposes of this chapter, it is maintained that the Court awards such reparations to the heirs as it considers that they are injured parties. Indeed, they have lost a close member of the nuclear family who, in many cases, was the breadwinner, so such harm has detrimental consequences for them, an issue that inheritance law recognizes. 118 IACtHR, Aloeboetoe v. Suriname, judgement on reparations, 10 September 1993, para 81. See also Claudia Martin & Françoise Roth, “Suriname Faces Past Human Rights Violations” (1994) 1:1 Human Rights Brief 1.

69 persons who were not victims of violations of the ACHR, could nonetheless claim reparations as they suffered damages. In this latter concept, the court identified two possible claims for reparations: a) the one made by the next of kin of the victim, and not as successors, for moral and pecuniary damages and b) the dependents. The court awarded reparations to those in category (a) but not in category (b). In relation to those in the latter, there was insufficient evidence to prove that the conditions established by the court were met. For a dependent to be awarded reparations the court required:

First, the payment sought must be based on payments actually made by the victim to

the claimant, regardless of whether or not they constituted a legal obligation to pay

support. Such payments cannot be simply a series of sporadic contributions; they

must be regular, periodic payments either in cash, in kind, or in services. What is

important here is the effectiveness and regularity of the contributions..

Second, the nature of the relationship between the victim and the claimant should be

such that it provides some basis for the assumption that the payments would have

continued had the victim not been killed.

Lastly, the claimant must have experienced a financial need that was not periodically

met by the contributions made by the victim. This does not necessarily mean that the

person should be indigent, but only that it be somebody for whom the payment

represented a benefit that, had it not been for the victim’s attitude, it would not have

been able to obtain on his or her own.119

Although the court rejected the request to award reparations to dependents, the same court made use of an important presumption to identify some of them as injured parties. The issue concerned the status of five of the parents of the deceased who were not successors and whom the Commission claimed to be dependents for the award of moral damages. Indeed,

119 Ibid para 67 -73.

70 the court indicated that “it can be presumed that the parents have suffered morally as a result of the cruel death of their offspring, for it is essentially human for all persons to feel pain at the torment of their child”.120 Therefore, the court’s use of the presumption juris tantum evolved as a mechanism for the identification of injured parties, even if only to award them moral damages. This means that besides any working definition of the concepts of ‘victim’ and ‘injured party’, issues of evidence might be of importance for their identification.

In later cases, the court began to understand that violations of the ACHR could encompass other victims beyond the direct victim of the violation and thus aligned the notions of ‘injured parties’ and ‘victims’ together. The court’s understanding of this important issue developed first in cases relating to disappearances, and then later to cases on arbitrary killings, resulting in part, from the assistance provided by the Commission and by the participation of victims and their next of kin at the reparations stage. The extension of the concept of the ‘victim’ to others, including the next of kin, had an impact in reparation awards as family members of a victim of gross human rights violations would receive reparations as victims, and not only as injured parties.

The court first recognized this situation in disappearance cases.121 In Blake v.

Guatemala,122 two American journalists disappeared in 1985. The court considered that the disappearance of Blake “generate(d) suffering and anguish (to his parents), in addition to a sense of insecurity, frustration and impotence in the face of the public authorities’ failure to investigate”. The court added that “such suffering was increased by the fact that the mortal remains of Mr. Blake were burned in order to destroy any traces of the crime”. All of these

120 Ibid, para 76. 121 The first case where the Court found that the next of kin of a disappeared person could also be autonomous victims of the ACHR was Castillo Paez v. Peru, where the Court considered the next of kin to be victims of violations of their right to judicial guarantees (article 25 of the ACHR). See, judgment, 3 November 1997, paras. 80-84. Nevertheless, the first case where the Court made a more holistic reading of the ACHR in relation to other victims than the direct victim is the case of Bl4ke as it found the next of kin to be victims of the right to human treatment (article 5 of the ACHR). 122 IACtHR, Blake v. Guatemala, judgment on the merits, 24 January 1998.

71 constituted a violation of article 5 of the ACHR (the right to human treatment).123 The relatives of Mr. Blake were considered autonomous victims of violations of article 8 of the

ACHR (the right to a fair trial), as there was both an undue delay in the administration of justice in the case of their son, and it is a right for the next of kin to the victims of disappearances to be able to receive effective investigation, prosecution and punishment of the material and intellectual perpetrators of the crime, together with compensation for the harm suffered.124

In summary, the complex relationship and differences between the terms ‘injured party’ and ‘victim’ in the jurisprudence of the court has made it clear that although the two concepts are not equivalent, there is a relationship of dependence between them that should continue to exist. The achievement of the court in terms of reparations for gross human rights violations is a result of its understanding of the terms ‘victim’ and ‘injured party’, and more importantly, of the combination of these two concepts. However, according to the court, the term injured party is an umbrella term that covers: victims (direct and indirect); potential victims; the next of kin of the victims as successors/heirs; dependents; and members of communities. The cases of la Cantuta and Kimel challenge this structure, as they consider that ‘injured parties’ are only the victim of violations of the ACHR as decided by the court, and no one else.125

Although the case law is progressive, it should be pointed out that it refers to the substantive question of who is a victim, and does not create a right of victims to be exercised in court. Unlike the European Court of Human Rights, parties to Inter-American Court cases are represented by the Inter-American Commission who act as a sort of ‘Attorney General’ on their behalf. In addition, the Commission will have significantly filtered cases that reach the jurisdictional stage so that access to the court is not de droit. Finally, some cases will

123 Ibid, paras. 114-116. 124 Ibid. para. 97. 125 La Cantuta, interpretation of the judgment, supra n. 25 and 116.

72 have been resolved by the Commission in ways that allow it to act as a significant intermediary between individual victims and their states.126 This suggests that an expansive understanding of who qualifies as a victim for human rights purposes does not necessarily coincide with the broadest judicial standing rights.

3.4. The Increasing Connection between the International Human Rights, International Humanitarian and International Criminal Law Regimes.

The various developments that have occurred in the international human rights context are quite different from that found in international criminal law. In the case of human rights, the author of the harm committed to victims is almost always and principally the state.

Being a victim of a state is not the same thing as being the victim of an individual.

Nonetheless, there are significant overlaps between certain violations of human rights and victim-deficiencies of the criminal justice system. Human rights law can be seen as having prepared the grounds for an increasing recognition of the status of victims in international criminal law itself. Indeed, the connection between international human rights law, international humanitarian law and international criminal law is increasingly evident and has been recognized as such. There is, for example, a significant overlap between the laws of war and international criminal law in the form of war crimes. Although less evident, it is also clear that crimes against humanity and genocide can be analysed as forms of massive human rights violations.

More specifically, and starting in the late 1980s, one witnessed a convergence of these various discourses around and towards a crystallization of the status of the victim in international law. The background to this evolution is the growing realization, particularly in highly specific transitional contexts, that the demands of victims of human rights violations were not being met by criminal justice systems. This is a far cry from recognizing that

126 Christina M Cerna, “The Inter-American system for the protection of human rights” (2004) 16 Fla J Int’l L 195; Tom J Farer, “The rise of the Inter-American human rights regime: no longer a unicorn, not yet an ox” (1997) 19:3 Human Rights Quarterly 510.

73 victims have rights in the criminal justice system, but it increasingly came close to the idea that victims had a right to the criminal justice system. One can go without the other: one may have a right to the State exercising its criminal powers diligently to punish those responsible for human rights violations, but without having any particular right to be considered a party in any way to criminal proceedings. There thus remains in theory a significant gap between being a victim of human rights violations broadly speaking and having rights, as the case may be, as a victim within the criminal justice system. But it is that gap that has increasingly been interrogated.

While there is no single definition of ‘victim’ at the international level,127 the widely accepted version is found under the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (hereinafter “the UN Declaration for Victims of Crimes”),128 which defines victims as follows:

Victims means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

… The term ‘victim’ also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.129

The substantive scope of the above provision is framed in paragraph 18 of the

Declaration to include victims as:

[P]ersons who have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.

127 See e.g. Rules of Procedure and Evidence of the International Criminal Court, Rule 85, 9 September 2002, Doc. ICC-ASP/1/3 (hereinafter “the ICC Rules”); Rules of the International Criminal Tribunal for the Former Yugoslavia, Rev. 46, Rule 2(A), 20 October 2011, IT/32/Rev. 46. 128 The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN General Assembly, Res. 40/34, 29 November 1985, UN Doc. A/RES/40/34. 129 Ibid. paras 1 – 2.

74

This definition, as we will see in the next chapter, was recognised during the

Preparatory Commission of the International Criminal Court, where a large majority of delegations favoured the adoption of a common definition of a ‘victim’ based on the UN

Declaration of Victims of Crime.130 Importantly, the definition of a victim, which was inserted into the 2005 Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims, was similar to the wordings used in the UN Declaration for Victims of Crime. The only difference is in the substantive scope of the former, which contains a reference to both “gross violation of international human rights law’ and ‘serious violations of international humanitarian law.”131

Several international measures that followed the 1985 UN Declaration of Basic

Principles of Justice for Victims of Crimes and Abuse of Power, took a long time to implement their principles to domestic legislation and policies. This includes the Basic

Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross

Violations of International Human Rights Law and Serious Violations of International

Humanitarian Law,132 and ultimately the Rome Statute.

Also, there has been an increasing focus on the restorative justice principles in academic and jurisprudential discourse surrounding international criminal tribunals, courts, and transitional justice, more generally.133 The increasing influence of restorative justice

130 Ruti G Teitel, Humanity’s Law (Oxford; New York: Oxford University Press, 2011).“Definition of Victims and General Principle” in R LEE, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Trasnational Publishers, New York (Ardsley: New York: Transaction Publishers, 2001) at 430–431. 131 See the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, Principle 8. 132 UN General Assembly, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, UN Doc A/RES/60/147, 21 March 2006, also known as the Bassiouni Principles. 133 Mark J Findlay & Ralph Henham, Transforming International Criminal Justice (Routledge, 2005); Thomas M Antkowiak, “An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice” (2011) 47 Stanford journal of international law 279; Carolyn Hoyle, “Can international justice be restorative justice? The role of reparations” (2012) Critical perspective in transitional justice, Intersentia; Mariana Pena & Gaelle Carayon, “Is the ICC making the most of victim participation?” (2013) International Journal of Transitional Justice ijt021.

75 principles, in this context flows, to some extent, from the perceived failure of the Anglo-

American common law system to accommodate victim’s interests, and the recognition that justice for victims of international crimes must embrace notions of truth, reconciliation and reparations.134 The focus of the international criminal justice project should not only be to punish perpetrators, but to heal victims and repair the social fabric and economic infrastructure of communities that have been destroyed.

Beyond the healing and reparative roles of international justice, there is a consensus among international human rights activists that states are responsible for criminally investigating, prosecuting, and punishing perpetrators of war crimes, crimes against humanity, and genocide, as well as other “serious” human rights violations. 135 There is further a consensus that a state’s failure to fulfill such a duty to the victims of these crimes would constitute a violation of international human rights law and that, in certain instances, international criminal institutions should be created or used to punish individual perpetrators136. This has been referred to as “the justice cascade” – as a positive turn within the human rights movement,137 that has crystallised the contemporary embrace of

(international) criminal law by the international human rights movement.

Finally, the international human rights regimes in shaping the global legal status of the victim is perhaps most clearly expressed in the idea that victims, including victims of grave human rights violations that reach the level of a crime, and a fortiori victims of international crimes, are entitled to reparation. The European Court of Human Rights and the

Inter-American Court of Human Rights have awarded victims reparations for decades as a

134 Carolyn Hoyle & Leila Ullrich, “New Court, New Justice? The Evolution of ‘Justice for Victims’ at Domestic Courts and at the International Criminal Court” (2014) 12:4 Journal of International Criminal Justice 681. 135 Karen Engle, “A Genealogy of the Criminal Turn in Human Rights” in Karen Engle, Zinaida Miller & D M Davis, eds, Anti-Impunity and the Human Rights Agenda (Cambridge: Cambridge University Press, 2016) at 15. 136 Ibid. 137 Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (The Norton Series in World Politics) (WW Norton & Company, 2011) at 5.

76 consequence of finding states responsible for rights violations. The right of an individual to reparations is a fundamental human right that is expressly guaranteed by global and regional human rights instruments and routinely applied by the international and national courts. It flows from the right to an effective remedy but is often explicitly protected as such. The

International Covenant on Civil and Political Rights contain three separate articles on remedies. Article 2.3 calls on state parties to ensure that any person, whose rights or freedoms recognized in the Covenant are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity to ensure that any person claiming such a remedy shall have the right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; and to ensure that the competent authorities shall enforce such remedies when granted. The Convention on the Elimination of Racial Discrimination, also contains broad guarantees of an effective remedy, similar to the Convention on the

Elimination of All Forms of Discrimination against Women, which requires competent national tribunals and other public institutions to ensure “the effective protection of women against any act of discrimination,” among other provisions on reparations by different conventions. Perhaps most explicitly, the UN Basic Principles and Guidelines on the Rights to a Remedy and Reparation spell out the essential connectedness of the two, and the various components of a multi-facetted right to reparations.

3.5. Conclusion

International human rights law has presided over advancements toward the recognition in international law of a particular kind of victim - the victim of human rights

77 violations. Unlike some of its predecessors, this juridical status in more than just name, but involves the inclusion of secondary rights for victims to obtain accountability. With more hesitation, but largely as a result of the evolution of international human rights law, the laws of war have increasingly recognized that victims of war crimes are, at least, entitled to certain recognition. Taken together, these developments do not tell us anything specific about the place of victims within the criminal trial process, let alone the international criminal trial process. In particular, they orient claims of victimhood towards the state, rather than toward individual perpetrators. Moreover, they suggest a concept of victimhood that is much broader than the one implied by international crimes - one can be a victim of a range of rights violations that do not reach the gravity of a crime, let alone an international crime. But there should be no doubt that in international legal discourse, human rights law has historically contributed to constructing the victim of violations as someone who is entitled to both take up their own case, make those responsible accountable, and to obtain both effective remedies and reparations. These broad developments undoubtedly form the background against which more specific criminal and international criminal ones unfold.

78 Chapter 4: The Rise of the ‘Victim’ in International Criminal Justice

4.1. From Invisibility to Hyper-Visibility

The relationship of international criminal justice to the ‘victim’ has witnessed an improbable arc from ignoring victims almost entirely, to giving them a dominant position, at least compared to the standards of many domestic criminal justice systems. This evolution occurred rapidly and, although it remains contested and even controversial, it is one that is characteristic of contemporary international criminal justice. How does one account for this evolution?

To understand the genesis of the ‘victim’ specifically in the international criminal law context, it is first important to trace the sources of its obfuscation. International criminal justice has in many ways gotten its cue from domestic criminal justice, whose biases and blind spots its has often unreflexively tended to reproduce. To go back in time, with the advent of penal modernity, the state became the primary adjudicator of crimes committed within its borders, with domestic courts acting as the sole forum to punish perpetrators.

Before the state took over this function, victims usually dispensed justice themselves in the form of self-help.138 Essentially, the victims, their family, kin or clan, either launched an attack against the perpetrators or sought reparation from them.139 The monopolization of criminal prosecution led the position where victims within the criminal justice process were largely forgotten, and used to buttress the state’s case against the perpetrator.140

To protect society from crime and to prevent the victims’ vengeance from turning into socially destructive blood feuds, the state gradually monopolized criminal prosecution

138 Andrew Karmen, Crime Victims: An Introduction to Victimology (Cengage Learning, 2012) at 3–5; Stephen Schafer, The Victim and His Criminal: A Study in Functional Responsibility (Random House, 1968). 139 Schafer, supra note 138; Geoffrey MacCormack, “Revenge and Compensation in Early Law” (1973) The American Journal of Comparative Law 69 at 69–85. 140 Ezzat A Fattah, “Prologue: On Some Visible and Hidden Dangers of Victim Movements” in From crime policy to victim policy (Springer, 1986) 1. 79 and appropriated the reparation, which was usually paid to the victim or his family, to the state’s coffers.141 Criminal courts determined the individual criminal responsibility of a perpetrator and dispensed justice accordingly by focusing almost exclusively on the accused.

One can therefore surmise that it is perfectly conceivable to witness the rise of the international criminal justice system as one that would not particularly rely on victims. As we will see, this has largely been the case. It suggests that the system remains content to invoke the figure of the victim, but is much more reticent when it comes to giving rights to the actual victims.

At the same time, the influence of IHL and human rights courts, meant that ideas about victims may have been more likely to have an impact internationally than domestically.

For example, both the development of the concept of war crimes and universal jurisdiction, on the one hand, and the human rights notion that impunity was a violation of victims’ human rights on the other, did a lot to set the stage for the fast-paced developments in the 1990s that eventually gave rise to the international criminal tribunals. The anti-impunity discourse itself, originally focusing on a human rights discourse that was oriented towards the state, was gradually incorporated into a broader rhetoric in favour of international criminal justice.142

The right to an effective remedy came to be understood, particularly in the case of violent crime, as a right of victims to see some form of justice.

Moreover, there was no doubt that international crimes created many victims and were at a certain level, first and foremost, enterprises of victimization. The idea that civilians were made to pay the price of war, for example, had an early representation of one of the tenets of the humanitarian creed. This was particularly clear in the final decades of the nineteenth century, with the emergence of a strong humanitarian sensitivity in international

141 Clarence Ray Jeffery, “The Development of Crime in Early English Society” (1957) The Journal of Criminal Law, Criminology, and Police Science 647 at 647–666; Fattah, supra note 140 at 1. 142 Engle, supra note 135.

80 law that emphasized the status of the ‘wounded soldier’ as a victim of war. At times, it was entire nations that were seen or saw themselves as having been victims of unjust wars against them. With the rise of totalitarianism and, specifically the Second World War, a specific concept of victimhood began to take hold - one that focused on massive killing sponsored by the state, forced labor or sexual exploitation.143 The crimes by the Axis powers created a strong sense that certain crimes could be devastating to the international order.

Victimhood, in this case however, remained a broad and nebulous notion. Perhaps because there were so many victims, the reaction of the international community was less about the victims per se than it was a reaction against international crimes. Rather than protecting concrete victims (e.g. Holocaust survivors, women sexually exploited by the

Japanese), international criminal law sought to protect ‘humanity’, an ill-defined notion whose hypothetical victimization raised significant questions. In that respect, the origins of international criminal law are not dissimilar to the origins of domestic criminal justice systems, which were nominally committed to correcting the wrongs committed against victims, but in reality, largely fixated on punishing the perpetrators for the sake of the collective.

Moreover, and perhaps ironically, these developments did not necessarily translate into a specific role for victims. It is as if victims, at first, justified the rise of international criminal justice very broadly, yet were not provided with a recognized role within it. For example, the ICTY and the ICTR took a strong stance in favour of the victims of genocide, crimes against humanity and war crimes, describing those who committed these offences as among the worst international criminals. However, this attention to the victims, as understood generically and instrumentally, did not translate into any procedural pride of place or significant thinking on how international criminal justice might affect victims, except

143 For example, the sex slaves exploited by the Japanese government during WWII, termed by the Japanese derogatory tag “comfort women”.

81 possibly with a view to minimizing harm to them as a collateral effect of participation in a trial.

One reason was that, in effect, international criminal justice was often typically justified as striving for some broader societal interest – for example, that of the international community, rather than actual victims. This is evident in the substantive international criminal law regime itself. Crimes against humanity are, precisely, crimes against humanity, understood as both a quality (that of being human) and a collective (the totality of humans).

Focusing on humanity as the true victim in the case of crimes against humanity, probably takes us as far from the individualized victims as possible. Indeed, there is a sense that international criminal law broadly protects victims as collectives. For example, the Genocide

Convention seeks to prevent the physical and biological destruction of national, racial, ethnic and religious groups.144 In its advisory opinion on the reservations to the Genocide

Convention, the International Court of Justice stated that “it was the intention of the United

Nations to condemn and punish genocide as a ‘crime under international law’ involving a denial of the right to existence of entire human groups.”145 Therefore, “the victim of the crime of genocide is the group itself and not the individual.”146

The extent to which protection is given to individual victims, is moreover, it is as members of these broader collectives. As the ICTY put it, “the emphasis most times is not on the individual victims but rather on the collectives, the individual being victimized not because of his individual attributes but rather because of his membership of a targeted civilian population.”147 The fundamental irrelevance of victims had extended to the creation of the ad hoc international criminal tribunals. These tribunals were formally created as

144 “Prosecutor v. Akayesu, Case No. ICTR-96-4-T Trial Chamber -”, (1998). 145 “International Court of Justice”, online: . My emphasis. 146 Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press, 2001) at 69. 147 “Prosecutor v. Tadic, Case No. IT-94-1-T”, (1997).

82 measures to re-establish international peace and security, and with broad, structural goals many steps removed from what might be understood to be victim interests. In other words, at its beginning, international criminal justice tended to replicate some of the biases of domestic criminal justice, being largely ignorant of actual and particularized victims, even as it may have loosely invoked their fate to better justify itself.

Nonetheless, the obfuscation of victims changed over time. We will explore some of these reasons in the following sections on the ICC in this chapter. It is worth noting from the outset that the process was one of ‘trial and error’, pragmatics, and political processes, rather than one based merely on principle. The fact that the UN had, for example, an early adoption of principles in favour of victim participation in criminal trials, was not the cause of the ICC taking that stance, at least in the sense that taking victims into account would have been mandated by human rights law. Rather, normative developments outside the realm of international criminal law provided a background that could be activated by various constituencies militating for greater victim participation and reparations.

4.2. An Examination of the Role of Victims in International Criminal Trials

The following sections will briefly examine the law and practice of international and hybrid criminal tribunals, as well as the role played by victims in the proceedings before these tribunals. By doing so, this section aims to determine how these tribunal construct victims in their work.

4.2.1. The Nuremberg and Tokyo Tribunals

The International Military Tribunal at Nuremberg (Nuremberg Tribunal) was established by the London Agreement of 8 August 1945 (Nuremberg Charter).148 The

148 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, 8 August 1945, available at www.icrc.org/ihl.nsf/FULL/350?OpenDocument (accessed May 9, 2017); for an account of the negotiations, see

83 Nuremberg Tribunal was established for the “just and prompt trial and punishment of the major war criminals of the European Axis”.149 In relation to the war in the Far East, the

Declaration of Potsdam provided that “stern justice shall be meted out to all war criminals”.

This was issued on the 26 July 1945 and on the 19 January 1946, when the Supreme

Commander for the Allied Powers established the International Military Tribunal for the Far

East (Tokyo Tribunal) by executive decree.

Victims were, of course, not entirely absent from Nuremberg and Tokyo. Notoriously, some testified at both trials,150 but did not have any status before the tribunals.151 They had no possibility of initiating investigations or prosecutions. Furthermore, there was no unit mandated to assist and support them, nor a fortiori, were there provisions on providing victims with reparations.152 In fact, the Charters of the tribunals did not contain a definition of victims in line with the peripheral role accorded to the victims in the proceedings. In short, the role of victims was not envisaged, and remained largely absent in the proceedings of the tribunals, except as broad rhetorical ploys.

The tribunals also exhibited a significant level of selectivity among the victims of the

Nazis and the Japanese. This was done in line with the specificity and limitations of the accusations. For example, the Nuremberg tribunal tended to place more focus on military victims (e.g. of Hitler’s commando order) than on Holocaust victims; the Tokyo tribunal also focused more on the treatment of prisoners of war, rather than on comfort women in Korea.

These biases were more than biases against particular victims, as they were biases that resulted from a broader focus on certain crimes at the expense of others. One can nonetheless

Telford Taylor, The Anatomy of the Nuremberg Trials : a Personal Memoir (Back Bay Books, Little, Brown and Company, 1992). esp. Chapter 4. 149 Article 1, Nuremberg Charter. 150 Sonali Chakravarti, “More than ‘Cheap Sentimentality’: Victim Testimony at Nuremberg, the Eichmann Trial, and Truth Commissions1” (2008) 15:2 Constellations 223; Serge Wolikow, Le témoignage de Marie Claude Vaillant Couturier au procès de Nuremberg (L’Harmattan, 2016). 151 Sam Boris Garkawe, “The role and rights of victims at the Nuremberg International Military Tribunal” (2006). 152 Salvatore Zappala, Human Rights in International Criminal Proceedings (Oxford; New York: Oxford University Press, 2005) at 8 and 45.

84 speculate that they were not helped by the fact that many victims were absent from the trials, and therefore could not push, in any significant way, toward a shaping of the indictment.

4.2.2. The International Criminal Tribunals for the former Yugoslavia and

for Rwanda

Unlike the Nuremberg and Tokyo Tribunals, the International Criminal Tribunals for the former Yugoslavia (“ICTY”) and for Rwanda (“ICTR”) made references to the victims.

The Rules of Procedure and Evidence (RPE) of the ICTY and the ICTR have a limited definition of the victims. A victim is defined in Rule 2(A) of both RPE, as “a person against whom a crime over which the Tribunal has jurisdiction has allegedly been committed”. In constructing the victims at the tribunals, the requirement that the crime be committed

‘against’ the victim means that it excludes individuals who might have suffered from the consequences of an international crime committed in the former Yugoslavia and in Rwanda, but who were not specifically targeted and would therefore not be recognised as victims. The distinction between direct victims and indirect victims was not clearly delineated at these tribunals, but the requirement that one be targeted as a result of a crime prosecuted by the tribunals introduced a fundamental element of selectivity, that would in due course become evident in the context of the ICC.

On a superficial level, the ad hoc international criminal tribunals were resoundingly about victims. All of the Presidents of the International Criminal Tribunal for former

Yugoslavia (ICTY) invoke victims in the annual reports of the tribunal to the UN Security

Council, as a measure of the success of the institution; completed trials deliver justice to victims.153 The annual reports of the International Criminal Tribunal for Rwanda are replete

153 12th Annual Report of the International Tribunal for the Former Yugoslavia, UN Doc. No. A/60/267 – S/2005/532 (2005), available at www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_2005_en.pdf (accessed November 8, 2016); Tenth Annual Report of the International Tribunal for the Former Yugoslavia,

85 with references to victims. This is to the point that victims sometimes seem to define the social meaning and utility of the tribunal, where it states that “[s]eeking justice for the victims continues to drive our commitment to the goal of ensuring that never again will such atrocities occur.”154 Other international criminal tribunals, such as the Extraordinary

Chambers in the Courts of Cambodia, the Special Court for Sierra Leone, and the Special

Tribunal for Lebanon, also justify their work as providing “justice to victims.”155 The convergence and consistency of the discourse of the imagined victim is further illustrated in a joint statement issued by the prosecutors of the international criminal tribunals, who describe the significance of their work as being “on behalf of the victims in the affected communities.”156

Nonetheless, this often seemed to amount to a case of ‘justice for victims, without victims.’ One of the major criticisms of the ICTY and ICTR was the scant attention paid to

UN Doc. No. A/58/297–S/2003/829 (2003), available at www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_2003_en.pdf (accessed November 8, 2016); Ninth Annual Report of the International Tribunal for the Former Yugoslavia, UN Doc. No. A/57/397–S/2002/985 (2002), available at www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_2002_en.pdf (accessed November 8, 2016); Sixth Annual Report of the International Tribunal for the Former Yugoslavia, UN Doc. No. A/54/187–S/1999/846 (1999), available at www.icty.org/x/file/About/Reports%20and%20Publications/AnnualReports/annual_report_1999_en.pdf. (accessed November 8, 2016) 154 16th Annual Report of the International Criminal Tribunal for Rwanda, UN Doc. No. A/66/209 –S/2011/472 (2011), at 20, available at www.unictr.org/Portals/0/English%5CAnnualReports%5Ca-66-209e.pdf (accessed November 8, 2016); 11th Annual Report of the International Criminal Tribunal for Rwanda, UN Doc. No. A/61/265–S/2006/658 (2006), available at www.unictr.org/Portals/0/English%5CAnnualReports%5Cs-2006- 658.pdf (accessed November 2016); Third Annual Report of the International Criminal Tribunal for Rwanda, UN Doc. No. A/53/429 – S/1998/857 (1998), available at www.unictr.org/Portals/0/English%5CAnnualReports%5Ca-53-429.pdf (accessed November 8, 2016). 155 Opening Speech by the Plenary’s President Judge Kong Srim, During the Eighth Plenary of the Extraordinary Chambers in the Courts of Cambodia (ECCC) (13 September 2010), available at www.eccc.gov.kh/sites/default/files/media/8th_plenary_president_speech_EN.pdf (accessed November 8, 2016); SCSL OTP Press Release, Statement by Prosecutor Brenda J. Hollis, Special Court for Sierra Leone to the United Nations Security Council, 9 October 2012, available at www.sc- sl.org/LinkClick.aspx?fileticket=8TicA8yMb%2fA%3d&tabid=196 (accessed November 8, 2016); Ninth Annual Report of the President of the Special Court for Sierra Leone (2012), available at www.sc- sl.org/LinkClick.aspx?fileticket=ZEDnSBp6ahc% (accessed November 8, 2016). 3d&tabid=176; Second Annual Report of the President of the Special Court for Sierra Leone (2005), available at www.sc-sl.org/LinkClick.aspx?fileticket=33ryoRsKMjI%3d&tabid=176; Annual Report, Special Tribunal For Lebanon (2009-2010), available at www.stl-tsl.org/en/documents/president-s-reports-and-memoranda/annual- report-2009-2010 (accessed November 8, 2016). 156 SCSL OTP Press Release, Sixth Colloquium of International Prosecutors: Joint Statement, 16 May 2011, at 1, available at www.sc-sl.org/LinkClick.aspx?fileticket=TwFuqmhQvS4%3d&tabid=196 (accessed November 8, 2016)

86 victims due to the narrow interpretation of Rule 2(A) of the RPE. In fact, the involvement of victims in the proceedings was limited to serving as witnesses.157 Victims could only testify if one of the parties or if the Judge so request. Once they were called to do so, their testimony was limited to answering questions put to them by the parties and/or the Judge. In the course of their testimonies, victims would often be subject to attacks by the defence counsel and could possibly not have the opportunity to tell their version of the facts, apart from what emerged during examinations and cross-examinations.158 Victims certainly do not have any rights beyond that of the public to access evidence tendered to the tribunals. At best, the international criminal tribunals merely sought to comply with a ‘do no harm’ objective, in seeking to assist the victims who testified. That assistance, however, did not go far beyond preparing witnesses for cross-examinations (a goal relating more to the needs of the prosecution, than to the intrinsic needs of victims), and in ensuring their security. In a post- testimony context, many victims were left to fend for themselves, and could not claim any entitlement as a result of the contributions made to the prosecution. With regards to victims who were not witnesses, they might as well have not existed legally.

Arguably, certain aspects of the adversarial process made the experience for victim witnesses worse. At the commencement of proceedings before the tribunals, judges were not able to intervene during examinations and cross-examinations to moderate the questions asked or allow victims to tell their stories in their own way. Judges did not have the witness statements and therefore were not familiar with the facts of the case. This put them at a disadvantage compared to the parties in the case who, in a true adversarial fashion, ran the show in ways that could create hardships for the witnesses. Due to this limitation, the RPE of both tribunals was amended to allow the Judges to receive witness statements, or at least a

157 Pascale Chifflet, “The Role and Status of the Victim” in International Criminal Law Developments in the Case Law of the ICTY (Leiden: Martinus Nijhoff Publishers, 2003) 75 at 108; Zappala, supra note 152 at 224. 158 Zappala, supra note 152 at 222.

87 summary of their evidence, enabling the Judges to intervene more effectively in seeking the views of victims “and ensuring that their role [was] not merely at the whim of the parties”.159

This reflected a move toward a slightly more inquisitorial model, one in which judges were called upon to be the guardians, not just of courtroom decorum and the fair trial of the accused, but also toward the integrity of a witness testimony.

The tribunals largely left the issue of compensation for the victims of crimes within the jurisdiction of national courts or other competent bodies. The only power the ICTY and the ICTR had on a victim’s compensation was to order, as a penalty, “the return of any property and proceeds acquired by criminal conduct to their rightful owners.”160 Pursuant to

Rule 105 of both ad hoc tribunals, a Trial Chamber was to consider issues of property restitution and its affiliated proceeds only after a judgement of conviction, that contained a finding that the unlawful taking of property by the accused was associated with the crime found, had passed.161 While this was a slight improvement to Nuremberg and Tokyo, the compensation scheme of the ICTR and ICTY remained an illusion because the provision had not been applied so far.162 No domestic courts have effectively provided compensation to victims of crimes within the jurisdiction of the ad hoc international criminal tribunals.163 This

159 Ibid. 160 See the ICTY Statute, Art. 24 (3), UN Security Council, Res. 827, 25 May 1993, and as amended more recently, by UN Security Council, Res. 1877, 7 July 2009; the ICTR Statute, Art. 23 (3), UN Security Council, Res. 955 (1994), 8 November 1994, and as amended more recently, by UN Security Council, Res. 1901, 16 December 2009. 161 See the ICTY Rules, Rules 98 (B) and 105 (A); and the ICTR Rules, Rules 88 (B) and 105 (A), adopted on 29 June 1995 and as amended more recently, on 1 October 2009. 162 Alexander Zahar & Garan Sluiter, International Criminal Law : A Critical Introduction (Oxford [UK]; New York: Oxford University Press, 2008) at 77; John R W D Jones & Steven Powles, International Criminal Practice : the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court, the Special Court for Sierra Leone, the East Timor Special Panel for Serious Crimes, war crimes prosecutions in Kosovo (Ardsley, NY; Oxford: Transnational ; Oxford University Press, 2003) at 804; Chifflet, supra note 157 at 103. 163 According to an interview with Emmanuel Rakangira, Assistant Public Prosecutor in Rwanda, carried out by the International Crisis Group on 4 December 2000, Rwandan courts have awarded important amounts of money to victims of crimes committed during the genocide, but these judgments have been impossible to enforce. See International Crisis Group (2001), International Criminal Tribunal for Rwanda: Delayed Justice, ICG Report No. 30 (Nairobi: International Crisis Group). See also Richard May & Gabrielle Kirk MacDonald, “Restitution of Property and Compensation to Victims” in Essays in ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (The Hague; Boston: Kluwer Law International, 2001) at 382.

88 suggests that one of the fundamental disconnects between international and domestic jurisdiction are the ways in which victims get sidelined.

Nonetheless, this inattention to the victims did place strain on both international criminal tribunals. At the heart of this strain lies a question of legitimacy, and the question of who international criminal tribunals ultimately rendered justice for. Nominally, the tribunals were created to restore international peace and security by the Security Council, but the latter adopted a more ‘hands off’ approach to the activities of its subsidiary bodies, (except when putting pressure on them to wind down their activities). Thus, the tribunals were not called upon to actually pursue international peace and security. The fiction that international criminal justice was being rendered for the international community was in itself a strain, particularly in the context where the international community seemed to have moved to other things. In practice, it was mostly the societies at stake, being the former-Yugoslavia and

Rwanda, that were affected, and with it, the various communities of both perpetrators and victims. The former certainly made their voices heard when they were unhappy with the verdicts, as they often were; the latter, however, gradually became significant constituencies that both broadly supported the tribunals but were also capable, at times, of manifesting significant discontent. This was evident in Rwanda where the powerful victim umbrella group, Ibuka, threatened to boycott the tribunal and argued that they would stop ‘sending’ witnesses there after the Tribunal acquitted individuals from genocide.

The tribunals often ignored these voices to their peril. Some victim groups have had very harsh words for both upon their closing. For example, the assessment of Ibuka as the

ICTR wound down was that the tribunal had “delivered nothing for either the victims or the survivors of the genocide.”164 This was, remarkably, an improvement from the earlier era, during which the same organization had accused the tribunal of trivializing the genocide and

164 Alastair Leithead, “What has Rwanda genocide tribunal achieved?”, BBC News (14 December 2015), online: .

89 encouraging negationism through its acquittals.165 Similarly, the ‘Mothers of Srebrenica’ made their voices heard to both support and occasionally criticize the ICTY. A more specific example is in relation to the excavation of mass graves.166 Violence-affected communities often complained about being uninformed, and were thus often critical of the tribunals’ activities.167 What this suggests is that there is more to the work of international criminal tribunals than merely prosecuting perpetrators, and that the totality of their work, being their prosecutorial strategy, victim support, societal outreach and communications and forensics, often stood to affect victims in direct and indirect ways that need to be accounted for.

As a result, and beyond the voices of victims themselves, a major criticism that trailed the work of the ICTY and ICTR was the victims’ lack of agency in contributing to the criminal proceedings168, and the failture to engage victims in their local communities.169 One of the criticisms was that the prosecutor, or defense of the ICTR and ICTY, decided on when the victims would speak and usually focused more on the forensic details of the case, thereby subjecting the victims to hostile cross-examinations. This approach was described by the former President of the ICTY, Claude Jorda, as treating the victim as an “instrument” in the

165 “Hirondelle News Agency - 15.12.09 - ICTR/RWANDA - IBUKA ACCUSES ICTR OF NEGATING GENOCIDE”, online: . 166 Elissa Helms, The New Bosnian Mosaic: Identities, Memories and Moral Claims in a Post-War Society (Routledge, 2016). 167 Frédéric Mégret, “Legacy of the ICTY as Seen through Some of its Actors and Observers, The” (2011) 3 Goettingen J Int’l L 1011; Diane F Orentlicher & Open Society Justice Initiative, Shrinking the Space for denial: The Impact of the ICTY in Serbia (Open Society Institute New York, 2008); Victor Peskin, “Courting Rwanda The Promises and Pitfalls of the ICTR Outreach Programme” (2005) 3:4 Journal of International Criminal Justice 950. 168 For analyses of the inclusion of victim participation in the Rome Statute, David Donat-Cattin, “Article 68: Protection of Victims and Witnesses and their Participation in the Proceedings” (2001) Commentary on the Rome Statute of the International Criminal Court Baden: Nomos 869; Håkan Friman, “The International Criminal Court and Participation of Victims: A Third Party to the Proceedings?” (2009) 22:03 Leiden Journal of International Law 485; Emily Haslam, “Victim Participation at the International Criminal Court: A Triumph of Hope over Experience?” in The Permanent International Criminal Court (2004). 169 Jo-Ann Wemmers suggested that there are two types of victim participation, namely active participation where the victim has decision making power and passive participation where victims have no power over decisions but are consulted and informed of the developments in their case. See Jo-Anne M Wemmers, Introduction à la Victimologie ([Montréal]: Presses de l’Université de Montréal, 2003); Jo-Anne Wemmers & Katie Cyr, “Victims’ Perspectives on Restorative Justice: How Much Involvement Are Victims Looking For?” (2004) 11:2–3 International Review of Victimology 259.

90 criminal proceedings.170 These and other criticisms made civil society organizations and states to push the ICC to adopt a different approach towards victims.171

This put international criminal tribunals in an uncomfortable position. If they expected that they would receive support by the victims, then they were clear mistaken. It became clear that tribunals could not expect the unequivocal and constant support of victim constituencies just because they were prosecuting those who were accused of committing crimes against them. Something more was needed, and victim groups, sometimes excessively and vociferously, were active in delineating the contours of what might count as satisfying justice from their point of view. Increasingly, the tribunals found themselves rendering a form of societal justice between ‘victim’ and ‘perpetrator’ groups that they were ill prepared to assess, having merely been instructed to prosecute the individuals taken in isolation.

Several proposals and arguments have been made to the Statutes of the ICTY and

ICTY with the intention of granting victims participatory rights during the trial, and allowing them to seek compensation. Many of these proposals have not been met successfully. In June

2000, Carla del Ponte, the then Prosecutor for both tribunals, submitted two proposals to the

ICTR Plenary requesting amendments to the Rules of the Tribunal on these issues. In July, she made the same proposal to the Plenary of the ICTY.172 However, this was met with a degree of scepticism from the Tribunal, who strained to imagine its mission beyond that of prosecuting key perpetrators. In the report prepared by the ICTY Rules Committee and later approved by the ICTY Plenary, the ICTY judges recognized the right to compensation of

170 Claude Jorda & Jerome de Hemptinne, “The Status and Role of the Victim” in Antonio Cassese, Paola Gaeta & John R W D Jones, eds, The Rome Statute of the International Criminal Court: A Commentary (Oxford; New York: Oxford University Press, 2002). 171 Haslam, supra note 168; William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 2011). 172 See letter dated 12 October 2000 from the President of the ICTY addressed to the Secretary-General, in UN Secretary-General, Letter dated 2 November 20we00 from the Secretary-General addressed to the President of the Security Council, 3 November 2000, UN Doc. S/2000/1063, Annex, at 3.

91 victims173, but maintained that the task of processing and determining compensation claims should not be given to international tribunals.174 Instead, it was recommended that an international claims commission be established to deal with compensation claims made by the victims of international crimes in the former Yugoslavia.175 It was argued by the ICTY judges that allowing victims to participate and seek compensation before the ICTY, anticipating on some arguments that would be heard in the ICC context, would significantly increase the length of the ICTY proceedings.176 Also, the ICTY judges argued that if victims were allowed to participate and seek compensation, it “would run counter to [the tribunals’] principal objectives of prosecuting those responsible for the crimes in the former

Yugoslavia”.177 Furthermore, they argued that the amendments regarding participation and compensation would be difficult to implement.178

The ICTR Plenary also adopted a similar view. In a letter dated 9 November 2000 addressed to the UN Secretary General, the ICTR argued that although they empathised with the compensation for victims, “the responsibility for processing and assessing claims for such compensation should not rest with the tribunal.179 The judges, in supporting this argument, stated that the suggested reforms could have an impact on the length of the proceedings before the Tribunal.180

The overall experience of victims before the international criminal tribunals was therefore a limited one. Victims never succeeded in obtaining any formal status. Even if formal status were afforded to victims, the tribunals would have probably been under strain to implement this, given the fact that the statutes did not anticipate anything of the sort. At the

173 See the ICTY’s Rules Committee, Victims’ Compensation and Participation, paras. 21, 36, 46–47. 174 Ibid see para. 47. 175 Ibid see para 48. 176 Ibid see para 36, 47 177 See the ICTY’s Rules Committee, Victims’ Compensation and Participation, para. 47. 178 Ibid para 47. 179 Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda addressed to the Secretary-General, in UN Secretary-General, Letter of 14 December 2000 from the Secretary- General addressed to the President of the Security Council, 15 December 2000, UN Doc. S/2000/1198, at 3. 180 Ibid para. 4, 11-13

92 same time, the historical experience of international criminal tribunals has undoubtedly been that this creates legitimacy and, ultimately, operational problems for tribunals that need close state and societal support to operate successfully.

Aside from a reluctance to get involved in victim justice out of logistical and functional concerns, it must also be underlined that the Rwandan victim movement was provided evidence on how victim politics get in the way of fair justice. Groups, such as

Ibuka, effectively threatened to take the tribunal hostage by ceasing cooperation in case of acquittals. Although one can certainly discuss the particulars of certain cases, acquittals are evidence that the system of international criminal justice is broadly sound, and capable of recognizing that the guilt of individuals has not been proved beyond reasonable doubt.

Clearly, the retributive urges of victims cannot be the last word on international justice, even though nor is that an excuse to ignore victims entirely. It should be underscored that international criminal tribunals do suffer unfairly from their exposure and the lack of complementary mechanisms to deal with victim demands. In the absence of other significant initiatives in the former-Yugoslavia and Rwanda, such as truth and reconciliation commissions, victims end up focusing all their energy on the only existing international judicial institutions, being the international criminal tribunals, and often making demands upon them that the tribunals could hardly honour. This is what led the ICTY to recommend the creation of a claims commission to compensate victims, although coming too late and with little success. Indeed, it should be stressed that from a human rights point of view, the key objective remains that victims should get reparations, and not that reparations should be awarded by international criminal tribunals. The demand for participation, however, is clearly one that only such tribunals can meet.

4.2.3. Domestic Developments and the Victims’ Rights Movement

93 International developments clearly had an important role in crystallizing the emerging victim of international crime as a juridical victim. However, these international developments were also nourished by a range of domestic developments that simultaneously, and for very different reasons, gave a more significant role to victims in criminal justice. Indeed, the separation between domestic and international criminal law processes is increasingly open to doubt, as ideas circulate relatively freely between levels of jurisdiction. International criminal law is both the product of international legal developments and global criminal justice ones.

Traditionally, criminal law has involved a focus on “crime” being a violation of public order and an offence against the state, or at least the community. In that respect, the emergence of criminal law is based on the erasure of the private victim of crime as merely

‘standing in’ for society’s larger repression. This is visible through the traditional neglect of the victim as a party, or even as a right holder in the criminal justice process. At best, and as a result of the liberal transformation of criminal justice, the focus has historically been on the perpetrator. Based on legitimate fears of state overreach, liberal criminal law has been strongly associated with an overriding concern with the presumption of innocence- the right not to be imprisoned without a fair trial, and the attendant guarantees of due process. The rights of the defendant created a culture in which the rights of victims are treated with suspicion.

The focus on the offender is visible in some of the widely available theories that justify punishment. This invariably focuses on the justification of the offender’s punishment and his relationship to the state. This is at the expense of any other relationship, such as that of the victim and the offender’s crime. Retributive justice theory, for example, is based on the relationship between punishment and the culpability of the perpetrator, with punishment

94 being justified only ‘because and only because offenders deserve it’.181 The retributive criminal justice framework endeavors to achieve punishment that is proportional to the gravity of the crime, but also specifically when it comes to issuing a sentence that is consistent with the characteristics of the offender.182 Such notions have led to criticisms against retributive justice theory based on, inter alia, the assumption of a widespread moral agreement distinguishing wrong from right,183 the difficulties associated in finding proportional punishment, and why two harms (crime and punishment) are always better than one crime.184 For our purposes, what matters is that the degree of guilt and also punishment is highly perpetrator-dependent and cannot vary with the identity or needs of the victim.185

Accordingly, victims do not play a role in the determination of guilt or punishment under retributive justice theories. In fact, retributive scholars barely discuss the victims’ status in criminal justice.186 While the victim may obtain some satisfaction out of the punishments meted out to the perpetrators, it is the moral culpability of the latter, and not the degree of harm inflicted on the former, that determines the seriousness of the offences.187

There have been some attempts at reconciling retributive justice theory with the victims’ plight. For example, Ashworth, a prominent representative of the retributive justice theory, proposes that ‘the justice of punishment for culpable and criminalized wrongdoing may be

181 Andrew Von Hirsch, Andrew Ashworth & Julian V Roberts, eds, “The Moral Worth of Retribution” in Principled Sentencing: Readings on Theory and Policy (Oxford; Portland, Or.: Hart Pub., 2009). 182 James Dignan & Michael Cavadino, “Towards a Framework for Conceptualizing and Evaluating Models of Criminal Justice from a Victim’s Perspective” (1996) 4:3 International Review of Victimology 153 at 153, 155; J Mitchell Miller & Richard A Wright, eds, “Retribution” in Encyclopedia of Criminology (Routledge, 2013) at 1431. 183 Mikaela Heikkila, International Criminal Tribunals and Victims of Crime: A Study of the Status of Victims Before International Criminal Tribunals and of Factors Affecting this Status (Turku: Institute for Human Rights, Abo Akademi University, 2004) at 26. 184 As for the critique, see, e.g., Aleksandar Fatic, Punishment and Restorative Crime-Handling: A Social Theory of Trust (Avebury Publishers, 1995) at 188; Wesley Cragg, The Practice of Punishment: Towards a Theory of Restorative Justice (Routledge Publishers, 1992) at 20–23. 185 Andrew Ashworth, “Some Doubts about Restorative Justice” (1993) 4 Criminal Law Forum 277 at 298. 186 Heikkila, supra note 183 at 27. 187 Miriam J Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice” (2002) 15 Harv Hum Rts J 39 at 54.

95 said to stem from the wrongdoer’s denial of respect for the victims’ integrity’.188 This has been interpreted by some as a victim-friendly approach since punishment expresses society’s

‘solidarity with the victim’.189

Nevertheless, due to the fact that retributive justice is a response to the wrongdoings of the perpetrator rather than a reaction to the harm experienced by the victim specifically, there is consensus on retributive justice being viewed broadly as not being a victim-friendly framework.190 It remains that the perpetrator’s deeds, and not the suffering of the victim, are examined during a trial.

It is true that victims are not traditionally or entirely absent from this retributive stage, as they are notably present as witnesses. But even though some victims are considered important as witnesses, this limited role does not grant them the status of being party to the proceedings, or acquiring significant procedural rights.191 Victims are useful to the system in an instrumental way but have no real subjectivity of their own within the criminal justice process. This arguably depersonalizes the process, to the point that ‘the victim loses his central role in the drama whose focus is on the wrong committed and not the person wronged’.192 Thus, persons originally and directly victimized and who are, in principle, the most interested in the prosecution and sentencing of perpetrators for crimes inflicted on them, are relegated to a background position.

Retributive justice exponents justify the limited role assigned to victims in criminal justice as a sort of control mechanism to avoid arbitrariness in the process. The victims’ desire for revenge, but also, potentially, their capacity for forgiveness, should not play a role

188 Andrew Ashworth, Principles of Criminal Law (Oxford; New York: Oxford University Press, 2009) at 16. 189 Randy E Barnett, “Restitution: A New Paradigm of Criminal Justice” (1977) 87:4 Ethics 279 at 284. 190 Ibid. 191 Michael Moore, “Victims and Retribution: A Reply to Professor Fletcher” (1999) 3:1 Buffalo Criminal Law Review Buffalo Criminal Law Review 65 at 72, 73. 192 Cragg, supra note 184 at 19; Heikkila, supra note 183 at 29; B N McGonigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings (Utrecht University, 2011) at 39.

96 amongst other justifications.193 Critics of the retributive justice framework have, as a result, highlighted the weak role played by victims, in stating that: i) the state and the offender are the key elements; (ii) the victims are ignored; (iii) the victims lack information (iv) the victims’ ‘truth’ remains secondary; (v) reparations are rare and; (vi) the victims’ suffering is ignored.194

The exclusion of victims from the criminal justice process led to significant frustrations in some criminal justice systems, notably in North America. This, in turn, spurred the emergence of the so-called victims’ movement in the 1960s and 1970s, which made a lasting impact in how we approach criminal justice. This is particularly evident in the rise of victimology, a more victim-centric offshoot of criminology.195 Victimology focuses on the role of the victim in the criminal incident and criminal proceedings, and calls for increased rights for victims of crimes.196 Victimology essentially argues that the crime victim has been neglected as a relevant actor in criminal justice. Key victimologists, including Mendelsohn197,

Shapland198, Elias199 and Walklate200 argue that victims need to be invited back into criminal

193 Von Hirsch, Ashworth, & Roberts, supra note 181; Moore, supra note 191.Under this approach, victims’ participation in criminal proceedings has to be assessed paying very close attention to the accused’s right to a fair trial. See Donald J Hall, “Victims’ Voices in Criminal Court: The Need for Restraint” (1990) 28 Am Crim L Rev 233.Some retributivists have argued for the need to accord a procedural role to the victims so that doing justice to them becomes part of retributive punishment see George P Fletcher, “The Place of Victims in the Theory of Retribution” (1999) 3:1 Buffalo Criminal Law Review Buffalo Criminal Law Review 51 at 55. However, those scholars have not addressed the unfolding impact of this victims’ enhanced role in terms of impartiality. McGonigle Leyh, supra note 192 at 41. 194 Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (Herald press, 1990) at 212–213. Howard Zehr, Retributive Justice, Restorative Justice. New Perspectives on Crime and Justice 15 (MCC Canada Victim Offender Ministries Program and the MCC U.S. Office on Crime and Justice, Occasional Paper No. 4, Sept., 1985) 18. 195 Mendelson applied the term ‘victimology’ to argue for an independent discipline, tracing this term back to 1937. See Benjamin Mendelsohn, “The Origin of the Doctrine of Victimology” (1963) 3:3 Excerpta criminologica 239. 196 See Hans von Hentig, The Criminal & his Victim; Studies in the Sociobiology of Crime. ([Hamden, Conn.: Archon Books, 1967). 197 Mendelsohn, supra note 195. 198 Joanna Shapland, “Victims, The Criminal Justice System and Compensation” (1984) 24:2 The British Journal of Criminology 131; Joanna Shapland, “Victim Assistance and The Criminal Justice System: The Victim’s Perspective” in Ezzat A Fattah, ed, From Crime Policy to Victim Policy (Springer, 1986) 218; Joanna Shapland, “Victims and The Criminal Justice System” in Ezzat A Fattah, ed, From Crime Policy to Victim Policy (Springer, 1986) 210. 199 Robert Elias, Victims of the System: Crime Victims and Compensation in American Politics and Criminal Justice (New Brunswick, N.J.: Transaction Books, 1983); Robert Elias, The Politics of Victimization: Victims,

97 justice processes. Victimology, thus contributed and expanded some of the intellectual foundations for a greater taking into account of victims in the criminal justice system.

While the victims’ movement of the 70s spurred discussions on the role of victims in the criminal process, the origins of the field of victimology can be traced back to the end of the Second World War, as part of the interest in how the victim might explain criminal behavior. Mendelsohn applied the term ‘victimology’ to argue in favour of a separate discipline from criminology in his 1937 study.201 His analysis focused on a classification of victims to understand the extent to which different types of victims contributed to the criminal incident.202 Von Hentig similarly argued for a reciprocal relationship between offender and victim. His thesis stated that the role of the victim, both in the criminal incident and justice process, calls for increased rights for victims of crime.203 Ellenberger also posited for a relationship in which the victim was connected to the offender.204 Central to this notion was the idea that victims should have a greater responsibility in regulating crime, including factors such as their own welfare and safety against the risk of crime.

Young argues that the rise of the victimology discipline not only spawned academic debate as to the role of the victim in relation to crime, but also gave rise to an increased concern by governments over victims in the criminal justice system.205 Starting in America, with the Commission on Law Enforcement and the Administration of Justice in 1966, victimology led to an increased awareness of the heightened cost of victimization in society.

This included the reluctance of victims to report crimes due to a loss of faith in the policing

Victimology, and Human Rights (New York: Oxford University Press, 1986); Robert Elias, Victims Still: The Political Manipulation of Crime Victims (Newbury Park, Calif.: Sage Publications, 1993). 200 Sandra Walklate, Victimology: The Victim and the Criminal Justice Process (London: Unwin Hyman, 1989). 201 Mendelsohn, supra note 195. 202 Ibid. 203 Hentig, supra note 196. 204 Henri Ellenberger, “Relations Psychologiques Entre le Criminel et sa Victime” (1954) 8:1 Revue internationale de criminologie et de police technique 103. 205 Marlene Young, “Victim Rights and Services: A Modern Saga” (1997) 2 Victims of crime.

98 and prosecution process.206 This movement thus encouraged victimization surveys to report the attitudes of victims to government agencies concerned with the management of crime - more specifically, unreported crimes. In turn, this caught the attention of scholars who questioned why victims were disillusioned with the criminal justice system.207

Studies conducted in the 1970s, mainly in England and America, demonstrated a

“crisis” of the victim. These studies focused on the lack of reporting cases of rape and sexual assault, the impact of crime on the elderly, and the rise of battered woman’s syndrome. They also increased the awareness of the impact of crime on the victim as a person removed from the justice system. A benefit of the study of victimology was the realization that victims had an intrinsic relationship to the offender in roles such as a husband, wife, friend, lover and stranger, especially in the context of crimes such rape and sexual assault.208 This led to changes in prosecutorial practices, and included notifying victims on the status of the prosecution of suspected offenders, as well as increased support and aid to victims acting as witnesses.209

Feminist concerns also catalyzed the victims’ right movement. Alongside homicide and assaults, rape and domestic violence constituted the first organized victims groups of the

1970s.210 Women’s movements first focused on the victims of domestic violence and sexual assault.211 Rape crisis groups were set as an organized support structure based on the feminist

206 Ibid. 207 Ibid. 208 Nils Christie, “Conflicts as property” (1977) 17:1 British journal of Criminology 1; Jo-Anne M Wemmers, Victims in the Criminal Justice System (Kugler Publications, 1996). 209 Joanna Shapland & Emma Bell, “\Victims in the Magistrates’ Courts and Crown Court” (1998) Criminal Law Review 537. 210 Malcolm Feeley, “The Decline of Women in the Criminal Process: a Comparative History” (1994) 15 Criminal Justice History 235. 211 Charles F Baird & Elizabeth E McGinn, “Re-Victimizing the Victim: How Prosecutorial and Judicial Discretion Are Being Exercised to Silence Victims Who Oppose Capital Punishment” (2004) 15 Stan L & Pol’y Rev 447.

99 ideals of the emancipation of women from the oppression of male hegemony.212 Catering for the emotional and security needs of abused women, these organizations introduced a feminist agenda for the protection of women at risk firmly into the victims’ movement.

Despite these various influences, criminal justice systems have been slow to change fundamentally. There has been a tendency, for example, to outsource the handling of victims to social services or private organizations catering to the needs of abused women. For example, state agencies such as the United Kingdom Home Office, have recognized how female victims of violence can be accommodated by alternative rights agencies.213 The reason underlying the search for non-judicial mechanisms in cases of domestic violence is explained by the Home Office as follows: ‘the interests of the victim are important; they cannot however, be the final word on the subject of prosecution’.214 Although this may be a valid proposition, it shows the limits of introducing a victim-orientated approach in the criminal justice system, especially in a context where the interests of the victim and the accused are seen as a zero sum game.

Thus, feminists continue to argue that the primacy given to the state inhibits the ability of a women, who have been the victim of sexual violence, to have access to the criminal judicial process. Ironically, it is at times the substantive law that has changed more noticeably than the criminal trial itself. For example, the development of the law of provocation suggests that a feminist reading of victim rights has influenced the common law doctrine, such that the provocative conduct of abusive spouses, for instance, need no longer be imminent to the retaliation of the woman.215 Though the victims’ right movement was able

212 See Rosemary Gartner & Ross Macmillan, “The Effect of Victim-Offender Relationship on Reporting Crimes of Violence Against Women” (1995) 37 Canadian J Criminology 393. 213 Home Office, Domestic Violence: Break the Chain – Multi-Agency Guidance for Addressing Domestic Violence (Home Office UK 2001) 8. 214 Home Office, Domestic Violence: Break the Chain – Multi-Agency Guidance for Addressing Domestic Violence (Home Office UK 2001) 10. 215 Chhay v R (1992) 72 A Crim R 1; Osland v The Queen (1998) 197 CLR 316.

100 to influence the development of the common law in this regard, a major limitation is the victims’ lack of control over the prosecution and the trial process. The victim of provocative conduct gains no real control over the proceedings, despite certain changed procedures recognizing the emotional context of criminal proceedings for rape victims.

How these developments translate internationally is hardly obvious. The victims’ rights movement is largely viewed as a domestic movement, and one that is more present in some countries than in others. The tools of criminology and victimology encounter natural challenges when trying to embed themselves within the international realm. International law, as we will see, has its own ambivalence towards victims. Occasionally quite willing to invoke the victim as a rhetorical figure and increasingly interested in the status of individuals as victims of violations of human rights, international law has traditionally also been state rather than victim centric. The manner in which victims were viewed in international law traditionally was quite indirect. An example individuals whose interests might be affected because the rights of their state had been violated. Moreover, except for the relatively recent creation of international human rights bodies, individuals typically do not have standing before international tribunals.

Perhaps strangely, international criminal law was, for a long time, not particularly interested in victims. It seems that, by analogy with the domestic criminal law explored above, international criminal justice was rendered for the collective. In other words, being more orientated toward humanity, rather than for a particular victim of a crime. However, due to serious issues surronding legitimacy and authority, a number of problems emerged. One such problem was the difficulty in claiming the existence of a strong international community, let alone a state, backing the international criminal law system. Thus, international criminal justice has drifted gradually towards more interest in victims. This it did despite the reluctance and skepticism of international criminal lawyers, who argued that

101 there was a risk of potential bias toward the accused, and unnecessary elongation of criminal trials.

However, the internationalization of a pro-victim agenda had begun in the 1980s and was increasingly mixed with human rights considerations. Based on the growth of restorative justice principles in the domestic arena, most notably in North America but also in Australia and New Zealand, in 2002, the UN prepared The Basic Principles on the Use of Restorative

Justice Programmes in Criminal Matters216 This led to the publishing of the Handbook on

Restorative Justice in 2006. Restorative Justice principles have featured in several UN resolutions and international instruments since.217 They have translated ideas that had first been expressed domestically to the international stage. These principles must be seen in light of the developments made in international human rights law and the laws of war, as they have increasingly influenced the use of state machinery to benefit victims of certain international law violations.

4.2.4. The Road to Rome – Establishing the International Criminal Court

and the significance of the ‘Turn to Victims’

The invisibility of victims had led to intense advocacy work from NGOs and several countries who argued for the inclusion of victims participation in the proceedings of the

International Criminal Court (ICC). Debates on the rights of victims to contribute to international criminal justice have now taken center stage in recent years. Many observers now view victim participation as essential to the legitimacy and effectiveness of international criminal proceedings.218

216 See United Nations Economic and Social Council, ‘UN Economic and Social Council Resolution 2002/12: Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters’, UN Doc. E/RES/2002/12, 24 July 2002. 217 Ibid. 218 REDRESS, Representing Victims before the ICC: Recommendations on the Legal Representative System (London: REDRESS, April 2015); ICC Assembly of States Parties, Report of the Bureau on Victims and Affected Communities and the Trust Fund for Victims and Reparations, ICC-ASP/11/ 32 (23 October 2012),

102 Nonetheless, it remains an interesting intellectual puzzle as to why victims suddenly assumed a much more central place in the wake of the ICC’s creation. Several factors might account for this shift. First, the sense of actual victimization and victimhood emerged over time and within key civil society constituencies, which militated for their recognition. The irony is that the neglect of victims by the ad hoc tribunals may have made them aware of a certain community of fate. In a way, it is international criminal law itself that designated certain individuals or collectives as victims and in the process may have led them to think of themselves as such, even as they could increasingly measure the extent to which that quality gave them few rights. In that respect, the enthusiastic support by some victim groups of the ad hoc international criminal tribunals gradually gave way to a growing frustration with their performance generally but also much more specifically their inability to think of themselves as working for victims. The ‘lost decade’ when it comes to victim rights before international criminal tribunals, led various civil society groups and states to consider that something more was needed to be done.

Second, the indebtedness of key criminal justice moments toward the mobilization of the victims became increasingly recognized. In a transitional justice context, for example, attempts to build democratic legitimacy were often coupled by a willingness to confront and address the transgressions of the past, most often spearheaded by the victims.219 Examples are seen with the demise of military dictatorship in Latin America, the collapse of Communist regimes in the Soviet Union and in Eastern Europe, and the end of Apartheid in South

par. 24; Peter Dixon & Chris Tenove, “International Criminal Justice as a Transnational Field: Rules, Authority and Victims” (2013) 7:3 International Journal of Transitional Justice 393 at 408. 219 Ruti G. Teitel argues that transitional justice offers a way to reconstitute the collective – across potentially divisive racial, ethnic, and religious lines – that is grounded in a political identity that arises from the society’s particular legacies of fear and injustice. While this is necessarily based on an evolving critical self- understanding, it nonetheless draws on a juridical discourse of rights and responsibilities that offers both a transcendent normative vision and a pragmatic course of action. Ruti G Teitel, Transitional Justice (Oxford University Press, 2002) at 225.

103 Africa.220 In light of this narrative, victimhood often resurfaced as a way to demand accountability and reparations (both symbolic and material) under various international treaties. A better understanding is that civil society was fundamentally an ally in the struggle against impunity, and undoubtedly made it harder to ignore some of its key demands.

Third and simultaneously, the recipe that had served previously, being that international criminal tribunals were established to repress crimes in order to protect society and prevent war, increasingly began being viewed as shallow and limited. This was especially true in a context where none of the traditional goals of criminal repression, being retribution, deterrence, or even rehabilitation, could be transposed internationally or adapted to major international criminals. At least the ad hoc international criminal tribunals could rest on a Security Council legitimacy, including with what that meant in terms of potential recourse to force. By contrast, the ICC was made up merely of states that were party to the

Rome Statute, and would thus have had much more difficulty claiming that it represented the broader international public interest. The ICC was bound to be reminded that its function did not lie within a state even less so, in fact, than the already weak ICTY and ICTR. This at times created a crisis of legitimacy that would have threatened to engulf the Court, were it not for the possibility of turning towards victims in part as a redeeming, moralizing and humanizing motif in the court’s existence. The court could ill-afford to be merely the Court of the states parties to the Rome Statute, or pretend that it spoke for a larger humanity.

Tuning to victims certainly made sense from the perspective of grounding the court in the almost unshakeable legitimacy of victims of international crimes.

In short, the shift made in international criminal law toward greater victim recognition and centrality resulted from confluence of forces, which included the success of the domestic victims’ rights movements and the growth of human rights norms that promoted a victim-

220 See Mahmood Mamdani, “Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC)” (2002) 32:3 diacritics 33.

104 oriented justice. It also included an acknowledgment of the failures of ICTY and ICTR in fully taking the experiences and views of victims into account. From the late 1980s, increasing criticisms by academics and victim support organizations placed emphasis on the marginalization of victims within criminal justice processes, and pushed for victims to be the focus of intense policy interest, both at the national and international level.

Nonetheless, early drafts for an ICC Statute barely mentioned victims, except rhetorically. The International Law Commission draft, for example, did not confer any legal status on the victims.221 It took significant pressure from civil society groups who, by the time of the Rome statute, had come to make victim participation one of the key priorities for the question on acquiring status. Opening up the Rome Conference, Kofi Annan insisted that “the aim must be to create a statute that would be accepted and implemented by as many States as possible. But the overriding interest must be that of the victims and of the international community as a whole”222. This suggested a duality of interests to which the victims were nonetheless central. Many delegations emphasized the importance of doing justice, to both past and potential victims, in line with the court’s remedial and deterrent function. Many delegations emphasized the importance of protecting victims who had testified but were otherwise vague.

The increasing growing construct of victims as active participants in the international criminal justice project came to the forefront during the negotiations of the Rome Statute, where NGOs and states, as well as common law and civil law traditions, intensely confronted each other over the issue of a new mandate for the inclusion of victims at the ICC. The proper legal role for victims at the ICC was heatedly debated during the negotiations due to

221 International Law Commission, Draft Statute for an International Criminal Court with commentaries, 22 July 1994 available in United Nations International Law Commission, Yearbook of the International Law Commission (United Nations Publications, 2000). 222 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/SR.1

105 competing perspectives that were reflected in different legal traditions. Lawyers from common-law traditions believed that the right to a fair trial would be undermined if victims become party to the proceedings alongside the prosecution and defence. It was stressed that the interests of the victims as injured parties were represented by the Prosecutor who would have the sole responsibility to demand accountability from the accused. Victims could also separately and privately sue the accused for monetary damages. Although this made sense from a common law perspective, it did also sound unrealistic internationally. After all, where would victims ‘sue’ perpetrators? Moreover, would this not inevitably be time and resource consuming, at least to the extent that a guilty verdict that met a higher threshold of proof was already available?

By contrast, lawyers from the civil law tradition were in favor of the victims’ involvements in criminal proceedings. In the French model, for example, victims could constitute themselves as “parties civiles” in the trial and obtain damages following a guilty verdict. Moreover, they are to be consulted and informed by the Prosecutor at regular intervals. Continental lawyers were thus more prone to argue that the public law action of the state prosecutor, and the private law actions of the victim to seek monetary damages from the accused, could be conjoined in single criminal trial.

While “victims” and victim participations are now the defining feature of the ICC, it was almost entirely excluded from the Rome Statute, as will be fully discussed in the next chapter. One draft anticipated that “victims of crimes, or their relatives, be authorized to trigger the jurisdiction of the court” if certain jurisdictional conditions were met223. This proposal never made its way to the final statute. Moreover, victims were discussed in the run up to Rome conference, in at least one clear way, yet did not make its way to the final Rome

Statute. It had been argued in the “Korean proposal” that the court should have jurisdiction

223 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, A/50/22, p. 26.

106 where the victims of a crime, within its jurisdiction, had the nationality of a state party.224

This would have introduced a crucial point of jurisdictional recognition between the linkage of a victim’s need for justice and a key ground for jurisdiction. That possibility, however, was eventually discarded in Rome, perhaps because passive personality jurisdiction in international criminal law has always been a relatively weak basis, and because it is crucial to establish the court’s jurisdiction on only the firmest of grounds.

The success of some other proposals, whilse being controversial, were more evident.

In anticipating the negotiation of the Rome Statute, France and New Zealand submitted a draft language on the ‘rights of victims,’ which included a provision on increasing the participation of victims in court proceedings. This proposal would present victims as active agents in the international criminal justice process. The possibility was met by stiff opposition by a number of powerful delegations, including those of Australia, the United

Kingdom, and the United States. The delegations argued that the prosecutor should be the sole voice of victims225 and that victims should therefore maintain their passivity and rely on the prosecutor’s agency in presenting their stories, experiences and views. The construction of victims as active participants in international criminal proceedings raised red flags for many diplomats and lawyers who envisaged a myriad of political and legal complications in the transformation of the victims’ status in the international criminal justice project. For instance, many lawyers and scholars argued that not only would it consume scarce resources and slow down judicial proceedings, but it would also strike at the normative heart of international criminal justice by threatening to undermine the rights of defendants to a fair and impartial trial.

224 Carsten Stahn, The Law and Practice of the International Criminal Court (Oxford University Press, 2015) at 142. 225 Fanny Benedetti, Karine Bonneau & John Washburn, Negotiating the International Criminal Court: New York to Rome, 1994-1998 (Martinus Nijhoff Publishers, 2013) at 153; M Cherif Bassiouni, “Negotiating the Treaty of Rome on the Establishment of an International Criminal Court” (1999) 32 Cornell Int’l LJ 443 at 443.

107 Nonetheless, victims did make their way eventually into the Rome Statute in three remarkable ways. First, paragraph 2 of the Preamble states that “during this century millions of children, women, and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.” In that solemn paragraph alone, a link is clearly forged, perhaps for the first time, yet with a high degree of clarity, between actual, concrete victims and the figurative victim that is bound by ‘humanity.’

Second and more importantly, it could be argued that the transformation of victims from passive agents to active agents in the international criminal justice project, was achieved through the adoption of Article 68 of the ICC Statute at the Rome Diplomatic Conference, which stated that:

‘Where the personal interests of victims are affected, the Court shall permit their

views and concerns to be presented and considered at stages of the proceedings

determined to be appropriate by the Court in a manner which is not prejudicial to or

inconsistent with the rights of the accused and a fair and impartial trial. Such views

and concerns may be presented by the legal representatives of the victims where the

Court considers it appropriate, in accordance with the Rules of Procedure and

Evidence.’

This article is perhaps one in which elements of both the civil law and common law are most evidently amalgamated.226

Third, the ICC included a first-of-its-kind reparations mandate. During the negotiations and drafting of the Rome Statute, most civil society organizations who drew on international human rights law advocated for reparations for the victims of international

226 For example, the investigation stage employs procedures from the common and civil law traditions, while the trial phase more closely tracks common law procedures, and the rules of evidence and appeals follow civil law traditions. See Kevin Heller, “The Rome Statute of the International Criminal Court” in The Handbook of Comparative Criminal Law (Stanford University Press, 2010) 593.

108 crimes.227 The issue of reparations among states was contentious, as some state representatives argued that the reparation process might complicate or distract the ICC from prosecuting perpetrators. Also, a more controversial point was whether the ICC could issue reparation orders against states, as well as against convicted individuals.228 Nonetheless,

Article 75 of the Rome Statute entrenched the idea of reparative justice against the individual perpetrators of violations, which has now become a dimension of international criminal justice. Article 75(1) of the Rome Statute mandates the court to:

“…establish principles relating to reparations to, or in respect of, victims, including

restitution, compensation and rehabilitation. On this basis, in its decision the Court

may, either upon request or on its own motion in exceptional circumstances,

determine the scope and extent of any damage, loss and injury to, or in respect of,

victims and will state the principles on which it is acting.”

As can be seen, this was an open-ended provision which left many things unresolved.

However, it was also a strong signal demonstrating that a reparations component would form a central part of the court’s mandate.

With the ratification of the Rome Statute of the ICC and the establishment of the court, victims achieved an unprecedented opportunity to galvanize actions against the perpetrators of international crimes, and the ability to actively contribute to the proceedings at the court.

The following chapters will explore important questions on the inclusion of victim participation in the ICC proceedings. This includes the scope of the victim’s interests in the proceedings, the content of the victim’s participatory rights, and more importantly, the rhetoric emerging from the court on victims and victimhood.

227 They could draw both on the UNGA’s Basic Principles of Justice for Victims of Crime (1985) and text of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, which would not be adopted by the UNGA until 2005 but which already existed in draft form during the Rome Statute negotiations. 228 Christian PJ Muttukumaru, “Reparations for victims.” (1999) Essays on the Rome Statute of the International criminal court-volume I 303.

109 4.3. Conclusion

The slow rise of the victim in international criminal justice is hardly a foregone conclusion. Although a series of developments endogenous to international criminal tribunals contributed to the gradual crystallization of the role for victims within international tribunals.

Yet, these developments were prepared in a manner both distinct and inclusive of the slow accretion of attention being paid to victims in international law and human rights more generally. None of these developments were particularly oriented towards the specific role that victims should play in the criminal context. Instead, just as international criminal law is often presented as the fusion between international law and (domestic) criminal law, the rise of the victim should be seen as a combination of international and domestic factors. In that respect, the increasing role of victims, in various domestic settings, clearly brought to bear several ideas about victim participation and reparations that had gained increasing currency.

This, at least supported the case that, although potentially problematic and complex, the incorporation of a victim orientation in the midst of criminal justice institutions was not an insuperable challenge. The experience of the ad hoc international criminal tribunals had, as negative as it were, shown the limits of not taking victims into account at all, both in terms of its broad legitimacy and day-to-day capacity to operate. Human rights NGOs that supported the ICC helped combine these distinct lessons into one aggregate regime: a victim’s human right to an effective remedy and reparations; the changing nature of criminal justice transnationally; and international criminal tribunals’ own, distinct needs in terms of victim support and participation.

110 Chapter 5: ‘Victims’ at the International Criminal Court

5.1. Introduction

The quest to repair past ‘injuries’ suffered by victims, and the desire to ‘do justice” to victims of atrocities, led to a rise innovative international criminal legal developments, as typified by the International Criminal Court’s (“ICC”) mandate on participation, protection and reparations for victims. At the same time, while laudable, the desire to do justice for victims led to the expansion and contestation of international criminal law at local, national and international levels and increased the challenges that international criminal tribunals face.

This chapter surveys some of these developments, and emphasizes the degree to which some were unanticipated. It will also examine how the open victim mandate of the ICC created a constant challenge for the court between balancing broad intentions and practicalities.

It has been fifteen years since the Rome Statute came into force and victims continue to arrive at the ICC trial chamber to participate. Some give heart-chilling testimonies, some arrive as civil parties and some attend the trials as spectators. There have also been key developments in the activities of the ICC, such as the conviction of Thomas Lubanga for conscripting and enlisting children under the age of fifteen years to participate in hostilities;

Jean-Pierre Bemba and Germain Katanga for war crimes and crimes against humanity; and

Ahmad al-Faqi al-Mahdi for destroying mausoleums and shrines in Timbuktu. The critical question to ask is who is the “victim”229 in the practice and procedure of the ICC, and how is that victim constructed by the ICC?

229 The term ‘victim(s)’ is controversial, since it is associated with the image of a ‘powerless, helpless innocent’ who suffers from catastrophic events but lacks agency him or herself; see Makau Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press, 2008). In the specific context of the ICC, Adam Branch notes that the ICC’s model of ‘international human rights advocacy tries to reduce the survivor of violence to a victim’; see Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (Oxford University Press, 2011). ‘Survivor’ may indeed be a more appropriate term. For the purposes of this chapter the term ‘victims’ is used nonetheless, since this is the term used in the Rome Statute and in the 111

The coming into force of the Rome Statute and the establishment of the ICC in 1998 has been hailed as a watershed moment in international criminal law. Victims of atrocities now occupy a central place in international criminal justice theories and practice, and incorporating new rights and protections for victims that they didn’t have in previous international criminal tribunals.230 The Rome Statute has also contributed to a shift in the iconic victim intended to benefit from the regime. This shifted from the soldiers and civilians of the Allied countries at post-war IMTs, to African women and children at the ICC.231 The greater recognition afforded to victims in international criminal law has been referred to as part of a broader “humanization of international law”.232 Nevertheless, the roles and significance of victims, and even the concept of the ‘victim,’ are subject to lively and ongoing debate and policy contestation.

For instance, it has often been simultaneously argued and justified that international criminal trials, truth commissions and restorative justice practices are crucial and are intended to stigmatize perpetrators, foster the rule of law, establish a historical record, restore the dignity of victims, individualize guilt, promote social reconciliation, and deter future human rights violations.233 Justification for international criminal trials lays claim on something beyond the determination of guilt or innocence, somewhat similar to what Martti

discourse of international criminal justice more broadly. (One of the reasons may be that not all ‘victims’ have in fact ‘survived’ international crimes. Rule 85(a) of the ICC’s Rules of Procedure and Evidence defines victims as ‘natural persons who have suffered harm because of the commission of any crime within the jurisdiction of the Court’. Rule 85(b) also provides for recognition of organization or institutions as victims. 230 See, for instance, Yael Danieli, “Massive Trauma and the Healing Role of Reparative Justice” in Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems in Place and Systems in the Making (Martinus Nijhoff Publishers); Benedetti, Bonneau & Washburn, supra note 225; T Markus Funk, Victims’ Rights and Advocacy at the International Criminal Court (Oxford University Press, 2015); Haslam, supra note 168; Godfrey M Musila, Rethinking International Criminal Law: Restorative Justice and the Rights of Victims in the International Criminal Court (LAP LAMBERT Academic Publishing, 2010); Héctor Olásolo, Essays on International Criminal Justice (Bloomsbury Publishing, 2012). 231 See Dixon & Tenove, supra note 218; Ann Sagan, “African criminals/African victims: The institutionalised production of cultural narratives in international criminal law” (2010) 39:1 Millennium-Journal of International Studies 3. 232 Theodor Meron, The Humanization of International Law (Martinus Nijhoff Leiden, 2006). 233 Rama Mani, “Rebuilding an Inclusive Political Community after War” (2005) 36:4 Security Dialogue 511; Rachel Kerr & Eirin Mobekk, Peace and Justice: Seeking Accountability after War (Cambridge, UK: Polity Press, 2007) at 3–4.

112 Koskenniemi calls the ‘symbolic function’ of the criminal trial ‘that enables the community ritually…to become a workable “moral community.”234 Despite this, victims who are the purported beneficiaries are frequently disappointed by the design, implementation and outcomes of these efforts. These apprehensions stem from issues that include the lack of consultations in the decision to initiate international criminal processes, questions surrounding the institutional design, such as the limited role assigned to victims in criminal trials and in truth-seeking processes; the nature and remote location of trials; the constraints placed on ICC’s mandates and capacities; the inadequacy of existing modes of reparation; and the “pyramid effect” of international criminal trial, where although the top perpetrators are prosecuted, the prosecution does not resonate with victims at a grassroots level, who continues to see their direct perpetrators in their day-to-day activities.

Underlining these concerns is the sense that international criminal justice processes may be driven by agendas that are unresponsive to or even at odds with the needs of victims and thus, provide inadequate responses to the varied and complex needs of post-conflict societies.235 Although international criminal justice proceedings attempt to buttress its’ legitimacy by claiming to be victim-centric by punishing perpetrators and promoting a “myth of collective innocence”,236 it has often been seen as external impositions that ride roughshod over the needs and priorities of the individual and community. In fact, it has been stressed that there is no direct link between criminal trials, whether at an international, national, or local and traditional level, and reconciliation.237 Western models of justice, national politics

234 Martti Koskenniemi, “Between Impunity and Show Trials” (2002) 6:1 Max Planck Yearbook of United Nations Law Online 1 at 10. 235 Helena Cobban, Amnesty after Atrocity?: Healing Nations after Genocide and War crimes (Routledge, 2015); Rama Mani, Beyond Retribution : Seeking Justice in the Shadows of War (Cambridge, UK; Malden, MA: Polity Press ; Blackwell Publishers, 2002); Laurel E Fletcher & Harvey M Weinstein, “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation” (2002) 24:3 Human Rights Quarterly 573. 236 Fletcher & Weinstein, supra note 235 at 580. 237 Eric Stover & Harvey M Weinstein, “A Common Objective: A Universe of Alternatives” (2004) My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity.

113 and international legal frameworks are viewed as imposed agendas that only pay lip service to victims’ needs.

This chapter proceeds in five stages. The first part seeks to characterize the ways victims has been carefully constructed in the international criminal justice procedure and practices by the many actors of the ICC. It argues that claims about the victims are not only used to promote the legitimacy of international criminal justice, but are also used by actors to mobilize their authority and to influence decisions within the regime. The second part will explore the limits of justice afforded to victims at the ICC and argues that a major weakness of the international criminal justice project is the ambiguity of the victim. The third part of this chapter will explore the ways in which the victim is figuratively constituted by the many, and more specifically, through the practices of participation in the ICC trials. The fourth part explores the protection mandate of the ICC under Article 68(1) of the Rome Statute. The fifth part examines how victims are constructed in the emerging reparation mandate of the ICC.

Overall, by reflecting on the construction of knowledge on victim, it can be suggested that there exists a contradictory assertion, where the images and reality of the victim does not fit the image constructed by the ICC. This chapter will attempt to map out the existing space within international criminal justice processes for the multiple conceptions of victimhood, and explore how the concept is actively construed, managed and controlled.

5.2. In The Name of The “Victim”?

The Rome Statute of the International Criminal Court, and the creation of the

International Criminal Court, have been widely praised as acts of moral progress in international criminal justice, as they have provided a substantial and global shift from

“justice for humanity” to “justice for victims”. The ethos of this global legal shift was

114 invoked by Prince Zeid Ra'ad Al Hussein of Jordan238 in a speech given to the Assembly of

State Parties to the Rome Statute. Prince Zeid reminded his fellow diplomats of ICC’s founding moment and the sense of moral triumph among its creators:

“The thunderclap applause, the raw emotions of joy and relief, accompanying the final vote on [the Rome Statute] did not come about because we had offered yet more protections to the strong,” he reminded them, but because “the strong would henceforth forfeit voluntarily their protections in respect of the weak, and most particularly the victims…. It was, and still is, the most enlightened step in human history every undertaken.239

During the drafting of the court’s Rules of Procedure and Evidence, the French Justice

Minister, Elisabeth Guigou, also characteristically stated:

The raison d’être of our fight are the victims, those who have suffered and are still

suffering, those who are waiting for us to find and punish their tormentors, to listen to

them and acknowledge their pain and try to mitigate its consequences through fair

reparations. Indeed, the victims are, and must remain at the heart of our

preoccupations. The recognition of their rights and reparation for any damage, loss

or injury to, or in respect of them, are both the reason for and objective of

international criminal justice. If we were tempted to forget that requirement, the

extremely tragic current events would remind us of it.240

Echoing a rhetorical pattern familiar to the ad hoc tribunals, justice for victim rhetoric is frequently advanced by the judges and prosecutors of the ICC to underscore the importance of the work of the ICC. For instance, in 2011 the ICC President, Judge Sang-Hyun Song, gave an address to the UN General Assembly and urged states to “redouble their efforts” to

238 Prince Zeid was the first President of the ASP (2002-2005) and in 2013 became the UN High Commissioner for Human Rights. 239 Assembly of State Parties, 2013b. 240 Opening Speech, at the International Meeting on ‘Access of Victims to the International Criminal Court’, Paris, 27 April 1999, quoted in Haslam, supra note 168 at 320.

115 execute the court’s arrest warrants, as the failure to bring the indicted to justice was “deeply distressing for the victims.”241 He stressed that his meeting with victims left him “deeply moved” and affected by their “cries for relief and justice”.242 The court’s President has also suggested that victims are dependent upon the success of the court in seeking redress for their suffering. He claimed that, ‘we must not let down the countless victims around the world that place their hope in this institution.’243 Also, the Appeal Chamber judges invoked the interests of the victims, as the basis for their decision-making, in rejecting the defendant’s admissibility challenge by stating that:

This object and purpose of the Statute would come to naught, were the said

interpretation of article 17(1) of the Statute, as proposed by the Appellant to

prevail...impunity would persist unchecked and thousands of victims would be denied

justice.244

In pushing for more funding, the ICC President frequently appealed to the Assembly of State

Parties for increased financial support, by making the case that the court deserved funding to fulfill its mandate in providing justice to victims.245 Also, the ICC’s complex victim compensation system, set up through the Trust Fund for Victims (‘TFV’), regularly requested more funding from governments, international organizations, individuals and corporations,246

241 J. S. Song, Address to the United Nations General Assembly, 26 October 2011, at 4, available at www.icc- cpi.int/NR/rdonlyres/D5CA5004-362D-4C37-86D8- 01B6F6E7642B/283903/11026ICCPresidentspeechtoUNGAENG.pdf (accessed November 8, 2016) 242 Ibid. 243 Press Release, ICC Launches Commemorations for 17 July – International Criminal Justice Day, 6 July 2012, available at https://www.icc-cpi.int/Pages/item.aspx?name=pr822 (accessed November 9, 2016) 244 ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC- 01/04-01/07-1497, Appeals Chamber, 25 September 2009, para. 79. 245 See, e.g., J. S. Song, Remarks to the 18th Diplomatic Briefing, The Hague, 26 April 2010, at 3, available at www.icc-cpi.int/NR/rdonlyres/CA355D60-EC32-467A-8CA6- F7FA93D86C0B/281846/RemarksPresidentEN.pdf (accessed November 9, 2016) where ICC President Judge Sang-Hyun Song stated: “Victims, affected communities and communities under threat of future crimes should be the primary beneficiaries of the work of the Court and the entire Rome Statute system.” 246 Regulations of the Trust Fund for Victims, para. 21(a), Dec. 3, 2005, ICC-ASP/4/Res.3, available at https://www.icc-cpi.int/NR/rdonlyres/0CE5967F-EADC-44C9-8CCA- 7A7E9AC89C30/140126/ICCASP432Res3_English.pdf (accessed November 9, 2016).

116 to provide for deserving victims. Furthermore, they frequently highlighted the central role they played in the international criminal justice project.247 Although slightly independent from the ICC, the TFV promoted itself through a mixture of pragmatism, an appeal to emotions,248 and the power of appeals to support “victims”, as a way of promoting the moral legitimacy of its general assistance mandate.

The first ICC Prosecutor, Luis Ocampo, also emphasized the importance of victims to the work of international criminal justice, contending that ‘my mandate is justice, justice for the victims.’249 While addressing the UN Security Council in 2012, Luis Ocampo reported the lack of progress on cases, including those against Sudanese President, Omar Al-Bashir

Bashir, and other top officials. He further argued for state action to ensure arrests, and stating that, with the arrests “the victims will receive a clear message: they are not ignored.”250

The current Prosecutor, Fatou Bensouda , continues this rhetoric of justice for victims.

She explained that her role “is to investigate and prosecute those most responsible for the world’s gravest crimes, where no-one else is doing justice for the victims.”251 At a press conference in one of the situation countries, she claimed that she had opened investigations in

247 See, e.g. Ten Years of International Criminal Court: A Focus on Victims, Tallinn, Estonia, 10 September 2012, Keynote Speech Ms. Elisabeth Rehn, Chair of the Board of Directors of the Trust Fund for Victims, 10 September 2012, available at www.trustfundforvictims.org/sites/default/files/media_library/documents/pdf/Speech_ER_Tallinn_Sept_2012.p df (accessed November 9, 2016) 248 The logic of emotion as one of the natural orientations of international criminal justice is highlighted in Leslie Vinjamuri & Jack Snyder, “Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice” (2004) 7 Annu Rev Polit Sci 345. 249 See, e.g., L. Moreno-Ocampo, Prosecutor of the ICC, Seventh Diplomatic Briefing, Brussels, 29 June 2006, at 8, available at https://www.icc-cpi.int/NR/rdonlyres/BD7174D4-6BBF-4A26-BB06- 9509E195C29E/278529/DB7St_English.pdf (accessed November 8, 2016) (“At every stage of the judicial process, the Office [of the Prosecutor] will consult with the relevant victims and take their interests into account.”); L. Moreno-Ocampo, Prosecutor of the ICC, 18th Diplomatic Briefing, The Hague, 26 April 2010, at 2, available at www.icc-cpi.int/NR/rdonlyres/CA355D60-EC32-467A-8CA6- F7FA93D86C0B/281862/100426LMOspeechdiplomaticbriefing_final.pdf (accessed November 8, 2016) 250 L. Moreno-Ocampo, Prosecutor of the ICC, Press Release, Statement to the United Nations Security Council on the Situation in Darfur UNSCR 1593 (2005), 5 June 2012, at 4, available at www.icc- cpi.int/NR/rdonlyres/CBAD6E54-6C8D-4F43-BE64-74A91C49275D/0/StatementUNSCdarfur5June2011.pdf (accessed November 9, 2016) 251 ICC Press Briefing, Nairobi, Statement by the Prosecutor of the International Criminal Court Mrs. Fatou Bensouda, 22 October 2012, at 3, available at www.icc- cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20st atements/statement/Pages/otpstatement221012.aspx (accessed November 9, 2016)

117 that particular country ‘for the victims – to give them a voice’, and added that, ‘the sole raison d’être of the ICC’s activities in Côte d’Ivoire is the victims and the justice they deserve.’252 She continued with the rhetoric of justice for victims at the recently concluded

15th Session of the Assembly of States Parties held at The Hague between 16 to 24 November

2016.

The rhetoric of justice for victims has commonly been used to promote international criminal justice in political speeches, NGO reports and other forms of advocacy.253 For instance, annual reports to the UNGA and UNSC by the Presidents of the ICTY and ICTR frequently refer to the tribunals’ mandates as providing justice for victims.254 In one such report, the ICTY President commented on the need to improve tribunal outreach in order to address the gaps that geographical distance could create “between justice and its beneficiaries, [being the] victims of the conflict.”255 The Coalition for the International

Criminal Court, a network of over 2,500 NGOs, regularly called for state governments to join

252 ICC-OTP, Statement to the Press by the Prosecutor of the International Criminal Court (Abidjan, Côte d’Ivoire, 20 July 2013) available at https://www.icc-cpi.int/iccdocs/PIDS/wu/ED181_ENG.pdf (accessed November 9, 2016) 253 For others who make this argument, see Laurel E Fletcher, “Refracted Justice: The Imagined Victim and the International Criminal Court” (2014) Contested Justice: The Politics and Practice of International Criminal Court Interventions (Ed De Vos, Kendall, Stahn, Cambridge University Press, 2014, Forthcoming); Susan F Hirsch, “The Victim Deserving of Global Justice: Power, Caution and Recovering Individuals” (2010) Mirrors of Justice: Law and Power in the Post-Cold War Era 149; Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement (Routledge, 2006); Sara Kendall & Sarah Nouwen, “Representational practices at the International Criminal Court: The gap between juridified and abstract victimhood” (2013) 76 Law & Contemp Probs 235; McEvoy & McConnachie, supra note 31; Frédéric Mégret, “In Whose Name? the ICC and the Search for Constituency” in Christian M de Vos, Sara Kendall & Carsten Stahn, eds, Contested justice : the politics and practice of International Criminal Court interventions (2015). 254 For an extensive list, see Fletcher, supra note 253. 255 ICTY President. (1999). Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Presented to the UN General Assembly and UN Security Council on 25 August 1999. (UN Doc. No. A/54/187333– S/1999/846.) Available at http://www.icty.org/x/file/About/ReportsandPublications/AnnualReports/annual_report_1999_en.pdf (accessed December 27, 2015)

118 or support the ICC to promote justice for victims. The Human Rights Watch proclaimed that

“victims and affected communities are the first among the [ICC’s] many constituencies.”256

These claims about victims are not only used to promote the legitimacy of international criminal justice, but are also used by various actors to mobilize their authority and to influence decisions within the regime. For instance, state representatives are able to gain recognition or authority with civil society, or other state actors, by being seen as “pro- victim.” This is achieved by either engaging with the victims or making claims on their behalf.257 State officials sometimes invoke victims when challenging the political authority of other governments, using the existence of victims of international crimes to argue that another government has failed in its basic obligation to protect its citizens.258

The staff of international criminal tribunals frequently make claims of authority for themselves or their institutions by invoking victims. For instance, the prosecutors of all six- existing international criminal tribunals claimed, in a joint statement, that they would seek

“the expeditious and effective completion of our mandates, on behalf of the victims in the affected communities that we serve.”259

Finally, civil society organizations frequently claim authority by invoking victims.

Unlike state governments they cannot make claims to speak for state populations, but many do nonetheless claim representative authority on behalf of subnational and transnational constituencies.260 Examples include the Mothers of Srebrenica Association, an NGO representing approximately 6,000 surviving relatives of men killed in Srebrenica, Bosnia, in

256 Dicker, Richard, and Elizabeth Evanson. (2012). "Letter to Prosecutor-Elect Fatou Bensouda: Priorities for the New International Criminal Court Prosecutor." New York: Human Rights Watch. Available at http://www.hrw.org/news/2012/06/08/icc-letter-prosecutorelect-fatou-bensouda (accessed December 27, 2015) 257 Dixon & Tenove, supra note 218 at 405. 258 For instance, when US Ambassador Samantha Power pushed the UNSC to refer crimes in Syria to the ICC, she spoke of “victims of the Assad regime’s industrial killing machine” and she arranged to have a Syrian victim stand up in the UNSC gallery to represent those who were being denied justice. 259 Special Court for Sierra Leone, 2011. 260 Fletcher, supra note 253; Glasius, supra note 253; Emily Haslam & Rod Edmunds, “Common Legal Representation at the International Criminal Court: More Symbolic than Real?” (2012) 12:5 International Criminal Law Review 871; Kendall S. & Nouwen S., supra note 2.

119 1995, and the Acholi Religious Leaders Peace Initiative, an association of religious and traditional leaders, who claim to represent victims and affected communities in northern

Uganda. Civil society organizations frequently claim expert authority on issues relating to the interests of victims in international criminal justice. This can be seen in the legal and policy submissions made to the ICC by Human Rights Watch, REDRESS, the Women’s Initiatives for Gender Justice, as well as other organizations.261 Finally, civil society actors frequently claim moral authority, both through their commitment to principled positions and the production of moral outrage at the atrocities committed against victims and the suffering that victims endure.

From the above, one can infer that the ‘victim’ has been used to bolster the legitimacy of the normative claims of international criminal justice. It has also furthered the claims of the social actors and their interests in advancing their agendas on the international criminal justice project. However, it is important to note that just because everyone is speaking about and even in the name of victims, however, hardly means by itself that the ICC is a victim- oriented institution.

5.3. Limits of Justice for Victims at the ICC

Despite the problematic construct of victimhood, a central premise of the project is that extreme atrocities affect humanity and it is for the benefit of humanity that the perpetrators of such extremities be prosecuted. While the abstract concept of humanity, or the international community, does not suffer the direct consequences of extreme atrocities, international criminal justice argues that such extreme atrocities are morally wrong and must

261 For examples, see Human Rights Watch, "The Meaning of "the Interests of Justice" in Article 53 of the Rome Statute." New York: Human Rights Watch. Available at http://www.hrw.org/sites/default/files/related_material/2005_ICC_Interests_of_Justice.pdf (Accessed 27 December 2015); REDRESS. (2012). The Participation of Victims in International Criminal Court Proceedings: A Review of the Practice and Consideration of Options for the Future. London: REDRESS; Women's Initiatives for Gender Justice, Situation in the DRC, Prosecutor V. Thomas Lubanga Dyilo: Observations of the Women’s Initiatives for Gender Justice on Reparations. Trial Chamber I, International Criminal Court. Doc ICC-01/04- 01/06. 10 May 2012.

120 be punished to serve as a deterrent, to communicate a message and to maintain the international rule of law.262 A previously discussed, victims are now a “figure” that are central to the legitimacy of international criminal justice.263 Multiple stakeholders, such as civil society organizations, state representatives and the staff of the ICC, frequently lay claim to their knowledge of victims’ needs to justify their actions and authority. However, having these stakeholders own the stories and experiences of victims could lead to a gross misrepresentation of victims’ interests, views and sufferings and, ultimately a secondary form of victimization of victims.

In fact, an enduring concern with the legitimacy of the international criminal justice project, and the functionality of the ICC, is if it promotes justice for victims.264 Commentators in support of international criminal justice frequently argue that victims benefit from international criminal processes. These claims are usually rebuffed by critics who argue that victims are voiceless in these processes, and thus, unable to advance their interests and desires. Instead, the mantra of “justice for victims” is a moral slogan used by states and powerful actors to rob victims of their agency in order to advance their own interests.265 This criticism, among others, has trailed the ICC since its inception, especially considering the

262 Maria Elander, “The Victim’s Address: Expressivism and The Victim at the Extraordinary Chambers in the Courts of Cambodia” (2013) 7:1 International Journal of Transitional Justice 95. 263 Dixon & Tenove, supra note 220; Kendall & Nouwen, supra note 255; Megret, supra note 1; Fletcher, supra note 255.Dixon & Tenove, supra note 218; Kendall & Nouwen, supra note 253; Frederic Megret, “In Whose Name? The ICC and the Search for Constituency” (2004) Whose Name; Fletcher, supra note 253. 264 On the importance of victims to the legitimacy of international criminal justice, see Fletcher, supra note 255; Hirsch, supra note 255; Kendall S. & Nouwen S., supra note 3; Rosalind Shaw, Lars Waldorf & Pierre Hazan, Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford University Press, 2010); McEvoy & McConnachie, supra note 32; Megret, supra note 1; Shaw, Waldorf & Hazan, supra note.Fletcher, supra note 253; Hirsch, supra note 253; Kendall S. & Nouwen S., supra note 2; Rosalind Shaw, Lars Waldorf & Pierre Hazan, Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford University Press, 2010); McEvoy & McConnachie, supra note 31; Megret, supra note 263; Shaw, Waldorf & Hazan, supra note. 265 Jorda & de Hemptinne, supra note 170 at 1389; Adam Branch, “Uganda’s Civil War and the Politics of ICC Intervention” (2007) 21:2 Ethics & International Affairs 179; Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009); Mahmood Mamdani, “Responsibility to Protect or Right to Punish?” (2010) 4:1 Journal of intervention and statebuilding 53; Fletcher, supra note 253; John R Bolton, “The Risks and the Weaknesses of the International Criminal Court from America’s Perspective” (2000) 41 Va J Int’l L 186; Jack Goldsmith, “Liberal Democracy and Cosmopolitan Duty” (2003) Stanford Law Review 1667; Madeline Morris, “The Democratic Dilemma of the International Criminal Court” (2002) 5:2 Buffalo Criminal Law Review 591

121 outbreak of armed conflicts in Syria and the failure of the UN Security Council to refer the

Syrian situation to the ICC. The remaining part of this section briefly traces the arguments on the limits of the ICC to promote “justice for victims,” especially the ICC’s inclusion of victims’ interests and perspectives in key decision-making.

While the inclusion of victims at the ICC has been hailed as a paradigm shift in international criminal justice and has bolstered the the justice mandate of the ICC, the existing model of criminal trials, at both a domestic and international level, certainly does not allow the victims to determine the guilt or punishment of their perpetrators. More relevantly, it does not even make victims into ‘parties’ to the trial. Arguably, by putting important decision-making powers into the hands of victims, international criminal trials would become acts of retaliation. As Olásolo notes, “the history of criminal law and criminal sanctions reflects the struggle to counteract private retaliation.”266

A major underlining factor in international criminal justice is that the guilt or innocence of the perpetrator should be determined fairly and legitimately, outside of the public or victims’ interest in convicting them. For the ICC to discover the truth about war crimes or crimes against humanity and to protect the accused from injustice or false conviction, the accused’s right to fair trial is crucial and central to this discovery mandate.

The right to a fair trial is “part and parcel of the epistemological mechanism for fact finding in criminal proceedings.”267

As stated earlier, determining the ways in which to include victims in the decision- making process, raises the problem of which victims should be included and which should be excluded. The landscape of armed conflicts differs depending on the geographical contexts,

266 Olásolo, supra note 230; John Gardner, “Crime: In Proportion and in Perspective” (1998) Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsch 31. 267 Natalie von Wistinghausen, “Victims as Witnesses: Views from the Defence” in Victims of International Crimes: An Interdisciplinary Discourse (Springer, 2013) 165 at 169.

122 thus the decision-making process would affect different victim constituencies in different ways. As I have argued elsewhere in this thesis, the identity and interests of victims are socially constructed and politically contested.268 The problematic construct of who should count as “victims deserving of global justice” is unavoidable.269 The remainder of this chapter will explore three traditional foci of the victim status under international criminal law - participation, protection, and reparations.

5.4. Victim Participation in the Legal Proceedings at the ICC

No doubt, one of the greatest innovations of the Rome Statute of the ICC, and its

Rules of Procedure and Evidence, is that greater procedural rights are afforded to victims.

The provisions applicable to victim participation have been declared as a ‘high-water mark’270 that place victims at the ‘heart of international criminal justice’.271 For the first time in the history of international criminal justice, victims can now present their views and observations before the court, and have their voices heard.272 Unlike the ICTR and ICTY regime, where victims were limited to the part of witnesses, and did not have participatory roles in their own right, the ICC regime included a role for victims as ‘actors’ in international criminal proceedings,273 and for participants with interests to be represented. At the same time – and this is the crucial difference – it should be borne in mind that being an ‘actor’ is a somewhat ill-defined and ambiguous term. It suggests some form of agency and involvement, but not

268 Haslam & Edmunds, supra note 260; Hirsch, supra note 253; Kendall & Nouwen, supra note 253; Tshepo Madlingozi, “On Transitional Justice Entrepreneurs and The Production of Victims” (2010) 2:2 Journal of Human Rights Practice 208; McEvoy & McConnachie, supra note 31. 269 Hirsch, supra note 253. 270 Chung, supra note 34 at 516. 271 Paolina Massidda & Sarah Pellet, “Role and practice of the Office of Public Counsel for Victims” in The Emerging Practice of the International Criminal Court (Brill, 2008) 691 at 692. 272 International Criminal Court, “Victims” available online at http://www.icc- cpi.int/en_menus/icc/structure%20of%20the%20court/victims/Pages/victims%20and%20witnesses.aspx (accessed November 28, 2016). 273 ‘The Rome Statute established victims as actors of international justice.’ Luis Moreno-Ocampo, Statement at the Review Conference – General Debate, Kampala, 31 May 2010, http://www.icc- cpi.int/iccdocs/asp_docs/RC2010/Statements/ICC-RC-statements-LuisMorenoOcampo-ENG.pdf (accessed November 28, 2016)

123 necessarily one of the sort that would be expected to be ‘party’ to the trial. As it turns out, victims are clearly not meant to be ‘parties’ in any meaningful sense of the term, although this does not mean that they did not gain significant rights to participate in proceedings.

The Rome Statute determines which victims can participate in the proceedings based on different stages of the procedure. These include the investigation stage under Article

15(3), the trial stage under Article 64(4), the reparations stage under Article 75, and the appeal stage under Article 82(4). The principle of victims’ participation is enshrined in

Article 68(3), which states that:

“Where the personal interests of the victims are affected, the Court shall

permit their views and concerns to be presented and considered at stages

of the proceedings determined to be appropriate by the Court and in a

manner which is not prejudicial to, or inconsistent with the rights of the

accused, and a fair and impartial trial. Such views and concerns may be

presented by the legal representatives of the victims where the Court

considers it appropriate, in accordance with the Rules of Procedure and

Evidence.”

The term ‘personal interest’ in Article 68 could be misconstrued. The drafters of the statute originally linked the term to the requirement that applicants for victim status must be a victim of a crime related to the case.274 The concept of personal interest has been interpreted by the

Pre-Trial Chamber I in Katanga et al. and in Abu Garda to flow from: (i) the desire to have a declaration of truth by a competent body (the right to truth); (ii) the wish to have those who victimized them identified and prosecuted (the right to justice); and (iii) the right to

274 Gilbert Bitti & Håkan Friman, “Participation of Victims in the Proceedings” (2001) The International Criminal Court: elements of crimes and rules of procedure and evidence Transnational Publishers, Leiden 456 at 461.

124 reparation.275 It is worth noting that the Office of the Prosecutor (‘OTP’) preferred a more restrictive approach.276 The definition of the Trial Chamber I nonetheless established an interesting link between a sort of primary victimhood, being the position one attains as a result of being a victim of a crime in the Court’s Statute, and a sort of ‘aspirational’ victimhood, where, for the purposes of international criminal justice, one is willing to channel one’s claims through the mechanisms provided by the ICC (of course, victims might go to different fora to obtain reparations, such as human rights courts, etc).

The participation of victims in criminal proceedings requires a certification process, which includes meeting the criteria set out in Rule 85 of the Rules of Procedure and

Evidence:

(a) ‘Victims’ means natural persons who have suffered harm as a result of the

commission of any crime within the jurisdiction of the Court;

(b) Victims may include organizations or institutions that have sustained direct harm

to any of their property which is dedicated to religion, education, art of science or

charitable purposes, and to their historic monuments, hospitals and other places

and objects for humanitarian purposes.

Part (a) on ‘natural persons’ has been interpreted by the court to include individuals and groups, in order to highlight the individual and collective nature of their harm.277 Part (b) covers legal persons such as organizations or institutions, due to their protected status in

275 Prosecutor v. Bahar Idriss Abu Garda, Decision on the 34 Applications for Participation at the Pre‐Trial Stage of the Case, icc‐02/05‐02/09‐121, 25 September 2009, para. 3; See also Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre‐Trial Stage of the Case, icc‐01/04‐01/07‐474, 13 May 2008, paras. 31–44. 276 OTP, Policy Paper on Victims’ Participation, April 2010, p.12. “While victims have a general ‘interest’ in the determination of the truth in relation to the particular charges, and in seeing the guilt or innocence of a perpetrator proven in Court and that justice be meted out for the crimes, such an interest cannot form the sole or main basis for participation as it is a responsibility and function granted to the Prosecutor under the Statute to investigate the crimes and establish the truth”, online at https://www.icc-cpi.int/NR/rdonlyres/9FF1EAA1- 41C4-4A30-A202-174B18DA923C/281751/PolicyPaperonVictimsParticipationApril2010.pdf (accessed November 30, 2016) 277 Prosecutor v Lubanga, Decision on Victims’ Participation, ICC-01/04-01/06-1119, 18 January 2008, para. 92; see also draft Rule 85, PCNICC/1999/WGRPE/INF.2.

125 international humanitarian law and the Rome Statute, and the harm they suffer as a result of international crimes.278

The Pre-Trial Chamber of the ICC is vested with the power to grant or deny victim status by applying the criteria set out in Rule 85 and to determine that appropriate documentations has been provided by the victims.279 Once a victim has met the definitional criteria and has provided adequate identification, the Pre-Trial Chamber would determine if the court has jurisdiction over the alleged crimes based on the dates the crimes took place.

The alleged crimes must be crime of genocide, war crimes, crimes against humanity, and the crime of aggression, and must occur after July 2002, when the Rome Statute was ratified.

Additionally, the crime must have occurred within the territories of the states parties to the

Rome Statute.

Further, the Pre-Trial Chamber will determine if the victim had suffered any harm.

This was determined on a case-to case basis to include “physical, emotional, psychological, mental, economic loss and the substantial impairment of fundamental rights”280 and applied this standard broadly.281 The ICC Appeals Chamber has found that harm, in its “ordinary

278 Articles 8(2)(b)(ix) and e(ix), 8(2)(b)(iii) and (e)(iii), as well as 8(2)(b)(xxiv) and (e)(ii). For instance, school headmasters: a/0188/06 (Situation in the DRC, ICC-01/04-423-Corr, paras 142–143); a/0071/08 (Katanga and Chui, Public Redacted Version of the ‘Decision on the 97 Applications for Participation at the Pre-Trial Stage of the Case’, ICC-01/04-01/07–579, 10 June 2008, paras 133–135); a/0270/07 (Lubanga, Decision on the Applications by Victims to Participate in the Proceedings, ICC-01/04-01/06-1556, 15 December 2008, paras 107–111). Articles 9 and 52–54, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. See Eva Dwertmann, The Reparation System of the International Criminal Court (Brill, 2010) at 96. 279 The Court has been fairly flexible as to what types of identification are acceptable, and has stated that a lack of proper identification was an “insufficient reason” for dismissing a victim’s application. 280 See Situation in DRC, ICC-01/04-101 para. 81; Situation in Uganda, Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06, and a/0111/06 to a/0127/06, ICC- 02/04-101, 11 August 2007; Prosecutor v Bemba, Fourth Decision on Victims’ Participation, ICC-01/05-01/08- 320, 12 December 2008, para. 51; Prosecutor v Abu Garda, Public Decision on the 52 Applications the Pre-trial Stage of the Case for Participation at the Pre-trial Stage of the Case, ICC-02/05-02/09- 147, 9 October 2009; Decision on ‘Indirect Victims’, ICC-01/04-01/06-1813, 8 April 2009, para. 50. 281 ICC Prosecutor v. Muthauraet al., PTC, ICC-01/09-02/11-267, 26 August 2011, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, para 64.

126 meaning denotes hurt, injury or damage’.282 The court has also accepted that a single instance of harm is sufficient to recognize a victim.283

During the drafting of the victim definition in Rule 85, there was a disagreement among the delegates on the inclusion of indirect harm, due to conflicting views on the word

‘family’.284 However, the court established that the harm could be both direct and indirect to a victim because the language in Rule 85(a) contained no limitation on direct or indirect harm for natural persons. This can be compared to Rule 85(b), which only mentioned direct harm to legal persons.285 The court also adopted the position of the UN Victims Declaration that stated that indirect victims could suffer harm, either as close family, or members and dependents of the direct victim; or to those who have suffered whilst intervening to help direct victims of the case; or to prevent the latter from becoming victims because of the commission of these crimes.286 The Appeals Chamber had observed that the personal nature of the harm is sufficient in recognizing victims, rather than the degree of suffering.287 The inclusive approach adopted by the ICC by recognized that a broader scope of victims is more in line with critical victimology, which identified victims as those who suffer, as a result of a crime, as well as human rights law and national practices.288

282 Principles 1 and 8; Situation in DRC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6, ICC-01/04-101, 17 January 2006, para. 115; Lubanga, ICC-01/04-01/06-1119 para. 92; Prosecutor v Lubanga, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04- 01/06-1432, 11 July 2008, para. 31. 283 Situation in DRC, ICC-01/04-101, para. 81; Situation in DRC, ICC-01/04-423, para. 3. 284 Birte Timm, “The Legal Position of Victims in the Rules of Procedure and Evidence” in International and National Prosecution of Crimes under International Law: Current Developments (Arno Spitz Verlag, 2001) at 290. 285 Lubanga, ICC-01/04-01/06-1119, para. 90; affirmed in Lubanga, ICC-01/04-01/06-1432, para. 30. 286 Prosecutor v Lubanga, Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6, ICC-01/04-01/06-172-tEN, 29 June 2006, pp. 7–8; Katanga and Chui, ICC-01/04-01/07-579, 10 June 2008, para. 66; Lubanga, ICC-01/04-01/06-1813, paras 49–51; adopting Principle 2, UN Victims’ Declaration. 287 Lubanga, ICC-01/04-01/06-1432, paras 34–35 and 39. 288 Mina Rauschenbach & Damien Scalia, “Victims and international criminal justice: a vexed question?” (2008) at 454.

127 If the crime alleged falls under the jurisdiction of the ICC, and the Pre-Trial Chamber determines that harm has occurred, then the Pre-Trial Chamber will have to determine if the harm suffered has a causal connection to the alleged crime before the court.289 The Pre-Trial

Chambers held that this causal connection “is satisfied if the spatial and temporal circumstances surrounding the appearance of the harm and the occurrence of the incident seem to overlap, or at least appear compatible,” and affects the personal interests of the victim.290 If the victim’s application does not meet any of the requirements set out above, the court may deny the application.291

Beyond the procedural framework for victims’ participation at the court, are the complexities associated with victimhood in the practices and procedures of the court. For instance, in the Northern Ugandan situation referred to the ICC, some victims of physical violence were recognized,292 while other individuals, who had ‘only’ suffered from the conditions produced by more than two decades of conflict, were not recognized.

Interestingly, many of the latter did not initially favor intervention by the ICC, because of the negative effects they presumed would occur to future peace processes.293 In the courtroom of

The Hague, only the views of the victims registered to participate in the ICC proceedings,

289 Christodoulos Kaoutzanis, “Two Birds with One Stone: How The Use of the Class Action Device for Victim Participation in the International Criminal Court can Improve Both the Fight Against Impunity and Victim Participation” (2010) 17 UC Davis J Int’l L & Pol’y 111.; ICC Prosecutor v Muthauraet al., PTC, ICC-01/09- 02/11-267, 26 August 2011, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, para 60; ICC Prosecutor v Lubanga, AC, ICC-01/04-01/06-1432 OA 9 OA 10, 11 July 2008, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, para 62. 290 Ibid at 122.; ICC Situation in Uganda, PTC, ICC-02/04-101, 10 August 2007, Decision on victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, paras 13, 14; Bemba, ICC-01/05-01/08-320, PTC III, para 75; Kony et al. ICC-02/04-01/05-252, para 14. 291 Rule 89; ICC Prosecutor v Bemba, PTC, ICC-01/05-01/08-320, 12 December 2008, Fourth Decision on Victims’ Participation, paras 31, 75. 292 ICC, Situation in Uganda, Decision on Victims’ Applications for Participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-02/04-101, Pre-Trial Chamber II, 10 August 2007. 293 See, inter plurima alia, Lucy Hovil & Zachary Lomo, Whose Justice?: Perceptions of Uganda’s Amnesty Act 2000: the Potential for Conflict Resolution and Long-term Reconciliation (Refugee Law Project, 2005).

128 and who were tacitly in favour of ICC proceedings, were recognized.294 The risk is that only the voices of victims who support the ICC process and were bought into the ICC`s mandate are heard as legally recognized victims.295 Victims of crimes outside the jurisdiction of the

ICC, or even the vocabulary of international criminal law, are excluded from participating, as they are victims who are opposed to the ICC criminal process as a means of resolving the armed conflict. This selection process lends credence to what a commentator has described as the ‘somewhat tragic reality that resistance must work, to some extent, within the parameters established by that which is being resisted’.296

The Office of the Prosecutor is also involved in determining the voices of which victims can participate in proceedings based on the Prosecutor’s power to initiate investigations propri motu (by his own authority).297 This was evidenced in the cases of

294 See, for instance, ICC, Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Observations on Behalf of Victims Pursuant to Article 19(1) of the Rome Statute with 55 Public Annexes and 45 Redacted Annexes, ICC-02/04-01/05-349, Office of the Public Counsel for Victims, 18 November 2008. 295 In the ICC’s Darfur situation, Sudanese citizens who disagreed with the ICC’s proceedings hired lawyers to represent them as amicus curiae, as which they sometimes were allowed to make submissions and sometimes not (see for instance, ICC, Situation in Darfur, Sudan, Decision on Application under Rule 103, ICC-02/05-185, Pre-Trial Chamber I, 5 February 2009; ICC, Decision on the Filing of Annex 4 to the Application under Rule 103, ICC-02/05-224, Pre-Trial Chamber I, 18 May 2009). In the northern Ugandan situation, a delegation of critical Ugandans visited the Court and was received by the Registry and Office of the Prosecutor, but they did not have legal standing. Their views were also largely ignored – although the Acholi leaders asked the OTP to be mindful of the peace process and dialogue, the OTP issued arrest warrants three months later. See ICC, Delegation from Uganda Holds Talks with the Registrar of the ICC, ICC-CPI-20050318-94, http://www.icc- cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200204/press%20releases/Pages/d elegation%20from%20uganda%20holds%20talks%20with%20the%20registrar%20of%20the%20icc.aspx (accessed November 28, 2016) and ICC-OTP, Statements by ICC Chief Prosecutor and the Visiting Delegation of Acholi Leaders from Northern Uganda (ICC-OTP-20050318-95-En 18 March 2005), http://www.icc- cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200204/press%20releases/Pages/s tatements%20by%20icc%20chief%20prosecutor%20and%20the%20visiting%20delegation%20of%20acholi%2 0leaders.aspx (accessed November 28, 2016). 296 Balakrishnan Rajagopal, International Law From Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003)., See also Rule 50 RPE 297 In ICC, Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04-101, Pre-Trial Chamber I, 17 January 2006, para. 65, Pre-Trial Chamber I made the following distinction between situations and cases: ‘Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters, such as the situation in the territory of the Democratic Republic of the Congo since 1 July 2002, entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such. Cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear’ (footnotes omitted). Victims can be recognized as a victim in a situation and/or as a victim in a case. Only case victims can participate in proceedings during the trial phase.

129 Kenya, Côte d'Ivoire and Georgia,298where the Prosecutor used the proprio muto power to commence investigations. Under this Article, the Pre-Trial Chamber II in the Kenyan situation order the Victim Participation and Reparations Section (VPRS) to contact known victims.299 The resulting VPRS report showed that the victims who were contacted expressed strong support for an ICC investigation. This information was subsequently used alongside other victim representations to help the Court understand the situation in Kenya and the harm suffered by victims, so as to open an investigation.300 Similarly, in the Côte d'Ivoire situation, victims’ representations were extensively relied upon by the Chamber to support the evidence presented by the Prosecutor and to commence an investigation.301 As a result of the OTP’s selection, based on Security Council referral or proprio muto, some victims in the

Democratic Republic of the Congo and Kenya, among others, have been able to obtain legal recognition as victims; while simultaneously, victims in Syria, Gaza, Afghanistan, Iraq and

Colombia have been excluded from the international criminal justice project.

Once a situation has been selected for investigation by the OTP, legally recognized victims to participate at the ICC are further limited by the temporal, geographical and personal parameters of the situation. Therefore, victims of crimes committed before the ratification of the Rome Statute in 2002,302 will generally not be recognized as victims,303

298 Situation in the Republic of Kenya, Request for Authorisation of an Investigation Pursuant to Article 15, ICC-01/09-3, 26 November 2009; Situation in Republic of Côte d'Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC- 02/11-14, 3 October 2011. Situation in the Republic of Georgia, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Georgia, ICC-01/15, 27 January 2016. 299 Situation in the Republic of Kenya, Order to the Victims Participation and Reparation Section Concerning Victims’ Representation Pursuant to Article 15(3) of the Statute ICC-01/09-4, 10 December 2009; Situation in the Republic of Kenya, Public Redacted Version of Corrigendum to the Report on Victims’ Representations (ICC-01/09-17-Conf-Exp-Corr), ICC-01/09-17-Corr-Red, 29 March 2010. 300 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010. 301 Situation in Republic of Côte d'Ivoire, ICC-02/11-14. 302 Discrimination between victims on the ground of the ICC’s temporal jurisdiction occurs not only in legal proceedings, but also in academic work. One edited volume on the ICC’s complementarity principle, for instance, states in its opening pages: ‘This book is dedicated to all those victims who suffered harm from mass atrocities since the entry into force of the Statute of the International Criminal Court.’Carsten Stahn &

130 while the temporal jurisdiction can be even more limited in a given situation.304 For instance, a report from the VPRS concerning the Kenyan situation notes that a ‘range of self- characterized “victim” or “survivor” populations exist, including many who have suffered harm as a result of periods of violence, which fall outside the jurisdiction of the court.’305 The

VPRS nonetheless focuses its attention ‘on those victim populations who appear to have suffered harm due to political violence of 2007-2008’ - a period which falls within the jurisdiction of the court.

Additionally, the OTP’s selection of situations to investigate also have a geographically dimension to it. For instance, in the Democratic Republic of Congo, the OTP has opened investigations only in a few regions of the country. Victims in other regions of the country cannot be legally recognized as victims, nor participate at the ICC, unless another investigation is opened or the scope of an existing investigation is expanded to include them.

Therefore, common references to ‘Congolese victims,’ as a general category, mischaracterize the narrow geography of the court’s gaze.

Whether victims can be legally recognized as such also depends on which groups the

OTP decides to investigate. In northern Uganda, for instance, some victims of crimes allegedly committed by the Lord’s Resistance Army can be legally recognized, while the victims of crimes allegedly committed by the Ugandan Armed Forces were excluded from

Mohamed M El Zeidy, The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press, 2011). 303 Victims of continuing crimes are a possible exception. 304 The temporal jurisdiction has implications for victims beyond participation. For instance, the Trust Fund for Victims, created pursuant to RS, Art. 79, provides assistance only to victims of crimes committed within the temporal jurisdiction of the Court. In northern Uganda this has meant that victims of mutilations allegedly committed by the LRA after July 2002 qualified for surgical assistance and victims of such mutilations prior to that date did not. 305 ICC, Situation in the Republic of Kenya, Public Redacted Version of Report Concerning Victims’ Representations (ICC-01/09-6-Conf-Exp) and annexes 2 to 10, ICC-01/09-6-Red, Victims Participation and Reparations Section, 29 March 2010, para. 21.

131 participating because the OTP had not opened an investigation into their conduct during the conflict.306

The participatory rights of victims in proceedings are also limited to the victims of the

Prosecutor’s specific charges - a specific act at a specific time at a specific location. Thus victims of the charged crimes, for example, children recruited as child soldiers, or peacekeepers in a camp under attack, can be recognized and thus participate in proceedings.

In contrast, victims of crimes not charged, such as victims of crimes committed by child soldiers, or villages outside the camp of the peacekeepers cannot.307 The OTP’s charges limit not merely the acts (for instance, killing, rape, or the recruitment of child soldiers) of which people can be recognized as victims, but also the events (acts at a particular time in a particular place).308 For instance, a lawyer appointed to represent former child soldiers in the

Katanga case observed that victims ‘still do not understand why only one event has led to charges. I have met with dozens of victims, and many wonder why other events were deemed to be not within the jurisdiction of the Court…’.309

The Judges of the ICC also play a crucial role in determining which of the victims’ voices to include or to exclude in proceedings. They play this role by determining if the

Prosecutor has provided sufficient evidence to confirm the charges against the perpetrators.

For instance, in the Kenyan situation, due to the Judges’ refusal to confirm charges against

306 For an account of the political dimensions of these decisions, see Branch, supra note 229 at 170–215. 307 See ICC, Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06-1432, Appeals Chamber, 11 July 2008, paras 40-66 and ICC, Prosecutor v. Bahar Idriss Abu Garda, Public Redacted Version of ‘Decision on the 52 Applications the Pre-Trial Stage of the Case’, ICC-02/05-02/09-147-Red, Pre- Trial Chamber I, 9 October 2009, paras 130-141. 308 Kendall & Nouwen, supra note 253. 309 ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Transcript of 24 November 2009 (in translation from French), ICC-01/04-01/07-T-80-ENG, at 42 lines 23 to 25.

132 the former Commissioner of Police for police violence, it meant that the victims of police violence lost their juridical status as victims in a case,310 but remained victims in the situation.

The extent to which victims may influence the investigative process of the Prosecutor arose in the OTP investigation of the armed conflict in the Democratic Republic of Congo. A group of six victims filed applications with the Pre-Trial Chamber to participate in the investigation. The Prosecutor objected to the applications, and argued that victims did not have a right under the statute to participate in proceedings before a suspect is named.311

Therefore, the role of victims, being those with direct knowledge of the events under scrutiny, lie legally outside the decision-making process concerning which charges to pursue.312 The Prosecutor viewed the victims as antagonists to the administration of justice.

The Pre-Trial Chamber ruled against the Prosecution, and held that the statute afforded the victims the right to participate and that consideration of efficiency and due process should be considered on a case-by-case basis.313 The Pre-Trial Chamber drew on human rights principles and jurisprudence in its reasoning, placing the ICC framework in the context of international trends expanding the rights of victims.314

310 This was so because there were no other individuals, accused of the same crimes, against whom the charges were confirmed. By contrast, in the Darfur situation the Court refused to confirm the charges against Bahar Idriss Abu Garda, but did confirm the same charges against Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus. See ICC, Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, Pre-Trial Chamber I, 8 February 2010 and Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Corrigendum of the ‘Decision on the Confirmation of Charges’, ICC-02/05-03/09-121-Corr-Red, Pre-Trial Chamber I, 7 March 2011. 311 Situation in the Democratic Republic of Congo, Prosecution’s Reply on the Applications for Participation 01/04-1/dp-6/dp, ICC-01/04-84 2006-05-16 2/20 SL, 15 August 2005, para. 14; see also Situation in Darfur, Sudan, Prosecution’s Reply under Rule 89(1) to the Applications for Participation of Applicants a/0011/06, a/0012/06, a/0013/06, a/0014/06 and a/0015/06 in the Situation in Darfur, the Sudan, ICC‐02/05, 8 June 2007. 312 The OTP more generally has favored a restrictive view of victims’ participation and has argued to maintain the exclusive purview of the prosecutor to search for the truth: “That crimes should be effectively investigated and prosecuted is the core of the Prosecutor’s mandate.” OTP, Policy Paper on Victims’ Participation, 12 April 2010, at 10, quoting Situation in Darfur, Sudan, Prosecution’s Document in Support of Appeal Against the 6 December 2007 Decision on the Victimsʹ Applications for Participation in the Proceedings, ICC‐02/05‐125, 18 February 2008, para. 24. 313 Situation in the Democratic Republic of the Congo, Public Redacted Version of Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04- 101-tEN-Corr, 17 January 2006, paras. 57-58, 70. 314 Ibid., at paras. 50–54.

133 Despite the Pre-Trial Chamber situating their decision within the international legal framework of victims as rights-holders, the extent to which they could participate was limited. The judges held that victims would neither have access to the investigation files, nor could they attend closed sessions, and stressed that what was implied by the “participation” of victims in the investigation, was that they would be notified of proceedings and could have access to the public documents.315 At the conclusion of the investigation, the Prosecutor did not refer charges for crimes of sexual violence as strongly advocated by many victims’ groups, but rather focused on the crimes relating to Lubanga’s conscription, and the use of child soldiers. This prompted furious public response from victims and NGO groups.316 The court has subsequently ruled, in several cases and on appeal, that the charges against the defendants defined the limits to which the victims have standing to participate in criminal proceedings at the ICC. Therefore, only the voices of the victims of the crimes relating to

Lubanga’s recruitment and the use of child soldiers, could participate. Furthermore, only the experiences related to those particular charges would be relevant and presented to the court.

Moving beyond the substantive criteria, victims who meet all the criteria, as laid down in the Rome Statute and the Rule of Procedure and Evidence, would not be legally recognized as victims, and therefore, could not participate. This was because they might not have been aware of the their eligibility to apply for victims’ status, or that they failed to meet

315Ibid., at paras. 59, 74, 76. The narrow normative victory for victims was curtailed further. In a subsequent ruling the Appeals Chamber agreed, in part, with the position of the Prosecutor and held that investigations are not “judicial proceedings” within the meaning of article 68(3) and therefore victims are not entitled to participate. Situation in Democratic Republic of the Congo, Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD Against the Decision of Pre-Trial Chamber I of 7 December 2007 and in the Appeals of the OPCD and the Prosecutor Against the Decision of Pre-Trial Chamber I of 24 December 2007, ICC-01/04-556, 19 December 2008, para. 45. 316 See ‘Joint Letter to the Chief Prosecutor of the ICC’ from Avocats Sans Frontières, Center for Justice and Reconciliation, Coalition Nationale pour la Cour Pénale Internationale - RCD, Fédération Internationale des Ligues des Droits de l'Homme, Human Rights Watch, International Center for Transitional Justice Redress, and the Women’s Initiative for Gender Justice to Chief Prosecutor of the ICC, Luis Moreno Ocampo, on the narrow scope of the charges brought against Mr. Lubanga, 1 August 2006, available at http://www.hrw.org/news/2006/07/31/dr-congo-icc-charges-raise-concern.

134 the procedural conditions.317 For instance, victims apply to the ICC to participate through a considerably long and complex seven-page application form, available on the court’s website in either English or French, the two official languages of the court. The Judges then determine if the victims can participate based on the requirements under Article 68(3). A limitation of this is that most victims live in remote areas without access to internet and that many have limited language skills, thereby posing a significant barrier to their participation at the ICC.

The judges, being sensitive to how the rules are to be interpreted and how they impact the victims, reduced the legalistic and complicated application form from seventeen to seven pagaes. In the Ntaganda case, the application was limited to one page.318 However, as stated in the preceding paragraph, the issue remains with the application forms, which are in

English and French languages, and therefore, require intermediaries to translate the forms into the victims’ local language.319

Obviously, there are potentially millions of victims within the jurisdiction of the ICC that cannot all personally participate in the proceedings of the court. Instead, their participation is carried out through the use of victims’ legal representatives (VLRs).320 VLRs are meant to facilitate the communication of victims views and interests to the ICC so that the court can tailor proceedings, measures, and, more generally, justice to their needs.321 Due to various circumstances, some victims may not be able to articulate their case, or draw from

317 For example, the head of the VPRS has noted the ‘many practical and logistical considerations’ that affect victim participation, including the challenge of ‘how to inform victims about the ICC in general as well as about their own possible role as participants’; see Fiona McKay, “Victim Participation in Proceedings Before the International Criminal Court” (2008) 15:3 Human Rights Brief 1. 318 Prosecutor v. Bosco Ntaganda, Decision Establishing Principles on the Victims’ Application Process, ICC- 01/04-02/06-67, 28 May 2013, paras 17-25. 319 See Independent Panel of Experts Report on Victim Participation at the International Criminal Court, July 2013. 320 Article 68(3), and Rules 90-92; See Chung, supra note 34 at 525. 321 McGonigle Leyh, supra note 192 at 359.

135 relevant jurisprudence or knowledge, to effectively communicate their interests to the court, therefore underscoring the importance of representation.322

Nevertheless, the participation of the victims in the proceedings of the ICC are largely symbolic. This is because victims can only participate in the proceedings if they do not interfere with the interests of the prosecution or the rights of the defendant. Their participation also has minimal impact on determining the outcome of the trial. Without a right of appeal, these victims cannot challenge the Prosecutor’s selection of perpetrators and charges, or the decisions by the court which have failed to take their interests into consideration.

Also, there is no uniform approach adopted by the judges on presenting evidence.

With the divergent approach to victim participation by the Pre-Trial Chamber, it is not certain what the value of participation can offer to victims, or if the victims should access justice elsewhere.323 These inconsistencies have resulted in inequality of victim participation before the ICC.324 These differences are due to the diverse interpretations of justice, rather than the differing needs of victims. Judge Steiner and Judge Kaul,325 for instance, have been particularly sensitive to the needs and interests of victims, compared to Judge Pikis and Judge

Kirsch.326

5.5. Victims Protection at the ICC

The victims who act as witnesses or participants in the proceedings of the court risk exposure to intimidation or retribution from their community, when they testify. They could also suffer from recounting traumatic experiences that could further re-traumatized them. The

322 For instance, see Bemba, ICC-01/05-01/08-T-227-Red-ENG, 25 June 2012, p. 29. 323 McGonigle Leyh, supra note 192 at 333. 324 Salvatore Zappalà, “The Rights of Victims v. the Rights of the Accused” (2010) 8:1 journal of International Criminal justice 137 at 142. 325 See Katanga and Chui, ICC-01/04-01/07-474; Bemba, ICC-01/05-01/08-320. 326 See Separate Opinions of Judge Pikis and Judge Kirsch in Lubanga, ICC-01/04-01/06-1432.

136 issue of safety of victims at the ICC was highlighted when several witnesses withdrew from the ICC prosecutor’s case against Deputy Kenyan President, William Ruto, and Kenyan journalist, Joshua Sang, for fear of their safety. Victims acting as witnesses are essential to determining the truth at the ICC, thus issues around their protection need to be addressed to ensure that witnesses can testify freely and truthfully. Some of these issues were echoed by the state representative and civil society actors at the negotiation of Rome Statute, who wanted to ensure that the rights and wellbeing of victim-witnesses are protected.

5.5.1. The Legal Basis of Victim Protection and Treatment

Article 68(1) of the Rome Statute states that, ‘the Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’. This incorporates the principles of the UN Victims’ Declaration.327

The legal concepts articulated in Article 68(1) of privacy, well-being, and dignity, reflect the autonomy of victims-witnesses and highlight a broader spectrum of needs that could be affected by their involvement with the court. During the negotiation and drafting of the Rome

Statute, strong support was provided to ensure adequate protection for the victims and witnesses before the ICC, following the experiences at the ICTY and ICTR.328 The UN

Victims’ Declaration served as a reference point to guide the development of Article 68 of the Rome Statute, as victim protection and fair treatment in international criminal proceedings was generally accepted by delegates during the negotiations.329 The subsequent provisions within the Rome Statute and the Rules of Procedure and Evidence developed the

327 Principles 4 and 6(d), UN Victims’ Declaration; Principles 10, UNBPG; an earlier draft of Article 68 included a provision that the interpretation of the whole article should be interpreted in light of Victims’ Declaration in order to give effect to it; Report of the Inter-Sessional Meeting from 19-30 January 1998 in Zutphen, the Netherlands, A/AC.249/1998/L.13, Article 61(7). 328 See Amnesty International, The International Criminal Court, Making the Right Choices, AI Index: IOR 40/11/97, July 1997; Commentary for the August 1997 Preparatory Meeting on the Establishment of an International Criminal Court; Women’s Caucus for Gender Justice in the International Criminal Court, HRW, December 1997. 329 See Report of the Working Group on Procedural Matters, 15 July 1998, A/CONF.183/C.1/WGPM/L.2/Add.8, p. 7, fn 5; Report of the Victims’ Rights Working Group at the Rome Conference, 1998, para. 4.

137 provisions established at the ad hoc tribunals to protect victims and witnesses from risk of further harm.330 Consequently the importance of protecting victims and treating them fairly is firmly established at the ICC as obligatory. This is emphasized by the use of the word ‘shall’ in Article 68(1), which can be compared to the ad hoc tribunals where protective measures were discretionary. The legal framework of the court indicates that the protection and security of victims are one of the key objectives of the ICC, and that the Victims and

Witnesses Unit (VWU) is crucial to delivering the protection mandate of the ICC.

5.5.1.1. The Victims and Witnesses Unit

Article 43(6) of the Rome Statute established the VWU within the Registry of the ICC to provide ‘protective measures and security arrangements, counselling and other appropriate assistance for witnesses who appear before the court, and others who are at risk on account of testimony given by such witnesses’.331 The VWU conducts assessments of the individual’s needs, in order to recommend appropriate protection measures, and to minimize the potential risk of suffering further trauma to victims, witnesses, and other persons.332 This is in line with international standards and developments in national jurisdictions, which provide support and assistance to victims.333

The VWU also cooperates with State Parties in advising, assisting, and implementing any measures.334 The VWU established the Initial Response System (IRS) in countries under investigation, which allowed victim-witnesses to seek assistance if they believe that they,

330 Helen Brady, “Protective and Special Measures for Victims and Witnesses” (2001) The International Criminal Court: The Making of the Rome Statute Issues, Negotiations, Result The Hage: Martinus Nijhoff Publishers 434 at 434–456. 331 See also Rules 17-19 RPE. 332 Prosecutor v Lubanga, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute, ICC-01/04-01/06-1078, 19 May 2008, para. 24; Prosecutor v Lubanga, Victims and Witnesses Unit Recommendations on Psycho-social In-court Assistance, ICC-01/04-01/06-1149, 31 January 2008, paras 1 and 14. 333 See Principle 6(d), UN Victims’ Declaration; EU Decision on the Standing of Victims in Criminal Proceedings, 2001/220/JHA, paras 6-7 and 10.Dignan, supra note 27 at 49–54. 334 Rule 16(4), 17(2)(a)(vi), and 18(e); see the Registry and Trust Fund for Victims Factsheet, p.3.

138 themselves, or their families are in danger.335 If any calls are received, a local partner would remove the individual and move them to a safe location, before an assessment would be carried out on whether there was need for further measures of protection. The relocation of individuals to safe locations is problematic because it relies heavily on local police force, which may be corrupt. Furthermore, there are important considerations to bear as state agents may lead to the death of these individuals, if they were to testify against government officials at the ICC, as witnessed in the Kenya case.336

The VWU also created a protection programme (ICCPP)337 The protection programme is similar to the witness protection programmes in domestic criminal jurisdictions, which involve the relocation of a witness either temporarily or permanently, or nationally and internationally. The ICCPP also invoked additional measures, such as issuing new identities to affected individuals. Though the VWU only provide protection to victims who appear before the court, either to testify or to participate, other victims, who would not allowed to testify or participate at the court, are excluded from this protection regime. The

Trust Fund for Victims also provide assistance to victims, including psychological counselling, physical rehabilitation, and community based victim sensitization programmes.

These programs were only provided in the situation of Uganda, the DRC, and for a time, in the CAR.338

At the Hague, the VWU support victims both inside and outside the courtroom.

Similar to the regimes adopted by the ad hoc tribunals, the VWU offers 24 hour

‘psychological, social assistance and advice to victims, witnesses, and their families, as well

335 Regulations 93 and 95 Registry Regulations; Report of the Court on the Kampala Field Office: Activities, Challenges and Review of Staffing Levels; On Memoranda of Understanding with Situation Countries, ICC- ASP/9/11, 2011, p.2; Silvana Arbia, “The International Criminal Court: Witness and Victim Protection and Support, Legal Aid and Family Visits” (2010) 36:3 Commonwealth Law Bulletin 519 at 522. 336 Human Rights Watch (Organization), Courting History: The Landmark International Criminal Court’s First Years (Human Rights Watch, 2008) at 152. 337 Regulation 96, Registry Regulations. 338 Moffett, supra note 32 at 131.

139 as in-court support assistants to ‘attend to [their] emotional and physical needs’.339

Additionally, it consists of staff with expertise in trauma, particularly in cases of sexual violence.340 Accordingly, the ICC Victims and Witnesses Unit built on the experience and practice of the ad hoc tribunals to provide comprehensive support and protection. As such, the VWU offers a more victim-focus justice when it comes to ensuring their fair treatment and protection before the ICC, both at the situation countries and at The Hague.

5.5.1.2. Protective and Special Measures

Article 68(1) requires the court to protect victims through protective and special measures. Protective measures are aimed at preventing the victim from suffering further harm or traumatization due to their interaction or association with the court. These special protection measures include closed hearings (in camera), pseudonyms, voice and facial distortion, public non-disclosure, and a redaction of identity or identifying information from the court’s records.341 Requests for protective measures could be made by the Prosecutor, the defence, a witness, a victim or their legal representative, or by the court itself.342 The court has established that the obligations to identify, protect, and respect a victim or witness rests on the party or participant calling the individual to testify.343 Other organs of the ICC are also responsible for protecting victims and witnesses.344 Additionally, where protective measures are ordered, the defence, VLRs, and other participants are bound by Rule 87(3)(b) and Article

339 Regulation 83, Registry Regulations; Lubanga, ICC-01/04-01/06-1149, paras 7-8. 340 See Article 43(6) and Rule 19, RPE. 341 Article 68(2), Rule 87(3), and Regulation 94, Registry Regulations. 342 Rule 87 (1), RPE. 343 Prosecutor v. Lubanga, Decision on Various Issues Related to Witnesses’ Testimony during Trial, ICC- 01/04-01/06-1140, 29 January 2008, para 36. 344 See Rule 16 on the Registry; Articles 54(e), (f), and 68(1) on the Prosecutor’s obligation to protect victims during investigation and prosecutions.

140 8 of the Code of Professional Conduct for Counsel on professional secrecy and confidentiality.345

Rule 88 provides special measures for vulnerable victims or witnesses who testify before the court.346 Special measures include a support person, shielding devices, video conferencing technology, and sensitive questioning. The judges of the ICC agreed that the court environment can be ‘foreign and uncomfortable’ and even intimidating to victims and witnesses.347 As such, special measures are meant to facilitate the testimony of a vulnerable victim or witness while protecting their dignity, well-being, safety, and privacy at the ICC.348

Vulnerable victims and witnesses include those ‘traumatized … a child, an elderly person or a victim of sexual violence’.349 The open-ended language used in Rule 88, which does not define vulnerable persons or all the special measures the Chamber can order, enabled the judges to have some flexibility to determine the appropriate measures required by each individual.350 This individual based approach recognizes that the needs of victims differ and could be in opposition to one another.351 The court has ruled that in fulfilling its mandate towards vulnerable individuals the ‘pro-active role of judges under the Statute and the RPE will help to ensure that witnesses are not “revictimized” by their testimony, while also preventing any improper influence being applied to the witness’.352 Additionally, in making a determination on the appropriate measures needed for a victim, the Chamber ‘shall have

345 ASP Resolution ICC-ASP/4/Res.1, 2005; see Situation in DRC, Decision on the Requests of the Legal Representative of Applicants on Application Process for Victims’ Participation and Legal Representation, ICC- 01/04-374, 17 August 2007, para 28; Bemba, ICC-01/05-01/08-320, para. 111; Katanga and Chui, ICC-01/04- 01/07-1788-tENG, para. 113. 346 Rule 88(1) 347 Prosecutor v Lubanga, Decision Regarding the Practices used Familiarise Witnesses for giving Testimony at Trial, ICC-01/04-01/06-1049, 30 November 2007, para. 32. 348 Article 68(1); Lubanga, ICC-01/04-01/07-1119, paras 127-128 349 Rule 88(1) and Article 68(1) which mentions persons who have suffered ‘sexual or gender violence or violence against children’; see also Prosecutor v Bemba, Victims and Witnesses Unit’s amended version of the ‘Unified Protocol on the Practices used to Prepare and Familiarise Witnesses for giving Testimony at Trial’ submitted on 22 October 2010, ICC-01/05-01/08-1081-Anxl, 8 December 2010. 350 Lubanga, ICC-01/04-01/06-1140, para. 35; Brady, supra note 330 at 447. 351 Lubanga, ICC-01/04-01/06-1119, para 127; Lubanga, ICC-01/04-01/06-1149, para 14. 352 Lubanga, ICC-01/04-01/06-1049, para 32.

141 regard to all relevant factors, including age, gender … and health, and the nature of the crime, in particular, but not limited to, [cases] where the crime involves sexual or gender violence or violence against children’.353 This attitude highlights the sensitivity of the court to the needs of victims, particularly those most vulnerable, and the ways in which secondary victimization can be minimized or avoided.

The court has also established that the use of protective and special measures not only seeks to secure victim participation, but is also a ‘necessary step in order to safeguard their safety, physical and psychological well-being, dignity and private life’.354 Furthermore, the court has stated that such ‘measures are not favors but are instead the rights of victims’, reflecting their procedural rights.355 The Rome Statute also affords victims or witnesses the opportunity to present their views and concerns on the implementation of measures.356

Therefore, by allowing them input into the decision-making process it ensures that protection measures are not adopted unilaterally.357

5.6. Assistance and Reparations for Victims at the ICC

Beyond the rights of the victims as fully legitimate participants in the proceedings of the ICC, is the idea that victims of international crimes can claim reparations for harm suffered. They can do so on their own behalf or through their representatives, but not through a State championing their claims. Victims of international crimes can suffer physical harm, psychological damage, economic destitution and social neglect, and often prioritize these harms above the trial and punishment of the perpetrators.358

353 Article 68(1) 354 Lubanga, ICC-01/04-01/06-1119, para 128 355 Ibid., para. 129. 356 Article 68(2) 357 Rule 87(1) and Regulation 42(4), ICC Regulations; although in victims’ applications for participation PTC-II has unilaterally adopted redactions in order to protect the individuals due to the continuing conflict, see Kony et al., ICC-02/04-01/05-134, para 22. 358 See, for instance, results of opinion surveys on transitional justice options in several countries: Patrick Vinck & Phuong Pham, “Building Peace, Seeking Justice: A Population-Based Survey on Attitudes About

142 Although, as we have seen, reparations have long been held to be mandatory under international human rights law, that was not the case within the international criminal justice regime. For instance, the IMTs did not address the issue of reparations. The ICTY and ICTR had the legal authority to provide restitution for property damage or theft, but have very little capacity to do so. Furthermore, they did not have any authority to provide reparations to victims of crimes unrelated to property. Judges and prosecutors of the ICTY and ICTR agreed that without being able to grant reparations, the tribunals struggle to promote reconciliation and justice for victims.359 Former ICTY President Claude Jorda argued that

“legal reparations for those who have suffered harm constitute an essential criterion for the restoration of social harmony.”360

Article 75(2) states that reparation orders may be made “to, or in respect of, victims”.

It is certain that one does not need to be certified as a victim by the court to benefit from the reparation awards.

The application of Article 75 was tested following the court’s judgement in the

Lubanga case. The Trial Chamber issued its decision on the principles and procedures to be applied to reparations in the Lubanga case.361 The Trial Chamber considered a number of issues on the principles that should guide the court in implementing its reparation orders.

These include whether reparations should be awarded on an individual or collective basis, a raging debate with conflicting views by victims at the court. Two groups of victim

Accountability and Social Reconstruction in the Central African Republic” (2010) Seeking Justice: A Population-Based Survey on Attitudes About Accountability and Social Reconstruction in the Central African Republic (August 3, 2010); Patrick Vinck et al, “Living with Fear: A Population-Based Survey on Attitudes About Peace, Justice, and Social Reconstruction in Eastern Democratic Republic of the Congo” (2008) Justice, and Social Reconstruction in Eastern Democratic Republic of the Congo (August 19, 2008); Phuong Pham & Patrick Vinck, “Transitioning to peace: A population-based survey on attitudes about social reconstruction and justice in Northern Uganda” (2010) UC Berkeley Initiative for Vulnerable Populations. 359 For this comment by ICTY judges, see International Criminal Tribunal for the former Yugoslavia, 2000. For this comment by the Prosecutor of the ICTY/ICTR, see Del Ponte, 2000. 360 Jorda & de Hemptinne, supra note 170 at 1398. 361 Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to be Applied to Reparations (Decision), ICC-01/04-01/06-2904, 1.Ch., 7 August 2012.

143 participants at the ICC filed separate submissions for reparations. Each group favored individual reparations to the participants and advocated that awards should take into account the particular needs of individual victims for economic and psychological assistance.362 They both acknowledged that child soldiers have different experiences, suffered a range of harms and had received different types of post-conflict assistance, which the court should take into account. Their submission emphasized that the variability in benefits might be based on categories of experience (child soldiers who had been raped, those infected with HIV, those injured), the length of time spent as a child soldier, and their level of education, among other factors.363

The Rome Statute or the Court Regulations did not define the concept of collective reparations. However, the Trust Fund for Victims stated that collective reparations may include measures provided to a group, such as providing health care to members of a specific group, such as former child soldiers, or may be provided to a group on a non-exclusive basis, such as schools.364 Essentially, collective reparations should “address the harm the victims suffered on an individual and collective basis.”365 The two victim participants supported collective reparations in addition to individual reparations and stressed that collective reparations would reduce the stigma of former child soldiers in their communities if measures

362 One group asserted that only victim participants should receive individual reparations, while the other group stated that former child soldiers who did not participate nonetheless should be able to receive individual awards even if such amounts were modest. Prosecutor v. Thomas Lubanga Dyilo, Observations on the Sentence and Reparations by Victims (V01 Group), ICC-01/04-01/06-2864, 1.Ch., 18 April 2012, paras. 24-27. 363 Ibid., at paras. 28-29; Prosecutor v. Thomas Lubanga Dyilo, Observations of the V02 Group of Victims on Sentencing and Reparations (V02 Group), ICC-01/04-01/06-2869, 1.Ch., 18 April 2012, para. 27. Some victim participants felt that they should receive individual awards, in part, because they had assumed a risk to take part in the proceedings. See V01 Group, ibid at para. 24. 364 Prosecutor v. Thomas Lubanga Dyilo, Observations on Reparations in Response to the Scheduling Order of 14 March 2012 (TFV Submission), ICC-01/04-01/06-2872, 1.Ch., 25 April 2012, paras. 173-4. 365 See Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to be Applied to Reparations (Decision), ICC-01/04-01/06-2904, 1.Ch., 7 August 2012, at para. 221.

144 could be issued in a manner that would avoid inadvertently “benefiting” this group and potentially encouraging other youth to enlist in the future.366

The Trial Chamber acknowledged that the ICC framework allowed award of individual as well as collective reparations,367 and adopted the community-based approach submitted to it by the TFV. The Judges held that, due to limited TFV funds a community- based approach (collective reparation awards) would have “greater utility” and would reduce the administrative costs associated with individual awards.368 Under this plan the TFV would consult with victims and communities from which child soldiers were recruited to develop proposals for reparations for the court’s approval.369 Victims might still receive individual benefits but only if this was included in the community proposal and approved by the ICC.370

The problematic issue here is that in making an award for reparations, the court has to deliberate among the competing claims, in order to determine what would constitute adequate repairs, as advanced by the different victims group who participated at the court, and by the

TFV vested with the power to speak on their behalf. The court accepted that collective reparations promising large-scale change were the priority: promoting reconciliation, decreasing the stigma of former child soldiers, and working to change cultural attitudes that support the practice of child soldiers.371 More importantly, the victim participants were a

366 See V01 Group, Prosecutor v. Thomas Lubanga Dyilo, Observations on the Sentence and Reparations by Victims (V01 Group), ICC-01/04-01/06-2864, 1.Ch., 18 April 2012 paras. 17-18; see V02 Group, Prosecutor v. Thomas Lubanga Dyilo, Observations of the V02 Group of Victims on Sentencing and Reparations (V02 Group), ICC-01/04-01/06-2869, 1.Ch., 18 April 2012, at paras. 17-18. 367 See Decision, Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to be Applied to Reparations (Decision), ICC-01/04-01/06-2904, 1.Ch., 7 August 2012 at paras. 217-21. 368 Ibid., at para. 274. Lubanga was declared indigent and therefore he would not pay reparations. The award would be financed through the voluntary contributions made to the Trust Fund for Victims. 369 See TFV Submission Prosecutor v. Thomas Lubanga Dyilo, Observations on Reparations in Response to the Scheduling Order of 14 March 2012 (TFV Submission), ICC-01/04-01/06-2872, 1.Ch., 25 April 2012, at paras. 190-201 and 215-19; see Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to be Applied to Reparations (Decision), ICC-01/04-01/06-2904, 1.Ch., 7 August 2012 at para. 282. 370 See Decision, Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing the Principles and Procedures to be Applied to Reparations (Decision), ICC-01/04-01/06-2904, 1.Ch., 7 August 2012 at para. 217 371 See TFV Submission, Prosecutor v. Thomas Lubanga Dyilo, Observations on Reparations in Response to the Scheduling Order of 14 March 2012 (TFV Submission), ICC-01/04-01/06-2872, 1.Ch., 25 April 2012 at paras. 145, 146, 150, 169, 178. For a richer discussion on the differences between micro-individual needs or interests

145 fraction of those who may consider themselves victims of the international crimes and they may or may not share the views representative of the collective. However, adopting an exclusively collective reparations framework by the court may result in providing a greater benefit to a larger number of victims. It also did save the court from having to decide among competing claims and from choosing one victim over another.

5.7. Conclusion

This chapter does not offer a prescriptive solution. Rather, it calls for sustained attention to this clash of logic, and the gap between the different imagery of victims as advanced by the protagonists at the International Criminal Court. The contrasts between international protagonists such as the judges, prosecutors and civil society organizations invoke victims in the proceedings of the court. What remains striking is that real victims have little power in making their voices heard at the court. Their voices have been silenced by the several protagonists who have robbed them of their agency.

Also, victims are crucial to the justice efforts for international crimes. However, just because there is some form of justice, does not mean all victims support international criminal justice. How the ICC defines justice for victims, is distinct and different from the several protagonists, but is also critical to its success. As the ICC struggles to establish its legitimacy in a context where it has been accused by African states as being a tool of oppression used by powerful states to control and maintain its economic and military interests, maintaining a strong victim constituency in Africa, and in several sites of conflict, is crucial. The court has to be attentive to the many rights and interests involved in the proceedings of the court, including those of the accused.

in reparation and wider macro-level justice for victim groups and affected communities, see Jo-Anne M Wemmers, Reparation for Victims of Crimes Against Humanity: the Healing Role of Reparation (Routledge, 2014).

146 Conclusion to Part I: The Construction of Victims in the International Criminal

Justice Context

As we have seen in this first part, the victim emerges as a polysemic and multi-faceted figure in the history of international law and, particularly, international criminal justice. In this conclusion, I suggest that one can apprehend the victim as a series of historically overlapping, but not necessarily reducible figures.

First, at times the victim is seen merely as a suffering body and mind, but not particularly as an agent actively seeking to enforce her rights. As has been suggested, much of the evolution of international law has been framed as ‘for but without’ victims. Victims, such as ‘slaves’ or ‘aliens,’ are invoked and constitutive of an international legal order based on a number of fundamental taboos, but it does not follow that victims have an active, agentic role in the international criminal process. In fact, for some and to this day, the victim is a distraction from the fundamental business of international law, which is framed as a super- structural interest in ‘justice’ or ‘peace,’ but not as a form of fundamental accountability towards the basic stake-holders represented by victims.

Second, the victim may appear in many settings as a mere witness. This is consonant with the role devolved to them traditionally in the criminal process. The victim ‘was there’ and, as a result, is the repository of something crucial for the work of international criminal tribunals. Without victims, evidence cannot be obtained to prove guilt beyond reasonable doubt. This is not a negligible role, but it is still a marginal role, that is entirely compatible with an international legal order that does not take victims’ seriously as a locus of irreducible dignity. Moreover, although we have no reason to think that victims have not lent themselves graciously to this role historically, we also do not have any reason to think that they have been content with this singular role in the unfolding of the drama of international law and criminal justice.

147 Third, the victim may appear as a frustrated rights holder, one whose rights have been violated and is therefore entitled to certain subjective remedies as a result. We owe it to international human rights law to introduce the fundamental idea that victims of human rights violations are best placed to actively press for claims of rights violations. Victims should have the status to do so, as well as incidental rights, such as the right to remedies and reparations. These developments undoubtedly fed into international criminal law, even though they remain indecisive about the place of the victim within the criminal context, specifically given their state orientation.

Fourth and finally, the victim may appear as participant of some sort in international criminal trial processes, nominally dedicated to her protection but wherein she now has actual participatory rights. As I have sought to document, the combination of participatory and reparation rights in the Rome Statute is a major development, not just in the history of international criminal justice, but in international law more generally. But with great expectations also come the risk of great disappointments. As the ‘victim’ category becomes juridified, it also becomes more susceptible to rivalries, disputes and competition. Every move to claim someone/oneself as a victim may contain a move to disqualify others as victims. Moreover, as we will see in more detail in the next part, the various constructions of the victim that emerge as a result, may be problematic not only from the point of view of international law and human rights generally, but from the point of view of specific, located victims as well.

148 Part II. Problematizing Victimhood

149 Chapter 6: The Production of Victimhood: A Critique

Like any social phenomenon, international law is a complex set of practices and ideas, as well as interpretations of those practices and ideas, and the way we engage in them or interpret them cannot be dissociated from the larger professional, academic or political projects we have. … International law is also a terrain of fear and ambition, fantasy and desire, conflict and utopia, and a host of other aspects of the phenomenological lives of its practitioners.372

6.1. Introduction

This chapter proceed in two parts. The first part reviews the core issues and different doctrinal positions presented in the debates surrounding the concept of ‘victim’ and

‘perpetrator’ in international law. This will be examined through a constructivist lens, and in light of the trials of Simone Gbagbo, Dominic Ongwen and the judgement delivered in the

Lubanga case at the International Criminal Court. Societies emerging from deeply embedded conflicts are faced with varied problems and the construction of victims and perpetrators are centrally located in these problems. These two concepts are controversial, as they are not mutually compatible, and are much more contested than the distinction seems to suggests.

This leads to complicated policy responses as well as diverse forms of political, moral and legal maneuvering.373 As this chapter suggests, the fundamental relationality of victimhood and perpetrator qualities leads to a sometimes functional, and at other times, highly volatile effort at constructing a definition. If we could only know who the victims are by knowing who perpetrators are, and vice versa, then would a certain circularity be involved in suggesting that the dichotomy is much more central to the enigma of international criminal justice than is commonly thought.

372 Martti Koskenniemi, The Gentle Civilizer of Nations: the Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001) at 7. 373 John D Brewer & Bernadette C Hayes, “Victims as Moral Beacons: Victims and Perpetrators in Northern Ireland” (2011) 6:1 Contemporary Social Science 73 at 88.

150 The tension between these two concepts tends to reproduce age old questions about who would merit amnesty, memorialization, criminal accountability and reintegration. At the domestic level, the tension complicates the formulation of appropriate policies for the reintegration of belligerents, while also incorporating victims’ demands for retribution and accountability. At the international level, this tension triggers the problematic legal questions of who is considered a ‘victim,’ as well as who is judged a ‘perpetrator’ in international law.

Much of international criminal justice can thus be recast as not simply the effort – as is conventionally understood – to establish the guilt of perpetrators, but to adjudicate between the competing claims of ‘perpetrator’ and ‘victim’ communities. The first part is divided into three major sub-sections.

The first subsection of the first part explores who is a perpetrator as “Hostis Humani

Generis” and argues that the principles of international law, which separate the responsibility of the perpetrator from the social context of their actions and agency, is difficult to maintain in the context of international crimes, and usually involves collective norms and actions. One of the risks is that victims will be understood too narrowly as victims of individual perpetrators, as opposed to victims of ‘events’, ‘ideologies’, ‘major historical cataclysms’, etc.

The second subsection of the first part will briefly explore the broader framework within which victims are constructed. It will question why that framework matters and is thus, impacted by that basic determination. The designation of victim and perpetrator rarely occurs in a void, or as part of a purely bilateral and exclusive relationship between ‘a’ victim and ‘a’ perpetrator. In this context, the definition of victimhood can quickly become a symbol around which contested notions of past violence and suffering are constructed and reproduced. Every victim today can be reimagined as a perpetrator at some other moment.

Thus, the tendency of international criminal justice to ‘freeze’ time to assess victimhood at a

151 certain moment in history sits oddly with the constant societal sparring about ‘who did what to whom first’ and the broader political narratives within which such claims are assessed.

The third sub-section of the first part begins to cautiously challenge the binary approach that has characterized the legal discourse surrounding the dyadic concept of victim- perpetrator. The realities of many post-conflict situations are much more complex than stated in international legal scholarships. More often than not, will victims be equal within a group of victims. That status may be internally contested even within the latter. Similarly, within the groups of perpetrators, not all perpetrators are the same, and one is always relatively more

‘innocent,’ and therefore relatively more of a victim, than other ‘perpetrators’. Finally, the two groups are rarely ever entirely separate and distinct and witness some significant overlaps. Some individuals are both victims and perpetrators, as seen in the case of Dominic

Ongwen and the surrounding events of the Rwandan genocide, to mention a few, thus blurring the divide.

The second part of this chapter concludes part one by discussing the prejudices that exist when international justice entrepreneurs objectify and exercise ownership over the stories of victims in the practice and scholarship of international law.

6.2. The Construction of the Victim-Perpetrator Dichotomy

Generally, the legal status of individuals and the extent to which they are the subject of international law has been a contested issue. This can be traced back to the 18th century positivist school, whose ideas dominated international law and firmly held the view that international law could only govern the relations between states and sovereigns, with individuals at best, being third-party beneficiaries.374 However, this traditional view has undergone significant changes with the increasing fragmentation of international law. It is

374 Steven R Ratner & Jason S Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 3rd ed (Oxford University Press, 2009) at 4.

152 now generally accepted that individuals are ‘limited’ subjects with rights and corresponding duties, and protecting victims and punishing perpetrators are now construed as integral elements of the international criminal law regime. The Rome Statute of the International

Criminal Court typifies this paradigm shift. Due to this paradigm, shift, it is paramount to explore the ways in which international law constructs the person of a “victim” and

“perpetrator” as legal entities.

Central to international law is the productive power of discourses, which establish a version of social reality as an objective truth from international processes and practices. This also has a repressive side,375 as it entails the simultaneous marginalization of alternative meanings. The positions of ‘victim’ or ‘perpetrator’, for instance, are discursive categories which offer individuals the opportunity to identify with a place in the social structure that tells them who they are and what they can do. Subjects then constitute themselves, if and when, they “step into” and identify with the positions carved out by a discourse.”376

Furthermore, it has been argued that the key to understanding the role that the law plays in international society lies in its understanding of the nature and operation, in practice, of legal obligations377. The remainder of this chapter will attempt to explore the legal construct of the legal obligation of ‘victim’ and ‘perpetrator’.

Essentially, international law characterizes a “victim” as a helpless individual who possesses human rights, and the “perpetrator” as a person who is criminally accountable for a breach of international law rules and principles. These two legal persons are projected as autonomous individuals, however the narrative also grounds them as members of groups that

375 See generally, Clarke, supra note 265.Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009).Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009). 376 Charlotte Epstein, The Power of Words in International Relations: Birth of an Anti-whaling Discourse (Cambridge Univ Press, 2008) at 93–95. 377 Brunnée & Toope, supra note 11.

153 international criminal norms seek to protect or punish. The normative tension that arises between the individual and collective form of legal rights and responsibilities is resolved in international law by reconstituting the idea of a legal person that is a victim or a perpetrator, through a conception of the universal community of humans. It has been argued that the idea of a ‘legal person’ relies on the idea of ‘humanity’ to hide the problematic conceptual basis of the rights and duties of victims and perpetrators in international law.378

Arguably, the conception of a legal person in international law implies that it “is the formal subject of rights and duties: a legal idea or construct not to be mistaken for the real natural being.”379 Therefore, it is imperative to locate the constitution of the victim and perpetrator as entities to which international law attributes rights and duties in order to understand their construction.

Over the centuries, the image of a legal person, be it a perpetrator or a victim, in international law has been cast in problematic ways by recognizing certain persons (and not others), as existing in legal relationships of rights and duties to other persons (as individuals or members of groups) and excluding others. Historically, the legal person of a victim traditionally is cast as that of an alien who has been subjected to abuses in a foreign land and who needs his sovereign to demand for reparations on his behalf for these abuses.380 Further constructions of “victims” include that of slaves, ethnic minorities in the East during nineteenth century legal scholarship, combatants during World War One, civilians during

World War Two, and more generally, certain individuals as victims of war crimes, and crimes against humanity under the current international law framework.

378 Campbell, supra note 4 at 326. 379 Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Bloomsbury Publishing, 2009) at 1. 380 Karl Josef Partsch, “Individuals in International Law” (1995) 2 Encyclopedia of Public International Law 957. The only notable exception to this general pattern concerned attempts to abolish slavery, which were based on an abhorre.

154 In this evolving construct, the doctrine of individual criminal responsibility establishes a relationship of legal obligations and benefit between the perpetrator and the victim. The victim possesses legal rights, such as the right to dignity, the right to a fair trial, the right to sexual autonomy and so on, while the perpetrator bears legal duties, such as compliance with binding international rules.381 In this way, legal rules and practices construct relationships between legal persons, and symbolize particular forms of intersubjective relations.382 They do not reflect the actuality of social relations. Rather, they epitomize ideas of subjectivity and intersubjectivity, in the sense that they represent social subjects and relations in legal form. In this approach, international criminal law is a representation of social relations between individual and collective legal persons. It determines which social relations will be legal, and which will be illegal; which persons will be legal subjects, and which will not; and which social relationships will be legal relationships, and which will not.383

Identifying the conceptual basis for the construction of victims and perpetrators requires a closer engagement with both the doctrinal principles and prosecutorial practices that are key elements to this process of constitution.

6.2.1. Constructing the Perpetrator in International Law

Historically, the liability of individuals for despicable conduct toward other human beings is not a new phenomenon in domestic criminal justice system. However, the hegemonic nature of states under international law shielded individuals from criminal liability until the ashes of World War II,384 which prompted reconsideration of individuals as

381 When these rights and duties are directly enforceable under international law can be considered a separate issues: Andrew Clapham, “The Role of the Individual in International Law” (2010) 21:1 European Journal of International Law 25 at 25. 382 Campbell, supra note 4. 383 Ibid. 384 Some commentators would argue that it was earlier.

155 perpetrators of war crimes. Only states could be held responsible at international law and the responsibility of individuals was viewed as a matter of domestic law, even if at times the state could be obliged under international law to enforce individual responsibility under domestic law. The unity of the state in international law mandated such a solution and the whole international law system hinged on such a fundamental tenet.385 In the same vein, individuals acting under the authority of a state could not be held personally accountable. This principle was characterized by the US Secretary of State Webster, in 1841 during the McLeod case, as a ‘principle of public law sanctioned by the usages of all civilized nations’ and remained a leading reference for shielding states’ organs acting under colour of authority from judicial scrutiny.386 In fact, the International Criminal Tribunal for the Former Yugoslavia (ICTY) said in Blaskic, ‘…under international law States could not be subject to sanctions akin to those provided for in national criminal justice systems.’387 For centuries, there has been an elusive ‘search’ for the perpetrators of international crimes.

Due to the nature of international crimes, it is very difficult to distinguish between the numerous participants and label their responsibility accurately. A similar characteristic of the participants of international crimes, in comparison to its domestic counterparts, is the collective aspects for both the perpetrator and the victims.388 While the perpetrator of a crime against humanity or international crime is individually culpable, he invariably commits this crime on behalf of, or in furtherance of, a collective criminal project, whether that of a state or some other authority.389 The hypothetical figure of the lone Génocidaires rarely exists in

385 Erich Kaufmann, Règles générales du droit de la paix (1935) at 398. 386 Robert Y Jennings, “The Caroline and McLeod Cases” (1938) American Journal of International Law 82. 387 Prosecutor v. Tihomir Blaskic, IT-95-14-T, Final Judgment 3 March 2000. See also ILC Draft Articles, Second Reading (1999).} 388 Payam Akhavan, “Justice in The Hague, Peace in the Former Yugoslavia” (1998) 20 Hum Rts Q 737; George P Fletcher, “The Storrs Lectures: Liberals and Romantics at Aar: The Problem of Collective Guilt” (2002) Yale Law Journal 1499; Fletcher & Weinstein, supra note 235. 389 Robert D Sloane, “The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law” (2007) 43 Stanford Journal of International Law 06 at 56.

156 practice. The perpetrator is part of, and acts within, a social structure that influences his conduct in conjunction with other people.390 Similarly, the victims of international crimes are mostly chosen not on their individual characteristics, but because of their actual or perceived membership of a collective.391

For instance, genocide is defined as performing certain acts such as killing or causing serious harm ‘with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such’.392 International crimes are also collective in the sense that they are committed with consciousness on the part of the individual perpetrator in knowing that he is part of a common project. While it would be far-fetched to say that there is a ‘corporate mens rea’393 at work in all international crimes, what can hardly be disputed is that crimes, such as crimes against humanity that are committed as a systematic and widespread attack against a civilian population, cannot be understood solely in terms of the mental state of each perpetrator. Rather, one must address the social structures and group solidarity that renders them possible. This is reflected in the intent requirement of international crimes, and can be based on the fear of violence, ethnic hatred or religious intolerance.394

A further distinctive aspect of international crimes is that the individual crimes do not deviate from, but conform to, the prevailing social norm.395 In this sense, they are indeed

“crimes of obedience”, as coined by Herbert Kelman. They are acts carried out under explicit instructions from makers of official policy, or at least in an environment in which they are sponsored, expected or tolerated by them, and which are considered illegal or immoral by the

390 Sloane, supra note 389. 391 Mark A Drumbl, “Collective Violence and Individual Punishment: The Criminality of Mass Atrocity” (2005) Northwestern University Law Review, Winter, online: at 571. 392 Convention on the Prevention and Punishment of the Crime of Genocide, (1948), online: at Article 2. 393 Sloane, supra note 389 at 58. 394 Mark Osiel, Making Sense of Mass Atrocity (Cambridge University Press, 2009). 395 Fletcher, supra note 388 at 1541; Immi Tallgren, “The Sensibility and Sense of International Criminal Law” (2002) 13:3 European Journal of International Law 561 at 575.

157 larger community.396 Mark Drumbl uses the terminology of jus cogen norms and the basic conception of human decency when speaking of this larger community.397 This is upheld regardless of whether the crimes are also committed for personal motives or with zeal.398

No doubt, the perpetrator of an international crime acts within a moral and cultural universe where his actions correspond to the values of the group to which he belongs. He may conceive of himself as being in the right and working to prevent injustice, or in self- defence.399 The victims are transformed into the guilty parties, and the group dynamic is reinforced by a myth of ethnic, religious, racial or national superiority that is under threat from the victims.400 This internal constitution of a perpetrator takes place through an active process of identification: ‘an identity requires an individual actively embracing it. It demands active recognition on behalf of the individual.’401 Identification, in the context of international crimes, occurs through the act of articulation i.e. where a perpetrator participates in a series of activities ranging from the formulation of a plan, deciding on the mode of its execution, setting up a framework to achieve the intended outcome and ordering subordinates to ensure its implementation.

This identification process was aptly captured in the judgment of the Nuremberg

International Military Tribunal (IMT), ‘international law violations are not committed by abstract entities but by individuals acting for the state.’402 As a result, the IMT Charter provided for individual criminal responsibility for violations of the laws and customs of war,

396 Herbert Chanoch Kelman, “The Policy Context of International Crimes” in System Criminality in International Law (2009) at 26, 27. 397 Drumbl, supra note 391 at 567. 398 Kelman, supra note 396 at 27; Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” (2001) 95:1 The American Journal of International Law 7. 399 Jose E Alvarez, “Crimes of State/Crimes of Hate: Lessons from Rwanda’(1999)” 24 Yale Journal of International Law 365 at 396–97; Mark A Drumbl, “Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda” (2000) 75:5 New York University Law Review, online: at 1221, 1243, 1245. 400 Alvarez, supra note 399; Tallgren, supra note 395; Drumbl, supra note 391. 401 Epstein, supra note 376 at 169. 402 ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of international law be enforced’ (Trials of the Major War Criminals before the International Military Tribunal, Nuremberg, 1947, at 223.}

158 as well as other egregious acts that were in connection with the war under the rubric of

‘crimes against humanity’. 403

In the global construction of the perpetrator in the international criminal law regime, individual criminal responsibility incurred by the perpetrator can be traced to the prohibition of the criminal conduct, such as war crimes, crimes against humanity and acts of genocide.

The inherent authority of International Criminal Law to punish the perpetrator of these crimes thereby constitutes a direct relationship between international law and the individual.404

Under contemporary international criminal law, the “foundation of criminal responsibility is the principle of personal culpability.”405 It has been argued that this ‘personal culpability’ principle draws upon two related notions and presupposes that a person cannot be held criminally liable for acts (1) perpetrated by other persons, or (2) for which he did not have the requisite state of intention.406

Also, the construction of a perpetrator in international law project her to be an autonomous individual, whose liability for her actions derives not from her ethical or social relationship to others, but from her individual will to action.407 This model of individual criminality is reflected in the principle of nulla poena sine culpa: that “nobody may be held criminally responsible for acts or transactions in which he has not personally engaged, or in some other way, participated.”408 Therefore, to become a perpetrator of international crimes, the individual must consciously will the criminal action. This assumption is reflected both in

403 IMT Charter, Art. 6(a).} 404 Virginia Morris & Michael P Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia (A Documentary History and Analysis),(Volume 1) (Transnational Publishers, Inc. Irvington-Hudson, New York, 1995) at 92. 405 Judgement, Prosecutor v. Tadic, Case No. IT-94-1-T, ICTY, Appeals Chamber, 1999, para 186 406 Cassese Antonio, International Criminal Law (Oxford University Press, 2003) at 136. 407 This Kantian model of autonomy has been subjected to numerous feminist critiques, most notably those relational critiques drawing upon the work of Carol Gilligan. For an overview of notably these debates, see Regina Graycar & Jenny Morgan, The hidden gender of law (Federation Press Annandale, NSW, 1990) at 194– 5. 408 {Judgement, Prosecutor v. Tadic, Case No. IT-94-1-T, ICTY, Appeals Chamber, 1999, para 186}

159 the mens rea requirements of the criminal offences, as well as the incapacity defences.409 This model of the autonomous moral agent, as the subject of criminal liability, links the juridical person and the “Kantian, retributive philosophy of punishment”.410 In this Kantian model, the perpetrator’s intentional commission of a wrongful act ties together legal and moral liability.

While there is a presumption in international law that the perpetrator is an autonomous individual who is solely responsible for his or her actions, the individual or collective nature of the legal person of a perpetrator has been a contentious issue.411 As early as 1942, Kelsen identified the relationship between individual and collective responsibility as a key dilemma in the punishment of war criminals. For him, the doctrinal and normative issues turned on whether individuals could be criminally liable under a legal order founded on the authority of the state, and hence, upon the collective responsibility of its members.412

However, developments in international law emphasized individual rather than collective criminal liability. For instance, the Genocide Convention imposes responsibility on individuals and not on political organizations or other non-natural persons, with the possible exception of states. Also, in 1994, the United Nations Secretary-General’s report on the establishment of the ICTY described the principle of individual criminal responsibility as an

“important element” of its’ competence ratione personae, and rejected the Nuremburg notion of collective criminal liability based on group membership.413

It can be argued that the footprints of collective criminal responsibility have not been totally wiped out from the doctrine and prosecutorial practices of international law.

409 For a discussion of the general principles of the two main categories of excuses under international criminal law: incapacity and absence of criminal intent, such as duress, see Antonio, supra note 34 at 224. 410 Alan W Norrie, “Punishment, responsibility, and justice: A relational critique” (2000), online: at 3. 411 Drumbl, supra note 391 412 Hans Kelsen, “Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals” (1943) California Law Review 530 at 534. 413 {UN Doc. S/25704 (3 May 1993), Report of the Secretary-General pursuant to paragraph 2 of resolution 808 of the Security Council.}

160 International criminal law does recognize notions of conspiracy, the complicity to commit genocide,414 co-operation, command theory and joint criminal enterprise, thereby inculpating individuals who may not have served as the immediate perpetrators of the crimes. As noted by the ICTY in the Tadic Appeal Judgment, “most of the time these crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality.”415 The doctrine of joint criminal enterprise, in particular, has been subject to much criticism for introducing a form of collective criminal responsibility and for failing to adequately ascribe the individual responsibility of the accused.416 The construct of these collective modes of participation has been highly contested, and remains contentious.

Furthermore, in constructing the perpetrator, international law utilizes the concepts of ‘human’ and ‘humanity’ in framing the perpetrator as an autonomous, willing and rational actor who is able to distinguish between right and wrong, and thus posits that a perpetrator of international crimes is an immoral person who chooses to act wrongfully. This was aptly described by Justice Jackson: ‘[i]t is not because they yielded to the normal frailties of human beings that we accuse them. It is their abnormal and inhuman conduct which brings them to this bar.”417 Subsequent judgments of the International Criminal Tribunals have utilized the concept of humanity in describing the perpetrators’ actions as ‘inhuman’ and ‘evil’. By constructing the perpetrator as inhuman, it provides a means of separating the actions of the

414 Harmen Van der Wilt, “Joint Criminal Enterprise Possibilities and Limitations” (2007) 5:1 Journal of International Criminal Justice 91 at 95. 415 {Tadic case, at para 191} 416 Verena Haan, “The development of the concept of joint criminal enterprise at the international criminal tribunal for the former Yugoslavia” (2005) 5:2 International Criminal Law Review 167; Mohamed E Badar, “‘ Just Convict Everyone!’-Joint Perpetration: From Tadic to Stakic and Back Again” (2006) 6:2 International Criminal Law Review 293. 417 Justice Robert Jackson Judgement, Trial of the Major War Criminals before the International Military Tribunal, Nürnberg, IMT, 14 November 1945 -October 1946, V. 1 (1947)

161 perpetrator from the values of their society, and thereby prevents that sociality from being classified in terms of collective guilt.418

Punishing the perpetrator is therefore based on the idea of ‘humanity’ shared by all people and transcends geographical boundaries or limitations. In fact, Grotius argued that the enemy of all mankind “has renounced the ties and laws of nature [and] are subject to attack and punishment by anyone with an interest in maintaining those ties.”419 The echoes of this conception of the enemy who has renounced his ties to the community of all persons, can be heard in the model doctrine of universal jurisdiction, whereby states are “authorized to prosecute and punish, on behalf of the whole international community” international crimes

“with a view to safeguarding universal values.”420 The perpetrator is then constructed and projected as breaching the fundamental obligations owed to all humanity, in that his criminal actions repudiate the universal social contract between all humans.

Paradoxically, a perpetrator is constructed as inhuman in terms of his capacity for evil, while at the same time, is casted as human in terms of been an autonomous and willing agent who can be held responsible for his actions.421 International law resolves this problematic position of the perpetrator by reinscribing them within the universal community of mankind. International law constitutes the perpetrator’s action as inhuman, but the perpetrator is not thereby rendered an exception to the international legal regime. Rather, international law’s system of punishment is designed precisely “to rehabilitate the person/perpetrator, remove the infection of inhumanity, and heal the body politic by reintegrating the perpetrator through the performance of a (period of) punishment”.422

However, this reintegrative resolution of the inhumanity of the perpetrator’s actions operates

418 Alan Norrie, “Justice on the Slaughter-Bench: The Problem of War Guilt in Arendt and Jaspers” (2008) 11:2 New Criminal Law Review: In International and Interdisciplinary Journal 187. 419 Jody Greene, “Hostis Humani Generis” (2008) 34:4 Critical Inquiry 683 at 695. 420 Antonio, supra note 406 at 284–285. 421 Arendt, supra note 33. 422 Anonymous cited in Campbell, supra note 4.

162 not just by subjecting the individual lawlessness of the perpetrator to rule of law. Instead, international law invokes universal ethical norms of all humanity in order to replace group violence within the legal regulation and to recreate the sociality destroyed by that violence.423

From the above analysis of the difficulties in constructing the perpetrator in international law, it is glaring that there are deeper conceptual problems with the different notions of the perpetrator. For instance, Kantian “orthodox subjectivism” separates the individuals from “the broader social and moral context within law.”424 Subsequently, the principles of international law separate the responsibility of the perpetrator from the social context of their action and agency. However, maintaining the separation between legal responsibility and social realities in the context of international crimes, which usually involves collective norms and actions, is very difficult to sustain. This is the core of the dilemma in constructing a victim or a perpetrator in societies emerging from deep complexities of armed conflicts, authoritarian regimes and massive violations of human rights.

6.2.2. Constructing the “Ideal Victim”

The ‘ideal victim’ is the representation of society’s view of what a victim should be.

The ideal victim reflects a common conception of a person who is innocent, vulnerable, very young or a woman, and a good citizen who has been attacked by a big, bad perpetrator. The society’s construction of the ‘ideal victim’ serves to contrast the ‘wicked’ perpetrator who requires punishment, and fits into retributive discourses, simplifying and distorting the reality of crimes where such identities do not always exist in practice.425 Furthermore, the

423 Kirsten Campbell, “The trauma of justice: Sexual violence, crimes against humanity and the International Criminal Tribunal for the Former Yugoslavia” (2004) 13:3 Social & Legal Studies 329. 424 Norrie, supra note 410. 425 McEvoy & McConnachie, supra note 31 at 502.

163 construction of the ‘ideal’ victim serves to present victims as passive and vulnerable.426 This conception robs victims of their autonomy and agency.

The ideal victim construction is widely disseminated by the media and plays an important role in the constant staging of good and evil.427The construction of the ideal victim influences not only public opinion but also the law. For instance, German victim compensation law allows compensation only to victims of violence who have satisfactorily cooperated with the police and who have not been involved in any reprehensible activities.428

The use of the victim label within conflict and post-conflict societies can perpetrate a very powerful moral conception of the victim. Participants in conflicts can portray themselves as collective victims in order to get recognition of the victim label and its corollary benefits of being seen as the ‘good guys’ in the conflict, that are deserving of sympathy and support, and innocent of any crime.429 There is also a danger of ‘moral relativism’, particularly with international crimes, whereby an individual or group blame their situation, context, or structural factors for committing such crimes, and as a result, legitimize the violence committed against individuals and deny recognition of certain victims.430

In summary, the construct of a perpetrator and a victim in international law therefore draw from the notion of belonging to a group, or acting individually by being a direct victim or indirect victim, as envisaged by the institutional norms. However, these different notions and the categorization of a perpetrator or a victim has not resolved the deep problematic

426 Anne-Marie McAlinden, “Deconstructing Victim and offender Identites in Discourses on Child Sexual Abuse Hierarchies, Blame and the Good/Evil Dialectic” (2014) 54:2 British Journal of Criminology 180 at 22. 427 Elias, supra note 199 at 233; Marilyn D McShane & Frank P Williams, “Radical Victimology: A Critique of the Concept of Victim in Traditional Victimology” (1992) 38:2 Crime & Delinquency 258 at 267; “The news media and crime victims: The right to know versus the right to privacy.” in (New York: Springer, 1992). 428 Evelyn Tampe, Verbrechensopfer: Schutz, Beratung, Unterstützung (Boorberg, 1992) at 188–189. 429 Daniel Bar-Tal et al, “A Sense of Self-Perceived Collective Victimhood in Intractable Conflicts” (2009) 91:874 International Review of the Red Cross 229. 430 McEvoy & McConnachie, supra note 31 at 502.

164 conceptual basis of protecting victims and punishing perpetrators. This will be explored in the following few concrete critiques.

6.2.3. The Constructive Tension in the Victim-Perpetrator Dichotomy

In the international law discourse regarding the concepts of victims and perpetrators, the two categories have been cast as two separate and homogenous groups of people.

Generally, there are the victims and there are the perpetrators with no gray areas in between, as discussed above. Also inherent in this narrative, is the assumption that both groups are homogeneous: victims and perpetrators are referred to as if they are all the same. The victims and The perpetrators. Further, in the worst cases, the two are set up as diametrically opposed

– i.e. victims versus perpetrators.431 This has especially been the case in the debate surrounding amnesty in South Africa, reconciliation in Northern Ireland, Rwanda, and some

Latin American countries.

However, these two categories of persons are highly problematic for countries that have been battered by years of armed conflicts or authoritarian regimes. Policies towards these two categories are difficult to determine and sometimes constitute constraints on the formulation and implementation of peace agreements regarding amnesty, accountability, memorialization etc. It can be argued that the crux of the divergence in peace settlements is the question of how to deal with victims and perpetrators. This is important in the negotiations leading up to a successful peace process and international law has not has not offered any concrete solution other than the binary approach to the concepts.

The following examples provide a brief analysis of complex situations where there has been a muddling of the waters in the divide between the two concepts. I argue that the current binary divide provides critical challenges for international law scholars and theorists.

431 Tristan Anne Borer, “A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa” (2003) 25:4 Human Rights Quarterly 1088.

165 The victim/perpetrator dichotomy is conceptually troubling in most countries emerging out of conflicts; it is more complicated and much less clear cut. Telford Taylor, a

Nuremberg prosecutor, wrote in the conclusion of his account of the trial that “there is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street.”432 However, the reality of international criminal accountability, since the

Nuremberg trials, is that perpetrators from the victorious sides are mostly chided from accountability despite the heinous atrocities they might have committed. This negates the spirit and intent of the principle of the universality of human rights that all victims of human rights abuses deserve justice regardless of which side they belong to.

For instance, the many atrocities committed by the winners in the Rwandan and

Balkan conflicts, as well by the African National Congress (ANC) during Apartheid in South

Africa have been overshadowed by the enormity of international crimes committed by the losers. The narrative carefully constructed in Rwanda today is that Tutsis are viewed as victims because they were targeted for genocide by the Hutus and largely because of the failure of the international community to ‘save’ them.

Often, the victim/perpetrator dichotomy closely charts a line that runs between different ethnic, national, racial, political or religious groups that were involved in episodes of international crimes. For example, the cognitive map of ‘good Tutsis’ and ‘bad Hutus’ has been employed by the Rwandan government to define the categories of people involved in the genocide and therefore simply the moral, political and legal questions around victimhood.433 This disguises the Tutsi-led atrocities against the Hutus when quelling the

Hutu-led violence and entirely overlooks the many moderate Hutus killed by other Hutus when they offered resistance or tried to protect Tutsis.434 In fact, evidence from the Rwandan

432 Telford Taylor, The Anatomy of the Nuremberg Trials: a Personal Memoir (Knopf, 2012). 433 Brewer & Hayes, supra note 373 at 76. 434 John Brewer, Peace Processes: A Sociological Approach (Cambridge: Polity Press, 2010) at 123.

166 Genocide, which left close to 800,000 Rwandans, mostly Tutsi, dead in the course of 100 days, revealed that there are some individuals who, although committed acts of genocide, also saved people. For instance, two Rwandan nuns were accused of collaborating with Hutu militia to kill Tutsis seeking refuge at the Sovu convent in Butare, Rwanda. Both nuns are accused of forcing Tutsis to leave the Sovu convent compound when they knew that armed

Hutu militia was gathered outside; Nun Gertrude called Hutu soldiers who then stoned, hacked, and burned to death over 5,000 men, women, and children. Nun Marie was found guilty of supplying Hutu soldiers with the petrol they needed to start a fire that burned 700 people to death, who were hiding in a garage on the grounds of the convent.435

Furthermore, in the different narratives of the Rwanda genocide, there is a huge silence on the role the Tutsi-led Rwandan Patriotic Front army (RPF) played in the killing of

Hutus, thereby ignoring and marginalizing the sufferings of Hutus. There is significant evidence that RPF soldiers carried out systematic murders both during and after the 1994 genocide.436 The RPF is responsible for killing more than 30,000 Hutu civilians during 1994, according to Human Rights Watch.437 These atrocities by the RFP obliterate the divide between the victim and perpetrator dichotomy.

Interestingly, the Rwandan government, under the leadership of Paul Kagame, did not deny that many Hutus were killed during the genocide. Rather, the government maintained that most of the crimes were revenge killings carried out by aggrieved soldiers acting alone upon learning that their families were murdered in the genocide.438 However, this

435 Gilles Casonguay, “We Couldn’t Stop the Massacre, Two Rwandan Nuns Tell Court” (2001) 5 Toronto Star, May. 436 Alison Liebhafsky Des Forges, Human Rights Watch & International Federation of Human Rights, “ Leave none to tell the story”: genocide in Rwanda, 189 (Human Rights Watch New York, 1999). 437 Marlise Simons, “Rwanda Is Said to Seek New Prosecutor for War Crimes Court - NYTimes.com”, online: . 438 Paul Kagame, the former commander of the RPF in 1994, is not very open for any allegation on this point, as noted by Car.

167 “revenge motive” has been faulted because evidence suggests that the pattern of killings was too extensive to be solely attributed to individual anguish.439

Drawing a parallel to the events in South Africa, after decades of apartheid rule in the country, the ANC attempted to fight the apartheid regime by peaceful means. But after the famous Sharpeville massacre, in which 69 people were shot, the ANC decided to take up arms. In their struggle against the brutal apartheid regime, they themselves committed atrocities not only against their white oppressors, but also against alleged traitors among their own people.440 In its report the South African Truth and Reconciliation Commission (TRC) mentions widespread excesses, abuses and gross human rights violations by supporters and members affiliated to the anti-apartheid movements. A particularly infamous method used by young activists was neck lacing: a method whereby a tire filled with gasoline is forced around the neck of a victim and set on fire resulting in a brutal and painful death. Most violence was however obviously directed against the white oppressor. As a final conclusion, the TRC noted that while it fully endorsed the international law position that apartheid was a crime against humanity. It also recognizes that both the African National Congress (ANC) and the

Pan African Congress (PAC) were internationally recognized liberation movements that conducted a legitimate struggle against the former South African governments and its policy of Apartheid441. However, it also stressed that it was important to draw a distinction between the conduct of a ‘just war’ and the question of ‘just means’ and concluded: “(…) whilst its struggle was just, the ANC had, in the course of the conflict, contravened the Geneva

Protocols and was responsible for the commission of gross human rights violations.” The

TRC thus took a fair and nuanced view on the blameworthiness of the various groups who committed crimes and showed that in a perfectly legitimized struggle, in which we can

439 Des Forges, Watch & Rights, supra note 436; Gérard Prunier, The Rwanda Crisis: History of a Genocide (Columbia University Press, 1995). 440 Truth and Reconciliation Commission of South Africa, Volume 6 Section 3, Chapter 3, (1998) at 655. 441 Ibid at 642.

168 identify a perpetrator/aggressor and the victim/savior, the latter can commit crimes even as acts of self-defense. These examples teach us that the world is not as black and white as international law literatures tends to assert.

After its declaration of independence in June 1991, Croatia lost a third of its territory and suffered heavy losses at Vukovar and other major towns at the hands of the Yugoslav

People’s Army (JNA) and breakaway Croatian Serbs. Following this defeat, the fledging

Croatian state began to build up its armed forces in the hopes of retaking the Krajina region that was declared as the state of the Croatian Serbs. In early August of 1995, the Croatian military launched two well-planned military campaigns that quickly recaptured territory lost to Serb forces at the beginning of the war in 1991. This led to the consolidation of the newly independent Croatian nation.442 The success of the May and August 1995 campaigns

(Operations Flash and Storm) marked a reversal of fortunes for the once anemic Croatian army and paved the way for the country’s emergence as a regional power.

Croatia’s decisive military victory led to the victimization of the Croatian Serbs.443 It is on record that during Operation Storm, the larger of the two military campaigns, Croatian forces killed at least 150 Serbs, forced the disappearance of hundreds more, and drove between 150,000 to 200,000 Serbs out of Croatia in what, at the time, was the biggest refugee crisis of the Balkan wars.444 Former President, Franjo Tudjman, insisted that the Serbs who left Croatia in 1995 were not forced out, but chose to leave on their own accord. However, evidence shows that Tudjman embarked on a policy of ethnic cleansing. Although Serbia remained the chief villain in the West’s eyes, Croatia was not immune from criticism of its wartime conduct.445 For Croatian nationalists, the country emerged from its independence war

442 Serbia returned the portion of Eastern Slavonia it seized in 1991 to Croatia in 1998. 443 Croatian atrocities against Serb civilians during the Homeland War also occurred in 1991 and 1993. 444 Allan Little & Laura Silber, Yugoslavia: Death of A Nation (United States: Penguin USA, 1996). 445 Ivo Goldstein, Croatia: A History (McGill-Queen’s Press-MQUP, 1999) at 254.

169 – commonly referred to in Croatia as the Homeland War (Domovinski rat) – not only as a victor but also as victim because of its earlier suffering at the hands of the Serbs.446

It is interesting to note that the divide between a victim and a perpetrator are sometimes blurred when individuals are forced to comply and commit certain crimes under a direct threat. For instance, during the Rwandan genocide, many Hutus had to prove their loyalty by raping, mutilating or killing Tutsis. The penalty for not doing so, often was that they themselves were raped, mutilated or killed. Testimonial evidence shows that many

Hutus who did not comply with such orders were killed and many testified that they were more afraid of their fellow Hutus than they were afraid of the Tutsis. Also, Dražen

Erdemović, who was tried at the ICTY for crimes against humanity, said that after he complained about the order to shoot all Muslim men who were brought to their units by bus, he was given the choice to join the ranks of the shooters or to stand in line with the victims and be shot together with them.447

The most extreme and also most tragic form of enforced cooperation is when perpetrators force members from the targeted victim group to cooperate with them and play a role in the discrimination and destruction of their own people. Unfortunately, several dictatorial and oppressive regimes have successfully relied on this method. In some cases, victims are forced to cooperate at gun point, whereas other perpetrators have used more refined methods in which they compromised victims into cooperation. In some cases, this enforced cooperation is so successful that those pressured into cooperation become real perpetrators themselves. While people who commit at gunpoint are rarely considered perpetrators, those who fully adapt to their new enforced identities as perpetrators generally receive little sympathy

446 Victor Peskin, “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners At The International Criminal Tribunals for the Former Yugoslavia and Rwanda” (2005) 4:2 Journal of Human Rights 213. 447 Prosecutor v. Erdemovic ICTY IT-96-22-A

170 One of the problems is that many perpetrators of international crimes portray themselves, and were encouraged ideologically, to see themselves as victims. For instance,

Hitler’s ascension to power was, to a large extent, based on the ‘stab in the back legend’ in which the Jews were blamed for Germany’s disgraceful loss in the First World War. Also, the

Jews were blamed for the economic crisis, which according to the Nazi’ assertions, was caused by Jewish greed.

This act of scapegoating is not limited only to Nazi Germany; many political entrepreneurs have used this type of political propaganda to justify their criminal acts. In

Indonesia in 1998, massive violence was largely directed at the influential ethnic Chinese minority who were blamed for the economic woes of the country. Another example is Stalin, who justified his oppressive policies by asserting that a group of political saboteurs conspired to bring down the Soviet State and caused his five-year plans to fail. By arbitrarily arresting people, by sending them to work in camps for hard labour, by torturing them and forcing them to admit to their ‘guilt’ in show trials, Stalin depicted his political opponents as terrorists who needed to be treated harshly, and the Soviet population as the victims in need of protection.

It could be deduced that genocidal and violent ideologies that refer to past victimhood do so to mobilize the masses and to politically justify the violence.448 In other words, many perpetrators see themselves as victims and do not want to be challenged on the veracity of their assertions. Most of the time, international crimes are usually committed by perpetrators who conceive of the victims as perpetrators of crimes or even atrocities themselves.449 Such perceptions of victimhood may make it difficult to convince certain populations of the way in which they partake in certain forms of responsibility. However

448 Roy F Baumeister, The Self in Social Psychology (Psychology Press, 1999) at 49. 449 Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge University Press, 2005); James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass Killing (Oxford University Press Oxford, 2002).

171 fantasized, victim status can give certain coherence to narratives and help escape reckoning with the past.

6.3. The Production of Victims in International Criminal Justice

In this section, I would like to reflect on the inherent prejudices that exist when international justice entrepreneurs objectify ‘victims’ and exercise ‘responsibility’ for the victims’ story to sustain their “conventional repertoire” by “framing” collective action and

“mobilizing” people and resources. I hope to explore in some detail, the legitimacy of others to speak about, or for the victim, while maintaining the passivity of the victim in the ownership of the story.

While it is true that in most post-conflict situations or in situations of extreme violence, victims might seem to lack the skill or ability to speak for themselves, vis-à-vis their oppressors, the power that wield the instruments of the state and others such as aid workers, NGO officials, and “academic migrant workers”. However, the practice of speaking for and about victims perpetuates their disempowerment and marginality.450 At most times, in the production of the victimhood, international justice entrepreneurs, especially NGOs, always position themselves as the speakers or authorized representatives for the victims, not because the victims gave them their speaking mandate, but because the entrepreneur sought the victim out, categorized her, defined her, theorized her, packaged her, and disseminated her on the world stage.451

In the dissemination of the victims to the world stage, the international justice entrepreneur reinforces her status as the authoritative knower, the subject matter expert, who is able to teach, civilize and rescue the benighted, hapless victim. This could be called a form

450 Madlingozi, supra note 268 at 210. 451 Ibid at 211.

172 of cultural imperialism. This cultural imperialism not only leaves the victim in the same position prior to this encounter, but could be an act of further violence and dispossession.452

The reality of the victims’ dispossession is more clearly visible in the work of the civil society organizations, who are involved in lobbying and advocacy work in the area of international criminal justice. The civil society organizations have considerable impact by contributing, among other things, to the global struggle against impunity through sustained and continued advocacy for the creation of more robust institutional mechanisms to prosecute perpetrators of international crimes. However, to be effective, these civil society organizations attempt to exercise responsibility to the victims’ story, by speaking about and for the victims with the intention of encouraging the Assembly of State Parties to the Rome

Statute, States, the United Nations and others to adopt multilateral treaties. These treaties are aimed at a alleviating and ending the suffering of victims, and include the Convention on the

Rights of People with Disabilities, the Convention on the Elimination of All Forms of

Discrimination against Women, or the Palermo Protocol.

The ability of civil society organizations to mobilize around public policy issues and their capacity to shame states to respect human rights and be more accountable to their citizenry, especially in the so-called Third World countries, has raised important questions about who they represent. This has resulted in claims of “normative grey zones” that are alleged to have broken the habitual link between law and state.453

The growing controversy surrounding civil society organization’s mandate of

“saving” and “rescuing” victims everywhere has been echoed by critical scholars such as

Mutua, who argued that this saving mission is a continuation of the missionary impulse to

452 Madlingozi, supra note 268. 453 Anna-Karin Lindblom, Non-Governmental Organisations in International Law (Cambridge University Press, 2005); M Cherif Bassiouni, “Searching for Peace and Achieving Justice: The Need for Accountability” (1996) 59:4 Law and Contemporary Problems 9; Susan Dicklitch, The Elusive Promise of NGOs in Africa: Lessons from Uganda (Macmillan, 1998) at 3.

173 civilize and save the Third World.454 Mutua presents this criticism through a metaphor he termed the ‘savages-victims-saviours (SVS) construction’: the victim sandwiched between

‘the ogre’ (the state) and the ‘redeemer, the good angel’ (INGO officials).455 At the same time, for advocates of human rights the knowledge that they are ‘heroic agents for an authentic suffering elsewhere’ kills any chance of solidarity with those cast as victims456, in some situations. For Kennedy, this representational dimension of human rights advocacy is the most despicable thing. He calls it voyeuristic and pornographic, and about using human rights as the language of emancipation and empowerment.457

Proponents of international criminal justice, especially the offshoot field of transitional justice, often deprive victims of their agency in ways that are adverse to victims’ empowerment and active citizenship. This has prompted scholars to view ‘transitional justice’ as a global project aimed at reconstructing Third World states in Western liberal democratic terms.458

A major criticism of the whole enterprise of the international criminal justice, which has mostly been typified by the former Prosecutor of the International Criminal Court, Louis

Ocampo, have become ‘over dominated by a narrow legalistic lens.’459 Despite the agitation for an active victims’ constituency, the delivery of the international criminal justice has been state-centric. It has adopted state-like institutions and a ‘top down’ approach, where a narrow conception of justice is advanced in different conflict theaters without consideration to the local realities, which make a ‘One Cap Fits All Approach’ ill-suited to it. This approach

454 “Once again, the allegedly superior Europeans and North Americans descend on supposedly backward natives in the Third World with the human rights mission to free them from the claws of despotic governments and benighted cultures.” See Mutua, supra note 35; Mutua, supra note 229. 455 Mutua, supra note 35. 456 David Kennedy, “International Human Rights Movement: Part of the Problem?” (2002) 15 Harv Hum Rts J 101 at 112. 457 Kennedy, supra note 457. 458 Patricia Lundy & Mark McGovern, “Whose Justice? Rethinking Transitional Justice from the Bottom Up” (2008) 35:2 Journal of Law and Society 265. 459 Kieran McEvoy, “Beyond Legalism: Towards a Thicker Understanding of Transitional Justice” (2007) 34:4 Journal of Law and Society 411 at 421.

174 deprives local communities of their agency, so that they are merely seen as either victims to be rescued or perpetrators to be prosecuted. The entire post-conflict populations are viewed either as traumatized victims lacking the ability to make decisions about the future, or as people driven by destructive psychosis that renders them incapable or morally unworthy of positive contributions to peace-building.’460

Despite the contested notion and hierarchies of victimhood, the ‘victim’ produced by the international criminal justice project is a hapless and passive victim highly dependent on civil society organizations, academia and others to speak for her and argue her case.

Moving briefly away from the international criminal justice project, the international human rights movement has been accused of producing a racially inferior and politically disempowered subject. It has been argued that the human rights discourse is part of a project to substitute emancipatory politics based on active citizenship with ‘statism’. That is, politics of demobilization and passivity reliant on ‘state-delivery’ or delivery by other institutions like NGOS whose mode of operation is, despite rhetoric to the contrary, overwhelmingly top- down. The politics and practice of human rights discourse are actually disempowering as they produce ‘passive citizenship dependent on power (states, empire, NGOs, etc.) for its existence.461

In summary, the production of victims/victimhood in international criminal justice is a complex and subjective term with multiple interpretations complicated by multilayered political contexts where individuals could be victims in one instance and perpetrators in another instance. Its nuances are embedded in different cultural, economic, realities and social norms, which are vulnerable to manipulations by politicians, civil society organizations and even the victims themselves. In fact, states such as Rwanda, Sri Lanka and Israel have

460 Lundy & McGovern, supra note 459 at 265.. 461 Michael Neocosmos, “Can a Human Rights Culture Enable Emancipation? Clearing Some Theoretical Ground for the Renewal of a Critical Sociology” (2006) 37:2 South African Review of Sociology 356; Robert Meister, “Human Rights and The Politics of Victimhood” (2002) 16:02 Ethics & International Affairs 91; Mutua, supra note 229.

175 used the concept of victimhood to advance their foreign policy, construct the image of the state as a victim and use such imagery to garner support from other states or even silence other opposing states.

6.4. Conclusion

This chapter has sought to problematize the concepts of victims and perpetrators.

The categorization of these two notions remains much more complex and contested than it is typically acknowledged. In many ways, the imposition of the framework can be the source of a form of violence. Furthermore this complexity expands outwards to affect legal issues such as amnesty, accountability and reparation, which rests problematically on the ability to produce a clear victim/perpetrator dichotomy. Crucial to this discourse is the issue of the equality of both victims and perpetrators, and the way in which international criminal justice produces extremely polarized outcomes, depending on where one is located. Does international law need to be more nuanced to capture the complexity that is inherent in situations of political violence? If truth is the first casualty of war, then complexity must surely be the second.462 In the midst of paroxistic political struggles, it may be that it is easier and more gratifying for international law criminal lawyers and scholars to think in terms of absolutes rather than in shades of gray. The suggestion in this thesis is that we should rethink, although not necessarily abandon altogether, the idea that victims and perpetrators are always two separate and distinct groups. These analytical concerns raise practical questions about who is to be counted as a victim and perpetrator as well as deep moral questions about the nature of the conflict and the lasting responsibilities towards the people affected by it. In such

462 Marie Smyth, “Remembering in Northern Ireland: Victims, Perpetrators and Hierarchies of Pain and Responsibility” in Past Imperfect: Dealing with the Past in Northern Ireland and Societies in Transition (Derry/Londonderry, Northern Ireland: INCORE/UU, 1998) at 45.

176 circumstances, victims are hard to identify and offer poor moral standards against which society at large should determine its level of forgiveness or revenge.463

463 Brewer & Hayes, supra note 373.

177 Chapter 7: Gender Construction of Victimhood in International Law

I do not fear the shells and bombs that may fall on my house. They do not ask for my

name. I fear the foot soldiers who break into my house and kill and wound in a very

personal way and commit atrocities in front of my children.

A Muslim Woman from Bosnia-Herzegovina464

7.1. Introduction

The objective of this chapter is to explore the construction of victimhood in international law with the intention of showing how gender, sexuality and sometimes ethnicity constitute each other in the representation of sexual violence in armed conflicts.

Further, I hope to discuss the narratives surrounding the labelling of women who experienced sexual violence in armed conflict, as “victims”. While sexual violence in armed conflicts is not a recent phenomenon, it has received increased attention due to the massive scale of sexual violence offences committed during the conflicts in the former Yugoslavia, Rwanda,

Liberia and many other countries where armed conflict is raging.

The unfortunate and gruesome reality of sexual violence in our world has reinforced a vision of men as the typically being the rapist, and not of being raped. Moreover, the discourse of sex (men against women) has tended to displace more complex visions of sexual violence as informed by gender. Of course, this is not only a perception. In most wars and conflicts, as well as in times of peace, the reality is that men are rapists, not women.465 I do not wish to deny that fact in this chapter. However, I do wish to argue that the perception of men only and always as perpetrators, and never as victims of rape and other forms of sexual

464 Testimony of a Moslem woman from Bosnia-Herzegovina, quoted in Catharine A. MacKinnon, “Genocide’s Sexuality”, in Melissa S Williams & Stephen Macedo, Political Exclusion and Domination (NYU Press, 2005) at 313. quoting Prosecutor v. Kupreskic, Transcript, Case No. IT-95-16-T (ICTY, 14 January 2000). 465 Dubravka Zarkov, “The Body of the Other Man” in Victims, Perpetrators or Actors? Gender, Armed Conflict and Political Violence (New York: Zeb Book, 2001) 69 at 69.

178 violence, is a very specific, gendered narrative of armed conflicts and victim construction, which has two potential negative impacts. First, it may, as several critical feminist scholars have underlined, involuntarily perpetuate myths of womanhood as the archetypal form of victimhood, minimizing women’s agency in times of armed conflict and reifying patriarchal claims by their groups to their bodies.466 Second, it risks shrouding the experiences of boys and men in a culture of silence and thus obviating some of the more complex ways in which gendered violence occurs. In this narrative, dominant notions of masculinity merge with norms of heterosexuality and definitions of ethnicity and ultimately designate who can or cannot be named a victim of sexual violence. This chapter is based on the assumption that men and women become targets of sexual violence primarily due to their respective gender roles in a society and mark an attempt to conceptualize the link between masculinity, sexual violence and the compelling legal narratives produced by the international criminal tribunals through different analytical frames.

The chapter proceeds in four sections. The first section explores the construction of sexual violence in armed conflicts and argues that sexual violence has been used as a dominating and controlling tool, mostly against women in conflict zones. The second section analyzes narratives emerging from the International Criminal Tribunals on sexual violence in armed conflicts and argues that these tribunals produce compelling narratives that detail and help make sense of the infliction of sexual violence on men and women. The third section explores the feminist perspective on sexual violence in the aftermath of mass violence and deconstructs the argument that women are innocent, pure and therefore could not be administrators and perpetrators of evil. The fourth section explores the lived experiences of boys and men who suffer sexual violence in armed conflict. It aims to deconstruct the

466 Karen Engle, “Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina” (2005) 99:4 The American Journal of International Law 778; Janet Halley, “Rape in Berlin: Reconsidering the criminalisation of rape in the international law of armed conflict” (2008) 9 Melb J Int’l L 78; Doris E Buss, “Rethinking ‘Rape as a Weapon of War’” (2009) 17:2 Feminist legal studies 145.

179 existing notion that boys and men cannot be subjected to sexual violence in the context of armed conflict. This further contributes to their marginality in existing literature and the jurisprudence of the international criminal tribunals.

7.2. Constructing Gender-Based Sexual Violence in Armed Conflicts

Sexual violence can be broadly defined as acts of a sexual nature imposed by force, threat of force or coercion, or by taking advantage of a coercive environment or a person’s incapacity to give genuine consent. It encompasses acts such as rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization. Sexual violence occurring in an armed conflict can be committed for strategic purposes, opportunistically, or because it is tacitly tolerated.

Throughout history, sexual violence particularly the rape of women during war, have been deemed an unavoidable consequence of wartime, which was encouraged to boost the troop’s morale, along with pillaging and property crimes.467 This was encapsulated in the phrase “to the victor go the spoils,” which typically referred to women since Helen of Troy, except that the value of women solely as property has been replaced over time by a more sophisticated value system.468 The realities of rape and sexual violence in armed conflict469 have been documented extensively.

For many decades, rape has been used as an act of conquering women. It signifies victory, proof of the soldier’s masculinity and success, and act to incite compensation for waging a war. Furthermore, since the time that women were regarded as property, having unrestricted access to a woman’s body was considered a reward for participating in war. In fact, a 1998 UN Report on sexual violence and armed conflict notes that historically, armies

467 Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (Martinus Nijhoff Publishers, 1997) at 18–23. 468 Alona Hagay-Frey, Sex and Gender Crimes in the New International Law: Past, Present, Future (Martinus Nijhoff Publishers, 2011) at 2. 469 Askin, supra note 467.

180 consider rape as one the legitimate spoils of war.470 However, sexual violence, and more specifically rape during armed conflict, are acts of domination, grounded in a complex web of cultural preconceptions regarding gender roles. Sexual violence may be encouraged or tolerated within armed groups. In some conflicts, it has been used strategically to advance military objectives, such as the clearing of a civilian population from an area.471

The occurrence of sexual violence and rape during armed conflict are used to achieve several objectives. First, sexual violence is used to torture and humiliate civilians, and may be aimed at gaining control over the victims, or as a compliance mechanism during detention or forced recruitment. Furthermore, rape in an armed conflict, is used to punish or humiliate an enemy group with the knowledge that it will have broader impact on that group. For instance, sexual violence against women and girls is often intended to humiliate their families and communities since women and girls are regarded as “bearers of honour” and their victimization is supposed to shame the men for failing to protect their women.

It is also used as a means of destroying family and community structures, most overtly when armed groups commit public rapes in front of the community, force family members to witness each other’s rape, or even force people to commit acts of sexual violence against their own family members. Rape, by the victorious army, destroys any illusion still held by the defeated army as to their power and ownership of the female – property. The body of the raped woman becomes a symbolic battlefield. It is viewed as ground that is trampled upon by the march of victorious troops. The spectacle played out on the stage of the woman’s body is a message transmitted between men – persuasive proof of one side’s victory

470 United Nations, “Sexual Violence and Armed Conflict: United Nations Response” available online at http://www.un.org/womenwatch/daw/public/cover.htm (accessed December 14, 2015). 471 Bastick Megan, Grimm Karin & Kunz Rachel, “Sexual Violence in Armed Conflict: Global Overview and Implications for the Security Sector” (2007) Geneva: Geneva Centre for the Democratic Control of Armed Forces; Christine Chinkin, “Rape and Sexual Abuse of Women in International law” (1994) 5 Eur J Int’l L 326; Christopher W Mullins, “‘We Are Going to Rape You and Taste Tutsi Women’Rape during the 1994 Rwandan Genocide” (2009) British journal of criminology 40.

181 and the other side’s defeat.472 Sexual violence is committed to instill terror in a population, and to incite flight from a given territory. In some places, it has been part of an act or attempted act of genocide, committed with the intention of contributing to the destruction of a particular ethnic or social group.473

Despite the stark and gruesome realities of rape in armed conflicts, while rape was prohibited, it was not recognized as a crime against women until the second half of the twentieth century. Rather, it was simply recognized as a crime against the woman’s honour.474 However, this characterization obfuscates the cruelty of the physical injury, ignored the injured woman’s viewpoint and adopt the society’s typically male-oriented viewpoint as the focal point of discussion. This ground the female victim as damaged and worthless. Furthermore, this narrative prevents the prosecution of the perpetrators of crimes of sexual violence since it is not deemed to be one of the “more serious” crimes.

This characterization further denies the physical and emotional harm caused by rape, as it places emphasis on the issue of shame and not on the violent nature of the crime.475 This characterization requires a degree of sexual purity, or virginity, on the part of the victim as a precondition necessary for the loss of honour. These requirements are also largely premised on social concepts “constructed by men for their own purposes,” with little regard for how woman perceive or experience forms of sexual violence.476 Thus, the emphasis placed on honour and shame reduce rape to a crime against male property, and did not recognize it as a violation of a woman’s personal autonomy or physical integrity.

472 Susan Brownmiller, Against our Will: Men, Women and Rape (New York: Simon and Schuster, 1975) at 38. 473 Megan, Karin & Rachel, supra note 471. 474 Rana Lehr-Lehnardt, “One Small Step for Women: Female-Friendly Provisions in the Rome Statute of the International Criminal Court” (2001) 16 BYU J Pub L 317. 475 Dorothy Q Thomas & Regan E Ralph, “Rape in War: Challenging the Tradition of Impunity” (1994) 14:1 SAIS review 81. 476 Judith Gardam, “Women and the Law of Armed Conflict: Why The Silence?” (1997) 46:01 International and comparative law quarterly 55 at 57.

182 The incidence of sexual violence in armed conflict was largely ignored by the earlier international criminal tribunals. Durng World War II, mass rapes were prevalent on all sides of the conflict, yet the two courts set up by the victorious allied countries to prosecute suspected war crimes — in Tokyo and Nuremberg — did not recognize the crime of sexual violence. On the few occasions where rape was addressed by historical legal bodies or treaties, these provisions were typically underused or, more commonly, trivialized and misrepresented the concept of sexual violence in armed conflict. Instead, and as mentioned above, it characterized sexual violence as an attack against male property or against a woman’s honor.477

The strategic use of rape was present and documented in the conflicts in the former

Yugoslavia and Rwanda. During the Rwandan Genocide, it was estimated that between

250,000 and 500,000 women were raped or exposed to other forms of sexual violence.478

Many women were killed during or following their rapes, and there were allegations of the women being purposely infected with STIs and HIV by the perpetrators of these heinous crimes so that their pain and suffering was prolonged. The use of rape in the Rwandan genocide fulfilled several strategic goals, and most were planned and ordered by those who orchestrated the genocide.479 During the civil war in the former Yugoslavia, it is estimated that between 25, 000 and 50,000 women were raped in Bosnia-Herzegovina alone.480 The victims were predominantly Bosnian Muslim women who were commonly held in de facto

“rape camps”, where they were subjected to multiple rapes and were often forcibly impregnated. These rapes formed part of a wider “ethnic cleansing” campaign perpetrated by

477 Kelly D Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles” (2003) 21 Berkeley J Int’l L 288; Kelly D Askin, “A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003” (2004) 11:3 Human rights brief 5. 478 Mullins, supra note 471 at 16. 479 Mullins, supra note 471. 480 Cindy S Snyder et al, “On the Battleground of Women’s Bodies Mass Rape in Bosnia-Herzegovina” (2006) 21:2 Affilia 184 at 189.

183 Serbian military and militia groups against the Bosnian Muslim population.481 The number of men and boys raped in the former Yugoslavia were not estimated by any credible sources.

The later part of this chapter will further explore the experiences of men and boys as victims of sexual violence.

The horrific rapes committed in the former Yugoslavia and Rwanda prompted the drafters of the Statutes of the International Criminal Tribunal for former Yugoslavia (ICTR) and the International Criminal Tribunal Rwanda (ICTR) to include rape as a crime against humanity as well as other crimes. This has been regarded as a paradigm shift in the treatment of sexual violence in international law and the subsequent “gendered jurisprudence” that emerged from the ad hoc tribunals established to address the crimes committed during these two conflicts. These tribunals have since been hailed for providing “groundbreaking redress” for crimes of sexual violence, and for their significant contributions in establishing gender jurisprudence and case law on war-time sexual violence.482

The evolution of sexual crimes in international law continues with the adoption of the

Rome Statute in 1998 and the subsequent creation of the International Criminal Court (ICC).

Heavily influenced by the gender jurisprudence and case laws established under the ICTY and ICTR, the Rome Statute, for the first time in the history of international law, included various forms of sexual and gender-based crimes. This included rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence, as underlying acts of both crimes against humanity and war crimes committed in international and non-international armed conflicts. The Rome Statute also criminalized persecution based on gender as a crime against humanity. Sexual and gender-based crimes may also fall under the Court’s jurisdiction if they constitute acts of genocide or other acts of crimes against humanity or war crimes. Furthermore, the ICC’s Rules of Procedure and

481 Snyder et al, supra note 480. 482 Askin, supra note 477; Campbell, supra note 423.

184 Evidence and the Elements consolidate important procedural and evidentiary advancements to protect the interests of the victims. This, in combination with the court’s appointment of an unprecedented number of female judges and its mandate to ensure that women are adequately represented at all levels of the court, have led some commentators to theorize that the ICC will act as a “beacon of hope” for victims of war-time sexual violence, as it represents a

“woman-friendly institution for the victims and witnesses that appear before it.”483

While the gender jurisprudence established by the two ad hoc tribunals and the subsequent adoption of the Rome Statute represent “revolutionary” and “unparalleled” advances in international law – when compared to the centuries of legal silence on crimes committed against women, girls, boys and men during armed conflict – it is necessary to explore the gender narratives that underpin the works of these international tribunals to see how they contribute in complex and occasionally problematic way to the ongoing construction of the victim.

7.3. International Criminal Tribunals’ Narratives on Sexual Violence

In this part of the chapter, I will focus on the International Criminal Tribunals’ narratives in response to acts of sexual violence in armed conflicts. These tribunals interpret treaties, conventions and their statutes to determine criminal accountability. This produces compelling narratives that detail and clarify of the infliction of sexual violence on men and women. The legal narratives produced by these tribunals, as well as the factual findings, are based on evidence that prosecutors, witnesses and other interested parties present to the tribunals. Furthermore, these narratives have the ability to legitimate victims and condemn perpetrators of sexual violence. They can produce different categories of victims,

483 Cherie Booth & Max Du Plessis, “The International Criminal Court and Victims of Sexual Violence” (2005) 18:3 South African Journal of Criminal Justice at 242, 258.

185 perpetrators, collaborators, martyrs, traitors, and heroes – all as expression of “good” and

“bad” gender models.484

These narratives occur within all sectors of society and, because of their authoritative potential, can have impact on gender roles and relations in periods of violent political transition or armed conflicts. Violence ultimately generates and transforms social hierarchies and perceptions within and between groups that are often perpetuated beyond. In the aftermath of violence, communities shape collective narratives that can represent the cultural remembrance of the violence. This is significant for the group identity, including gendered identities that are often deeply influenced by episodes of sexual violence. However, narratives can be contested and may be a source of conflict between members of a society.485

The decisions of the International criminal tribunals, constituted after violent political transitions or armed conflicts, are not free from bias inherent to adjudicating grievous crimes.

The words law and fact reveal the hegemonic power relations between states with vested interests, and how they contribute to the collation of fact and law, which affects the formulation of the legal narrative, in most cases. Many stakeholders, including prosecutors, victor states, former colonial masters, non-governmental organization (NGOs), and international donors take part in the political negotiations of law, fact and the applicable standards before these criminal tribunals.

Also, political circumstances can limit the investigative reach of prosecutors and defense counsel, expedite extradition processes, and moderate sentencing practices. Political narratives about the interests of the victor, the needs of the victims, and the reckoning with the vanquished are expertly woven by transitional governments; they colour justice processes before these tribunals, which is ultimately the product of political negotiations, be it a peace

484 Chiseche Salome Mibenge, Sex and International Tribunals: The Erasure of Gender from the War Narrative (University of Pennsylvania Press, 2013) at 4. 485 Mibenge, supra note 484.

186 accord, Security Council vote, or an agreement between the state and the United Nations

Secretary General. For instance, despite evidence of widespread rape during the Rwandan genocide, the crime was addressed belatedly by the UN. Sexual violence was neither highlighted in the international media nor discussed by the UN Security Council in connection with the Rwandan conflict in any early reports.486 After significant delays in the investigations of sexual violence by the Special Rapporteur and the Security Council’s

Rwanda Commission, it was instead the human rights advocacy efforts by non-governmental organizations (NGO) that provided information on the rapes.487

While widespread evidence of rape and sexual violence existed in both the former

Yugoslavia and Rwanda, the initial treatment of crimes relating to sexual violence in the

ICTY and the ICTR differed. For example, the UN resolution establishing the ICTY specifically referenced sexual violence against Muslim women,488 although the resolution creating the ICTR made no mention of the topic.489 Possible reasons for the inconsistent response by the UN to sexual violence offences against women in the two locales include the focus on killing, rather than on rapes in Rwanda; cultural differences, namely taboos about speaking of rape in the African context; and the varying roles of lobbying forces.490

Furthermore, at most times the prosecutors face evidential obstacles including a lack of evidence to sustain a rape charge, or directly or closely linking high-level officials to crimes of sexual violence.491 Perpetrators, who are not on trial, are understandably unwilling

486 Judith Gardam & Michelle Jarvis, “Women and Armed Conflict: The International Response to the Beijing Platform for Action” (2000) 32 Colum Hum Rts L Rev 1 at 152–153. 487 Gardam & Jarvis, supra note 486; Richard J Goldstone & Estelle A Dehon, “Engendering Accountability: Gender Crimes Under International Criminal Law” (2003) 19:1 New England Journal of Public Policy 8 at 19. 488 See The Secretary-General, Report Pursuant to Paragraph 2 of the Security Council Resolution 808, ¶¶ 9, 11, 48, 88, 108, presented to the Security Council, U.N. Doc. S/25704 (May 3, 1993) 489 Gardam & Jarvis, supra note 486 at 154. 490 Judith Gail Gardam & Michelle J Jarvis, Women, Armed Conflict, and International Law (The Hague; Boston: Kluwer Law International, 2001). 491 See, e.g., Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment (Nov. 16, 2001); Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Judgment (Jan. 22, 2004); Prosecutor v. Nahimana, Case No. ICTR-99-

187 to confess to committing acts of sexual violence at the ICTR. This is perhaps because in the

Rwandan criminal justice system, which was established post-genocide, perpetrators could be charged with a first category offence and subject to the death penalty if convicted.492 Also, rape in Rwanda had been noted as a difficult crime to document because of a dearth of accurate eyewitness testimony, the stigmatization of victims, worries of public shame among victims and fears of perpetrators still living with the victims.493 This has been referred to as

“culture of silence” surrounding sexual violence.

Over 280 men, so far, have been convicted by international criminal courts and tribunals for varying international crimes including sexual violence and only two women were convicted of international crimes. On June 24, 2011 Pauline Nyiramasuhuko is the first woman ever to be found guilty and sentenced to life imprisonment by the International

Criminal Tribunal for Rwanda for her leading role in the genocide and commission of widespread rape in Butare, Rwanda.494 The other woman convicted was the Serbian politician

Biljana Plavsic who pleaded guilty and was convicted for persecution as a crime against humanity by the International Criminal Tribunal for former Yugoslavia on February 27,

2003.495 Drawing from the above statistics, the overall gender perception of women in the aftermath of mass violence, not only as victims but also as perpetrators, is missing. Women are continuously idolized as pristine and pure objects incapable of sexual violence, mass murder and genocidal behavior.496

52-T, Judgment and Sentence, ¶ 1079 (Dec. 3, 2003); Prosecutor v. Kajelijeli (Kajelijeli Judgment and Sentence), Case No. ICTR-98-44A-T, Judgment and Sentence (Dec. 1, 2003) 492 Madeline H Morris, “Trials of Concurrent Jurisdiction: The Case of Rwanda, The” (1996) 7 Duke J Comp & Int’l L 349. 493 Binaifer Nowrojee, Shattered lives: Sexual violence during the Rwandan genocide and its aftermath (Human Rights Watch, 1996); Richard Palmer Barrett & Laura E Little, “Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in International Tribunals” (2003) 88 Minnesota Law Review 30 at 54. 494 Prosecutor v. Pauline Nyiramasuhuko et al. ICTR-98-42-T (2011) 495 Prosecutor v. Biljana Plavsic (Sentencing Judgement), IT-00-39&40/1, International Criminal Tribunal for the former Yugoslavia (ICTY), 27 February 2003 496 Laura Sjoberg & Caron E Gentry, Mothers, Monsters, Whores : Women’s Violence in Global Politics (London; New York; New York: Zed Books ; Distributed in the USA by Palgrave Macmillan, 2007).

188 In any international criminal justice processes, there are a variety of narratives on sexual violence: legal and political, as well as social. For instance, social narratives are usually embedded in tales, myths, anecdotes, proverbs, and stories that emerge from within a society on any given subject including on sexuality and gender. Scholars, researchers, writers, journalists, human rights defenders, and others codify these usual testimonies through a process of social narratives that can become a vehicle for political activism and advocacy.497

Episodes of mass violence throw up critical questions on gender construction and narratives, especially on the question of suffering; who suffers in war, and in what proportion? Potential answers to these questions can be observed between victims, victim organization, humanitarian organizations, the media, and human rights advocates, depending on their specific political agendas and their vision of gender and victimhood. Although the focus has increasingly been on women in the last decades, men have also at times been amongst the chief victims of war. One only needs to think of the First World War and the death of large numbers of men, a fact that was repeatedly underlined at the time, in the report of the Committee on Alleged German Outrages, (often call the Bryce Committee).

Some argue that men suffer the worst human rights abuses as they are more often killed, rather than raped.498 The image of Srebrenica, for example, where thousands of men and boys were led to an execution ground while women were put on buses and exiled from their village, bolsters this view.499 Others torment the public with images of abandoned or orphaned children, conveying the message that children suffer the most, as they are the most vulnerable to exploitation. Still, others tell us that women actually suffer the most atrocious forms of violence, often in the form of rape. They are raped because it is a fate worse than

497 Mibenge, supra note 484. 498 Adam Jones, Gendercide and Genocide (Vanderbilt University Press, 2004) at 2. 499 Karen Engle contested the idea of “rape is worse than death”. See Engle, supra note 466.

189 death; perpetrators of rape tell women that they will die from sadness, and that there is no need to waste bullets on them. Women, especially widows, are left to head households and rebuild shattered families and lives.

Further critical questions emerge in the narratives being constructed by the international criminal tribunals. How did men and women experience sexual violence and human rights violations during armed conflicts? Which men and women have their narratives privileged by the prosecutor’s investigation? Who is representing or giving voice to victim’s experiences, and how do they edit out “inconsequential” details from the formal processes of justice before indicting the perpetrators at these tribunals? A succinct answer to these questions reveals a dominant narrative of gender and violence emerging from the international criminal justice processes, a dominant narrative that seeks to represent women, not only as victims of armed conflict, but as rape victims of militarized masculinity. This narrative essentializes women as a monolithic victim group and gender as a unitary ground of discrimination. In essentializing women’s gender role thus, this dominant narrative fails to acknowledge variance within the group and ultimately variance in the experience and impact of gender-based violence on women and men. Also, this narrative perpetuates the dangerous subaltern status of women.500

Furthermore, this dominant narrative requires a “perfect” or “legitimate” victim who is allowed to gain access to these international criminal tribunals, but is also required to adjust their testimony of atrocity in war to fit the script provided by the dominant narrative. A major ill of this dominative narrative is that it excludes the women, girls, men, and boys whose experiences do not fit, and are therefore not fully authenticated by a legal narrative. In

500 Rosalind C Morris & Gayatri Chakravorty Spivak, Can The Subaltern Speak? : Reflections On The History of An Idea (New York: Columbia University Press, 2010); Karen Engle, “Female Subjects of Public International Law: Human Rights and The Exotic Other Female” (1991) 26 New Eng L Rev 1509; Rarna Kapur, “Tragedy of Victimization Rhetoric: Ressurecting the" Native" Subject in International/Post-Colonial Feminist Legal Politics, The” (2002) 15 Harv Hum Rts J 1.

190 this dominant narrative, female victimhood is characterized by the women’s innocence and consequently their moral authority over the rest of the society, as a result of this victimhood.

As argued by Zur, “[t]he victim status is a powerful one. The victim is always morally right, neither responsible nor accountable, and forever entitled to sympathy”.501 And yet, despite these important achievements, the inclusion of sexual violence in the vocabulary of international criminal justice is a mixed blessing, since it reproduces gender essentialisms and fixes the social position and political identity of women as perpetual “victims”: passive, inferior, vulnerable and in need of (male) protection.

While the established international criminal tribunals have flourished with landmark decisions, interpretations and definitions on sexual violence,502 social scientists have documented how the state, media, and propaganda include and exclude victims of gender- based violence from narratives of victimhood in former Yugoslavia, South Africa, and other transitioning societies.503

In the production of the narratives on sexual violence at the international criminal tribunals, the extent of the willingness, or the inability of these international criminal tribunals to hear women or even men, on discriminatory grounds, has not been investigated.

It appears that criminal justice processes, in contrast to the domestic level, are immune from projecting gender, race, and other forms of bias on victims and witnesses. Moreover, there is still very little understanding of how theories of intersectionality might apply to the victim, as constructed by international criminal law. Typically, for international criminal tribunals,

501 Ofer Zur, “The Psychology of Victimhood” (2005) Destructive trends in mental health, The well-intentioned path to harm 45 at 20. 502 The watershed judgment case Prosecutor v. Akayesu (Akayesu Judgment), Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998) has been pronounced as “perhaps the most groundbreaking decision advancing gender jurisprudence worldwide. 503 Dubravka Zarkov, The Body of War : Media, Ethnicity, and Gender in The Break-up of Yugoslavia (Durham: Duke University Press, 2007).; Fiona C Ross, “Women and the Politics of Identity, Voices in the South African Truth and Reconciliation” (2005), available online: http://www.africabib.org/rec.php?RID=W00093330 (accessed December 15, 2015); Fiona C Ross, “Bearing Witness: Women and the Truth and Reconciliation Commission in South Africa” (2003), available online: http://www.africabib.org/rec.php?RID=W00093328 (accessed December 15, 2016).

191 victims are defined by one characteristic. This could be their sex or their ethnicity, or sometimes their age. However, the extent to which these characteristics overlap and create complex victims remains understudied. While there is an understanding that elderly, poor, and illiterate women may lack the means to access justice, there is no examination of whether international prosecutors might arbitrarily consider poor, illiterate, and elderly women and men to be unreliable witnesses or simply implausible victims of rape. This bias could limit the ability of victims to share their stories, or to bear witness to war-time rape in a meaningful way. As a consequence, international criminal tribunals could effectively silence, rather than hear, victims. In any event, biases emanating from the international criminal justice processes has yet to be thoroughly interrogated by legal scholars.

7.4. Feminist Narratives on International Law

In constructing the role of gender in international law, feminist scholars and commentators have displaced two powerful gendered narratives that undermined the development of relevant international law protection for women in armed conflict. The first narrative limits women’s victimhood to the loss of husbands and sons on the battlefield.

Feminist commentators do not deny that that loss of a male head of the household can be a devastating loss for women. They argue that the loss of social status, due to the death of husbands or sons, is closely linked to the loss of civil status in cases where, for instance, women’s property rights or citizenship rights are dependent on the male guardian.504

The second narrative that is dismissed is that rape is the only gender-based violation that distinguishes the experiences of women in armed conflict from that of men. While research on sexual violence in armed conflicts may reveal that rape predominantly targets women, there is a tendency to ignore that a gendered analysis of armed conflict requires an

504 Lee Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century England (Univ of Toronto Pr, 1983); Linda K Kerber, No Constitutional Right To Be Ladies: Women and the Obligations of Citizenship (Macmillan, 1998).

192 understanding of other cross-cutting issues. Factors such as housing rights, food insecurity, health, and the loss of one’s livelihood, shape gender-based violence but also exist independently as human rights concerns for women, separate from rape or the threat of rape.505

As discussed above, international law did not expressly address the status of women in armed conflicts, although it implicitly reduced women’s vulnerability to rape and other forms of violence. The Japanese Army’s enslavement of Korean, and of other women in the

1930s, and then throughout World War II, is a good example of the outcomes of this exclusion of women from the public realm.

Unfortunately, the Allied response to war crimes committed by the Axis Powers affirmed this position. The military trials in Tokyo and Nuremberg represent the first international effort to establish individual criminal accountability for war crimes and crimes against humanity. Yet, the narrative produced by these trials totally ignore the well documented evidence of the systematic enslave of Asian girls and women in World War II, despite the adoption of the 1926 Slavery Convention.

This has prompted the argument that sexual violence or rape during armed conflict is not only a crime, but includes an additional layer. It is a tool for the subordination of women, for male sexual satisfaction and empowerment, and for the confirmation of male control over the female gender.

The feminist argument is that international law was invented and formulated by men in order to protect men, and therefore, historically, ignored violence against women.506 This argument, while similar to the feminist claims concerning other subjects, is stronger in this

505 Donna Pankhurst, Gendered Peace: Women’s Struggles for Post-War Justice and Reconciliation (Routledge, 2012); Cynthia H Enloe, Globalization and Militarism : Feminists Make the Link (Lanham: Rowman & Littlefield, 2007). 506 Askin, supra note 477 at 47–48..

193 area of law the argument, and in light of the incontestable historical maleness of the participants of armed conflict. The lack of women’s involvement in the decision-making process of armed conflicts; the minimal number of women in the international legal field, acting as judges, prosecutors or defense lawyers; as well as the nearly exclusive involvement of men as legislators and judges in international law, contribute to the failure of international law to deal appropriately with violence against women. These factors have perpetuated female inferiority and prevented advancements in the issues related to women.

An analysis of international law’s view of women demonstrates that in each of those rare instances in which international law does relate to women, they are viewed primarily as victims (particularly as mothers or potential mothers) and, on that basis, they are considered worthy of defense. International criminal tribunals tend to shift the role of women from active agents seeking justice to the category of “victims” in international criminal processes. This was illustrated in a study by Julie Mertus about the impact of criminal trials for sexual violence at the ICTY on women’s agency.507 The women’s initial motivation to participate in the trials was to mobilize other survivors, to influence international opinion, and to shape international norms, as well as to receive public recognition for their harms, to create a public historical record, and to achieve closure.508 Yet, in the course of the proceedings they came to realize that they could not use the trials for their own purposes. Rather, according to Mertus,

“witnesses almost universally experienced the trials as dehumanizing and re-traumatising experiences” so that they became disillusioned with the adversarial process.509 Through the particular form of questioning, as usually practiced in court, where the prosecutors appropriate the testimonies to their own schema of who did what, how, and when, the women did not have the opportunity to tell their whole story. They were not the focus of attention for

507 Julie Mertus, “Shouting from the Bottom of the Well The Impact of International Trials for Wartime Rape on Women’s Agency” (2004) 6:1 International Feminist Journal of Politics 110. 508 Ibid at 111. 509 Ibid at 112.

194 their own sake but only in order to reveal something about the perpetrators.510 This had little therapeutic impact, if any, while undermining their ambitions to turn from “victims” of sexual violence to agents in the international criminal justice process. As usual, they were reduced to the status of passive “victims”, thereby having their voice and agency silenced.

This situation is further enhanced by what has been referred to as the “peril of representation”511 where, international criminal justice entrepreneurs speak on behalf of groups and individuals they label “victims”, including women as “victims” of sexual violence. In this sense, “speaking for and about victims further perpetuates their disempowerment and marginality.”512 As a consequence, the “victim” produced by international criminal justice entrepreneurs513 and others, is passive, hapless, and dependent on others to speak on his or her behalf. This reproduces relationships of global and local inferiority and superiority,514 as well as undermines women who want to testify about sexual violence, and shift their status as “victims” to agents.

The violence of representation practices is evident in the case of convicted female perpetrators who, instead of becoming a representation of female capabilities in the perpetration of international crimes, are stripping women perpetrators of their agency and minimizing the severity of their actions to pure happenstance, unnatural or the result of male manipulation. This has totally obscured the role of women enablers and the actors of international crimes, including sexual violence or genocide. This would invariably produce a skewed image of the psychology behind genocide.

510 bid at 115. 511 Kennedy, supra note 456 at 121. 512 Madlingozi, supra note 268 at 210. 513 “International Criminal Justice Entrepreneurs” refers to the multitude of stakeholders such as International NGOs, Academic Think Tanks etc. who usually use their conventional repertoire to frame collective action and mobilize people and resources for the international justice project. 514 Madlingozi, supra note 268 at 213.

195 Inherent in this representative construct is the idea of the woman being a “beautiful soul”. This concept was produced by Hegel via Elshtein, and portrays women as incapable of violent behavior, expected to be against war and violence, and cooperative with the wars being fought to protect their innocence and virginity.515 In this belief system, male counterparts are granted both the agency and will in the perpetration of international crimes, while women are not viewed as equally capable perpetrators of evil.

Furthermore, without diminishing the importance of prosecuting sexual violence in armed conflicts, Katherine Franke emphasized that the selectivity of sexual crimes might have a counterproductive impact on broader issues of gender justice.516 The exclusive focus on sexual crimes is based on a highly selective image of femininity, which is marked by peacefulness and non-aggressiveness. This leads to ignoring women’s role as political agents in times of crisis, and consequently also as executors of violence and cruelty.517

International law has feigned ignorance, or closed its eyes to women that have played an active role in armed conflict. Women have remained excluded in most cases from the international criminal justice and transitional justice processes.518 For instance, in Liberia, the

Truth and Reconciliation Commission highlighted the plight of women as “victims” of violent sexual violence, while it failed to highlight that women formed a significantly large part of the warring factions - 30% of the combatants were female.519 Accordingly, their crimes were not considered in the public eye. In doing so, the findings of the Truth and

Reconciliation Commission undermined the political activities, as well as the competence of women to make independent policy decisions. It constructed them as passive objects. Here,

515 Sjoberg & Gentry, supra note 496 at 4. 516 Katherine M Franke, “Gendered Subject of Transitional Justice” (2006) 15 Colum J Gender & L 813 at 825. 517 Franke, supra note 516. 518 One exception is the court case against Pauline Nyiramasuhuko at the ICTR. She is accused of instigating Hutu militias to rape Tutsi women during the 1994 genocide in Rwanda. 519 Silke Pietsch, “Women‟ s Participation and Benefit of the Liberian Truth and Reconciliation Commission- Voices from the Field” (2010) Unpublished Master‟ s Thesis Philipps University, Marburg.

196 and once more, there is a risk that the portrayal of women as “victims” undermines the efforts taken to hold them accountable for their crimes and fails to render them as equal agents in societies emerging out of armed conflicts.

Hence, the absence of women in international trials highlight the lack of political equality and the inferior power of women, as expressed by radical feminism.520 It has been argued by commentators that there is an urgent need to expose the silencing of the feminine voice in modern society, to give a voice to women in law generally and more particularly, in legal proceedings. This would form part of a political act constituting part of the struggle for change in the hierarchical power structure of society.521

7.4.1. Feminist Activism and International Law

Much of the developments surrounding the prosecution of sexual violence in international law, by the international criminal tribunals, can be attributed to pressure mounted by women’s organizations, feminist activists, scholars and to the presence and work of female investigators, prosecutors and judges within the tribunals who helped “ensure that gender and sex crimes [were] properly investigated, indicted, and prosecuted”.522

The advocacy work of feminist organizations continued after the establishment of the two ad hoc tribunals, especially the Women’s Caucus for Gender Justice. This organisation had a significant influence on the adoption of gender-sensitive provisions and laws in the

Rome Statute, achieved during the Rome Conference. Specifically, the Women’s Caucus advocated towards ensuring that a gendered perspective was included throughout the entirety of the Rome Statute, and that a wide range of sexually violent crimes were codified as

520 Catharine A MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987). 521 Carol Gilligan, In a Different Voice : Psychological Theory and Women’s Development (Cambridge, Mass.: Harvard University Press, 1982); Catharine A MacKinnon, Only Words (Harvard University Press, 1993); Katharine T Bartlett, “Feminist Legal Methods” (1990) Harvard Law Review 829. 522 Askin, supra note 477; Askin, supra note 477; Engle, supra note 466.

197 distinct offences and recognized as constituting other crimes including torture, enslavement, genocide, and inhumane treatment.523

As such, international law and legal norms reflect the experiences and perspectives of armed conflict by men. International law has remained relatively resistant to the incorporation of women’s voices and feminist critique. While women have achieved significant advancements in international law, women as a group defined by the discourse of international law, continue to occupy a particularly gendered position, “often as victims, particularly as mothers, or potential mothers, in need of protection”

Further within the gendered hierarchy of international law, certain crimes and issues are prioritized and others are regarded as secondary concerns. Specifically, international law prioritizes the “public” activities of states and state agents, as well as various political and economic issues, over social, humanitarian and other critical issues, which have commonly been relegated to the “private” sphere. This public/private dichotomy, as demonstrated in domestic and international legal discourses, is a central binary construction which is one of the core critiques of feminist legal theory.524 As such, violence against women has commonly been “viewed as falling on the private side of the public/private dichotomy,” it has been shielded from “public investigation, scrutiny, and prosecution.”525 Armed conflicts, rape and other forms of sexual violence are still commonly regarded as private crimes perpetrated by individual actors.526 Thus the failure of international law to adequately address sexual violence in armed conflict is often attributed to the construction of it being a private crime. A

523 Barbara Bedont & Katherine Hall-Martinez, “Ending Impunity for Gender Crimes under the International Criminal Court” (1999) 6 Brown J World Aff 65; Booth & Du Plessis, supra note 483; Engle, supra note 466. 524 Gardam, supra note 476. 525 Heidi Nichols Haddad, “Mobilizing the will to prosecute: Crimes of rape at the Yugoslav and Rwandan Tribunals” (2011) 12:1 Human Rights Review 109 at 4. 526 Chinkin, supra note 471; Pamela Goldberg & Nancy Kelly, International Human Rights and Violence Against Women (HeinOnline, 1993).

198 consequence of this distinction, whether intended or not, is the continued invisibility of crimes against women to international legal responses.527

On few occasions when sexual violence against women is prosecuted in international law, the private/public dichotomy is not easily put away. For instance, it has been argued that the ICTR’s prosecution of rape as a component of genocide, defined rape as a crime “not because it is a crime of violence against women and a manifestation of male dominance, but because it is an assault on a community defined only by its racial, religious, national or ethnic composition.”528 In effect, rape as a component of genocide enters the public sphere as it is defined as a crime against the community, and not against the individual woman, or women in general.

Thus, international legal definitions of sexual violence, particularly rape, in the context of armed conflict and genocide, incorporate and continue to perpetuate the private/public distinction. The notion of collective victimhood, as arguably defined by men, is the focus, and the private realms of individual women’s lives are left unexamined.

Consequently, it has been argued that “human rights have not been women’s rights,” as the formal legal recognition of crimes committed against women is often limited to the crimes that have also happened to men.529

It has been argued further that crimes committed in the public sphere against men and women, especially when they involve economic and political offences, are recognized as crimes against humanity. In comparison, the abuses to which women are commonly subjected to in their private homes by spouses and relatives are not recognized as constituting

527 Bedont & Hall-Martinez, supra note 523; Hilary Charlesworth, “Hidden Gender of International Law, The” (2002) 16 Temp Int’l & Comp LJ 93; Chinkin, supra note 471; Goldberg & Kelly, supra note 526; Megan Mackenzie, “Securitizing Sex? Towards a Theory of the Utility of Wartime Sexual Violence” (2010) 12:2 International Feminist Journal of Politics 202. 528 Charlesworth, supra note 527 at 387. 529 Catharine A MacKinnon, “Rape, Genocide, and Women’s Human Rights” (1994) 17 Harv Women’s LJ 5 at 6.

199 a violation against humanity. Therefore, women are not recognized as constituting humans in their own right in international law, as “what is done to women is either too specific to women to be seen as human or too generic to human beings to be seen as specific to women”.530

7.4.2. Gender and Sexual Violence

During armed conflicts, men and women become targets of sexual violence due to their gender-specific roles within a society. Reference to gender here means the socially constructed roles ascribed to women and men, and not the biological and physical characteristics, as captured by the word ‘sex’. The value of men and women is closely tied to their ability to internalize, perform and fulfill idealized gender as socially constructed in each society. This differs from one society to another. Expectations on gender shape the way in which men and women interact in every sphere of social activity, such as those that determine access to resources, security, power, and participation in political, cultural, and religious activities.531 Although the details vary from society to society, and change over time, gender relations always include a strong element of inequality between women and men and are influenced strongly by ideology.532

Traditionally, gender groups are divided into two monolithic units: men and women.

However, this division is inaccurate as it totally obscures the invisible subgroups and cultures within a dominant gender group. It also hides the hierarchies and hegemonic power within a single gender group. Thus, within a monolithic group of men, there is an idealized man who fulfills the gender expectations as dictated by his society. Those men who conform to this model of masculinity would enjoy greater civil, political, economic and social freedom than

530 MacKinnon, supra note 529. 531 Donna Pankhurst, “The ‘Sex War’ and Other Wars: Towards a Feminist Approach to Peace Building” (2003) 13:2–3 Development in practice 154 at 166. 532 Pankhurst, supra note 531.

200 men who do not conform to the idealized model. The construct of an idealized man differs from one society to another. In one society, it could be a Muslim, heterosexual, a father, self- employed, married, and faithful to his wife; in another, he may be Protestant, educated to college level, heterosexual, a father, married, and casually but discreetly involved with multiple sexual partners. The women who complement and enable men’s performance of an idealized masculinity are promised greater security and bargaining power in a patriarchal universe. Furthermore, they have privileged access to contested or scarce resources. Equality requires that the gender roles of both women and men, who do not fulfill and/or complement the idealized male gender role model, are awarded comparable status as those of the idealized male, and are thus entitled to an equal access to rights and resources.533

The socially constructed bifurcation of gender roles are triggered in armed conflicts, and in this sense, men and women are not always targeted as individuals but as key actors of the respective ethnic/religious political identity group. This can take various forms. For women, their social/biological role as reproducers of ethnic, religious or national groups through childbirth could turn them into targets of sexual violence, including rape (inter alia to impregnate them with children of the enemy group), mutilation of their reproductive organs, and forced sterilization, with the intention to undermine the reproductive organs of their identity group. This has been referred to as acts of ethnic cleansing, or even genocide, as ruled by the ICTR. Moreover, rape and mutilation can be understood as a symbolic attack on the “Mother of the Nation”, i.e. the guardian of the respective identity group, or as Jean

Elshtain puts it, on the symbolic representation of the body politic.534

The destruction of social and cultural cohesion within a group reduces its external value, and is humiliated and degraded in the process. This is particularly visible in incidents where husbands, brothers and sons are forced to witness the rape of female members of their

533 Mibenge, supra note 484. 534 Jean Bethke Elshtain, Women and War (University of Chicago Press, 1987) at 67.

201 family. This insults them and threatens their socially prescribed role as the protectors of

“their” women. Moreover, it produces and reproduces relations of superiority and inferiority between the parties to the conflict.

Many feminist legal theorists and scholars have pointed out that there is a tendency within both international legal discourses, and feminist academic literature itself, to merge the concepts of “women” and “gender” to mean the same thing. When attempts are made to adapt international law to incorporate women, and to address the crimes committed against them, the common call is for the integration of a “gendered” approach, or for “gender mainstreaming”.535 However, this common association between the concepts of gender and women create several undesirable consequences.536 Primarily, it has the effect of reinforcing the concept of men as naturally “ungendered,” or genderless, and thereby reinforces the male ideal and perspective as natural and the legal norm.537

This in turn perpetuates the tendency in legal discourses to utilize and reinforce binary systems of logic; the linguistic association that is formed between gender and women, and that of men and the (international) legal norm, creates a system in which women’s issues or gender issues are “understood as partial, both in the sense of being incomplete and being biased.”538 Thus, the masculine legal norm is associated with tradition, objectivity and reason, whereas the relationship between women and gender issues are associated with bias, emotion and subjectivity.539 An example of this can be seen in the ICTY’s Furundzija case.

Sspecifically in the defense’s claim that because Judge Florence Mumba had “previously served as a member of the UN’s Commission on the Status of Women, condemned rape as a

535 R Charli Carpenter, “Recognizing Gender-Based Violence Against Civilian Men and Boys in Conflict Situations” (2006) 37:1 Security Dialogue 83. 536 Hilary Charlesworth, “Are Women Peaceful? Reflections on the Role of Women in Peace-Building” (2008) 16:3 Feminist Legal Studies 347. 537 Ibid; Lucinda M Finley, “Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning” (1989) 64 Notre Dame L Rev 886. 538 Finley, supra note 537 at 888. 539 Finley, supra note 537; Sara Sharratt, Gender, Shame and Sexual Violence: The Voices of Witnesses and Court Members at War Crimes Tribunals (Ashgate Publishing, Ltd., 2013).

202 war crime and urged its prosecution, she was predisposed to promote a common feminist agenda, and should have been disqualified for having at least an appearance of bias”.540 While the Appeals Chamber ultimately upheld the judgment and dismissed this allegation, the association between gender expertise and bias still demonstrates a tendency within law to uphold a male norm as the objective truth.541

The merging of women and gender also produces undesirable consequences for men in international law in terms of “de-victimizing” them. While gender-based violence is a term used to describe any harmful act that is perpetrated against a person’s will, and that is based on socially ascribed differences between males and females, and therefore should include violence against men and boys, the common approach of almost exclusively linking the issues of violence against women, often acts to mask the gendered crimes committed against men.542 There is growing empirical evidence that sexual violence against men, too, is used for strategic purposes during violent conflicts. Raping men may serve the function of emasculating them, i.e. degrading them to the status of women, that consequently undermine their position in society. Stigma, shame, and humiliation make it almost impossible for men to come forward to seekmedical assistance and legal advice.543 As a result of this feminine- centric narrative, issues of sexual mutilation, sex-selective massacres or forced conscription – crimes which target men and boys on account of their gender – are not commonly discussed through the lens of “gender crimes”.544

The act of associating gender almost exclusively with women reinforces an understanding of gender as connected to biological sex, and therefore fails to highlight its

540 Prosecutor v. Furundzija, Case No. IT-95-17/1 – A - ICTY 541 Askin, supra note 477. 542 Carpenter, supra note 535. 543 As illustrated by the documentary “Gender Against Men” 544 Carpenter, supra note 535.

203 social construction.545 Further, the vast majority of academic literature and legal activism on international law and crimes of sexual violence remains unreflective to the merge of gender and women, and its associated disadvantages.546

All this has led commentators to state that it is necessary to redefine “gender” in academic and advocacy discourses. Furthermore, greater efforts need to extend the understanding of who is victimized by gender crimes to be more inclusive of men, rather than continually “reifying an essentialized notion of women as victims and men as perpetrators, that feeds into all forms of gender-based violence endemic in war affected areas.”547

7.5. Exploring the Narrative on Sexual Violence on Boys and Men

In the gendered construction of victimhood, the influence of mainstream feminist scholars has worked to marginalize male victims in the discourse of sexual violence in armed conflicts. A familiar argument advanced by many feminists is that women are the “vast majority” of victims, and that women and girls are “disproportionately affected” by sexual violence.548 Although such claims are rarely accompanied by supporting data, the argument continues that because women form the “vast majority” of victims, finite resources should be focused on women.549 This reasoning has obstructed both the acknowledgement of male victims and the provisions of aid to such victims.550

Another reason why feminists often exclude male victims is that feminist literature is committed to “centralizing women” when discussing international law, international relations, security studies, and to looking at conflict-related sexual violence as a

545 Charlesworth, supra note 536. 546 Helen M Kinsella, “Gendering Grotius Sex and Sex Difference in the Laws of War” (2006) 34:2 Political Theory 161. 547 Carpenter, supra note 535 at 99. 548 Kathryn Anastasia Gabriel, “Engendering the International Criminal Court: Crimes Based on Gender and Sexual Violence” (2004) 1 Eyes on the ICC 43. 549 Rosemary Grey & Laura J Shepherd, “‘Stop Rape Now?’ Masculinity, Responsibility, and Conflict-related Sexual Violence” (2013) 16:1 Men and Masculinities 115. 550 Will Storr, “The Rape of Men: The Darkest Secret of War” (2011) The Observer Newspaper.

204 manifestation of discrimination against women.551 Consequently, as noted by Grey and

Shepherd, when we look at the body of scholarly literature, “we can see that the scope of that body is female and the issue of sexual of violence against men is peripheral.”552

Although research in the mid-20th century regarding the incidence of sexual violence in armed conflicts largely ignored the experience of women, more recent work has mirrored normative developments. This has compounding the lack of empirical data on male victims and has created a gender binary, vis-à-vis the experience of men and women.553 As discussed above, such studies portrayed men as aggressors and perpetrators, and women as victims and peacekeepers.554 The male victims of sexual violence, who fell outside and thus destabilized this binary, were ignored.

Just as scholars overlooked sexual violence against men, victims’ organizations neglected the experience of male victims in their advocacy efforts. In 2002, of the 4076 victims’ organizations working in the area of “war rape and other forms of political sexual violence,” only 3% mentioned sexual violence against men and boys in their informational literature or programs.555 Although victims’ organizations and scholars have since increased their attention to sexual violence against men and boys,556 they do, as one commentator has observed, generally include the caveat that because violence against women is more prevalent than that against men, comment and discussion is devoted to female victims.557 Even where sexual violence against men is not dismissed as less important relative to sexual violence

551 Grey & Shepherd, supra note 549. 552 Ibid. 553 Caroline NO Moser & Fiona Clark, Victims, perpetrators or actors?: gender, armed conflict and political violence (Palgrave Macmillan, 2001). 554 Ibid. 555 Augusta Del Zotto & Adam Jones, Male-on-Male Sexual Violence in Wartime: Human Rights’ Last Taboo? (2002). 556 See, e.g. U.N. Secretary-General, Women, Peace and Security: Study submitted by the Secretary-General pursuant to Security Council resolution 1325, 59 (2000); U.N. SCOR, 5916th mtg. at 44, U.N. Doc. S/PV. 5916 (June 19, 2008) (Ms. Stiglic, Slovenia, speaking). 557 Anne-Marie Goetz & Letitia Anderson, Women Targeted or Affected by Armed Conflict: What Role for Military Peacekeepers? (2008).

205 against women, consideration of the issue is limited to an observation that the numbers are unclear and male victims are underreported.558 In much of the literature, male victims are initially recognized, but the analysis proceeds with a conflation of gender with women, at which point a discussion of male victims ceases, “such that male bodies are first present then absent in the scholarly literature.”559 It has been argued that the lack of attention to the victimization of males by victims’ organizations’ may be explained, in part, by the fact that many victims’ organizations rely on governments and private donors for their funding.

Therefore, their agendas must mirror those of their funders.560

Acts of sexual violence during armed conflicts are forms of domination, grounded in a complex web of cultural preconceptions, in particular with regards to gender roles. It is used to torture and humiliate people, and to punish or humiliate an enemy group or community.561 For instance, as early as the ancient Persians, sexual violence against men and boys has been part of warfare. Murals from this period show the victors of battle parading with plates stacked high with their enemy’s penises.562

The logic of this emasculating act was captured by Del Zotto and Jones, who stated that: “what greater humiliation can one man impose on another man or boy than to turn him into a de facto “female” through sexual cruelty?”563 While the differing impact of armed conflicts on men and women is increasingly acknowledged,564 constructions of ‘gender’ and gender-specific provisions within international law have proved problematic.565

558 Sandesh Sivakumaran, “Sexual Violence Against Men in Armed Conflict” (2007) 18:2 European journal of international law 253 at 261. 559 Grey & Shepherd, supra note 549. 560 Dominik Zaum, “International Non-Governmental Organisations and Civil Wars” (2009) 11:1 Civil Wars 22. 561 Megan, Karin & Rachel, supra note 471. 562 Del Zotto & Jones, supra note 555 at 23–27. 563 Del Zotto & Jones, supra note 555. 564 Chinkin, supra note 471. 565 Gardam & Jarvis, supra note 490 at 55.

206 Though the World Health Organization (WHO) recognized that women are particularly susceptible to sexual violence, it also stressed that sexual violence against men may be underreported because of the stigma attached to it.566 An analysis of the sexual victimization of men in armed conflicts reveals similarities between these crimes as committed against men and as committed against women. In both cases, victims report experiencing sexual violence as crimes of power, intended to degrade, humiliate, and subjugate victims. Sexual violence against men, however, takes on added dimensions in the context of conflict. Perpetrators target men, in part, to attack males as leaders and protectors, diminish their masculinity, and unravel social hierarchies.

As discussed above, international law does not address sexual violence against men directly; it focuses primarily on sexual violence, or more specifically rape, as an act against a woman’s honor, and is therefore as an act that can only be carried out by men against women.

However, cases from the ICTY showed the existence of male rape. In Prosecutor v. Dusko

Tadic567, which was the first international war crimes trial since the Nuremberg and Tokyo, and the first international war crimes trial involving charges of sexual violence, the Trial

Chamber found that after taking over the area of Prijedor, in northwestern of Bih, Serb forces confined thousands of Muslims and Croats in camp and forced male victims to perform fellatio on the perpetrators, or other victims were anally raped using objects. The ICTY also found incidence of sexual violence against men in the Prosecutor v. Češić,568 in the

Prosecutor v. Zdravko Mucić et al.,569 Prosecutor v. Todorović570 and Prosecutor v. Simić.571

566 Natalia Linos, “Rethinking Gender-Based Violence During War: Is Violence Against Civilian Men a Problem Worth Addressing?” (2009) 68:8 Social Science & Medicine 1548 at 1549. 567 Prosecutor v. Dusko Tadic aka "Dule" (Opinion and Judgment), IT-94-1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 7 May 1997 568 Prosecutor v. Ranko Češić (Sentencing Judgement), IT-95-10/1-S, International Criminal Tribunal for the former Yugoslavia (ICTY), 11 March 2004 569 Prosecutor v. Zdravko Mucic aka "Pavo", Hazim Delic, Esad Landzo aka "Zenga", Zejnil Delalic (Trial Judgement), IT-96-21-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 16 November 1998 570 Prosecutor v. Stevan Todorovic (Sentencing Judgement), IT-95-9/1-S, International Criminal Tribunal for the former Yugoslavia (ICTY), 31 July 2001

207 Male rape has been reported in Sierra Leone, among other conflicts.572 There is also the concept of ‘rape plus’, the plus signifying infection with HIV/AIDS, which has been documented in Kosovo.573 Enforced sterilization is another type of sexual violence against men. It has been extensively documented during the armed conflict in the former Yugoslavia, where eyewitnesses and victims had reported cases of castration committed through brutal means: ‘I saw how Muslims were forced to bite each other’s testicles off, their mouth filled with testicles and blood’.574Other kinds of sexual violence against men include sexual slavery, as happened in Liberia575, and forced masturbation of the captors, which was documented in Sri Lanka.576 The infamous Abu Ghraib case in Iraq showed victims forced to undress, while being sexually threatened.577 There are also numerous examples of genital violence during the conflicts in Croatia578, Sri Lanka579 and Northern Ireland,580. This included a cases of amputating a penis and administering electroshocks or beatings to the testicles.

It was indeed a paradigm shift to these dominant narratives in international law with the indictment of Simone Gbagbo, the wife of the former President of Cote D'Ivoire, for her

571 Prosecutor v. Blagoje Simic et al. (Trial Judgement), IT-95-9-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 17 October 2003 572 Carpenter, supra note 535 at 95. 573 Sivakumaran, supra note 558 at 264. 574 Prosecutor vs. Tadić, Case No. IT-94-1-T, Opinion and Judgment ¶ 209 (May 7, 1997); See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Oral Proceedings of Bosnia and Herzegovina (CR 2006/06), 51, available at http://www.icj-cij.org/docket/files/91/10596.pdf (asserting that “[s]exual violence against men was perpetrated essentially in the detention camps. There is much testimony describing sexual violence of all kinds practised against men, sometimes father and son, sometimes two brothers. As noted in the Reply, ‘[s]exual assaults against men took mainly two forms: one is coerced sexual activity with other men, the other is aggression against their virility’”) 575 Kirsten Johnson et al, “Association of Combatant Status and Sexual Violence with Health and Mental Health Outcomes in Post-Conflict Liberia” (2008) 300:6 JAMA 676 at 688. 576 Michael Peel et al, “The Sexual Abuse of Men in Detention in Sri Lanka” (2000) 355:9220 The lancet 2069. 577 Sivakumaran, supra note 558 at 266. 578 Pauline Oosterhoff, Prisca Zwanikken & Evert Ketting, “Sexual Torture of Men in Croatia and Other Conflict Situations: An Open Secret” (2004) 12:23 Reproductive Health Matters 68. 579 Sandesh Sivakumaran, “Male/Male Rape and the" Taint" of Homosexuality” (2005) 27:4 Human Rights Quarterly 1274. 580 G. Adams, 5 June 2004. I have been in torture photos, too. The Abu Ghraib images are all too familiar to Irish republicans. The Guardian available at https://www.theguardian.com/politics/2004/jun/05/northernireland.northernireland (accessed December 31, 2015).

208 involvement in the post-election violence. It was asserted that she was personally responsible for crimes against humanity, including murder, rape, persecution and other inhuman acts.581

Despite the gravity and prevalence of sexual violence against men in armed conflicts, empirical data regarding conflict-related sexual violence against men is limited.

The paucity of data may be explained, in part, by the lack of attention provided to male victims, the lack of training of first responders to identifying and treating male victims, the fear by victims of stigma and potential criminal prosecution under anti-sodomy laws if they report their victimization, and the lack of relief available to victims, which fails to incentivize reporting. While the actual number of victims is unknown, available data seems to suggest the widespread use of sexual violence against men as a tool of conflict.

Furthermore, male victims are an afterthought and have few effective resources to extant international law instruments. Due to the poor choice of words that link ‘gender-based violence’ to mean sexual violence against women, international human rights law seems to provide inadequate legal protection for adult male victims of sexual violence, in part because the construct of a victim of sexual violence often excludes men from the class of potential victims.582 In other words, although the phenomenon of sexual violence against men is real, their construction and understanding as “victims” in ICL remains marginal.

For example, the Geneva Convention IV of 1949 prohibits rape, enforced prostitution, and indecent assault explicitly under Article 127.583 The scope of this Article is expressly limited to victims who are women. The 1977 Additional Protocols to the 1949

581 International Criminal Court, The Prosecutor v. Simone Gbagbo, ICC-02/11-01/12-1, available online at http://www.icc-cpi.int/iccdocs/doc/doc1344439.pdf (accessed December 15, 2015) 582 Most of the instruments do not always exclude boys. Most of the instrument that, for instance, include “women and children” in the perambulatory text (thereby implicitly including both female and male children) in the class of potential victims, switch to “women and girls” when addressing sexual violence in the operative part of the instrument. An example is Security Council Resolution 1325 at 1, U.N. Doc. S/RES/1325 (October 31, 2000). S.C. Res. 1820, U.N. Doc. S/RES/1820 (June 19, 2008) expressly recognizes at different points “women and children” and “women and girls”, but not also men, as victims of sexual violence in armed conflict. Cf. the sex-neutral approach of the Convention on the Rights of the Child, G.A. Res. 44/25, Annex, art. 19(1), U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49/Annex (Nov. 20, 1989). 583 Geneva Convention IV

209 Geneva Convention further enhanced protection against sexual violence in armed conflicts.584

Article 75 of Protocol I used sex-neutral language in prohibiting “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault.” Article 76 of Protocol I explicitly prohibits rape against women, while

Article 4 of Protocol II prohibits rape without regard to sex.

However, the Rome Statute for the International Criminal Court (ICC) offers the most far reaching model of accountability for violence against men during armed conflicts.

The drafters of the Rome Statute were careful enough to expand the class of expressly enumerated crimes of sexual violence into gender-neutral terms. Furthermore, the ICC adopted legal standards to reduce barriers to prosecuting these sexual crimes including the recognition that rape may occur as a result of implicit or explicit orders.585 Despite this promising normative framework, its implementation regarding men is mixed. While there are limited numbers of cases before the ICC and the other international criminal tribunals that involved instances of sexual violence against men, the existing record seems to suggest that these courts and tribunals appear to treat sexual violence against men differently from sexual violence against women. In the 21 March 2016 decision of the ICC, convicting Jean-Pierre

Bemba Gombo for the crime of rape among other crimes, marginal attention was paid to male victims and more emphasis were paid to female victims.586 However, at the 15th Annual

Session of the Assembly of the State Parties to the Rome Statute, which I participated in, I raised this issue with the Senior Trial Lawyer in charge of investigating the situation and he admitted that it was challenging to get male victims of rape or sexual violence to testify at the

ICC because of cultural barriers. They were only able to persuade two male victims to testify.

584 Protocol I, Arts. 75 & 76 and Protocol II, Art. 4. 585 “Policy Paper on Sexual and Gender-Based Crimes - June 2014 - OTP-Policy-Paper-on-Sexual-and-Gender- Based-Crimes--June-2014.pdf”, available online: http://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on- Sexual-and-Gender-Based-Crimes--June-2014.pdf (accessed December 15, 2015). 586 Prosecutor v Bemba ICC-01/05-01/08-320, 12 December 2008.

210 7.5.1. Contextualizing the Dynamic of Sexual Violence Against Men

A major contribution of feminist scholars has been the widespread recognition that sexual violence against women should be understood as an abuse of power,587 and that sexual violation symbolizes and actualizes the social subordination of the victim.588 It is a “violent humiliation ritual” that reinforces male supremacy and female inferiority, and that keeps its target population smaller, quieter, and withdrawn.589 This analysis of sexual violence in armed conflicts as an expression of power and dominance, and can be extended to the cases of male victims.590 In most societies, men represent the protection, virility, strength, and power of the family and the community.591

Sexual violence against men is framed as not just an attack on the individual, but an attack on the community, thereby suggesting that disempowerment occurs at the individual and collective level. This is especially true where the act of sexual violence is performed in public, making the community part of the crime, both as complicit accessories and victims.592

Because masculinity and victimhood are constructed as mutually exclusive, sexual attacks against men seek to attack and destroy a victim’s sense of masculinity and therefore subordinate and demoralize him.593 Male victims are also feminized, and, in societies where men are viewed as superior in the gender hierarchy, being reduced (in their eyes and those of their perpetrators) to de facto “females” through sexual cruelty also lowers their social

587 Brownmiller, supra note 472; A Nicholas Groth & H Jean Birnbaum, Men Who Rape: The Psychology of the Offender (Springer, 2013); Catharine A MacKinnon, “Reflections on Sex Equality under Law” (1991) Yale Law Journal 1281 at 1302–1303. 588 MacKinnon, supra note 587 at 1302. 589 MacKinnon, supra note 587. 590 Michael Scarce, Male on Male rape: The Hidden Toll of Stigma and Shame (Basic Books, 2001). 591 Zarkov, supra note 465 at 71.; “Central Africa: Invisible Victims - Sexual Violence Against Men in the Great Lakes - allAfrica.com”, available online: http://allafrica.com/stories/201206290101.html (accessed December 15, 2015) 592 Oosterhoff, Zwanikken & Ketting, supra note 578. 593 Elizabeth A Stanko & Kathy Hobdell, “Assault on Men: Masculinity and Male Victimization” (1993) 33:3 British Journal of Criminology 400 at 9.

211 status.594 Some victims are selected for “deviating from expectations around masculinity” or because they are perceived as feminine.595 Conversely, the attacker is made more masculine through his domination of the victim.596 Additionally, the perpetrator “taints” the victim with homosexuality by sexually assaulting him or requiring him to engage in sexual acts with other male victims, further emasculating the victim.597 Finally, sexual violence against men often aim to prevent the victim from procreating.598

7.6. Conclusion

In this chapter, I have attempted to contextualise the complexities involved in the use of gender in international law. The examples referred to in this chapter suggest that the way in which sexual violence occur in armed conflict, and are addressed in existing international criminal justice processes, can sometimes lead to a re-victimization of women, hindering their transformation from the subjugated category of passive victims to active agents in the criminal justice process, and reduces their ability to challenge the hegemonic positions of men in the society. Furthermore, the mainstream focus on the role of hegemonic masculinity in the perpetration of sexual violence in armed conflicts tends to be problematic.

It masks the experiences of men and boys who might have suffered sexual violence, as well as refuses to hold women who might have committed acts of sexual violence during armed conflicts accountable.

594 Adam Jones, “Straight as a Rule Heteronormativity, Gendercide, and the Noncombatant Male” (2006) 8:4 Men and Masculinities 451; Del Zotto & Jones, supra note 555; Chris Dolan, Social Torture: The Case of Northern Uganda, 1986-2006 (Berghahn Books, 2013). 595 Erika Carlsen, “Rape and War in the Democratic Republic of the Congo” (2009) 21:4 Peace Review 474; Shelah S Bloom, “Violence against Women and Girls: A Compendium of Monitoring and Evaluation Indicators.” (2008). 596 Dustin A Lewis, “Unrecognized Victims: Sexual Violence Against Men in Conflict Settings Under International Law” (2009) 27:1 Wisconsin International Law Journal 1 at 7. 597 Zarkov, supra note 465 at 79; Sivakumaran, supra note 558 at 565. 598 This aim is sometimes even expressed by the perpetrator during the commission of the crime. Application of the Genocide Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Application of the Republic of Bosnia and Herzegovina, ¶ 44D(c) (Mar. 20, 1993), available at http://www.icj-cij.org/docket/files/91/7199.pdf (accessed on December 15, 2015) (including the allegations by one Muslim civilian who was detained in several concentration camps and recounts: “Serb torturers would beat us, step or jump on us until they tired out. They were deliberately aiming their beatings at our testicles saying, ‘You'll never make Muslim children again.’”).

212 Chapter 8: Child Soldiers: Victims or Perpetrators in International Law

8.1. Introduction

On 8th of July 2005 a warrant of arrest was issued for Dominic Ongwen on a seven- count indictment. The warrant was based on individual criminal responsibility for crimes against humanity, including massacres and the abduction and enslavement of children, allegedly committed on, or about the 20 May 2004, at the Lukodi IDP Camp in the Gulu

District, Uganda. Ten years after the warrant of arrest was issued and unsealed, Dominic

Ongwen voluntarily surrendered to the International Criminal Court and is currently undergoing trial. Dominic Ongwen’s trial is interesting and at the same time problematic. He is arguably the first person to be charged with the same war crimes of which he is also a victim. He was, indeed, also a child soldier.

Dominic Ongwen’s was about 10 years old when he was abducted by the Lord’s

Resistance Army (LRA) on his way to school. He was eventually trained and armed as a

‘child soldier’ to launch insurgencies against the Ugandan government with associated acts of massive looting, mutilation and the rape of innocent victims, some who had to flee from their homes as the marauding LRA army invaded their territory. Dominic Ongwen was so brutally effective as a child soldier that he was quickly promoted to the leadership of the LRA.

No doubt, Dominic Ongwen represents the complex status of thousands of child soldiers in different conflict zones, who were ‘forcibly’ abducted, or who ‘willingly’ joined armed militias or insurgent groups, to later assume command positions as adults, that would eventually lead to committing the same international crimes that they were once victim of.

Nonetheless, his predicament raises troubling international criminal justice questions and reveals that, while child soldiers could engage in the victimization of others, their victim status is not and should not be diminished by these acts.

213 The core of this chapter is to confront some of the complexities and tensions surrounding the construction of the victim/perpetrator dyad within the field of international criminal justice when it comes to child soldiering. In so doing, the chapter assumes a dual focus: the construction of blame and blamelessness regarding victim and perpetrators of child soldiering, as well as the moral complexities concerning the victim/perpetrator divide. In relation to the former, it will be argued in this chapter that there is a deep discord between much of the constructed identities of child soldiers (as victims or perpetrators) and the actual identities and lived experiences of child soldiers (both as victims and perpetrators).

In exploring these issues, the chapter will be drawing on a wide range of literature, including victimology, transitional justice, feminist criminology, as well as international law materials. I hope to argue that the discourses on ‘blame’ and the associated notions of

‘innocence’/‘good’ and ‘guilt’/‘evil’ shapes and inform the respective hierarchies of victimhood and offending concerning ‘legitimate’ victim and the perpetrator status of child soldiers. Such dichotomous versions of victimhood and perpetrator behavior may be combined to form a ‘hierarchy of blame,’ which cannot easily accommodate ‘deviant’ victims or ‘vulnerable’ perpetrators, such as girl child soldiers, who lie in the middle ground between the polarities of accepted victim and perpetrator status.

Finally, this chapter will also critically explore the ways in which victims and perpetrators of child soldiering are represented as a false dichotomy, as they are not always easily identifiable as distinct mutually exclusive or fixed entities. Rather, given the fluidity of these categories in many instances, the chapter makes the case for overcoming these artificial and monochromatic distinctions in order to develop more effective responses to victims of child soldiery.

This chapter proceeds in three sections. The first section explores the prevalence of child soldiers in the context of armed conflict. The second section examine the imageries

214 surrounding the child soldier phenomenon as brandished by the media, NGOs and academia.

The third section explores the law and policies surrounding the issue of child soldiers and how child soldiers are constructed as either victims or perpetrators of international crimes.

8.2. Confronting Child Soldiering in Armed Conflicts

Child soldiering is a troubling social and political phenomenon and is as old as warfare. While it is a global problem, its manifestations in third world countries have been endemic, complex and devastating. Throughout history, children have fought as soldiers, worked as drummer boys, cooked food for the rest of the battalion and even in extreme cases, served as a defense of last resort. Carl von Clausewitz, a renowned philosopher of war, reportedly joined the Prussian Army at the age of twelve.599 Alexander the Great began a regent at the age of sixteen. Jeanne d’Arc, who as a teenager, invigorated the French forces during the Hundred Years’ War, and remains a hagiographic figure.600

During World War I, many young boys enlisted despite official age restrictions on recruitment. Private James Martin, the youngest Australian to die in World War I, enlisted in

Melbourne in 1915 at the age of fourteen and died a few months later near Gallipoli.601 Albert

Cohen of Memphis, Tennessee, is probably the youngest U.S. soldier to see combat in World

War I. He voluntarily enlisted at the age of thirteen and was killed in battle at fifteen.602

The statute of the “Little Insurgent” in Warsaw commemorates Polish child resistance to the Nazi occupation. Jewish child soldiers also doggedly contested Nazi oppression in the ghettos and forests of Eastern Europe.603 Their acts of bravery and heroism

599 Alice Schmidt, “Volunteer Child Soldiers as Reality: A Development Issue for Africa” (2007) 2:1 New school economic review 49 at 69. 600 Mark A Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012). 601 Anthony Hill, Soldier Boy (Penguin Books, Melbourne, 2001). 602 David M Rosen, Armies of the Young: Child Soldiers in War and Terrorism (Rutgers University Press, 2005) at 8. 603 Ibid at 19–56.

215 have come to be widely lauded. Jewish child resisters were hardly passive pawns of adults. In fact, they first had to thwart the more moderate Jewish ghetto leadership, which portrayed them as irresponsible.604

In current times, and observed in different conflict theaters, child soldiers continue to be recruited and used to wage war by both government forces and rebels. Some ex-child soldiers have written books on their experiences and have been praised by the media as heroes. While precise statistics are impossible to come by, it is usually estimated that more than 300,000 children are serving as child soldiers in conflict zones around the world.605 As of 2008, it was estimated that military recruitment of children and their use in hostilities “still takes place in one form or another in at least 86 countries and territories worldwide.”606

The innocence and the vulnerability of the child soldiers are the dominant theme in contemporary humanitarian discourse on child soldiering. The contemporary social, political and legal constructions that grant victimhood status to child soldiers, tend to criminalize particular military campaigns. The image of the child, as created and burnished by international humanitarian groups, agencies of the United Nations, and the emanating international law policies, are heavily premised on the omnipresent predatory adult recruiter.

This characterization is targeted particularly at rebels and insurgents – the armed groups that are most reliant on child soldiers whose military activities are thus vilified.

In advancing this claim, it is frequently argued, in a contradictory manner, that children under the age of eighteen associated with rebels and insurgent groups were either abducted or conscripted through force or threats of serious imminent injury; or that the child soldiers joined the insurgent groups as a means of survival; or that they were born into the insurgent group. In this discourse, it is vigorously advanced that no child soldiers have the

604 Ibid at 36. 605 See Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2001. 606 Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2008 12(2008)

216 capacity to volunteer or to consent to serve with rebel or insurgents. Child soldiers are not capable of exercising any real measure of choice about recruitment and therefore, volunteering is merely an illusion.607

The dominant explanatory account is that child soldiers, like Dominic Onwgen, who commit extraordinary international crimes are forced by commanders and hence, operate under extreme duress. They are incapacitated by the use of narcotics and alcohol; are brainwashed and (re)socialized by the endemic violence that swallowed them; and are plagued by the fears of brutal punishment. Therefore, moral responsibility should be excused for committing these grievous crimes.608

However, the above narrative on child soldering, while partially true, is wanting in several respects. The clear majority of child soldiers are not forcibly recruited or abducted into rebel or insurgent groups. Some child soldiers may willingjoin rebel or insurgent groups for reasons ranging from economic advancement, the pursuit of political or ideological reforms, or inclusion into occupational networks. In Liberia, children were among the first to join the armed groups, and in the Palestinian intifada they have been the catalysts of violence.609 In fact, the experiences of child soldiers contrast sharply with the international legal imagination as carefully crafted, packaged and advanced by humanitarian organizations.

In many interviews conducted by social scientists, former child soldiers often said that they volunteered for service, yet these statements are usually excluded by interviewers because they do not fit the pre-existing theory on child soldiering.610 Even the Machel report argues that not all children in combat should be seen merely as victims.611 Indeed, perhaps for

607 Jason Hart, “Saving Children: What role for anthropology?” (2006) 22:1 Anthropology today 5 at 7. 608 Drumbl, supra note 600 at 15. 609 Ilene Cohen & Guy S Goodwin-Gill, Child Soldiers, the Role of Children in Armed Conflicts (A Study on Behalf of the Henry Dunant Institute (Oxford: Clarendon Press, 1994), 1994) at 23. 610 Mark A Drumbl, “Transcending Victimhood: Child Soldiers and Restorative Justice” in Victims of International Crimes: An Interdisciplinary Discourse (Springer, 2013) 119 at 133. 611 Graça Machel, United Nations General Assembly & UNICEF, Impact of Armed Conflict on Children (UN, 1996) at 2.

217 children, as well as adults, it may be true that the “least dangerous place to be in a war today is in the military.”612

The relatively few published studies with current and former child soldiers carried out by anthropologists in the field, argue that the experience of children at war has little connection with the depictions in humanitarian literature. For instance, Paul Richards’s interviews with male and female child combatants in Sierra Leone show that “many under- age combatants choose to fight with their eyes open, and defend their choice, sometimes proudly. Set against a background of destroyed families and failed educational systems, militia activity offers young people a chance to make their way in the world.” Krijn Peters and Paul Richards further argue that, given these circumstances, child soldiers should be seen as “rational human actors” who have a “surprisingly mature understanding of their predicament.”613

Moreover, despite different attempts by different interest groups to portray one or the other of uniform depictions of child soldiering, the concept and the individual experiences of child soldiers are far from being consistent or standardized. The manner of recruitment, the level of identification with the cause and the fighting group, and what it means to be a child soldier, differs drastically from context to context and from individual to individual within the same environment.614 Therefore, no simple model can account for the presence of children on the battlefield or the conditions under which they fight. The specifics of history and culture shape the lives of children and youth during peace and war, creating many different kinds of childhood and many different kinds of child soldiers.615

612 Carolyn Nordstrom, “The Backyard Front” (1992) The paths to domination, resistance, and terror 260 at 271. 613 Krijn Peters & Paul Richards, “‘Why We Fight’: Voices of Youth Combatants in Sierra Leone” (1998) 68:02 Africa 183. 614 Kirsten Fisher, Transitional Justice for Child Soldiers: Accountability and Social Reconstruction in Post- Conflict Contexts (Palgrave Macmillan, 2013) at 18. 615 Rosen, supra note 602 at 132.

218 8.2.1. Beyond Uniform Categorisation and the Context of Child Soldiering

A major problem in the construction of child soldiering lies in the danger of a single story – a story of a uniform categorization. All child soldiers are often constructed as the same, irrespective of how they became child soldiers, the gender dynamics, the roles they performed or even the duration of the armed conflict. Three categorizations are emerging in countries experiencing armed conflicts. The first categorization differentiates between child soldiers in conflict and non-conflict situations. The second between child soldiers in national armies and those within rebel and insurgent groups. The third categorization differentiates between the use of child soldiers as direct combatants and front-line troops (active child soldiers), and those categorized as support child soldiers, i.e. those playing support roles such as sex slaves, cooks, guards, spying and reconnaissance, mine sweepers, weapons and loot carriers. However, evidence suggests that in conflict situations, these distinctions are blurred and do not hold across the board in all cases.

Furthermore, child soldiering discourses suffers from a distinct problem of being overpopulated by advocates rather than impartial analysts, even by international law scholars.616 Inferences are deduced from limited numbers; conclusions are drawn from skewed samples; and guesstimates are often inflated to draw attention to otherwise legitimate issues. The result is that myths get circulated and reproduced to the point that they take on the status of facts and become the foundation for policy. The estimated number of child soldiers illustrates this problem very well. Reputedly cited, the figure of 300,000 was calculated by a group of NGO representatives who were looking for a number to use in their public campaigns over a decade ago. It is not clear whether there was an attempt to form a substantive basis for this claim or whether it was simply chosen for its dramatic effect.

616 Barry Ames, “Methodological Problems in the Study of Child Soldiers” (2007) Child soldiers in the age of fractured states 14.

219 However, it is clear that the number has never been justified in terms of hard data, has no clear basis in fact, was arguably never accurate and is now certainly wrong.617

8.3. Imagery of Child Soldiers

In recent times, certain imageries of child soldiers laundered by different propagandists have adorned our television screens and the popular media. These images are etched into our minds: young children dressed in tee shirts or camouflage uniforms wielding

AK-47, live ammunitions and who seem eager to wage war. These imageries traumatize our collective modern conscience as they attack two fundamental and unquestioned assumptions

– that being that armed conflicts are evil and should cease, and that children are innocent and should be protected. Despite the conflation of these assumptions, they totally conceal some problematic discourse embedded in the assumptions. Humanitarian rhetoric seems to have

(re)shaped the images of child soldiers in current international legal discourse. Most of the discourse about child soldiers is dominated by the global focus on the need to offer an umbrella of protection to “children”.618 Notwithstanding, child soldiers are not always portrayed as victims, and that there is an oscillation.

An image peddled by humanitarian actors is that of a child soldier that is very young and crafted as clueless and dependent on adult guidance and instruction. Central to this image is the child who is a helpless object manipulated by adult wickedness, and who desperately needs to be rescued by adult humanitarianism.619 This imagery posit that children are forced into servitude, made to fight and kill. The Lord’s Resistance Army (LRA) is tagged as deranged militia that steal innocent children from their families and communities. In the hands of the LRA, abducted children are no more than “instruments of war” and “the weapon

617 A recent study by the Coalition to Stop the Use of Child Soldiers amply demonstrates that the 300,000 figure is wrong (CSUCS 2008). 618 Jennifer R Silva, “Child Soldiers: A Call to the International Community to Protect Children from War” (2007) 31 Suffolk Transnat’l L Rev 681. 619 Drumbl, supra note 600.

220 of choice.”620 In this imagery, child soldiers are constructed as victims albeit a faultless passive victim. In the barest caricature of this imagery, child soldiers, or children associated with armed forces, are depicted as pawns of powerful warlords. Child soldiers are constructed as ‘traumatized children’, ‘permanently scarred’, a ‘lost young soul,’ and are generally cast as wholly dependent, helpless, and victimized, therefore deserving, not of condemnation but our deep compassion and sympathy.621 Dominic Ongwen’s early life experience would fit this imagery well. He was abducted at an early age and was ‘brainwashed’.

However, in the opening statement of the Prosecutor in the case against Dominic

Ongwen, Ongwen was characterised as a sadistic leader of the Lord’s Resistance Army who ruthlessly implemented the rebel’s group policy of abducting children to use as labor, soldiers or sex slaves. The victimhood of Ongwen was not raised by the Prosecutor in her opening statement.

It has been argued that the representation of child soldiers in this first imagery, as the quintessential victims, was strategically proliferated by some humanitarian organizations in order to capture world attention to the issue.622 Framed within the context of victimhood, the propagation of such imagery is used in certain contexts to promote donor support for the issue, increase public outrage and response and, in the aftermath of armed conflicts, facilitate child soldier demobilization, community acceptance, reintegration and even compensation, thus propelling some humanitarian agenda.623

While such propagated imagery may help to garner international attention and advocacy for child soldiers, or children associated with armed conflicts, it is nonetheless

620 Olara Otunnu, “Keynote Address: The Convention and Children in Situations of Armed Conflict” (2000) Children in extreme situations, Working Paper Series No 00–05, LSE Development Studies Institute 48. 621 Myriam S Denov, Child Soldiers: Sierra Leone’s Revolutionary United Front (Cambridge University Press, 2010) at 8. 622 Angela McIntyre, “African Children in Armed Conflict: Bridging Right and Reality” (2003) 1:2 Commonwealth Youth and Development; Rosen, supra note 602. 623 Denov, supra note 621.

221 problematic. For instance, Erica Burman named the imagery of children used in Third World emergencies as ‘the iconography of emergencies’, or ‘disaster pornography’ – a term what describes the gruesome fascination with depicting and commercially benefiting from people’s suffering and degradation.624 Burman warns that while the imagery of children in Third

World disasters may evoke sympathy, sympathy is a double-edge tool as ‘its evocation can threaten to be patronizing and render recipients as “other”’.625 Children in such contexts become signifiers of distress and are dehumanized, as are their families and their cultures.

They are rendered as passive objects of a western gaze that ‘seeks to confirm its own agency and omnipotence to ward off its own insecurities.’626

A second image is that of child soldiers, or children associated with the fighting forces, as irreparably damaged goods. Based on this image, child soldiers or children associated with fighting forces are tormented and scarred. They form part of a “lost generation.”627 A major shortcoming in this imagery is that while it captures the ill effects of militarized life on child soldiers, it overlooks the resilience and agency of former child soldiers in armed conflicts generally. This depiction defines expectations and sets parameters.

Construction of the child soldiers as psychologically devastated and pilfered by armed conflict, for example, have spurred the pre-eminence of trauma recovery models in post- conflict programming.628

A third image, mostly brandished by the media, argues that the child soldier is a hero who should be praised for fighting for a just cause against an oppressive regime and for being patriotic.629 This image projects the independence, conviction, emotional maturity of the child

624 Erica Burman, “Innocents abroad: Western Fantasies of Childhood and the Iconography of Emergencies” (1994) 18:3 Disasters 238 at 246. 625 Ibid at 249. 626 Ibid at 238. 627 Peter Warren Singer, Children at War (Univ of California Press, 2006) at 38, 44.Peter Warren Singer, Children at War (Univ of California Press, 2006) at 38, 44. 628 Drumbl, supra note 600. 629 Denov, supra note 621 at 9–10.

222 soldier. The image of child soldiers as heroic figures is not particularly new. During the

American civil war, hundreds of boys who served as musicians and drummer boys in the

Union and Confederate armies were lauded as heroes and deemed valiant. Biographies and description of these child soldiers’ lives became hot mentions in children’s literature.

Newspapers, books and magazines featured stories and tales of drummer boys who were depicted as heroic adventurers.630 Moreover, in many contexts around the world, children’s participation in wars may bring unique social and cultural rewards of heroism through participation in a liberation struggle.631 As recent as the 1990s, in Timor-Leste, for example,

“children who fought on the side of independence were considered heroes, while those who fought on the opposing side were stigmatized, and some were later targeted.”632

The fourth image of child soldiers is that they characterize them as demons, vermin, barbarians, monsters and bandits: irredeemable, baleful, and sinister. Based on this imagery, the child soldier is a cast of a ticking time-bomb, bad seed, and a twisted soul determined to kill alacrity.633 This imagery is particularly apparent when examining discussions of civil wars in Africa, media reports and discourses suggest that not only is the continent falling prey to a ‘new barbarism’,634 but also that a myriad of interrelated circumstances have created a dangerous new class of armed thugs: ‘Ugandan child soldiers have been warped by war’;635

‘Liberian boy soldiers leave a swathe of ruin’.636 Highly racialized and imbued with

630 James Alan Marten, Children for the Union: The War Spirit on the Northern Home Front (Ivan R Dee, 2004). 631 Michael G Wessells, Child Soldiers: From Violence to Protection (Harvard University Press, 2006). 632 UNICEF Innocenti Research Centre in cooperation with & the International Center for Transitional Justice, “Children and Truth Commission” (2010), online: http://www.unicef- irc.org/publications/pdf/truth_commissions_eng.pdf (accessed December 15, 2015). 633 Denov, supra note 621 at 6; Christopher Blattman & Jeannie Annan, “The Consequences of Child Soldiering” (2010) 92:4 The review of economics and statistics 882 at 882; Wessells, supra note 631 at 45. 634 Robert D Kaplan, “The Coming Anarchy” (1994) Globalization and the Challenges of a New Century: A Reader (Bloomington: Indiana University Press, 2000) 34 at 34. 635 Wasswa, H. 1997. ‘Uganda’s children have been warped by war’. 20 December. Kingston Whig Standard, p. 16. 636 The Independent. 1993. ‘Liberian boy soldiers leave a swathe of ruin’. 27 March. 2007. ‘From child soldier to poster boy’. 22 January.

223 stereotypes, these child soldiers act as fodder for those ‘who seek to present African warfare as inexplicable, brutal and disconnected from the “civilized” world order.’637

It has been argued that the imagery of child soldiers as demons and bandits is problematic on two grounds. First, it negates the utility of rehabilitation programs for former child soldiers. Second, it totally obliterates the experiences of girl soldiers. The demon and bandit image, after all, tends to present child soldiers as wild boys, which clouds the reality that “as many as 40 percent of child soldiers may be girls.”638 The demon and bandit image also obscures the fact that boys, too, are sexually abused.639

Sensational media construction of child soldiers as dangerous, demons and disorderly have also influenced the language and thought of international policy-makers. For instance, in a statement to the UN Security Council in January 1996, Madeline Albright, the

US Ambassador to the UN, expressed outrage at the situation of child soldiers in Liberia who were ‘toting automatic weapons, slaughtering innocent civilians, and ignoring the rule of law’. Child soldiers, Albright said, ‘have no identity other than through the weapon they carry.’640 More recently in 2007, the French Foreign Minister, who was a keynote speaker at a conference on children and armed conflict, warned that child soldiers ‘are a time bomb that threatens stability and growth.’641

By portraying child soldiers as largely threatening and uncivilized, the bulk of international news reporting, and indeed much of academic and policy-oriented discourse, has tended to ‘pathologize’ children who have been caught up in armed conflict. The images of children soldiers have been used to convey the horror of childhood perverted from its

637 Kwesi Aning & Angela McIntyre, “From Youth Rebellion to Child Abduction: The Anatomy of Recruitment in Sierra Leone” (2004) Invisible Stakeholders: Children and War in Africa 67 at 77. 638 Wessells, supra note 631 at 9. 639 Drumbl, supra note 600 at 8. 640 Kenneth L Cain, “The Rape of Dinah: Human Rights, Civil War in Liberia, and Evil Triumphant” (1999) 21:2 Human Rights Quarterly 265 at 296. 641 “Child soldiers ‘are a time bomb’”, BBC (5 February 2007), avaliable online: http://news.bbc.co.uk/2/hi/europe/6330503.stm (accessed December 15, 2015)

224 natural course of innocence, fragility and purity. An example of a child soldier depicted by

US authorities as potentially dangerous, pathological and threatening is Omar Khadr.

Describing Khadr to the media in 2006, the former US Chief Military Prosecutor, Col. Morris

Davis, declared, ‘we’ll see evidence when we get into the courtroom of the smiling face

Khadr as he builds bombs to kill Americans’.642

When exploring the current constructions of child soldiers and the images of boys wielding AK-47s, there is an underlying assumption that girls are not abducted by insurgent or armed groups, nor do they participate in armed conflicts. There is also a dearth of scholarly literature on the girl soldiers and an emerging pattern of gender (in)visibility in constructing child soldiers. While there is growing descriptive evidence of the conditions and factors underlying the phenomenon of child soldiery in developing countries, much of the scholarly and policy literature has portrayed child soldiery as a uniquely male phenomenon and critically failed to include gender perspectives in armed conflicts. Informed largely by traditional perceptions of armed conflict as a phenomenon occurring between males, girls have been frequently deemed peripheral and rendered invisible within armed forces and armed groups.643

8.3.1. Girl Child Soldiers – Invisible and Emblematic Victims

While the experiences of girl child soldiers have not been well documented and remain under-studied, girls have long been used militarily. Among the few historically documented cases of girls’ mobilization are the examples of Joan of Arc, the female combat unit of the Dahomey Kingdom (present-day Benin) in West Africa, and German girls within

642 Alberts, S. 2006. ‘Teen is committed to killing, US claims’. 11 January. The Montreal Gazette, p. A17. 643 Susan McKay, “Reconstructing fragile lives: Girls’ Social Reintegration in Northern Uganda and Sierra Leone” (2004) 12:3 Gender & Development 19; Susan McKay, “Girls as ‘Weapons of Terror’ in Northern Uganda and Sierra Leonean Rebel Fighting Forces” (2005) 28:5 Studies in Conflict & Terrorism 385; S McKay, “The Inversion of Girlhood: Girl Combatants During and After Armed Conflict” (2006) A world turned upside down: The social ecologies of children in armed conflict 89.

225 the Nazi regime. At age 16, Joan of Arc led an army of 4,000 against the English, successfully expelling them from Orléans in 1429.644 Joan used her ability to motivate soldiers with religious fervor and led the army to a series of victories which culminated in the coronation of Charles VII at Reims, with Joan by his side. Joan was eventually captured by

Burgundian soldiers a year later and sold to the English, Joan died a martyr at the stake.645

Also, in the Dahomey Kingdom of West Africa, there was a significant female combat unit that functioned over a long period, as a part of a standing army. The female

‘Amazon corps’ seems to have originated in 1727 when Dahomey faced a grave military situation. The King armed a regiment of females at the rear to make it appear that his armed forces were larger, and inadvertently discovered that the females soldiers performed remarkably well. The King organized the Amazon corps to guard the palace and eventually the corps grew in size from about 800 females, in the early nineteenth century, to over 5,000 at mid-century, several thousand being combat forces.646 Girls who trained to be warriors followed a strict code of celibacy to free them of emotional ties and the possibility of pregnancy. To maintain the female force, fathers were to report every 3 years with daughters between the ages of 9 and 15, with the fittest selected for military duty.647

Even during the Nazi regime, German girls and young women were believed to be eugenically valuable because of their biological complement to men, and their role in perpetuating the German ‘master race’. Within Nazi ideology, girls were officially ‘spared’ from shouldering industrial and agricultural responsibilities and it was declared that girls would never bear arms. Nonetheless, in 1930, the Hitler Youth instituted a female section called Bund Deutscher Madel (League of German Girls), which emphasized girls’ secondary

644 Dyan E Mazurana et al, “Girls in Fighting Forces and Groups: Their Recruitment, Participation, Demobilization, and Reintegration.” (2002) 8:2 Peace and Conflict: Journal of Peace Psychology 97. 645 Ibid. 646 Joshua S Goldstein, War and Gender (Springer, 2004). 647 Mazurana et al, supra note 644.

226 status, but propagated Nazi ideals and ‘was based on physical training, discipline, rationality and efficiency’648 At the height of the war, tens of thousands of young women were involved in farming, industry and served in semi-military positions.649 Moreover, largely hidden from the German public, in 1944 girls were employed as anti-aircraft gunners, and were instructed on how to fire cannons, machine guns, grenades and firearms. Kater notes that there was a

‘death squard’ of young girls commanded by the Waffen-SS who ‘had painted red lips and fought with abandon.’650

Despite their relative invisibility, girls are currently used in fighting forces more widely than is reported. Between 1990 and 2003, girl child soldiers were associated with fighting forces in 55 countries and were active in conflict in 38 countries around the globe.651

While girl child soldiers appear to be most often present in armed opposition groups, paramilitaries and militia, they also present in government forces. Girls continue to be involved in the fighting forces in the Central African Republic, Chad, Colombia, Cote d’Ivoire, Democratic Republic of the Congo, Nepal, Philippines, Sri Lanka and Uganda.652

While the proportion of females in armed groups and forces varies according to geographic region, it generally ranges from 10% to 30% of all combatants.653 In recent conflicts in

Africa, girls are said to have comprised 30-40% of all child combatants.654

Girl child soldiers in armed conflicts deploy a variety of strategies to protect themselves and negotiate their security while associated with fighting forces. Such strategies include the use of small arms, through ‘marriages’ to powerful commanders, through the

648 Helen Brocklehurst, Who’s Afraid of Children?: Children, Conflict and International Relations (Ashgate Publishing, Ltd., 2006). 649 Michael H Kater, Hitler Youth (Harvard University Press, 2009) at 238. 650 Kater, supra note 649. 651 Susan McKay & Dyan Mazurana, “Where Are the Girls” (2004) Girls in fighting forces in Northern Uganda, Sierra Leone and Mozambique: Their lives during and after war 14. 652 “Child Soldiers International - Global Report 2008”, available online: http://www.child- soldiers.org/global_report_reader.php?id=97 (accessed December 15, 2016) 653 Tsjeard Bouta, “Gender and Disarmament, Demobilization and Reintegration” (2005) Clingendael Institute. 654 Mazurana et al, supra note 644 at 105.

227 perpetration of severe acts of violence, through subtle and bold acts of resistance.655 These strategies deployed challenge the common views that girl child soldiers are mere victims of conflict and instead, demonstrate the unique capacity of girl child soldiers for agency, resourcefulness and resilience. Further, because they live in a culture of violence, girl child soldiers, through a combination of indoctrination, terror, de-sensitization, and military training, often became active participants in conflict.656 It has been argued that girl child soldiers are sometimes simultaneously victims and perpetrators, and continuously drifted between committing acts of violence and being the victims of violence perpetrated by others.

As result of the complexities of their experience, they sometime embrace the power of being a perpetrator and the rewards associated with their violent actions, through extreme acts of violence which seems to ensure the girl child soldiers’ survival, reducing their own victimization, and at times assured them higher status in the military ranks.657

Despite the historical account of girl child soldiers participating in military activities, in current discussions and analyses of armed conflicts, the invisibility of girls has remained firmly intact. Girls’ experiences of war have accounted for ‘the smallest percentage of scholarly and popular work on social and political violence’658 and the diverse roles girls play, both during and following war, have been barely acknowledged.659 Indeed, officials,

655 M Denov, Girls in Fighting Forces: Moving Beyond Victimhood. A summary of the Research Findings on Girls and Armed Conclict From CIDA’S Child Protection Research Fund (2004) at 15. 656 Myriam Denov & Richard Maclure, “Engaging the Voices of Girls in the Aftermath of Sierra Leone’s Conflict: Experiences and Perspectives in a Culture of Violence” (2006) Anthropologica 73 at 73. 657 Denov, supra note 655 at 15. 658 Carolyn Nordstrom, Girls and Warzones: Troubling Questions (Life & Peace Institute, 1997) at 5. 659 Chris Coulter, “Female fighters in the Sierra Leone War: Challenging the Assumptions?” (2008) 88:1 Feminist Review 54; Denov & Maclure, supra note 656; Mary-Jane Fox, “Girl Soldiers: Human Security and Gendered Insecurity” (2004) 35:4 Security Dialogue 465; Yvonne E Keairns, The Voices of Girl Child Soldiers: Colombia (Quaker United Nations Office New York, NY, 2003); McKay & Mazurana, supra note 651; Augustine SJ Park, “‘Other Inhumane Acts’: Forced Marriage, Girl Soldiers and the Special Court for Sierra Leone” (2006) 15:3 Social & Legal Studies 315; Anita Schroven, Women after War: Gender Mainstreaming and the Social Construction of Identity in Contemporary Sierra Leone (LIT Verlag Münster, 2006); Angela Veale, “From Child Soldier to Ex-Fighter. Female Fighters, Demobilisation and Reintegration in Ethiopia” (2003) 85 Institute for Security Studies Monographs 64 p.

228 governments, and national and international bodies frequently cover up, overlook or refuse to recognize the presence, needs and rights of girls during and following armed conflicts.660

Even when girls within armed groups are analyzed, whether in the realms of academia, policy or the media, there has been a tendency for them to be depicted predominantly as silent victims, particularly as ‘wives’, in tangential supporting roles, and as victims of sexual slavery.661 While these gendered portrayals undoubtedly represent the experiences of some war-affected girls, to characterize girls solely as victims of sexual violence and/or as ‘wives,’ presents a distorted picture of their lived realities. Moreover, although highlighting the girls’ victimization is critical to advancing the understanding of girls’ experiences of armed conflicts and the profound insecurities, human rights abuses, as well as the challenges they face both during and following armed conflicts, a danger is that girls become personified as voiceless victims, often devoid of agency, moral conscience and economic potentials.662

No doubt, the reliance on fixed imagery reveals the limitation of adequately capturing the complexity of girls and boys involvement in armed conflicts. Furthermore, the dynamic of abstracting children from their historical, cultural and political location, as already inscribed within dominant ideologies and cultural representations of childhood, is unhelpfully reproduced in international law and policy discourse.

8.4. Constructing Child Soldiers in International Law and Policy

Several authors have highlighted the ‘sacralisation’ of children663, or the ‘veneration of the innocence of childhood’664, as the bedrock of moral politics of late modernity. The

660 McKay & Mazurana, supra note 651. 661 Coulter, supra note 659. 662 Denov, supra note 621 at 13. 663 Viviana A Rotman Zelizer, Pricing the Priceless Child: The Changing Social Value of Children (Princeton University Press, 1985).

229 innocence of children has become the symbol of purity665 and an important moral conduit for the channeling of sentiments about right and wrong.666 As a result, ‘risk anxiety’667 about children and their perceived vulnerability is presented as a defining feature of contemporary childhood and this perceived vulnerability has crept into international law discourses on child soldiering.

Several terminologies have been used to denote the realities of children actively implicated and engaged in armed conflicts. These terms interchangeably range from ‘child soldiers’, to ‘children associated with fighting forces’. These terms do not adequately capture the realities of children involved in armed conflicts and both terms are inherently problematic.

In the constructing the phenomenon of child soldiers, age is crucial. Age and childhood are indeed contested domains which vary across cultures and social groups. It is also a legal problem in terms of definition. Chronological age has no absolutely fixed meaning in either nature or culture. Just like ethnicity, age categories such as “child,”

“youth,” and “adult” are situationally defined within a larger system and cannot be understood without considerations of conditions and circumstances.668 Defining a childhood based solely on age, not only reflects a bias towards western notions of childhood, which are rooted in biomedical theory,669 but also overlook other salient cultural, social, economic, gendered, class and status determinants that go well beyond the notion of age. Societies in

664 Frank Furedi, Moral Crusades in an Age of Mistrust: The Jimmy Savile Scandal (Palgrave Macmillan, 2013) at 45. 665 Ian Hacking, “Risk and Dirt” (2003) Risk and morality 22 at 40. 666 Furedi, supra note 664 at 44. 667 Sue Scott, Stevi Jackson & Kathryn Backett-Milburn, “Swings and Roundabouts: Risk Anxiety and the Everyday Worlds of Children” (1998) 32:4 Sociology 689 at 689. 668 James Clyde Mitchell, The Kalela Dance; Aspects of Social Relationships Among Urban Africans in Northern Rhodesia (published on behalf of the Rhodes-Livingstone Institute by the Manchester Univ. Pr., 1959). 669 Yvonne Kemper, “Youth in War-to-Peace Transitions” (2005) 10 Approaches of International Organizations, Berghof-Report.

230 which age categories are salient engage in constant struggles over who is a child and over the cultural, legal, and moral dimensions of childhood.670

Furthermore, age is important in informing public and political conceptualizations of children’s victimhood and vulnerability. Children are regarded as intrinsically vulnerable,671 and therefore entirely pure or ‘blameless’ simply by virtue of their age, or status as children.

Age not only amplifies the power imbalance between the parties, but also serves to underline the wholesomeness of the victim, and thereby the culpability and perverse nature of the offender.672

To complicate matters in international law and policy, the concepts of ‘child’,

‘youth’, ‘adolescent’ or ‘young people’ as defined vary from one international organization to another and overlap in some cases. While the UN Convention on the Rights of the Child considers a child to be anyone under the age of 18, the UN World Programme of Action for

Youth identifies ‘youths’ as those between 15-24 years of age.673 Moreover, the World Health

Organization and the United Nations Children’s Fund (UNICEF) differentiate between

‘adolescents’ (15-19 years old), ‘youth’ (15-24 years old), and ‘young people’ (10-24 years old).674 Humanitarian and human right groups that seek to ban the military use of children have defined a child soldier as any person under the age of eighteen years, who have been recruited, or used by an armed force or armed group in any capacity.675 Ultimately, defining who is a child is in fact ‘a process of negotiations between individuals, family members, peer groups and the wider community in the context of life events and rites of passage.’676 This

670 Rosen, supra note 602 at 132. 671 Furedi, supra note 664 at 42. 672 McAlinden, supra note 426. 673 United Nations, “World Programme of Action for Youth”, (2010), available online: http://www.un.org/esa/socdev/unyin/documents/wpay2010.pdf (accessed on December 15, 2015) at 11. 674 Pia Peeters, Youth Employment in Sierra Leone: Sustainable Livelihood Opportunities in a Post-Conflict Setting (World Bank Publications, 2009). 675 UNICEF, “Cape Town Principles and Best Practices” (1997) 7 Cape Town, South Africa Geraadpleegd op. 676 Andrew Mawson, “Children, Impunity and Justice: Some Dilemmas from Northern Uganda” (2004) Children and Youth on the Front Line: Ethnography, Armed Conflict, and Displacement 130 at 226.

231 politics of age has been called the “cultural politics of childhood” – namely the ideological, political, and social uses of children and the concept of the child.677

Drawing from the field of ethnography, particularly the methods of participants’ observations, which has ruffled conventional concepts of childhood and seems to be the best way to study children. Observing and listening to the voice of children in natural settings where they are not disempowered by the formal regimes of interviewing, testing and measurement provides the clearest depiction of the competence of children. Groundbreaking ethnographic work in the study of children supports the notion that children, even young ones, are far more sophisticated, knowledgeable, rational, and skillful than is assumed in the general culture, or in the popular development models used in psychology, education, and social work.678

Ethnographic and historical accounts of child soldiers stress the agency, autonomy, and independence of youth, and strain to achieve common ground with the dominant humanitarian accounts that emphasize the inherent vulnerability and dependence of the young. The tension between these accounts seems to be more than just a clash between old and new paradigms of childhood. Instead, for a variety of moral and political reasons, dominant humanitarian descriptions of child soldiers provide an overstated version of the development paradigm.

In the most humanitarian accounts, child soldiers are either of two things -victims or demons, or better yet, they are demons because they are victims. Neither demons nor victims are rational actors. 679 Most humanitarian accounts of child soldiers argue that their behavior on the battlefield flows from their victimization; children fight because they were kidnapped,

677 Nancy Scheper-Hughes & Carolyn Fishel Sargent, Small Wars: The Cultural Politics of Childhood (Univ of California Press, 1998) at 1–13. 678 Rosen, supra note 602 at 135. 679 Ibid at 134.

232 brainwashed, physically and sexually abused, forced to take drugs. They kill because they are irrational, or prerational, or because their rationality has been stripped away by adults who have forced them to ingest alcohol or drugs.680 Only few humanitarian narratives stress that child soldiers possess individual survival strategies, apply their own intelligence, strategize about situations or do anything that adult soldiers might do.

The dominant humanitarian narrative erroneously assumes an unanimity between

Western legal traditions on the age of capacity and consent for children, whereas in reality these legal traditions do not have a coherent standard on the age of capacity and consent.

Rather, it is comprised of a multitude of confusing distinctions and doctrines. For instance, in the British common law and in most common law jurisdictions worldwide, the age of capacity was seven. After age seven, though children cannot be presumed to bear responsibility, they could be held responsible for capital offences. The presumed weakness of children and who benefits from imposing a fixed chronological definition of childhood has received considerable skepticism among legal scholars.681 Research indicates that children, by the age of fourteen, are no less competent than adults when making major decisions concerning their welfare.682 It is not totally clear whether the true purpose of the legal infancy principle actually protects children. It has been argued by some commentators that children might be far better off without these legal doctrines.683

It has been argued that although a fully “child blind” society might not be conceivable, widespread age-based distinctions ought to be treated as “semi-suspect classifications,” an idea that would invalidate all, but the most compelling and justified of

680 Rosen, supra note 602. 681 Lois A Weithorn, “Involving Children in Decisions Affecting their Own Welfare” in Children’s Competence to Consent (Springer, 1983) 235; Robert G Edge, “Voidability of Minors’ Contracts: A Feudal Doctrine in a Modern Economy” (1966) 1 Ga L Rev 205. 682 Weithorn, supra note 681. 683 Edge, supra note 681.

233 those distinctions.684 While the participation of child soldiers in armed conflicts could be argued as a compelling context, modern legal theory is generally skeptical of a universal age- based distinctions and provides limited justification to creating a universal age-base extending to age eighteen.685

Broadening and solidifying the otherwise fluid boundaries among childhood, youth and adulthood becomes especially problematic during wartime. The conditions of war often erase carefully constructed cultural, legal, and social boundaries of class, gender, and age, and reveal them as artifice.686

Age is not the only difficulty when exploring the concept of the ‘child soldier’. The term ‘soldier’ triggers the archetypal symbols of uniformed men with extensive military training in active combat. This image counters the realities of most of the inadequately trained and outfitted child soldiers who fill the ranks of rebel and insurgent groups in armed conflicts.687 Furthermore, the stereotypical conceptualization of ‘soldier’ grossly conceals the realities of women and girls’ participation in armed conflicts, as well as the supporting roles that children perform during armed conflicts as messengers, bodyguards, cooks, spies or porters.688

A deeper recognition of the varied roles children play in armed conflicts, which goes far beyond actual combat, led to the adoption of the catch phrase ‘children associated with fighting forces’ in existing literature. However, this term is problematic due to its failure to adequately connote children’s active contributions to contemporary armed conflicts, implying that they remain at the periphery. Also, the use of the catch phrase may deny children who have served in wartime with the supporting roles and access to humanitarian programs

684 Laurence H Tribe, “Childhood, Suspect Classifications, and Conclusive Presumptions: Three Linked Riddles” (1975) Law and Contemporary Problems 8 at 32. 685 Rosen, supra note 602 at 135. 686 Stephanie Coontz, The Way We Never Were (New York: Basic Books, 1992) at 31–32. 687 Alcinda Honwana, Child Soldiers in Africa (University of Pennsylvania Press, 2011). 688 Denov, supra note 621 at 3.

234 provided to those tagged as ‘combatants’ during the period of disarmament, demobilization and reintegration.689

Also, the universal use of the phrases ‘child soldiers’ or ‘children associated with fighting forces’, fails to capture the diversity of children’s experiences in armed conflicts.

Though the children who engage in armed conflicts may share similar experiences, the experiences of a 15 year old child associated with an insurgent group in an African country differs significantly from the experiences of a 17 year old child associated with armed forces in the United States. Yet, they may both be deemed as ‘child soldiers’.

Generally, international law constructs child soldiers largely as victims, to the extent that their rights have been violated by illegal recruitment and through their involvement in armed conflicts. Furthermore, there is the view that children under fifteen years of age lack the mental capacity to fully weigh all the issues in joining armed forces or insurgent groups.

In both situations, it is irrelevant whether the child consents to his or her treatment. The child is deemed insufficiently mature enough to understand fully the potential consequences of his or her agreement, and therefore his or her consent cannot be interpreted as meaningful.

The underlying assumption of the doctrine of responsibility in international law is that the responsible agent is free, committing a deed without restraint or compulsion, knowingly, and deliberately. Attributing responsibility for a crime becomes difficult in situations where the actions that are normally known to being a crime are committed by agents whose freedom to control their actions, or whose capacity to make fully informed and reasoned decisions, are debatable. Generally, in cases where serious criminal acts are committed, it can be proven that the act was unintentional, or that the agent did not have the mental capability to understand the nature and consequences of the act. In these situations, the agent is often rightly exonerated or excused from responsibility on the grounds that he or

689 Matthew Happold, Child Soldiers in International Law (Manchester University Press, 2005).

235 she lacked the necessary mens rea or intentionality. Intention is a key element in determining the crime, and is the difference between charges of murder or manslaughter, or between a conviction for acting with malice, negligent homicide, or being exonerated for acting out of justified self-defence.

Child soldiers, and the contexts in which they usually operate, present a challenge to conceptualizing responsibility with a number of factors that can separately be seen to diminish individual responsibility. Coercion, a feature in the lives of a majority of child soldiers, is a condition that is quite aptly regarded as diminishing or absolving personal responsibility for actions if a reasonable person could be understood to see no alternative to committing the criminal act when faced with a serious and credible threat.

The fact that an act was committed as part of a collective wrongdoing rather than against a backdrop of a well-ordered and peaceful environment also affects how acts of atrocity and their perpetrators ought to be judged. Collective action, as a diminishing factor, is not grounded in general domestic criminal law principles. Indeed, on a domestic level, the fact that an action is committed as part of a collective wrongdoing can be considered as an aggravating factor, such as in regards to gang participation. This, however, takes on a different meaning when the collective action is widespread and systematically part of the contemporary social order. The mitigating condition of collective action is given too little attention in debates of international criminal law. This is particularly significant to the discussion about child soldiers because young people, as a category, are arguably, inherently and more easily influenced by social norms and pressure.690

Given that these three factors exist in combination for many child soldiers, it seems wise to ask whether it makes sense to talk about the personal responsibility of young contributors in the context of these heinous atrocities. This dilemma was captured in the

690 Fisher, supra note 614 at 63.

236 mandate of the Special Court for Sierra Leone to try “persons most responsible”. This term is meant to include political and military leadership, as well as people selected due to “a sense of the gravity, seriousness or massive scale of the crime(s) committed.691 The former

Secretary General of the United Nations, Kofi Annan, made it clear that the term “most responsible” need not exclude children between 15 and 18 years old noting that the severity of the crimes they have committed qualifies them to be under the jurisdiction of the court.

The court’s jurisdictional over child solders was the most contentious aspect of the report.

The Secretary General recognised that “the possible prosecution of children for crimes against humanity and war crimes presents a difficult moral dilemma.”692

Due to the wide spread occurrence of child soldiering, which could be a phenomenon that gained momentum in the 1970s, the issue of child soldiers, for the most part, was overlooked by the main texts in the laws of armed conflicts. The Geneva

Conventions focused on children as civilians and not as combatants. While children are not specifically included in the special protection provisions,693 multiple references to children throughout the articles694 ensure their inclusion, however implicit. In all the Geneva

Conventions, no definition of “child” or “children” is given, but in a number of articles, an age limit of fifteen is specified695. The implications of this seem to be that for the purposes of the Convention a child is a person under fifteen years of age. Children under fifteen years of

691 Report of the Secretary General on the establishment of a Special Court for Sierra Leone available online https://documents-dds-ny.un.org/doc/UNDOC/GEN/N00/661/77/PDF/N0066177.pdf at 7. (accessed December 31, 2016). 692 Ibid. 693 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 [Hereafter ‘Fourth Geneva Convention’], Article 16: ‘The wounded and the sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect’. 694 Specifically Articles 14, 15, 17, 23, 24, 38, 50, 51, 82, 89. Article 14 provides for ‘safe spaces’ for children; Article 17 provides for the evacuation of children from war-torn areas; Article 50 provides for the proper identification of children. 695 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287.

237 age who participate in hostilities are not necessarily ‘unprivileged belligerents’.696 Age is not the criteria used to determine their status, rather the same criteria is used to determine whether any other persons are entitled to participate directly in hostilities or not. Children under the age of fifteen years are not prohibited from participating in hostilities, as are civilians697 or mercenaries698. Although, if they do fulfill the relevant criteria, children may be civilians, or mercenaries, or members of some other group of unprivileged belligerents, such as spies, whose activities, although not amounting to direct participation in hostilities, render them liable to punishment under the domestic law of an adverse party. However, a child cannot be punished simply for having borne arms in an international armed conflict.699

There is an emerging international legal consensus that age fifteen is the determinative for criminal responsibility for recruiting child soldiers, though the Rome

Statute did not specifically address the culpability of child soldiers for war crimes. Pursuant to the Rome Statute of the ICC, it is a war crime for any national army or other armed group to conscript or enlist children under the age of fifteen years, or to use these children to actively participate in the hostilities.700 Similarly, the statute of the Special Court for Sierra

Leone criminalizes the recruitment of child soldiers below the age of fifteen years.701

696 For a description of the distinction, see Richard R Baxter, “So-Called Unprivileged Belligerency: Spies, Guerrillas, and Saboteurs” (1951) 28 Brit YB Int’l L 323; Gerald IAD Draper, “Status of Combatants and the Question of Guerilla Warfare, The” (1971) 45 Brit YB Int’l L 173. 697 Who lose their protected civilian status if they directly participate in hostilities and who may, subject to the limitations imposed on an occupying power in GC IV, be punished for doing so under that party’s municipal law. 698 Who, under Article 45 of AP I, are not granted POW status on falling into the power of an adverse party and may similarly be punished for their activities. The customary status of this provision has, however, been doubted. 699 Happold, supra note 689. 700 Rome Statute of the International Criminal Court, art. 8(2)(b)(xxvi), July 17, 1998, 2187 U.N.T.S. 90. Article 8(2)(b)(xxvi), relating to international conflicts, prohibits "conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities." Id. Article 8(2)(e)(vii), relating to conflicts not of an international character, prohibits "conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities." Id. art. 8(2)(e)(vii). 701 Statute of the Special Court for Sierra Leone, art. 4(c), Jan.16, 2002, 2178 U.N.T.S. 145. Article 4(c) prohibits "[c]onscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities."

238 Apart from the ongoing prosecution of Dominic Ongwen, humanitarian and human rights groups were successful in preventing the prosecution of child soldiers under the age of eighteen years.702 The Rome Statute does not have jurisdiction over war crimes committed by anyone under the age of eighteen.703 In Sierra Leone, where both sides to the civil war used child soldiers extensively and many of these children committed terrible war crimes, the

Prosecutor of the Special Court declined to prosecute any person below the age of eighteen. It is important to note that although the statute of the Special Court allows for the prosecution of persons between the ages of fifteen and eighteen, if the child soldiers are convicted, they cannot be imprisoned.704

Other than Sierra Leone, the court of the UN Transitional Administration in East

Timor (“UNTAET”) was authorized to try offenses committed by minors between the ages of twelve and eighteen. Under the court’s rules of criminal procedure, minors between twelve and sixteen years of age were liable to prosecution for criminal offenses in accordance with

UNTAET regulations on juvenile justice. However, they could only be prosecuted for the most serious offenses, such as murder, rape, or a crime of violence in which serious injury is inflicted upon a victim.705 Minors over sixteen years of age were subject to prosecution under adult rules of criminal procedure. But in accordance with the Convention on the Rights of the

702 Nienke Grossman, “Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations” (2007) 38 Georgetown Journal of International Law at 358. 703 Rome Statute of the International Criminal Court, art. 26, July 17, 1998, 2187 U.N.T.S. 90. 704 In testifying, Special Court Prosecutor David Crane stated, "when I was the chief prosecutor at the International War Crimes Tribunal in Sierra Leone, I chose not to prosecute child soldiers, as it is my opinion that no child under the age of 15 can commit a war crime." Subcomm. on Int'l Hum. Rts. Of the Standing Comm. on Foreign Affairs and Int'l Development, 2d Sess., 39th Can. Parl., I (May 13, 2008), available at http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=3494571&Language=E&Mode=2&Parl=39 &Ses=2 (assessed on December 14, 2015). In fact, he declined to prosecute anyone between fifteen and eighteen as well 705 Transitional R. CRiM. P. § 45.1, U.N. Do. UNTAET/REG/2000/30 (Sept. 25, 2000).

239 Child, there was mandate to safeguard the rights of minors, and to consider their status as juveniles in every decision made in a case.706

In the domestic criminal forum, child protectionism initiatives did not gain more traction, unlike in the international criminal forum. In the wake of the 9/11 attacks, the

United States of America held at least twelve juveniles at Guantanamo Bay, Cuba.707 These twelve juveniles include Omar Khadr, a fifteen-year-old child soldier, which was widely publicized. Khadr was captured and detained as an unlawful combatant after a firefight with

American troops in Afghanistan, which led to the death of an American soldier.708 Khadr was quickly classified as an unlawful combatant, he was charged with murder and attempted murder under the Military Commissions Act,709 and spent nearly thirteen years in detention.

The Military Commissions Act provides for the death penalty in cases like that of Khadr.710

Since the US did not ratify the Protocols Additional I and II to the Geneva Conventions,

Khadr’s only legal protections were under Common Article 3 of the Conventions. Common

Article 3 does not preclude the death penalty for child soldiers classified as unlawful combatants. As Khadr is a Canadian citizen however, the Canadian government successfully pressured the US not to pursue the death penalty in this case.711

In 2002, the Ugandan government brought treason charges against two boys, aged fourteen and sixteen, who were members of the LRA.712 In a letter to the Ugandan Minister of

706 Ibid. § 45.4 707 U.S. Admits it Held 12 Juveniles at Gitmo, November 2008, available at http://www.nbcnews.com/id/27754942/ns/world_news-terrorism/t/us-admits-it-held-juveniles- guantanamo/#.Vm-euIRzohY (accessed December 15, 2015) 708 Human Rights First, The Case of Omar Ahmed Khadr, Canada, http://www.humanrightsfirst.org/us law/detainees/cases/khadr.aspx (accessed December 15, 2015) 709 Military Commissions Act of 2006, Pub. L. No. 109-366, §948(a), 120 Stat. 2600, 2601 (2006). 710 Ibid § 948(d) ("A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war."). 711 Suzanne Farley, “Juvenile Enemy Combatants and the Juvenile Death Penalty in US Military Commissions” (2007) 47 Santa Clara L Rev 829; Matthew Happold, “Child soldiers: victims or perpetrators” (2008) 29 U La Verne L Rev 56. 712 Human Rights Watch, Uganda: Human Rights Watch Urges Government to Drop Treason Charges Against Child Abductees, March 4, 2003 available online at https://www.hrw.org/news/2003/02/19/uganda-letter-

240 Justice, Human Rights Watch urged that the government to drop the treason charges and release the boys to a rehabilitation centre.713 Human Rights Watch also requested that the government issue a public statement that children would not be subject to treason charges.714

The Ugandan government decided not to proceed in these cases, neither did the government establish a national policy. However, in 2009, the Ugandan government charged another child soldier with treason;715 a child who, according to Human Rights Watch, was abducted at age nine by the rebel forces of the Allied Democratic Front, and was arrested at age fifteen.716

From the discussions above, acquiring the label of victim in international law and policy, and how and when this occurs, depends not only on the attributes of victims themselves, but also on the reactions of states who might prosecute them.717 However embedded, perceptions of the victim status of child soldiers remain somewhat contingent upon the nationality of those persons injured by their conduct. Child soldiers who commit violence, for example, terrorist attacks against Western targets, are seen less like deluded children and more like menacing adults.718

8.5. Conclusion

This chapter explores the lives and realities of child soldiers, for both boys and girls, using Dominic Ongwen as a miniature case study. While child soldiers are usually constructed through the logic of extremes – either as extreme victims, extreme perpetrators or extreme heroes – in reality, their experiences and identities fall within the messy, ambiguous

minister-justice (accessed on December 15, 2015). 713 Ibid. 714 Ibid. 715 Georgette Gagnon, Letter to Ugandan Minister of Justice Regarding Abducted Child, HUMAN RIGHTS WATCH, January 6, 2009, available on http://www.hrw.org/en/news/2009/01/06/letter-ugandanminister- justice-regarding-abducted-child (accessed December 15, 2015) 716 Ibid. 717 James A Holstein & Gale Miller, “Rethinking Victimization: An Interactional Approach to Victimology” (1990) 13:1 Symbolic Interaction 103; Paul Rock, Victimology (Dartmouth Aldershot, 1994). 718 Drumbl, supra note 600 at 3.

241 and paradoxical zones of all three sides of that triangle. This proves to be one of the challenging aspects to contend with in rebuilding their lives after armed conflicts.

The culpability of child soldiers for their actions has been highly debated. Should they be responsible or simply seen as innocent tools of their superiors? A very important question to be asked is where the line between childhood and adulthood starts and how the international criminal justice project locates that line. No doubt, Ongwen’s ongoing trial at the ICC raises vexing justice questions which I have explored in this chapter, however his peculiar situation shows that most victimization, particularly the victimization of child soldiers is rarely a simple process with only discreet, easily recognizable perpetrators and victims. Therefore, it is imperative that these nuances and complexities are brought to the narratives of victimization in the international criminal justice project because these narratives matter in shaping and enhancing the legitimacy of the international criminal project in third world countries, where the phenomenon of child soldiery persists.

Ongwen represents the complex status of many other child soldiers like him: young boys and girls who grew up in insurgent groups and assumed command positions, perpetuating the same crimes of which they are victims. Unfortunately, none of their unique statuses are recognized in current international criminal justice debates. Yet, as they occupy centre stage in justice pursuits, if they are excluded, this might have far-fetched repercussions for the next generation of perpetrators - generations who have nothing to lose from participating in armed conflicts.

Recognizing their complex status opens up room for the identification of others. For instance, children born of rape who have been raised within insurgent groups, and who are now child soldiers, carry out gruesome attacks on others. So Ongwen is not, and should not, be treated as a case of one person in one exceptional circumstance, but rather as an illustration of the moral complexities imbued in the ‘victimhood’ of child soldiers.

242 Further, in enhancing the legitimacy of the international criminal justice project, a contextual based discussion of how the victimization of child soldiers occur will potentially reveal that the victim or perpetrator status of child soldiers is not fixed, but rather subject to change over time. Thus, a potentially richer and much more interesting narrative emerges concerning the politics of victimhood and the perpetrator status of child soldiers than is traditionally suggested.

243

Chapter 9: Beyond the ICC: Neglected and Ambiguous Victims

9.1. Introduction

On November 13, 2015, there were coordinated attacks on the city of Paris by members of the extremist movement known as the Islamic State of Iraq and the Levant

(ISIL), which left a large number of people dead in its wake. This attack would be the third attack in recent times in Paris and immediately garnered media attention, prompting Western leaders to condemn the attacks, demanding the need to defend ‘shared values”. Monuments around the world lit up in the colors of the French flag in acts of solidarity. In contradistinction, just a few days before the attack in Paris, specifically on November 12,

2015, there was a double homicide attack in Beirut, Lebanon which left dozens dead. Similar attacks were reported in Nigeria, which were committed by the ISIL affiliated Boko Haram

(these two sites among others have been ravaged by terrorists’ attacks in the past). The attacks in Lebanon and Nigeria did not garner public outrages, nor top media attention. No monuments were lit up in acts of solidarity, which left the victims in those countries thinking that their lives mattered less. It appears as though there is a hierarchy in the production of victims in the global discourse on terrorism and international justice.

Intricately linked to this was the abduction of 200 Nigerian girls from their school by the Boko Haram in 2014 ,where Abubakar Shekau, Boko Haram’s leader, declared on a video: ‘I abducted your girls. I will sell them in the market.” Two years later, many of the girls are still in captivity and many are reported to have been forcefully “married” to their captors. Interestingly, this tragic evented managed to capture the attention of the global media, (with the hashtag “bring back our girls” trending on twitter for several days) and brought the issue of slavery to the fore. However, the stories of the victims of slavery have generally been marginalized in international law discourse.

244

These contradictions have surfaced in different sites of international law over the years, where some victims have been left behind, or even remained at the periphery of the international law discourse as neglected or ambiguous victims.

This chapter is divided into two sections. Section one will explore the marginalization of victims of terrorism. Attention will be drawn to the problematic construct of terrorism, for instance, who is a victim of terrorism, and the victims of counter-terrorism initiatives will be highlighted. Section two explores the reparation claims by descendants of the victims of the trans-Atlantic slave trade. It argues that despite the emotive logic of the claims for reparation for slavery, it is not sustainable because it is rooted in morality rather than framed in a legal way.

9.2. Victims of Terrorism

One of the characteristics of the ‘new terrorism’ appears to be the aim to produce large-scale victimization, in order to provoke maximum public attention. This is often referred to as ‘catastrophic terrorism’. For instance, on September 11 of 2001, more than

2,600 people were killed at the World Trade Centre, 125 died at the Pentagon, and 256 died on the four planes hijacked by the terrorists who pledged allegiance to Al Qaeda, while about

250 others got injured. The Bali bombings of 12 October 2002 killed 202 people, 164 of whom were foreign nationals, and 38 Indonesian citizens. A further 209 people were injured.

In Madrid, on 11 March 2004, 191 people were killed. The Beslan School Hostage that began on September 1, 2004 killed 334 civilians, including 186 children and 100 more were wounded.719

719 These serve as examples. Unfortunately, many more examples can be given, such as the Lockerbie plane crash on 21 December 1988 in which 270 people were killed, or the London Bombings on 7 July 2005 which killed 52 commuters and injured 700. See for terrorism databases: The National Consortium for the Study of Terrorism and Responses to Terrorism at http://www.start.umd.edu/data/gtd/ and the RAND-MIPT Terrorism Incident Database at http://www.rand.org/ise/projects/terrorismdatabase/index.html (accessed November 4, 2016)

245 This stark reality shows that the focal point of terrorist activities is not restricted to a specific region of the world. Up until the early 1970s, most incidents of terrorism were localized in Latin America. Then the focus shifted to Europe. In the mid-1980s, most of the incidents were in the Middle East. In the first decade of the twentieth century, terrorist incidents can be found in nearly all parts of the world, but with the Middle East and Africa being most prominent. Terrorism has become a global phenomenon720 and most initiatives sponsored at the level of the United Nations have done little to address the ending or slowing down of terrorists attacks.

The terrorist attack of September 11, 2001 had shattering consequences for international law, which required rethinking of some important categories, including the appropriate definition of terrorism721 and the construction of victims of terrorism. These two concepts are intricately interlinked in the current terrorism discourse.722 As stated above, while terrorism predates September 11, 2001, there has not been a sustained focus on victims of terrorism by the United Nations. For instance, at the 1993 Vienna World Conference on

Human Rights, the relationship between terrorism and human rights was not the centerpiece of UN concerns at the conference. However, as from 1994, the UN passed resolutions linking human rights and terrorism together723. These resolutions were characterised by a common affirmation “that the most essential and basic human right is the right to life” of victims, and further restated the General Assembly’s concern about the “gross violations of human rights

720 Human Development Report 1994, Published for the United Nations Development Programme, Oxford University Press, 1994, p. 37. 721 The biggest challenge for pre-9/11 political theorists and international lawyers was to make a fine distinction between terrorist violence and other forms of politico-ideological violence, particularly struggles for self- determination, as well as coming up with a universally acceptable definition of terrorism at the international level. 722 Rianne Letschert, Ines Staiger & Antony Pemberton, Assisting Victims of Terrorism: Towards a European Standard of Justice (Springer Science & Business Media, 2009). 723 UN Commission on Human Rights, Human Rights and Terrorism., 23 December 1994, A/RES/49/185, available at: http://www.un.org/documents/ga/res/49/a49r185.htm [accessed 15 March 2017]

246 perpetrated by terrorist groups.”724 Also, the General Assembly, in identifying with victims of terrorism, requested that the Secretary-General of the UN seek the views of Member States on the possible establishment of a United Nations voluntary fund for victims of terrorism, as well as the ways and means to rehabilitate the victims of terrorism to reintegrate them into society.

The UN Commission on Human Rights also qualified terrorism as a violation of human rights. The impact of terrorism on victims was aptly stated by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental freedoms while

Countering Terrorism:

“Terrorist acts, whether committed by States or non-State actors, may affect the right

to life, the right to freedom from torture and arbitrary detention, women’s rights,

children’s rights, health, subsistence (food), democratic order, peace and security, the

right to no-discrimination, and any number of other protected human rights norms.

Actually, there is probably not a single human right exempt from the impact of

terrorism.”725

While terrorism is clearly an international crime, previous attempts to characterize terrorism as crime against humanity726, or to be include terrorism in the jurisdiction of the

ICC, was opposed by many states including the US on four grounds: (1) the offence was not well defined; (ii) in their view, the inclusion of this crime would politicize the court; (iii)

724 Other General Assembly resolutions qualifying terrorism as a violation of human rights are: A/RES/48/122 of 20 December 1993; A/RES/49/185 of 23 December 1994; A/RES/50/186 of 22 December 1995; A/RES/52/133 of 12 December 1997; A/RES/54/164 of 17 December 1999 and A/RES/56/160 of 19 February 2001 725 Doc. E/CN.4/Sub.2/2001/31 of 27 June 2001, 46. The Special Rapporteur drafted a preliminary report (Doc. E/CN.4/Sub.2/1999/27 of 7 June 1999), a progress report (Doc. E/CN.4/Sub.2/2001/31 of 27 June 2001), a second progress report (Doc. E/CN.4/Sub.2/2002/35 of 17 July 2002), an additional progress report with two addenda (Doc. E/CN.4/Sub.2/2003/WP.1 and Add.1 and 2 of 8 August 2003), and a final report (Doc. E/CN.4/Sub.2/2004/40 of 25 June 2004). In fact, a lot of rights are infringed by terrorism: the right to liberty and security, the right to family life, the right to movement, the right to information, the right to a fair trial, etc. 726 Algeria, India, Sri Lanka and Turkey made the proposal. See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court A/CONF.183/C.1/L 27.

247 some acts of terrorism were not sufficiently serious to warrant prosecution by an international tribunal; (iv) generally speaking, prosecution and punishment by national courts were considered more efficient than by international tribunals. Several developing countries also opposed the proposal on the ground that the draft ICC Statute should distinguish between terrorism and the struggles of the peoples under foreign or colonial domination for self- determination and independence. 727

This cautious approach to designating terrorism as an international crime, warranting inclusion in the Rome Statute, was previously echoed in Tel Oren v. Libyan Arab Republic728.

In this case, the US Court of Appeals of the District of Columbia held that since there is no agreement on the definition of terrorism as an international crime under customary international law, this offence does not attract universal jurisdiction. Also, the French Court of Cassation, in a serious case of terrorism involving Ghaddafi, held that terrorism was not an international crime entailing the lifting of immunity for heads of state, and therefore quashed proceedings initiated against the Libyan leader.729

As discussed above, the current construct of terrorism as not being a crime against humanity would exclude victims of terrorism from the international criminal justice project, especially at the ICC. Notwithstanding, serious offences of terrorism could be considered as crimes against humanity under the subcategories of ‘murder’ or ‘extermination’ or ‘other inhumane acts’ in Article 7 of the Rome Statute. These are similar elements to the crime of terrorism and could be used to integrate victims of terrorism into the international criminal justice project. Therefore, while victims of terrorism might not be able to access international

727 Roberta Arnold, The ICC as a New Instrument for Repressing Terrorism (Ardsley, N.Y.: Transnational Publishers, 2004) at 347–349.(Art. 8 of the ICC Statute). Note that in 1992, a report for the secretariat of the UN Crime Prevention Branch authored by Alex Schmid, suggested that acts of terrorism could be defined as the ‘peacetime equivalents of war crimes’. 728 726 F.2d 774 (D.C.C Cir. 1984) 729 See the text of the decision in Bulletin des arrets de la Cour de Cassation, Chambre criminelle, March 2001, no. 64, at 218-9. See also the comments by Zappala, in 12 EJIL (2001), 595-612, by Poirat in 105 RGDIP (2001), at 47-91 and by Roulot in Dalloz (2001) no. 32, 2631-2633.

248 criminal tribunals directly, they are able to litigate their claims under national criminal jurisdictions and indirectly at the ICC under Article 7, by reframing the crime of terrorism as

‘extermination’, ‘murder’, or ‘other inhumane acts’.

Resolution 1373 which was adopted by the United Nations Security Council in 2001, expressly affirmed that terrorist acts and acts of international terrorism constitute a threat to international peace and security. However, the resolution did not provide a clear definition of what constitutes terrorism. While this reveals an ongoing tension within the UN on defining

“terrorism”, this tension could be said to have reduced, while the international security regimes have grown in strength and state consensus.730

This definitional problem could be seen in the way that ISIS is currently constructed and labeled as a band of terrorists, even though it occupies territory, runs social services and directly confronts military forces in warfare. This would have been characterized as an insurgency many years back. In the lingering civil war in Syria, the United States brands those fighting the government on its own parameters. The United States labels ISIS fighters as “terrorists”, while the insurgents approved by the United States are labelled as the

“moderate opposition”. However, President Assad of Syria, categorically believes that any violent opposition to a sitting government is simply “terrorism”.731

While there is no international consensus on a legal definition of terrorism, which would end deeply contested issues, such as clarifying whether a particular armed group can be deemed as legitimate ‘freedom fighters’ or ‘unlawful terrorists’, there is a reasonable

730 Until then the Sixth Legal Committee of the United Nations, which is the primary forum for the consideration of legal questions for the General Assembly, had been working on several conventions related to terrorism. See Eric Rosand, “Security Council Resolution 1373, The Counter-Terrorism Committee, and The Fight Against Terrorism” (2003) 97:2 The American Journal of International Law 333. Conventions drafted by the Sixth Committee include the International Convention for the Suppression of Terrorist Bombings, General Assembly Resolution 52/164 (15 Dec. 1997), 37 ILM 249 (9 Jan. 1998); and the International Convention for the Suppression of the Financing of Terrorism, General Assembly Resolution 54/109 (9 Dec. 1999), 39 ILM 270 (25 Feb. 2000). 731 See Charlie Rose, President Syrian President Bashar al-Assad addresses the ongoing civil war in Syria, the use of chemical weapons, potential U.S. airstrikes, and whether he is willing to step down as president to end the war, available online at https://charlierose.com/videos/19570 (accessed, December 31, 2016)

249 degree of consensus that terrorism includes elements of fear, violence, intimidation and consists of politically motivated attacks by non-state actors and state-actors. Examples of state-sponsored terrorism includes Iran’s support for Hezbollah in Lebanon, the alleged bombing of Pakistan’s North West by Afghanistan’s secret service in the 1980s, and Israel’s failed covert operation in Egypt in the late 1950s, to mention a few. However, what is unclear is when ‘terrorism’ ends and when acts of ‘insurgency’ or ‘civil war’ begin.

It is worth mentioning that before the terrorist attack of September 9, 2011, terrorism was by definition, a limited phenomenon. It was often referred to as the “weapon of the weak” because it inflicted damage only sporadically. However, if terrorist violence became sustained and extensive in an area, thereby no longer being fitful or sporadic, the activity would generally no longer be called terrorism, but rather war or insurgency.

Thus, the Irish Republican Army was commonly characterized as a terrorist enterprise, while fighters in Sri Lanka in the 1990s were seen as combatants in a civil war.

Also in the early and middle of the 1960s, the Vietnamese Communist campaign of assassination, ambush, harassment, sabotage, and assault was generally characterized as insurgent or guerrilla warfare and not terrorism. This is because the violence was sustained, even though its campaign included acts of violence against random civilians.

In fact, terrorism has been commonly described as “theater,” where violence is carefully choreographed by groups or persons seeking to effect fundamental political change.732 For instance, Boko Haram’s current terrorist attacks in the North-East of Nigeria have frequently been stated as part of its aim is to rid colonial influences or legacies in all facets of the Nigerian society, and to progress towards the creation of an Islamic State. The violence perpetrated by terrorists is therefore designed not only to attract attention to themselves and their cause, but also to coerce and intimidate, and to create an atmosphere of

732 Bruce Hoffman & Anna-Britt Kasupski, The Victims of Terrorism: An Assessment of Their Influence and Growing Role in Policy, Legislation, and the Private Sector (Rand Corporation, 2007).

250 fear and alarm that the terrorists can exploit.733 The deliberate targeting of innocent persons generally plays a central role in the terrorists’ ability to “terrorize.” Therefore, as the fictional vampire requires blood to survive, the real-life terrorist needs victims.734

For instance, suicide attacks are a form of terrorism in which the perpetrator’s goal is to get as close to a target and kill or injure as many people as possible, or a particular high- level political figure.735 The randomness of the victim selection by the terrorist perpetrators typically create a heighten sense of vulnerability in a larger class of indirect victims who identify with direct victims. No doubt, contemporary suicide terrorism seek to cause devastating physical damage which leads to feelings of panic and helplessness,736 thereby creating so-called vicarious or tertiary victims.737

9.2.1. Constructing Victims of Terrorism

Defining ‘victim(s)’ in the context of a terrorist attack are equally as problematic as defining the concept of terrorism. The difficulty in defining “victims” lies in the fact that the individuals usually affected by terrorist acts are numerous, with diverse and dissimilar profiles. Also, different perceptions exist regarding who is and not a ‘victim of terrorism.’

This is in part due to the fact, as discussed in the preceding section, that ‘terrorism’ itself is a politically charged term.

Victims are typically portrayed as the unfortunately subjects of random attacks, effectively being representatives of a broader category of individuals for whom the violent

733 Ibid. 734 Ibid. 735 Yoram Schweitzer, “Suicide Terrorism: Developments and Characteristics”, 21 April 2000, at http://www.ict.org.il/articles/articledet.cfm?articleid=112 (accessed October 30, 2016) 736 Uwe Ewald & Ksenija Turković, Large-Scale Victimisation as a Potential Source of Terrorist Activities: Importance of Regaining Security in Post-Conflict Societies (IOS press, 2006) at 23. 737 Betty Pfefferbaum, “Victims of Terrorism and the Media” (2003) Terrorists, victims and society: Psychological perspectives on terrorism and its consequences 175 at 176.

251 communique is intended.738 However, the reality of being a victim of terrorism and political violence is much more complex. The perpetrator and the victim could be one and the same individual, the incidence of repeat victimization is high likely to occur, the experience of secondary victimization is commonplace and issues of justice, reconciliation, truth, memory and identity infinitely complicate the experience.

Victims are an inherent and fundamental part of a very complex, public, political and emotive act. The success of this act depends on the extent to which the violence directs victims and their families. As such, the victims’ unique and diverse experiences are crucial in understanding the broader impact of terrorism and armed conflict. Also, a close up study of the victims’ lives, and their unique but diverse responses to the violence suffered, is important to understand the ideology and the likely end of conflicts. This is especially important when examining conflicts in deeply divided societies such as Sudan, Rwanda, and the former Yugoslavia, where the identity of the victims becomes more salient.739 Therefore, understanding political violence in the context of terrorist activities is knowing about victims generally, victims of terrorism and counter-terrorism, perpetrator-victims and victim- perpetrator interactions, and the political actions of victims after suffering a terrorist attack.

Also important is exploring how terrorism create victims, as this could found in the diverse experiences of victims of terrorism. While on a normative framework, victims are categorized as either direct, indirect or tertiary victims,740 the definition one chooses results in huge differences in the number of affected victims. For instance, commentators believe that in Northern Ireland, everyone could be a victim of political violence.741 The truth might not

738 Alex P Schmid, Strengthening the Role of Victims and Incorporating Victims in Efforts to Counter Violent Extremism and Terrorism (International Centre for Counter-terrorism (ICCT), 2012). 739 Javier Argomaniz & Orla Lynch, International Perspectives on Terrorist Victimisation: An Interdisciplinary Approach (Springer, 2015). 740 For a typology of victims of terrorism, see Letschert, Staiger & Pemberton, supra note 722 at 14. 741 Neil Ferguson, Mark Burgess & Ian Hollywood, “Who are the Victims? Victimhood Experiences in Postagreement Northern Ireland” (2010) 31:6 Political Psychology 857; Sara McDowell, “Who are the Victims? Debates, Concepts and Contestation in ‘post-conflict’Northern Ireland” (2007) Conflict Archive on the Internet.

252 be far from this given that during the conflict in Northern Ireland, it is estimated that 80% of the population had a relationship or knew at least someone that was killed or injured. Here, the different categories of direct, indirect and tertiary victims apply heavily with the political violence in Northern Ireland.

Another problematic issue in examining the experiences of victims of terrorist attacks, is to locate the specific point that they stopped being victims. It is known that the impact of a terrorist attack is not limited, and cannot be limited to the direct victims. It operates in concentric circles extending to the direct victims’ relatives, including second generations and the members of the broader community group. For instance, the girls abducted by the Boko Haram terrorists in North East Nigeria, who were released were later found to be impregnated by the terrorists. They later gave birth to children fathered by these terrorists. In this case, the second generation could also be termed as victims of the terrorist attack. Thus, examining the experiences of direct victims of terrorism would be beneficial in understanding how terrorism and political functions, as a political communicative tool used by victims’ organization, could change the international justice discourse on issues of victimhood.

Furthermore, victimhood is not necessarily a passive outcome but can also be a catalyst for further violence through retaliation, self-harm,742domestic violence and suicide.743

In many instances members of violent political organizations recall their choice to join a paramilitary organization as a result of the actual personal experiences of victimization

(direct or indirect) and perceived feelings of victimhood (either individual or as a group).744

Also, in many conflicts (i.e. Northern Ireland and Rwanda) a victim-perpetrator complex

742 Michael Eddleston, M H Rezvi & Keith Hawton, “Deliberate Self Harm in Sri Lanka: An Overlooked Tragedy in the Developing World” (1998) 317:7151 British Medical Journal 133. 743 Veronique Laloe & M Ganesan, “Self-immolation a Common Suicidal Behaviour in Eastern Sri Lanka” (2002) 28:5 Burns 475. 744 John Horgan, The Psychology of Terrorism (Routledge, 2004).

253 exists whereby individuals recount their engagement in violence as a form of retaliation. In these contexts, it is difficult to extricate these two categories in practice. This is one of the complexities and dangers of advancing a single narrative or conception of international justice.

In thinking about victims of terrorism and armed conflict, as alluded to in the earlier pages of this chapter, it is crucial that the nature of the perpetrator does not dominate the classification of the individual victim experience. Terrorism is not the exclusive tool of non- states actors and militias; states have been responsible for more acts of political violence than would likely ever be possible by sub-state organizations.745

In the contexts of widespread and systematic armed conflicts, lines become blurred and clear divisions between perpetrators and victims are difficult to delineate in practice.746

As part of this debate, other categories of victims have come to the fore, for example victims of counter-terrorism. In this case, individuals have claimed that through discrimination, arbitrary arrest, police measures and harassment for the terrorist attacks, are victims of

(counter-) terrorism.747

Therefore, in the background of a divided society, definitions of victimhood may become contested, politicized and evolved based on the political landscape.748 For instance in

Northern Ireland, different communities define victims differently. Loyalist representatives see their community as victim to the Irish Republican Army (IRA) and related republican attacks tend to follow the notion of a hierarchy: victims are those who suffered violence at the hands of terrorist groups. Republican political actors feel victimized by the actions of the

745 Paul Wilkinson, Terrorism Versus Democracy: The Liberal State Response (Taylor & Francis, 2011). 746 Smyth, supra note 462. 747 Paddy Hillyard, Suspect Community: People’s Experience of the Prevention of Terrorism Acts in Britain (Pluto Pr, 1993); Mary J Hickman et al, “Suspect Communities”?: Counter-terrorism Policy, the Press, and the Impact on Irish and Muslim Communities in Britain (London Metropolitan University, 2011). 748 Karola Dillenburger, Montserrat Fargas & Rym Akhonzada, “Victims or Survivors? Debate about Victimhood in Northern Ireland” (2005) 3:5 International Journal of Humanities 222.

254 British security forces and loyalist sectarianism. They describe victims as those who have suffered harm as a result of the Troubles, irrespective of whether they were combatants or not.749

Even in socio-political contexts that are not marked by cross-communal violence, and where violence is fundamentally one-sided, such as in the Basque Country, political actors may seek to contest consensual definitions of victimhood. Thus, victims’ associations have had to resist the attempts by the political milieu surrounding ETA (Euskadi Ta

Askatasuna) to widen the established definition of victimhood to include ETA members who died while carrying out or planning their attacks.750

Generally, and as McDowell751 describes, definitions of victimhood tend to be shaped by socio-political, legal and cultural factors, with the latter category ‘usually contingent on personal and environmental perceptions’752. Flesher and Barberet753 show, for instance, how different political cultural narratives meant that the understanding of victimhood was much more broad and elastic in the United States after 9/11, than in Spain following the 11-M attacks.754

Central in the complexities involved in constructing victimhood, is the aim of the terrorist group. The aims and objectives of terrorists groups have been characterized differently by governmental responses or policies. Inevitably, some terrorist causes are seen as progressive while others could be seen as deeply sectarian and repressive. For instance, in a 2009 BBC radio interview, David Miliband, the former British Foreign Secretary was

749 Smyth, supra note 266. 750 FVT Fundación Víctimas del Terrorismo. (2010) 'ETA quiereuna asociación de “víctimas del terrorismode Estado” ',Revista de la Fundación de Víctimas del Terrorismo, 32, 21 – 25. 751 McDowell, S. (2007) `Remembering`: Victims, Survivors and Commemoration Who are the Victims? Debates, Concepts and Contestation in’post-conflict’ Northern Ireland, available online http://cain.ulst.ac.uk/victims/introduction/smcd07whoarethevictims.html (accessed October 27, 2016) 752 Ibid 753 C Flesher & R Barberet, “Defining the Victims of Terrorism: Competing Frames Around Victim Compensation and Commemoration Post 9/11 New York City and 3/11, Madrid” (2011) Violence and War in Culture and the Media. 754 Ibid.

255 understood to retrospectively license terrorism committed by the African National

Congress755 While speaking about the life of Joe Slovo, a member of the armed wing of the

ANC in apartheid South Africa, Miliband was asked if there were circumstances in which terrorism was the right response. After consideration, he replied that there were circumstances in which terrorism was justifiable and effective.

This comment was sharply rebuked by Taji Mustafa, spokesman for the fringe extremist group Hizb ut Tahrir, who said that the comments showed ‘a spectacular double standard’ coming from a British Foreign Secretary ‘who condemns Muslims in Palestine who suffer under the apartheid Isreali occupation.’ ‘If a Muslim had made similar comments about resisting occupation’, Mustafa continued, ‘they may have found themselves arrested under anti-terror laws made by Mr. Miliband’s government against the glorification of terrorism’.756

Miliband’s comment demonstrates how a set of terrorist victims might be able to receive lifelong support from governments and how another set might be forgotten and sidelined in governmental policies and responses.

In conclusion, the diversity of experiences of victims of terrorism could be complex and contentious. For instance, victims of al-Qaeda, or Taliban-related terrorism in Pakistan, may become victims of US drone strikes aimed at their attacker – the perpetrators of the terrorist acts. While Global Survivors Network, an international Western campaigning victims’ group, supports Pakistani victims to ‘speak truth to terror’ in respect of al-Qaeda and

Taliban terrorism,757 Pakistani victims of the US drone strikes have struggled to get their voices heard and their legal claims recognized.758 In any event, whether victims of counter-

755 BBC News, 2009. 756 Robert Lambert, Countering al-Qaeda in London: Police and Muslims in partnership (Hurst Publishers, 2011) at 136. 757 Global Survivors Network, 2011 758 Akbar, M.S. (2011), Pakistan’s Civilian victims of drone strikes deserve justice. The Guardian. 29 June https://www.theguardian.com/commentisfree/cifamerica/2011/jun/29/cia-drone-strike-civilian-victims (accessed October 30, 2016)

256 terrorism operations can be characterized as victims of state terror would depend certainly on a case-by-case basis.

The victim-centred approach has become an increasingly important and recognized part of contemporary criminal justice practice, both domestically and internationally. The inclusion of victims’ rights to reparations and participation in the Rome Statute of the ICC further highlight the centrality of victims in the international criminal justice framework and, by extension, the response of that framework to terrorism and political violence.

While victims of terrorism were perhaps not foreseen, or at least not expressly mentioned in human rights instruments to the extent that terrorism, as an attack on civilians, is an affront to the human rights of the victims, those victims have the rights enumerated in the applicable normative frameworks.

On the normative frameworks, there are over thirteen conventions and protocols relating to the prevention of terrorism that have been drafted. Some under the auspices of the

United Nations, while others are under the International Civil Aviation Organization or the

International Atomic Energy Agency.759 A major drawback of these Conventions is that specific attention is not put on the unique needs of and remedies for victims of terrorist acts.

Regarding the definitional problem, paragraph 1 of the 1985 UN Declaration of Basic

Principles of Justice for Victims of Crime and Abuse of Power, define “victims” as follows:

“‘victims’ means persons who, individually or collectively, have suffered harm, including physical and mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States including those proscribing criminal abuse of power.”760 No

759 See United Nations Office of Counter-Terrorism available at http://www.un.org/terrorism/index.shtml (accessed October 28, 2016). 760 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, available at http://www.un.org/documents/ga/res/40/a40r034.htm (accessed October 28, 2016)

257 doubt, this definition essentially captures, and is applicable to all situations, where people are victimized as a result of the crimes committed by terrorist organizations.

While the 1985 UN Declaration is not legally binding, there are many indications that it has positively influenced the interpretation of existing texts, and even contributed to its own terms in the subsequent creation of legally binding rules in many countries. On a policy level, Resolution 1566 highlights UN Member States have expressing their deep concern with the increasing number of victims, including children, and reaffirms their profound solidarity with victims of terrorism and their families.761

A further definition of the term “victim” can be found in paragraph 8 of the 2005

Basic Principles and Guidelines on the Right to a Remedy and Reparation of Victims of

Gross Violations of International Human Rights Law and Serious Violations of International

Humanitarian Law, annexed to Commission on Human Rights resolution 2005/35762:

8. For the purposes of this document, victims are persons who individually or

collectively suffered harm, including physical or mental injury, emotional

suffering, economic loss or substantial impairment of their fundamental rights,

through acts or omissions that constitute gross violations of international human

rights law, or serious violations of international humanitarian law. Where

appropriate, and in accordance with domestic law, the term “victim” also

includes the immediate family or dependents of the direct victim and persons who

have suffered harm in intervening to assist victims in distress or to prevent

victimization.

761 See the Preamble of Res. 1566, 2004, adopted by the Security Council at the 5053rd Meeting on 8 October 2004. With regard to children, see also the specific provisions in the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, UN Res. 2005/20, 22 July 2005. 762 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (General Assembly resolution 60/147, annex), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx. (accessed October 28, 2016) and E/CN.4/2005/102/Add.1.

258 In the Special Rapporteur Report on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson identified, without expressly defining terrorism, the following main categories of victims of terrorism:

Direct victims of terrorism: Natural persons who have been killed or have

suffered serious physical or psychological injury as the result of an act of

terrorism.

Secondary victims of terrorism: Natural persons who are the next of kin or

dependents of a direct victim of terrorism.

Indirect victims of terrorism: The Special Rapporteur noted individuals who

have suffered serious physical or psychological injury as the indirect result of an

act of terrorism. This category includes (a) members of the public (such as

hostages or bystanders) who have been killed or injured through the use of

potentially lethal force against suspected terrorists; (b) eyewitnesses who have

sustained serious psychological harm as the result of witnessing a violent terrorist

incident or its immediate aftermath; (c) individuals who have been subjected to

potential lethal force by a public authority after being mistakenly identified as a

suspected terrorist; (d) rescue workers who suffer serious physical or

psychological harm as the result of taking part in emergency relief.

Potential victims of terrorism: For the purposes of promoting a comprehensive

statement of basic rights and obligations in this sphere, potential victims of future

terrorist acts are an important additional category.763

Curiously, legal persons are not characterized as victims under the 1985 UN Declaration and therefore not entitled to protections. This was echoed in Article 1(a) of the 2001 EU

763 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: framework principles for securing the human rights of victims of terrorism (A/HRC/20/14) para. 16.

259 Framework Decision on the standing of victims in criminal proceedings.764 The Framework

Decision thus limits the scope of protection to natural persons who suffered harm directly caused by the acts or omissions that are in violation of the criminal law of a Member State.

Simply put, legal persons do not fall under the scope of protection, as only natural persons are covered.765

However, it seems there is a significant shift from this position in international law based on Rule 85 of the Rules of Procedure and Evidence of the Rome Statute of the ICC, which provides that victims may also include ‘organizations or institutions that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.’766

9.3. Victims of Slavery and Colonialism

The trans-Atlantic slave trade has increasingly been referred to by Africans scholars as a holocaust, as comparisons have been made with the fate of Jews during the Nazi rule, as well as the fate of the Red Indians originally residing in the Americas at the hands of the first

Europeans. This has prompted a (sustained) call for reparations by some scholars.767 The

764 Article 1(a) defines a victim … shall mean a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State (emphasis added). 765 The European Court of Justice concluded that the Framework Decision must be interpreted as meaning that in criminal proceedings – in particular in enforcement proceedings following a judgment which resulted in a final criminal conviction – the concept of ‘victim’ for the purposes of the Framework Decision does not include legal persons who have suffered harm directly caused by acts or omissions that are in violation of the criminal law of a Member State. This judgment followed a reference for a preliminary ruling under Article 234 EC, by the Tribunale di Milano (Italy), concerning the interpretation of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, page 1) (‘Framework Decision’) and of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, page 15). 766 The Rules of Procedure and Evidence set out general principles and clear descriptions of specific procedures underpinning and supplementing the provisions of the Statute. They are subordinate to the provisions of the Statute. 767 Max Du Plessis, “Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery” (2003) 25:3 Human Rights Quarterly 624; J E Inikori & Stanley L Engerman, The Atlantic Slave trade: Effects on Economies, Societies, and Peoples in Africa, the Americas, and Europe (Duke University Press, 1992); R M Spitzer, “The African Holocaust: Should Europe Pay Reparations to Africa for Colonialism and Slavery?” (2002) 35 VANDERBILT JOURNAL OF TRANSNATIONAL LAW 1313.

260 evocation of a slave past, and slavery generally, has been a vexed process, with the history of the trans-Atlantic slavery serving as both a resource and a weapon in the legal discourse surrounding identity struggles.

The question of reparations for slavery raise the issue of victimhood, and how it ought to be constructed for victims that are many generations removed from the slave trade and yet continue to suffer from its legacy. The debate, as it emerged in the US for example, suggests the ways in which victimhood for slavery is reconstructed, not along strictly legal lines but as a broad historical claim for justice as the slave trade was not an international crime at the time. Of course, in this context the law is used to deny the standing of victims suffering from the legacy of slavery and international law is strangely absent from the reparation debates.

Having taken a lead in the abolition of the slave trade and subsequently, the abolition of slavery, international law has had little to say on the victims of slavery themselves. The invocation of the victims had served its rhetorical role in stigmatizing those responsible for the Middle passage, but the victims themselves were only a secondary figure in this story, which mostly opposed white slave holders and white abolitionists. The only exception was utilizing the slave, as witness to his own circumstance, as evidence in early abolitionist literature or court cases.

The abolition of slavery was a result of public outrage against the ‘evil’ of slavery, rather than any international impetus to criminalize these practices. This led to the adoption of applicable international treaties. The international criminalization and enforcement of the prohibition of slavery developed years later. The drafting and adoption of preliminary agreements to ban slavery under international law can be traced to the moral condemnation of slavery. The move to ban slavery and the slave trade has been a central feature of more than

261 75 multilateral and bilateral conventions from the early nineteenth century768 beginning with the 1814 Treaty of Paris, which recognized the need to abolish the slave trade.769

The moral imperative and condemnation for the slave trade was derived from the religious and secular principles of the European Enlightenment,770 which included ideas on the ‘natural rights of man’.771 The 1815 Declaration, relative to the Universal Abolition of the

Slave Trade,772 states that the slave trade is ‘repugnant to the principles of humanity and universal morality’.773 This was the first declaration by major countries that the slave trade was a violation of human rights. Thus, while the Declaration was not that valuable, it was the first hesitant step in the direction of the present international human rights framework.774 The

1885 General Act of Berlin further recognized the institution of slavery as morally repugnant.775 This initial moral condemnation of slavery later led to international prohibition, enforcement, and criminalization efforts.

The clamor for reparations by Africans for the trans-Atlantic slave trade is rooted more in moral claims than legal claims. Most of the international law cited in support of reparations for slavery were twentieth century legal developments that were drafted and adopted at the end of slavery. It is therefore difficult to argue that the legal instruments should be retrospectively applied when that wasn’t the intent of the laws. For instance, the

United Nations Convention on the Prevention of and Punishment of the Crime of Genocide

1948, which also includes, within its definition of genocide, ‘killing members of the group’,

768 Jan Hendrik Willem Verzijl, International Law in Historical Perspective (Brill Archive, 1970). 769 Article 1 of the Additional Articles of the Treaty of Paris declared the need to abolish the slave trade and contained the promise by France to abolish it within five years. 770 Ethan A Nadelmann, “Global Prohibition Regimes: The Evolution of Norms in International Society” (1990) 44:04 International Organization 479. 771 Norman Hampson, A Cultural History of the Enlightenment (New York: Pantheon Books, 1968). 772 Declaration relative to the Universal Abolition of the Slave Trade, (hereinafter the 1815 Declaration), annexed to the Act adopted during the 1815 Congress of Vienna, was signed by Austria, France, Portugal, Prussia, Russia, Spain, Sweden and the United Kingdom, 8 Februrary 1815, 63 Consolidated Treaty Series 473. 773 Ibid. 774 Suzanne Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem (Rowman & Littlefield, 2003) at 14–15. 775 Article 9 General Act of Berlin recognizes that slavery and the slave trade should be considered forbidden.

262 ‘causing serious bodily or mental harm to members of the group’ and ‘forcibly transferring children of the group to another group’, does not apply retrospectively across the centuries.

However, it has been argued by Spitzer that there are ways that African states could sue for slavery in US courts. He posits that though slavery was illegal under jus cogens,776 it was impossible for African states to sue the US until international law caught up with the moral reprehensibility of slavery.777 With the creation of the ICC, international law has caught up and the clock has started to tick. African states might now, according to Spitzer, have the chance to sue other states in international courts for the past crimes of the slave trade.778

Even the categorization of moral claims for reparations tend to ignore or obscure other historical acts of slavery. At every stage, the limited designation of African slaves as victims involved the designation of some slaves as victims, rather than others. In order words, what distinguishes African victims of slavery from the victims of slavery in South America?

Reparations should therefore not necessarily be limited to the descendants of those enslaved in one continent or the descendants from that continent. Any claim for reparations for slavery, unless waived, ought to include the other continuing traces of slavery.779

Even the early abolitionist movement was only focused on victims of slave-trafficking in the Caribbean. Early cases challenging slavery were cases in which discreet individuals challenged the position and argued that they too were slaves (e.g. because they were not the descendants of slaves, or had been freed by their master).780 Victimhood of this sort thus served to cement the institution rather than confront it.

776 Jus cogens refers to laws "accepted and recognized by the international community of States as a whole from which no derogation is permitted." 777 Spitzer, supra note 768. 778 Ibid at 1340–1344. 779 Geraldine Van Bueren, “Slavery as Piracy: The Legal Case for Reparations for the Slave Trade” in The Political Economy of New Slavery (Springer, 2004) 235 at 236. 780 Dred Scott v. Sandford, 60 U.S. 393 (1857)

263 Opponents of the claims made by Africans for reparations flagged the complicity of

Africans in the slave trade and argued that therefore no reparations were owed. This idea has been opposed by Jacob Ade Ajayi who argued that those who sold slaves were “as much victims of the trading system as were the captives.” The European demand for slaves, in

Ajayi's view, was what caused African states to raid one another, and upset the political balance in their continent. Ajayi further argued that Africans did not have the same moral responsibility for the trade as the Europeans did because the latter controlled it, while "the

Africans…had no initiative in the matter.”781

In constructing the claim for reparations by African states, the former Organization of

African Unity, (predecessor to the African Union), advanced the concept of the “African consciousness,” which is reflected in the Preamble to the Draft Declaration of the African

Preparatory Regional Meeting for the Conference Against Racism: “the great importance

African peoples attach to the values of solidarity, tolerance and multiculturalism . . .constitute the moral ground and the inspiration for our struggle.”782 Based on this, Africans construct the call for reparations through the lens of communalism and collectivism, and to identify a continuing and uncompensated wrong to a corpus of Africans throughout the world.783

In constructing the perpetrators of slavery from the viewpoint of the African consciousness, the perpetrators are not limited to some prescribed set of individuals, such as the slave owners or guilty states.784 Rather, the more appropriate description of the perpetrator is also to be drawn from an understanding of the collective. The West, through governments, laws, courts, consumers, producers, economic ideology and institutions, perpetrated and

781 Jacob Ade Ajayi, "The Politics of Reparation in the Context of Globalisation", Distinguished Abiola Lecture, African Studies Association, Washington, D.C., December 7, 2002, p.9. 782 See Reports of Preparatory Meetings and Activities at the International, Regional and National Levels, Report of the Regional Conference for Africa (Dakar, 22-24 Jan. 2001), available at http://www.un.org/WCAR (accessed December 30, 2016) 783 Du Plessis, supra note 768. 784 Vincene Verdun, “If The Shoe Fits, Wear it: An Analysis of Reparations to African Americans” (1992) 67 Tul L Rev 597 at 636.

264 perpetuated the institution of slavery. Based on this logic, the West as a collective must be held responsible for reparations as the perpetrators of slavery.785

In summary, the argument for reparation for the forced enslavement of Africans is grounded in a mixture of moral, legal, economic, and political terms and is very problematic.

Despite its problematic nature, some states have made reparations for slavery. The Austrian reparations agreement made reparations to the direct survivors of the slave trade and not to the descendants of survivors. Also, Austria made payments to the survivors of concentration camps. If the survivor dies before the claim is settled, then the claim dies with the survivor.

In this construct, there is hierarchy of victimhood where only the direct victims of slavery can access reparations and the indirect victims cannot. The complexity linked to the history of the trans-Atlantic slave trade, along with facts of the contemporary situation, weaken the case for reparations by indirect African victims.

9.4. Conclusion

This chapter has considered some of the complex issues that arise in the construction of victimhood of terrorism and slavery. While, it is not meant to be an exhaustive analysis of the complexities involved in the discourse around such victims, I have been able to highlight some of the critical issues involved. Importantly, the debates around reparations for slavery are rooted more in morality than in legality, and are pursued in a hierarchal manner in which the experiences of some victims (Africans) overshadow the experiences of other victims.

Unless the international legal discourse surrounding the victims of slavery and terrorism are conceived in a sufficiently nuanced manner, the diverse and unique experience of victims ossifies and unduly objectifies actual experiences. This renders the recognition of a victims right to justice, truth, reparation and most importantly being heard, impossible. The only way to counter this is to allow victims sufficient room to share their own stories, to

785 Du Plessis, supra note 768.

265 demand recognition of their rights and to play the role of political actors – a move that has had considerable implications for the visibility of victims in international criminal justice.

266 Chapter 10: Concluding Remarks

As stated in the introductory chapter of this thesis, my research is not an attempt to unravel new factual evidence that would agitate for new treaties, resolutions or any new international law document on victims’ rights. Rather, my intention in this thesis is to move beyond a simple critique toward a reinterpretation of the existing phenomenon that has seen

‘victims’ increasingly rise to the center stage of international criminal justice. My central purpose is to rethink existing practices surrounding the construction of victimhood in the international criminal law project, and illuminate old facts and core realities in this new light.

The expansion of the mandate of international criminal tribunals, especially that of the

International Criminal Court, has potentially and fundamentally (re)characterized the mandate and scope of international criminal justice, from being solely retributive to being at least, to a significant extent, more victim-oriented. However, confronting the international criminal justice project involves structural and political limitations that are centered on the very construction of victimhood and the attendant nature of “justice”.

The chapters in this thesis demonstrate the complexities involved in the construction of the victims, either being innocent or the authors of evil, as well as the competing claims that occur when a single narrative of victimhood is advanced in the international criminal justice project. This conclusion will bring together the key themes of this discussion, as well as some closing final remarks.

Victims do serve a key practical and symbolic role in the “legitimation work”786 in the fields of transitional justice and international criminal justice. Victims play a central role in underpinning what Clarke has termed the ‘fictions’ of justice in transitional settings787, being

786 Rodney Barker, Legitimating Identities: the Self-Presentations of Rulers and Subjects (Cambridge University Press, 2001). 787 Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009). 267 the meanings ascribed to key themes such as retribution, memory, accountability, truth and reparations, to achieve these objectives. No doubt in the context of mass violence, victimhood is inevitably mapped into competing narratives of community, the nation and the contested past. This has led to efforts by victims and victims’ groups to ‘mobilise emphathy’788 on who should be included or excluded from the international criminal justice project. Central to this mobilization effort is the language of human rights used to advance their claims. For instance, there are armed groups that highlight human rights abuses against their own members while simultaneously engaging in abuses themselves.789 Resorting to such rhetorical and practical forms of mobilization has what Hunt has referred to as a

‘constitutive’ effect on the individual and social actors involved.790

In mobilizing empathy, an image of the victim is employed, which then seeks validation through the narrative of international criminal justice. The effect of this validation, however, may well be a narrowing down of the experience and the reality of victimhood. The relatively narrow imagery involved may not only deepen existing inequalities in already unequal societies but even, ironically, further disenfranchise victims whilst empowering the multitude of stakeholders who claim to speak for them. Confronting these stereotypes is necessary to move beyond the representation of the ‘ideal’ victim in the international criminal justice project. In plain terms, victims of mass violence are capable of violence themselves.

International law may therefore play a role in the contextualization of victimhood and in confronting stereotypes by taking a nuanced approach to the discursive representation of victimhood in its practices especially when dealing with the messy moral and political quandaries caused by the violent actions of victims.

788 Wilson R and Brown R (2009) Introduction. In: Richard Ashby Wilson & Richard D Brown, Humanitarianism and Suffering: The Mobilization of Empathy (Cambridge University Press, 2009).pp. 1–29. 789 Ron Dudai & Kieran McEvoy, “Thinking Critically About Armed Groups and Human Rights Praxis” (2012) 4:1 Journal of Human Rights Practice 1; Kieran McEvoy, “Law, Struggle, and Political Transformation in Northern Ireland” (2000) Journal of Law and Society 542. 790 Alan Hunt, Explorations in Law and Society: Towards a Constitutive Theory of Law (New York: Routledge, 1993).

268 Expressions of the ambivalence and moral anxiety triggered by victims who commit violence are not difficult to find. For instance, the issue of child soldiers abducted at tender ages and forced to kill under the influence of drugs and ideology, provides a moral and political paradox for the contested status of the victims of armed conflicts. In the ongoing trial of Dominic Ongwen at the ICC, its seems impossible for international criminal law to respond to Dominic as a victim, while simultaneously requiring him to be accountable as a perpetrator, in order to respond to the suffering of his victims.

Also inherent in the construction of victimhood is the political use of victimhood to commit mass violence. For instance, one can mention the incidence of the Palestinian suicide bombings that justify killing on the basis of despair, or the reliance of the American and

Israeli governments on the paradigm of international security to legitimize brutal military force and occupation. Interestingly enough, both the Palestinian suicide bomber and the

Israeli government lay claim to the moral capital of victimhood to perpetuate mass violence.

Also related to the problematic construct of victimhood and its uses in the international legal arena is when powerful nations invade select countries in the name of saving the ‘victims’ of these dictatorships and oppressive regimes. The examples of the

American attacks of Iraq and Libya, in the name of victims, suggest a very real risk of indirectly perpetuating further injustice on victims in the name of saving them. Interestingly, the victims of the over 5 year Syrian conflict are marginalized and ignored due to political maneuverings at the UN Security Council by the permanent members, even as a continuous contest exists about who is the true victim of the Syrian conflict. This also flags the problematic issue of hierarchy and visibility of victims. Some victims matter more than other victims.

International criminal justice does not operate entirely separately from these complex processes of “concurrence victimaire”: Rather it feeds on them, amplifies them and

269 occasionally is absorbed by them, whether it wants to or not. As the locus of the legal recognition of victimhood, international courts are bound to be targeted for confirmation of various ‘victims’’ status as such.

Also emblematic is the way in which victims are constituted in the application and investigative processes of the ICC. Some victims are allowed to participate in the proceedings; some are left behind because their stories or experiences do not fit the main narrative to be advanced by the ICC; or simply, some victims could not jump through all the hooks in the certification process. The construct of the ‘victim’ and victimhood, as this thesis revealed, is a complex and subject term with multiple interpretations. These are further complicated in a multilayered political context that may have experienced political or regime changes, and victims in these regimes turn to perpetrators in another regime. Based on the complexity of victimhood, it is challenging to apply one ‘objective’ approach to all victims in the international criminal justice project. Rather, a multiple understanding of victimhood may be more realistic in tackling and comprehending the phenomenon.

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