This post, first published on Justice in Conflict on December 10, 2014, was co-written with Stephen Smith Cody (Director of the Atrocity Response Program at the University of California, Berkeley School of Law) and Susana SáCouto (Director of the War Crimes Research Office (WCRO).
When the Assembly of States Parties convenes this week, members will select judges, finalize a budget, and debate new rules and regulations. Another topic sure to arise is the major reform of the Registry of the International Criminal Court (ICC). Such actions don’t make headlines, but they have serious implications for how the ICC operates and how it relates to one of its key constituencies, victims of crimes. We have several concerns about how proposed reforms of the Registry might impact victims’ opportunities to engage with and be heard by the ICC.
The Rome Statute gives victims the right to participate in judicial proceedings that affect their personal interests, so long as this does not violate fair trial processes or the rights of the accused. Victim participation, along with victims’ right to reparations and opportunities to receive assistance and rehabilitation from the Trust Fund for Victims (TFV), can enable the ICC to engage victims and promote justice for them beyond the courtrooms of The Hague.
Victims’ opportunities to participate have of course been shaped by judicial decisions. (For several reports and comments on these developments, see the end of this post.) They are also affected by the Registry’s policies, and so the major institutional reform of the Registry – known as the “ReVision Project” – may have significant implications for victim participation. (Registrar Herman von Hebel has discussed this major restructuring, and FIDH has issued a thoughtful letter in response.) While we can find no public document outlining the ReVision proposals, Registry officials have provided an overview to some civil society actors. Among other proposed reforms, the overview suggests that victim participation will be streamlined by merging two current offices (the Victims Participation and Reparations Section, or VPRS, and the Office of Public Counsel for Victims, or OPCV) into a single Victims Office, and legal representation for victims would come entirely or partly from within this office.
We wholeheartedly support efforts to make victim participation more efficient and effective. However, we are concerned that this reform may not take sufficient account of victims’ actual engagement with their representatives and Court officials or their own views on legal participation. As researchers working on different projects related to victim participation, we have examined these issues from empirical as well as doctrinal perspectives. Drawing on in-depth interviews with Court staff, victims’ legal representatives, and hundreds of victims in four ICC situation countries, we have several observations that might inform debates around victim engagement in general, and legal participation in particular.
Victim participation requires ongoing dialogue between the Court and victims.
Recognition of victims’ experiences and suffering requires contact and conversations with victims. This dialogue should enable victims to learn about the ICC, their right to participate, and details of judicial processes that concern them. It should also enable victims, when appropriate, to put forward their opinions, concerns, and interests.
We agree with the ReVision proposal to improve the coherence of the Court’s communication with victims, but we would emphasize that this engagement must be ongoing. Judicial processes and victims’ situations evolve, and so must opportunities for victims to become informed and to express their views. Victim representatives must be able to provide victims with up-to-date information, solicit victims’ views, and advance them through appropriate judicial and non-judicial channels.
One common complaint that we have heard from victims is that they do not know what the Court is doing on matters that concern them, such as the status of their application to participate, the timing of trials, or the opportunity to receive reparations. “The most important thing is that we want somebody from the Court to come here so that we can interact with them,” said one Ugandan victim (interviewed by Cody as part of a multi-country study of victim interactions with the ICC).
It is important that ICC staff and representatives create systems to disseminate information on judicial proceedings and other court-related activities on a regular basis. Doing so may require the Court to provide communication devices, such as radios or mobile phones, to representatives in affected communities and develop protocols for responding to victims’ concerns in a timely manner.
Victims’ representatives should be aware of potential insecurities, including the possibility for retaliation against victim participants. Representatives should also be able to help victims get attention from the Victim Witness Unit (VWU) should they be facing serious security and health threats, particularly if these arise from being victim participants.
In addition, representatives should be aware of the material needs of victims, and should help victims understand what assistance the Court can and cannot provide. In most cases, ICC staff who interact with victims should have a high level of cultural knowledge, training in working with survivors of violence, and experience working with vulnerable populations in the region. They should be able to speak of the work and mandate of the TFV, as well as the Court’s reparations process, while being careful not to unduly inflate victims’ expectations about reparations and assistance.
Victim participation requires independent representation.
The ICC should establish processes to ensure the effective coordination of victim-related services across all sectors of the ICC, and, where appropriate, combine efforts to utilize common systems and mediate costs and any potential risks to victims. We support some of the ReVision Project’s recommendations to achieve these ends.
However, the coordination of victim-related services and integration of court outreach and support must not compromise the independence of victims’ legal counsel, and we are concerned that eliminating external legal representatives altogether might do just that. It is important for victims’ representatives to act on behalf of victims, and thus to act and be seen to be acting independently of other constituencies or institutional imperatives. The Court must, therefore, preserve the autonomy of victims’ representatives’ vis-à-vis other sections of the Court in order to insulate representatives as much as possible from institutional pressures or tensions at the Court.
On May 22, U.S. Ambassador Samantha Power asked Qusai Zakariya of Syria to stand up in the gallery of the United Nations Security Council. Ambassador Power was in the midst of arguing for a draft resolution to refer the Syrian conflict to the International Criminal Court. She had to justify a resolution that some – including Ambassador Power herself in the past – had suggested could undermine a peace deal, and that was doomed to be vetoed by China and Russia. (Others have commented on the speech and the U.S. strategy, here and here.) Mr. Zakariya, a victim of a chemical attack, would be part of that justification.
Several scholars have written about how different actors make assertions about victims of international crimes in order to promote their aims or authority. Among others, Kendall and Nouwen argue that “the Victims” is an abstract category that justifies international criminal justice and displaces the voices of actual victims; Sagan has claimed that African war criminals and victims are discursive subjects integral to the project of cosmopolitan liberal justice; and Dixon and I argued that victims are central to claims about legal, expert and moral authority. So it is interesting to look closely at the rhetorical deployment of Mr. Zakariya.
Ambassador Power has a longstanding activist bent toward preventing or punishing those responsible for mass atrocities, and picks up those themes here. She references the need to hold perpetrators of mass violence accountable, and notes the unfairness of ICC action in eight African countries but not Syria. She speaks of thousands of Syrian torture victims. In her finale she calls for retribution by citing the ancient Greek philosopher Solon, who apparently claimed “Those who are not wronged, no less than those who are wronged, must exert themselves to punish the wrongdoers.” But the largest section of her speech referred to Mr. Zakariya and other victims. Here is an excerpt:
In 1865, David Reesor rose in the Legislative Council of Upper Canada to argue that if the prime minister was granted the power to appoint senators he would “deluge this House with party tools.” Unfortunately, Canada’s founders did not heed his warning, and a 150-year flood began. Liberal leader Justin Trudeau made the right move this week by partially damming the deluge of partisanship in the Red Chamber.
Admittedly, Trudeau’s policy execution left much to be desired. Senators themselves were caught off guard and confused by the change. Some were supportive, others dismayed. It’s still not clear how committee memberships and research budgets will be distributed to these newly “independent” senators.
But with the move, Trudeau highlighted the partisanship and patronage that has delegitimized the Senate and undermined its democratic role. When we say the Senate should be a “chamber of sober second thought,” we mean that it can bring to bear expertise and viewpoints that differ from those forged under the conditions of party strife. But today, even when senators do their job well, we are suspicious of their motives. And when they are shown to be party shills and fundraisers, meeting in the Prime Minister’s Office to accept payouts and talking points, our cynicism is justified.
Electioneering machines and sober second thought
By proposing that senators should be selected by a “non-partisan public process,” Trudeau challenged the conventional wisdom that our only alternatives to Senate dysfunction are to abolish the chamber or elect senators the same way we elect MPs. While he did not say much about what a non-partisan selection process might look like, it’s worth exploring the options. Before doing so, let’s consider some of the reasons why a non-partisan Senate is desirable.
First published on Justice in Conflict on November 22, 2013.
While the relationship between the International Criminal Court (ICC) and African states looms large over the current meeting of the Assembly of States Parties (ASP), victims’ issues will also receive a great deal of attention. Victims and affected communities will be the focus of a plenary discussion today and side-events will tackle victims’ legal participation, the external review of the Trust Fund for Victims, and justice for victims in Kenya. ASP members and civil society groups want the ICC to improve its policies on victims’ matters such as participation, reparations and engagement with affected communities. Academics, too, have been weighing in.
In this post I will mention a few of the issues raised in recent publications, focusing on concerns about victim participation. Academics and civil society organizations tend to want more extensive participation, which will likely require more resources. However, several legal officers from ASP member states have in recent months told me that their governments see victim participation as a money pit, capable of costing much and adding little to the Court’s core functions. To address these various concerns we need better assessments of the impact of victim participation.
Last week the illustrious, despised and devilishly playful Jacques Verges died. The French lawyer was notorious not only for the clients he defended but for the provocative tactics he used. Most recently, he had defended former Khmer Rouge head of state Khieu Samphan, now being tried at the Extraordinary Chambers in the Courts of Cambodia. I wrote about the ECCC in its early days for Macleans, The Walrus and the Radio Netherlands World Service. I was curious see whether Verges might challenge the authority and the narrative of the ECCC, as he had done in previous trials. I therefore secured a meeting at his Paris home in August, 2008. I had planned to write a magazine profile on Verges but never got around to it. I re-read the interview last week, and I continue to find his views on criminal trials to be interesting, provocative, and somewhat self-serving. He saw legal advocacy as profoundly creative and political, particularly if one casts off conventional views around the legitimacy of courts and the ability of criminal trials to establish the truth.
Before excerpting from that interview, here are a few details from Verges’ fascinating life. Those interested in more can turn to this superb profile by Stéphanie Giry, the very good documentary Terror’s Advocate and a great character sketch in Erna Paris’ Unhealed Wounds: France and the Klaus Barbie Affair. Verges was born in 1925 in Thailand to a French doctor and his Vietnamese wife. His father had to quit as French consul because of this interracial marriage, and Verges seems always to have had a love-hate relationship with France. He enjoyed attention from his countrymen, a refined life in Paris and the French tradition of subversive public intellectuals like Voltaire. (Verges died in a home that Voltatire once lived in.) Yet he spent much of his life attacking the country’s mores and defending some of its enemies.
Verges rose to fame in 1957 when he defended – and fell in love with – Djamila Bouhired, a young revolutionary with Algeria’s National Liberation Front. Bouhired was accused of planting a bomb in a milk bar in Algiers frequented by French civilians. Eleven people were killed. Verges did not try to prove that Bouhired was innocent or seek a reduced sentence. Instead he mounted what he called “la défense de la rupture” – to defend the accused by creating a rupture in the trial itself. He did so by challenging the legality and morality of the state that mounted the prosecution, through dramatic speeches to the courtroom and the news media. In Bouhired’s case he attacked the court as a puppet of French colonialism in Algeria. Bouhired was sentenced to death but Verges’ performance had made her a cause-célèbre. Facing a domestic and international outcry, the court stayed her execution. When Algeria became independent in 1962 she was released and proclaimed a national hero. Bouhired and Verges together advocated for anticolonial causes, met with Mao Zedong in China, and married in 1965.
In 1970, Verges told his wife and his colleagues that he was going to Spain, and then he disappeared for eight years. He has referred to this phase, mysteriously, as when he stepped “into the looking glass.” Theories abound concerning his whereabouts: in Cambodia under the Khmer Rouge (I think unlikely), in Palestinian militant training camps, perhaps living invisibly in Paris, etc. When I asked when he would reveal the truth of those years, Verges said “perhaps as a last testament.” He added with a laugh, “But for now I am in very good health.”
Many thanks to Charli Carpenter for her recent article, the prodigiously titled: “‘You Talk Of Terrible Things So Matter-of-Factly in This Language of Science’: Constructing Human Rights in the Academy.” She explores the intellectual, ethical, and career dilemmas that political scientists get into when they do research on and with people they care about. Such reflections in a high-profile journal are important because the discipline seems to ignore such things. Anthropologists have written and agonized for at least half a century about encounters in the field, and the role that their knowledge production plays in politics and governance. Somewhat strangely, political scientists have not. And IR scholars in particular remain at a remove from the human beings they study – either by focusing on institutions (states and international organizations) and data sets. We don’t often discuss, in public, the harm or help we might be doing to our research subjects. Carpenter does here, with admirable honesty.
The article begins with a great anecdote. Her research is on the absence of international attention to children born of war-time rape. After presenting early results, a senior faculty member told her: “You’d better stop talking to international organizations about this issue until you publish…Otherwise, before you know it, you will no longer have a puzzle to explain, because these children will be on the agenda” (363).
Carpenter was startled by the suggestion that her academic work might in fact be norm entrepreneurship. She was even more surprised at the value judgment implied by the comment—that publishing an interesting paper on the phenomenon was a higher priority than bringing attention and assistance to a profoundly disempowered group. Carpenter’s article therefore explores the impact of engagement with human rights advocacy on her academic role, and the opportunities (and limitations) for an academic to engage in human rights advocacy.
Among her interesting observations:
- She notes that while “calls for calls for greater reflexivity in the discipline are now commonplace, they are rarely implemented in mainstream IR research. Even rarer are empirical studies of the IR discipline as a site in which global politics gets constructed” (364). Tellingly, when she tried to include a chapter on this topic in her book Forgetting Children Born of War, Columbia University Press insisted it be cut.
- Other pressures she faced in the IR discipline: to avoid “should” questions and focus on “why” questions (a bias she admits to imposing on her own students), to avoid publishing with a commercial press (even if it means the work will get a much larger audience, including policymakers and the human rights community), and to avoid asking questions that require methodological approaches not favoured in IR.
- Carpenter felt that the ethics review board process failed to provide guidance in interviewing vulnerable populations (by contrast I found UBC’s BREB quite helpful). But while she lacked assistance through formal channels, she seems to have worked things out over time—which I suspect is a common path.
- Very interesting was her attempt to ‘give something back’ to the community she was studying (organizations who assist children born of war). She is inventive in doing so: ranging from giving out copies of her publications, to sharing contacts, to reviewing grant applications, to consulting for UNICEF. “It seemed unethical to me to study a human rights non- issue without contributing to well-intentioned efforts to turn it into an issue” (369).
- Rather than a simple theory-practitioner divide she “encountered practitioners willing to listen to me as an academic, and academics hungry for me to articulate a clear policy stance” (371).
- Communicating with audiences outside of academia required new skills – such as putting together glossy policy documents (and the funds to publish them), hitting one’s talking points on radio interviews, and blogging (Carpenter is a key contributor to the Ducks of Minerva). In addition to these different skills are the different form of impact she sought.
- Most interesting was her observation that by actively engaging as a part of the advocacy community, she struggled to maintain forms of objectivity, but at the same time gained great insight into the obstacles that advocates faced. Had she wanted, Carpenter could have drawn on writers from John Dewey to Pierre Bourdieu to Iris Marion Young to explain theoretically why this experience of position-taking is relevant and epistemologically robust. But she would likely come to the same take-away lesson: “that interfacing with the policy community in order to disseminate research findings itself constitutes a form of participant observation that can supplement and enrich earlier research findings derived from multiple other methods” (376).
Carpenter’s attempt to advance a cause and an academic career is estimable, but also daunting. I was struck by how much extra work it required, beyond the usual demands of academia. It doesn’t appear that this additional labour receives institutional recognition–she didn’t mention how policy documents contributed to getting tenure, or how public advocacy got her time away from teaching. Maybe that’s as it should be. But the “dual role” she played reminded me of the one the one now ‘enjoyed’ by women who seek to have vibrant careers and be devoted mothers—you can have both, so long as you have great support and little need for sleep.
And she finds time to be a Star Trek and Battlestar Galactica nerd!
In the next two weeks, the Assembly of States Parties will undoubtedly address one of the most innovative and troubled aspects of the International Criminal Court: victim participation. Such discussions must take heed of recent decisions by Trial Chamber V on the upcoming trials in the Kenya situation, which introduced a dramatically different scheme for victim participation compared to previous Court practice. Will that decision lead to a shrinking role for victims at the ICC, or make it more efficient and inclusive? Much will depend on how the new scheme is operationalized, including the resources and direction the ASP offers.
The ICC’s approach to victim participation is without precedent. The only role for victims at previous courts was limited to witnesses, a role that was criticized by civil society actors and some states during the drafting of the Rome Statute. The Rome Statute ultimately included Article 68(3), which stated 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…
Judges and court staff spent considerable energy in the Court’s early years interpreting and re-interpreting how victims would participate. Fundamental questions have been grappled with: Who is a victim eligible to participate? What modalities of participation are possible, and at what stages of proceedings? ? How can common legal representatives (CLR) for large numbers of victims be selected?
While rules for victim participation have become more concrete, they continue to leave many unsatisfied. This summer, several legal advisers for State Parties told me that it was a top issue for reform, primarily for budgetary reasons. While some civil society groups were pushing for more resources for victims’ legal teams, key State Parties continue to push for tightening legal aid and Registry budgets. These areas of the budget will continue to be squeezed so long as the Court takes on more situations (some referred to it by the UNSC) while State Parties hold to zero-growth in funding.
A Kenyan boy wears a t-shirt bearing the name of former ICC Prosecutor Luis Moreno-Ocampo