Practices of Reparations in International Criminal Justice

This thesis examines the practical project to make international criminal justice more victimoriented by giving it an additional reparations function. Animated by the dissonance between the idea of reparations and its practice in international criminal justice, this study relies on the firstever reparations orders by the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) to complement legalistic accounts in the scholarly literature with a socio-legal inquiry. Drawing on practice theory, I use the notion of ‘practices’ as an analytical lens to show forms of social actions that together enable and constrain reparations. Rather than starting with preconceived notions of reparations, this approach draws attention to the multitude of practices of judges, lawyers, diplomats, NGO workers and others that often get overlooked in scholarly research. I ask: what are the practices associated with reparations in international criminal justice? And how do these practices shape the possibilities and meanings of reparations? Building on documentary analysis, ethnographically informed fieldwork and practitioner interviews, this study makes visible the often hidden practices that together form the social life of reparations. This thesis identifies what practices exist, how they come to be, how they work, and what meanings and effects they produce. My observations are structured along four phases of the social life of reparations – norm-making, engagement with conflict-affected populations, adjudication and implementation – and focus on two case studies: the cases Lubanga and Katanga at the ICC, concerning the Ituri district of the Democratic Republic of Congo, and Cases 001 and 002/01 at the ECCC in Cambodia. The thesis shows how contestations over sometimes irreconcilable visions of justice are at the core of the production of reparations. The incorporation of competing rationales into the legal frameworks of both Courts continues to affect their operations. The study demonstrates how actors at and around these Courts actively mediate these tensions, through their practices, when they are giving effect to their reparations mandates in different social contexts. I identify a range of communicative, representational and adjudicative practices that simultaneously constrain action and become sources of flexible adaptation to make reparations fit new circumstances. However, these practices are not able to overcome the limitations that are inherent in the Courts’ juridical approach. The thesis indicates that the promise of more 'victim-oriented justice' through reparations has been realised only superficially, and that reparations remain marginalised and subordinated to the dominant logics of the criminal trial. I call for an appreciation of the limits of recasting international criminal justice as a site for realising reparative ambitions. This does not mean that there is no role for reparations in international criminal justice. I argue that the role is a more modest one than the literature or advocates often suggest – one that is rooted in the Courts’ symbolic powers to recognise, rather their ability to deliver tangible and equitable reparations to a large number of survivors

Reparation for Victims of Armed Conflict: Impulses from the Max Planck Trialogues

The international law on reparation for victims of armed conflict is complex. Numerous subfields of international law are involved, among them international human rights law, international criminal law, international humanitarian law, and the law on State responsibility. In addition to this complexity, reparation-related questions are often highly politically charged. They are focal points of contestation about moral values, different conceptions of justice, and approaches to international law, including the status of the individual human being in this order. Against this backdrop, the collection of short essays explores whether and under which circumstances individuals have a right to reparation under international law. The introduction unpacks the legal dimensions and identifies the currently most controversial issues. One set of essays then analyses, from different angles, whether a right to reparation for individuals exists as a matter of law. Another set recounts experiences with the implementation of reparation mechanisms and discusses the challenges. A third group of essays addresses the role of domestic courts. The essays (‘impulses’) are one outcome of the Max Planck Trialogue workshop on reparation for victims of armed conflict, held in November 2017 in Berlin

Rome's legacy: negotiating the reparations mandate of the International Criminal Court

This article examines the negotiations that led to the incorporation of reparations provisions into the legal framework of the International Criminal Court (ICC). Building upon a review of the travaux préparatoires and interviews, it traces the actors and main debates during the lead-up to the Rome Conference and the drafting of the Rules of Procedure and Evidence, explaining how and why reparations were included into the Rome Statute. In doing so, the article shows how the reparations mandate was produced at the intersection of a set of different agendas and actors. From this account, it identifies a number of key themes that were at the centre of the negotiations and often galvanised contestations among delegations or with ngos. The article concludes with a fresh perspective on the origin of victim reparations in the Rome Statute and its relevance for understanding many of today’s debates around reparations in international criminal justice

Broadcasting Justice: Media Outreach at the Khmer Rouge Trials

Increasingly, individuals who have perpetrated mass atrocities are being held to account in criminal tribunals. Whether these are in-country tribunals or convened elsewhere, one of their main purposes is to obtain justice for victims. Building a bridge between the tribunal and the affected population is key to achieving this and other goals, such as promoting the rule of law and community reconciliation. But limited or ineffective outreach can negate the wider potential of these tribunals. Surprisingly, tribunals do not typically give the outreach process the priority needed to realize its potential. The case of the tribunal in Cambodia, which is trying leaders of the Khmer Rouge, demonstrates that innovative approaches to outreach-including, in this case, a TV series in a popular talk-show format-can help ensure that the opportunity for national progress provided by the tribunal is fully realized

Legal identity and statelessness in Southeast Asia

For more about the East-West Center, see http://www.eastwestcenter.org/Millions of people worldwide are stateless or do not have proof of their legal identity. As a result, they face daily obstacles from lack of access to a range of social, political, and economic rights. Around 40 percent of the identified stateless population live in the Asia Pacific region, with the majority of them residing in the countries of Southeast Asia. While some of these people are refugees or migrants, most belong to minorities living in the country where they were born. Their lack of proof of nationality or other forms of legal identity poses significant challenges to human rights, governance, and development. International conventions aim at improving their status, but have been poorly subscribed. Much of the work to solve the problems will have to be done at the national level, where interest is increasing. Since the forced mass exodus of Rohingya from Myanmar, many have reached the shores of Malaysia and Indonesia, driving home the implications of unresolved situations of statelessness

The trial against Hissene Habre: networked justice and reparations at the Extraordinary African Chambers

The establishment of the Extraordinary African Chambers to try former Chadian President Hissène Habré has been hailed as a novel form of prosecuting international crimes in Africa. The Court’s establishment marked the end of more than two decades of persistent lobbying by a network of victim associations and civil society organisations – a phenomenon that is referred to here as ‘networked justice’. This article shows that the characteristics of a network often determine the reach and outcomes of networked justice at local and international levels. In the case of the Habré trial, the network’s primary goal of setting an international legal precedent through universal jurisdiction defined the tools and strategies chosen to achieve the goal. This article shows how these dynamics were transposed to the trial against Habré and the reparations phase. The take-up of sexual violence at trial is highlighted as one example of networked justice in action. By returning to Chad, this article considers the potential of reparations as a tool for carrying over effects from an internationalised justice process to the domestic level, and concludes with some observations about the possibilities and limitations of networked justice approaches in stimulating processes of transformation and change at the locations where justice demands originate

Broadcasting justice : media outreach at the Khmer Rouge trials

For more about the East-West Center, see http://www.eastwestcenter.org/Increasingly, individuals who have perpetrated mass atrocities are being held to account in criminal tribunals. Whether these are in-country tribunals or convened elsewhere, one of their main purposes is to obtain justice for victims. Building a bridge between the tribunal and the affected population is key to achieving this and other goals, such as promoting the rule of law and community reconciliation. But limited or ineffective outreach can negate the wider potential of these tribunals. Surprisingly, tribunals do not typically give the outreach process the priority needed to realize its potential. The case of the tribunal in Cambodia, which is trying leaders of the Khmer Rouge, demonstrates that innovative approaches to outreach--including, in this case, a TV series in a popular talk-show format--can help ensure that the opportunity for national progress provided by the tribunal is fully realized

International criminal justice and Southeast Asia : approaches to ending impunity for mass atrocities

For more about the East-West Center, see http://www.eastwestcenter.org/Nearly 15 years after entry into force, the UN Rome Statute of the International Criminal Court has 124 state parties, meaning that nearly two-thirds of states have joined this initiative to end impunity for the worst atrocities. Despite this global diffusion and normalization of international criminal justice, only 3 of 11 states in Southeast Asia have ratified the Statute. In response to the region's underrepresentation among ICC state parties, various governmental and nongovernmental actors have undertaken efforts to raise awareness of the Rome Statute and promote ratification in the region. However, beyond expanding the reach of the Statute, there is scope to draw upon regional experiences and potential to build a stronger foundation for an emerging regional consensus around ending impunity for mass atrocities