Access to Justice for Victims of Human Rights Violations and International Crimes of Access to Justice and Reparations

Transcription

1 Access to Justice for Victims of Human Rights Violations and International Crimes of Access to Justice and Reparations Nieves Molina Clemente November, 2015 Lund University Nieves Molina-Clemente

2 Purpose of these lectures Ensuring that future law practitioners are able to practice law from a victims rights, rendering justice results that are perceived as JUST by those that were more affected by the wrongdoing (victims and survivors)

3 Goal these lectures Learning: - A Review of Reparations for Wrongful Acts under International Law - A philosophy of International Justice: Retributive vs Restorative Justice. - The WHO, WHAT, WHERE, HOW of Reparations - Principles of Reparations. - Legal Procedure of obtaining reparations. - International case law - The relevance of the ICC Lubanga Case. - The Right to Rehabilitation as a form of reparation. - Application. How is this knowledge going to improve your practice.

4 Expectations

5 International Actors and Inter. Law Subjects International Relations Actors Anyone that appears in international relations, ( States, Organizations, a large national or international NGO, a spiritual leader ) Subjects of International Law : Legal Personality : Rights and Obligations.

6 Legal Personality The Concept of Legal Personality means to be given rights and/or obligations. Individuals have a passive personality, as they are not able to create oe master international instruments. States ( and International organizations ) active legal personality (They create or master international international organization) Is the ability to participate in human rights courts and tribunals to vindicate rights is an active or passive subjects of international law? Peronality under Int Law comes on many forms. Subjectivity under the law begins from social needs at a given time. I.CJ Reparations for Injuries Suffered in the Service of the United Nations (1949) the needs of the community explain the subjectivity, it is not the same for all entities, depending on needs of the community.

7 Legal Consequences of State Responsibility ILC Articles of State Responsibility for Wrongful Acts, adopted in 2001 by the General Assembly. The Rules have a Customary Status (Acceptable international law) Responsibility is triggered by Attribution of an action to the State Wrongfulness of the Act

8 What is Reparation in International Law. A principle of international law according to which the breach of an engagement involves an obligation to make reparation in an adequate form. ( Permanent Court of Arbitration, Chorzow Case 1927) Germany vs Poland. States Responsibility for Wrongful Acts : Article 31 Reparation 1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. No State obligation to provide reparations to individuals/ nationals to the State that suffered harm.

9 The Concept of Injury Legal Protected Interest - Sovereignty - Property - International law violations on their nationals.

10 Forms of Reparation Article 34 Forms of reparation Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.

11 Individual Reparation in International Law Other ICJ cases referenced that State compensation should reflect damage suffered by its nationals (Barcelona Traction Case, 1970 ) 2004 ICJ Advisory Opinion on The Legal Consequences of the Construction of a Wall in the OtP The Court has an obligation to compensate the persons in question for the damage suffered.

12 Summary so far: Individual as a Subject of International Law International Law regulates relationships between states. Even if Reparations were awarded for harm to individuals, Reparations were received by States (not the individual) Individual becomes Subject of International Law within the framework of human rights. (awarding a right requires creating the procedure to achieve it)

13 Legal Frameworks Governing the Right to Reparation to individuals Domestic : its origins in domestic tort law ( Principles of Reparation for Victims of Crime and Abuse of Power). Internationally : State Responsibility law ( Articles on State Responsibility for Wrongful Acts -ARSIWA-) Different Brands of International Law contributed to the Right to Reparations International Human Rights Law International Humanitarian Law International Criminal Law

14 International Justice Retributive Justice: Inherent to all criminal prosecutions. An expression of outrage against the intolerable and heinous crimes who as a resolve deserve punishment (society at large or international community are at the centre of this definition) Restorative Justice: healing the wounded as well as punishing the guilt Elements of transitional Justice in post- conflict: Restoring the rule of law Restoring the rights that were violated Iustitia suum ius cuique tribuere (Ulpianus, G.). Justice is to render to each its right.

15 UN Basic Principles of Reparation (Van Boven Principles. Codify the right to reparation. Based on the Principles of Responsibility of States for Internationally Wrongful Acts which were commended in 2001 Defines the concept of victim Defines the modalities of reparation The do not create new obligations. Forms of Reparation 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, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005 (Basic Principles)

16 Reparation (Van Boven Principles: Structure. Obligation to respect, ensure respect for and implement international human rights law and international humanitarian law (Section I) - Scope of the obligation (Section II) - Gross violations of international human rights law and serious violations of international humanitarian law that constitute crimes under international law (Section III) - Statutes of limitations (Section IV) - Victims of gross violations of international human rights law and serious violations of international humanitarian law (Section V) - Treatment of victims (Section VI) - Victims right to remedies (Section VII) - Access to justice (Section VIII) - Reparation for harm suffered (Section IX) - Access to relevant information concerning violations and reparation mechanisms (Section X) - Non-discrimination (Section XI) - Non-derogation (Section XII) - Rights of others (Section XIII)

17 Forms of Reparation (Cont.) Restitution seeks to restore the victim to the situation that that would have existed had the crime not happened. This may include restoration of liberty, legal rights, social status, family life and citizenship; return to one's place of residence; and restoration of employment and return of property Compensation is understood to include any quanitifiable damage resulting from the crime, including "physical or mental harm, including pain, suffering and emotional distress; lost opportunities, including education; material damages and loss of earnings, including loss of earning potential; harm to reputation or dignity; and costs required for legal or expert assistance, medicines and medical services, and psychological and social services." Forms of Reparation 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, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005 (Basic Principles)

18 Forms of Reparation (Cont.) Rehabilitation is said to include medical and psychological care as well as legal and social services. An individual form of reparation. Satisfaction and guarantees of non-repetition include such individual and collective elements as revelation of the truth, public acknowledgment of the facts and acceptance of responsibility, prosecution of the perpetrators, search for the disappeared and identification of remains, the restoration of the dignity of victims through commemoration and other means, activities aimed at remembrance and education and at preventing the recurrence of similar crimes. Forms of Reparation 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, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005 (Basic Principles)

19 Reparations in International Human Rights Law. Widely established in Human Rights Treaties. The Universal Declaration of Human Rights (article 8), the International Covenant of Civil and Political Rights (article 2), the International Convention on the Elimination of All Forms of Racial Discrimination (article 6), The Convention against Torture and Other Cruel, Inhuman or Degrading Forms of Punishment (article 14), The Convention on the Rights of the Child (article 39), the International Convention for the Protection of All Persons From Enforced Disappearance (article 24). The European Convention of Human Rights The Inter-American Convention of Human Rights

20 Reparations in International Humanitarian and Criminal Law. Individual Criminal Responsibility crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes, can the provisions of international law be enforced. Trial of the Mayor War Criminals before the International Military Tribunal, 14 November October 1946 (Nuremberg: International Military Tribunal, 1947) p. 223 The Right to Reparation is acknowledged by International Humanitarian and Criminal Law Instruments the Hague Convention of 1907 concerning the Laws and Customs of War on Land (article 3), the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflict (Protocol I, article 91) the Rome Statute of International Criminal Law (article 75 and 79).

21 Effective Remedies? 1. Individual Claims before National and International tribunals Individuals Claiming State Responsibility if the offending State is party to a treaty establishing an individual complaint mechanism Inter-american Court for Human Rights. European Court for Human Rights African s People Court for Human Rights Committee Against Torture 2. Claims against States before International Bodies The extra-conventional or general monitoring mechanisms, the Special Rapporteur on Torture or the Working Group on Arbitrary Detention, no power to rule on individual complaints

22 Effective Remedies? 3. Claims against States in Foreign Courts Universal Jurisdiction: Pinochet case. Adolfo Scilingo Case U.S. courts have relied on the Alien Tort Claims Act 4. Claims against Individuals before International Criminal Tribunals ICTR ICTY Special Court of Sierra Leone ICC Extraordinary Chambers in the Courts of Cambodia

23 The Experience of the Ad-Hoc Tribunals Nuremberg tradition: the crime of aggression as the most serious crime. No victim s participation as such. Victims presence in the court room as witnesses. Art. 21 of the ICTY/ICTR Statute. Article 21 Protection of victims and witnesses The International Tribunal for Rwanda shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim s identity

24 ICTY and ICTR. Rules of Procedure and Evidence: Rule 106 provides: (A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty of a crime which has caused injury to a victim. (B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation. (C) For the purposes of a claim made under Sub-rule (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.

25 TGTE Thank you!

26 Reparations and Victims Support in the ICC Nieves Molina University of Lund 6 th November 2017

27 ICC Situations and Investigations Preliminary Examinations Afghanistan Burundi Colombia Nigeria Gabon Guinea Iraq/UK Palestine Registered Vessels Grece, Comoros, Cambodia Ukraine Situations under Investigation DRC CAR I & II Libya Kenya Darfur (Sudan) Ivory Coast Georgia Mali. Uganda

28 ICC Workload Preliminary Examination Situations under investigati on Cases Pre-trial Trial. Appeals Reparations Closed Revision

29 3 means of bringing a matter before the Court A referral by a State Party, A referral by the Security Council acting under Chapter VII of the Charter of the United Nations, The institution of an investigation by the Prosecutor acting on his own initiative (Article 13) (US non surrender agreements, Art 98 Agreements)

30 The ICC responsibility regime. Individual Criminal Responsibility. Art 25 : The Court shall have jurisdiction over natural persons pursuant to this Statute. No state responsibility.

31 Prosecutorial Discretion and Case Prioritization I. Selection of cases determines victims eligibility Selection of cases and the fair and effective prosecution of those cases are critical to fulfilling the court s mandate to fight impunity. Criticisms so far: failure to bring cases where more than one party to a conflict has committed serious crimes to seek to establish individual criminal responsibility at senior levels of leadership to minimize the time lag between cases brought against different parties to the conflict or to present charges sufficiently representative of underlying patterns of crimes (as in the Lubanga)

32 Prosecutorial Discretion and Case Prioritization II. OTP Policy Paper on Prioritization and Case Selection: Impact and impartiality (it might not amount to cases against all parties) Selection of cases based on gravity (rather than on resources available? ) Closing gaps ( Additional charges or additional cases) Once a suspect is in custody, for example, judicial deadlines and fair trial rights may make it difficult to close gaps, for example, in the addition of charges Charges to represent as much as a possible the true extent of criminality which has occurred within a given situation and to ensure that charges chosen will constitute, whenever possible, a representative sample of the main types of victimization and the communities which have been affected by the crimes in that situation. Sequencing vs. prioritization. Available resources is included in the Policy Paper as a prioritization criteria governing the roll-out of selected cases.

33 The Legal Framework Art. 75 RS Reparations to victims Art. 79 RS Trust Fund Rule 85 RPE Definition of victims Rules RPE Reparations to victims Regulations of the Trust Fund for Victims + international law and standards on victims rights (art. 21 RS)

34 Art. 75 Rome Statute The Court shall 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.

35 Art. 75 Rome Statute 2. The Court may make an order directly against a convicted person specifying appropriate reparations Where appropriate, the Court may order that the award for reparation be made through the Trust Fund

36 Rule 97 RPE Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both. the Court may appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury and to suggest appropriate types of modalities of reparations.

37 Art. 79 RS 1. A Trust Fund shall be established for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the TF. 3. The TF shall be managed according to the criteria to be determined by the ASP [Regulations]

38 The ICC Trust Fund for Victims. Created in 2001, operational since Not limited to providing reparations for crimes that have been adjudicated. Double mandate: - Reparations - General Assistance. It follows the orders of the Court, but can launch projects proactively It is independent, but should inform the Court about its plans. The Court can stop the TFV if it feels that it will interfere the proceedings. It has 1.3 million Euros.

39 Victims Redress TFV for the benefit of victims of crimes within the jurisdiction of the Court (art. 79) REPARATIONS individual crim. resp. (convicted person) award directly to Victims Thought the TFV Individual Individual Collective

40 Background II Rules of the Rules of Procedure and Evidence - Rule 97 concerning the assessment of reparations - Reparations on an individual basis or on a collective basis. The Trust Fund for Victims (TFV) - Established by the ICC, under article 79 of the Rome Statute in 2004 by the Assembly of State Parties Different forms of reparations in the TFV mandate - Implementing Court ordered reparations Providing physical, psychological, and material support to victims and their families Dias 40

41 Lubanga Case Framework for Reparations Charges: Recruitment of children under 15. Definition of Victim: Direct : Children/ Hema/ From Ituri Indirect : parents Excludes: victims of their crimes. Financial Challenge: Challenges: Resources. Who pays: Art 75. Lubanga doesn t have the assets. Art 79: the ITV. Forms of Reparation 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, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005 (Basic Principles)

42 Case Study: Lubanga Case 14 March 2012, TC I issued a Scheduling order concerning timetable for sentencing and reparations invited the Parties, the participants, the TFV and the Registry to make observations on the following issues: whether reparations should be awarded on a collective or individual basis to whom are they to be directed, how harm is to be assessed and what are the criteria to be applied to the awards is it possible/appropriate to make reparations order against the convicted person would it be appropriate to make reparations order through the TFV whether the parties or participants seek to call expert evidence Decision establishing the principles and procedures to be applied to reparations, 7 August 2012

43 Definition of victims Lubanga: Paragraph 194. Reparations may be granted to direct and indirect victims, including the family members of direct victims; anyone who attempted to prevent the commission of one or more of the crimes under consideration; and those who suffered personal harm as a result of these offences regardless of whether they participated in the trial proceedings. General definition of victims - inspired by the 1985 UN Victim Declaration TheDias harm? 43

44 The even more thorny issue of defining eligibility as victims. ICC Concept of Victim: Rule 85 Denition of victims For the purposes of the Statute and 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 or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

45 Lubanga Case: Collective reparations Appeal Chamber narrows who can benefit from reparations. Lubanga: Collective reparation NOT Granting reparation to a Community Authorizes collective reparations to victims that are not either: - Definable group of civil parties - Geographic identifiable community. - Logistics and limited resources might have influenced this decision.

46 An order for reparations under article 75 : five essential elements 1) it must be directed against the convicted person; 1) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 1) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both, pursuant to rules 97 (1) and 98 of the Rules of Procedure and Evidence; 1) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; 1) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted.

47 Reparations fulfill two purposes They oblige those responsible for serious crimes to repair the harm they caused to the victims They enable the Chamber to ensure that offenders account for their acts.

48 Reparations must: Deter future violations Afford justice to the victims Relieve the suffering caused by these offences Contribute to the effective reintegration of former child soldiers Assist in promoting reconciliation between the convicted person, victims and the communities

49 What is the purpose of reparation regime? Retribution? Deterrence? Restoration (restorative justice)? Peace, security, reconciliation? Didactic objective of improving respect for HR and expressing moral denunciation?

50 Individual Reparations Who are victims? Rule 85 (a): Victims means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the court. Same standard as for participation in the proceedings?

51 Individual Reparations? Prosecutorial discretion Super victims v. ordinary victims Problems of identification and related costs + length of proceedings Indigent perpetrators

52 Individual Reparations? Financial compensation - commodification of suffering? Symbolic reparations? - satisfaction - guarantees of non-repetition

53 Collective Awards? More practical? More appropriate in context of international crimes committed against collectivities Collective awards to address collective harm More apt to achieve lasting effects on communit. Indirectly benefits individual victims Problems?

54 ICC Rule of Procedure and Evidence Rule 95 The Court may order that an award for reparations against a convicted person be deposited with the Trust Fund where at the time of making the order it is impossible or impracticable to make individual awards directly to each victim. The award for reparations thus deposited in the Trust Fund shall be separated from other resources of the Trust Fund and shall be forwarded to each victim as soon as possible. 3. The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate. 4. Following consultations with interested States and the Trust Fund, the Court may order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund. 5. Other resources of the Trust Fund may be used for the bene t of victims subject to the provisions of article 79.

55 ICC Concept of Victim Pre- Trial Chamber I. Confirmed in Prosecutor v. Lubanga. 1. Identity as natural person needs to be established 2. Prove of harm 3. The Crime Committed within the jurisdiction of the Court 4. Casual link between the crime committed and the harm suffered

56 The ICC Statute Forms of Non Exhaustive Restitution Compensation Rehabilitation Collective or Individual Rule 94 Procedure. Reparation

57 Lubanga Case Framework for Reparations Charges: Recruitment of children under 15. Definition of Victim: Direct : Children/ Hema/ From Ituri Indirect : parents Excludes: victims of their crimes. Financial Challenge: Challenges: Resources. Who pays: Art 75. Lubanga doesn t have the assets. Art 79: the ITV.

58 The Lubanga case 14 March Judgment in which Lubanga was found guilty of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute. First case in which a decision on reparations was rendered. 7 August Decision on principles and procedures 21 October Order issued by the Trial Chamber approving plan for reparations Dias 58

59 from the crime other than the accused was convicted of receive reparations? - Article 75(1) of Rome Statute: The Court shall 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. Dias 59

60 Victim Reparations ICC proceedings limited to who it considers a victim and what it can provide in terms of reparation/financial compensation given the broad definition of a victim in the Rome Statute Focus is primarily on immediate individual victims and their relative counterparts involved in the ICC arena rather than including each and every person affected by the crime Law of Proportionality is severed if the ICC can not include each and every individual harmed in the armed conflict extending beyond the ICC s procedural jurisdiction Dias 60

61 Funding/Resources Public and private donors, as well as fines and forfeitures, provide the TFV with sufficient resources to operate its assistance and reparations programmes in ICC situations. States Parties ensure sufficient resources for the TFV Secretariat to fulfil its mission and mandates Imposed based on the principles of Restorative Justice: the purpose of encouraging justice through the provision of assistance to victims of crimes that fall within the Court's jurisdiction Trust DiasFund 61for Victims (TFV) immensely

62 Individual and collective reparations Individual reparations Reparations to individual persons, acknowledging their personal suffering. Victims granted individual reparations are more likely to get a sense of justice being achieved. Problems concerning individual reparations Funding Time consuming process Creating a hierarchy between victims Inequality and resentment in communities Dias 62

63 Individual and collective reparations Collective reparations Might be a better way to facilitate restorative justice?. Includes: Public apologies Building memorials Education of victims Truth commissions Other projects Problems concerning collective reparation Marginalizing needs of vulnerable groups and minorities. Possibility of the perpetrator benefitting Dias 63

64 reparations in the Lubanga Case TFV filing of 19 September 2016 Order by the Chamber to implement the plan issued on 21 October 2016 A. Development and construction of symbolic structures, in the form of commemoration centres that will host interactive symbolic activities, in three communities; and A. Development of mobile memorialization initiatives in five additional communities that will promote awareness raising of the crimes and resulting harms, reintegration,reconciliation, and memorialization. Dias 64

65 Main objective and expected outcomes Reintegration and rehabilitation of former child soldiers Expected outcomes of the reparations leading to the main objective: Awareness and acknowledgement within affected communities about the crimes and the on going harms caused. Reducing the stigma attached to former child soldiers within their (adopted) communities to help (re)integrate and rehabilitate Creating an enabling environment to develop and implement service based collective reparations awards to direct and indirect victims. Information to, and appreciation by, other stakeholders in the public domain about the objective and the results achieved of this collective symbolic reparations project. Dias 65

66 Justice in the post conflict communities Restorative justice Establishing truth Re-enforcement of moral norms and acknowledgement of crimes Awareness and acknowledgement in the international community Rebuilding Deterrence Dias 66

67 Justice in the Lubanga case Symbolic reparations in Lubanga: Helping victims to step forward and reconcile with the events. Reducing stigma Creating awareness and acknowledgement of the crimes. Lasting structures for commemoration and the creation of an accurate historic record.issues: Deterrence? Truth and reconciliation No participation from Mr. Lubanga Dias 67