A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice

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Dr. Miracle Chinwenmeri Uche concluded her PhD programme under the supervision of Professor Lars Waldorf, Dr. Marina Lostal and Dr Clotilde Pegorier. Her thesis is titled ‘Victim-oriented Complementarity is the Key: A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice’.

The thesis examined the International Criminal Court (ICC) principle of complementarity through the lens of victim-oriented justice, i.e., justice that considers and accommodates victims’ needs and interests procedurally and substantively within the limits of criminal justice processes.

Complementarity, the chosen form of jurisdictional relationship between the ICC and its States Parties, is key to the Court’s existence and sustainability. It is inter alia a tool for deciding who between the ICC and states, can exercise jurisdiction over war crimes, crimes against humanity, genocide, and aggression (core international crimes).

For victims of core crimes, complementarity is much more than that; it has implications on whether justice will be served, who will investigate and where necessary prosecute — the ICC or states? Where will these proceedings take place, in The Hague or in domestic jurisdictions? Which victims can participate? How will justice be shaped?

Given the centrality of the principle of complementarity to the Rome Statute system, the thesis’ main aim was to propose ways for turning complementarity into a fulcrum for the pursuit of victim-oriented justice in the Hague and fostering the same in domestic jurisdictions.

For this purpose, the thesis asked two main research questions; firstly, how has the ICC interpreted and applied the principle of complementarity in relation to victims? Secondly, how can victims’ interests be adequately accommodated in the complementarity regime and process to aid the ICC in the fight against impunity and in achieving victim-oriented justice? To address these questions, the thesis analyzed the ICC’s complementarity, and victim jurisprudence using the doctrinal research method.

In response to the first research question, the thesis argued that victims’ needs, and interests were minimally considered in the development of the principle of complementarity; the focus was on sovereignty protection and prosecutorial issues. This is replicated in complementarity provisions within the Rome Statute, the ICC’s case law and practice. Admissibility determinations at the ICC tend to focus on issues of investigations and prosecutions of a small number of situations and cases, and the exercise of jurisdiction by the Court or states. This problem is exacerbated by the structure of the ICC’s main complementarity body — the Jurisdiction, Complementarity and Cooperation Division (JCCD) which does not include a victims’ representative. The thesis argued that sustaining a sovereignty and prosecutorial-focused approach to complementarity will circumscribe, if not eclipse the ICC’s ability to pursue victim-oriented justice and galvanize states to do the same.

Thus, in answering the second research question, the thesis argued that a re-interpretation of the principle of complementarity and the creation of an independent, inclusive ICC complementarity body are crucial to ensuring that victims’ needs, and interests are adequately considered and accommodated throughout all stages of proceedings.

The thesis’ original contribution is twofold; it outlines a reinterpretative framework for the introduction of victims’ needs and interests into admissibility determinations by the ICC. It is the first study to propose a design for an inclusive, neutral, and independent ICC complementarity division based on the existing Rome Statute regime.

The thesis also contributes to the discussions of ways in which the ICC’s relationship with African states and the African Union can be improved in the interests of victims, and the role this can play in bringing the Rome Statute closer to becoming a universal treaty.

Dr. Miracle Chinwenmeri Uche is now employed as a Lecturer at the University of Exeter. She is currently working towards publishing a monograph and journal articles from her thesis to apply her proposals to ongoing situations and cases before the ICC. She intends to further investigate the potential impact of a new and improved complementarity mechanism on victims, the ICC’s work, and workload.

A Study on Ignorance and Blame

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The adage ‘ignorance of the law is no excuse’ is significantly inaccurate. Ignorance and mistake of law do, under certain circumstances, exclude responsibility both in national and international criminal law.

Dr. Antonio Coco‘s recently published monograph The Defence of Mistake of Law in International Criminal Law updates the existing reviews of law and practice on the topic, aiming to go a step further: it takes the analysis of mistake of law as a starting point for systematic observations about international criminal law in general.

First, the book defines the contours of the defence of mistake of law in the general theory of criminal law, distinguishing it from cognate defences and highlighting, most notably, its connection with superior orders.

Secondly, it gives an overview of the possible approaches to the defence, offering examples from national law as terms of reference for the subsequent analysis of international criminal law.

Thirdly, it surveys the relevant law and practice of international criminal tribunals, with a focus on the International Criminal Court, and it contemplates offences for which a defence of mistake of law may potentially succeed.

Finally, the author tries to interpret what the rules on mistake of law applicable before international criminal tribunals imply about the purpose of punishing individuals and the legitimacy of such punishment.

Published by OUP

Whilst the discourse on international criminal law is more and more concerned with global politics, The Defence of Mistake of Law in International Criminal Law brings back the focus on the appropriateness of imposing a guilty verdict on the individual defendant, a human being constituting the basic unit of each society.

Reparations Before The International Criminal Court: Who Are The Victims of Cultural Heritage Destructions and How Should Their Harm Be Addressed?

Source: Wikimedia Commons

Ahmad al-Faqi al-Mahdi (Mr. Al Mahdi) was brought to the International Criminal Court to stand trial for his involvement in the destruction of several historical and religious sites in Timbuktu (Mali) during an armed conflict in 2012. This was the first time in the history of international criminal justice that an individual was prosecuted for the destruction of cultural heritage alone.

Following his guilty plea and conviction in 2016, the case moved on to the reparations phase where the focus was that of redressing the harm caused to victims. Therein, the unprecedented nature of the Al Mahdi case led to an equally unprecedented question: who are the victims of cultural heritage destruction?

Drawing upon her personal involvement in the case as a Court-appointed expert, Dr. Marina Lostal, Senior Lecturer at the University of Essex, has published an article explaining how this question was resolved and the practical challenges it posed during the implementation phase.

The challenges encountered are labeled as ‘monumental’ because they had one thing in common: the amount of theoretical thinking and reflection that they deserved was inversely proportionate to the urgency with which they had to be addressed and the precedent they would establish. To surmount this, drawing from the author’s background, the Trust Fund for Victims turned to academia and consulted with scholars.

The article focuses on three of such challenges:

(i) whether ‘unborn children’ should be included in the pool of victims given that cultural heritage is meant to be preserved for the benefit of future generations;

(ii) what place women ought to occupy in the implementation of reparations, despite the customary practices of side-lining them; and

(iii) the decision of whether to memorialize events surrounding the crime.

On the latter point, the article introduces the concept of ‘restorative agency’, a working principle that was adopted in the context of memorialization measures to ensure that victims are given a platform to decide, not a decision.

Lastly, Dr. Lostal’s article provides a framework to demonstrate the level of complexity involved in the implementation of any Court-ordered reparations and reveals some of the work of the Trust Fund for Victims, one of the Court’s least comprehended creations.

Article full citation: Marina Lostal, Implementing Reparations in the Al Mahdi Case: A Story of Monumental Challenges in Timbuktu, Journal of International Criminal Justice, Volume 19, Issue 4, September 2021, pp. 831–853, https://doi.org/10.1093/jicj/mqab064

The Use of Digital Reconstruction Technology in International Law

Photo by Sajad Nori

Digital reconstructions of crime scenes have been used more frequently in both domestic and international courts as technology becomes more developed and accessible to courtroom actors.

Though digital reconstructions can be beneficial, especially in the context of international criminal law, as they allow judges to visit crime scenes that would otherwise be too expensive or dangerous to travel to in person, there are inherent risks that come with the use of this novel type of evidence in a court of law.

Sarah Zarmsky, a doctoral candidate with the Human Rights Centre at the University of Essex, published an article titled ‘Why Seeing Should Not Always Be Believing: Considerations Regarding the Use of Digital Reconstruction Technology in International Law‘ in the Journal of International Criminal Justice (JICJ).

Sarah’s article explores some key considerations which arise if digital reconstructions are to be used in international criminal courts and tribunals, with an emphasis on the rights of the accused and effects on victims and witnesses.

The article argues that in order for fair trial standards to be upheld and for international courts to fulfil their roles not just as prosecutors of crimes, but as seekers of truth and reconciliation, digital reconstructions need to be approached with caution and analysed through a critical eye.

Sarah will present her paper as part of the Launch Event for the JICJ Special Issue on New Technologies and the Investigation of International Crimes, which will be held virtually on 9 November 2021 at 15:30-17:00 GMT.

This event will bring the authors of articles in the special issue together, including Essex Law School’s Dr. Daragh Murray who also contributed to the same issue and served as one of its co-editors, for a discussion of their key insights on the future role of technology in accountability processes. Those interested in attending can register here.

The International Criminal Court and the Transformation of Post-War Justice in Northern Uganda

International Criminal Court, The Hague | Source: Flickr

Miracle Chinwenmeri Uche, Assistant Lecturer and Postgraduate Researcher at the University of Essex, co-authored an article with Tonny Raymond Kirabira (Researcher, Portsmouth Law School) titled ‘The International Criminal Court and the transformation of post-war justice in Northern Uganda’. The article was published in Sentio Journal, Issue 3 (Transformations).

In recent years, the legitimacy of the International Criminal Court (ICC) has attained increased attention across interdisciplinary scholarship. At the same time, the impact of the ICC in Africa remains contested.

To this end, Tonny Raymond Kirabira and Miracle Chinwenmeri Uche examine the interface between the ICC and transitional justice processes in Northern Uganda, following a 20-year war involving the Lord’s Resistance Army (LRA) and the government forces.

The article draws on qualitative work in the fields of international criminal law, human rights, and political science. It finds that the Ugandan situation demonstrates that top-down transitional justice has both positive and negative dimensions.

In their article, the authors argue that while the ICC has helped to transform judicial aspects, it has also contributed towards the decline of traditional justice mechanisms.

As such, they posit that the ICC’s approach to addressing international crimes in situation countries needs to be aligned with the domestic complementary mechanisms, whilst also allowing space for other transitional justice approaches like amnesty and reconciliation.

Tonny Raymond Kirabira and Miracle Chinwenmeri Uche conclude by making a compelling case for the involvement of international criminal tribunals in post-war contexts but also argue that this needs to be done in such a way that promotes good domestic processes and incorporates bottom-up perspectives.

The article can be accessed through the publisher’s website here.

The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law

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Dr. Eliana Cusato, who is currently appointed as a Marie Skłodowska-Curie postdoctoral fellow at the Amsterdam Center for International Law, authored a new book titled The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law. Her book was published by Cambridge University Press in September 2021.

The interrelation of ecology and conflict has been the object of extensive study by political scientists and economists. From the contribution of natural resource ‘scarcity’ to violent unrest and possibly armed conflict; to resource ‘abundance’ as an incentive for initiating and prolonging armed struggles; to dysfunctional resource management and environmental degradation as an obstacle to peacebuilding, this literature has exerted a huge influence upon academic discussions and legal/policy developments.

While international law is often invoked as the solution to the socio-environmental challenges faced by conflict-affected countries, its relationship with the ecology of war and peace remains undertheorized. Drawing upon environmental justice perspectives and other theoretical traditions, the book unpacks and problematizes some of the assumptions that underlie the legal field.

Through an analysis of the practice of international courts, the United Nations Security Council, and truth commissions, the book shows how international law silences and even normalizes forms of structural and slow environmental violence (notably, uneven access and distribution of natural resources; less visible forms of violence associated with the environmental aftermath of wars).

This, in turn, jeopardizes the prospects of creating more peaceful societies, while perpetuating deeply rooted inequalities. Ultimately, the book urges us to imagine entirely different legal notions of justice, peace, and security in times of ecological disruption.

By drawing upon extra-legal fields of inquiry (e.g., the literature on environmental security, the political economy of civil wars, the resource curse, and environmental peacebuilding), the book strives to refine extant understandings of how international law conceptualizes and regulates the ‘environment’ before, during, and after armed conflict.

By engaging with some of the international legal order’s most pressing concerns – rising intra-state violence, environmental degradation, resource depletion, and their interaction – the book opens intellectual spaces for rethinking current approaches to the ecological challenges of our hyperconnected world and their adverse impact on the most marginalized peoples. As such, it offers a critical companion work to related titles and, at the same time, pushes the research envelope further and in new directions.

E Cusato, The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law (CUP 2021)

The book will be of interest to academics and students across different disciplines, primarily international law, but also peace and conflict studies, political theory, and international relations. It will also prove useful as a reference for policymakers and practitioners working at the intersection of environmental issues, human rights, and peace and security within international organisations/tribunals, governmental departments, think thanks, and NGOs.

Dr. Eliana Cusato is currently on academic leave from the Essex Law School.

The animal legal turn: could animals qualify as victims before the International Criminal Court?

The Animals in War Memorial in Hyde Park, London (sculptor: David Backhouse)

Dr. Marina Lostal, Senior Lecturer in Law at the University of Essex, published a new article titled ‘De-objectifying Animals: Could they Qualify as Victims before the International Criminal Court?’ in the Journal of International Criminal Justice.

The article notes that the legal framework of the International Criminal Court (ICC) does not contain any provision concerning animals. Yet, animals frequently appear in both trial and reparations proceedings. The lack of animal regulation at the ICC is problematic insofar as there is now a visible animal legal turn whereby their status as mere objects is increasingly being questioned and remedied at the international and domestic levels.

Dr. Lostal’s article wishes to visibilize the ‘animal question’ at the Court by examining whether they could qualify as victims under Rule 85(a) of the Rules of Procedure and Evidence. While the short answer to this outlandish question is an unequivocal ‘no’, the conclusion reached is not the purpose of the article.

The purpose lies in showing that animals cannot qualify as ‘victims’ just because they are not human beings. Yet, they comfortably meet the other two criteria, namely (a) suffering harm, which (b) results from the commission of crimes within the Court’s jurisdiction. In short, animals may not be humans, but they also suffer in connection with core crimes.

The article concludes with the observation that granting animals the same treatment as human beings is no more objectionable as a matter of legal principle than granting them the status of ‘things’. In the author’s view, this calls for a prompt discussion of the regulation of animals within the Court.

Dr. Lostal recently presented her research at the 2021 European Animal Rights Law Conference held on 17 and 18 September in the Woolf Institute on the Westminster College site in Cambridge. The article can be accessed through the publisher’s website here.

The Ntaganda Reparations Order: a marked step towards a victim-centred reparations legal framework at the ICC

International Criminal Court building in The Hague | Source: Wikimedia Commons

Dr. Marina Lostal, University of Essex, School of Law

NB: The author has been involved in the work of reparations at the ICC, first as a Court-appointed expert in the Al Mahdi case in 2017 and, between 2018 and 2020, as a reparations expert at the TFV. However, this post is written in the author’s personal capacity.

On 8 July 2019, Trial Chamber VI of the International Criminal Court (ICC) sentenced Bosco Ntaganda to 30 years of imprisonment after finding him guilty of five counts of crimes against humanity and thirteen counts of war crimes committed between 2002-2003 in Ituri (DRC). The Appeals Chamber confirmed both the sentence and verdict on 30 March 2021.

A few weeks earlier, on 8 March 2021, Trial Chamber VI issued the Ntaganda Reparations Order. An order for reparations is the document that sets out the foundations for the implementation of measures in favour of victims and, for that purpose, must be (1) directed against the convicted person; (2) establish the convicted person’s amount of liability; (3) identify – or set the criteria to later identify – the victims of the case; (4) determine the harm suffered; and (5) the type and modalities of reparations appropriate to address such harm. Aside from this case-specific goal, and pursuant to article 75(1) of the Rome Statute, an order for reparations can be used to amend or develop the legal framework applicable to reparations through the enunciation of principles.

The Ntaganda Reparations Order is the fourth issued by the Court following those of Lubanga (2012-2015), Katanga (2017), and Al Mahdi (2017). It is, however, the first one that expands and modifies the reparations principles that had been initially laid down in the Lubanga case (i.e. Lubanga reparations principles). In so doing, the Ntaganda reparations principles (in paras 28-103 of the Reparations Order) have effectively modified the legal framework applicable to reparations at the ICC, and brought it closer to a victim-centred approach where the emphasis is increasingly placed in the goal of repairing the harm caused to victims.

This post gives an overview of the five elements of the Ntaganda Reparations Order, and discusses some of the changes that it has brought to the Court’s reparative framework.

Against the convicted person

Article 75(2) of the Rome Statute requires the order for reparations to be made against the convicted person. However, nothing in the legal framework demands such conviction to be final. The Ntaganda Trial Chamber decided to issue an order for reparations while the verdict and sentence were on appeal; a practice that remains in keeping with the legal framework but that, nonetheless, is unusual and, in this author’s view, potentially problematic. 

Never before had a Trial Chamber issued a proper order for reparations until the judgment had become final (cf. Ntaganda Reparations Order, footnote 10). In Bemba, Trial Chamber III held off until the Appeals Chamber reached a decision. Following Mr Bemba’s acquittal, Trial Chamber III found that “no reparations order [could] be made against Mr Bemba under Article 75 of the Statute” (Final decision on the reparations proceedings, para. 3).

The longer the lapse of time between a pre-appeal order for reparations and an appeal judgment, the more problematic this practice could become. If the conviction is partially or completely reversed on appeal, the order for reparations would have to follow suit by reducing the monetary sum and cutting off entire pools of victims. In practice this would imply, at the very least, damage-controlling any outreach messages already made and, in the worst case, halting or reversing any implementation work taken up.

The Ntaganda Trial Chamber justified issuing a Reparations Order ahead of the appeal judgment because the mandate of two of its judges was coming to an end before the date foreseen for the appeals judgment (para. 5). It also argued that issuing the Reparations Order earlier could “contribute to more expeditious reparations proceedings” (ibid.) pursuant to the victims’ right to receive prompt reparations. However, given that the appeal judgment was rendered only 23 days after the Reparations Order, the latter reason remains unconvincing. It would have been perhaps more appropriate to argue the opposite: that because the appeal judgment was expected only shortly after, any potential reversal of some or all of the charges would not have impacted victims because the implementation work was unlikely to have started. Be that as it may, since the Appeals Chamber confirmed the trial sentence and verdict, no amendments were needed to the Ntaganda Reparations Order.

Monetary liability

Mr Ntaganda’s liability has been set at USD 30 million (para. 247); the highest so far (Lubanga USD 10 million, Katanga USD 1 million, and Al Mahdi EUR 2.7 million). In arriving at this sum, the Reparations Order has finally clarified the primary factors that should be taken into account in determining someone’s monetary liability: the harm and the costs to repair it (para. 98). Modes of liability, gravity of the crimes, or mitigating factors are irrelevant for the determination of the sum (ibid.). This has changed the Lubanga principle on liability, according to which the convicted person’s liability for reparations had to be:

“proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case”

Lubanga Reparations Principles, para. 21

The application of this principle had led to contrasting outcomes. In Lubanga, the Court “appears to have found Lubanga monetarily responsible for the totality of harm suffered”, USD 10 million, irrespective of the fact that there were other perpetrators. By contrast, in Katanga, the Trial Chamber first calculated the sum-total of the harm caused in the attacks against Bogoro (i.e. USD 3,752,620) and then, apportioned Mr Katanga with USD 1 million based on his participation and mode of responsibility (Katanga Reparations Order, para. 264). In Al Mahdi, the Trial Chamber considered that EUR 2.7 million was a fair assessment of the Mr Al Mahdi’s liability alone, and did not deem it “necessary to decide whether the figures […] constitute[d] the sum-total of harm suffered” (Al Mahdi Reparations Order, para. 111).

The internal discrepancies with the Lubanga principle on liability became even more tangible when, in its judgment against the Katanga Reparations Order, the Appeals Chamber both endorsed and rejected the principle in the same paragraph. It said the fact that a convicted person’s liability for reparations had to be proportionate to the harm caused and, inter alia, issues of participation

“d[id] not mean, however, that the amount of reparations for which a convicted person is held liable must reflect his or her relative responsibility for the harm in question vis-à-vis others who may also have contributed to that harm”.

Katanga Appeals Judgment on Reparations, para. 175

The Ntaganda Trial Chamber decided to unequivocally amend the Lubanga liability principle as follows:

“[i]n determining the amount of the convicted person’s liability, the primary consideration should be the extent of the harm and the costs to repair it. Other criteria, such as modes of liability, gravity of the crimes, or mitigating factors are not relevant to this determination”.

Ntaganda Reparations Order, para. 98

In other words, the Ntaganda Trial Chamber has embraced a victim-centred approach where the objective is repairing the harm caused to the victims, not as caused by the offender. This is also more in line with the non-punitive nature of reparations proceedings where, as a consequence, the degree of culpability of the individual should be inconsequential to questions of monetary liability. Accordingly, the Ntaganda Reparations Order found:

“Mr Ntaganda liable to repair the full extent of the harm caused to the direct and indirect victims of all crimes for which he was convicted, regardless of the different modes of liability […] and regardless of whether others may have also contributed to the harm” (para. 218).

When there are other perpetrators, two things must be taken into account: first, victims cannot be over-compensated over time (paras 99-100). Second, the existence of responsibility in solidum where the perpetrator who bore the cost of reparation can “seek to recover from the co-perpetrators their proportionate share” (para. 221).

Accordingly, concerning the child soldier victims that Mr Ntaganda shared with Mr Lubanga, the Ntaganda Reparations Order stated that “the reparation programmes implemented in the Lubanga case […] should be understood to repair the victims’ harm on behalf of both” (para. 220). Even though the measures in favour of these former child soldiers would be implemented under the umbrella of the Lubanga Reparations Order, Mr Ntaganda remains jointly and severally liable to repair in full the harm suffered by these child soldiers, that is, he also bears the obligation to reimburse the Trust Fund for Victims in that respect (para. 221).

Identify – or set the criteria to later identify – the victims of his crimes

There is no doubt that the Ntaganda reparations will deal with a very large pool of victims, but the estimated number of prospective eligible victims remains far from clear. The Trial Chamber conceded that the “exact number [of victims] may never be determined given the passage of time, the widespread and systematic nature of the crimes committed” (para. 8). Current figures range from a starting base of 2,500 according to the Registry (paras. 232 and 234); 3,500 direct victims according to the Court-appointed experts (para. 232), to 100,000 people as per common legal representative 2 (para. 233). Given the impossibility to identify victims by name at this stage, the Trial Chamber has opted for establishing their eligibility criteria instead (para. 105).

The Trial Chamber kept the distinction between direct and indirect victims where the former “are those whose harm is the result of the commission of a crime for which the defendant was convicted” (para. 34); and the latter refers to “those who suffer harm as a result of the harm suffered by the direct victims” (para. 35). This would include family members of direct victims, even those who were not born at the time of the commission of the crime but that are able to prove transgenerational harm, that is, the transmission of noxious effects of trauma from one generation to the next (paras 36, 73 and 183(d)(vi))

Aside from the two known existing categories of direct victims (viz. victims of the attacks and child soldiers), the Ntaganda Reparations Order added a third one: children born out of rape and sexual slavery (para. 122). This carries an important practical implication: the offspring of these children born out of rape and sexual slavery could, in turn, qualify as indirect victims on account of transgenerational harm. Therefore, the damage Mr Ntaganda caused could transcend to, not only one, but two generations that were unborn at the time of the commission of the crimes.

Determine the harm suffered

The Ntaganda Reparations Order acknowledged that the crimes of Mr Ntaganda had led to mass victimisation (paras 149-169) and provided a detailed list of the, often multidimensional, types of harm suffered per victim category (para. 183).

As to questions of evidence, the Ntaganda Reparations Order has endorsed the same legal tests used in previous reparations proceedings. This is the balance of probabilities to establish someone’s identity and the occurrence of harm (para. 136), and the but/for and proximate cause tests to link the harm to the crime in question (para. 132).

The balance of probabilities requires presenting some sort of documentation or, in its absence, a statement signed by two credible witnesses (para. 137). However, a special rule will apply to victims of sexual and gender-based violence where “the victim’s coherent and credible account shall be accepted as sufficient evidence to establish their eligibility” (para. 139). In addition, factual presumptions will be relied on for certain types of victims. This means that material, physical and psychological harm would be assumed for, say, rape victims without any need to scrutinize the specific harm in question (paras 144-147).

Type and modalities of reparations

Reparations can be individual or collective, and both types can be awarded concurrently (rule 97(1) RPE). However, the Ntaganda Reparations Order has crystallised a middle-of-the-way category known as “collective reparations with individualised components”. These reparations, which are the only ones that will feature in the Ntaganda case (paras 7 and 186), are collective in nature but they result in individual benefits.

The Ntaganda Reparations Order seems to suggest that collective reparations with an individualised component may adopt any given modality, even monetary compensation (para. 86), something that had so far been framed as an individual form of reparation (Al Mahdi Reparations Order, paras 81 and 90). Why then label reparations as collective when they end up leading to concrete individual benefits?

Aside from the different expressive function embedded in these two terms, in the ICC legal framework, there are certain practical advantages in calling something “collective” reparations. One should be mentioned here. The Trust Fund for Victims (TFV) may prioritize funding collective reparations over individual ones (TFV Observations, para. 124). On its side, the Ntaganda Reparations Order has established that certain victims need priority treatment, such as “individuals who require immediate physical and/or psychological medical care, […] victims who are homeless” (para. 214). If the Ntaganda Trial Chamber had not categorised reparations as “collective” there could be, in principle, a clash between the prioritisation policy of the TFV, and that of the Ntaganda Reparations Order where the victims in need of tailored and urgent care would come last in their access to funding.

How would these reparative measures will look in practice? The ball is now in the TFV’s court as it is in charge of submitting two draft implementation plans, one urgent for priority victims by 8 June 2021, and the rest by 8 September 2021. What is clear is that the future draft implementation plans of the TFV needs to be comprehensive and include all modalities of reparations – compensation, restitution, rehabilitation, satisfaction and symbolic – or justify their exclusion (para. 212) and, of course, adopt a very victim-centred approach. Moreover, Mr Ntaganda is considered indigent and the Trial Chamber has, as in all other cases to date, invited the TFV to complement the award (para. 257).  If so, the TFV would need to conduct an enormous fundraising effort, the biggest so far (see TFV Financial Overview, pp. 17-19, 25), where State parties are expected to play a major role so that reparations plans are turned into reality.

This piece was first published on the Blog of the European Journal of International Law and is reproduced here with permission and thanks. The original post can be accessed here.

The Forever War and the Laws of War

Photo by israel palacio

Dr. Nathan Derejko, Lecturer in Law, University of Essex

The looming threat of a ‘forever war’, characterised by the so-called ‘Global Battlefield’ and the perpetual applicability of International Humanitarian Law (IHL), has thrust the question of when and how Non-international Armed Conflicts (NIAC) end to the forefront of international concern and debate. In both practical and legal terms, identifying the end of a NIAC is notoriously difficult. There are several reasons for this, but two in particular should be highlighted.

First, is the complex spectrum of social, political and economic factors that underpin, propel, and ultimately bring NIACs to an end. Indeed, history is replete with NIACs spanning several years and, in some cases, several decades.

Second, is the virtual silence of IHL regarding its temporal scope of application during NIAC. While conventional IHL speaks of the ‘end of hostilities’ and the ‘end of the conflict’, it stops short of providing any guidance on the precise meaning and scope of these expressions, or the relationship between them.

These factors are further compounded by a comparative dearth in legal scrutiny of when and how NIACs end. While considerable judicial and academic analysis has focussed on IHL’s threshold of activation (when a NIAC legally comes into existence), much less attention has been given to its threshold of termination (when a NIAC legally ends).

In a recent article, A Forever War? Rethinking the Temporal Scope of Non-International Armed Conflict (published in the Journal of Conflict and Security Law), I undertake a forensic examination of IHL’s threshold of termination during NIAC.

The article first explores the temporal architecture of Common Article 3 and Additional Protocol II to determine what, if anything, IHL has to say about its threshold of termination. From here, it unpacks and critically examines two of the leading approaches for determining IHL’s threshold of termination during NIAC: the ‘peaceful settlement’ approach advanced in the jurisprudence of International Criminal Law; and the ‘lasting pacification’ approach advanced by the International Committee of the Red Cross.

While both of these approaches possess advantages and limitations, it is argued that neither produce entirely satisfactory results for determining IHL’s threshold of termination during NIAC.  In short, their common ailment is a quest for a single point in time that marks the ‘end’ of a NIAC, and at which point IHL terminates in toto. In practice, such an approach invariably results in the over-extension of IHL to factual circumstances that no longer warrant its application, or by the termination of its applicability before comprehensive protection is restored under International Human Rights Law.

For these reasons, the article develops and proposes an innovative ‘functional approach’ for determining IHL’s threshold of termination during NIAC, which  addresses the silence and shortcomings of existing law and doctrine, while at the same time, holds true to the very object and purpose of IHL during NIAC.

Achieving Justice for Victims of Gross Human Rights Violations in Sudan

Dr. Thoko Kaime, Senior Lecturer in Law, University of Essex and Lena Scheibinger

Omar al-Bashir

Significant step in the al-Bashir indictment

In February 2020, the Sudanese government indicated its intention to hand over Omar al-Bashir, the country’s former strongman to the International Criminal Court in The Hague to face charges of war crimes and crimes against humanity. Arrest warrants against al-Bashir had been issued by the ICC in 2009 and 2010 making him the first sitting head of state to be indicted by the ICC. However, al-Bashir refused to recognize the authority of the court and Sudan declined to hand him over. For ten years since the first warrant, al-Bashir continued to represent Sudan as head of state and a significant number of African Union members, who are also members of the ICC, flatly refused to execute the warrant. However, al-Bashir’s removal from power in April 2019 following mass protests and a military coup against his government changed the political pendulum in Sudan. The willingness of the transitional authorities to surrender the former strongman to the ICC should be rightly regarded as a major development in finally holding al-Bashir accountable for his crimes. It is further evidence that crimes against humanity and massive violations of human rights will not stay without any consequences.

Achieving justice for victims

Even though the details on how and when the handing over will take place are still unclear, the news of the possible transfer to the ICC is a big step forward to towards ending impunity in Sudan. However, this is only the beginning and more needs to be done. The trial of those who are responsible for the atrocities committed in Darfur constitutes an indispensable prerequisite for achieving justice and peace for the victims of that conflict. In this regard, it is not sufficient to bring only the former president to court but also to ensure that everyone involved in the massacres in Darfur is prosecuted either by the country‘s own judiciary or, in case that the national institutions are unable to fulfil this mandate, to make ready plans for trial by an international court or a special tribunal following the model of the reconciliation process in Rwanda after the 1994 genocide or the Special Court for Sierra Leone after the civil war.

The ICC and transitional politics in Africa

If al-Bashir is indeed eventually handed over to ICC by the Sudanese government, it will not be the first time that the ICC process has been used to get rid of difficult political problems by a governing regime. In Ivory Coast, the government quickly transported Laurent Gbagbo to the ICC to face a longstanding warrant that had been on ice whilst in power. The same modus befell Charles Taylor of Liberia and Jean Pierre Bemba of the Democratic Republic of Congo. Whilst this type of approach lends itself to uneven results as far as ending impunity is concerned, human rights defenders must ensure that they take full advantage of political changes in countries where perpetrators of mass human violations have hitherto been protected by the state apparatus. Meticulous documentation of crimes and the safe recording of victims and potential witnesses and other evidence will be key in any eventual prosecution as the al-Bashir case will likely demonstrate.