The impact of international criminal proceedings on national prosecutions in mass atrocity cases.

Author:Schwendiman, David
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 9:00 a.m., Friday, March 27, by its moderator, Thordis Ingadottir of the University of Reykjavik, who introduced the panelists: Andre Nollkaemper of the University of Amsterdam; Martin Ngoga of the Prosecutor's Office of the State of Rwanda; David Schwendiman of the Prosecutor's Office of Bosnia and Herzegovina; Yuval Shany of Hebrew University; Olivia Swaak-Goldman of the Office of the Prosecutor at the International Criminal Court; Marieke Wierda of the International Center of Transitional Justice; and Judge Fausto Pocar of the International Criminal Tribunal for the Former Yugoslavia. *

THE CONTRIBUTION OF INTERNATIONAL INSTITUTIONS TO DOMESTIC REPARATION FOR INTERNATIONAL CRIMES

I would like to start with two interconnected propositions. First, the prosecution of perpetrators of international crimes should be embedded in a comprehensive regime that includes both criminal justice proper and reparation for victims. Second, as part of such a regime, international institutions, including international courts, may have a role in supporting domestic reparation schemes. The contribution of international institutions to reparations at the domestic level raises questions that are quite distinct than those that arise in regard to prosecution.

  1. THE LINK BETWEEN PROSECUTION AND REPARATION

    The first proposition seems straightforward. The process that leads from mass atrocities to a stable, peaceful, and normalized situation involves both prosecution and reparation for victims. This is an essential element of all authoritative definitions of transitional justice, including the definition of former Secretary-General of the UN, Kofi Annan. (1) Prosecutions only offer a partial response to atrocities and, if not accompanied by reparation, may not achieve the goals of justice and transition to a stable post-conflict situation.

    The quest for reparation need not always be linked expressly to determinations of individual (or collective) responsibility. Whereas prosecution by its very nature involves determination of wrongfulness and responsibility, that need not be the case for reparation. In many post-conflict situations, states and international institutions have provided financial or material support which was not contingent on a prior determination of legal responsibility. Whether or not such reparation (in the non-legal sense of the term) is adequate for contributing to the goals of transitional justice is an empirical question that depends in large part on the perspective of victims and that will differ from case to case. There is evidence that in some situations, it may not be adequate if not accompanied by a determination of legal responsibility. The aftermath of Srebrenica, at least as far as the possible responsibility of the UN and the Netherlands is concerned, is a case in point. (2)

    The question of reparation for victims of international crimes was neglected in the ad hoc tribunals for the Former Yugoslavia and Rwanda. At the time of the drafting of the statutes, any concerns over reparation that may have existed were not substantial enough to find their way into the statutes. While financial and material support has been provided with respect to both situations, this was not linked in any legal way to responsibility of the perpetrators.

    However, in state practice, the importance of a combination of prosecutions and reparation increasingly has been recognized. The Rwandese Organic Law on Genocide allows for claims for compensation by victims of genocide. (3) Colombia has adopted a law that allows for parallel criminal proceedings and administrative reparations in regard to the longstanding guerrilla violence. (4)

    Also, third-party states have recognized that exercising universal jurisdiction may need to involve both prosecution and reparation to victims. In March 2009, the District Court of The Hague in the Netherlands, located a couple of kilometers from the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR), provided for more than what the ICTR itself could have done. The ICTR had asked the Netherlands to try Joseph Mpambara for genocide. The Dutch Court found that it could not prosecute him for genocide because of a lack of jurisdiction and, perhaps somewhat controversially, that his acts could not be qualified as war crimes as there was not sufficient nexus with the armed conflict. The Court did could convict the defendant for torture, however, sentencing him to twenty years in prison. Significantly, the Court awarded, in the same proceedings, a claim for compensation to three surviving victims. These victims had claimed the small, but for them not meaningless, amount of 670 euro. In deciding on the claim, the Court took into account the fact that the organic law of Rwanda also envisaged compensation. (5)

    It thus appears that there is increasing support to link, at the domestic level, prosecutions with reparations, whether in the form of civil claims attached to criminal proceedings, for instance in the Dutch case, or in the form of more administrative processes (as in Colombia).

  2. THE CONTRIBUTION OF INTERNATIONAL INSTITUTIONS

    The second proposition is that this is an area where international institutions can help. The Colombian or Dutch examples will not be followed everywhere. Also, it seems that compensation is more in the books than in action. That appears to be the case in Rwanda. (6) Moreover, the tasks at the domestic level are quite momentous. The Dutch case was relatively easy with three victims asking for modest amounts. But in most post-conflict situations, the numbers are large and the means of perpetrators will be limited. If there is a significant role for international institutions in supporting domestic efforts in criminal prosecutions, this a fortiori will be so with regard to reparation.

    For one thing, international institutions can develop creative incentives for domestic actors to provide for reparation schemes; for instance, by the prospect that absence of proper domestic reparation will lead to top-down obligations by human rights courts. International institutions also can provide critical knowledge to attorneys, who will have the prime responsibility to raise such issues before the courts and other actors. They also may help to provide financial and material means to actually deliver reparation.

    The possible contribution of international institutions to domestic reparations programs raises quite distinct questions that hitherto have hardly been subjected to fundamental conceptual and empirical examination. I will subsequently make a few observations on, first, the International Criminal Court (ICC) and, second, non-criminal courts.

    As to the ICC, the Statute of the International Criminal Court recognizes the link between prosecutions and reparation. Article 75(1) of the Statute provides that the Court "shall establish principles relating to reparations to victims." These principles should primarily guide the practice of the Court, which may provide for reparation for victims itself. (7) The question is whether these principles, or more generally the Court, can also play a role with regard to reparation at the domestic level.

    A key question in this respect is whether the complementarity principle of Article 17 of the Statute applies to reparations. Article 17 provides that complementarity is a relevant criterion for determining the admissibility of a case. From its wording, it is quite clear that what the drafters had in mind was that the criminal prosecution can be precluded if the case is being prosecuted at the domestic level. There is no hint of the possibility that the unwillingness or inability to provide reparation at the domestic level is relevant for the admissibility of a case.

    However, it may be argued that, in a more indirect way, perhaps by way of analogy, the criteria of unwillingness and inability should be relevant for the Court. First, they may be relevant to determining whether or not the Court will address questions of reparation at all, perhaps even as a matter of admissibility of claims for reparation. If full compensation has been provided domestically, should the Court allow claims for reparation at all? Second, even if the Court will allow such claims, domestic proceedings may be relevant in determining the level of reparation. In any case, with respect to material damage, the Court should not provide reparation to the extent that it has been provided domestically.

    There are good arguments for applying the complementarity principle in this way. Like prosecution, reparation is primarily to be executed domestically, a proposition that finds ample support in the case-law of the European Court of Human Rights. (8) The arguments that support complementarity in regard to prosecution apply even more forcefully here. What is, and what is not, meaningful reparation can best be determined domestically.

    Of course, it seems a rather unlikely scenario that a state is not able or willing to prosecute, but is able or willing to provide compensation. However, the possibility is not excluded altogether because, domestically, prosecution and reparation may be subject to different parts of law and different institutions.

    An open question on which the Court will have to do considerable work is identifying the principles of reparation that it will apply in determining the reparation that it itself will provide and assessing the relevance of domestic reparation. The Charter is silent on this question, and the Court will have to identify general principles of law and, arguably, should also take into account the domestic law of the state in question.

    Given the unlikelihood that the Court will find a case admissible, yet defer to prior domestic proceedings for questions of reparation, in practice the Court can play a more significant role through its policy of positive complementarity. (9) Given the fact that reparation...

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