Challenges Faced by the International Criminal Court in Assessing Reparations – Cambridge International Law Journal

Background of Sexual and Gender-based Violence in Sudan

The United Nations reported that on 15 April 2023, the capital of Sudan, Khartoum, noticed the beginning of armed battle between the Fast Assist Forces, which was initially created by former Sudanese President Omar al-Bashir (Bashir), and troopers from the Sudanese Armed Forces. These occasions in Sudan have as soon as once more introduced into focus the query of how the Worldwide Felony Courtroom (ICC) ought to method reparations for sexual and gender-based violence (SGBV).

SGBV towards girls has been a pervasive theme all through the current conflicts in Sudan. That is mirrored in a number of ICC instances similar to Ali Kushayb and Bashir. The Workplace for the Coordination of Humanitarian Affairs (OCHA) discovered that initially of the current battle in Sudan on 15 April 2023, an estimated 3 million girls and ladies had been vulnerable to SGBV (inclusive of intimate accomplice violence). In July 2023, the OCHA estimated that this determine elevated to 4.2 million, with the UN Inhabitants Fund reporting an additional development to six.2 million as of Could 2024. However justice in Sudan might be exhausting to search out given Sudan’s ‘turbulent political transition’ in recent times and a ‘lack of political will and the absence of an unbiased judicial system additional contributed to entrenching whole impunity, significantly for these most chargeable for critical crimes’.

Because of the dysfunction of the home justice system in Sudan, the potential for the ICC offering justice to victims of SGBV assumes even larger significance. Liesbeth Zegveld highlights, ‘with the institution of the ICC, for the primary time in historical past, people can submit claims of a non-public regulation nature to a global courtroom’. By means of a comparative evaluation of worldwide human rights regulation and transitional justice mechanisms, it’s argued that the ICC ought to proceed to develop jurisprudence that considers the compounding elements of hurt affecting victims of SGBV, when assessing the perpetrators legal responsibility. This can be certain that reparations extra precisely mirror the total extent of the hurt prompted to victims. Additional, this may help in bridging the hole between the expectations of victims and the reparations they obtain, with out detracting from the felony prosecutorial perform of the ICC.

Felony Duty and its Affect on the Reparations Awarded by the ICC

Article 75(2) of the Rome Statute of the Worldwide Felony Courtroom permits the ICC to make an order for reparations ‘straight towards a convicted individual specifying applicable reparations to, or in respect of, victims, together with restitution, compensation and rehabilitation’. In Lubanga, the ICC dominated that reparation orders should not transcend the crimes for which the perpetrator is convicted and may solely be awarded to those that are recognised as victims by the ICC. Katanga equally recognises that reparations proceedings are ‘remedial and never punitive’. As such, the extent of reparations awarded is straight associated to the scope of the conviction.

The method of the ICC as demonstrated in instances like Katanga and Lubanga contrasts with the broader method to reparations by human rights courts just like the IACtHR, which awards reparations towards the state to treatment the hurt prompted to victims with out limiting them to the felony legal responsibility of a person. The IACtHR’s method displays the standard place of transitional justice, whereby the state and the perpetrator are each answerable for violations of worldwide human rights regulation. This poses an added dimension of problem for the ICC, as not like different worldwide human rights courts, the rulings of the ICC don’t impose a direct obligation on states to implement reparations.

Though Lubanga held that the indigence of the perpetrators doesn’t influence their legal responsibility, it’s usually the case that there are difficulties in tracing and recovering belongings. That is significantly vital within the context of reparations, as tracing and seizing belongings is crucial to offering monetary sources to the ICC in order that it could present ample reparations to victims.

In Bemba, Jean-Pierre Bemba was in possession of a broad portfolio of belongings, a few of which had been frozen by the ICC within the train of its powers to take protecting measures below Article 57(3)(e) of the Rome Statue. Though Jean-Pierre Bemba was discovered to not be indignant, there have been difficulties in retrieving a few of these beneficial belongings. While the ability to hint and seize belongings is a vital instrument within the restorative goals of the ICC, there must be larger consideration of how the ICC will cooperate with states to implement seizure orders in order to help in funding reparations for victims.

The ICC in Lubanga, in recognising the success of the Courtroom was tied to the success of its reparations mandate, requested ‘cooperation to all States Events to determine, hint, freeze or seize the property and belongings of Mr Thomas Lubanga Dyilo on the earliest doable alternative…’. That is in step with Article 109(1), which obliges states to provide impact to fines ordered by the ICC. Article 109(2) states that if a ‘State Celebration is unable to provide impact to an order for forfeiture, it shall take measures to get well the worth of the proceeds…’. This can require the motion of nationwide courts to implement these orders. Redress highlights that neither the Rome Statute nor the Guidelines of Process and Proof explicitly determine the physique that’s to be chargeable for monitoring the progress of reparations claims as soon as the awards have been made by the ICC. Redress advocates for the larger involvement of the Workplace of the Prosecutor at this stage and for it to take a extra proactive method in figuring out belongings and looking for cooperation from states. Additional, for the continued involvement of the Sufferer Participation and Reparations Part and the Public Council Unit for Victims to make sure that victims have the suitable authorized illustration all through the enforcement stage. These measures will help in making certain that states meet their obligations below the Rome Statute and the advantages of reparation orders made by the ICC are realised by the victims.

Such suggestions are helpful, as a scarcity of economic sources to supply ample reparations may end up in a disconnect between the expectations of victims and the reparations they obtain and as such it’s essential that every one the irritating elements of hurt are appreciated. This can help the ICC in maximising the effectiveness of the reparations which are granted.

Using an Intersectional Framework within the Evaluation of Reparations

Oxford regulation professor Sandra Fredman highlights the utility of an intersectional method the place a ‘one who is discriminated towards on grounds of her race may additionally undergo discrimination on grounds of her gender, her sexual orientation, her faith or perception, her age or her incapacity. Such discrimination can create cumulative drawback’. These compounding elements of hurt affecting victims of SGBV are evident within the instances earlier than the ICC.

The ICC has developed considerably in its capacity to think about intersecting elements when assessing the extent of particular person felony accountability of perpetrators, and as such, the suitable extent of reparations. That is displayed by the primary publication of the ICC Coverage Paper on Sexual and Gender-Primarily based Crimes in 2014 and the ICC Coverage on Kids in 2016.

In earlier instances, the ICC confronted challenges in making use of an intersectional lens when assessing hurt. Bashir highlights that all through the Darfur battle in Sudan (March 2003 till July 2008), Bashir’s navy would goal civilians, sometimes from the Zaghawa, Fur and Masalit ethnic teams. The ICC Pre-Trial Chamber inBashir said that there have been cheap grounds to conclude girls from these ethnic teams had been topic to SGBV by the hands of the Sudanese navy and the Janjaweed. Nonetheless, as Gregor Maučec argues, the ICC didn’t view these elements by means of an intersectional lens however relatively utilized a one-dimensional evaluation, viewing the ethnic and gender dimensions of the offences as separate.

Lubanga, which involved conscripting youngsters below the age of 15 years within the Democratic Republic of Congo, handled the sexual abuse of younger ladies who had been used as troopers within the battle. The intersection of age and gender meant that younger ladies had been at a larger danger of SGBV throughout the context of the battle. The ICC Prosecutor didn’t think about the issue of gender, and in flip, failed to help the ICC in its capacity to evaluate the aggravated nature of the discriminatory violence. Adopting an evaluation with a larger emphasis on intersectionality would have assisted the prosecution in understanding how, and to what extent, the varied social elements of discriminatory violence worsen each other and whether or not these elements resulted in a larger danger of SGBV for lady troopers. This could have supplied larger readability to the character and severity of felony accountability and due to this fact the right nature of the reparations.

While instances similar to Bashir and Lubanga show the adoption of a extra uni-sectional evaluation relatively than incorporating an intersectional lens, Ntaganda represents a constructive growth on this regard.

On 8 July 2019, the ICC discovered Bosco Ntaganda responsible of 18 counts of struggle crimes and crimes towards humanity, dedicated in Ituri, Democratic Republic of Congo between 2002-2003. The appliance of an intersectional method is mirrored in Ntaganda, whereby the Trial Chamber states that the courtroom ‘ought to have in mind the existence of earlier gender and energy imbalances, in addition to the differentiated influence of hurt relying on the sufferer’s intercourse or gender id’. This implies that the ICC is extra successfully incorporating an evaluation of how the overlapping identities of victims are a vital facet of the SGBV they skilled. This method performed a key position in Bosco Ntaganda being the primary individual to be convicted of sexual slavery by the ICC. It’s made clear by the Trial Chamber in Ntaganda {that a} gender-inclusive and delicate method ought to ‘information the design and implementation of reparations on the Courtroom and each step of the reparation course of’. This means the ICC’s appreciation how a number of harms attributable to discriminatory violence are a related consideration each when making an correct dedication on the legal responsibility of perpetrators, and due to this fact the reparations because of victims, in addition to the interval after such awards have been made.

The popularity by the ICC of the utility of this method is additional mirrored within the ICC in its 2022 Coverage on the Crime of Gender Persecution, which shows a developed consciousness of the significance of intersecting elements together with, ‘political, racial, nationwide, ethnic, cultural, non secular or gender id’. As such, the ICC persevering with to develop an intersectional lens when assessing crimes of SGBV will help in offering significant reparations that mirror the complicated dimensions of id that needs to be thought-about collectively by the ICC in making determinations on the compounding elements of hurt.

In abstract, the ICC’s insurance policies are aware of SGBV. As seen in its current resolution in Ntaganda, the ICC adopting an intersectional method could make a substantive distinction to the choice it reaches. Nonetheless, additional judicial growth is required to affirm whether or not the ICC has integrated an intersectional dimension into the material of its evaluation of the guilt of the perpetrator and whether or not this interprets into ample reparations for victims.

Raiff Andrews has additionally printed on the regulation of property and fairness.