As noted above, in the face of mass atrocities states have the obligation to provide protection to their populations including support and redress to victims. Victims’ rights to a remedy is well enshrined in international humanitarian law510 and in a number of
international human rights standards including the International Covenant on Civil and Political Rights,511 the International Convention on the Elimination of All Forms of
Racial Discrimination,512 the Convention against Torture,513 and the Convention on the
Rights of the Child.514 Therefore, states have a duty to provide remedies to victims
under their jurisdiction. As Bassiouni comments:
The provisions of a remedy and reparations for victims of these violations is fundamental component of the process of restorative justice. To this end, states and their national legal systems serve as the primary vehicle for the enforcement of human rights and international humanitarian law. Accordingly, the existence of a state’s duty to provide a remedy and
509 For more discussion on national and international prosecution, see Cherif M. Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’. Op.cit.
510 State’s duty to provide reparations to victims of violation of International Humanitarian law is grounded in the Hague Convention Regarding Laws and Customs of Warfare, the Four Geneva Conventions of 12 August 1949 and the Additional Protocols of 1977.
511 ICCPR, Article 2. 512 Article 6. 513 CAT, Article 14.
514 CRC, Article 39. In relation to the victim’s rights under international human rights law, see ICRC, ‘International Legal Protection of Human Rights in Armed Conflict’.
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reparations forms a cornerstone of establishing accountability for violations and achieving justice for victims.515
While a state’s duty with regard to protection of civilians is well grounded in both conventional and customary law, the issue of reparations remains a big challenge. The Permanent Court of International Justice in 1927 recognized in the Chorzow Factory
Case that states have a duty to provide reparations to victims stating that: ‘It is a
principle of international law that the breach of an engagement involves an obligation to make reparations in adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself’.516
Few efforts have been undertaken by states to provide support and reparation to victims of mass atrocities and this aspect has been considerably neglected. However, the international community has been increasingly concerned with encouraging domestic authorities to punish the perpetrators of the mass atrocity crimes and to provide reparation to the victims of such acts.517 One of the achievements of the ICC
is that its mandate includes holding accountable those responsible for genocide, war crimes and crimes against humanity and providing support and reparation to victims.518 While the Nuremberg Tribunal and other previous international criminal
tribunals were concentrated on perpetrators and their rightful punishment, the ICC gives victims the right to material assistance and reparations.519 The Rome Statute
makes clear that victims’ rights include obligation to take protective measures and assistance. Article 43 (6) of the Rome Statute states that:
515 See Cherif M. Bassiouni, op. cit.
516 See Factory at Chorzow, (Germ. V. Pol), 1927 P.C.I.J (Ser. A) No. 9, July 26, at 4.21. 517 See Cherif M. Bassiouni, op. cit.
518 Rome Statute of the ICC, Article 75. 519 See Antonio Cassese, op. cit.
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The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.520
The Rome Statute provides that ‘The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’.521 Under Article 75 the court may determine the scope and extent of any
damage, loss and injury to the victims, and can order convicted persons to make appropriate reparations including restitution, compensation and rehabilitation.522 This
article states:
1. 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.
2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.
The statute also provides for the creation of a trust fund for the benefit of victims and their families by decision of the Assembly of States Parties523. However, the
520 Rome Statute of the ICC, Article 43 (6). 521 Rome Statute of the ICC, Article 68 (1).
522 ICRC, International Legal Protection of Human Rights in Armed Conflict, op. cit. 523 Rome Statute of the ICC, Article 79 (1).
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operationalization of victim reparations at the ICC faces numerous challenges. For example, in most of the cases which require reparation, states or individuals are unable to provide redress to the victims. Moreover, reparations will only be granted to victims of crimes for which a person has been convicted. Consequently, the victims of crimes that the prosecution has failed to prove are excluded from reparations. According to the ICRC report:
The criminal punishment of war criminal takes places once atrocities have been committed, and other several years after the events, but the victims’ needs are immediate and require that mechanisms be used which can prevent violations and/or halt them during the hostilities. Provision must also be made for procedures guaranteeing that the harm that has been suffered will be recognized and that due reparation will be awarded effectively and rapidly.524
In many cases victims of mass atrocities remain helpless given the fact that the ICC’s prosecutorial strategy focuses on a limited number of crimes committed by small groups and many victims are ineligible for reparations.525 As Rehn comments:
We cannot and should not expect that the ICC and the Trust Fund take over the responsibility of States to properly look after their own victimized populations. Governments in situation countries maintain the responsibility to ensure reparative, restorative and transformational justice on their own territories. If so desired, the international community can play a supporting role. The Trust Fund for Victims may then serve as a source of experience and expertise.526
524 ICRC Report, op.cit.
525 See Chris Tenove, ‘The International Criminal Court: Challenges of Victim Assistance, Participation and Reparations’, The Africa Portal, Backgrounder, No. 52, January 2013.
526 Elisabeth Rehn, Speech given on Wednesday 21 march 2012 on the occasion of the 9th Annual Board Meeting, The Trust Fund for Victims.
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This statement is logical since the ICC can only exercise its jurisdiction where the state of which the accused is a national, and is unable or unwilling to prosecute according to the principle of complementarity. Nevertheless, the Trust Fund for Victims has provided assistance to several thousand victims in Uganda and the Democratic Republic of the Congo. Some programmes were therefore developed to help victims to rebuild their lives and to regain their dignity.527
However, some writers such as Bassiouni emphasise others mechanisms of reparations which include historical record of the wrongful acts and a public acknowledgement of the violations. As he comments:
Monetary compensation should not, however, be deemed the only available remedy. Non-monetary forms of compensation should also be developed, particularly in societies where the economy is unable to absorb the loss of large monetary sums. The various modalities of reparation do not exclusively involve some form of valuable consideration or social service to redress a past harm. Rather, reparation could also include an accurate historical record of the wrongful acts and a public acknowledgement of the violations.528
While such mechanism may certainly help to redress the harm in the long term, in most of the cases, victims are in actual need of aid to rebuild their life.
4.6 Chapter conclusions
Despite the rules laid down by international humanitarian law and human rights law to protect civilians against the effect of hostilities, thousands of civilians are nevertheless deliberately targeted by armed groups. Civilians continue to be victims of violence
527 See The Trust Fund for Victims, Speech given on Wednesday 21 March 2012 on the occasion of the 9th Annual Board Meeting by Ms Elisabeth Rehn, Chair of the Board of Directors of the Trust Fund for Victims. 528 See Cherif Bassiouni, op. cit.
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causing serious bodily and mental harm through rape, torture, killing, abduction and forced displacement. Unfortunately, in modern conflicts, civilians being targeted by state and non-state forces has become a rule rather than the exception.529 This has
been an increasing and alarming phenomenon. As the preamble of the Rome Statute reminds us ‘millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’. Putting an end to impunity and thus contributing to the prevention of futures crimes was one of the major goals of the ICC.
As indicated throughout this chapter, international humanitarian law, international rights law and international criminal law provide extensive protection to civilians against atrocity crimes. However, numerous challenges impede the implementation of humanitarian and human rights rules. The challenges are summarized best in a recent ICRC report which acknowledged that the inability to respect the fundamental rules of international humanitarian law applicable to protection of civilians against the effect of hostilities continue to be the predominant cause of civilians’ suffering during armed conflict.530 The report argued that the perennial problem is not the insufficiency or
absence of rules but the lack of adequate infrastructures for the implementation of the law coupled with lack of political will. It further identified several consequences in human terms due to the reality of current armed conflicts which are characterized by commission of atrocity crimes against civilians.
As demonstrated above, the responsibility to prevent and to protect mass atrocities articulated in R2P is firmly grounded in international law. Moreover, there is a
529 See for example Children and Armed Conflict: A Guide to International Humanitarian and Human Rights Law , International Bureau for Children Rights available at http://www.ibcr.org/editor/assets/Conflict_Eng.pdf International Humanitarian and Human Rights Law », International Bureau for Children Rights, p. 5.
530 ICRC, ‘Strengthening legal Protection For Victims of Armed Conflicts’ 31st International Conference Of the Red Cross and Red Crescent, Geneva October 2011, 31IC/11/5.1.1.
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commitment on behalf of the world community to continue to consider the R2P as a developing norm which requires states to prevent and protect populations from mass atrocities. Since prevention of mass human rights atrocities constitutes the main dimension of R2P, both individual states and the international community are required to build capacity to protect population from mass atrocities. Therefore, the R2P framework requires individual states to take adequate measures to prevent the acts that it addresses and the international community to take concrete action to assist states to prevent atrocity crimes. However, in the situation that preventive measures have failed and mass atrocities have occurred, under R2P pillar 3 the international community should react in timely and decisive manner in order to halt mass atrocities and to make sure that the perpetrators are punished. The implementation of these requirements is, as will be seen in the coming chapters, crucial in strengthening the protection of civilians from mass atrocities. While R2P was conceived to address conflicts characterized by the commission of mass atrocities, it remains unclear when and how it should apply to such conflicts. This affirmation will be investigated in the Democratic Republic of Congo case study in the following chapters.
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