Compensation for victims of mass crimes after all?
There’s a lot going on this month in the field of international law, including Switzerland, with the referral to the Federal Criminal Court of the former Vice-President of Syria, Rifaat al-Assad, for trial on charges of war crimes and crimes against humanity. Rifaat al-Assad is accused of having ordered, in February 1982, murders, acts of torture and cruel treatment as part of a widespread attack on the population of the city of Hama. The former Vice-President of Syria is now nearly 87 and living in his country. It will be interesting to see whether he travels to Switzerland for his trial.
There have also been recent legal developments, both in relation to the war between Israel and Hamas and the conflict between Ukraine and Russia. With regard to the conflict in the Middle East, on March 1 Nicaragua sued the Federal Republic of Germany before the International Court of Justice (ICJ), accusing it of providing political, financial, and military support to Israel, and also of ceasing to fund the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). On March 6, South Africa again asked the ICJ to order new provisional measures against Israel, without even holding a hearing “in view of the extreme urgency of the situation”. Finally, on March 11, an English lawyer, Andrew Cayley, was appointed by the Office of the Prosecutor of the International Criminal Court (ICC) to oversee investigations into the situation opened before the ICC on Palestine.
On the situation in Ukraine, about a year after Vladimir Putin was indicted for war crimes, the ICC issued warrants for the arrest of the head of Russia’s strategic air force, Lieutenant-General Sergey Kobylach, and the head of Russia’s Black Sea fleet, Admiral Viktor Sokolov, for war crimes and crimes against humanity. The ICC is focusing on Russian attacks on property and infrastructure and other inhumane acts in Ukraine, i.e. strikes on civilian objects that are not military targets (hospitals, schools). As well as attacks on military targets, causing excessive collateral damage and civilian casualties.
In Uganda, symbolic sums of money but many victims
The most explosive judicial news in recent weeks has come from an emblematic case before the ICC, that of Dominic Ongwen, the former Ugandan commander of the Lord’s Resistance Army (LRA), one of the most brutal rebel groups in contemporary African history. Ongwen himself had been abducted at a very young age and used for years as a child soldier by the LRA. The much-publicized trial therefore revolved around the question of the degree of responsibility of an LRA commander for the many atrocities he had committed, and whether his past as a child soldier outweighed his sentence. Dominic Ongwen was found guilty in February 2021 of 61 crimes qualified as war crimes and crimes against humanity committed in northern Uganda between 2002 and 2005. The ICC judges declared that they had taken Dominic Ongwen’s past as a child soldier into account, and sentenced him to 25 years’ imprisonment in May 2021. These decisions were subsequently confirmed in December 2022 by the ICC Appeals Chamber, and Dominic Ongwen was transferred to Norway to serve his sentence.
On February 28, 2024, the three judges of the ICC handed down a long-awaited decision in a public hearing: the reparations decision, which sets out Dominic Ongwen’s financial responsibility for the crimes of which he has been convicted. In this decision, the judges estimated the number of people who would be eligible to receive financial reparations at 49,772, which includes direct and indirect victims. Dominic Ongwen’s direct victims are those of the attacks carried out by him and his LRA men, as well as the child soldiers used by Dominic Ongwen and the numerous victims of sexual violence established in the case file, including victims of sexual slavery and forced pregnancy. Indirect victims include children born as a result of the sexual violence, the children of direct victims and the communities from which the victims come.
The judges announced a symbolic sum of 750 euros per victim, i.e. over 37 million euros. They added a sum of 15 million euros for collective measures to rehabilitate affected communities, and 100,000 euros for memorials and ceremonies, which makes a total of over 52 million euros. As Dominic Ongwen is indigent, the judges determined that the ICC’s Trust Fund for Victims (TVF) should fully provide the necessary sums, and also engage in fundraising to reach the full amount ordered. It was also decided that the TVF should submit a plan for the implementation of these reparations to the Chamber for approval by September 3, 2024. This decision to allocate over 52 million euros in reparations in the Ongwen case is unprecedented. The last reparations decision announced in August 2012 in the proceedings against the commander of the Democratic Republic of Congo, Thomas Lubanga Dyilo, had been set at less than 10 million euros. This new decision will therefore “break the bank” of the ICC, as it does not appear that the TVF currently has such funds at its disposal.
Hundreds of Dominic Ongwen’s victims gathered in Gulu, northern Uganda, to follow the decision live on screens provided by the ICC. The decision has raised legitimate expectations, and the ICC has a responsibility to live up to them.
Complex efforts
Another recent development, in a case in which I partook as a lawyer, highlights the complexity of efforts to compensate victims of mass crimes, in addition to how victims feel about the delay or non-payment of sums awarded by international justice. At the end of February 2024, it was reported in the press that the Chadian presidency had received the associations of victims of former president Hissène Habré and had announced that an envelope of 10 billion CFA francs (around 15 million euros) had been allocated to compensate the victims. This announcement comes almost seven years after the Appeals Chamber of the Extraordinary African Chambers, which tried Hissène Habré in Dakar for war crimes and crimes against humanity, ordered reparations to 7,396 identified victims. The total amount reaches around 130 million dollars, eight times more than the amount announced by the Chadian government in February.
Hissène Habré died in custody in September 2021, and no compensation had yet been paid to the victims, provoking the frustration and anger of many of them living in very difficult conditions in Chad, some of them passing away since 2017. Thus, how the Chadian authorities and those of the ICC will act on these latest announcements will be scrutinized with great attention this year, and not only by the Chadian and Ugandan victims concerned. The credibility of international justice as a whole is at stake if, after years of legal proceedings, victims of mass crimes are not promised compensation through court rulings, without being able to be sure that these sums will actually be paid out.
The article first appeared in French on Le Temps on the 18th of March, 2024.
Photo: International Criminal Court flag. Wikimedia Commons.
