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Comment on the Completion Strategy Question: “What might be some elements of an ICC completion strategy for situations under investigation?”
Continuing Victim Protection Should be an Integral Part of a Comprehensive ICC Completion Strategy
The Rome Statute’s failure to set forth conditions that the ICC must follow when suspending an investigation is a significant hinderance in the international tribunal’s attempt to strengthen the rule of law and enforce lasting respect for international justice.1 Without a comprehensive strategy in place that preemptively considers victim safety and protection before the ICC decides to initiate or withdraw from an investigation, victims of atrocities are left more exposed than before the ICC’s initial involvement. A completion strategy must install safeguards to ensure victims that engage with the Court are not subject to further abuses once the Court ceases to investigate; a failure to do so would be detrimental to the ICC’s mandate to ensure justice is enforced around the globe.
A look at the most prominent human rights conventions in effect around the world shows a long-held acknowledgement of a victim’s rights to protection and an effective remedy in the face of the most egregious human rights abuses. For example, Article 2 of the International Covenant on Civil and Political Rights recognizes:
Article 8 of the Universal Declaration of Human Rights similarly guarantees the right to an effective remedy by “competent national tribunals.”3 While the United Nations has made a promise to affirm and recognize remedies and reparations for victims of international human rights violations, ensuring “the international community keeps faith with the plight of victims, survivors and future human generations”.4
The Rome Statute, as it stands, certainly cares for and accords a victim’s right to protection within the four walls of an investigative proceeding; but the Statute does not articulate the Court’s responsibility toward and acknowledgment of that right should an investigation be suspended due to either a dearth of evidence or the Prosecutor’s inability or lack of jurisdiction to proceed. Article 68 of the Rome Statute instructs the Court to appropriately care for the “safety, physical and psychological well-being, dignity and privacy of victims and witnesses,” finding the “Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes.”5 While Article 75 of the Statute asks the Court to establish “principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” and allows the Court to order convicted persons to make such specified and appropriate reparations; Article 75, however, instructs that such reparations must be linked to actual criminal proceedings and not suspended investigations.6
In this comment, I seek to expand on previous recommendations for the ICC to adopt residual mechanisms for victim protection in the Court’s development of a completion strategy. In articulating a completion strategy, the Court should have a duty to ensure—to a reasonable degree—the stability and safety of victims whose abuses are not remedied by the international tribunal as a result of a suspended investigation. The Court should acknowledge possibilities that suspected abusers will retaliate against victims once the Court suspends an investigation and should therefore have a means to transfer all relevant information confidentially to capable local or national jurisdiction that has proven competent to support victims, or to a non-governmental organization (NGO) with the resources and initiative to fill gaps in the ICC’s victim protection measures.
It must be noted that addressing this problem is extraordinarily difficult due to the limited financial and personnel resources available to the ICC, the principle of complementarity that presupposes whether some national or local jurisdictions will even have a willingness or capability to assist with victim protection after the withdrawal of the ICC, and the possibility that requiring the ICC to assume some measure of victim protection after an investigation will result in indefinite responsibility in conflicts they are unable to prosecute. Thus, it is unlikely that any one recommendation for an ICC completion strategy will be adequate in ensuring the Court sufficiently stands for a victim’s right to protection during, and in the aftermath of, a suspended investigation. Rather, it is more likely that the Court must undertake a combination of strategies and assistance tailored to each unique situation in order to empower victims and instill safety and security, while simultaneously fostering ongoing trust in the ICC within the international community.
In assessing models of completion strategies that have prioritized victim safety, this comment looks at the examples set by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), as well as the mistakes and lessons learned from the truth commissions established following the human rights abuses in Timor-Leste. Though none of these models have been perfect, a desirable completion strategy should effectively include elements of all four.
A. Challenges in Installing Victim Safeguards After a Suspended Investigation
There are several challenges facing any attempt to prolong care and protection to victims once the Court engages in a completion procedure and ceases to move forward with an investigation. The period of time after the Court decides not to proceed in an investigation is likely filled with persistent anger, fear, and resentment among victims at an international system that was supposed to prioritize and give a voice to survivors of egregious abuses. A primary challenge facing the ICC is a lack of resources and personnel to oversee a transition of victim care from the Court to another capable body; a scarcity of resources compounds any potential solution that would mandate the Court undertake responsibilities to victims that could wind up being indefinite. Second, the principle of complementarity, ensuring the Court cedes jurisdiction to domestic bodies before stepping on nations’ sovereignty, further complicates the ICC’s ability to simply hand-off the responsibility of victim protection to national or local jurisdictions that did not stand against the human rights abuses occurring within their borders in the first place.7 Finally, in drafting a strategy for victim protection, the ICC must be wary of a strategy that gives the Court too much responsibility for victims once the Court chooses to engage in an investigation, lest the Court risks deterring investigators from opening an investigation to begin with. Any potential deterrence effect resulting from a complex completion strategy may be counterintuitive to the ICC’s mandate of enforcing international justice.
II. Case Studies
A. The ICTY, ICTR, and SCSL’s Residual Mechanisms
The ICTY and the ICTR, established after the mass brutalities suffered in former Yugoslavia and Rwanda respectively, were temporary ad hoc international criminal courts.8 In 2010, a UN Security Council Resolution established the International Residual Mechanism for Criminal Tribunals (Mechanism) with branches for both the ICTY and the ICTR.9 The Mechanism was created largely with the forward vision of maintaining the legacies of the ICTY and the ICTR and contains sections tasked with assuming victim and witness protective measures in order to supplement the ICTY and the ICTR’s development of “long-term plans for witnesses afraid of retaliation.”10 The UN gave the Mechanism the ongoing prerogative:
The Mechanism’s commitment to victims includes procedures to ensure non-disclosure of witness identities and the ability to assist with temporary or permanent victim relocations.12 While neither the ICTY nor the ICTR instituted proactive completion strategies before the investigations in their respective jurisdictions began, they did allow the Mechanism to begin operating before the tribunals closed in anticipation of the victim and witness assistance that would be needed and better-off in the face of a seamless transition.13
A second example of residual mechanisms connected to a tribunal’s completion strategy can be seen in the SCSL. Established in 2002 following pervasive and methodical human rights abuses by the Revolutionary United Front within Sierra Leone, the SCSL was a short-term tribunal initiated with long-term goals, including the need to provide some measure of support to victims.14 The formation of the SCSL’s “Legacy Phase Working Group,” at the outset of the tribunal’s creation, prioritized the public legacy of a court that was always intended to be temporary. The Residual Special Court for Sierra Leone (RSCSL) was likewise established to create a smooth transition from the SCSL to a second body comprised of individuals representing different organs of the tribunal and focused on the remaining moving parts upon conclusion of the SCSL’s mandate.15
B. Lessons From the Timor-Leste Truth Commissions
Timor-Leste’s inability to prosecute suspects from the violence that culminated from 1974 to 1999 is a paradigmatic example of an instance where a prosecutorial investigation for atrocious human rights abuses was stalled, leaving victims without legal redress.16 In Timor-Leste, the individuals responsible for the mass atrocities—which included aerial bombings, forced displacements, torture and the disappearances and mass killings of over 18,600 people—fled to Indonesia and out of reach of Timor-Leste’s legal arm and ability to extradite suspects.17 In 2002, the Commission for Reception, Truth and Reconciliation in East Timor (CAVR) was formed and tasked with disclosing the truth about the human rights violations that occurred in Timor-Leste within the aforementioned twenty year period, including recommending and responding to the continuing needs of victims. CAVR’s work, which culminated with a report in 2004, sought to identify victims and engage survivors in “healing workshops” and other reconciliation services.18 In theory, the attention paid to victims in Timor-Leste is a valuable example, but the establishment of such a truth commission is far from a faultless model for the ICC to emulate. In 2005, the governments of both Timor-Leste and Indonesia formed another commission, the Commission for Truth and Friendship (CTF), in an attempt to accelerate the recovery process between the two governments. However, as a result of this unique process, files that were held and made available by the Special Crimes Unit, exposed victims’ confidential information without preemptively ensuring witness protection systems were in place to guarantee witness and victim safety.19 Groups such as Amnesty International have since further emphasized holes in attempts to assist victims in Timor-Leste by calling out the Timor-Leste and Indonesian governments for failing to even institute the victim assistance recommendations put forward by CAVR, CTF, and other fact-finding commissions.20
This comment acknowledges the mere impossibility of creating a one-size-fits-all solution to address how the ICC should assist victims after an investigation is suspended. While one recommendation on its own may not be sufficient in creating a successful completion strategy that prioritizes victim safety, this comment takes the position that several of the following recommendations taken together should be considered necessary. First, the ICC should only undertake investigations if there is a post-involvement procedure in place to deal with the aftermath of any ICC engagement with a witness or a victim. In order to avoid deterring the Court from speaking with victims in the first place, the post-involvement procedure should only be as detailed as necessary based on the special circumstances and the particular vulnerability and exposure of victims due to any engagement with the Court. Investigations that are stalled or suspended before heavily involving victims would therefore not require as comprehensive a completion strategy compared to an investigation where extraordinary amounts of confidential information have been disclosed and recorded.
Second, the ICC must learn from the ICTY, the ICTR, and the SCSL, and the ways in which these temporary tribunals engaged with affected communities in a unique and targeted manner. Simply increasing the ICC’s field presence and/or field offices is idealistic given the ICC’s lack of financial resources to send personnel to whatever region of the world the ICC has chosen to involve itself. Developing partnerships with local NGOs at the start of an investigation would be beneficial in two ways: for one, an investigation can likely benefit from local knowledge and resources from on-the-ground organizational staff with institutional experience, and second, such partnerships would allow the ICC to immediately engage with and hand-hold victims should the Prosecutor decide to suspend an investigation altogether. Fostering trust and familiarity between victims and a local NGO as an investigation proceeds would likely streamline a transfer of confidential information and protective services from the Court to local communities in a safer and more efficient way. As seen by the SCSL, residual mechanisms that take place locally are much more likely to be seen and utilized by victims.21 Moreover, in instances where suspected aggressors flee the reach of the ICC, as in the case of the abuses suffered in Timor-Leste, the ICC should have the fluency to assist victims in finding healing workshops or other easily facilitated support programs that can thrive in locations where a threat may no longer be present despite the ICC’s withdrawal. Other support systems the ICC should institute include: witness protection programs, developing partnerships with states that may help with victim relocation, keeping victims apprised of the whereabouts of their accusers if they are being tried in a local or different jurisdiction, and means by which the ICC or a state or non-state actor can remain as a point of contact for victims who wish to be kept aware of any changes that occur after the suspension of an investigation or the transfer or release of confidential information that may leave them exposed and vulnerable. In the transferring of confidential victim or witness information, the ICC should specifically inform such individuals of the process and protections in place to ensure the security of such information. A blanket policy to hand-off sensitive information to a domestic tribunal, for example, could prove to be plainly inadequate.
The ICC must prioritize the protection of victims whenever an investigation is suspended. A failure to do so will likely effectuate long-term consequences for an international tribunal that depends on victim participation in order to carry out its directive. It may be argued that the mandate of the ICC is to prosecute international crimes—not care for victims—and therefore, a lingering responsibility for victims detracts from the ICC’s role and responsibility in enforcing international justice. However, this narrow view ignores the fact that victims are the ones who are most heavily invested in the ICC’s success and should not be punished or further exposed as a result of a stalled investigation into abuses that they have suffered. A completion strategy that includes victim protective measures is essential if the ICC truly values incentivizing victims to come forward and participate in investigations. Deterring victims from speaking out about the violence and abuses they have suffered will only create setbacks for the Court rather than make the international tribunal a safer and more responsive body of justice.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩
International Covenant on Civil and Political Rights, UN G.A. Res. 2200A (XXI), 999 U.N.T.S. 171, Art. 2(3) (Dec. 19, 1966, entered into force Mar. 23, 1976), available online. ↩
Universal Declaration of Human Rights, UN G.A. 217(A)(III) (Dec. 10, 1948), available online, archived. ↩
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, UN Doc. A/RES/60/147 (Dec. 16, 2005), available online. ↩
Rome Statute, supra note 1, at Art. 68. ↩
Id. at Art. 75. ↩
Id. at Preamble. ↩
Statute of the International Tribunal for the Former Yugoslavia, S.C. Res. 827 (1993), UN Doc. S/RES/827 (Sep. 2009), available online.
Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, UN Doc. S/RES/955, Art. 20 (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩
Statute of the International Residual Mechanism for Criminal Tribunals, S.C. Res. 1966, UN Doc. S/Res/1966, Annex 1 (Dec. 22, 2010) [hereinafter IRMCT Statute], available online. ↩
See Witnesses, IRMCT, available online (last visited Feb. 18, 2020). ↩
IRMCT Statute, supra note 9; Kevin Jon Heller, Completion Strategies and the Office of the Prosecutor (Jun. 26, 2009), in International Prosecutors 886 ( Luc Reydams, Jan Wouters & Cedric Ryngaert eds., 2012), available online ↩
Special Court of Sierra Leone, Ninth Annual Report of the President of the Special Court for Sierra Leone 37 (Oct. 3, 2012), [hereinafter SCSL Report], available online. ↩
Id.; Dafna Gozani, Beginning to Learn How to End: Lessons on Completion Strategies, Residual Mechanisms, and Legacy Considerations from Ad Hoc International Criminal Tribunals to the International Criminal Court, 36 Loy. L.A. Int’l & Comp. L. Rev. 331 (Apr. 1, 2015), available online. ↩
Dominique le Touze, Derrick Silove & Anthony Zwi, Can There Be Healing Without Justice? Lessons from the Commission for Reception, Truth and Reconciliation in East Timor, 3 Intervention 192, 192–97 (2005) [hereinafter Healing Without Justice?], available online. ↩
Id. at 193; Amnesty International, ANTI & KontraS, Timor-Leste/Indonesia: Calls on Truth and Reparation Made by Bilateral Truth Commission “Ignored,” (Jul. 17, 2013), [hereinafter Calls Ignored], available online. ↩
Healing Without Justice?, supra note 16, at 192–95. ↩
Caitlin Reiger & Marieke Wierda, ICTJ, The Serious Crimes Process in Timor-Leste: In Retrospect (Mar. 2006), available online. ↩
Calls Ignored, supra note 17. ↩
SCSL Report, supra note 14. ↩