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Transcript Ep 2 – It’s not about the money, says Lorraine Smith van Lin

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Lorraine Smith van Lin

For victims reparation is not just money. It is important and I don’t want to make light of it. But that for victims, it is so much more than just money.

[INTRO TUNE]

Justice plays an important role.

I consider this tribunal a false tribunal and indictments, false indictments.

Such abhorrent crimes should not go unpunished.

Proceedings will be long and complex.

All rise.

Janet H. Anderson

Hi, welcome to Asymmetrical Haircuts, a different view on International Justice with me, Janet Anderson.

Stephanie van den Berg

And me, Stephanie van den Berg. You’re here because you’re interested in The Hague and justice and you want to hear insights from a couple of journalists with asymmetrical haircuts, which would be us.

Janet H. Anderson

Along with our female guests, who also share our desire to explain how and why justice actually happens for atrocity crimes. And today we’re recording at Humanity Hub in The Hague, and you can hear maybe some office noises behind us. And we have with us Lorraine Smith van Lin from REDRESS. Hi, Lorraine!

Lorraine Smith van Lin

Hi, lovely to be here.

Janet H. Anderson

And we’re going to talk about the very knotty, very complex issue of reparations. So just to start with Stephanie, as the journalist explaining stuff, what are reparations?

Stephanie van den Berg

Reparations are when after a conviction in a trial, the judge awards damages or some money or other things to victims who are recognised victims of that crime.

Janet H. Anderson

Sounds like a good thing. Things going well, at the International Criminal Court with reparations? They’ve had a few trials, are people getting some money?

Stephanie van den Berg

Not quite. It’s uh… they had three cases where people are in the reparations stage as the ICC calls it, but they’re not really seeing a lot. It’s taking a long time. And that’s part of what we want to talk today about.

Janet H. Anderson

Okay, so, Lorraine, what do we need to know about reparations and the International Criminal Court?

Lorraine Smith van Lin

Well, first of all, I think we need to know that reparations is a right of victims who appear before the ICC. In Article 75 of the Statute, which establishes the court, the Rome Statute, it provides for reparations for victims of the crimes within the court’s jurisdiction, and that judges are able to make such orders. And reparations are important for victims because they are essentially not only what victims seek, but they are important because it’s a way of remedying the harm that victims have suffered as a result of the crimes. And I would pause to say that reparations are not only about money, and I think that’s a little bit the misunderstanding that people have. 
Reparations has several prongs. It could take, for example, the form of an acknowledgement that victims have suffered harm. So for example, in the case of Al Mahdi, which is one of the cases currently before the ICC arising from Timbuktu in Mali. Yes, you also had an acknowledgement that the artefacts were destroyed. These are really important to victims as well, cultural heritage is also very important. It can also take the form of guarantees of non recurrence, that for example, a state has to indicate that it will not do the same action again. And obviously, compensation is one form of reparations. But as I said, it’s not the only form.

Janet H. Anderson

How do they get this right, that you’ve described in order to get some form of reparation? How did they become a victim?

Lorraine Smith van Lin

Well, firstly, it begins with an understanding of the ICC structure, the fact that the ICC has jurisdiction over certain types of crimes. So for example, crimes against humanity, war crimes, genocide, and to some extent now, well, the crime of aggression, more recently. In respect of those crimes that it has jurisdiction over… victims of those crimes, who are also victims of the crimes for which this specific person has been charged and convicted by the court are able to apply to the court for reparations. 
How do they do this? In the beginning, they are able to apply to participate in the proceedings, to share their views and concerns and to appear in the case as interested parties. They don’t have to in order to apply for reparations, but they may. And many victims find that that process is also healing and reparative for them. But if they choose only to apply for reparations, they do that by using a form in which they indicate that they want to apply for reparations. And that form is administered by the registry, which is the administrative section of the court and a particular section, the registry, the victim participation and reparation section that, you know, provides these forms make it available online for victims. 
We have to say that, over the years, that process has not gone the best way. 

Janet H. Anderson

What do you mean?

Lorraine Smith van Lin 

It has been difficult because it has moved from a 20 page form… [LAUGHTER] And at some stage, it was one page. And it has been difficult for victims to figure out which form should be used for which case.

Stephanie van den Berg

Just to come back to the beginning. There’s one point that you make that I want to lift up, which is really important, which gets misunderstood a lot. That reparations can only be given to victims of the crimes that somebody is actually convicted for. So even if the court finds there are crimes or that people were victims of crimes, if the person is not convicted for that specific crime, those victims cannot apply for reparations. And this is a bone of contention at the ICC as well. 

Lorraine Smith van Lin

It is. It is a really difficult issue because usually the number of victims of a particular situation or case that the ICC is investigating may actually be reduced by the time you get to the victims who are eligible for reparations, because only those that have been victims of the crime for which the person has been convicted. 
Let’s use a more concrete example. If for example in as in the case of Lubanga, which is the first case before the ICC arising from the ICC is investigations in the crimes in the Congo. Lubanga was charged with recruiting and using child soldiers. But there were… but and only that. But what you have is you had evidence coming from girl soldiers, from persons who were victimised as women, but no crimes of sexual violence were brought before the court. And even though it was the court accepted that there was in fact, these crimes of sexual violence. Because he was charged with with them using child soldiers and convicted of that. Reparations is limited to the victims who are the victims of the child soldier related crimes and not any victims of sexual violence.

Janet H. Anderson

So you can have millions involved in a big lot of wars in a place… you can have thousands of people who’ve been affected in a specific area where the investigations have happened. But then you may end up only with hundreds, tens, of people, who are actually relevant to the very specific crime. Really feels very unfair.

Lorraine Smith van Lin

It does. And this is why the reparations mandate of the court is, in some ways, I suppose, complemented by the Trust Fund for Victims, which has been set up as the sort of quasi administrative body to implement reparations. That body, the Trust Fund for Victims was established by the Assembly of States Parties, which is the courts governing body of states. And to implement reparations, but also to have a broader mandate, which is the assistance mandate, which provides assistance to victims of crime within the court’s jurisdiction, but who may not be victims of this specific crime for which one person has been charged. 
Because you can understand Janet, that if you have victims, and the prosecutor charges very narrowly, based on her investigations, and she exclude several different types of crimes, and you have this massive pool of victims. The question then arises, what of them? These could be people who live next to each other in the same village, but because of the difference in the charges, they are not eligible?

Janet H. Anderson

I’m also thinking how incredibly complex it must be for victims on the ground to understand all of this. They’ve got forms to fill in, and then they’ve got all these different processes going on. So it feels difficult, complex, badly organised? Is that really how it works, Lorraine?

Lorraine Smith van Lin

I would say no, I thought the court institutionally has a structure in place to assist victims. So firstly, you have the registry, which I mentioned before, and the specifically the victims participation and reparation section of the registry. That is mandated with ensuring that victims are able to participate and also able to apply for reparations. They are pretty good also in collecting data about victims to make sure that the court has enough information about the scope of the victimisation. So you have that body. In addition, the ICC has provisions under its rules for victims to be represented by counsel. So legal representatives of victims play a key role in informing the victims, who are their clients, about the processes at the court, including the possibility of applying for reparations. So that facilities also there. Thirdly, you have this administrative body, which is the Trust Fund, which has a an independent mandate to assist victims, but also to inform victims. And of course, the court has a broad overarching responsibility as part of its outreach strategy to inform victims about their rights at the court. 
So with these structures in place, of course, what you need now and something we have mentioned, is synergies. They need to work together to ensure that victims have the information that they need.

Stephanie van den Berg

So Lorraine, who is we when you talk about reparations and what you recommend and what you find?

Lorraine Smith van Lin

Well, I work for Redress and Redress is an international human rights organisation that has focused for years on ensuring justice for torture victims and victims of gross human rights violations. Redress was actually started by a torture survivor 25 years ago. And our mandate is to ensure that victims of these crimes, get justice and get reparations and so we represent them in national and international courts to make sure that whatever needs to happen to standardise laws concerning justice, I mean, reparations are standardised.

Stephanie van den Berg

You’re actually one of the authors of the Redress report No Time To Wait: Realising Reparations for Victims Before the International Criminal Court. This is a bit of a depressing read. We’re talking a lot about synergies, but you’re also kind of indirectly addressing the judges. What can the ICC judges do better?

Lorraine Smith van Lin

One of the things that we’ve said in the report and we had to take a very realistic approach to this report, because we didn’t want to glamorise the issue of reparations, and what we see happening now. Redress has been talking about reparations for several years. We are also the coordinator of the Victims Rights Working Group, a network of over 300 NGOs, working on victims issues. Who work directly with victims on the ground. And we have seen and heard that victims have waited for a long time, in trials that have been protracted. The case of Bemba For example, 10 years of waiting. We understand that criminal trials take a long time and international criminal trials in particular seem to take long, but the reality is we feel, that because the court has taken such a long time in relation to most of the trials, that the reparations phase, which is the only phase really that victims are the protagonists. They are the lead players at this phase, that that needs to move very quickly. Because we’re not dealing with people with minor injuries here. We’re dealing with HIV victims. We are dealing with persons who have lost everything. And if we are serious, then we are going to have to move quickly. What we’ve seen with the judges is that they very often do not issue decisions that are consistent. So you have one chamber issuing a decision that takes a particular approach, and the other taking a very different approach. So we are not getting the sense that the chambers are learning from each other. We understand. And we’ve said as much in our report, that this is a new area, even for the judges. The judges declined in the beginning to issue principles for reparations, which is what is called for an Article 75. These were general principles that would have helped to guide the process and provide a level of certainty for those involved, so that you would know some of the basic criteria that chambers would take into account. They didn’t do it.

Stephanie van den Berg

What you want from the judges is to kind of two things: They need to speed up this reparations phase, and they have to give an outline of what to expect for victims? 

Lorraine Smith van Lin

Exactly. And we have seen I have to say that even since the report has been published. We have… I’ve looked at some of the decisions and I’m seeing where the judges are more clear in a recent decision. For example, in the Al Mahdi case, the judges were very clear about what they expected of the Trust Fund. They were displeased with the Trust Fund initially because the Trust Fund had failed to give concrete plans, concrete indications of how it was going to implement the judges orders on the ground. Finally, in the Al Mahdi case, the Trust Fund was asked to submit an updated implementation plan. And they did. And that has helped. The judges complimented them. The judges say: “Finally, you have given us something with concrete information about how you will implement the collective awards and implement our instructions.” This is what we want to see, you know, have a particular period of time, I think, three years to get this done.

Stephanie van den Berg 

And we can talk about collective rewards. Can you take a step aside and explain to us the different types of reparation and collective versus individual.

Lorraine Smith van Lin

Under the statute, what you have our possibilities for the court to order reparations individual awards, or collectively to a group of individuals who have suffered harm. Individual awards are made in a context where the court finds that you may have harm that they can quantify. So you know, you’ve suffered a particular loss of property, for example, and you can see I’ve lost this and you provide proof of that. And the court may choose to issue or to order individual reparations award where that is appropriate. In the Katanga case, they ordered individual awards to a few individuals, at one time award of 250 US dollars, which I understand has been paid out. But for the majority, because these are crimes that have taken place where damage and harm has been suffered by an entire community. They award collective awards, which are essentially awards that benefit not just an individual, but a collective group, you can have a collective group within a community. So for example, a group of child soldiers…a collective award can be made to them.

Stephanie van den Berg

And then examples of a collective reward would be for the child soldiers, you would have a reintegration or work programme where they learn to be bricklayers. Other things for collective awards, could be hospital clinics, psychological counselling, but also for example, memorials, and places like that. 

Lorraine Smith van Lin

Exactly, that benefit a group as opposed to just one individual. And these are really important, because again, it comes back to the broader purpose of reparations that it’s also about healing and reconciliation, and these should promote that.

Janet H. Anderson

But how do those kind of things get decided?

Lorraine Smith van Lin

The judges take into account several things. The process is, as I mentioned, the victims themselves may apply for reparations and in the application for they indicate the harm that they’ve suffered. In addition to those who have applied, this raises a second… another issue that a number of those who apply, maybe it might be actually quite minimal. Those who actually apply for a number of reasons, it might just be that they haven’t heard, they didn’t realise so on. And so the judges may invite the Registry or the Trust Fund to go and check whether there are other potentially eligible victims, and invite those potentially eligible victims to apply. And this is also an issue that created a bit of tension at the court as well. But once there has been that application, what you then have is the judges determining based on the information that has been collected, and based on a preliminary assessment that is made by the victors participation reparations section, or the Trust Fund of the degrees of the harm that the victims have suffered. 
So an assessment is made, a report is sent to the chamber, that sets out this is the nature of the harm. Here are our recommendations based on all the information we’ve gathered as to how the chamber should determine what the victims should be awarded. And then thirdly, you still have the possibility for the chamber to benefit from experts. So experts can also assist the chamber in determining the scope of the harm, the scope of victimisation, how to quantify or put a price to the harm that these victims have suffered. And so all of those factors taken together. And of course, the Chamber’s own discretion and knowledge apply to that the judges then come to a determination of the nature of the harm that the victims have suffered, you know, how much should they value that harm. And that’s always hard. So it’s it’s a complex issue, but they do have a process that they use to determine that.

Stephanie van den Berg

And your organisation talks to a lot of victims directly in the field and maybe you have as well. What did they tell you that they want?

Lorraine Smith van Lin

For this report, we didn’t have the chance, unfortunately, to directly speak to the victims on the ground, we spoke more to their legal representatives. But I do work also in Uganda. And I had the chance to speak with victims, because we have victims forums, but also with persons who work directly with ICC victims. And the feedback is that compensation, monetary compensation, is only one of the things that they want, they do want that. That is a priority. They want economic empowerment. They want to be able to put their lives back together. But they also want acknowledgement. They want guarantees of non-recurrence. They want to be able to assist it in ways that money cannot help them. So I give you an example, which is not necessarily relevant to the ICC at the moment. But in at the Barlonyo massacre site. It’s the site of one of the biggest massacres in Uganda… in northern Uganda. And the victims there simply want an acknowledgement of the number of persons who were massacred or who are still disappeared. That’s all… the… because at this stage of their lives, they do want economic empowerment, but that this stage if they have that formal acknowledgement that is repetitive for them as well. So I think it’s important for us to note that victims also want more than money.

Janet H. Anderson

I wanted to turn to the Trust Fund to victims itself. I’m conscious that the Trust Fund for victims says it’s underfunded and doesn’t have the capacity always to do all of the work that the… that the court is asking it to do. Is the Trust Fund for victims able to do its work well?

Lorraine Smith van Lin

The Trust Fund does have and has had capacity challenges. It hasn’t had the number of staff that it needed to… to respond to the responsibilities that it has. The reality is that what it is now seeing is that for several years because of the protracted nature of trials, it spent a lot of its resources on implementing the assistance mandate, in Uganda, for example, in the Democratic Republic of Congo. But now that there have been convictions and the reparations phase has started, you have a challenge where they don’t know what to do in relation to reparations. And I found that the last couple of years has really been about finding their way. How is this to be done? 
The problem with that is that that has an impact for victims. Just this morning, I read that victims in the Lubanga case… that the judges were still saying: “Tell us Trust Fund, how are you going to implement collective reparations? Give us more clarity on the partners that you will be using to implement these collective awards on the ground.”

Janet H. Anderson

And how long is that? How long has it been? That’s the first trial at the ICC? It started years ago.

Lorraine Smith van Lin

Exactly. You’re talking the first reparations order in Lubanga. 2012. The case itself was the first to come before the court. And so we’re talking about in 2006…

Janet H. Anderson

We’re starting to get towards a generation.

Lorraine Smith van Lin

To… 15 years! When we did our calculations in terms of when the crime itself is alleged to have taken place. It does get frustrating.

Janet H. Anderson

Thanks very much, Lorraine, and Stephanie, for that, I think, really interesting discussion on reparations. Now on this show, we also like to put a couple of questions to our guests, the same three questions. So our first one that we always ask is, is there something that nobody ever asks you on this topic that they should have asked you?

Lorraine Smith van Lin

I would say that nobody ever asked what I think really can be done to fix this. I think that you can actually fix this, by bringing persons together with victims, and letting them really listen to the victims themselves. 
I have been moved tremendously by my work in northern Uganda recently, that victims, actually, contrary to what a lot of people think, know what they want. And what they want is much less complicated than people think. And if I were to have the chance, I would bring those victims to The Hague, at a moment when we are having these wonderful policy discussions, the moment when we’re discussing millions of dollars of revenue for the courts work. I would open the doors and let them speak to states parties in that great auditorium that they have. And maybe that would have, or would make a difference in terms of how people view this.

Stephanie van den Berg

And tell us what’s the one thing that people get wrong about reparations, or maybe get wrong about your job and what you do?

Lorraine Smith van Lin

I think the one thing people get wrong is what reparations really mean? To be honest, I think I’ve said it and maybe it has come out. And that is that for victims. reparation is not just money. It is important, and I don’t want to make light of it. But that for victims, it is so much more than just money, monetary compensation. And it’s important to know that because that will give people the opportunity to begin to think creatively about how to address some of the other aspects of reparations, including those that we’ve mentioned before, like acknowledgement of the crimes that money just cannot pay for. And I think this is why Dr. Dennis Mukwege is so much in my eyes, a hero for me. And Dr. Dennis Mukwege, as you may know is the recent winner of the Nobel Peace Prize. He has done so much for women victims of sexual violence through the global survivors network that the McQuaid Foundation has established, but just through allowing victims to speak. And it is when they speak that you hear that it is not just about monetary compensation. Get creative. I think I cannot stress that enough. Get creative, you know, in the Ukraine, in other parts of the world, I’m trying to remember now, you may have to edit that out. There is the government put in place, for example, a pension plan for victims of sexual violence. How about that? How about doing some something other than saying we want to give them individual cash awards? How about putting in something that will ensure that for the long term, they are able to sustain not just themselves but their family? So get creative around the issue of reparations.

Janet H. Anderson

Last question is have you read or seen something you’d like to recommend that really changed the way that you saw your work or your life?

Lorraine Smith van Lin

I’ve read so many things recently that I that has changed how I see my work. And it is very, very difficult to say that the most recent thing that I’ve seen [LAUGHTER] is actually a commentary on the ICC. It’s really it’s I it means that I’m not reading widely enough beyond the ICC. But it does mean that there is that residual concern that I have about the ICC. And it was a very simple article that talked about the impact of the decision by the US to revoke the prosecutors visa. And what that translates to in terms of our understanding of multilateral cooperation, and the importance of a court like the ICC.And it made me step back and think for myself. What are we seeing in terms of international justice? Are we are we seeing a movement away from an institution that was regarded and that is regarded, I hope, still with such hope and aspirations into an institution that instead of now being focused on fighting for victims and fighting for justice is going to have to fight to defend itself and fight to justify its very existence. And I paused because I wondered to what extent that would take us away from the core, the core focus of what this court should be about, and that is ensuring justice for victims, and stemming the tide of impunity. 
So I’m sorry, I’ve tried to read other more encouraging things. But that was the most recent thing I read. And it has made me think, and it has made me decide that we have to redouble our efforts. And to make sure that despite all of the naysayers, and despite all of those who have come against the court, it is important, certainly for those who are looking to the court as a source of justice, that we continue the work. Thank you.

Janet H. Anderson

Thank you very much, Lorraine.

Stephanie van den Berg

[OUTRO]

This podcast was created and hosted by Janet Anderson and Stephanie van den Berg.

Music was by Audionautix.com. 

We want to thank our editorial intern Hannah van der Wurff and our host, Humanity Hub, a great co-working space in The Hague.

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Disclaimer: This transcript was generated using online transcribing software, and checked and supplemented by the Asymmetrical Haircuts team. Because of this we cannot guarantee it is completely error free. Please check the corresponding audio for any errors before quoting.

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