HomeRemarks and Releases: Global Criminal Justice...Ambassador-at-Large Beth Van Schaack’s Remarks to the Cardozo Law School on Sexual and Gender Based Crimes in the Case of Prosecutor v. Dominic Ongwen

# 									Ambassador-at-Large Beth Van Schaack’s Remarks to the Cardozo Law School on Sexual and Gender Based Crimes in the Case of Prosecutor v. Dominic Ongwen							

Remarks

Beth Van Schaack, Ambassador-at-Large for Global Criminal JusticeOffice of Global Criminal Justice

Cardozo Law School

April 21, 2023

**Introduction**

Thank you for the kind introduction.  And thank you to Cardozo Law Institute in Holocaust and Human Rights, the Cardozo International and Comparative Law Journal, the Emergent Justice Collective, the Tallawah Justice for Women, UN Women, and the Global Justice Center for inviting me to speak alongside such brilliant scholars, practitioners, and survivors as we reflect on this pivotal moment shaping how sexual and gender-based violence is addressed in international criminal law. It is fitting that we should all take a moment to celebrate the ground-breaking impact of the International Criminal Court (ICC) Appeals Chamber’s ruling in the case of Prosecutor v. Dominic Ongwen on intersectional feminist approaches to norm-setting and redressing crimes against women and girls—in all their diversity—in international law.

I very much appreciated the critical insights shared by panelists thus far on your conversations yesterday on the imperative of reparations and look forward to engaging in further dialogue over the course of the day today. These topics are critical as we await the ICC’s reparations judgment in the Ongwen case.

**Women in the International Justice System**

I would like to first acknowledge and commend the lawyers of the Feminist Collective who mobilized to submit the four amici briefs on sexual and gender-based crimes in international law in this case. As we know, women are still underrepresented in the international justice system, and in many domestic legal systems, but their perspectives, experiences, and participation are necessary to promote trust in, and enhance the legitimacy of, justice and accountability processes. The meaningful involvement of women will also advance access to justice; contribute to the rule of law; and ensure that justice processes are inclusive and fully representative of the wider society. Yet we must acknowledge, as members of the Feminist Collective have done elsewhere, how challenging it can be for women to navigate structural barriers to participation in justice processes, including, for example, balancing obligations in the home that often disproportionately fall to women.

The collective work and dedication of these forty-four women in bringing feminist perspectives to international criminal law—a field that has emerged from structures of gender inequality, power imbalances, and colonial legacies—is notable and has set an important precedent for the continued integration of feminist theory into our understanding of international justice and accountability. This focused engagement is reminiscent of the incredible work of lawyers during the renaissance of the field in the 1990s—including the indomitable Patricia Viseur Sellers, who is here with us today, and the late Rhonda Copelon, who left us too early—in centering violence against women in the jurisprudence of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda.

**Justice for Reproductive Violence**

This significance of the Ongwen ruling cannot be overstated. Ongwen is the first case involving charges and a conviction for reproductive violence—specifically forced pregnancy—before an international criminal tribunal.  The defendant was found guilty of war crimes and crimes against humanity and sentenced to 25 years’ imprisonment. Over 4,000 victims participated in the criminal proceedings. What is so ground-breaking about the conviction is that it makes visible, and legitimizes, reproductive violence as a distinct form of harm, alongside other forms of ges nder-based violence that reflect the cultural norms, gender stereotypes, and power dynamics that shape women’s subjugation in peacetime and in war.

As another key contribution, the Ongwen judgment addresses the rights of children born of wartime violence, who face a distinct and unique set of harms because of their inevitable association with the perpetrators. These ongoing disadvantages include, inter alia, discriminatory birth registration laws that prevent them from obtaining citizenship and full civic rights; stigmatization and discrimination within their communities; an inability to obtain an education and access the social services to which other children are entitled; severe forms of social and economic exclusion; long-term psychological trauma; and increased vulnerability to violence, exploitation, and recruitment by armed groups. These children deserve to be considered victims in their own right and must be integrated into transitional justice processes. While it may be more difficult to address deep-seated stereotypes aimed at children born in conflict, legal frameworks that render these children stateless can be altered and reparations scheme can include, for example, fast-tracked civil registration to enable their full participation in society.

As we work to rectify the harm of gender-based and sexual violence in conflict, including reproductive violence, we must consider the root causes and broader impacts, in the local and national contexts, in equal measure.  This requires designing interventions that vindicate the violation of social, cultural, and economic rights alongside civil and political rights occasioned by such harms.

**A Gendered Approach to Transitional Justice**

This is here the field of transitional justice comes in.  The transitional justice toolkit encompasses a range of measures that are judicial and non-judicial, formal and informal, retributive and reconciliatory for war-torn societies to address legacies of mass violence, authoritarianism, and impunity. Comprehensive transitional justice measures include measures aimed at advancing accountability, truth-telling, memorialization and historic memory, institutional reforms, guarantees of non-recurrence, and individual, collective, and symbolic reparations. To be effective when it comes to the lived experience of conflict-related violence, transitional justice measures must be inclusive and reflect the preferences of communities most affected by violence, including women and lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons; racially and ethnically marginalized communities; persons with disabilities; youth; and refugees and internally displaced persons. We must be alive to the perennial risk that such processes can reproduce patriarchal, heteronormative, racist, or colonial discourses, at times unintentionally, in ways that constrain the agency and autonomy of these individuals.

This is particularly true when it comes to victims and survivors of sexual and gender-based violence as well as other forms of identity-based violence. These communities manifest a continuum of diverse needs that can be addressed by different transitional justice measures, including reparations. In identifying and addressing these needs, it is critical to continuously consult with victims and survivors throughout any justice and accountability process.  This is because their needs will naturally change over time, especially as their proximity to violence changes.  For example, in the immediate aftermath of violence, survivors may prioritize physical and reproductive healthcare or livelihood support as opposed to criminal prosecution. Later, however, their expectations around justice may rise to the fore.

**The Imperative of Reparations**

Reparations—including restitution, compensation, rehabilitation, measures of satisfaction, and guarantees of non-repetition—provide practical and symbolic relief to victims and survivors who have suffered harm.  They can be transformative and contribute to lasting peace and security when measures are implemented together to comprehensively address, and redress, the suffering of victims and survivors. Bolstering accountability for the perpetration of sexual and gender-based violence through the development of equitable reparations sends an indisputable signal—on the international as well as national level—that perpetrators will not only be held to account for their abuses, but also that they are expected to contribute to the rehabilitation of survivors. All told, reparations can help realign the moral universe and return survivors to their life paths so disrupted by violence or authoritarianism.

At the same time, we must acknowledge that even the most comprehensive reparations scheme will not restore victims and survivors to the life that they would have led prior to experiencing extreme violence or gross human rights abuses. Take, for example, the situation of young girls in Uganda who were forcibly taken from their schools or communities and detained for years.  Among countless other heinous rights violations, they were deprived of an education; no amount of reparations cannot fully make up for this loss. At the same time, even as we acknowledge the indelible harms caused by gender-based and sexual violence, we can also look for ways to enable post-traumatic growth through reparations schemes.

Further, barriers in implementation—at the International Criminal Court (ICC) and elsewhere—have rendered reparations an empty promise for many victims and survivors. Such barriers have included time delays due to ongoing litigation; limitations on delivery due to ongoing conflict and instability; an absence of funding and resources; and exclusionary eligibility models. Indeed, while reparations can help repair damage, they can be implemented in ways that are divisive or that reinforce certain societal cleavages.  For example, there have been reparation schemes that are open only to victims who experienced certain forms of harm or who are able to “prove” their victimhood to the evidentiary standards imposed by the justice system. Although some sort of administrative process is necessary to identify and recompense victims, relying exclusively upon gaining legitimacy in the eyes of a court necessarily reproduces forms of marginalization and erasure that are present in everyday life, in both peacetime and war.

In addition, persons who are devalued, who are silenced, or whose bodies are deemed unworthy of protection—including persons of diverse racial and ethnic backgrounds, sexual orientations, and gender identities—are often neglected in reparations conversations.  Such exclusions fundamentally limit the ability of achieving equity within reparations schemes because they produce and reproduce “hierarchies of victimization” that delineate which forms of suffering are actionable and which forms are not. Reparations may also further stigmatize survivors by publicly identifying them within communities, increasing their vulnerability as they navigate a life in the aftermath of violence, oftentimes in the same communities where they experienced this violence, side-by-side with the people responsible. And, at all times, expectations must be carefully managed in a world of constrained resources.

These various concerns can be seen, for example, in the context of the Democratic Republic of the Congo and in the case of Chadian president Hissène Habré, where reparations were promised but remain elusive.  In Colombia, reparations are under consideration that can change the lives of victims and survivors after 50 plus years of conflict, but we have also witnessed notable false starts, such as in Kenya and Sri Lanka, where reparations have failed to deliver. And in Iraq, the Yezidi Survivors’ Law—a landmark piece of legislation passed in 2021 that aims to provide reparations to victims of ISIS—is being implemented in a way that requires survivors to prove their victimization through extensive engagement with justice systems, which can lead to re-traumatization, discouraging many from pursuing the reparations that they are owed.

**Achieving Equitable Reparations in Uganda**

Turning now to Uganda. With a study tour organized by the Irish Embassy and the ICC Trust Fund for Victims (TFV), a member of my team recently traveled to Uganda to see first-hand the impact that reparations can make on the ground. The TFV is funding community support, psychological treatment, and medical care for conflict-era injuries, particularly in areas where the national government has proven unwilling or unable to provide such services. Incidentally, we are pleased to see the TFV moving beyond Africa to provide support in Georgia, although the program is in great need of adequate funding.

Conceiving of equitable reparations in Uganda requires us to consider and reflect upon multi-layered dimensions of the reparations process. For the remainder of these remarks, I would like to offer several critical avenues of discussion to help us shape how to approach the process of designing and implementing reparations programs. I want to emphasize that these points are by no means exhaustive, and that we must engage in ongoing dialogue with local communities to understand the depth of their concerns and needs, as well as with local, national, and international practitioners to anticipate barriers to success.

First, victims and survivors must play a central role in the co-creation and implementation of any reparations policy. In this regard, we must be sure to empower individuals and groups who are historically marginalized from formal and informal justice processes. This include members of the LGBTQI+ communities, including those targeted on the basis of their sexual orientation, gender identity or expression, or sex characteristics; men and boys who are victims/survivors of sexual violence; persons from racially- and ethnically-marginalized communities; persons with disabilities and youth; and refugees and internally displaced persons. Longstanding discrimination often prevent members of these groups from seeking accountability and reparations, particularly when they face intersecting forms of marginalization, stigmatization, and associated structural barriers.

To facilitate inclusive participation in reparations, a system of support services must be developed that includes easily accessible information about how to participate in the process. This will require coordination with local and national community organizations to facilitate the implementation of comprehensive outreach programs to identify victims and survivors, including children born of wartime violence who are often excluded from national legal, education, and health services. The provision of legal representation will help ensure that all survivors understand their legal rights, including their eligibility for reparations.

Second, on a practical level, special care should be taken to ensure that the delivery of reparations is not impeded by institutional and bureaucratic barriers.  Local and national entities should be engaged in the delivery process to ensure that it is done in a timely and efficient manner.

Those involved in implementing reparations schemes will need to consider the provision of “interim reparations” during the administrative phases. This may include transportation to enable them to bear witness or press their claims, particularly for persons residing in rural communities or in refugee or internally-displaced settlements; the provision of economic and other livelihood support, including care for children and capital to replace potential lost wages; and the coordination of readily available medical and psychosocial support.  We must let these daily realities guide our pursuit of balanced reparations schemes so they can address harms suffered by victims and survivors in a manner that is not inhibited by unnecessary bureaucratic obstacles.

Third, those working with these survivor communities must adopt a trauma-informed approach that takes into consideration how the near- and long-term impacts of violence may shape survivors’ abilities to participate in justice and accountability processes. Ideally, this sustained and flexible engagement will enable the pursuit of justice and accountability in ways that resonate with impacted communities, acknowledging too that victims and survivors of the same crime base may have different conceptions of what constitutes an appropriate mix of the various forms of redress. Survivor-centered approaches will also empower victims as they navigate justice and accountability mechanisms in the post-conflict context.

Fourth, we must remain cognizant of the fact that survivors’ perspectives on reparations—what forms they should take and how they should be implemented—may change over time.  Being attuned to these realities requires flexibility in effectuating meaningful survivor engagement. Such engagement should not be isolated or episodic but should rather entail a conversation that is sustained over time.  This longitudinal approach will allow policymakers to understand and address evolving needs, especially when these needs may diverge from those addressed by criminal proceedings.

Fifth, we must also remain alive to the possibility that reparations can be divisive when—for whatever reason—some individuals or groups benefit while others do not. For example, orders from the ICC generally only provide for reparations to victims and survivors who suffered violence as a result of the named defendant’s crimes. This, of course, means that not all those who experienced abuses at the hands of the Lord’s Resistance Army may be eligible for reparations.  Clear and consistent messaging should be provided at the community level to preemptively address any concerns or tensions arising from these legal limitations within any reparation scheme.

Sixth, the international provision of reparations should complement or supplement national reparations schemes, which in Uganda have been largely unimplemented despite the adoption of a National Transitional Justice Policy. International reparations should not let governments “off the hook” when it comes to restoring the rights of their citizenry as may be required under national or international law, including the state’s treaty commitments.  National development projects, while welcome, are no substitute for reparations dedicated to survivors, their families, and their communities.

Seventh, individual, collective, and symbolic reparations should be considered, especially as they respond to different needs of victims and survivors. Collective reparations can address structural conditions, discrimination, and inequalities that beget instability, fragility, repression, and violence. But collective reparations will not always adequately acknowledge individual forms of violence, such as cases of forced pregnancy.  As such, individual reparations should be considered in tandem with collective and symbolic reparations.

Eighth, and finally, we must all think creatively about how to fund reparation schemes even as we acknowledge the profound difficulty of identifying adequate resources in post-conflict situations in the face of competing priorities, particularly if the state in question has been ravaged by years of war.

The TFV is, so far, almost fully dependent on Rome Statute state parties’ voluntary contributions, which have been generous but which still fall short of the global need.  For this work to be sustainable, creative solutions must be explored to identify and marshal additional sources of funding.  This should include tapping into the natural empathy of ordinary people towards survivors and their desire to contribute to social rehabilitation through tax-exempt pathways to giving. Working with donor advisors offers a way to understand national philanthropic communities and design appropriate outreach programs.

Another idea to explore is how to ensure survivors benefit from fines, forfeitures, and penalties generated in connection with the enforcement of sanctions regimes, whether unilateral, collective, or multilateral.  For example, the La Farge case in the United States generated a nearly $800 million fine after the company pled guilty to sanctions evasion in connection with its operations in Syria and payments to ISIS. Even where individual defendants are indigent, we must explore how armed groups are able to sustain themselves and what individuals and organizations may have enabled their depredations. Governments could create national funds to ensure that survivors of mass violence around the world receive some measure of recompense when funds are recovered from perpetrators or their enablers. We should all be thinking creatively about how to generate new pathways to fund reparations programs through the TFV or otherwise.

**Conclusion**

The boundaries of violence are not temporal.  Trauma and suffering can be ceaseless and enduring and can cause intergenerational harms that are difficult to see, address, and disentangle. At the same time, post-traumatic growth is possible with the right conditions. The field of transitional justice exists to address this violence, alongside legacies of mass human rights abuse and impunity; advance justice and accountability for gross and systematic violations of human rights; rebuild social cohesion; rehabilitate victims and survivors; restore trust in formerly abusive institutions; and prevent the recurrence of violations.  Reparations are one tool to accomplish these objectives.  The Ongwen case represents a pivotal moment to define how reparations schemes are conceptualized, constructed, and implemented, in a manner that is trauma-informed, survivor-centered, intersectional, and inclusive of all persons who have suffered harm.  We must seize this moment to support victims and survivors of the past, the present, and the future.

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ChadColombiaDemocratic Republic of the CongoGender-based ViolenceHuman Rights and DemocracyIraqKenyaLGBT RightsMontenegroOffice of Global Criminal JusticeRwandaSerbiaSri LankaUgandaWomen's Issues

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