Distinguishing reparations from assistance

The ICC has thus far worked primarily in resource-deprived contexts, where many people live in need of food, shelter, health care and security.Footnote ¹⁴ Not surprisingly, these immediate needs often take priority.Footnote ¹⁵ In these contexts, reparations can be seen as a means of satisfying basic ends, no matter the reasoning behind them. Equally importantly, the awarding of reparations will rarely go unnoticed by a recipient’s broader community, even in the case of individual reparations. Lawyers and transitional justice scholars are well aware of these similarities. In more than one case, prosecution witnesses have been accused of providing their testimony only in exchange for assistance. In such contexts, distinguishing reparations and assistance through the former’s symbolic element is particularly important, both for the court issuing them and for the affected communities. Indeed, reparations can look very similar in form to development, assistance and reconstruction projects, particularly when the organisational provenance of the two does not necessarily distinguish them.

This is the case in Ituri, as it will likely be for many of the situations when and if ICC trials reach the reparations phase. The TFV is mandated by the Rome Statute system to provide both ‘reparations’ and ‘assistance’ and has been providing the latter in northern Uganda and eastern DRC since 2009.Footnote ¹⁶ This assistance can only be given to victims of crimes under the jurisdiction of the ICC, as they are defined in the Rome Statute, but it is provided prior to and separate from any particular criminal proceedings. In practice, however, the line between reparations and assistance can be unclear. In Ituri, for instance, the Trust Fund is providing assistance to former child soldiers, some of whom may have participated in the war under the leadership of Thomas Lubanga. What, then, distinguishes reparations from assistance when the same Court can provide both to the same group of beneficiaries?

To answer this, lawyers and scholars stress the symbolic element of reparations. In the words of two commentators, ‘What distinguishes reparations from assistance is the moral and political content of the former, positing that victims are entitled to reparations because their rights have been violated.’Footnote ¹⁷ This then implies that, ‘those receiving reparations are by definition rights holders’.Footnote ¹⁸ Morally, reparations are given to a recipient because she has been wronged, not because she is in need or is vulnerable. Politically, reparations are awarded because a recipient’s rights have been violated. Together, both dimensions are meant to (re)establish what Pablo de Greiff has called ‘inclusive citizenship’ and what Brandon Hamber calls ‘social recognition’.Footnote ¹⁹ Both terms denote the social and political integration of victims back into society. In theory, the intended symbolism of a reparations award is thus potentially far more valuable than the particular good or service actually being distributed.

Recognition and targeting

That such subtlety is effectively communicated to, and understood by, the recipient herself and by her broader community is central to the intended mission of reparations. In this context, outreach is clearly crucial. The judgment from which a reparations award stems must be effectively explained to an award’s ultimate beneficiaries. Furthermore, the particular targeting strategy through which reparations are distributed will influence their meaning on the ground. As de Greiff writes, ‘the element of recognition that is part and parcel of reparations … will typically require targeting victims for special treatment’.Footnote ²⁰

Targeting has been of particular concern to fields like international development for several decades, particularly since development scholars like Amartya Sen began to examine the importance of participation, consultation and dialogue in the development process.Footnote ²¹ One problem with traditional, criteria-based methods of targeting is that beneficiaries ‘do not share the same targeting concerns as the national level or donor agencies’.Footnote ²² This is of particular concern for international criminal reparations.

Compared to reparations from domestic and international human rights courts, international criminal reparations will tend to communicate the meaning attached to them more exclusively via the particular targeting strategy through which they are distributed. In domestic criminal proceedings, which are likely to play out closer to the victims themselves than international proceedings, outreach by itself may go a long way. In cases where the state is ordered by an international human rights court to pay for and implement awards, the state can directly manage communication, for better or worse. In either case, it is easier to communicate ‘the seriousness of the state and their fellow citizens [to] re-establish relations of equality and respect’, which reparations are meant to convey.Footnote ²³

But international criminal reparations face a more daunting task. They come from the ICC, a court that is far removed from the local context and which has little authority over the state in question. Furthermore the simultaneous reliance of international criminal reparations on symbolism and targeting makes them vulnerable to the local politics of recognition in significant ways. Here, I am concerned with two aspects of these politics in particular: (1) the subjection of victimised groups to forms of interpretation that may do them harm, or which they may reject, and (2) the struggle over interpretations and characterisations of the conflict and its victims.

I do not argue that domestic or international human rights reparations are immune from such struggles over recognition, but they are on average better equipped to manage them. State-based reparations, for example, can coordinate with other programmes to fill in the gaps that reparations will miss, thus ameliorating some of the distributive tensions that can exacerbate the politics of recognition. De Greiff explicitly supports such coordination.Footnote ²⁴ But the ICC cannot count on states or other international agencies to complement or coordinate with its plans for reparations, and the Trust Fund’s assistance resources are limited. The politics of distribution are also a concern for reparations; indeed, the two can never be completely separated. But because recognition is fundamental to what makes reparations meaningful, the politics of recognition are of particular concern.

To briefly illustrate, the ICC’s Office of the Prosecutor (OTP) has thus far characterised the Ituri war as a fundamentally ethnic conflict played out between two ethnic groups: the Lendu and the Hema.Footnote ²⁵ In the OTP’s four Ituri-based cases, both the alleged crimes and the categories of victimisation are thus structured accordingly. In my own research, however, both Lendu and Hema often rejected this characterisation. This was not because they denied either the legitimacy of Lendu and Hema as categories of identity or that there was significant conflict between them, but because they tended to see the conflict in more fluid terms, where violence was also economically, politically and geo-politically motivated.

The next section describes the Iturian context and reviews prior and ongoing debates over the characterisation of the Ituri war in Lubanga. These debates highlight that the ICC is aware of the challenges that reparations are likely to encounter in the field, which the Trial Chamber has tended to cast in terms of a tension between inclusivity and exclusivity. I agree with such a characterisation, but see this tension as fundamentally political in nature. In later sections, I draw on the targeting experiences of development, assistance and reconstruction projects and on my personal research to illustrate what these politics of recognition look like in practice.

The Ituri war

Ituri is a relatively small and picturesque district in northeastern DRC, bordering Uganda and South Sudan. Like much of eastern DRC, it is particularly rich in natural resources, including gold, diamonds, timber and oil. It is also home to numerous ethnic groups, although the two largest are by far the Lendu, who are mostly farmers, and the Hema, more often pastoralists. The Lendu and Hema have lived together since before colonial times, but Belgian policy favoured the Hema and exacerbated tensions. Henry Morton Stanley, an Englishman working for the Belgian King Leopold, described the Hema as ‘amiable, quiet and friendly neighbours … with whom we have never exchanged angry words’ and the Lendu as ‘abrasive and violent’.Footnote ²⁶ Nevertheless, the two groups lived together relatively peacefully until 1999, when a series of small land conflicts led to some of the bloodiest fighting of the DRC’s many conflicts. Through 2004, it was the scene of massacres, rapes, mass child abductions and other serious crimes, in which an estimated 60,000 people were killed. At the conflict’s peak, between 20,000 and 25,000 children and adults were involved in the fighting.Footnote ²⁷

On the radio, Lendu leaders accused the Hema of orchestrating the war to complete their subjugation of the Lendu people. Hema leaders accused the Lendu of attempting genocide against them, fuelled by bitterness and jealousy. Allusions to the Hutu and Tutsi of Rwanda were occasionally made.Footnote ²⁸ On the surface, it seemed an apt comparison – a group subjugated by the Belgians and then relegated to poverty, finally reaching the breaking point. But the comparisons were not accurate. The chain of events that ignited such conflicts cannot be boiled down to ethnic hatred; rather, the full causes are simultaneously economic, political, geo-political and ethnic.Footnote ²⁹ Many Iturians, in fact, believe that Uganda, Rwanda and Kinshasa manipulated and took advantage of ethnic grievances.Footnote ³⁰ Subjects we interviewed in 2013 would ask, rhetorically, ‘Where did the guns come from?’, referring to the thousands of weapons believed to have been brought into Ituri from outside to arm both Hema and Lendu militias. Both sides thus claim victim status, but as I will return to below, the notion of outsider manipulation is central to Ituri’s local politics of recognition.

Despite these complexities, the OTP pursued an essentially ethnic framing of the Ituri war. In 2003, the prosecutor saw Ituri as ‘the most urgent situation to be followed’.Footnote ³¹ Following President Joseph Kabila’s referral of the DRC situation to the Court, the OTP has since charged four of the conflict’s alleged leaders, two from the Hema side and two from the Lendu side. Three are originally from Ituri, including Thomas Lubanga Dyilo (who is Hema), while one, Bosco Ntaganda, is a Tutsi from Rwanda. In all four trials, the OTP has repeatedly focused more on the ethnic nature of Ituri’s violence than on its economic or geo-political dimensions.Footnote ³² While the Trial Chamber in Lubanga acknowledged the observation that Ituri’s ethnic tensions would not have ‘turned into massive slaughter’ without the involvement of Kinshasa, Rwanda or Uganda, it fundamentally agreed with the OTP’s characterisation.Footnote ³³

The definition of ‘victims’ in The Prosecutor v. Thomas Lubanga Dyilo

The OTP’s framing of the conflict also influenced the definition of ‘victims’ in Lubanga, for both participation and reparations. As the first of the ICC’s trials, participation was a vexed issue since the Rome Statute system defines ‘victims’ quite generally.Footnote ³⁴ In the beginning, attempts were made to define ‘eligibility for participation’ in rather inclusive terms, but these were ultimately unsuccessful. This left the definition of ‘victims’ quite narrow during Lubanga’s trial. In its first ruling on victim participation, for example, the chamber determined that victims of any crime under the Court’s jurisdiction could theoretically participate.Footnote ³⁵ The Appeals Chamber disagreed, however, noting that, ‘the purpose of trial proceedings is the determination of the guilt or innocence of the accused person of the crimes charged’.Footnote ³⁶

In Lubanga, the only confirmed charge was that of enlisting and conscripting child soldiers, so only victims of this particular charge could participate in the Appeals Chamber’s view. The Rome Statute, however, allows for both direct and indirect harm. Were, then, the victims of crimes committed by child soldiers the indirect victims of Thomas Lubanga?Footnote ³⁷ Again, the definition was left quite narrow. Drawing on the Appeals Chamber, the Trial Chamber ruled that, to count as an indirect victim, a person must have a close personal relationship to a direct victim, such as that between parent and child. Those harmed by the child soldiers, it followed, could not count as indirect victims.Footnote ³⁸

Three years later, similar questions about the definition of ‘victims’ emerged for the purposes of reparations. Again, the prosecutor and the Trial Chamber favoured inclusivity. The OTP had already noted that it ‘must necessarily limit the incidents selected in its investigation and prosecution’, and that the reparations phase should therefore take a broader approach.Footnote ³⁹ In its reparations decision, the Trial Chamber wrote that reparations require a ‘broad and flexible’ approach, which can ‘avoid further stigmatisation of the victims and discrimination by their families and communities’.Footnote ⁴⁰ It underlined the value of a collective award and later introduced for these purposes a distinction between ‘victims’ and the ‘beneficiaries’ who reside in the communities where collective reparations programmes will be developed but who will not be granted ‘victim status’.Footnote ⁴¹ Victims of crimes for which Lubanga was not convicted (including victims of sexual violence) could thus theoretically benefit from a reparations award.

This distinction, and the Trial Chamber’s endorsement of collective reparations, reflects an attempt to manage the inherent tension between inclusivity and exclusivity that is attached to reparations. As described in the reparations decision, such an award could seemingly impart the meaning that makes reparations symbolically valuable, while simultaneously filling in the gaps left by the selective recognition of forms of victimisation. Yet this says nothing of the actual targeting strategy needed to strike such a balance. Both individual and collective reparations, for instance, can still rely on bureaucratic, top-down targeting measures.

Furthermore, the Appeals Chamber eventually determined that, while ‘an award of collective reparations to a community is not necessarily an error, … the scope of the convicted person’s liability for reparations in respect of a community must be specified’.Footnote ⁴² In other words, collective reparations can only make a reparations order more inclusive to the extent that the convicted person is found to be specifically liable for the crimes addressed by the award. Victims of crimes of which Lubanga was not found guilty – notably crimes of sexual violence – can thus only benefit from assistance in the Appeals Chamber’s view, not reparations.Footnote ⁴³

The Appeals Chamber’s decision underscores that efforts at inclusivity are not sufficient to manage the delicate politics of recognition. Rather, the particular targeting strategies through which victims are identified, selected and verified are integral to the process. The Trial Chamber left such responsibilities to the field-based expertise of the TFV.Footnote ⁴⁴ Yet relegating these details to a ‘technical’ phase of implementation, in place of managing them through the Court’s legal processes, leaves the reparations process particularly vulnerable to Ituri’s politics of recognition, regardless of how inclusive the process might be. At the same time, it risks relegating reparations to little more than long-delayed assistance.

Children associated with armed forces

As the sole crime charged in Lubanga, the enlistment of children associated with armed forces (CAAF) has received considerable attention. There is already an extensive body of literature on the challenges of defining, identifying, rehabilitating and reintegrating such children and young adults.Footnote ⁴⁵ For the ICC, one of the greatest challenges will be deciding how to identify and target them in ways that reflect their reality and do not risk further stigmatisation. Many CAAF, for instance, do not self-identify as ‘child soldiers’; many are no longer children; many were not abducted, but volunteered themselves or were volunteered by their families; and females, especially, may avoid the label because they are more often harmed by sexual violence and the resulting stigma than males. Moreover, there are many other ways young people can be made vulnerable by war. They can be orphaned, displaced, forced into camps, forced into prostitution, seriously injured and more. CAAF can be in better economic situations than their peers precisely because of their association with armed groups, which is often an incentive behind enlisting in the first place.

There is a wealth of information available from disarmament, demobilisation and reintegration (DDR) programmes around the world, all with significant warnings and lessons. They unanimously reinforce the value of inclusive programming as a method to target child soldiers without stigmatising them.Footnote ⁴⁶ When applied, though, inclusive programming generally means not recognising CAAF. To do so, DDR projects thus blend child soldiers together with other ‘war-affected children’, who, in programming parlance, are often narrowed down to ‘orphans and vulnerable children’ (OVC). Different agencies use different ratios of CAAF to OVC, including the Trust Fund in Ituri.Footnote ⁴⁷ The key, though, is that ‘community-based programming that applies to a wider group of vulnerable children is more effective than assistance targeted at a specific group identified by one experience alone’.Footnote ⁴⁸

To this end, integration is considered a major step in the rehabilitation process, if not the most important one.Footnote ⁴⁹ Many note that girls may not want to participate in projects publicly labelled as DDR because they do not want to self-identify as ‘child soldiers’ or do not self-identify as such in the first place. Instead, girls may ‘perceive themselves as “wives” or “cooks” and prefer these social categories’.Footnote ⁵⁰ For these girls, integration might mean losing the social label ‘child mother’ and becoming a ‘student’ in the eyes of her peers. These lessons around inclusivity for female CAAF have been significant for the ICC. In one Trust Fund assistance project for female CAAF, for example, providing girls with a school uniform to wear was among its most powerful interventions.Footnote ⁵¹

Victims of sexual and/or gender-based violence

For victims of sexual violence more generally, lessons about inclusivity are less clear than for CAAF, but are still significant. On the one hand, that victims of SGBV are specifically targeted is itself an accomplishment given the historic lack of public recognition of and resources devoted to sexual violence in and after war. However, experts in the field also recognise the risks of stigmatising through overly restrictive approaches to targeting. In August 2010, for instance, a high-level panel convened to assess existing judicial mechanisms for victims of sexual violence in eastern DRC concluded that targeting reparations to victims of sexual violence can further stigmatise them – a particularly troubling idea, they noted, as ‘the reparation needs of victims of sexual violence may be caused more by the stigmatisation than the sexual violence itself’.Footnote ⁵² The report quotes the coordinator of a Congolese NGO supporting victims of sexual violence, who herself requested that donors actually stop targeting SGBV exclusively, since ‘much attention given to sexual violence victims is fuelling jealousy and further stigmatisation’.Footnote ⁵³ Other agencies have come to similar conclusions.Footnote ⁵⁴

Like the Trial Chamber in Lubanga, the panel suggested that both collective and individual reparations are necessary. It found that individual and collective targeting can respond to different needs and demand different screening requirements and burdens of proof, providing the flexibility needed to adapt to different local conditions and needs. As for CAAF, proactively not recognising victims of sexual violence for the harm they suffered can be a valuable part of the process. Rehabilitation projects, that is, provide vulnerable groups not only with valuable material and social services, but also with social identities that are often rooted in projects’ eligibility criteria and targeting strategies.

This is not meant to suggest that CAAF, especially female CAAF, or other victims of sexual violence, do not have specific needs that are unique to their experiences. Rather, I draw on these literatures to highlight here that certain needs of vulnerable groups can be met through targeting strategies that do not impose or reinforce identities that are harmful or irreconcilable with local realities, or which the intended beneficiaries themselves may reject.

Competing for victim status

Such desire for recognition, coupled with the lack of faith in external representations by institutions like the ICC, motivates the first of the two struggles I focus on here: competition over legitimate victimhood. Vis-à-vis reparations, this competition expresses itself primarily in questions about collective and individual reparations. Overall, there was a strong preference for collective reparations. This would seem to fit with the Lubanga Trial Chamber’s emphasis on collective reparations, but not with its linguistic distinction between victims and beneficiaries. Many subjects, for instance, expressed that it would be unfair to draw lines through individual awards because the OTP only investigated a subset of the towns and villages that were devastated by the war:

The emphasis here is on ‘chosen’ localities; that is, the towns and villages officially sanctioned by the ICC as having suffered. Others added, along these lines, that it would simply be impractical to repair victims individually when everyone had suffered.

Many also expressed a lack of faith in the ICC’s objectivity, recalling the ‘fake victims’ that beleaguered the prosecutor’s case in Lubanga.Footnote ⁶⁴ How, they asked, can we trust that someone is really the victim they claim to be?

One leader, in particular, offered an interesting case study. He is the leader of the town of Nyankunde, which endured one of the deadliest massacres of the Ituri war, but which has not received significant attention from the ICC. Nyankunde is ethnically Bira and therefore is difficult to place in the Hema-Lendu dichotomy, although the Bira were alleged to have supported the Hema in the ICC trials against Lendu leaders Germain Katanga and Mathieu Ngudjolo Chui. He recounted how at one point he had personally begun to collect the skulls of those killed in his town, after an international church group brought him to Kigali to see a monument built for the Rwandan genocide. He believed something collective like a monument could help his town as well. ‘People must know what happened here,’ he said, ‘so it does not happen again.’Footnote ⁶⁶

The Nyankunde chief’s perspective is significant because it differs quite sharply from those expressed in the town of Bogoro, a day’s drive away and also the site of a brutal massacre. Unlike Nyankunde, Bogoro has played a key role in ICC proceedings as it is the town where Ngudjolo Chui and Katanga were alleged to have carried out an attack against the predominantly Hema population. Indeed, Bogoro is the only town in Ituri to have received such sustained focus, including a visit from former prosecutor Moreno-Ocampo and from ICC trial judges.

Community leaders in Bogoro expressed the strongest desire for individual reparations of all our interviewees. Some NGOs in Bunia even suspected them of trying to turn their fellow villagers against the idea of collective reparations. ‘It is clear’ who the victims are, one Bogoro leader told us, ‘because the ICC has a list’ – a reference to the list of victims approved to participate in the Ngudjolo and Katanga trials.Footnote ⁶⁷ ‘Others,’ one added, ‘were trying to generalize this list.’ These leaders recognised that other towns had also suffered during the war – including other Hema towns – and might be upset by Bogoro’s individualised recognition, but this did not seem to matter. ‘The ICC talks about Bogoro,’ one village elder concluded. Such attitudes can also be seen in some of the submissions from those victims participating in the ICC’s trials. Some of the participating victims in Lubanga, for example, suggested that they could receive a ‘war victim’ certificate from the Court, designating their official status and providing them access to services.Footnote ⁶⁸

Framing the Ituri war

The desire for individualised reparations in Bogoro was more of an expression of solidarity along geographic, not necessarily ethnic, lines. This reflects the second element of the struggle over representations on which I focus: contest over the legitimate characterisation of the conflict itself, particularly over the Court’s framing of it as essentially ethnic. The great majority of leaders with whom we spoke acknowledged the ethnic nature of the conflict, and many expressed ethnic bias and hatred during interviews, but both Hema and Lendu (and the other groups with whom we spoke) took issue with the ICC’s account. While each group felt they alone were the true victims of the war, leaders from all sides felt strongly that the Court had mischaracterised their grievances, with which they had managed to live since long before war broke out in Ituri.

‘We are condemned to live together,’ subjects frequently said. Often they followed with rhetorical questions such as, ‘Whose were the hands that manipulated us?’, ‘Where did the guns come from?’ and ‘Why are they not in The Hague?’, referring to the Ugandans, Rwandans and Congolese from Kinshasa who, in their mind, fuelled the conflict and gained from it. Moreover, subjects repeatedly noted that Ituri has more than two ethnic groups and that they were all somehow involved in the conflict.

Competition over the characterisation of the war plays into contemporary Iturian power struggles, where ethnicity is used to divide and motivate constituencies. The ‘extremists’ in Ituri are well known and have the power to block initiatives where they are not sufficiently implicated, or which they feel may not be in their best interests. One international NGO, for instance, found its reconciliation project ground to a halt when Hema and Lendu notables demanded, as a precondition for their cooperation, that their ‘brothers in The Hague’ be released.Footnote ⁷⁰ Yet, virtually all with whom we spoke, whether ethnic community leaders or civil society leaders, agreed that the extremists must be implicated, and that attempting to forge ahead on a project about the war without them would go nowhere.

These narratives are not meant to argue for or against the veracity of the different claims our subjects made about the truth of the Ituri war. Rather, I cite them to illustrate the struggles over recognition that are likely to influence how the ICC’s reparations process will be received. The key issue will not only be who gets what, but what does this distribution mean for the myriad categories and frames through which the conflict can potentially be represented. Opening up the process to both ‘victims’ and ‘beneficiaries’, as the Trial Chamber in Lubanga has proposed, could in theory be one way to make the process inclusive, although the Appeals Chamber’s judgment appears to limit such inclusivity. But there is more to claiming victim status than the benefits it might yield. The truth of what happened is also at stake.

Ultimately, such challenges cannot be managed through technical means alone. The truth implied in a reparations award is received and interpreted through the means and categories by which the award is targeted. This demands sustained involvement from ICC chambers and meaningful participation from Iturians themselves throughout the reparations process. Moreover, where technical expertise does matter, it is not necessarily the kind that the TFV has exhibited in its provision of assistance projects. Rather, the provision of reparations demands a very particular form of expertise about how to carry out meaningful participation in charged circumstances, like the politics of recognition in Ituri, described above. The concluding section considers some potential ways forward.