As already established, ICTs have largely failed to recognise issues concerned with redistributive justice. Drawing on previous observations, this discussion of redistributive justice will focus on practices of reparation. After all, forms of reparation are concerned with issues of restitution, compensation and satisfaction (Gillard, 2003). ICTs can play an important part in satisfactory reparation, especially when harms are formally recognised and acknowledged by the courts. This process of recognition can facilitate the redistribution of power by redefining power imbalances evident between perpetrator and victim. The ICTR has offered some level of satisfactory reparation where SV is concerned, by successfully indicting, prosecuting and punishing those guilty or responsible for such acts. Yet, the potential to ‘do’ redistributive justice in this sense has sometimes been undermined, especially when victims have felt re-victimised by the courts, or where ‘insufficient’ sentences have been handed to SV perpetrators62
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In light of other forms of reparation, the ICTR has failed to adequately respond to victims’ needs where restitution and compensation are concerned (see African Rights & Redress, 2011). Restitution, as defined by the UN (2010: 40, 47), is “the re- establishment of the situation before the wrongful act was committed”, whereas compensation is defined as “economically accessible damage”. Gillard (2003) notes that these forms of reparation can be a practical and important part of addressing the consequences that IHL violations cause to victims. As identified in Chapter One, in the
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See Brouwer (2005: 443-447), Nowrojee (2005) and Seelinger et al. (2011: 52-54) for an overview on sentencing practices in the ICTR.
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wake of SV violations committed in Rwanda, victims required urgent medical and psychological care. Women were also faced significant economic burdens due to the loss of property and assets. Many women lost their main source of income, following the deaths of their husbands. These difficulties were further intensified, because many women were unable to work following SV. However, due to institutional limits, as well as a lack of institutional resources, many SV victims have been forced to cope with these challenges on their own (Porter, 2007).
While the ICTR has provided medical and psychological support to victims who have testified, this support has been limited to their stay at the Tribunal (see Brouwer, 2005; Chifflet, 2003). Moreover, such support does not reach those victims who stand outside the ICTR crimes process (Brouwer, 2005). Thus, calls for the UN to address the need of compensation and restitution have been pressed by non-governmental organisations, and other organisations working with genocide survivors (see African Rights & Redress, 2011). These requests, however, have also been made by the ICTR. In 2002, the then President of the ICTR, Navanethem Pillay, noted that “compensation for victims is essential if Rwanda is to recover from the genocidal experience” (Pillay, 2002: 1). She submitted a proposal to the UN Secretary-General in 2000, which argued that genocide victims should be compensated (Pillay, 2002). Within this proposal she referred to the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’, as discussed in the previous chapter, which states that victims of wrongful acts should be entitled to restitution, compensation and other forms of assistance for the injuries they have suffered (see GA, 1985). In acknowledgment of this report, the ICTR Judges indicated their support for compensation, but argued that compensation and restitution were issues that should be addressed by domestic courts (SC, 2000b).
This attitude has governed how the ICTR has addressed issues of compensation and restitution. Within the ICTR Rules of Evidence and Procedure, Rule 105 and 106 pertain to principles of restitution and compensation (ICTR, 2010b). In particular, Rule 106 stipulates that victims seeking compensation against a perpetrator convicted by the ICTR must apply to a national court or other competent body in order to pursue claims of compensation (ICTR, 2010b: 121). However, Survivor’s Fund (2012) argues that, due to a lack of funds, Rwandan courts have not paid any compensation. Despite this,
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no changes have been made to assist survivors in obtaining compensation within the ICTR framework (Survivors Fund, 2012).
A senior staff member of Ibuka, an umbrella organisation for survivor organisations in Rwanda, details that “the ICTR spends the equivalent of $500,000 (US) each year, but we do not see any corresponding gains for the survivors who are seeking justice” (cited in African Rights & Redress, 2008: 57). In this respect, it might be questioned if the money injected into the ICTR would be better reserved for responding to the immediate needs and challenges that all rights violations victims face in the aftermath of systematic violence.
Conclusion
This chapter argues that, whilst the ICTR has recognised SV and its victims by successfully indicting, prosecuting and punishing some perpetrators responsible for these heinous acts, SV crimes have often been constructed and responded to in ad hoc and skewed ways. This chapter details that, in the early years of the ICTR, SV crimes went largely unrecognised and unaccounted for. Due to institutional incapacities, in combination with a lack of political will, the Tribunal reserved its time and resources for the investigation and prosecution of ‘more serious’ crimes, such as murder, torture, extermination and genocide. Although there has been some improvement, this chapter revealed that SV and its victims are still largely underrepresented in the ICTR crimes process. As demonstrated above, the number of indictments containing SV charges is still relatively low. Furthermore, in cases where SV charges have been successfully included in indictments, almost half have resulted in an acquittal.
This chapter also details that there were significant problems concerning the institutional framework of the ICTR. This chapter demonstrates that the ICTR has conceptualised crimes of SV in a skewed way, adopting definitions which have inadequately captured the reality and lived experiences of SV victims. The adversarial court process has also limited victim participation and has functioned to silence and marginalise victims’ testimonies in favour of a legal narrative. Not only this, but methods of cross examination have also proved problematic, especially when Tribunal staff have exercised little regard for victims providing testimony, by asking unnecessary
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and difficult questions, and making insensitive and inappropriate remarks in trial proceedings. At times, sex-biased and harmful stereotypes have also permeated the cultural framework of the ICTR. These practices have subsequently undermined positive practices of recognition by subjecting women to unwarranted and unnecessary victimisation.
Victim participation in the ICTR has also been fairly limited, for a number of reasons, including weak and ineffective safety and protection sections, as well as significant structural disadvantages. Last of all, this chapter highlights that the successes of the ICTR in providing recognition for some victims, have been undermined by their failure to address issues concerned with redistribution, particularly in the form of compensation.
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