Symposium on Ljubljana – The Hague Convention on Mutual Legal Assistance: Critical Reflections – A Giant with Feet of Clay? Victims’ Right to Reparation in the MLA Convention

[Julie Bardèche is a French lawyer and a legal advisor at REDRESS, an NGO that pursues legal claims on behalf of survivors of torture in the UK and around the world to obtain justice and reparation for the violation of their human rights.]

The author represented REDRESS at the Diplomatic Conference that led to the adoption of the Ljubljana-The Hague Convention.

The right of victims of core international crimes to an effective remedy and to reparation is well-established both in international human rights and humanitarian law. In essence, a State has an obligation to provide reparation when a violation is attributable to it. Further, a State should endeavour to create avenues to enable victims to access reparation for the harm suffered even if the violation is not attributable to that State.

On 26 May 2023, States adopted the Ljubljana-The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes Against Humanity, War Crimes and Other International Crimes (“(MLA) Convention”). This Convention provides a framework to facilitate the cooperation of future States Parties on all matters related to the investigation and prosecution of core international crimes. The Convention covers genocide, crimes against humanity, war crimes, and States can opt for it to also cover the crimes of torture, enforced disappearance and aggression. As such, the Convention will greatly help the fight against impunity by reducing safe havens for perpetrators of international crimes.

Towards the Universal Application of Victims’ Right to Reparation

The insertion of victims’ rights – including a wide right to reparation – in the Convention is a positive step that will help their realisation. The Convention also provides a path for States to cooperate on the implementation of victims’ right to reparation including through the recovery of perpetrators’ assets. These inclusions were made thanks to the contributions of international NGOs (see here, here, here and here) before and during the diplomatic conference that led to the adoption of the Convention. However, the Convention falls short of recognising the full range of reparations and contains so many caveats that one may legitimately wonder what substance remains actionable.

The Convention’s Article 83 (“Rights of victims”) provides:

“1. Each State Party shall, subject to its domestic law, ensure that the victims of a crime to which the State Party applies this Convention, have the right to reparation for harm consisting of but not limited to, as appropriate, restitution, compensation or rehabilitation insofar as either:

(a) The crime has been committed in any territory under the jurisdiction of that State Party; or

(b) That State Party is exercising its jurisdiction over the crime. […]

3. Each State Party shall, to the extent provided for in its domestic law, and, if so requested, give effect to a judgment or order in criminal proceedings, issued in accordance with the domestic law of the requesting State Party, to provide restitution, compensation or rehabilitation to victims of crimes to which the former State Party applies this Convention.”

The scope of victims’ right to reparation as recognised in the first paragraph of Article 83 is wide. For victims to be afforded their right to reparation, it is sufficient that the “crime [be] committed in any territory under the jurisdiction of the State Party” or that the “State Party is exercising its jurisdiction over the crime.” This departs from the traditional requirement that the crime be attributable to the State.

This opens the doors for States to recognise and fulfil victims’ right to reparation even when a crime has not taken place on their territory, by or against one of their nationals, and the crime is not attributable to them. This is what Senegal did when it created a specialised chamber within its domestic system to judge international crimes committed by former Chadian dictator Hissein Habré: it recognised the rights of victims to reparation within that court, even though the perpetrator and victims were Chadian and the crimes had taken place in Chad. Article 83 of the MLA Convention essentially opens the possibility for States to universally enforce the right to reparation for victims of core international crimes.

A Restrictive, Yet Non-exclusive, List of Reparations for Harm

Article 83 keeps the notion of harm broad. In previous drafts of the Convention, the provision limited harm to “material and moral” harm. OHCHR’s 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 (“Basic Principles”) describe harm as including “physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights.” Keeping the notion broad rather than limiting provides States with leeway in their understanding of this notion and the scope of their cooperation on reparations.

The provision recognises several forms of reparations for victims of international crimes. It enumerates restitution, compensation and rehabilitation and appears non-exclusive of other forms of reparation (“consisting of, but not limited to”). Restitution consists in restoring the victims in their rights and in the position that they were in prior to the violations. This form of reparation is rarely available – sometimes even not desirable – in the context of core international crimes. It is relevant in the context of stolen or damaged property, land and other material assets of victims. Compensation relates to financial damages for the pecuniary and non-pecuniary harm victims have suffered as a result of the violation. Rehabilitation aims to address the physical, psychological, social and other harm suffered as a result of the violation through specialised services and other measures.

Article 83(1) falls short of listing satisfaction and guarantees of non-repetition, although they are not explicitly excluded and seemingly cooperation on these forms of reparation is left to the States’ discretion. Satisfaction aims to acknowledge the commission of a violation and dignify the victim. Such measures (including apologies, recognition and the erection of monuments) contribute to redressing dimensions of harm that cannot be redressed through other measures. Guarantees of non-repetition consist in the prevention of the continuation or recurrence of the violation. Under international law, reparations should ideally be awarded to victims in combination rather than in isolation, as they are complementary (see Basic Principles).

During the negotiations of this provision, some States were reluctant to include satisfaction or guarantees of non-repetition in the list. Their reasoning was that they feared being unable to provide such redress to victims and did not want to be bound to cooperate on such measures, which they considered more closely linked to States’ obligation to provide reparations to victims of violations attributable to them. Further, they referred to the open-listed forms of reparation of Article 75 of the Rome Statute as this instrument deals with individual criminal – rather than State – responsibility.

This reasoning fails to reflect the current state of international legal standards on reparations in the context of individual criminal accountability. The International Criminal Court itself interpreted Article 75 of the Rome Statute to include all forms of reparations in the Lubanga case. Further, it ordered its Registry to provide victims with a physical copy of the videotaped apology of the perpetrator to victims who requested it in the Al Mahdi case. This is a form of satisfaction. In this case, the Court also ordered guarantees of non-repetition. Rather than imposing unreasonable obligations on States, recognising all forms of reparations in the Convention would have reaffirmed that these measures can be ordered in such cases. Regardless, to the extent that the list is non-exclusive, the provision still provides the States which recognise such forms of reparation in criminal cases with the ability to request the cooperation of States in a position to help implement them. The MLA Convention will also contribute to realising victims’ rights to satisfaction and guarantees of non-repetition by helping them access justice and in turn may act as a deterrent against some perpetrators.

Operationalising the Right to Reparation

Article 83(3) of the Convention then creates a path for States to cooperate towards realising victims’ right to reparation. When a reparation judgement or order is issued in criminal proceedings, States shall cooperate to give effect to it (see a subsequent post by Leanna Burnard and Danaé van der Straten Ponthoz). This provision should be read in conjunction with Article 45(1), which provides for the cooperation of States over confiscations of “the proceeds of crime or property the value of which corresponds to that of such proceeds […], including laundered property, or of property, equipment or other instrumentalities used in or destined for use in such crimes, or other property for the purposes of providing reparations to victims.” These provisions enable a State exercising its jurisdiction over a core international crime, to request another State to confiscate the assets of a perpetrator for the purpose of providing reparations to victims as ordered by its criminal courts. For instance, in the judgement of Habré for core international crimes, the Senegalese court ordered reparations for victims, including vast amounts in compensation. Had this Convention been in force at the time of the judgement, the authorities of the Senegalese State could have requested another State Party to confiscate the assets of the now-deceased former President, located in that State Party, to fulfil the right of victims to compensation as ordered by the Chamber.

During the negotiations towards the adoption of the MLA Convention in May 2023, States debated whether to include a reference to Articles 45(1) in Article 83(3). The decision was taken not to include this cross-reference. This enables States to think beyond the confiscation of a perpetrator’s assets in order to cooperate on the implementation of reparation awards. For instance, a scenario could be envisaged whereby a State Party exercising its jurisdiction over a crime could request another State Party where victims of the crime are located to provide them with rehabilitation measures (such as psycho-social and medical support) as ordered by its domestic criminal courts. Worth noting that Article 83(3) only lists three forms of reparation (restitution, compensation, and rehabilitation) and does not contain the wording (“not limited to”). States will hopefully interpret that Articles 45(1) (which refers to broadly to “reparations”) and 83(3) should be read to include other forms of reparation.

This paragraph is however also limiting, because it focuses on reparation judgements or orders in the context of criminal proceedings. This caveat was included by States concerned about being seized of requests for cooperation based on civil judgements. However, mostly civil law States have reparation claims joined with criminal proceedings. In common law States, victims often need to request compensation through civil proceedings. For instance, in Kenya, victims of sexual violence during the 2007-2008 post-election violence claimed and obtained redress through the Kenyan High Court’s civil and constitutional division. This judgement could not, to the extent that it is not a criminal judgement, form the basis of a request for cooperation based on the MLA Convention, should assets be in a State Party.

States’ Dubious Approach to International Law-making

The Convention uses language such as “subject to its domestic law”, “as appropriate” and “to the extent provided for in its domestic law” throughout. State representatives included such language ad nauseam through the negotiations, citing to their internal domestic systems not supporting the rights and obligations provided for in the MLA Convention. More worrying, representatives sought numerous times to reflect the limitations of their domestic legislation in the text of the Convention. For instance, previous drafts contained victims’ right to reparation on an “individual or collective” basis. Despite the alternative, some States tried to limit the language to individual reparations, citing to their domestic legislation which did not provide for collective reparations. Again, this approach failed to recognise already existing international legal principles, and threatened to close the door to cooperation towards the realisation of a broader right. Further, it risked eroding recognised international legal obligations.

Conclusion

While the Convention contains some progressive language in relation to victims’ right to reparation, this language does not go far enough. Doing so would have strengthened existing international legal standards in this area. On the contrary, the current text risks paving the way towards diluting these standards. This is of concern, particularly in the lead-up to the negotiations of the Draft Convention on the Prevention and Punishment of Crimes Against Humanity (“CAH Draft”). Article 12 of the CAH Draft contains language on victims’ right to reparation broadly in line with international legal standards. It is foreseen that some of the debates reflected in this symposium will be repeated in that forum and that the inconclusive language used in the MLA Convention may lead to reopening discussions that were only temporarily closed. Let’s not render the tools against impunity for serious international crimes giants with feet of clay.