Il tema della “giustizia riparativa” è al centro del dibattito internazionale come paradigma alternativo al diritto penale meramente punitivo, capace di connettere in modo innovativo l’esigenza di giustizia da parte delle vittime e l’istanza di una pace positiva. Si tratta di un processo complesso, guidato da un preciso obiettivo: l’accesso da parte delle vittime alla verità, alla giustizia, al risarcimento, unito alla garanzia di non recidiva. Nel 2019 Denis Mukwege e Nadia Murad hanno lanciato il Fondo globale per i sopravvissuti, un progetto di riabilitazione psico-fisica e di sostegno economico-finanziario destinato a coloro che hanno subito abusi sessuali durante i conflitti armati e che soffrono spesso sotto un doppio stigma: la violenza subita e il rifiuto della comunità. Ne dà conto questo articolo pubblicato su International Law Blog. Essendo il fenomeno delle violenze sessuali diffuso sia nelle zone in cui combattimenti sono cessati, sia là dove i conflitti continuano, il fondo ha lo scopo di garantire il diritto al risarcimento ai sensi del diritto penale internazionale per i reati sessuali. Il Fondo garantisce inoltre assistenza alle vittime tenendo conto della globalità dei loro bisogni: dall’assistenza medico-psicologica al sostegno economico, il fondo negli anni ha preso il ruolo lasciato vuoto dagli Stati, cooperando con ONG e fondazioni umanitarie.
di Oïhana Da Rocha
Should the imperatives of peace and justice be reconciled? Are they compatible? The subject is not new, since antiquity, the figures of justice, law and peace are associated, but are they complementary? International criminal justice is faced with a dilemma, that of knowing whether to prosecute those who have committed war crimes, crimes against humanity, or even genocide, and/or to integrate them into the transition process in the name of peace. Prosecuting them risks destabilising society, but not doing so may lead to the same result, a peace with impunity, which may be temporary. What would be peace without justice? And justice without peace?
A social science doctrine has tried to answer this question: transitional justice, which combines law, justice and peace as three superimposed notions that are inseparable from each other. Lasting peace-building and reconciliation are inconceivable without international criminal justice, which puts in place measures to deal with a past of mass atrocities and massive human rights violations. These measures provide victims with direct access to truth, justice, reparation and a guarantee of non-recurrence, which are the four main principles of transitional justice. To this end, in October 2019, Dr Denis Mukwege and Nadia Murad launched a Global Fund for Survivors, to contribute to the psychological, physical and financial rehabilitation of those who have suffered sexual abuse during armed conflict.
The Fund as a tool for transitional justice
The right to reparation as a component of transitional justice
The United Nations has identified four pillars of transitional justice: truth, justice, reparation and guarantees of non-repetition. Indeed, victims are entitled to adequate reparation for the harm suffered. Reparations are not limited to economic compensation but can also include symbolic steps or measures to improve the lives of victims such as access to education or health. International criminal law has a role in giving effect to the victims’ right to reparation, as mentioned in Article 75 of the Rome Statute. Providing for the first time for the competence of an international criminal court to establish principles of reparation to victims, the article draws directly on the definition of the UN Principles, to retain the competence of the Court to adopt reparation orders, which may “take the form, inter alia, of restitution, compensation and rehabilitation“1. International criminal justice and transitional justice have a common purpose related to the establishment of justice and peace based on the fight against crime and the compensation of victims. Complementarity between the two types of justice is therefore indispensable and useful for achieving a lasting peace. The right to reparation is then an essential component of both transitional justice and criminal justice, which must be provided to victims as a human right.
The need for the Sexual Violence Reparations Fund
Sexual violence can be defined as “acts of a sexual nature that are imposed by force, threat of force or coercion, or by taking advantage of a coercive environment or the inability of a person to consent freely”. In general, sexual violence is accompanied by other forms of violence such as murder, torture and cruel, inhuman and degrading treatment. In the current state of law and practice, the victims of sexual violence, some of which can be qualified as international crimes, “rarely obtain justice and never reparation”. Despite the scale of the phenomenon and its international recognition in numerous United Nations texts and reports, a vacuum persists. The cruelty and seriousness of this violence make material action in favour of survivors of sexual violence indispensable. Survivors of sexual violence live with the double burden of violence and rejection by their communities. These realities make the creation of the Global Fund for Survivors a moral imperative.
According to the Mapping report, rape is used as a weapon of war to enslave victims, terrorise the population, take revenge for alleged support for the enemy, but also to reinforce forms of stigmatisation, heightened by the taboos surrounding such crimes. Women have stated that it is “on their bodies” that war is waged. The report also states that “the scale and severity of sexual violence is due in part to the lack of access to justice by victims and the impunity that has prevailed over the past decades, which has made women even more vulnerable than they already were”. As a result of this almost total impunity, the phenomenon of sexual violence persists to this day, even in areas where fighting has ceased, and is increasing where conflict continues.
The right to reparation under international criminal law may apply to sexual crimes. All survivors have a fundamental right to rebuild their lives, and therefore to obtain reparation. On 7 August 2012, Trial Chamber I of the International Criminal Court issued its first decision on the principles of reparations in the Lubanga case. The Chamber recognised the principle of reparations as a human right. It decided that reparations should take into account the gender-based sexual violence suffered by the victims. Furthermore, the ICC judges established that reparations must “take into account the fact that these crimes have complex and multi-layered consequences; that their effects may extend over a long period of time; that they affect women and girls as well as men and boys, and their respective families and communities; and that they require integrated, multidisciplinary and situation-specific measures”. Referring to international law and practice, the ICC judges decided that reparations should cover different modalities: restitution, compensation, reintegration and other forms of reparation. But according to the Independent Expert Review, the ICC Trust Fund for Victims has difficulties to implement these reparations.
Presentation of the Fund
Historical and legal basis
In 2021, sexual violence is still a weapon of war, and hundreds of reports continue to document the existence of widespread and systematic violence in times of conflict. The Democratic Republic of Congo, the “rape capital of the world“, is the scene of a twenty-year conflict marked by the massive and systematic perpetration of sexual and gender-based violence, constituting war crimes and crimes against humanity. Moreover, only a tiny minority of the victims of these crimes received reparation through a formal justice mechanism, even though reparation is a recognised human right.
Today, this right remains mostly theoretical. Denis Mukwege and Nadia Murad’s initiative addresses this gap. While international criminal prosecutions are insufficient and violence continues to increase, they wanted to provide a concrete response to surviving victims, one of the first steps being the creation of this Global Fund. It aims to work with victims in order to compensate for the lack of actions and structures that help survivors on their way to reconstruction. With proper support and recognition, survivors who suffer from exclusion can reintegrate their communities and contribute to the economic landscape.
The Fund is an independent private initiative organisation founded by Dr Denis Mukwege and Ms Nadia Murad, and registered in Geneva, Switzerland. In addition to the founders, the Board of Directors includes a representative of their respective organisations, representatives of four governments (seats will be allocated to three countries with multi-year commitments), three survivors of sexual violence, three representatives of civil society and two individuals and/or organisations from the private sector. Board seats will rotate, with three-year terms. However, board members can be reappointed by a 2/3 vote of the existing board members. The Fund was endorsed by the UN Secretary-General in his statement to the Security Council on conflict-related sexual violence in April 2019 and language referring to the Fund was included in Security Council Resolution 2467. The G7 also confirmed its support for the Fund in its August 2019 statement on gender equality and women’s empowerment.
It is a mechanism to raise and allocate resources for reparations programmes and other forms of reparation, including where states or other parties responsible for the violence are unwilling or unable to provide reparations. The Fund also advocates for duty bearers to meet their responsibilities and may in fact encourage the responsible authorities to take some action, when the state has shown no willingness to engage on the issue of reparations or other forms of reparation. The modalities for receiving grants will be context-specific, but in all cases the Fund will ensure that its contribution is complementary and mutually reinforcing to activities already underway, that it does not undermine other activities, and that it does not prejudice other initiatives, such as formal legal reparations programmes.
In these situations, the activities supported could be civil society-led “interim reparations” and include initiatives to provide compensation, acknowledgement of harm suffered, advocacy or strategic litigation to establish reparations programmes. The precise nature of the activities supported will vary. In some contexts, there may be an urgent need for a more operational response in terms of service provision. The Fund could support such initiatives provided that they complement activities already carried out by other actors and include additional elements of restorative value, such as recognition of the harm suffered. An example of contributions that the Fund can provide is financial or technical support to design national reparation programmes that include financial compensation. This could take the form of a monthly pension, as has been implemented in Kosovo, a one-off payment or payments for a specific period. But it is also possible to organise projects ensuring free access to health care and other psychological services or support for survivors to build houses or meet other material needs, including but not limited to financial support to restart their livelihoods. This support may also take the form of small business training courses or other educational opportunities, including free access to education for their children.
Sexual violence in armed conflict therefore requires a comprehensive and integral response. To be effective, assistance and support must take into account the globality of needs, while respecting the dignity of the beneficiary. The response can include medical, psychological and psychosocial assistance, and even economic support for the most vulnerable victims. As seen, the Fund meets this requirement. If States and competent entities do not take this responsibility, it is essential that civil society takes the opportunity to encourage reparation through NGOs, foundations or funds, without encroaching on the competence of States in criminal matters. Then, the Global Fund for Survivors of Sexual Violence in Armed Conflict gives concrete expression to the right to reparation for victims of sexual violence, as provided for under international criminal law. Therefore, in the absence of establishing such funds, it is essential that states support, finance and promote them to ensure full reparation for victims.Concept Paper, Global Survivors Fund, October 2019.
Fonte: InternationaLawBlog, 17 giungo 2021.