Deborah Ruiz Verduzco is the executive director of the Trust Fund for Victims (TFV) at the International Criminal Court (ICC), which implements reparation measures for victims. Besides her work at the ICC, Dr. Ruiz Verduzco has a PhD in international law and has worked with the International Commission on Missing Persons and Parlamentarians for Global Action.
Interview by Sarah Easy, Lena Fox, Marie Valerie Kornis, Elizabeth Macaire and Fee Wittenbecher (2024).
The interview was conducted in the spring of 2024 and has been edited for clarity.
The status of children born of sexual and gender-based crimes under international criminal law has transformed in the past few years from a silenced hidden group to a recognised and direct category of victims, as confirmed by the recent Ongwen reparations order of February this year. Are you able to explain the reasoning behind this definitional shift and what it means for children born of sexual and gender-based violence (SGBV)?
Yes, certainly. It is a very positive development. I can not explain so much the reasoning, but I can explain the factors that brought us to this moment of coming out of the dark.
The first factor that we need to understand is that, as the convictions and the reparation orders demonstrate, the prosecution was able to bring to these cases an increased level of sophistication and complexity.
As a result of this increased complexity and scope of prosecution, you have both a larger impact on the victims and on the command level of the individual that is being convicted, which, as a superior, will have, of course, increased responsibility. We must recall that Mr. Ntaganda was convicted of 30 years of imprisonment, and that is the maximum sentence that can be given at the court. Mr. Ongwen's sentence was likely smaller than the 30 years.
Notably, you will have many more victims, but that also allows to cover different forms of victimization.
In Lubanga there were no sexual based related crimes that were being charged, this is why you did have children born out of SGBV as victims at all. It must be recalled, however, that the children born out of SGBV in the Lubanga program are receiving, and in some cases participating, in the reparation program as beneficiaries. They may be able to receive schooling support as a way to ensure the success of their parents' income-generating activity.
Also, a very important factor that has brought this to light is that the jurisprudence has evolved. Therefore, the judge's understanding and interpretation, the process of going from crime to victim to harm, has also evolved, which means that there is much more openness and much more opportunity to have and to apply that openness.
And then we have the societal changes. As we know, in recent times, there has been enormous advocacy by survivors around sexual-based violence, not only internationally, but also domestically. Civil society organizations have played a very important role in making visible the violence and in making concrete outcomes like documenting the crimes and advocacing. That has resulted in policy changes at the ICC, both by the Office of the Prosecutor (OTP) and by the court, but also the incorporation of the fight of SGBV into foreign policy, that has been accompanied with considerable resources to invest in preventing, eradicating and redressing survivors of sexual gender based violence.
All these changes are being seen materialize in these two decisions, in the Taganda and in the Ongwen decision. We also see it very importantly in the way that, in the Ongwen decision, it is indicated that the recognition of children as direct victims is an acknowledgement of the harm that they suffer, and that, in itself, it is also an adequate measure of satisfaction that should bring to the survivors, in addition to other forms like rehabilitation or symbolic reparations to realize that award.
You talk about this advocacy shift and the strengthening of victims' voices. How do you think that other aspects of civil society inform the Court's understanding in terms of amicus briefs that were submitted? How important do you think this was to expanding this category?
Yes, very important. I think advocacy by survivors and by civil society is extremely, extremely important. That advocacy has an impact in the data that can be collected by civil society and made available to investigators. At the level of documentation, it is very important.
That advocacy has also brought important policy decisions by the Office of the Prosecutor in terms of their investigative approaches about this nature of crimes. That is a result of advocacy.
There has also been advocacy that has resulted in actual foreign policy adopted to advance the prevention and the dealing of sexual-based violence. You have countries like Sweden or the Netherlands or the UK, now most of Europe and Latin America and Africa and Asia, having actual foreign policies. That means that there is more funding for civil society to do this advocacy. And there is also much more interest from states' parties to push for that dialogue.
That also becomes institutionalized. The ICC adopted itself numerous policies related to gender-related elements, not only sexual-based violence. It is an entire societal shift that naturally the judges will take on board.
Throughout the judicial process you also have much more support, much more evidence, much more information that legal representatives of victims can bring to support their argumentation. The legal representatives of victims have always been the ones at the tip and at the vanguard, allowing the rest of the system to catch up into the information and the understanding that they already had firsthand because they work with the victims themselves. And then you have also the very important role of the amicus, of the amici that submit their views in the reparations proceedings.
The Trust Fund for Victims, having worked in the implementation of the Lubanga reparations program, has had a firsthand view of the situation and what in that context are indirect victims, which are the same children. That also equips us to better understand the phenomenon firsthand.
Those children in the context of Lubanga may be receiving reparations as indirect victims, but in the end, they are the same children. And then we understand also societally the linkage between the crime, the harm, and the reality of those victims today. The Trust Fund, therefore, is also able to bring forward much more concrete approaches to dealing with that type of harm.
It has been great to see this evolved understanding entrenched in the ICC's new policy, as you say, in the policy on SGBV crimes that the OTP issued last year, and really this evolution across all organs of the court. Now that the court has handed down its reparations order in the Ongwen case, what are the next steps for the TFV and how will victims be involved in this process?
The next steps are really in several lines of work because, as you know, there is a number of actors that are involved and that have been called upon different functions as a result of the reparations order.
We have the public information and outreach section of the registry. They are mandated to ensure that there is communication, visibility, and understanding by the affected communities and the potential eligible victims about the reparations order. That is very important itself because what the Chamber has recognised has an impact on reparation.
The way the order is disseminated and how children, victims and survivors are seeing themselves be recognised as victims in the order is a very important next step that is already happening right now.
Our colleagues were yesterday in some districts in northern Uganda conducting radio programmes to talk about the order and breaking down the different components, different categories of crimes, the different categories of victims that the judges have recognised and the measures they have ordered. That is one strain of work that is now underway.
The second very important component has to do with the identification of victims and the eligibility of victims, which is a responsibility of the victim participation and reparations section and also of the registry. The VPRS has been given a deadline to identify those victims and determine their eligibility.
Also, legal representatives who already have their clients from those participating victims are now speaking to them to understand that there is a deadline for a potential appeal by the legal representatives and there is ongoing consultations.
On the part of the Trust Fund for Victims, we have two big lines of work. The first one is we are mandated or we are invited actually by the judges to present a proposal of an implementation plan. We call it the DIP, the Draft Implementation Plan, that has to be developed on the basis of consultations with victims, including survivors of sexual gender-based violence and the children born out of that violence, to understand their wishes, their needs, their preferences, the ideas they have about how the order can be implemented.
Within that DIP, we need to also look at the programmatic component. For example, if we think that what we need is psychological treatment or medical treatment, we also need to operationalize that, make sure that there is a market, that there are providers that are able to deliver what the victims need and do all the preparations to be able to deliver that.
The second strain of work for the Trust Fund is certainly the fundraising, fund mobilization. That means we need to secure funds to be able to deliver as soon as possible at least the first priority component of the order to a large majority of victims, to as many victims as possible, especially those in dire need, which are one of the priorities of the order of the Chamber. This fund mobilization is important because, as we discussed in the previous question, the advocacy around SGBV needs to make available these resources, considering that the convicted individual is indigent and therefore is not able to pay for the reparations order themselves.
The resources will need to come from voluntary contributions, of which we hope that the States' parties to the ICC and other States interested in supporting the issue will be supporting with a lot of decisiveness and coherence with their own foreign policies.
As I understand it, the TFV is currently facing quite a significant fund mobilisation challenge, and this, of course, could be exacerbated by the fact that the Ongwen reparations order is the largest to date, and we do see these expanding categories of victims now, children born of SGBV as direct victims themselves, but also their children now as indirect victims. How is the TFV planning to cope with these funding challenges and what needs to be done from civil society as well, as you just mentioned?
Maybe the way you phrase it is the right way to understand the issue. You spoke about funding challenges or fund mobilization challenges, which is very different to deficit. The Trust Fund for Victims is not in deficit. We are operating with resources. We're implementing this year almost 7 million in programs, and we have projected income for this year, so there is no deficit. We have modest reserve, but what we are in face, what we are facing is a fund mobilization challenge.
This order would be a challenge for any organization. It constitutes a very important percentage of the registry's budget, which is negotiated every year, and it is a challenge that has to be faced not only by the Trust Fund, but by the community of states that want the ICC to succeed.
The job of the actors that I mentioned to you and of the judges, is to realize the mandate that the international community gave them, which is to make sure that these crimes are prosecuted and that victims of these crimes receive reparations. This is the challenge that we are facing.
Now, while the sum is considerable, considering also the income that the Trust Fund normally receives annually, and that, as you say, is the largest reparation order, it is also not an outrageous amount of money, because if we had five countries that would give us 2 million each over the period of six years, we would be able to implement this order and the whole program in six years.
I believe that countries that are supporting development cooperation, considering that many of the programs and interventions are very similar to what we do, especially on humanitarian relief or on development, are often above the 10 million or the 20 million level. I believe that finding five donors that can commit to 2 million euros per year over a period of five years or six years is not an impossible task.
The challenge is to make sure that states and donors understand that while what we are trying to implement is a judicial process, at the same time crimes affect victims in their social, economic, and cultural rights. Any category of victims mentioned in the order have been affected in their physical and mental health, in their capacity to join education, to receive education or enjoy the education that may be receiving, in their capacity or opportunities to generate income and engage in livelihood activities, not only because of the violence that they suffered, but overall because the conflict destroyed and impacted economically the country and these villages.
In reality, the Trust Fund has to persuade the states parties in particular, but also other donors, of bringing together that connection that exists between justice and development, and that is being realized in the domain of reparations.
Because that is the area that the crime affect, those are the areas in which we can provide that reparation. And the cash that has been ordered, which is a very important component of the order, €750 per victim, is one hand a symbolic mechanism to give recognition to the victims, but on the other hand is something that can very substantially contribute to the livelihood of a family, if it's also delivered in a way that is understood to be symbolic and also a measure of recognition from the international community. That is a challenge that we have ahead, to mobilize, and that's what we're working on.
Obviously funding is just one of the many challenges that the TFV has to consider when designing its approach to reparations, and how would you define a victim-centred approach to reprehensions? And how is the TFV examining the specific and the unique challenges of children born of SGBV crimes when designing the implementation program?
The first would be a caveat, because I think that the notion of a victim-centred approach is very important in assessing any activity that we conduct around survivors. But the mere existence of a court that has in its status the definition of these crimes, that incorporates provisions, Article 68, Article 75, that guarantee protection, participation, representation, and reparation to victims, already makes the court in itself a victim-centred institution. And the judicial process is victim-centred by nature and by definition. So that is something very important. Reparations themselves, as an activity, are victim-centred.
But we do still need to make sure that we enhance and all the safeguards of that victim-centred approach. The Trust Fund could define it, or we can define it, as the ways, the form in which things are done.
On the one hand, reparations need to deliver on results. The measures that the judges told us to do and the way we would shape them have to be delivered. That is more about result. And the victim-centred approach has to do with the form, with the ways in which that result is achieved. And that result needs to prioritise the rights, the safety, the needs, and the choices of victims, and incorporates mechanisms so that we can listen to them, so that we can avoid retraumatisation, so that we can ensure that they have control in the process, that they participate voluntarily or not, that our mechanisms and our interaction and our information and our interventions are compassionate and are sensitive to them as individuals, but also them as survivors of traumatic incidents. That our interactions, our activities are nonjudgmental, and that also we incorporate risks, appropriate risk management of understanding the impact that an intervention like this would have. For example, considering that some victims might receive reparations and some victims might not be eligible to reparations because they are not covered by the decision or because it will take so many years to reach them.
It also has to do with the way we inform. And in the context of such scarcity of resources, I think a victim-centred approach also needs to ensure that we manage those resources in a very evidence-based manner, in a very transparent manner, because any expenditure or over-expenditure would have an impact in the resources that are available to them. A responsible financial management when it comes to resources that go to victims is central to that victim-centred approach.
Because we are going to have to make choices, because we won't be able to do everything that is expected, then we will have to also communicate very well the reasoning behind the choices that are being made and anticipate the risk and also operate accepting that we might not be able to fulfil everything that is expected from us.
I think this is particularly evident with children born of sexual and gender-based crimes: how do you avoid creating a hierarchy between victims, how do you make the difficult choice when you have mothers who may have competing interests, who may wish for anonymity, moving away from the original crime, and children who obviously are not a homogenous group but may wish for greater recognition, how do you manage these competing interests?
I think this is going to have to be refined in our proposal for implementation plan, and these are the questions that we are asking ourselves in the design, and it is in line with having a conflict-sensitive approach to issues. For purpose of discussion, I think this is where the individualised approach comes.
These reparations have been ordered as collective measures, collective measures in the sense that, contrary to Lubanga for example where the way the decision has been shaped is that all the victims are receiving the measures within a package of options, so medical service, psychological treatment, livelihood, vocational training, income-generating activities, and all of them have access to each of these components, and each of these components are individualised to their needs. That is what is being called at the moment these collective reparations with an individualised component.
That is not what the judges order in their own case. They order collective measures, but there is still an individualised component when we incorporate the victim-centred approach, which means that victims might have different choices about which type of services or activities they want to participate in and how they want their participation to be.
We need to make available is as many options as possible for them, not only in terms of modalities, but in terms of the way they wish to engage. We also hear, speaking of individualisation, the need to understand that victims will have different views, and for some this is the most important thing that is happening, but for a great majority this is just an extra thing that is happening in their lives. So the way we involve them, the way we engage with them, the amount of time we take out of their lives to discuss the plan or explain them the plan, has to be mindful about that and understand that not everybody will want to engage or participate in the same way.
Absolutely. And you mentioned this is just one process that victims may be going through. The reparations order runs in parallel to the Ugandan 2019 transitional justice policy. What opportunities are there for reparative complementarity in Ongwen and for the TFV to work alongside the Ugandan government in this process?
I think the answer lies in how we will see the transitional justice policy being adopted and implemented. It will really depend on what the government is able to or decides to undertake.
The Trust for Victims, like in the Democratic Republic of the Congo, in Guinea, in Cote d'Ivoire, in Mali, is there to support the domestic authorities in the ways they develop their programs. Sharing whatever is helpful to them from our experience. But when it comes to what is within the control of the Trust Fund, as the order provides, there needs to be cooperation and involvement of the government. They are one of the key stakeholders.
The way we have to contribute is that the reparations need to be delivered by engaging, by informing, by considering the views of the government, but also in a non-partisan and apolitical way. The reparations cannot be associated to the government. They are not being delivered by the government, but the government needs to be involved, informed and supportive of the process. We hope to engage with the Ugandan government and we are positive that there are conditions for this to happen. And I think that in the end, the process of delivering the reparations is what can also catalyze.
Sometimes reparations are being considered as something impossible to do, something that is a daunting task and then governments are reluctant to engage in that. How are we going to give money to everybody? How are we going to identify them? Are we going to show them the right victims?
As authorities will be able to witness this process from really close by, they will be able to, to the extent that we are able to maintain an open dialogue with them, see how we go about resolving these issues and demonstrate that it's possible to do it. Then they hopefully can also have much more confidence, experience, support and knowledge into the positive elements that this endeavour brings for the communities, for peace, for the rule of law and for realizing the rights of victims.
As you said, it is going to depend much on what is finalized in this transitional policy, but I know that one concern that FIDH has raised is that children born of sexual and gender-based crimes may not be recognized in this policy. Will that impact the TFV in terms of where resources are decided to be allocated to perhaps fill this gap?
Yes, I think that the order will positively contribute to the situation of children born out of sexual-based violence because, first of all, we are going to have to identify these victims and they are going to have to say who they are.
To be able to ensure that the eligibility process is realized, one of the key issues is the issue of identification, national identification. The eligibility process before the ICC reparations is going to have to be dependent on the access of identity cards for children and therefore that can be a catalyzer to also regularize, open and resolve a lot of the more domestic-related problems that children are facing.
Secondly, we, as the ICC, are recognizing them as victims, and that recognition in itself is going to help a lot with addressing stigma. We will see what the design and the consultations yield, but maybe that is something that the Trust Fund and that the rehabilitation measures can bring. We are doing that in Central African Republic. Women that have been raped suffer stigma and therefore our intervention is also looking at new masculinities to work with the husbands, with the fathers, with the brothers who are rejecting their female relatives. And that is an intervention that is part of our assistance program. Similar interventions in Uganda, if those are included in the final plan, will help society to eliminate stigma. That will of course have a very positive impact in the condition of all victims, of any victim born out of sexual-based violence, regardless of their status in the reparation program of a woman.
The Ongwen reparations order is now the fifth order that has been handed down by the court to date. What lessons have been learned to better address the common challenges of delay and managing victims expectations, which have hampered previous processes?
I think that the first thing in my response is to step away from the term managing expectations. I think we are speaking of the same thing, but the term might be misleading. What you probably mean, what we mean in that is that the expectations of the victims will be quite high and we won't be able to meet them. Most certainly, especially because the order is supposed to be symbolic in nature, because reparations in themselves, especially when it concerns to dignity, life and physical harm or mental harm can rarely be fully restored to the original state of things.
When we say manage expectations, it is maybe also inerrant in the way it is said as if there is something we can do to reduce those expectations or there is something we can do to manage them and say, how are we going to address this? How can we say it is not going to happen, let's not have expectations here. This is what I would like to invite some reflection about.
The victims will have expectations and very high ones, and they are entitled to have those expectations. What is upon us is to deliver the most effective reparations. Cost effective in the sense of reasonable use of resources to maximize the resources available and to communicate as transparently as possible as to what is possible and what won't be possible. And also to communicate when we do not have answers, when we are still deciding, when we do not have an answer for the victims. Like now, are we going to be able to mobilize those resources? We don't know. We have to wait and see the dialogues that we are having with states and potential donors. We need to communicate that and to present the possible scenarios. I think that is something just to take from your question that is very important. That is a very important lesson learned, that communication and information is probably one of the most difficult things that need to happen when implementing these programs. But it is also one of the most important things that need to happen when doing these programs.
Now, if we are talking about lessons learned as well, there will be a lot of attention around implementation of this order. And I really thank you and this podcast is an evidence, but there has not been equal interest or there has not been equal access possibly or equal understanding about other reparations programs out there, including in the DRC. For many reasons that we do not need to analyze. What we know is that the ongoing decision will be highly scrutinized, will be highly evident.
Also, Uganda is accessible, it is not in armed conflict anymore. It is easier to engage when we have safe security contexts. That means that in terms of lesson learned, we have a great opportunity to make the process really visible and really use it as a chance to understand what it takes to deliver these reparations. For students, scholars, experts, policymakers to engage and see it and evaluate it and help us be accountable and give us advice and tell us where we are getting it wrong and push us and compel us to do better.
That would also mean that, as the IER recommended, we will be needing to systematize our approaches, our practices, so that they can be better understood. There is a very important opportunity with Ongwen as long as, of course, we are able to secure those resources. And that is what we're working on right now.
Is there anything further you would like to add before we end here concerning the work of the TFV or Victims' Rights to Reparations more broadly?
Yes, of course, the Trust Fund for Victims is such an amazing dream that was embedded in the Rome Statute. There is nothing, there is no institution of its kind. There is nothing like the ICC, but also there is no international tribunal that has this mechanism. So there is an institutional innovation in this and we need to achieve a lot for the victims under the what falls under the convictions of the ICC.
But we also need to do it in a way that catalyzes much more impact for those victims that will not be able to benefit from the reparations of the cases of the ICC. And that is what I want to invite the public to do, to not only think of the work that we are doing, but how the work that we are doing can help other victims and can shed lesson and can build trust around the notion of reparations. That is becoming a very important debate concerning justice around the world. And in that sense, we are very open and we invite everybody to come close to offer their expertise or knowledge.
The field is very interdisciplinary, very multidisciplinary. It requires the Trust Fund to be really good at fundraising, at understanding victimization, at implementing programs. We have to be very good at operating in unsafe environments. We have to be very good in exercising adequate financial control over the activities that we're having. We have to be really extremely good at communicating and informing people and engaging diplomatically with our stakeholders. So all expertise, all advices are welcome in shaping not only the work that we do, but how our work can impact around the world also.
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