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Maria Jose Recalde-Vela on statelessness and victims' participation

It is important for Courts and Tribunals to be able to create a safe space for victim participation, to ensure that justice can be indeed served and to mitigate the effects of the violations that were suffered

Maria Jose Recalde-Vela is PhD researcher at the Department of Public Law and Governance at Tilburg Law school, within the EDOLAD (European Doctorate on Law & Development) program. She is also Co-Managing Editor of the academic journal “Statelessness and Citizenship Review.”

In her doctoral research, she investigates the manner in which inclusion is conceptualized in the field of statelessness through the practice of stateless actors. She has conducted multiple interviews with practitioners who work on the issue of statelessness from numerous sectors, including civil society, international organizations, grassroots collectives, NGOs, among others. She holds three Master’s degrees - an LL.M in international and European Law, a M.Sc. in Victimology and Criminal Justice and an LL.M in Legal Research, all from Tilburg University. Her undergraduate thesis, titled ‘how can identity assert a claim to citizenship? In search of a safeguard against statelessness’ was the 2014 winner of the UNHCR Award for Statelessness Research in the undergraduate category.

She hopes that the Statelessness and Citizen Review, established jointly by the Peter McMullin Centre on Statelessness at Melbourne Law School and the Institute of Statelessness and Inclusion (ISI), can help advance the understanding of statelessness and related citizenship phenomena and challenges, through bringing together scholars from various backgrounds and is happy to be involved in the journal’s editorial team.


Interview conducted by Shannon Monaghan (2022)

 

The interview was conducted in the spring of 2022 and has been edited for clarity


How did your specialisation in researching and working on statelessness come about?


I wrote my undergraduate thesis on the topic “How can identity assert a claim to citizenship? In search for a safeguard against statelessness” under the supervision of my current PhD co-supervisor and ever since, I have remained very interested in researching and working on the topic of statelessness. However, for my PhD research I am focusing more on a developmental angle and look at issues of inclusion and exclusion and their role in the work that is carried out by practitioners working on statelessness.


After researching and working on the issue of statelessness for many years, in which cases do you think can the deprivation of nationality, resulting into statelessness, lead to international crimes?


The issue of statelessness is not a new issue; statelessness has existed since before the rise of the modern nation state. In antiquity, banishment was akin to being rendered stateless. As a formal legal category, statelessness can be traced to the early 20th century. The aftermath of the First World War and the fall of the Ottoman, Austro-Hungarian, and the Russian Empires rendered many individuals and groups formally stateless. The fall of the empires and the drawing of new borders has often led to statelessness, as some individuals and (minority) groups were excluded from belonging to citizenry within the newly defined states.


Deprivation of nationality is in itself, of course, a human rights violation. However, in some cases in history we can also see that deprivation of nationality has facilitated the perpetration of international crimes against certain groups of people. The most known and major example is the persecution of the Jewish community under the Nazi regime. A more recent example of a notable stateless group that has experienced mass atrocities are the Rohingya. Since 2019, the ICC’s prosecutor is investigating the situation, and it will be interesting to see how it will evolve, and whether it will move to indictments and eventually a trial will be opened.


To what extent can stateless victims contribute to the initiation of and participate in international criminal trials? Is there a difference to victims holding a nationality?


There are three ways through which an investigation can be opened at the ICC: through the referral of a case by a state who is party to the Rome Statute, by referral from the UN Security Council, or by the ICC Prosecutor choosing to investigate (proprio motu). In the case of the situation concerning international crimes perpetrated against the Rohingya, for example, the Prosecutor initiated the investigation proprio motu. Regarding the possibilities for affected persons to participate during proceedings, based on the research I carried out for my article published by Tilburg Law Review, I found that the ICC generally does not distinguish between categories of victims, and their nationality (or lack thereof) does not play a role. The ICC has different mechanisms for victims of international crimes to participate in the proceedings, and participation is not dependent on the link of nationality anymore. The ICC prosecutor has, for instance, heard the views from hundreds of Rohingya on the atrocities they experienced during the investigation stage. So, one can see that the victims of international crimes—irrespective of nationality status—can have an influence in the decision whether to open a trial or not. In this case, since Myanmar is not a party to the Rome Statute, but Bangladesh is, the court allowed for a broad investigation. Many of the alleged crimes took place in Myanmar and led people to flee to Bangladesh. This shows the Court’s willingness to be flexible in special situations where crimes have clearly taken place and justice needs to be carried out.


Once a trial is opened at the ICC, there can be some challenges regarding the ability of stateless persons to participate as witnesses during the trial, in particular when it comes to proving their identities. A difficulty stateless victims could face in a future trial will be the identification documents can be a barrier to participation, as many stateless persons have never had documents, or in some cases their documents were destroyed, or left behind when they had to flee their homes. This is an issue many displaced persons face, and this not only applies to those who are formally stateless. However, lack of documentation does not have to be an impediment for participation in a broader sense, as I found in my research. For instance, the ICC can decide that persons who cannot prove their identity can still participate in the proceedings—being represented in the proceedings by the Legal Representative of the Victims—but might not be able to testify as witnesses. Or perhaps the Court can adopt special procedures for verifying the identity of a witness. The approach depends on the type of court, on the flexibility of the court, on the rules that guide the proceedings of the court in question, and in the context of the case more broadly. We can look at the jurisprudence of human rights courts for inspiration as well. For example, although the lack of documentation initially posed a potential problem during the Expelled Dominican and Haitian People v the Dominican Republic case at the Inter-American Court, and the Dominican Republic argued against the participation of some victims who did not possess legal documentation—such as a birth certificate—in the end the Inter-American Court allowed for stateless persons to participate. Despite these challenges there are also other factors posing challenges to victims’ participation in international trials. For instance, some victims might be reluctant to participate in the proceedings and to share their story due to fear of re-victimization—that they will relive their experiences by participating and testifying in the trial—or fear of retaliation by the accused persons, who may hold political power. Some may take issue with being labeled as victims of a crime and many not wish to participate. These are some impediments that persons who have experienced crimes and human rights violations can face, regardless of a person’s legal status and regardless of the context, and they may not wish to participate. It is important for Courts and Tribunals to be able to create a safe space for participation, in order to ensure that justice can be indeed served and that the effects of the violations in question can be mitigated.


In your Article “Access to Redress for Stateless Persons Under International Law: Challenges and Opportunities”, you address the challenges the “traditional international law” poses to victims seeking redress and how it is currently changing to grant stateless persons more rights. What are, in your opinion, the main challenges that stateless victims of international crimes face nowadays in seeking redress?


The legal mechanisms and possibilities for stateless persons to access redress for violations they have experienced are developing very fast, in my view. There have even been new developments since my article was published in 2019. The article came out before the investigation by the ICC prosecutor on the situation concerning the Rohingya was launched, so I was unable to include that in my analysis. In the present day, compared to the former ‘traditional approach’, there are major differences in victims’ rights to redress, and in particular for stateless persons who have experienced international crimes and violations of their human rights more broadly.


Under the traditional approach, states were the only subjects of international law and redress was linked to the ability—and especially the willingness—of states to make claims on behalf of their citizens. A violation of the rights—often the rights to property—of a state’s citizen was considered a violation of the rights of the state of which the person was a national of. Therefore, any claim for redress had to be channeled through a person’s bond of nationality with their state of nationality, through the state’s official diplomatic channels. A state would then make a claim against the state that committed the violation, and in some instances special claims tribunals were set up, like the Iran–United States Claims Tribunal. So having the nationality of a state was a prerequisite for accessing redress for a violation at the hand of another state. This could not be done against one’s own state. However, since then a lot has changed and now different tribunals, courts and other mechanisms approach the issue of redress in different—and often innovative—ways. Within the human rights framework, individuals who have suffered violations at the hands of their own states can have their rights vindicated through courts and other (semi)judicial human rights mechanisms.


In terms of reparatory measures, I think the Inter-American Court of Human Rights is a leading example of an innovative and progressive judicial mechanism regarding reparations. For instance, the Court has ordered states to implement reparatory measures such as building a museum or a memorial site to commemorate victims of mass killings, to find remains of disappeared persons, to issue public apologies for the violations, to set up prevention programs that can benefit communities at large, among others. In my view, the Inter-American Court’s approach has been influential in developing the various forms reparations can take. In another paper I wrote, I found that in the early jurisprudence of the European Court, the Court often restricted reparations to monetary compensation. Over time—and in my opinion, partly influenced by the progressive and innovative approach of the Inter-American Court—the European Court also began expanding beyond only monetary reparations and began also issuing non-monetary reparations. It will be interesting to see if the African Court on Human and People’s Rights—the youngest among the human rights courts—will follow this path as well.


Furthermore, in some cases human rights courts have provided redress not only to the individuals directly affected who brought the claims to the Court, but also have taken into consideration how the entire community these individuals belong to can benefit from reparations. Since it is highly likely that the community at large have also been affected by the violations in question, it is important to make sure that community members who are not actively participating can also benefit from reparatory measures issued by these tribunals. This is not unique to human rights courts, as the ICC is also applying different mechanisms and has gone beyond only considering those participating in the proceedings when it has issued decisions on reparations. It should also be noted that the Court already had, from the beginning, a favorable framework for victims’ participation. Nevertheless, the ICC is still a new body and is constantly evolving. It will be interesting to see how the Court develops its approach to reparations in the future.


It is also important to keep in mind that persons who have suffered international crimes and human rights violations are extremely diverse and that what they may want can widely vary. Thus, cultural, economic, and social factors also can play a role and should be considered when deciding on appropriate reparatory measures. In the context of stateless persons, we could speculate on several reparatory measures that the ICC could order. For some, the main aim can be to have the crimes they suffered from recognized and that there is some form of punishment for those who committed these crimes. Some victims may want that their former situation is reestablished, for instance by being able to go home if they were displaced. Some might want to be resettled elsewhere. Therefore, in some cases amnesty would also play a role. Stateless persons are not a monolith, and it is likely that different affected persons will have different needs from other members of their community that have also been affected by these crimes. This is something that—if the investigation leads to trials and eventually to convictions and to reparatory measures being issued—the ICC will have to take into account. Many stateless victims of international crimes, for example, will likely want to acquire nationality and legal documentation, and to have access to rights that will enable them to live fulfilling lives. The Inter-American Court of Human Rights ordered the Dominican Republic in the two cases concerning a violation of the right to nationality to restore the nationality of those who were deprived of it. Of course, these are two different mechanisms with different rules, procedures, and with very different legal instruments at the core of their judicial powers. The Inter-American Court orders states—and thus the current government—to implement reparatory measures, whereas the ICC convicts individuals. It is not possible to say whether they could order for restoration of nationality as a reparatory measure, as this would depend on who is the defendant at a potential trial. This is all entirely hypothetical and speculative, as we do not know yet how the case will evolve following the investigation stage.


Generally, it is important to keep in mind that each victim is different and has different expectations from the trial and the forms of redress. Therefore, a close interaction with affected persons and guaranteeing their inclusion in the different stages of the judicial process is of utmost importance.


What does your work now as a Co-Managing Editor of the online Journal Statelessness and Citizenship Review focus on?


Right now, we are focusing on developing and expanding the Journal; we hope to attract new contributions from different areas and expand our readership. It would be interesting to have more perspectives from different actors and fields as well. In this regard, most people often think that stateless persons are refugees and that it is purely a legal issue, but it is more complex than that. Most stateless persons have never moved across an international border and still live within their own countries. Moreover, it is certainly not merely a legal technicality, a matter of people falling through the gaps in nationality laws. If it were only a legal technicality, then the issue of statelessness could be solved rather easily through legal reform. Nationality could be granted in any state willing to give its nationality to stateless persons. Stateless persons could be provided with papers at the stroke of a pen. But this is often not the case. That is why I am currently focusing on the issue of exclusion and discussing inclusion more broadly. In most cases of protracted statelessness, the deeply rooted cause of that statelessness is the targeted exclusion of a group of people, for ethnic, racial, religious, cultural, and other arbitrary reasons. For instance, we often see that groups which are being deprived of or denied the nationality of the state where they live are members of religious, racial, ethnic, or cultural minorities. For instance, in my research I focused on a community in Kenya which has been excluded, in part, due to religious discrimination (islamophobia), and on persons of Haitian descent in the Dominican Republic, who are being excluded due to racism. Unfortunately, these are not exceptional cases, and we can see this taking place all around the world, with minorities being targeted for deprivation of nationality or having been denied the nationality of the country where they live for many generations. I think it is extremely important to try to understand statelessness from different angles and from different disciplines. It would also be interesting if non-lawyers would become more involved as well. For example, Economists could add an economic angle to the existing body of research, statisticians could discuss issues with obtaining data on statelessness, or researchers from different academic backgrounds who could explore, for example, culture in regard to statelessness. In line with this, our goal is to bring in more views into the Journal, and to continue building it and pushing the field forward.

 

About the interviewer: Shannon Monaghan graduated from SciencesPo Paris in summer 2022, with a Master degree in International Security. She is currently working at the UNHCR MENA Regional Bureau in Amman, Jordan, and is especially interested in topics concerning humanitarian affairs, international justice, and international development. She has completed her Bachelor in International Relations and International Organization at the University of Groningen and has been active next to her studies, among others, at Amnesty International, the Dutch Council for Refugees and Sciences Po Refugee Help.

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