IJCentral: International Justice Central

In March 2012 the first verdict of the International Criminal Court (ICC) was given in the case of the Prosecutor v. Thomas Lubanga Dyilo.  The Trial Chamber I of the ICC found Mr. Lubanga –a Congolese warlord- guilty of committing war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. 

Mr. Lubanga was further sentenced by the ICC to a 14 years imprisonment. On August 7th, the same Chamber issued the first-ever ICC decision establishing the series of principles and proceedings which should guide reparations in this case. 

This article aims to provide the reader with a general overview on the content of this landmark decision, while illustrating how reparations are yet distant from reaching those victims affected by the crimes committed by Mr. Lubanga.

The principles adopted confirmed several international standards on reparations such as: The recognition of the right to reparations as a basic human right; reparations should be appropriate, adequate and timely; the needs and views of victims should be taken into account –specially in cases of children, elderly people and victims of sexual or gender violence-; reparations should be granted without any discrimination and avoiding stigmatization; reparation measures should be proportionate to the harm suffered and reflect, whenever possible, local cultural and customary practices; and reparations measures could include restitution, compensation and/or rehabilitation, while recognizing the existence of other means of reparations such as the symbolic.

Moreover, these principles shape the reparations system of the Rome Statute by establishing that: Victims should be treated equally –whether they participate or not in the ICC proceedings-; reparations should be granted to direct and indirect victims; reparations could take an individual or collective format; reparations should reach currently unidentified victims and symbolic reparations should be considered - for example the publication of Mr. Lubanga’s conviction and his sentence- or by other means under a voluntary contribution of Mr. Lubanga with non-material reparation such as expressing a public or confidential apology for the harmed caused.

An innovative aspect of the principles is they recognizes that other forms of reparations may be considered under article 75 of the Rome Statute such as: campaigns to improve the position of victims; issuing certificates acknowledging the harm suffered; launching outreach information activities and educational programmes directed at reducing the stigmatization and marginalisation of the victims, and the need for States –parties and non-parties- to contribute to the success of the implementation of reparations awards.

The ICC decision includes also principles to guarantee that reparations measures address the type of harm suffered by victims resulted from the crimes of which Mr. Lubanga was found guilty, particularly the use of minors in hostilities and suggested to adopt a gender-inclusive approach in the reparations. Thus, the age of the victims should be considered along with the need to rehabilitate children formerly associated with armed groups within their communities. Moreover, due to the strong sexual violence component that shaped the DRC conflict, the ICC decision included special elements to address this issue, such as the need to take into account the complex consequences of these crimes on victims and in their communities and therefore the need for their participation in defining the reparation measures.

It´s noted that in view of the indigence condition of Mr. Lubanga, the ICC ruled that reparations should be granted through the resources of the Trust Fund for Victims (TFV).  Thus, tasks still pending includes: the identification of communities affected; launch a consultation process with victims and communities in those communities; assessment of the harm caused by the crimes; held public debates to explain this decision; and collect the proposals of adequate forms of reparation. Afterwards, the TFV should present a reparations plan to a newly constituted Trial Chamber for its approval. To this extend, the Court ordered setting up a multidisciplinary group of experts to assist in the tailoring of the reparations plan. Moreover, it was decided that all individual applications for reparations submitted this far, should be forwarded to the TFV in order to be consider in the reparations plan.

The Chamber decided that a standard of “proximate cause” should be used to prove the harm suffered and decided that a flexible approach in determining factual matters is appropriate. In cases of individual reparations victims will need to prove that they suffered a harm resulting from at least one of the crimes that Mr. Lubanga was convicted of, while indirect victims will need to demonstrate a close personal relationship between them and a direct victim. However, it is likely that reparations will be granted under a community-based approach rather than individual one, since the latter requires a most costly verification process.

Due to the limited resources of the TFV, the ICC Chamber decided that priority must be given to vulnerable victims, including victims of gender-based violence or severely traumatized children. Nonetheless, since this decision was appealed by the Defence, the Office of Public Counsel for Victims and victims´ legal representatives, the legal path to reach a definitive decision is still ahead. Therefore, due to the time that it is still required to witness the implement of the approved reparations plan, there is an urgent need to explain to victims and communities affected -by general outreach activities in DRC- the process that needs to be followed, including the consultations and other mandatory steps before those reparations orders could be awarded. Otherwise, there is an eminent risk that this landmark decision will be polluted with false expectations from potential beneficiaries and with the inevitable perception that even when the ICC has set key reparation principles they still are as far away from victims, as The Hague.