This week, Trial Chamber I of the International Criminal Court (ICC) issued its decision establishing the principles and procedures to be applied to reparations in the case against former Congolese militia leader Thomas Lubanga. Earlier this year, the same Trial Chamber found Lubanga guilty of conscripting and enlisting children under the age of 15 years and using them in armed conflict. Lubanga is the first person to be convicted for war crimes at the ICC, and this marks the first decision on reparations the Court has issued.
In the more than 90 page decision, judges Adrian Fulford, Elisabeth Odio Benito, and René Blattmann stated the importance of reparations in international criminal law. Reparations go "beyond the notion of punitive justice, towards a solution which is more inclusive, encourages participation and recognizes the need to provide effective remedies for victims." Reparations are specifically mentioned in Article 75 of the Rome Statute, the founding document of the ICC, which lists restitution, compensation, and rehabilitation as forms of reparations. The judges also noted that reparations with symbolic, preventative, or transformative value may be appropriate.
The judges stressed that reparations should be applied in a "broad and flexible manner" and laid out principles to be applied in the Lubanga case. One such principle is that victims are to be treated fairly and equally, irrespective of whether they participated in the trial proceedings. However, priority may be given to certain victims, who are in a vulnerable situation. This means, the Court may adopt measures that constitute affirmative action in order to guarantee equal, effective, and safe access to reparations, particularly for victims of sexual violence, individuals who need immediate medical care, and traumatized children.
The decision went on to state that "gender parity in all aspects of reparations is an important goal of the Court" and recognized that victims of sexual violence face long-term consequences that must be taken into effect in designing a reparations program. The rehabilitation and reintegration of child soldiers should also be prioritized and have a gender-inclusive approach.
Rule 97(1) of the Rules of Procedures and Evidence says "the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both," and the judges determined that the Court should ensure there is a collective approach that ensures reparations reach those victims who are currently unidentified. It was held that individual and collective reparations are not mutually exclusive and may be awarded concurrently.
Lubanga has been declared indigent by the Court and cannot contribute monetarily towards a reparations program. Lubanga is not prevented from participating in symbolic reparations, such as a public apology; however, such non-monetary reparations are only appropriate with his agreement. The Court will not order such symbolic acts.
Going forward, the judges stated the reparations for Lubanga's victims will be primarily handled by the Trust Fund for Victims (TFV) and overseen by a different trial chamber of the ICC. The TFV, which was created by the Assembly of States Parties to the ICC, has a mandate to implement Court-ordered reparations and provide physical and psycho-social support to victims of crimes within the Rome Statute. It is funded largely through contributions from states and private donors.
In addition, the Chamber recommended that a multidisciplinary team of experts be retained to provide assistance to the Court in five areas: (1) assessing the harm suffered by victims; (2) looking at the effect that the crime of using children in armed conflict had on their families and communities; (3) identifying the most appropriate types of reparations; (4) establishing those individuals or communities that should receive reparations; and (5) accessing funds for reparations purposes. The judges delegated to the TFV the task of selecting and appointing appropriate multidisciplinary experts, which should include representatives from the Democratic Republic of Congo, international representatives, as well as authorities in child and gender issues.
With regard to financing, the Court is able to draw on the logistical and financial resources of the TFV in implementing any reparations award. The award is not limited to the funds and assets seized and deposited with the TFV, particularly when the convicted person, such as Lubanga, has no assets. Reparations can, at least potentially, be supported by the TFV's other resources to assist victims.
Lastly, the judges endorsed the five-step implementation plan suggested by the TFV. The plan involves the TFV, the Registry of the ICC, the Office of Public Counsel for Victims, and the appointed team of experts to first decide the localities to be involved with the reparations process specific to the Lubanga case. Second, consultations should be held in each relevant location. Third, the team of experts should carry out an assessment of harm during the consultations. Fourth, reparations procedures and principles should be explained to communities through a series of public debates. Finally, proposals from each location will then be collected and presented to the trial chamber overseeing reparations.
The Open Society Justice Initiative will continue to monitor the reparations process in the Lubanga case as it develops.