Dear readers - please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.
The question of reparations in the International Criminal Court (ICC) case of Thomas Lubanga, who was earlier this year convicted of the war crimes of conscripting, enlisting, and using child soldiers during the 2002-2003 conflict in Ituri, is the subject of much debate in the eastern Congolese province. In its decision, the trial chamber in the Lubanga case stated that victims should be awarded reparations and laid out principles for their application. However, the chamber did not make a decision regarding exactly what form these reparations should take. They decided that a proposal based on consultation with victims should be put together for approval by the Court. This left victims and the general public in Ituri with many questions, particularly about the form that reparations may take. Opinion among intellectuals, civil society, and victims is divided on this question. Unfortunately, victims who have been waiting several years for a resolution to their demands for reparations, are having difficulty inserting their concerns in this very technical legal debate.
The Court has created enormous expectations on the part of many victims in Ituri and these expectations will be very difficult to meet. First, there are many who see themselves as victims whose situations are unlikely to be addressed by the Court because their suffering is unconnected with the specific charges related to the Lubanga case. Even for those whose situations are directly addressed by the Lubanga reparations decision, the task of offering effective reparations is daunting. For those who have experienced serious violence and trauma, it is difficult to imagine what reparations might actually address their suffering.
In addition to these more overarching questions about the process there is frustration about the delays that they have experienced in the process. "They have shown great patience to date, and so no further disappointment is countenanced," said an activist in Bunia. "Why, after the announcement of the decision, are actions delayed and the does the debate continue?" asked a parent of one of the former child soldiers, a victim in the Lubanga case.
Indeed, public opinion in Ituri seemed to be that the announcement of the judgment in the Lubanga case should constitute the end of waiting for the victims. At a recent seminar held by Justice Plus, an NGO based in Bunia, many victims expressed disappointment at the approach that the Court has taken and quality of the reparations that are being discussed. For many victims consulted it would be unacceptable to consider the award collective reparations without individual awards as a supplement. When informed by local NGOs that the Court was leaning towards exclusive collective reparations, most disapproved. They felt that individual reparations were the only way to address their needs: "They are talking about collective reparations. If you want to come and build a monument, that is fine, but don't call it reparations." Others reportedly complained that if they had known that their participation in the process would only lead to collective reparations, they would not have bothered to take on the significant risk of participating in the process.
Victims consulted by Justice Plus understood that collective reparations as only symbolic and that incapable of redressing the specific harms that they have suffered. They also contested the extension of the category of those that could benefit from reparations beyond those who had specifically applied to participate in the case, arguing that those who had the courage to approach the court and seek to be part of the trial should not be put on the same footing as those who had not.
A similar sentiment was also expressed by a lawyer in Bunia, who said that he was stunned that the court was refusing to rule on a request submitted to it by the victims. Under Congolese law, he argued, it is for participating victims to lay out what reparations that they consider to be satisfactory. Judges have the authority to assess and adjust the level of the reparations requested by the victim but not to impose a completely different mechanism of reparation. This approach seems to resonate with that of the Lubanga defense team.
Indeed, the September appeal lodged by Lubanga's defense contested the wide approach adopted by the Chamber as concerns the beneficiaries of reparations measures, arguing that victims who do not have official status in the proceedings and victims of sexual violence should not benefit from reparations measures. They also opposed the approach of the trial chamber in requesting the registry and a group of experts to propose a package of reparations, arguing that this represented an inappropriate delegation of tasks that must be carried out by the judges themselves.
Many lawyers in Ituri, whether or not they are close to the Union des Patriotes Congolais (UPC) - the group Lubanga founded and led during the Ituri conflict - as well as other members of civil society, tend to agree with the position of the defense in this regard. Indeed, the court's efforts to widen the number of victims who can benefit from reparations have created debate in Ituri, especially around the question of including victims of sexual violence. The question of sexual violence, particularly against girls recruited into Lubanga's forces, was addressed in the trial, but not specifically charged. The trial chamber's reparations decision, however, would seem to leave the door open to the inclusion of specific reparations for victims of such violations. However, one lawyer, argued that it was not the Court's business to create victims and that the efforts to enlarge the group now risked violating the legal contract among the parties to the process. He also argued that the provision of special consideration to the victims of sexual violence would be inappropriate because Lubanga was not convicted of such acts. Extending reparations was a way of implying guilt without a full judicial process. Such an approach would, he argued, create victims who from the judicial perspective did not exist.
Women's activists in Ituri see it differently. One activist argues that the question cannot be approached on a purely legal basis. If it were, she says, it would run the risk of losing its social relevance. No one can ignore the fact that members of the UPC took girls by force as sexual slaves and that many others were subjected to rape. Some became mothers and others were infected with HIV. These victims of sexual and gender-based violence (SGBV) are terrorized at home; constrained to remain silent by the notion that they should not undermine the honor of their community by denouncing violations committed against them by "their own." Even if the Court has not been able to afford them the opportunity to express themselves openly, humanity should not ignore their suffering. That, she says, would be real injustice.
There are also those whose situation is not directly linked to the cases being tried at the ICC. Many feel excluded and wonder why their sufferings have not merited the attention of the Court. One activist asked, for example, "How can they say that they are addressing the situation of victims when they are only looking at the situation of children?" In fact, there is concern that a reparations program might even contribute to exacerbating tensions between some groups. "The Court says that reparations should not be discriminatory, but in practice the victims are more or less only Hema or Alur. What does this mean for victims who are Lendu or member of other groups?"
Reparations therefore are dividing public opinion. While some victims are insisting on individual reparations, others in civil society argue that it is necessary to enlarge the frame given the extremely high number of victims who were not able to participate formally in the ICC proceedings against Lubanga in spite of the considerable moral and physical harms that they suffered. In order to address this, they suggest that a mode of reparations that address collective needs or which could be collectively used (such as a hospital serving a victim community) might be employed, rather than collective reparations that are merely symbolic (such as apologies or the construction of monuments or memorials).