Gaelle Carayon is the Post Conflict Policy Advisor at REDRESS. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.
On February 9, 2016, Trial Chamber II of the International Criminal Court (ICC), which is overseeing the reparation phase in the case of Thomas Lubanga, decided that a draft reparation plan submitted to it by the Trust Fund for Victims (Trust Fund or Fund) in November 2015 was incomplete and cannot be implemented. The trial chamber requested the Trust Fund to submit the missing information at regular intervals with the final submission due on December 31, 2016. The Trust Fund is now seeking to appeal this order.
This new delay is a severe blow to the victims in the case, many of whom are former child soldiers. They have turned to the ICC, some as early as 2006 to receive some form of reparation for the harm they suffered. Victims consulted by the League for Peace, Human Rights, and Justice (LIPADHOJ), an NGO assisting some of the victims in the Ituri district of eastern Democratic Republic of Congo, expressed their despair at this latest delay and indicated that their patience had run out.
The frustration expressed by some of the victims with this latest twist, is understandable also in light of the protracted history of the case and the fact that four years have passed since the judgment, with victims having yet to receive any reparation.
In March 2012, Lubanga was convicted of the war crimes of conscripting and enlisting children under the age of 15 years and using them in armed conflict, and he was subsequently sentenced to 14 years imprisonment for the crimes that occurred during the war in Ituri from 2002-2003.
The Appeals Chamber at the ICC upheld both his guilty verdict and sentence in December 2014. In March of last year, the Appeals Chamber also amended the trial chamber's original reparations order, and instructed the Trust Fund to submit: 1) a list of victims potentially eligible for reparation; 2) an assessment of the extent of the harm suffered by victims; 3) proposals regarding the modalities and forms of reparation to be awarded; 4) the anticipated amount corresponding to Mr Lubanga's liability for the harm suffered by victims; and 5) the amount that the Fund would potentially advance from its own funds collected through voluntary contributions.
The Trust Fund submitted its plan in November 2015. The plan did not respond to each of the five enumerated questions, so the trial chamber's most recent decision does not come as a surprise.
For instance, the Trust Fund did not identify victims and instead proposed that victims be identified at a later stage - when seeking to access reparation programs. Rather than providing an estimate of Lubanga's financial liability, the Fund only set out criteria that the chamber could consider to calculate an amount corresponding to his financial liability. The chamber thus found that it lacked the necessary information to rule on Lubanga's liability.
The Trust Fund had also stressed in its November 2015 filing that the plan it had come up with did not represent what would be required to repair the prejudice of victims in full and only corresponded to what the Trust Fund itself was able and willing to contribute - in this case 1 million Euros.
Essentially, the Trust Fund had argued that it would not be cost-efficient or fair to victims if it carried out a full assessment of the harm when the amount to cover the costs is so limited. Instead, it came up with a more limited approach, on the basis of its consultations within communities and the identification of priorities.
The chamber also found that the reparation programs proposed by the Trust Fund, which focused on professional training, training on conflict resolution, and psychological support and treatment, lacked sufficient details (including costs) to enable an endorsement by the chamber.
The chamber therefore requested the Trust Fund to submit, by May 7, 2016, detailed terms of reference for each of the proposed programs with a clear estimate of the corresponding costs and more details as to how monitoring would be undertaken.
It is of concern that some of these issues were not resolved earlier. Arguably the Trust Fund knew it would not be in a position to provide all the information requested by the trial chamber, as early as last summer, and it also knew (probably even earlier) that on a basic cost-benefit analysis, implementing the trial chamber's order would be difficult, if not impossible.
The Trust Fund has now sought leave to appeal the order, and while the search for legal clarity in the first ever case to reach the reparation stage at the ICC is laudable, this new development will undoubtedly further delay the implementation of reparation to victims, with no guarantee that the Appeals Chamber would endorse the Fund's articulated position. The victims are simply waiting further for this quagmire to be resolved, caring very little about the intricacies of the mandates and roles of the different ICC bodies; simply wanting some solace and recognition for the harm they suffered.
One of the issues raised by the Trust Fund in its appeal request is the fact that the ruling reverses the roles with regards to who will ultimately decide on victims' eligibility to obtain reparation and affirms a strong oversight role by the chamber.
The trial chamber has made it clear that it is who ultimately will decide on each victim's eligibility for reparation, that the defense should have the ability to file observations on each application, and that the trial chamber retains a right to make any amendments necessary to the Fund's reparation programs should they decide it is appropriate.
This approach may better reflect what some victims had sought earlier in the proceedings, i.e. to have their applications individually considered by the judges. However, it is questionable whether an individual consideration by the chamber of the administrative handling of the reparations process is the best use of their very limited time and reflects the best balance between the different skills sets.
This appears to be what the Trust Fund itself is arguing. Also, it is difficult to turn a blind eye to the significant amount of time that has now been spent deciding back and forth on the process for victims to access reparation, taking into account, as the Trust Fund points out, that only collective reparation has been awarded in this case.
The shock of this new delay is significant. But nevertheless, the new trial chamber decision might well open some new opportunities. Some victims have expressed their willingness to wait if it means the extra time will also be used to address some of the concerns they had with regards to the initial plan put forward by the Trust Fund in November 2015.
For example, some had previously expressed concerns at the focus of the plan on reparation that would be implemented in Ituri only, foreclosing access for the many victims who had relocated since the events. These victims are now hoping that the Trust Fund might amend its submission based on the request by the trial chamber that "reparation programs [be] designed in order to enable the maximum number of victims to take part in them" and the chamber's willingness to consider "as many programs as the Fund will see fit to submit."
Second, the trial chamber has indicated that it would endorse the Trust Funds' proposals that "correspond in the most appropriate and balanced manner, to the needs expressed by victims as a result of the harm they suffered" [emphasis added].
This does not change the fact that only collective reparation has been ordered in this case, however, it suggests that the judges will have the ability to consider what potential beneficiaries themselves deem appropriate as collective reparation to remedy the harm they suffered, potentially giving them a stronger voice in fine-tuning the reparation programs that would eventually be implemented.
The Trust Fund now has until the end of the year to locate, identify, and interview potential beneficiaries and to transmit their files to the trial chamber. This will not be a straightforward process in a region where many victims have relocated not only for security, but also for economic reasons. It will also not be easy to gather adequate documentation to prove victims' identity or the extent of the harm suffered.
The Trust Fund has already indicated that this exercise will "stretch the Trust Fund's resources to the absolute limit" and leave fewer resources to it to apply "not only for funding reparation awards in the case but also for its obligations in other cases as well as for its assistance mandate in this and other situations."
In that regard, the trial chamber has suggested that the Trust Fund could seek the assistance of the court's Victims Participation and Reparation Section (VPRS) as well as victims' legal representatives. Such collaboration will be essential if the exercise is to be completed in time, however, the VPRS and the legal representatives are already overstretched.
It will also likely be important for the Trust Fund to extend the ways in which it collaborates with local actors in Ituri. While the Trust Fund will need to ensure conflicts of interest are avoided, it will also need to ensure it does not alienate the many grassroots-based individuals and organisations, some of whom have been assisting victims for over a decade in their quest for justice at the ICC, and recognizes their role and status in that process.
As pointed out by one representative from LIPADHOJ working with victims in Ituri, "While in reality, every party relies on intermediaries in order to identify victims, they remain the forgotten heroes of the story. Worst in this case, the Trust Fund has already said that it would not work, for the implementation of reparation, with organisations or individuals who worked with other court sections, such as VPRS."
As the court inches its way towards the implementation of its first reparation order, one cannot but hope that this is the last in a long series of delays in the Lubanga case.
According to the new timeline, a first batch of reparation files, to contain information on each victim's identity and extent of the harm suffered, will be submitted by the end of March. Some victims are already calling for the chamber not to wait for all applications to be in, before starting giving the go ahead to the first reparation projects.