27 October 2016

Congo-Kinshasa: ICC Makes Progress On Reparations for Victims in Lubanga Case

On October 21, 2016, Trial Chamber II of the International Criminal Court (ICC) approved and gave the Trust Fund for Victims (Trust Fund) the go-ahead to implement its plan on symbolic collective reparations in relation to the Thomas Lubanga case. The significance of this decision will not be lost on victims who have followed and participated in this process.

This step forward comes after a long wait by victims. Lubanga, whose trial began in 2009, was convicted and sentenced by the ICC in 2012. Judges held Lubanga responsible for the war crime of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in eastern Democratic Republic of Congo (DRC) between July 2002 and December 2003.

During a recent field mission conducted in Ituri, DRC, the issue of reparations featured significantly in our discussions with actors on the ground. Many criticized the absence of a domestic reparations program. Reparation orders have been made in a number of grave crimes cases before the domestic military tribunals. However, their execution remains a challenge even in cases where the DRC government itself is ordered to pay, such as when a perpetrator is a state agent or where there is a finding of government failure to enforce human rights. The ICC's reparative mandate, therefore, provides a beacon of hope for numerous victims of atrocities and advocates of their rights.

We must however acknowledge that the reparations process has taken a painfully long period of time. Many back and forth consultations have been conducted with individuals working with NGOs, the government, and victims themselves. One actor mentioned that a number of these consultations have often been repetitive, and, at times, been undertaken by international consultants with little awareness of the local context. Could this point to a greater challenge of coordination at the court, the legal representatives' teams, and/or the Trust Fund?

We asked five former child soldiers who are participating in different ICC cases how they felt about the long ICC trial and reparations process. Surprisingly, they did not express concern. For them, what matters is that the alleged perpetrators are tried and convicted, and reparations are awarded. The only suggestion for improvement presented was that victims' representatives should endeavour to provide more regular updates on the cases. One can tell that these young people are still hopeful despite the challenges associated with the ICC process.

Journalists and NGO actors we interacted with noted that the current subject of contention among affected communities is the issue of "individual versus collective reparations." It should be recalled that the push for individual reparations was one of the most prominent points raised by some of the victims' lawyers throughout the proceedings, including during the appeals process, but their arguments were rejected. Our discussions with the five former child soldiers touched on this contentious subject.

While the responses of those we spoke to do not necessarily represent those of other victims, they provide us with insight into how reparation programs are perceived by victims of atrocities on the ground. They may also point to the need for the ICC and victims' lawyers to constructively and exhaustively engage with affected communities to properly explain the process and the reasoning behind the decisions that are taken at the court in The Hague. The court also needs to understand and respect the varied needs of victims. The feedback they provide in the course of this process should be taken into account in arriving at key decisions on reparations.

TD, a young girl in her early 20s is currently unemployed and says she would prefer a monetary award, so she can open up a boutique and look after her younger siblings. In her view, collective reparation programs are not as helpful as individual ones because everybody has their own problems. KJ, also in her early 20s and unemployed, wants to use any money she is given to buy a sewing machine, so she can realize her dream of tailoring clothes.

RI, a 22-year-old man wondered what the value of a hospital constructed as part of a reparations process would be if he did not fall sick. He noted that he is not necessarily against collective reparations but simply prefers individual reparations because they would allow him to address his specific needs.

AD, also aged 22, said even establishment of a school would not be beneficial to him because he cannot return to primary school at his age. He would prefer to open up a boutique or join the transportation business by purchasing a motorbike. He says his preference is informed by his aptitude and also wondered how he would be able to access collective reparations.

BU, who is currently a hairdresser was curious to know how a school constructed as part of a reparations program would benefit him, especially because he has never been to any school. He would rather be given a monetary award, which he can inject into his hairdressing business.

The draft Trust Fund reparations plan proposes the use of the Village Saving and Loan Association (VSLA) model as an economic empowerment tool to improve victims' livelihood and also envisages the provision of vocational and/or educational training opportunities for former child soldiers. While the VSLA approach may allow for these five young people to be provided with financial resources to realize their individual dreams, this is far from certain, and they do not necessarily see themselves as needing vocational training.

However, the draft plan does not contain specific proposals on building or improving schools and health clinics. Indeed, the Trust Fund notes the challenges around the view of such projects because the government is obliged to provide them to citizens as development projects, not as reparation programs. This shows that the perceptions that community members have about what collective reparations could entail may not correspond with what is actually being planned. It is important to note that the young people's questions on reparation projects are based on doubts around the individual benefit they are likely to derive. For a number of victims, the key question on their minds is "how will this reparation program help me address my problems?"

While some outside the communities may see the value in symbolic (and even non-symbolic) collective reparations, those measures may not be significant for the ordinary victim who is struggling to get by. Their individual concern is how to survive, leap forward, and ultimately prosper. Unfortunately, this may not be through the ways the international community ordinarily thinks. These young people's dreams, aspirations, and how they see themselves serve to demonstrate the uphill task of developing reparations programs that can address collective as well as individual needs. The recent ICC order approving the proposed plan of the Trust Fund in relation to symbolic collective reparations, therefore, has to be viewed in context. Whether such projects will be positively received by communities is something that remains to be seen.

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