This article is written by Professor Serge Makaya, a professor of law at the University of Kinshasa, Protestant University of Congo, and Catholic University of Congo. Professor Makaya is a lawyer, president of the National Research Center on Transitional Justice, and has served as a legal adviser to the Ministry of Justice and Human Rights. He received his law degeree from Université Aix-Marseille. The views expressed here do not necessarily represent the views of the Open Society Justice Initiative.
On August 7, 2012, Trial Chamber I of the International Criminal Court (ICC) issued a decision on the reparations due to victims in the case of the prosecutor against Thomas Lubanga Dyilo.
This chamber, having previously noted the insolvency of the convicted person, directed the Trust Fund for Victims (Trust Fund) to gather proposals from the victims regarding reparations so that they could be presented to a future trial chamber. The Trust Fund was also ordered to propose the implementation plan of the said reparations.
The chamber agreed that victims would be awarded collective reparations. These should be paid to the victims using Trust Fund resources allocated for that purpose. In formulating its decision, the position of the trial chamber appeared to suggest that it was the Trust Fund that was obliged to pay instead of the convicted person, who was not recognized as financially liable for reparations, given that he had previously been declared indigent.
Following an appeal presented by Lubanga and the victims, the Appeals Chamber, while confirming the trial chamber's decision on the collective nature of the reparations, adopted a different position in its approach to reparations.
It held that Lubanga was financially liable for the reparations that had been granted to the victims. Regarding the obligation of payment, the Appeals Chamber found that the convicted person remains liable to pay for the harm suffered by victims, and the intervention from the Trust Fund does not exonerate the person from paying back those funds.
The ICC deserves a lot of credit for its declaration that Lubanga is personally liable for the crimes with which he was charged. The appeal decision highlights the place of victims in the trial before the court, which since the announcement of its creation, has received a lot of praise. Nevertheless, we cannot help but take note of the weaknesses contained in the substance of the Appeals Chamber decision in light of its impact.
In fact, this decision can be appreciated for its historical value, on the one hand, and for its challenges, on the other.
Historical value of the decision
We cannot discuss the appeal decision rendered in the Lubanga case without mentioning the milestones that stand out. Apart from the fact that it is the first judgment in a case tried by the ICC, this decision challenges the skeptics who thought that the court would never have the capacity to fulfill the mandate of addressing the harm suffered by victims.
With the high number of victims, the immense amount of damages, and the meager resources that the Trust Fund had at its disposal, it seemed unlikely that the ICC would effectively carry out this mandate.
From a pedagogical viewpoint, the appeal decision constitutes a warning against the consequences of the acts committed by perpetrators of international crimes. There is no doubt that it provides a real boost to international criminal law which, because of this decision, takes a giant step towards implementation of the deterrence measures that it wishes to embody.
Moreover, sentencing a warlord to prison and ordering reparations creates new hope for the millions of victims of various armed conflicts that have led to decades of unrest in the Democratic Republic of Congo (DRC).
As a reminder, the number of deaths has been estimated to be in the millions throughout the DRC and at approximately 600,000 for the province of Ituri alone. The example of Lubanga being held criminally liable serves as a strong, undeniable psychological deterrent. However, the reparation aspect of this decision has some challenges that need to be addressed to ensure its efficacy, effectiveness, and efficiency.
Reparation-related challenges associated with the appeal decision
It does not appear possible to consider an analysis of the weaknesses of the decision in the Lubanga case without taking into account the weaknesses in the ICC laws pertaining to reparations.
Commentators have expressed initial criticisms about the selectivity of victims, including those entitled to reparations. Some offenses provided for in Articles 6 to 8 of the Rome Statute are themselves encumbered with weaknesses that lead to such selectivity. Unless a combination of several war crime and crimes against humanity charges can be envisaged, so that on each occasion the punishment matches the reparations, it can be stated that ICC law forces the court to abandon some victims. The limited nature of the charges selected by the Office of the Prosecutor (OTP) and the narrow interpretation given to the notion of "victims" in the court's jurisprudence also contribute to that abandonment effect. Only victims of the charges chosen by the prosecutor and for which the accused is convicted can participate in proceedings before the ICC and receive reparations.
This situation has led to the notion of deserving and undeserving victims. For example, victims of crimes such as conscription, enlistment, and use of children under the age of 15 within the ranks of the fighting forces are eligible for reparations, yet they themselves have committed other crimes. Victims of these other crimes are not eligible for reparations because they are not covered by the case.
This is a key criticism that can be levied against the court when looking at the case in question.
Knowing the bitterness of the fighting and hatred on account of ethnicity that the Hema and Lendu militias felt for each other in Ituri, how is it possible that the trials of militia leaders did not extend to the crimes that plunged countless families into mourning, made them lose their loved ones and property, sometimes leaving them utterly destitute?
It is known that many crimes were recorded and documented in this part of the country pertaining primarily to sexual and gender-based violence, looting, assassination, and deportation. A number of these crimes have had dire consequences on their victims. Their torturers, or specifically, those carrying out orders, happened to be child soldiers. Paradoxically, these children, through the sheer fact of having been "forced" to serve in the ranks of the fighting forces, overshadow the claims of their own victims, which are however legitimate.
Admittedly, in defense of these children, they were underage, and the ICC has no jurisdiction over people under the age of 18.
However, this argument should not prevent us from looking into the responsibility of the leaders of these child soldiers in their capacity as hierarchical superiors or military leaders in order to find them criminally and financially liable on the basis of Article 28 of the Rome Statute.
This ensures that victims do not reach a dead end. While they may have no opportunity for a remedy at the national level, it is always possible to continue investigations at the ICC, as long as the principle of double jeopardy in Article 20 of the statue is not violated.
Nevertheless, it is important to take into account the realities of the ICC. All factors remaining constant, victims would have to wait at least 12 years to get a verdict. This would require too much patience on their part.
Another criticism of the Appeal Chamber decision concerns the nature of the reparations ordered. Since they are collective in nature, they appear to be based on the idea that all victims have the same needs. Although the services that the Trust Fund was ordered to provide include medical and psychosocial care, it is regrettable that they tend to be established based on a group stereotype rather than an individual profile.
Moreover, the issue of collective reparations implementation poses questions regarding their effectiveness, efficacy, and even efficiency. For example, could they be used to construct schools, hospitals, or training centers?
Questions also arise about the sustainability of these measures. There is need to reflect on the limits of the Trust Fund's intervention, the scope and justification of the role of the non-governmental actors, and the role of the State.
The construction of a school, for example, would need the commitment of the teaching staff, the integration of the school into the national school program, the management of the technical and administrative staff, among other requirements. We also need to ask ourselves whether such a school should accept only the victims concerned by the Lubanga case.
All of these challenges can only be overcome through effective judicial cooperation and an effective implementation of the system of positive complementarity between the ICC and the DRC.
The work of the ICC in the Lubanga case is a result of hard work and intensive deliberations. Respect should be accorded to the legal experts who, after a very long process, have been able to maintain their will and determination to fight against impunity for the most serious crimes that shock the conscience of mankind.
However, the praise due to the court for this work cannot silence the constructive criticism that arises from a need to review certain provisions of the Rome Statute and/or their interpretation and the need to introduce a holistic approach in the proceedings undertaken in order to extend, insofar as possible, the benefits of the verdict to the real victims of crimes.
At the end of the Lubanga case, frustrations linger on behalf of the forgotten victims or those whose cases are not considered interesting. Their cases would certainly have been heard, if the OTP had simply looked into them. According to the same logic, in a few years' time, some victims, even those considered in the context of this case, will certainly complain about the inadequacy of the benefits to which they are entitled because one or several aspects relating to them individually were not taken into account.
Whatever the case may be, it is already the beginning of a much desired international criminal justice system, and mankind can only congratulate itself on its benefits.