Lawyers representing victims in Thomas Lubanga's case are planning to appeal against an order by International Criminal Court (ICC) judges that set the former Congolese rebel leader's financial liability for reparations at US$ 10 million. The lawyers say judges excluded "a significant number" of victims who participated in the proceedings against Lubanga and whom the Trust Fund for Victims (TFV) had already designated as eligible for reparations.
Victims' lawyers Luc Walleyn and Franck Mulenda argue that, in the December 15, 2017 decision, the judges not only determined the overall size of the reparations award against Lubanga, but also determined which victims would be eligible for the collective reparations that the Trust Fund would implement.
"The decision specifies that the 425 victims who attracted a finding of eligibility must be awarded reparations under the programme, from which it seems to follow that those who did not are ineligible to participate," the lawyers argue.
The lawyers contend that the trial chamber's reparations order runs counter to the Appeals Chamber's instructions that, given the collective nature of the reparations, assessment of each victim's eligibility for the reparations program should be made by the Trust Fund at implementation state, and not by trial judges.
In the order issued last December, judges stated that the award against Lubanga comprised his liability in respect of 425 recognized victims (US$ 3.4 million) and US$ 6.6 million to cater for additional victims that were yet to be identified.
Lubanga's lawyers have already asked judges for permission to appeal against the order, with a ruling yet to be made. They argue that in assessing the extent of damage and loss and injury to victims, judges erroneously included several ineligible victims, including "hundreds, if not thousands" of unidentified individuals who had not applied to the court for reparations.
Furthermore, Lubanga's lawyers contend that the US$ 10 million award does not reflect his criminal responsibility and further argue that it was erroneous for the award to exceed the US$ 6 million that victims' lawyers asked for.
Victims' lawyers argue that the trial chamber failed to heed the Appeals Chamber's instructions and exceeded the mandate it had received from it, by engaging in an individual assessment of the eligibility of the potential victims already identified. They add that trial judges also wrongly treated the reparations forms compiled by the Trust Fund as applications for reparations, whereas a final determination had been reached that collective reparations would not be based on individual applications.
The initial order on reparations in the Lubanga case was issued in August 2012. It was followed by various appeals by the prosecution, victims' lawyers, and the defense, seeking clarity on the form the reparations would take and how they would be implemented. It was not until 2015 that the Appeals Chamber issued an amended order for reparations, tasking the TFV with drawing up and implementing the reparations program.
Last year, the Trust Fund rolled out the US$ 1.06 million collective reparations program that will be implemented over three years. The TFV has provided the funds for the program because the court found Lubanga to be indigent.