ICC Issues First Reparations Decision

Trial Chamber I of the International Criminal Court has decided on the principles that are to apply for reparations for victims in the case against Thomas Lubanga Dyilo.  This is the first reparations decision by an ICC chamber.

Mr. Lubanga was found guilty of war crimes (conscripting and enlisting children under age 15 and using them to participate actively in hostilities).  He was sentenced to 14 years imprisonment. 

The Chamber stated: “Reparations in the present case must-to the extent achievable-relieve the suffering caused by these offences; afford justice to the victims by alleviating the consequences of the wrongful acts; deter future violations; and contribute to the effective reintegration of former child soldiers.”  In the Chamber’s view, the reparations should be applied in a broad and flexible manner, allowing the Chamber to approve the widest possible remedies for violations of the rights of victims and the means of implementation. 

The Chamber stated that its decision applied only to the case under consideration and was not intended to affect victims’ rights to reparations in other cases.

The Chamber affirmed that all victims must be treated “fairly and equally” with respect to reparations, regardless of whether they participated in trial proceedings, because it would be “inappropriate” to allow reparations only for the small number of victims who participated in the trial or applied for reparations.  The Chamber acknowledged that victims in particularly vulnerable situations might need to be given priority with respect to reparations.  Such victims may include victims of sexual or gender-based violence, individuals who require immediate medical care, and severely traumatized children.  The Court may adopt measures to guarantee equal, effective, and safe access to reparations for particularly vulnerable victims. 

The Chamber emphasized that individual reparations should be awarded in a way that avoids creating tensions and divisions within the affected communities.  It stated that, due to the considerable number of people affected and the small number who applied for reparations, there should be a collective approach that ensures reparations reach the victims who are unidentified.  Collective reparations, according to the Chamber, should address harm individuals suffered on an individual and collective basis.  The Chamber stated that the Court should consider providing medical services, along with assistance in the areas of general rehabilitation, housing, education, and training.  The Chamber further stated that the Court’s reparations strategy should, in part, aim to prevent future conflicts and raise awareness that the effective reintegration of children requires eradicating the victimization, stigmatization, and discrimination against young people in these circumstances.

The “damage, loss and injury,” which forms the basis of a reparations claim, must have resulted from the crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities.  The Chamber noted that neither the Statue nor the Rules define the precise requirements of the causal link between the crime and the relevant harm for the purposes of reparations.  The Chamber further noted that there is no settled view in international law on the approach to be taken to causation.  The Chamber concluded that reparations should not be limited to “direct” harm or the “immediate effects” of the crimes of enlisting and conscripting children under age 15 and using them to participate actively in hostilities; rather, the Court should apply the standard of “proximate cause.” 

With respect to the standard of proof, the Chamber concluded that a standard less exacting than “reasonable doubt” should apply.  The Chamber determined that the “balance of probabilities” standard was sufficient and proportionate to establish facts that are relevant to an order for reparations when it is directed against the convicted person.  When reparations are awarded from the resources of the TFV or from any other source, the Chamber concluded that a wholly flexible approach to determining factual matters is appropriate, taking into account the extensive and systematic nature of the crimes and the number of victims involved.

The Chamber decided that it was unnecessary for the present trial judges to remain seized throughout the reparations proceedings.  The reparations will be dealt with by the TFV, monitored and overseen by a differently composed chamber.

The Chamber strongly recommended retention of a multi-disciplinary team of experts to assist the Court in the following areas: assessing the harm suffered by the victims; assessing the effect of the crimes of enlisting and conscripting children under age 15 and using them to participate actively in hostilities on the children’s families and communities; identifying the most appropriate form of reparations, in close consultation with the victims and their communities; determining which individuals, bodies, groups, or communities who should be awarded reparations; and assessing the funds for these purposes.

As Mr. Lubanga was declared indigent and no property or assets were identified to use for reparations, Mr. Lubanga is only able to contribute non-monetary reparations.  Any participation in symbolic reparations (e.g., an apology) is only appropriate with Mr. Lubanga’s agreement, so such measures will not form part of a Court order.

Reparations are to be implemented through the resources of the Trust Fund for Victims (TFV).  Potential beneficiaries include victims (direct and indirect) who suffered harm following the crimes of enlisting, conscripting, and using children under age 15 to participate actively in hostilities in Ituri in the Democratic Republic of Congo (DRC) from September 1, 2002, to August 13, 2003.  This includes family members of direct victims, along with individuals who intervened to help the victims or to prevent the commission of the crimes and suffered harm as a result. 

The Chamber noted that, for the award to have effect, State Parties, including the DRC, and non-State Parties must cooperate and the TFV would need sufficient voluntary contributions for a meaningful and effective reparations program.