Fine-tuning the ICC’s Reparations Regime: Appeals Chamber Decision on Reparations in Lubanga Case

About the author(s):

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Many thanks to my SIM colleagues Dr Brianne McGonigle Leyh, Co-Director PILPG-NL, and Julie Fraser, Legal Adviser PILPG-NL for allowing me to reproduce their blog post below on the Appeals Decision on reparations in the Lubanga case. The post was first posted on the Public International Law and Policy Group blog.

The Public International Law & Policy Group is a non-profit organization that operates as a global pro bono law firm to provide free legal assistance to states and governments involved in peace negotiations, advise states on drafting post-conflict constitutions and assist in prosecuting alleged war criminals.

On 3 March 2015, the Appeals Chamber of the International Criminal Court (ICC) handed down their highly-anticipated Judgment on the appeal against the 7 August 2012 Trial Chamber ‘Decision establishing the principles and procedures to be applied to reparations’ in the Lubanga case. As the first decision issued by the ICC on reparations, this was the first exercise of its innovative and vital, yet ambiguous mandate.

The Lubanga case before the ICC is the first to deliver a guilty verdict at trial and on appeal, and all related decisions (conviction, sentencing and reparations) are now final. As such, it is a milestone for the ICC and sets important precedents for the Court and international criminal justice. The Order for Reparations in the Judgment itself notes that reparations are a key feature of the Rome Statute system, and that the success of the Court is, to an extent, dependent on the success of the reparations scheme. While some are critical of the Judgment, it should be seen as a welcome development in the field of victims’ rights and reparations before the ICC, as the Court restrains itself from adopting too broad a mandate.

In its 97-page Judgment, the Appeals Chamber addressed the errors and shortcomings of the Trial Chamber’s decision and clarified how reparations should be approached in the future. Accordingly, the Appeals Chamber amended the Order for Reparations and instructed the Trust Fund for Victims (Trust Fund) to present a draft plan for collective reparations to a newly constituted Trial Chamber within six-months. The Appeals Chamber laid out five general elements that all reparations orders must include:

  • An order for reparations must be made against the convicted person;
  • The order must establish and inform the convicted person of her or his liability;
  • The order must specify the type of reparations to be awarded, including whether they will be individual, collective or both;
  • The order must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted and identify the appropriate modalities of reparations based on the circumstances of the case; and finally
  • The order must identify the victims that are eligible to benefit from the reparations or set out the criteria for eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted (par. 32).

Reparations Against the Convicted Person

The Appeals Chamber found that “reparation orders are intrinsically linked to the individual whose criminal liability is established in a conviction and whose culpability for those criminal acts is determined in a sentence” (par. 65). As such, reparation orders can only be made against a convicted individual – and indigence is of no relevance to the imposition of liability for the purpose of reparations. In this way, the Appeals Chamber found that the Trial Chamber erred when it failed to order reparations directly against Mr Lubanga due to his indigence, instead ordering the Trust Fund to use its ‘other resources’ to cover reparations.

The Appeals Chamber stressed that a convicted persons’ indigence may be temporary, and in this case ordered the Registrar to monitor Mr Lubanga’s financial situation on an ongoing basis (even following the completion of the sentence) in order to enforce fines, forfeiture orders or reparations (par. 104). This is a welcome finding as the Trial Chamber’s decision failed to pay sufficient attention to Mr Lubanga’s assets or future assets, and did not differentiate a finding of indigence for the purposes of legal aid as opposed to reparations. The Appeals Chamber reiterated that it is first and foremost the convicted person who is responsible for reparations. However, when that is not possible, the Trust Fund can cover the costs, as a sort of loan to be repaid (where possible) by the convicted person (par. 115).

Causal link and Sexual and Gender Based Violence

Given that a reparations order can only be made against a convicted individual, the Appeals Chamber then addressed the scope of a convicted person’s liability for reparations. It held that such liability must be proportionate to the harm caused and her or his participation in the commission of the crimes, in the specific circumstances of the case (par. 118). Although the Appeals Chamber maintains the proximate cause standard, it makes clear that the convicted individual may only be liable for harm linked to the crimes for which she/he was convicted. On this basis, the Appeals Chamber overturned the Trial Chamber’s inclusion of victims of sexual and gender-based violence (SGBV) as beneficiaries of reparations in the case.

This finding was not surprising, as it had been a contentious element of the Trial Chamber’s decision given that Mr Lubanga was convicted of enlistment and recruitment of child soldiers and not crimes regarding SGBV. While SGBV was argued to be proximately caused by the crimes for which Mr Lubanga had been convicted, the sentencing decision did not include it as part of the gravity of the crimes convicted, or as an aggravating factor. As such, it cannot be considered as a harm resulting from the crimes for which he was convicted (par. 196). Indeed, the Appeals Chamber observed that the Trial Chamber had found that “nothing suggests that Mr Lubanga ordered or encouraged sexual violence, that he was aware of it or that it could otherwise be attributed to him in a way that reflects his culpability” (par. 197). While criticized by some as narrowing the scope of beneficiaries, we support this finding as appropriately connecting the reparations order specifically to the convicted person and their crimes. The Chamber cannot retrospectively correct what was ultimately an error by the Prosecution for not bring SGBV related charges against Mr Lubanga.

Notwithstanding this determination, the Court was quick to point out that victims of harm resulting from SGBV could be addressed by the Trust Fund as part of its assistance mandate. The Court clarified that the Trust Fund has two mandates: the first relates to Court-ordered reparations when an accused is found to be indigent; and the second is its assistance mandate which is not connected to reparations orders. The assistance mandate falls under the discretion of the Board of Directors of the Trust Fund and outside the Court’s oversight. Accordingly, throughout the Judgment, the Chamber stressed that it is up to the Board of Directors of the Trust Fund to decide whether and how to complement an award for reparations ordered in a specific case.

Identification of Harm and Victims

As for the identification of victims eligible to benefit from the reparations award, the Appeals Chamber reiterated that only those victims who suffered harm as a result of the commission of crimes for which Mr Lubanga was convicted may claim reparations against him. As such, when a reparations award is made to benefit a community, only members of that community who meet the relevant criteria are eligible for reparations (par. 211). Again, this is where the importance and relevance of the Trust Fund’s assistance mandate comes into play as it could address communities as a whole.

Modalities of Reparations

The Appeals Chamber held that a Trial Chamber may order individual or collective reparations, or both. Importantly, the Court found that if only collective reparations are ordered, the Trial Chamber is not required to rule on the merits of each individual application for reparation (par. 152). In contrast with arguments put forward on behalf of the victims, the Court found that there is not an internationally recognized human right to consideration of individual applications for reparations (par. 155). As such, the Trial Chamber did not err when ordering collective reparations against Mr Lubanga without determining individual victim applications. To safeguard the rights of the convicted person, the Appeals Chamber noted that Mr Lubanga would have an opportunity to review the screening process of victims at the implementation stage and to comment on the draft implementation plan (par. 167).

The Court noted that the Trial Chamber (and not the Trust Fund) must identify the most appropriate modalities of reparation, which may include restitution, compensation, rehabilitation as well as others that may be symbolic, transformative and preventive (par. 202). While determining the nature and/or size of the reparation award is an appropriate task of the Trust Fund, it is to base its award design on the modalities outlined by the Trial Chamber. When deciding on the nature of the awards for reparations, the Trust Fund is to take into account the views and proposals of victims. The Trust Fund should link the relevant modalities to the award for reparations in the draft implementation plan, in order for the Chamber to review the determinations (par. 200). In this way, the Court retains judicial oversight over the reparations scheme in each case.

On the Horizon

Looking ahead, the Appeals Chamber has asked the Trust Fund to draft an implementation plan and submit it to a newly constituted Trial Chamber. This plan should include the anticipated monetary amount of the Court-ordered award that it considers necessary and appropriate as well as any monetary amount that may complement the award under its assistance mandate (par. 241). The parties, including the Defense and victims, will be able to make submissions orally and in writing on the draft implementation plan before the Trial Chamber (par. 242). As such, we are yet to see types of reparations to be made and the specific beneficiaries in this case – as well as the effectiveness of the ICC’s reparations mandate and its impact on victims.

While not perfect, this hotly anticipated Judgment goes a long way towards clarifying the murky and complex reparations regime in the Rome Statute system. It upholds the character of the ICC as a criminal court that may issue reparation orders linked with the conviction of an accused for crimes under its jurisdiction. Importantly, it refrains from adopting a broader reparations mandate, leaving that instead to the Trust Fund, which is better placed to exercise such functions. This distinction is welcomed.

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