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.
I am pleased to present a guest post by Marissa Brodney in which she presents her new article on collective reparations and the ICC. Marissa Brodney is a graduate degree candidate in Law and International Relations at Harvard Law School and Princeton University’s Woodrow Wilson School of Public and International Affairs. She previously served as a senior program associate on the research and investigations team at Physicians for Human Rights. Marissa was recently based in the Office of the Prosecutor at the International Criminal Court.
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In a new article just published in the Journal of the Oxford Centre for Socio-Legal Studies, I take a fresh look at debates happening now at the International Criminal Court (ICC) with respect to collective reparations in the case against Thomas Lubanga Dyilo. Lubanga was convicted in 2012 for forcibly conscripting or enlisting children into the armed forces and using them to participate actively in hostilities. Collective reparations were authorized for victims, and the Lubanga case has become the first case at the ICC to reach the implementation stage for collective reparations. Now, in this implementation stage, the ICC Trial Chamber and Trust Fund for Victims (Trust Fund) are embroiled in debates that have stalled the implementation process, and which threaten to undermine the reparative potential of the ICC’s reparations regime more broadly.
In my article, I take a look at these debates, and different conceptual frameworks that underlie them. I explore fundamental tensions inherent to integrating reparation as a transitional justice measure within the legal framework of a criminal court, bound to protect the rights and scope of liability of the convicted person; then, I try to illuminate ways in which these tensions filter into divergent understandings of what might make the ICC’s reparations regime effective. My article interrogates the differing institutional interests and mandates of the Trial Chamber and Trust Fund, to understand why some of the present procedural impasses facing the Court may have emerged. It then anchors this conceptual exploration in analysis of ICC case law and recent filings in the Lubanga case, to suggest a pragmatic path forward.
The article focuses on two orders that the Trial Chamber recently gave the Trust Fund, as part of the Trial Chamber’s efforts to determine the scope of Lubanga’s monetary liability for reparations. First: the Trial Chamber recently ordered the Trust Fund to determine eligibility of individual beneficiaries as a prerequisite to determining Lubanga’s monetary liability for collective reparation awards. Second: the Trial Chamber ordered the Trust Fund to secure consent of victims to disclose their identities to Lubanga as a precondition to obtaining reparations. The Trust Fund has refused to comply with both orders, citing concern for victim safety among other reasons. I suggest that the Trial Chamber’s current approach would lead victims’ interactions with the ICC’s reparations regime to be more detrimental than reparative, and call upon the Trial Chamber to shift course.
Through this article, I hope to show that divergent perspectives on what might make the ICC’s collective reparations regime effective are not irreconcilable. The Court must ensure that its reparation implementation process moves forward in a way that is more responsive to victim rights and concerns, at the same time that it builds the procedural architecture necessary to protect the rights and scope of liability of the convicted person.
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For previous posts on the ICC, Lubanga case and reparations on this blog, see here:-
Guest post by Diana Contreras-Garduno: Passing the buck: the ICC Trial Chamber’s approach in Lubanga Reparations Decision, 15 August 2012
Guest post by Julie Fraser and Brianne McGonigle Leyh, Fine-tuning the ICC’s Reparations Regime: Appeals Chamber Decision on Reparations in Lubanga Case, 19 March 2015