August 14, 2012
On 7 August 2012, Trial Chamber I established, for the first time in the ICC’s history, principles for providing reparations to victims in the Lubanga case. On 14 March 2012, Thomas Lubanga Dyilo was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. He was sentenced on 10 July 2012 to a total of 14 years of imprisonment.
The Chamber considered that it is of paramount importance that the victims, together with their families and communities, participate in the reparations process, and be able to express their points of view, their priorities and the obstacles they have encountered in their attempts to secure reparations.
While the Chamber set principles, it will be up to the Trust Fund for Victims to implement them as the Judges decided that reparation should be awarded “through” the Trust Fund.
What are the principles established by the Chamber?
The Chamber promoted a gender- and ethnic- inclusive approach. The principles recognize that:
Who can be a beneficiary?
In the Chamber's view, it would be inappropriate to limit reparations to the relatively small group of victims that participated in the trial and those who applied for reparations.
The Chamber thus noted that pursuant to Rule 85 of the Rules, reparations may be granted to:
The Chamber recognized that priority might be given to vulnerable victims, including victims of gender-based violence or severely traumatized children.
Collective or individual reparations?
The Chamber declared that reparations could be awarded on an individual or collective basis. However, in view of the indigence of Mr Lubanga, it was decided that reparations in the Lubanga case will be implemented “through” the Trust Fund for Victims (TVF), using the resources that the Fund has made reasonable efforts to set aside for this eventuality
The Chamber indicated that reparations funded by the TFV using its own resources will tend to be collective, endorsing the Fund’s suggestion of a community based approach rather than individual reparations, given the limited funds available and the fact that this approach does not require costly and resource intensive verification procedures.
What about victims who have already submitted an individual application for reparations?
While the Chamber has not examined individual application forms for reparations received so far, it ordered that these applications be transmitted to the TFV. In the end, these individual victims may benefit from collective reparation measures that will be implemented by the Fund.
What about victims currently participating in the proceedings?
The Registry will decide the most appropriate manner in which the current victims participating in the proceedings, along with the broader group of victims who may ultimately benefit from a reparations’ plan, are to be represented in order to express their views and concerns.
What forms can reparations take?
The Chamber submitted that reparations could take the form of restitution, compensation and rehabilitation measures and specified that:
Restitution should, as far as possible, restore the victim to his or her circumstances before the crime was committed. This might include return to his or her family, education and previous employment, or returning lost or stolen property.
Compensation is to be approached on a gender-inclusive basis and awards should avoid reinforcing previous structural inequalities. This economic relief should encompass all forms of damage, loss and injury, including:
Rehabilitation should be implemented on a non-discriminatory and gender-inclusive basis. It should include the provision of medical services, psychological, psychiatric and social assistance and any relevant legal and social services. Specific measures should be adopted to rehabilitate and reintegrate former child soldiers, such as the provision of education and sustainable work opportunities. Symbolic reparations, such as commemorations and tributes, might also help avoid further victimization.
In addition, the Chamber considered that symbolic reparations may be appropriate. This includes for example the publication of Mr Lubanga’s conviction and his sentence.
Finally, other forms of reparations may include campaigns to improve the position of victims; issuing certificates acknowledging the harm suffered; outreach information activities and educational programmes, directed at reducing the stigmatisation and marginalisation of the victims. Measures may also address the shame felt by some former child soldiers, and prevent further victimization, particularly for victims of sexual violence, torture and inhumane and degrading treatment following recruitment.
While Mr Lubanga has been declared indigent, it is open to him to volunteer an apology to the victims, on a public or confidential basis.
How will the beneficiaries be identified and how will they be consulted?
The Chamber has not ruled on the merits of applications for reparation received so far nor has it stated exactly who will be entitled to reparation. Instead, the Chamber has delegated those tasks to the Trust Fund for Victims.
The Chamber recommended that the TVF appoint a multidisciplinary team of experts to provide assistance in the preparation and implementation of a reparations plan. The team ought to include representatives from the DRC, international representatives and specialists in child and gender issues. The Chamber left it to the Trust Fund to select the experts though indicated that they may assist in the following areas:
The Chamber also endorsed the TFV five-step implementation plan through which victims will obtain reparations.
The Trust Fund for Victims in conjunction with the Registry, the Office of Public Counsel for Victims and the experts are expected to:
The proposals will be subsequently submitted to the Chamber for its approval. Upon receiving approval by the Chamber, the TFV, monitored and overseen by the Chamber, will be able to implement the reparations.
Where will the funds come from?
Lubanga has been declared indigent and has no assets or property that can be used for the purposes of reparations. The Chamber stated, therefore, that Mr Lubanga will only be able to contribute to non-monetary reparations, on a voluntary basis.
Reparations will thus be funded by the Trust Fund’s resources. These resources are primarily generated through voluntary contributions by States, as well as by private donations. In this respect, the Chamber asked for cooperation and voluntary contributions from States Parties - including particularly the DRC - and non-states parties to the Rome Statute.
 Decision establishing the principles and procedures to be applied to reparations, 7 August 2012, ICC-01/04-01/06, http://www.icc-cpi.int/Menus/Go?id=f491ef55-3612-4205-a195-d44a7b90ca0a&lan=en-GB
I am so happy for the victims; I think to me this is true justice. Victims are no longer spectators in the international criminal justice system but they are part and partial of the process. This concept to me is not new but I would say it is a modified one. In Africa specifically among the people from Teso whom I am more familiar with though I believe it used to happen in other African or Uganda tribes, before common law and criminal law took precedence under the state being the offended, the victims were part of the justice process, an offense affected the whole community not only the state. The Africa of that time a person aggrieved would come to the elders court report what she/he has suffered as a result of the perpetrators action whether criminal or civil, the elders meeting would establish if the harm was caused by the alleged person and if true , make a ruling which included a fine to the victim may be in form of a goat, basins of ground nuts/peanut; anything that the perpetrator may have in possession or even order the perpetrator to dig the victims garden for a specific period of time and also make apology to the victim and the community at large. In this manner it made the perpetrator know that his/her’ action did not only offend the victim but the whole community. I hope the TFV manages the expectation of victims. I also ask the DRC government not to mistake reparations for development. The two are very distinct; development must be done by government in bide to give services to the people regardless of whether war existed or not government is duty bound to it and reparations are purely for victims who have suffered harm. After all these comments I have a question. Haven't these victims been displaced by the recent war that broke up in DRC? Is the ICC-TVF in touch with them?
this will be very helpful to establish the rights of victims.
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