Yesterday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the appeals against the Trial Chamber (TC)’s Decision Establishing the Principles and Procedures to be applied to Reparations (decision on reparations) in the case against Thomas Lubanga. This landmark ruling, together with the recent judgments in the Lubanga and Ngudjolo cases and the decision not to appeal the trial judgment in Katanga, are clear signs that the ICC is getting ready to deliver its first ever reparations. The unfolding of this reparative process in the Ituri district of the DRC highlights the challenges the ICC faces in trying to reconcile the notion of individual criminal responsibility with the mass scale of the crimes over which it holds jurisdiction. It further provides an acute illustration of the key tensions stemming from the fact that the ICC judicial process aims to be not merely punitive but also reparative.

Ituri District: Where forthcoming reparations will now seek to repair the harm from a war that happened over ten years ago

(For background on the Ituri war and trials, we’ve written extensively about the region, all of which you can find here.)

In its decision on reparations, the TC underlined the importance of reparations, both as a “well-established and basic human right” and as a reflection of the “need to go beyond the notion of punitive justice.” While noting that reparations oblige the convicted person to repair the harm he or she caused, the TC found that they could contribute more broadly to the communities that were affected and assist in promoting reconciliation. In yesterday’s judgment, the AC seems to have adopted the same approach.

Confirming its findings in the decision on admissibility for these appeals, the AC found that the TC’s 2012 decision was in fact an order for reparations within the meaning of article 75 of the Rome Statute and proceeded to amend it. Yesterday’s judgment is structured on the five essential elements of a reparations order as identified by the AC:

• The order must be directed against the convicted person;
• The order must establish and inform the convicted person of his or her liability;
• The order must specify the type of reparations ordered, either collective, individual 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, as well as identify the modalities of reparations based on the circumstances of the case;
• The order must identify the victims eligible to benefit from reparations or set out the criteria of eligibility.

In relation to the first element, the AC held 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.” It then proceeded to amend the TC’s order for reparations to direct it specifically against Lubanga, where the TC had not explicitly done so.

In the analysis of the second element, i.e. the convicted person’s liability for reparations, the AC stated that Lubanga’s indigence is not relevant to whether he should be liable for any reparations awarded. It further found that it is up to the Trust Fund for Victims (TFV) Board of Directors, not the TC, to decide whether or not to use the TFV’s own resources to implement the reparations order. This clarified a contentious question about who controls resources the TFV raises through donations or other means outside the judicial process. In its decision on reparations, the TC had adopted an inclusive approach to the link between crime and harm for reparations, deciding that it had to be satisfied only with the existence of a “but/for” relationship (i.e. but for Lubanga’s action, would the civilians had suffered the direct harm at issue). It also discarded the “direct harm” test adopted at trial, for a looser standard of proximate cause. In its appeal, the Defense stated that applying such a vague and imprecise standard would lead to a subjective appreciation and infringe on the rights of the accused. The AC found that Lubanga did not demonstrate how the application of the “but/for” relationship and the “proximate cause” standard would infringe his rights and applied this standard of causation to the order for reparations.

In addressing the third element, i.e. the specification of the type of reparations, the AC confirmed that the TC intended to order collective reparations and not individual, or both individual and collective. In their appeals, the Legal Representatives for Victims and the Office of Public Counsel for Victims (OPCV) appealed, arguing that the ruling violated the victims’ right to reparations by dismissing their individual applications for reparations without considering the merits. The AC dismissed their claims, finding that “a TC is not required to rule on the merits of the individual claims for reparations” and that its decision to award collective reparations did not undermine the objectives of the reparations proceedings. It then proceeded to instruct the Registrar to consult with the victims who submitted individual applications with a view to their participation in eventual collective programs.

In the analysis of the fourth element, the AC addressed the role of the TFV within the reparations process. The TC had previously held that the identification of victims and beneficiaries and the assessment of harm should be carried out by the TFV. This decision triggered appeals from the Legal Representatives for Victims, OPCV and Defense regarding the TFV’s ‘non-judicial’ nature. According to the Legal Representatives for Victims and OPCV, the TC should fulfill its own responsibilities in relation to reparations within a strictly judicial form. The Defense charged the TC with breaching the provisions of the Rome Statute and the Rules of Procedure and Evidence which, it argued, reflected the State Parties’ intention to vest “the Court with the exclusive power to determine the beneficiaries of reparations, as well as their scope and nature.”

The AC found the issue of the delegation of the TC’s powers to a non-judicial entity to be moot. However, it proceeded to analyze whether an order for reparations should include specific determinations on the tasks the TC delegated to the TFV. In relation to the determination of harm, the AC found that the TC “must clearly define the harms that result from the crimes for which the person was convicted, the extent of which may then be assessed by the TFV of determining the size and nature of reparation awards.” In this regard, it included definitions of the specific harm suffered by direct and indirect victims in the order for reparations. With respect to the modalities of reparations, the AC confirmed the TC’s determination, which lists restitution, compensation, rehabilitation, as well as others with a symbolic, transformative and preventative value. It recalled that determining the nature and size of the specific reparation awards remains within the decision-making power of the TFV.

The AC also addressed the issue of victims of sexual and gender-based violence. In its appeal, the Defense had objected to the TC’s inclusion of victims of sexual violence at the reparation stage, arguing that Lubanga was not found guilty of sexual and gender-based crimes. The AC agreed with the Defense but noted that this finding would not preclude victims of sexual and gender-based violence to benefit from assistance activities of the TFV. The AC used the same approach in the analysis of the fifth and last element, i.e. the identification of the victims eligible for reparations. At first, it limited the possibility for collective reparations to communities that had a sufficient causal link with the harm caused by Lubanga’s crimes. It then proceeded to mention the TFV’s assistance mandate to benefit members of other affected communities who do not meet this eligibility requirement. This tactic seems to be the only way for the Court to reconcile the narrow list of crimes for which Lubanga was found guilty and the number of people affected by the conflict.

The TFV now has six months to present a draft implementation plan for collective reparations to a newly constituted TC. In the meantime, consultations with local communities are likely to take place in Ituri and it will be interesting to see whether the framework outlined in yesterday’s judgment has the potential to meet their expectations or whether it will deepen the growing divide between the judicial truth established in The Hague and the reality in the field.