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.
“It is the culture of impunity and individuals who are on trial at the ICC, not Africa.”
This weekend marks a very important moment in the history of international justice. In the wake of the controversial decision by the Kenyan Parliament to pass a motion to withdraw from the ICC, member states of the African Union (AU) are gathering in an extraordinary summit to discuss the possibility for African states to either withdraw from the Rome Statute or to end their cooperation with the ICC. Before analyzing the potential outcomes, here are couple of key points made by the AU Assembly in a report from May of this year:
“[The Assembly] DEEPLY REGRETS that the request by the African Union (AU) to the United Nations (UN) Security Council to defer the proceedings initiated against President Omar Al Bashir of The Sudan and Senior State Official of Kenya, in accordance with Article 16 of the Rome Statute of the International Criminal Court (ICC) on deferral of cases by the UN Security Council, has not been acted upon; […]
EXPRESSES CONCERN at the threat that the indictment of H.E Uhuru Muigai Kenyatta and H.E William Samoei Ruto, the President and Deputy-President of the Republic of Kenya respectively, may pose to the on-going efforts in the promotion of peace, national healing and reconciliation, as well as the rule of law and stability, not only in Kenya, but also in the Region.”
This weekend’s extraordinary summit seems to be a reaction to these regrets and concerns. Continue reading