ICC's office of public counsel for victims at the Lubanga appeals hearing on 3 March 2015 (Photo: Flickr/ICC-CPI)

ICC Lubanga ruling sets out reparations guidelines

10 March 2015 by Stephanie van den Berg, The Hague (The Netherlands)

In a landmark appeals ruling last week, the International Criminal Court (ICC) issued guidelines on reparations to victims in the Lubanga case that are expected to lead the court in future cases.

Congolese warlord Thomas Lubanga Dyilo was convicted in 2012 to 14 years in prison for enlisting and conscripting child soldiers. The verdict was confirmed in December [IJT-171], paving the way for the appeals chamber to assess the principles applied to reparations laid down by the trial chamber after the initial ruling.

The appeals chamber made significant changes to the trial chamber's guidelines, namely in deciding that a reparations order must be directed at a convicted person who remains personally liable for reparations. In this case, because Lubanga has been declared indigent at present, the court said the Trust Fund for Victims (TFV) will advance the cost of the reparations and can claim it from Lubanga “at a later date”.

Victims’ representatives had appealed the lower court's decision to award only collective reparations and not individual payments. However, the appeals chamber said the ruling was appropriate because there is likely a high number of victims who did not participate in the trial proceedings. The appeals judges also specified that only people who suffered direct or indirect harm from the crimes of which Lubanga convicted are illegible for reparations, thus derailing efforts by victims’ advocates to also include those who suffered sexual and gender-based violence.

The issue is very delicate, as the recognized victims in this case are mostly Hema child soldiers who fought in the militias Lubanga commanded. Because Lubanga was prosecuted only for using child soldiers, the victims who suffered atrocities at the hands of these units, mostly from the Lendu tribe, are ineligible for reparations.

The ICC had earlier established that indirect harm must arise from the direct harm suffered by victims, meaning child soldiers’ family members can be considered indirect victims, but victims of child soldiers’ conduct, such as killings and sexual violence, cannot be considered as such.

“Giving reparations to one group, especially in the case of child soldiers who committed crimes, will cause problems in the community,” Luke Moffett, a legal expert on reparations from Queen's University Belfast, told IJT, adding that it seemed judges have tried to limit the number of victims eligible for reparations.

The TFV now has up to six months to produce a draft plan to implement the reparations, which will then be reviewed by a trial chamber.

While the Lubanga case does give insight into how the ICC plans to handle the complex issue of reparations, Moffett warns that the court itself was very clear that this ruling applies only to Lubanga and judges in the other case with an imminent reparations ruling – that of rival Congolese warlord Germaine Katanga [IJT-173, IJT-163] – could decide differently.

“This is not the final chapter [of reparations at the ICC],” said Moffett. “There is a lot still to go.”