Appeals decision on reparations in Lubanga case opens the way to implementation of first ICC reparation orders

The Appeals Chamber of the International Criminal Court (ICC) issued its ruling yesterday on reparations in the case against Thomas Lubanga Dyilo, convicted in 2012 of using child soldiers in the conflict in the Democratic Republic of Congo (DRC) between 2002 and 2003. The Appeals Chamber defined the principles of reparation to victims and amended the decision of the first instance accordingly. The Appeal Chamber also instructed the Trust Fund for Victims (TFV) to draft a plan to implement collective reparations, so that victims of Lubanga’s crimes finally receive the redress they have been waiting for.

FIDH and its member organisations in the DRC, ASADHO, Groupe Lotus and Ligue des électeurs commend the Chamber’s on-going commitment to a comprehensive, consultative, culturally-appropriate and gender-sensitive approach to reparations. Providing former child soldiers with the medical and psychological assistance they need, and the tools necessary to re-engage with their communities as part of a broader campaign against discrimination and stigmatisation is crucial for their sustainable rehabilitation,” said Jean-Claude Katende, President of ASADHO.

The Chamber emphasized that the right to reparation derives from the personal liability of the accused. Even if Lubanga is declared indigent, he is still liable for reparations to victims. Although the Trust Fund for Victims will begin implementation of reparations for his crimes, Lubanga may be required to reimburse the Fund in the future. By emphasizing Lubanga’s personal responsibility for repairing the harm caused by the crimes he committed, the ICC sends a strong message that lacking funds is not a free pass for perpetrators and reparation should still be made to victims who suffered harm as a consequence of his crimes,” said Paul Nsapu, FIDH Secretary General and President of Ligue des électeurs.

The Appeals Chamber underlined that a reparations order must be made against a convicted person and only for the harm suffered as a result of the crimes of which he or she was convicted. The Appeals Chamber found that the Trial Chamber had not established a sufficient link between Lubanga’s crimes and harm suffered by victims of sexual and gender-based violence (SGBV), who consequently could not benefit from the reparations order. The Chamber recalled that the Trust Fund can, however, use its discretionary assistance mandate for the benefit of those victims and asked the Trust Fund, which is now tasked with drawing up an implementation plan, to include referrals to NGOs offering services to victims of SGBV in the affected areas.

Our organisations regret that, through its decisions in the Lubanga case, the ICC has not adequately recognised other victims, in particular victims of crimes of sexual and gender-based violence. As the legal representatives for the victims submitted, gender-based crimes and inhuman treatment are an inherent component of recruitment, enlistment and use of children in hostilities,” said Dismas Kitenge FIDH Vice-President and President of Groupe Lotus. We urge the Prosecutor to effectively implement her new policy on investigating and prosecuting sexual and gender-based crimes. It is of utmost importance that charges reflect the full range of crimes and harm suffered by victims as to enable them to have equal access to justice and reparation.”

On 7 August 2012, Trial Chamber I of the ICC established, for the first time, the principles of reparation for victims of the crimes committed by Thomas Lubanga, who, on 14 March 2012, was found guilty of war crimes for enlisting, conscripting and using child soldiers. The decision regarding reparations was subsequently appealed.

The ICC is the first international criminal jurisdiction with a mandate that includes integral reparations for victims, in accordance with Article 75 of the ICC Statute.

The Trust Fund for Victims was created pursuant to Article 79 of the ICC Statute and established by the Assembly of States Parties in 2002. It is an independent institution with two mandates : implementing Court-ordered reparations awards and providing assistance to victims, in particular through their physical and psychological rehabilitation. Under its second mandate, the Trust Fund has already supported close to 80 000 victims, particularly in Uganda and the DRC. In implementing this decision, the Trust Fund will be fulfilling its mandate regarding reparations for the first time.

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