Lubanga case: Trial Chamber I issues first ICC decision on reparations for victims
Today, 7 August 2012, Trial Chamber I of the International Criminal Court (ICC) decided, for the first time in proceedings at the ICC, on the principles that are to be applied to reparations for victims in the context of the case against Thomas Lubanga Dyilo, who was found guilty, on 14 March 2012, 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 ordered that proposals for reparations, as advanced by the victims themselves, are to be collected by the Trust Fund for Victims and presented to a newly-constituted Trial Chamber I for approval. Reparations will then be implemented through the resources of the Trust Fund for Victims that are available for this purpose.
The Chamber, composed of Judge Adrian Fulford (United Kingdom), Judge Elisabeth Odio Benito (Costa Rica), and Judge René Blattmann (Bolivia), considered that it is of paramount importance that the victims, together with their families and communities, participate in the reparations process, and they should be able to express their particular points of view and communicate their priorities.
In accordance with the Chamber’s decision, the potential beneficiaries of an order for reparations are the direct and indirect victims who suffered harm following the crimes of enlisting, conscripting and using children under the age of 15 in Ituri in the Democratic Republic of Congo (DRC), from 1 September 2002 to 13 August 2003. This includes the family members of direct victims, along with individuals who intervened to help the victims or to prevent the commission of these crimes.
The principles established by the Chamber particularly stress the need to ensure that reparations are implemented without any discrimination as regards age, ethnicity or gender, and they should be directed at reconciling the victims of child recruitment and their families and communities in Ituri, whilst preserving their dignity and privacy. Furthermore, the reparations measures are to be formulated taking into account the age of the victims and the sexual violence that they may have suffered, along with the need to rehabilitate the former child soldiers within their communities.
The Chamber has determined that in the present case reparations are to be implemented through the Trust Fund for Victims, within the limits of its resources. Trial Chamber I highlighted that in order for the reparations award to have effect, the States Parties – including particularly the DRC – and non-states parties must cooperate, and the Trust Fund will need to receive sufficient voluntary contributions in order to be able to implement a meaningful and efficient reparations programme.
Mr Lubanga has been declared indigent and no assets or property referable to him have been identified to date. It is open to Mr Lubanga to volunteer an apology to the victims, on a public or confidential basis. The Chamber considered that other symbolic reparations may be appropriate; indeed, it decided that Mr Lubanga’s conviction and his sentence are examples of relevant symbolic reparations given these events are likely to have significance for the victims and their families and communities. Other forms of reparations may include campaigns to improve the position of victims; issuing certificates that acknowledge the harm they suffered; and outreach and promotional activities, along with educational programmes, which provide information and are directed at reducing the stigmatisation and marginalisation of the victims, avoiding discrimination of any kind.
The Trust Fund for Victims has been created by the Assembly of States Parties to the Rome Statute. Its resources are primarily generated through voluntary contributions by States, as well as by private donations. Two mandates govern the activities of the Fund. Under the assistance mandate, which does not depend on the outcome of judicial proceedings before the ICC, the Trust Fund for Victims provides physical or psychological rehabilitation or material support for the benefit of victims, and their families, of crimes within the jurisdiction of the International Criminal Court. Over the past four years, activities under the assistance mandate have benefited over 80,000 victims, including in Ituri. With the Chamber’s decision on reparations, the mandate of the Trust Fund for Victims to design and implement reparations will be activated for the first time in its history.
The ICC is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely war crimes, crimes against humanity, genocide and the crime of aggression. At present, 16 cases have been brought before the Court in the context of seven situations that are currently under investigation: Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur (Sudan), Kenya, Libya and Côte d’Ivoire. The ICC Judges have issued 22 warrants of arrest (two were withdrawn following the death of the suspects) and nine summonses to appear. Currently, five individuals are in the ICC custody and 12 suspects remain at large.
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