Thomas Lubanga’s conviction opened the door for the first ICC decision on reparations. After a two-year-long wait the Appeals Chamber (AC) released their decision in regards to the arguments, set forth by victims and defense representatives alike, following the Trial Chamber (TC) decision. An initial comment on the decision was released early April by Professor Carsten Stahn. In reaction to the AC decision a panel of expert speakers was hosted by the Grotius Centre, in cooperation with Redress. The panel discussed individual and collective reparations, scope of the case and role of victims, and the role of the Trust Fund for Victims (TFV or Trust Fund).
While panelists agreed that despite Lubanga’s indigence he was still individually liable for reparations there were distinctive opinions in reference to the question of collective versus individual reparations (context provided here) and the role of victims in proceedings. Gaelle Carayon, ICC legal officer of the Redress Trust, noted that because reparations may not satisfy all the victims there must be a way to involve them in the decision process to achieve some level of satisfaction. Consequently, this did not occur within the Lubanga case and therefore a ruling of collective reparations may have had a negative impact on situational victims. Pieter de Baan, Executive Director for the TFV, argued that members of victimized groups would have to be known, which means there is already an individual aspect. He went on to say that the trial should have reparative value in of itself. Initially beginning with victim participation; going through the victim’s implications, reparations hearings, and proceedings; and finally extending into the actual delivery and awarding of reparations to those victims. Luke Moffett, lecturer at Queen’s University in Belfast, explained that reparation could combine both collective and individual elements. Moffett expanded on De Baan’s point suggesting that in the short term the Court should not only recognize the individual victims but also extend each a small even nominal award. Moffett suggested further that in the long term to complement the individual there should be collective reparations including rehabilitation. Dov Jacobs, assistant professor at Leiden University, expressed some uncertainty regarding the role of victims during cases by pointing to fair trial concerns. He argued that the process of incorporating the role of victims during the trial needs to be more tightly defined. This would allow for procedural problems to be sorted out quicker instead of continually “clogging the system”.
Panel chair, Prof. Stahn, expressed some concern that putting the law as it is written into action may be difficult in reality. He noted that the goal of reparations is to redress harm and as a result of the AC decision there will be a need to mitigate unintended negative consequences for instance: implementation causing further societal divisions within the Democratic Republic of the Congo (DRC). Luc Walleyn, legal representative for victims in the Lubanga case, and Paolina Massidda, principal counsel for the office of public counsel for victims, generally agreed that the reparations proceedings’ main issue is to try and capture the desire and the needs of the victims. It was pointed out that the Lubanga case was unique since the victims were only child soldiers. Both Walleyn and Massidda built off of one another expressing concern that other victims, those who were not linked directly or indirectly to the Lubanga case, could not receive reparations.
Each future Trial Chamber is responsible for reassessing the procedural principles, which leaves discretionary power in the hands of the judges; this creates a significant procedural problem for future cases. The problem stems, as Jacobs explained, from the ambiguity to how victims will be linked to a case and therefore will receive reparations. This will ultimately require an inclusion of very specific localities linked to each victim to ensure the victimization link to the convicted person, creating a longer and messier trial that benefits no one in Jacobs’ opinion. An alternative route, perhaps a long-term goal, proposed both by Carayon and Massidda is a need to provide alternative hearings for reparations ensuring the participation of victims. It was argued that alternative hearings may be a way to avoid confusion over defining how victims are linked to a case and the convicted person.. These hearing could also be a way to further solidify the role of the TFV.
The Trial Chamber originally gave the Trust Fund a wide degree of discretion in relation to the implementation of reparations, but this was partly corrected by the AC. Carayon noted that , although there is now some clarity as to the roles of the Court and the TFV it is not yet understood how reparations will be implemented. De Baan explained that financial liability of the perpetrator is and should be established as the legal lynch pin for reparations. He argued that the independence of the TFV is paramount and that the Board of Directors need to be able to make a decision not only whether but also how to complement financial reparations. He went further to explain that financial liability of Lubanga or another convicted person may not be the same as the assistance provided by the TFV and therefore, it is something that needs to be looked into during the draft implementation plan. This could be an instance in which alternative hearings for reparations could be valuable. The TFV was now looking at how to implement the Court’s decision and order of reparations. Alternative hearings could provide a succinct apparatus that outlines what the role of the TFV would look like.
In addition to these factors De Baan discussed the resources that the TFV has for both its assistance and reparations mandate. He explained that although the TFV has been compiling funds it was not until the decision’s release and the invitation to produce a reparations implementation plan that the reparations mandate could be explored further. Although many ideas had been discussed only now following a concrete decision by the AC a plan could begin to form. Moffett added that resources are a significant problem within the ICC and the TFV. He went on to suggest that these two sources are only substitutes for states and although they provide a valuable addition they would never fully provide the resources necessary to deal with every situation to the fullest. Moffett stressed the importance of the role of States in providing reparations and resources for victims.
Future hopes for reconciliation remain linked to justice but as reparations have yet to be distributed there is no definitive answer to what the outcome may be. De Baan and Walleyn stressed that there is a difference between reparations and reconciliation. Reparations are grounded in an order of the Court. Reconciliation requires a process of healing that cannot be ordered. While justice and reparations may provide a stepping-stone for healing on an individual basis there is no way to currently measure this until reparations are dispersed.
The AC decision answers many questions but leaves many issues unresolved. With the Katanga reparations decision on the horizon, many are looking at the Lubanga decision as precedent for future cases. It was suggested that the Office of the Prosecutor may face a large burden in the future to ensure that cases are representative of the crimes committed and inclusive of victims who suffered. But, arguably this responsibility still lies in the hands of the victims’ representatives and therefore, it is essential for the prosecution to provide a transparent case, as Moffett suggested. How this procedural transformation will take place is still unknown. Moreover, it is unclear to what extent the individualized quantification of harm relating to each victim makes sense if collective reparation is the only feasible option. How will the Court deal with this, if there is a broader crime base affecting thousands of victims? Individualization may raise unreasonable expectations or exceed the capacity of the Court.
While the panel spent a worthwhile time discussing the role of the prosecution, victims, and Trust Fund in the grand scheme of reparations and court proceedings very little time was spent considering the implications that the conviction and reparations order have for Thomas Lubanga. While the TFV is filling the role of reparations and eventually will distribute them to direct and indirect victims of the case, the question remains when does Lubanga’s responsibility expire, and does it even? Thomas Lubanga remains indigent he is unable to pay reparation fees to the Court or to the TFV. But following his release from the Scheveningen prison and years to come his indigence may change. Will the Court watch over Lubanga’s resources throughout the rest of his life? The Appeals Chamber judgment notes that the Court has a right to monitor Lubanga’s assets even following his time served. But this raises many follow-up questions. Will the Court be capable of monitoring all indigent convicted persons throughout their lives? Is this compatible with its capacity and resources?