Tuesday, August 7, 2012

A few more thoughts on the ICC Lubanga decision setting out reparations principles

As noted here by IntLawGrrl Naomi Roht-Arriaza, today the ICC's Trial Chamber I issued its “Decision establishing the principles and procedures to be applied to reparations” in the case against Thomas Lubanga Dyilo (left). Lubanga was convicted and sentenced to 14 years of imprisonment earlier this year for the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities in the Democratic Republic of the Congo.
Naomi’s earlier post provides an excellent summary of the decision. I lay out here a number of additional aspects of the decision that I think are worthy of note.
► First, despite the recommendation of observers – including that of the War Crimes Research Office (WCRO), which I run – that the Court proactively issue general reparations principles outside of the context of any single case and prior to the issuance of its first reparations award (see WCRO Report on The Case-Based Reparations Scheme at the International Criminal Court), the Chamber states from the outset that the principles established in the decision are “limited to the circumstances of the present case . . . [and] not intended to affect the rights of victims to reparations in other cases, whether before the ICC or national, regional or other international bodies.” (para. 181) As we stated in our report, the absence of general guidance on a variety of issues related to the scheme, combined with the fact that the judges of the ICC hail from diverse backgrounds, may result in discrepancies in the approach to reparations across cases, which may in turn lead to perceptions that the overall scheme is unfair or arbitrary.
► Second, even though the majority of the Trial Chamber declined in its sentencing judgment to treat sexual violence and rape as an aggravating factor for the purposes of sentencing, the principles announced by the Chamber in this decision suggest that victims of sexual violence may well be among the beneficiaries of a reparations program. Indeed, the decision notes in several instances the importance of taking into account the needs of victims of sexual and gender-based violence, including:
  • 'The Chamber recognises that priority may need to be given to certain victims who are in a particularly vulnerable situation or who require urgent assistance. These may include, inter alia, the victims of sexual or gender-based violence, individuals who require immediate medical care (especially when plastic surgery or treatment for HIV is necessary), as well as severely traumatized children, for instance following the loss of family members. The Court may adopt, therefore, measures that constitute affirmative action in order to guarantee equal, effective and safe access to reparations for particularly vulnerable victims.' (para. 200)
  • 'The Court should formulate and implement reparations awards that are appropriate for the victims of sexual and gender-based violence. The Court must reflect the fact that the consequences of these crimes are complicated and they operate on a number of levels; their impact can extend over a long period of time; they affect women and girls, men and boys, together with their families and communities; and they require a specialist, integrated and multidisciplinary approach.' (para. 207)
This is surprising, given that Lubanga was not convicted of any sexual violence crimes and it seems unlikely that the Chamber possesses the authority to make an award of reparations against a convicted person for crimes other than those for which he or she was convicted.

It is true that Rule 85(a) of the ICC Rules of Procedure and Evidence, which defines victims for purposes of natural persons, requires only that an individual suffered harm “as a result of” a crime “within the jurisdiction of the Court.” However, Article 75(2) of the Rome Statute makes clear that reparations may only be awarded against persons convicted by the Court, suggesting that the “damage, loss and injury” forming the basis of a claim for reparations must have been caused by the crime or crimes for which the perpetrator was convicted. Indeed, the Chamber itself acknowledges that the Court must be satisfied that “the crimes for which Mr Lubanga was convicted were the ‘proximate cause’ of the harm for which reparations are sought.” (para. 250).
Perhaps the difference in the Chamber’s approach regarding consideration of sexual violence for purposes of sentencing and consideration of such evidence for purposes of a reparations award can be explained by the fact that the standard of proof is different in each of these phases: while the Prosecution must establish aggravating circumstances beyond a reasonable doubt for purposes of sentencing, the standard applicable to reparations claims is, as the Chamber notes, “a less exacting standard,” namely “a balance of probabilities,” the standard commonly used in civil cases. Even so, it would be helpful if the Trial Chamber could clarify this, as it seems unwise for the Chamber to suggest that it may consider sexual violence in issuing a reparations order without having clear authority to take such action, as the Chamber’s statement runs the risk of raising the expectations of victims of sexual violence that the harm they suffered might finally be addressed by the Court in this case.
► Third, despite the issues just raised, the decision is quite impressive from the perspective of those advocating for greater attention to gender sensitivity in the decisions of international tribunals. Indeed, the decision is replete with references to the importance of taking a gender-sensitive and gender-inclusive approach to reparations, including:
  • 'The Court shall implement gender-sensitive measures to meet the obstacles faced by women and girls when seeking to access justice in this context, and accordingly it is necessary that the Court takes steps to ensure they are able to participate, in a full sense, in the reparations programmes.' (para. 208)
  • 'Therefore, the approach taken by the Court should enable women and girls in the affected communities to participate in a significant and equal way in the design and implementation of any reparations orders.' (para. 209)
  • 'In reparations decisions concerning children, the Court should be guided, inter alia, by the Convention on the Rights of the Child and the fundamental principle of the "best interests of the child" that is enshrined therein. Further, the decisions in this context should reflect a gender-inclusive perspective.' (para. 211)
  • 'The Court shall ensure that reparations are awarded on non-discriminatory and gender-inclusive basis.' (para. 218)
  • 'Compensation is to be approached on a gender-inclusive basis and awards should avoid reinforcing previous structural inequalities and perpetuating prior discriminatory practices.' (para. 227)
  • 'The right of victims to rehabilitation is to be implemented by the Court on the basis of the principles relating to non-discrimination, and this shall include a gender-inclusive approach that encompasses males and females of all ages.' (para. 232)
The Chamber also notes that “[r]eparations should aim at reconciling the victims of the present crimes with their families and all the communities affected by the charges” (para 244), but, significantly, adds in a footnote that “[i]n cases of sexual violence, reconciliation with the perpetrator may be an inappropriate measure as data shows that many survivors of sexual violence do not want a direct apology from the perpetrator or any contact with him or her.” (note 431). Similarly, the Chamber states that “[w]henever possible, reparations should reflect local cultural and customary practices unless these are discriminatory, exclusive or deny victims equal access to their rights.” (para. 245)
► Finally, the Chamber recommends that a multidisciplinary team of experts be retained to provide assistance to the Court with, among other things, 1) assessing the harm suffered by victims and the impact of the accused’s crimes on their families and communities, 2) identifying the most appropriate form of reparations in this case, and 3) establishing who should be awarded reparations. With respect to the latter, the Chamber notes that rather than examining individual application forms for reparation, it will ask the Registry to transmit those applications to the Trust Fund for Victims (TFV), which will be responsible for assessing whether those victims should be included in any reparations program. Notably, the Chamber has delegated to the TFV the task of selecting and appointing appropriate multidisciplinary experts, adding that “[e]xperts in the fields of child soldiers, violence against girls and boys and gender issues should be amongst those appointed by the TFV.” (para. 265) Although the appointment of an expert body is consistent with the recommendations of a number of observers, including that of the WCRO, the Chamber has instructed the team to establish the localities that should be involved in a consultation process and made clear that those localities should not be limited to those mentioned in its verdict. (para. 282) Again, it seems unwise to raise the expectations of victims whose harm was not expressly addressed in the Court’s earlier judgments without providing a clear basis for the ability of the Court to consider reparations claims from such victims.

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