Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI). The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.
On July 10, 2012, the International Criminal Court (ICC) pronounced its first sentence – 14 years imprisonment – for Democratic Republic of Congo (DRC) militia leader Thomas Lubanga. On the ground in the DRC speculation is now turning to the next element of the proceedings – reparations. Chambers have indicated that they will pronounce themselves “in due course,” but they face serious issues. Can Lubanga be ordered to pay reparations given his apparent lack of means? If not, how will these be funded? Who will receive reparations? Only those victims who formally participated in proceedings? Or will the number of victims be expanded in the reparations phase?
I spoke to a Congolese activist with years of experience working with victims in the DRC about the issue of reparations. For his own security, he prefers to remain anonymous, but his views offer insight into Congolese perspectives on this important issue.
Q: This is the first time that the ICC may award reparations to the victims of armed conflict. What do you think about this opportunity? Do Iturians in general and the victims in particular, have a good understanding of the issue?
A: The notion of reparations is not new to Congolese or to Iturians, because this principle exists in Congolese criminal law. Indeed, Congolese criminal procedure provides that the person injured by an infraction can join the relevant authorities as a “party civile” (a civil party or plaintiff) in the case. The parti civile can ask the court for reparations or damages in conformity with Article 258 of the Congolese civil code which provides “that any act whatsoever of a man that causes damage to another obliges him who bears responsibility for the damage to repair it.” This means that a perpetrator in Congolese law is held responsible not only for the criminal penalty attached to the crime, but also for paying reparations for the damages caused: as long as the victim can show a direct link between the crime committed and the damages suffered.
Victims who have taken part in the procedure at the ICC generally have a better understanding of the issue of reparations. The question is rather for the Court to better understand their perspective, both in terms of what they are expecting and what they would suggest as the kinds of reparations that would be appropriate.
Q: In your personal opinion, among the modes of reparation provided for under the Rome Statute, what would be the most appropriate for victims in this situation?
A: As an actor on the ground, it seems to me that this is a delicate moment at which the process of applying the law may revive the seeds of conflict, if not handled carefully. The question of reparations will be decided by the judges, who are free to order individual or collective reparations or a combination of the two. By way of background, individual reparations are those that identify individual beneficiaries whereas collective reparations are those in which victims are identified as a group. An example of collective reparations might be where the population of a certain village might be recognized and measures such as the construction of a monument or a hospital might be ordered.
I would like, however, to underline two issues with respect to reparations that are particularly important as they may lead to significant frustration among victims.
First, it is important to take into account that victims tend to favor individual reparations, which they see as the essence of justice. It is understandable that victims who have gone through the recognition procedure and who live in difficult circumstances would seek to get as much assistance as possible. For example, on April 18, 2012, lawyers representing the victims submitted their views on reparations. In their letter to the court, some of the victims suggested that micro-credit schemes be created to assist victims in reintegrating into society. As this micro-credit scheme would target only individually identified victims, it would function more as an individual than a collective mechanism. Indeed, according to one of the lawyers, Mr. Walleyn, in the Lubanga case, the victims are not gathered in a community that can be offered collective reparations.
However, the prospect of offering individual reparations to large numbers of victims raises questions about the limited means of the court. Can individual reparations be delivered in a meaningful way?
Most observers think, as I do, that justice should contribute to the consolidation of peace and not be a factor of frustration that would risk undermining efforts at pacification undertaken so far. A central question here is whether reparations will involve only those victims who participated formally in the procedure, or if reparations will cover all those who suffered at the hands of Lubanga or his militia. Hopes are high among both groups that the court will bring justice. If individual reparations are only given to some people this might cause further frustration and anger. Therefore, I think that collective reparations would be more just.
Q: How can this be carried out in practice?
A: The only way to deliver justice and to honor the collective memory of all Iturian victims of atrocities would be to reconstruct or rehabilitate some of the social infrastructure which was destroyed in the war. Concretely this would mean the rehabilitation of hospitals, health centers, and schools. Rehabilitating these structures, which serve everyone, would pacify the spirit and give a measure of justice to everyone.
Q: Another critical question is the criteria on the basis of which victims may be eligible for benefits?
A: In my opinion, the principle criteria should be “any person who has suffered prejudice as a result of the commission of a crime relevant to the competence of the Court.” In a broad sense, this definition should be extensive and go beyond the victims who have participated formally in the process. In adopting a collective approach, a greater number of victims can be reached.
Q: Are there other issues that should be taken into account?
A: Ituri was the site of a conflict that lasted more than six years, with catastrophic human consequences. The ethnic communities in Ituri have agreed to bury the hatchet, and are seeking to rebuild the fragile social fabric, to recreate an environment of peaceful co-existence. This delicate balance must not be disrupted by frustration caused by an institution charged with promoting a common ideal of justice.
In order to avoid this outcome, and to deliver justice in such a complex context, it is necessary to go beyond the simple rule of law, taking measures that will restore a society that has been torn apart by interethnic conflict. Even if we have to keep in mind the particularities of certain situations, we should not limit ourselves to reparations for a few individuals. Everything will depend on the policies of the ICC. If the Court takes the advice of local civil society there will not only be equity in ethnic representation, but also engagement of victims in the process.
In addition, it is important to remember that it is not only the Hema and the Lendu that suffered. For example, many members of the Nande community paid the price for antagonisms between Lubanga and Mbusa Nyamwisi [former leader of the rebel group Rassemblement Congolais pour la Démocratie (RCD) -Kisangani]. Many were targeted by the UPC simply for their ethnic affiliation with Nyamwisi.
All the victims of Lubanga’s actions are waiting to know what the ICC can do for them and the speculation is giving rise to enormous expectations. Many victims have lost their lives, their homes and their assets. They are waiting and believe that they have a right to reparations. If individual reparations are given to some and the reality of the multiplicity of victims is ignored, that would be unjust and would risk damaging the progress towards pardon and true reconciliation among communities in Ituri.
Q: Do you think that this phase may cause frustration among the public?
A: It is essential not to lose sight of the sociological element of the conflict, which is first and foremost an inter-ethnic conflict. In relation to the ICC cases, a serious problem is posed because the public cannot understand why only Hema seem to be included as “parties civiles” to claim reparations. Although, in fact, not all victims are Hema, it is nonetheless natural to think that the crime for which Lubanga has been convicted was committed primarily against members of his own ethnic group – the Hema would have been the logical focus of his recruitment efforts. At the same time, the crimes that are the focus of the Katanga/Ngudjolo trial were committed directly against the Hema, and many have been admitted before the court as victims of violence.
As a result in both cases, it has been difficult for the Lendu to participate in the proceedings and therefore to claim reparations. Of course many Lendu and other communities who were victimized by the acts of armed groups in Ituri. A reparations program, therefore, that only benefits the Hema would undoubtedly be seen as preferential and increase tensions. Therefore, an extensive and inclusive approach is needed.