The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. This Special Issue is the first in a series of four Special Issues reporting on the first trial Judgement handed down by Trial Chamber I in the case against Thomas Lubanga Dyilo on March 14, 2012. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the first Special Issue Legal Eye eLetter, click here.
While a framework for reparations is provided in the Rome Statute,[i] the Lubanga case presents the first occasion for an ICC Trial Chamber to undertake reparations proceedings. Following Lubanga’s conviction on March 14, 2012, Trial Chamber I issued a ‘Scheduling order concerning timetable for sentencing and reparations’.[ii] In its scheduling order, the Trial Chamber invited submissions from parties and participants, as well as the Registry and the Trust Fund for Victims, on (a) the principles to be applied by the Chamber with regard to reparations; and (b) the procedure to be followed by the Chamber in the reparations proceedings.[iii] The Trial Chamber also invited other individuals or interested parties to request leave to submit observations on these issues.[iv]
In response to this invitation, on March 28, 2012, the Women’s Initiatives for Gender Justice filed a request for leave to participate in the reparations proceedings.[v] This is the fourth time the Women’s Initiatives has filed a request for leave to participate before the ICC.[vi] On April 20, 2012, Trial Chamber I issued a ‘Decision granting leave to make representations in the reparations proceedings’,[vii] in which it granted the Women’s Initiatives for Gender Justice, the International Center for Transitional Justice, UNICEF, the Fondation Congolaise pour la Promotion des Droits humains et la Paix and Avocats sans frontières (filing together with four Congolese NGOs) leave to submit written observations in the reparations proceedings in the Lubanga case by May 10, 2012.
The Women’s Initiatives requested leave to address two areas specified by the Chamber, in particular: (i) ‘whether reparations should be awarded on a collective or individual basis’; and (ii) ‘depending on whether there should be individual or collective reparations (or both), to whom are they to be directed; how harm is to be assessed; and the criteria to be applied to the awards’. In particular, the Women’s Initiatives proposed to assist the Chamber by providing observations on the gender dimensions of these issues, including modalities for determining reparation programs that are inclusive of girls and women.
In the Request, the Women’s Initiatives for Gender Justice asserted that the inclusion of the harm suffered for gender-based crimes within the reparations order remained ‘consistent with the Chamber’s approach to the reparations phase of the Case’.[viii] As described above, in their respective reports to the Chamber filed in September 2011, both the Registry and the Trust Fund for Victims also explicitly recognised harm from sexual violence for the purpose of reparations.[ix]
The Women’s Initiatives’ Request stated that ‘any harm which can be reasonably assessed to be a direct consequence of the crimes for which the accused has been convicted could legitimately be considered for inclusion in an order of reparations’.[x] This includes the many acts of sexual violence of which the Chamber heard evidence, ‘as these flow directly from the crimes of enlistment, conscription and use of children under the age of 15 to participate actively in hostilities’.[xi]
The Women’s Initiatives further underscored the importance of awarding both collective and individual reparations, while emphasising the importance of collective reparations.[xii] The Request stated that ‘collective reparations, such as rehabilitation programmes providing medical and psychosocial support to victims/survivors, specifically victims/survivors of gender-based crimes, or social rehabilitation and demobilisation programmes for former child soldiers, can address the broader aspects of the harms suffered by the community at large’.[xiii]
The Request emphasised that ‘[t]he integration of women and girls in reparations consultations is of particular importance’.[xiv] In addition, ‘the types of crimes suffered by women and girls, the pre-existing and ongoing gender-inequalities, and their access to services and programmes for justice and recovery deserve particular attention to ensure that a reparations order does not have the unintended effect of replicating gender discrimination’.[xv] In this regard, the Women’s Initiatives supported the potential role of the Trust Fund for Victims in delivering reparations, noting that due attention should be paid to the security of potential beneficiaries.
Lastly, the Women’s Initiatives’ Request addressed the criteria to be applied to the reparations awards, noting that ‘[r]eparations should aim to help gain or restore the quality of life for the victims/survivors as well as for future generations’.[xvi] In this regard the Women’s Initiatives proposed to address the value of: (i) reparations that are not only restorative, but also transformative; (ii) reparations that address existing gender inequalities within communities; and, (iii) reparations that contribute to advancing gender equality through the types of programs funded and the type of support provided to victims communities.[xvii]
Read the Women’s Initiatives for Gender Justice Request for leave to participate in reparations proceedings
Read the decision granting leave to the Women’s Initiatives for Gender Justice to participate in reparations proceedings
Read the previous filings submitted by the Women’s Initiatives to the ICC
[i] Article 75, Rome Statute and Rules 94-99 of the Rules of Procedure and Evidence.
[iii] ICC-01/04-01/06-2844, para 8.
[iv] ICC-01/04-01/06-2844, para 10.
[v] ICC-01/04-01/06-2853. The filing is available at http://www.iccwomen.org/documents/Womens-Initiatives-request-Lubanga-reparations.pdf.
[vi] On 7 September 2006, the Women’s Initiatives became the first organisation to file for leave to participate in the Case, concerning the failure of the Prosecutor to fully investigate and bring charges for gender-based crimes and the impact on girl soldiers and the larger community of victims due to the narrow focus of the charges against Lubanga (ICC-01/04-01/06-403). Following the invitation by the Pre-Trial Chamber to re-file our application in the Situation record, rather than the Case record, on 10 November 2006, the Women’s Initiatives re-submitted its application to Pre-Trial Chamber I in relation to the Situation in the Democratic Republic of the Congo (ICC-01/04-313). On 13 July 2009, the Women’s Initiatives filed a request for leave to submit amicus curiae observations in the case against Jean-Pierre Bemba Gombo, in the CAR Situation. On 22 July 2009, the Women’s Initiatives for Gender Justice became the first and to date only international women’s human rights organisation to have been granted amicus curiae status by the ICC. The amicus observations in the Bemba case were filed on 31 July 2009 (ICC-01/05-01/08-466).
[viii] ICC-01/04-01/06-2853, para 18.
[ix] ICC-01/04-01/06-2806 (Registry), paras 20, 88-89, 105, 208; and ICC-01/04-01/06-2803-Red (Trust Fund for Victims), paras 26, 159, 163.
[x] ICC-01/04-01/06-2853, para 16.
[xi] ICC-01/04-01/06-2853, para 26.
[xii] ICC-01/04-01/06-2853, para 28; see also Trust Fund for Victims Report on Reparations, paras 26, 208-209, 289-293.
[xiii] ICC-01/04-01/06-2853, para 28.
[xiv] ICC-01/04-01/06-2853, para 34.
[xv] ICC-01/04-01/06-2853, para 34.
[xvi] ICC-01/04-01/06-2853, para 35.
[xvii] ICC-01/04-01/06-2853, para 35.