On March 3, 2015, the Appeals Chamber at the International Criminal Court (ICC) issued its first-ever judgment on reparations. Trial Chamber I had issued its decision establishing the principles and procedures to be applied to reparations in the case against Thomas Lubanga in August 2012. Both the defense and the victims had appealed the trial chamber decision.
In March 2012, Lubanga became to first person to be convicted by the ICC for the enlistment, conscription, and use of child soldiers under the age of fifteen years to participate actively in hostilities. The crimes occurred in 2002 and 2003 in eastern Democratic Republic of the Congo. Lubanga was sentenced to a total of 14 years of imprisonment, and both his conviction and sentence were upheld on appeal.
The ICC is the first international criminal tribunal that allows for victims to claim for reparations for the harm suffered as a result of the crimes. Such reparations can include restitution, indemnification, and rehabilitation. Victims can also receive certain types of reparations in proceedings before the Extraordinary Chambers in the Courts of Cambodia.
In addition, a Trust Fund for Victims (Trust Fund) has been established by the ICC States Parties. The Trust Fund’s responsibilities include implementation of reparations awards and the provision of physical and psychosocial assistance and material support to victims of the crimes within the jurisdiction of the court but not necessarily in relation to a case or a conviction. The Trust Fund’s operates in accordance with its Regulations.
The March 3 appeals judgment studied whether the trial chamber decision could be considered an order for reparations. It found that although the trial chamber decision contained key elements of an order for reparations, it needed to be amended for it to be considered as such. The Appeals Chamber found that an order for reparations in accordance with Article 75 of the Rome Statute must contain at least five essential elements. These elements are discussed below.
First, the order must be directed against the convicted person. The trial chamber decision had originally directed the order to the Trust Fund. The Appeals Chamber held that even when the convicted person is indigent, the order must be directed against them.
Second, the order must establish and inform the convicted person of his/her liability with respect to the reparations awarded in the order. The Appeals Chamber clarified that even when the Trust Fund advances funds in light of the convicted person’s indigence, the convicted person remains liable and must reimburse the Trust Fund.
Third, the order must specify and provide reasons for, the type of reparations ordered. Reparations can be collective, individual, or both. In this regard, the Appeals Chamber recalled that the victims’ legal representative had contested the trial chamber decision in relation to the award of collective reparations. They argued, in particular, that the trial chamber should have considered the individual request for reparations filed by the victims. The Appeals Chamber held that it was unnecessary for the trial chamber to do so and that its decision to award collective reparations should be construed as a decision to reject award of individual reparations. However, the Appeals Chamber indicated that the Trust Fund should consult with individual victims who participated in the trial and other victims who filed requests for reparations in relation to the collective reparations awards.
Fourth, the order must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as the modalities of reparations that the trial chamber considers appropriate based on the circumstances of the case. The trial chamber had favored a broader approach in relation to the victims that could be selected for reparations and the types of harm that could be considered. The Appeals Chamber held that only victims who suffered direct or indirect harm as a result of the crimes that the person has been convicted of can receive reparations. Indirect harm includes that suffered by family members, and by individual who intervened to help the victims or to prevent the crimes.
Finally, the order must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted. In this regard, the Appeals Chamber held that the trial chamber had erred in delegating responsibility on victims’ eligibility to the Trust Fund. The Appeals Chamber also clarified that based on its ruling that there must be a link between reparations and the crimes the person was convicted. Therefore, it was not possible for the court to award reparations for sexual and gender-based crimes suffered by the victims in the case at hand. This is because those crimes were not charged by the prosecution and, thus, were not part of the crimes Lubanga was convicted for. However, the Appeals Chamber noted, the Trust Fund can use its discretionary assistance mandate to provide assistance to victims of sexual and gender-based violence.
The Appeals Chamber amended the trial chamber decision on the basis of the five requirements. An amended order was attached to the judgment. The Appeals Chamber ordered the Trust Fund to present a draft implementation plan for collective reparations to a newly constituted trial chamber within six months from the issuance of the judgment.