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Lubanga to Appeal US$ 10 Million Reparations Award to Victims

Thomas Lubanga is seeking to appeal the International Criminal Court (ICC) order that set his financial liability for reparations to victims of his crimes at US$ 10 million. The former Congolese rebel leader argues that this amount is excessive and contests the eligibility of several victims to receive reparations.

Defense lawyer Catherine Mabille says that in assessing the extent of damage and loss and injury to victims, judges erroneously included several ineligible victims, including “hundreds, if not thousands” of unidentified individuals who had not applied to the court for reparations.

She contends that the US$ 10 million award does not reflect Lubanga’s criminal responsibility and further argues that it was erroneous for the award to exceed the US$ 6 million which victims’ lawyers asked for.

In a January 15, 2018 notice of intention to appeal, Mabille says judges failed to apply the required standard of proof while assessing the number of victims to benefit from the reparations award.

Lubanga, the former leader of the Union of Congolese Patriots (UPC) rebel group, was convicted in March 2012 of the war crimes of conscripting and enlisting children under the age of 15 years and using them in armed conflict in Congo’s Ituri district during 2002 and 2003. He was handed a 14-year prison term.

In the reparations order, judges determined that 425 of the 473 potentially eligible victims in the sample they examined were most likely direct or indirect victims of Lubanga’s crimes. The defense contests the decision to award reparations to those 425 victims.

The award against Lubanga comprises his liability in respect of the 425 recognized victims (US $ 3.4 million) and US$ 6.6 million to cater for additional victims that were yet to be identified.

Lubanga’s lawyers cite Article 75 of the ICC’s Rome Statute, which they claim provides that, except in exceptional circumstances, judges should not determine the extent of loss and damage suffered by victims who have not applied to the court.

According to the defense, judges did not demonstrate the “exceptional circumstances” under which the scope of the loss to unidentified victims who had not made any application to the court was determined.

The defense contends that, without demonstrating the exceptional circumstances, Rule 95 of the court’s Rules of Procedure and Evidence should have been applied. This rule would have required the court’s Registrar to provide notification to Lubanga about the award that judges intended to make, and where possible, to victims, interested persons, and interested states. Those notified then have the opportunity to make representations before the court.

Lubanga’s lawyers also fault judges for admitting the applications of the 425 recognized victims, despite many applications containing gaps and inconsistences. The judges determined that, in most cases, although the potentially eligible victims were not in position to submit supporting documentation to prove their allegations, their statements were consistent and credible.

“As a result of this error of law, the Chamber accorded the locus standi of victim for reparations purposes to 425 of the 473 participating applicants without being sufficiently precise as to which of them had established their standing as victims to the requisite standard of proof,” the defense argues.

The defense also argues that whereas at reparations stage the convicted person is entitled to fair trial rules including the opportunity to challenge all evidence before judges, the evidence disclosed to Lubanga lawyers was “affected by redactions that gravely violated the rights of the Defense and precluded any genuine adversarial debate.”

Finally, the defense claims trial judges breached the principles applicable to a convicted person’s liability for reparations. This is because they found Lubanga liable for the full amount of reparations in the case “without regard for the plurality of co-perpetrators, his degree of participation in the commission of the crimes, his actions in favour of the demobilization of minors or the specific circumstances of the case.”

The prosecution and the victims’ lawyers are yet to file their responses to the defense’s submissions on an appeal.

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