The amount of Thomas Lubanga’s liability for reparations to victims of his crimes has been confirmed by the Appeals Chamber at the International Criminal Court (ICC) to be US$10 million. The former Congolese rebel leader contested the award announced in December 2017, claiming it was excessive and overstated the gravity of his crimes and the number of victims.
In yesterday’s ruling, Appeals Chamber judges rejected all of Lubanga’s grounds for appeal, although they stated that the trial chamber’s calculation of the reparations amount “is not entirely clear.” They added, nonetheless, that the considerations upon which the trial chamber appears to have relied are relevant and that the chamber made efforts to obtain estimates as to the costs of repair that were as accurate as possible before settling on the US$10 million.
In his appeal, Lubanga questioned the formula used in determining the reparations award. He argued that the trial chamber set the reparations award against him based on the aggregate individual harm, without assessing the actual cost of the reparations ordered. Furthermore, Lubanga questioned the number of victims eligible to benefit from the reparations.
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 award against Lubanga thus comprised 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.
The defense contested the decision to award reparations to those 425 victims, or to an undetermined number of others that had not been identified at the time the award was announced. In its ruling, the Appeals Chamber determined that it was not unreasonable for the trial chamber to rely on lists of demobilized former fighters to show that the number of victims affected by Lubanga’s crimes was “far greater” than the 425 victims from the sample.
According to the appeals judges, it would be incorrect to assume that the number of victims may only be established based on individual requests for reparations received by the court. They added that it would be undesirable for trial judges to be restrained in this determination simply because not all victims made a request for reparations. According to the ruling, in making that determination, the trial chamber should “consider the scope of damage as it is in the current reality, based on the crimes for which the convicted person was found culpable.”
The US$ 10 million is the highest amount for which ICC judges have held a convicted person liable. Germain Katanga’s liability was set at US$ 1 million. Malian national Ahmad al-Faqi al-Mahdi, who was convicted for attacking religious and historical monuments, was issued a reparations liability of €2.7 million (US$ 3.18 million).
Because Katanga, Lubanga, and al-Mahdi have been found to be indigent, the TFV has sought to find other sources of funding to contribute to the reparations. In the Lubanga case, it has rolled out a three-year US$1.06 million program of collective reparations to victims. In the Katanga case, it is providing funds for reparations that include an individual symbolic compensation award of US$250 per victim, and four collective awards in the form of housing assistance, education assistance, income-generating activities, and psychological rehabilitation.
In his appeal, Lubanga contended that the US$ 10 million award did not reflect his criminal responsibility and further argued that it was erroneous for the award to exceed the US$ 6 million which victims’ lawyers asked for.
In the ruling, Appeals Chamber judges determined that the trial chamber can impose a reparations award that is not limited to the requests it has received. They said in a case where the trial chamber chooses not to make an award based on requests for reparations only and imposes a collective award, such as in the Lubanga case, an award cannot stay within the confines of submitted requests.
The judges cited Article 75(3) of the court’s Rome Statute, which states that a trial chamber “may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.” They said this illustrated that a trial chamber is not strictly bound by these representations in determining the reparations award.
Lubanga also submitted that the trial chamber erred by holding him liable in full for the victims’ harm, disregarding other co-perpetrators of such harm, and by failing to consider his limited participation in committing the crimes. According to him, each co-perpetrator needed to incur their share of responsibility based on their contribution to the commission of the crimes.
However, the Appeals Chamber agreed with the trial chamber that the reparations award reflected his individual criminal responsibility established in his conviction.