Since Thomas Lubanga was convicted by the International Criminal Court (ICC) in 2012, the process of determining reparations to victims of his crimes has been marked by protracted litigation. This week, however, the Appeals Chamber will issue the final decision in the process, which relates to the amount of reparations Lubanga is liable to pay victims.
Lubanga, who was the first person convicted by the court, is appealing the US$ 10 million reparations award issued against him in December 2017, terming the amount excessive, and contesting the eligibility of several victims set to receive reparations. Lawyers for victims also appealed, asking judges to increase the number of victims to benefit from the reparations award. At a public hearing this Thursday the Appeals Chamber will make its ruling on the two appeals, which could bring finality to the reparations litigation.
Lubanga, the former leader of the Union of Congolese Patriots rebel group, was convicted in March 2012 for conscripting and enlisting children under the age of 15 years and using them in armed conflict in Congo’s Ituri district. He is serving a 14-year prison term.
On August 7, 2012, trial judges issued the initial decision on the principles and the process to be followed for reparations to victims in the case. However, appeals lodged by the prosecution, Lubanga, and victims’ lawyers delayed the reparations process. The appeals mostly sought clarity on the form of the reparations, and it was not until 2015 that appeals judges issued an amended order tasking the Trust Fund for Victims (TFV) with drawing up and implementing the reparations program.
In October 2016, judges approved the plan on symbolic collective reparations, and in early 2017, they approved the approach suggested by the Trust Fund for implementing the program, which centers on providing collective services to communities affected by Lubanga’s crimes.
In setting the amount of Lubanga’s financial liability for reparations, judges stated that the scope of a convicted person’s liability is proportionate to the harm caused, and, among other things, their participation in the commission of the crimes for which they were found guilty. The judges assessed the harm suffered by 427 persons recognized as Lubanga’s victims at US$ 3.4 million. Additionally, taking into account the proportion to the harm caused and Lubanga’s participation in the commission of the crimes, judges assessed his liability at US$ 6.6 million.
However, in the appeal, Lubanga’s lawyer, Catherine Mabille, argued that judges erred in their assessment of “the scope and extent of any damage, loss, and injury to victims.” She contended that judges wrongfully ordered Lubanga to pay US$ 6.6 million in reparations for the harm suffered by unidentified victims “who may be identified during the implementation of reparations.”
The defense lawyer also stated that, in their assessment, judges erroneously included several ineligible victims, including “hundreds, if not thousands” of unidentified individuals who had not applied to the court for reparations. Mabille argued the US$ 10 million award did not reflect Lubanga’s criminal responsibility and that it was erroneous for the award to exceed the US$ 6 million, which victims’ lawyers asked for.
Luc Walleyn and Franck Mulenda, who represent victims, also appealed the reparations decision, arguing that judges excluded “a significant number” of victims who participated in the proceedings against Lubanga and whom the TFV had already designated as eligible for reparations.
The victims’ lawyers argued that in the December 15, 2017 decision, the judges not only determined the overall size of the reparations award against Lubanga, but also determined which victims would be eligible for the collective reparations that the TFV would implement. According to them, this order runs counter to the Appeals Chamber’s instructions that, given the collective nature of the reparations, assessment of each victim’s eligibility for the reparations program should be made by the TFV at implementation state, not by trial judges.
The Appeals Chamber decision will be announced Thursday, July 18, at 9:30am local time in The Hague.