This is the important and long awaited decision of the Appeals Chamber of the ICC in the case of Thomas Lubanga, amending Trial Chamber I’s decision establishing the principles and procedures to be applied to reparation of 7 August 2012. It significantly clarifies the ICC’s statutory law on reparations, spelling out  how and by whom a reparations order is to be made and against whom it may be made, all its constitutive elements, how it is to be implemented and by whom the implementation is to be overseen. In this decision, the Appeals Chamber also instructs the Trust Fund for Victims to present a draft implementation plan for collective reparations to Trial Chamber II which the latter approved and ordered to start implementing on 21 October 2016. On 15 December 2017 Trial Chamber II will deliver its decision setting the amount of reparations for which Mr. Lubanga is liable and thus complete the Amended Order of reparation of 3 March 2015.

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In March 2012, Trial Chamber I convicted Mr Lubanga for the recruiting of child soldiers in the conflict in the Democratic Republic of Congo and using them to participate actively in hostilities.[1] This was the first judgment issued by the ICC and thus the first opportunity for the Court to address itself to the implementation of its reparations mandate as provided by Article 75 of the ICC (‘Rome’) Statute. The decision of Trial Chamber I did not contain a section entitled ‘order for reparations’, nor did it comply fully with all the required elements of such an order. However the Appeals Chamber considered that these deficiencies were ‘not fatal to a determination that the Impugned Decision contains an order for reparations’. It held that the deficiencies could be adequately corrected pursuant to its power to ‘confirm, reverse or amend’ a reparations order.

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The Court’s legal texts do not provide a comprehensive definition of an ‘order for reparations’, nor do they specify the minimum required content and details of such an order. However, according to the Appeals Chamber, when read together, the legal texts provide a clear framework as to the minimum elements required for an order for reparations. The Appeals Chamber derived the following minimum essential elements: (32)

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The order for reparations must:

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1. be directed against the convicted person;
2. establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order;
3. specify, and provide reasons for, the type of reparations, either individual, collective or both, pursuant to rules 97(1) and 98 RPE;
4. define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the appropriate modalities of reparations based on the specific circumstances of the case;
5. identify the victims eligible to benefit from 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.

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The inclusion of these elements in the reparations order is vital to its proper implementation and ensures that the order is subject to judicial control. (34) Because the TC’s decision did not fully comply with these elements, the Appeals Chamber proceeds to indicate all the necessary amendments. (35-36)

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First element

The context from which the reparations order arises, individual criminal liability for crimes under the Rome Statute, suggests that reparations order are intrinsically linked to the individual whose criminal liability is in a conviction and whose culpability for those criminal acts is determined in a sentence. (65) This is supported by the Statute’s and Rules of Procedure and Evidence’s drafting history, and art. 82(4) RSt. (66-68)

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According to the Appeals Chamber the legal framework establishes that an order for reparations should in all circumstances be made against the convicted person. When appropriate such an order can, in addition, be made through the Trust Fund. The Appeals Chamber finds that the Trial Chamber erred in not directing the order against Mr. Lubanga personally, as well as against the Trust Fund (TF), and amends this part of the decision. (76)

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Second element

The liability for reparations arises directly from having been the cause, by means of criminal acts (or omissions) of the harm done. Accordingly the order must establish that the person found to be criminally responsible for those crimes is the person primarily to be held liable for reparations. (99) Awards ordered against the convicted person are to be paid into the Trust Fund and from there distributed to victims. Indigence at the time when the Trial Chamber issues an order is not an obstacle to imposing liability: Regulation 117 provides that ‘[t]he Presidency shall, if necessary, and with the assistance of the Registrar as appropriate, monitor the financial situation of the sentenced person on an ongoing basis, even following completion of a sentence of imprisonment, in order to enforce fines, forfeiture orders or reparation orders’.

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In the present case however, because the Trial Chamber found Lubanga to be indigent, it adopted a reparations scheme through which the Trial Chamber would assume control of the Trust Fund’s ‘other resources’, namely those collected through voluntary contributions, for the purposes of providing reparations to victims, without establishing the prima facie liability of the convicted person to pay these awards. (106)

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The Court’s legal texts show that the determination of whether to allocate the TF’s ‘other resources’ for purposes of complementing those collected from the convicted person, falls solely within the discretion of the TF’s Board of Directors. (114) The Appeals  Chamber, therefore, amends the order to reflect that the Board may decide whether to advance its resources for the implementation of the order for reparations. If the Board decides to do so the TF will be able retrospectively to claim the advanced resources from Mr. Lubanga.

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The order for reparations must address the scope of the convicted person’s liability. The scope will vary depending on the mode of individual criminal responsibility established and the specific elements of that responsibility. A convicted person’s liability for reparations must be proportionate both to his/her participation in the commission of the crimes in the specific circumstances of the case and to the harm caused. (118) The Court’s legal framework determines only in general terms the required causal link between the harm and the crime. The Trial Chamber adopted the standard of ‘proximate cause’ that requires a sine qua non relationship between the crime and the harm suffered by the victims (i.e. without the commission of the crime the harm would not have been caused). Mr. Lubanga argued that there is an identifiable trend in international courts and bodies towards adopting a more restrictive approach to causation, requiring instead a ‘direct and immediate link’ standard to be applied. (126,127) However the Appeals Chamber finds that Mr. Lubanga did not sufficiently demonstrate the existence of this trend. Nor did he demonstrate how the application of the sine qua non standard would infringe upon his rights, or how the application of the ‘direct and immediate link’ would remedy the alleged vagueness of the standard applied by the Trial Chamber. This ground of appeal is therefore rejected by the Appeals Chamber. (129)

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Third element

The Court’s legal texts provide for two distinct procedures for awards of reparations: individual (Rule 94 + 95 RPE) and collective (Rule 97(1) + 98(3) RPE). (149). Preparatory documents to the Statute indicate that the individual claims procedure, requiring the court to make findings about the damage, loss and injury suffered by each claimant, was intended only to be used in the case where there are only a few victims. In its decision the Trial Chamber awarded reparations on a collective basis only (143) but then indicated that these would be based on individual requests for reparations received. However, a Trial Chamber is not required to rule on the merits of the individual request for reparations when only collective reparations are awarded. The underlying principle is that reparations are due because of the crimes, and are not merely triggered by claims. Indeed the determination that collective reparations are more appropriate precludes the need for individual reparation awards, while the decision not to award individual reparations does not prejudice those individuals with respect to their eligibility to participate in any collective reparations program. (151-155)

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Fourth element

In order to protect the rights of the convicted person, and to ensure that reparations are not awarded to remedy harms that are not the result of the crimes for which he/she has been convicted, the Trial Chamber must clearly define the harms that resulted from the crimes committed. It is then for the TF to determine the extent of the harm done for the purpose of assessing the size and nature of the reparations to be awarded. (184) This manner of proceeding serves also to protect the right of victims to appeal the exclusion of any harms. The Trial Chamber therefore erred in delegating the task of defining the harms to the TF, and the order will be amended.

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In defining the harms caused by the crimes, the Appeals Chamber takes into account earlier decisions relevant to victim participation, the findings in the Conviction Decision, and the Sentencing Decision. (186 + 187). On the basis of the aforementioned the Appeals Chamber defines the harm with respect to direct victims as:

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physical injury and trauma; psychological trauma and the development of psychological disorders; interruption and loss of schooling; separation from families; exposure to an environment of violence and fear; difficulties socializing within their families and communities; difficulties in controlling aggressive impulses; and the non-development of ‘civilian life skills’ resulting in the victim being at a disadvantage.

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With respect to indirect victims the Appeals Chamber defines the harms as:

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psychological suffering experiences as a result of the sudden loss of a family member; material deprivation that accompanies the loss of the family members’ contribution; loss, injury or damage suffered by the intervening person from attempting to prevent the child from being further harmed as a result of a relevant crime; and psychological and/or material sufferings as a result of aggressiveness on the part of the former child soldiers relocated to their families and communities. (191)

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The decision is disappointing for victims and their representatives seeking reparations for sexual and gender-based violence. (Click here to read the reaction of the Women’s Initiative for Gender Justice).  Victims submitted that ‘gender-based crimes and inhumane treatment are an inherent component of enlistment, recruitment and use of children in hostilities and that in order to be awarded reparations, applicants only need to prove that their harm resulted from the crimes for which Mr. Lubanga was convicted.’ (194) However the Appeals Chamber considers that, the Trial Chamber did not establish that harm from sexual and gender-based violence resulted from the crimes for which Mr. Lubanga was convicted. Indeed it held (para.s 74-75 of the conviction decision) that ‘nothing suggests that Mr. Lubanga ordered or encouraged sexual violence, that he was aware of it or that it could otherwise be attributed to him in a way that reflects his culpability’ and concluded that: ‘the link between Mr. Lubanga and sexual violence, in the context of the charges, has not been established beyond reasonable doubt’. The Trial Chamber should therefore have explained how it nonetheless considered that Mr. Lubanga should be liable for reparations in respect of the harm of sexual and gender-based violence. As it failed to do so, the Appeals Chamber finds that Mr. Lubanga cannot be held liable for reparations in respect of such harm and amends the order. (198) However, the Appeals Chamber found that, all arguments considered, it is nevertheless appropriate for the Board of Directors of the Trust Fund to consider, in its discretion, the possibility of including such victims in the assistance activities undertaken according to its mandate under regulation 50 (a) of the Regulations of the Trust Fund. The Appeals Chamber also considers that it is appropriate for the draft implementation plan to include a referral process to other competent NGOs in the affected areas that offer services to victims of sexual and gender-based violence.

Fifth element

Certain crimes may have an effect on a community as a whole and in acknowledgement of this the Trial Chamber adopted a ‘community-based approach’ in its award of reparations (212). The Appeals Chamber reviewed the criteria for identifying a community as follows: a community is ‘a group of people living together in one place, especially one practising common ownership’ or ‘a group of people having a religion, race, profession, or other characteristic in common’ (210). Where an award for reparations is made to the benefit of a community, only members of the community meeting the relevant criteria are eligible and there must be a sufficient causal link between the harm suffered by the members of that community and the crimes of which Mr. Lubanga was found guilty. The scope of his liability for reparations in respect of that community must be specified.

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However, in its adoption of a ‘community-based approach’ the Trial Chamber granted an award without setting out any criteria. The Appeals Chamberconsiders that as a result Mr. Lubanga might be made liable for reparations with respect to persons who suffered harm that did not result from the crimes for which he was found guilty. (214). It concluded that ‘the Impugned Decision is erroneous in this respect and must be amended to clarify that members of communities are entitled to an award for reparations in so far as the harm they suffered meets the criterion of eligibility in relation to the crimes of which Mr. Lubanga was found guilty. (214)

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Matters relevant for the implementation stage

The Statute and RPE do not provide express guidance on the composition of the Chamber for purposes of monitoring and oversight after an order for reparations has been issued. (233) In the present case, although reparations do not, strictly speaking, need to be addressed by the Trial Chamber, the reparations order was issued by the same Trial Chamber that ruled on the conviction and the sentence. This same Chamber then assigned the duties of approving the draft implementation plan and hearing any contested issues to a newly constituted Trial Chamber. The Appeals Chamber finds that the Trial Chamber did not err in doing so. The Appeals Chamber states that, if it were for the Appeals Chamber itself to give effect to the determinations in the judgment, it would need to specify the scope of Mr. Lubanga’s liability for reparations and to include such specifications in the amended order. However, such a stipulation would be both the first and the final ruling on the matter and Mr. Lubanga would have no possibility of appeal. Therefore it was appropriate to assign the task to another Trial Chamber. The Trust Fund will submit a draft implementation plan to the new Trial Chamber within 6 months (240 + 242). It will provide the anticipated monetary amount that it considers necessary to remedy the harm and will indicate the monetary amount it will provide as an advance. (240)

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The amended order for reparations can be read here.

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[1] Given the powerful legal impact of such a decision emanating from the ICC we have also included it among our International Instruments