Five essential elements for ICC victims reparations

The ICC is the first international tribunal to provide for reparations to victims, a key feature of the Rome Statute system of global justice.

Victims can claim reparations for harm suffered as a result of the crimes for which the person convicted is found guilty. Reparations can include restitution, compensation, and rehabilitation.

Lubanga is serving out a 14 year sentence for the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in a conflict in the Ituri region of eastern Democratic Republic of Congo in 2002-3.

Last week, the Appeals Chamber confirmed that the victims of the crimes committed by Lubanga would receive collective reparations for harm suffered either directly or indirectly.

Carla Ferstman, director of REDRESS:

“This crucial finding highlights that how much money a convicted person has should not determine what reparations should be owed to the victims: reparations is indelibly connected to and should reflect the harm suffered by victims. This is important as a matter of law and because it will go far in acknowledging the vast suffering of the victims.”

Amending an initial reparations decision in the Court’s landmark first trial, the Appeals Chamber decided that there are at least five elements to be considered for any reparations order in the Lubanga case or any future case:

1. It has to be directed against the convicted person, even if they cannot pay for the reparations. Considered indigent, Lubanga is unable to pay the reparations at this moment. The Trial Chamber had originally directed the order to the Trust Fund for Victims (TFV). See below for more on the Trust Fund.
2. The convicted person is obliged to remedy the harm caused by the crimes for which they are convicted. So the order must establish and inform the convicted person of their individual liability. The indigence of the convicted person at the time of the order does not mean that the person cannot be held liable.
3. The order must specify the type of reparations ordered—either collective, individual or both. It must also outline the reasons for ordering the type of reparations.
4. It must define the harm caused to direct and indirect victims as a result of the crimes. The Trial Chamber must identify the modalities of reparations (i.e. compensation, restitution, rehabilitation or other) that it considers appropriate for each case.There are two types of victims. Direct victims suffer harm directly as a result of the crimes. The judges explained that this kind of direct harm includes physical injury and trauma; psychological trauma and the development of psychological disorders (such as suicidal tendencies, depression, and dissociative behaviour and interruption and loss of schooling among others). Indirect victims (such as family members of direct victims) can suffer harm such as psychological suffering experienced as a result of the sudden loss of a family member; material deprivation that accompanies the loss of the family members’ contributions and other indirect harms.
5. The reparations order must identify the victims who are 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.

The Appeals Chamber also decided that all victims are to be treated fairly and equally as regards reparations; that reparations programmes should include measures to reintegrate former child soldiers and should have a gender-inclusive approach.

TFV to set out reparations plan
The judges also instructed the TFV, established under the ICC Rome Statute, to draft a plan within six months to implement the reparations order. This must include:

• The estimated budget;
• Reference to NGOs that offer services for victims of sexual and gender-based violence and work in the affected areas;
• Consideration of providing medical services together with assistance for general rehabilitation, housing, education and training.

The TFV’s is mandated to support and implement programmes that address harms resulting from genocide, crimes of humanity and war crimes. It has a two-fold mandate:

• To implement Court-ordered reparations and;
• To provide physical, psychological, and material support to victims and their families.

On 17 March, civil society presented to the TFV Board of Directors, urging that the best interest of victims are at the heart of the plan to implement the reparations order.

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