International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Fall 2012 Issue
 

Global Judicial PERSPECTIVe

 

Reparations Ordered by International Criminal Court

Richard J. Goldstone

By: Richard J. Goldstone, Former Justice of the Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor

On March 14, 2012, the International Criminal Court issued its first verdict and sentence - in the trial of Thomas Lubanga Dyilo (Lubanga), a former senior military officer in the Democratic Republic of the Congo. He was convicted on charges relating to the war crimes of enlisting and conscripting children under the age of 15 and using them in hostilities. He was sentenced to serve 14 years in prison.

On August 7, 2012 the trial chamber issued its decision on the question of reparations to the victims of the crimes committed by Lubanga. Article 75(2) of the Rome Statute provides that the Court may make an order directly against a convicted person specifying appropriate reparations to victims including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award be made through the Victims Trust Fund that is provided for in Article 79 of the Rome Statute (the TFV). It is funded through fines and forfeitures ordered against convicted war criminals and from voluntary donations from members of the Assembly  of States Parties. No assets of Lubanga were found and reparations will have to come from the TFV. At present some 30 countries have contributed to the TFV and its funds now stand at just over $4.2 million.

Provision for reparations is something entirely new in international criminal law and the Court was required by the Rome Statute to formulate the principles relating to the assessment and payment of reparations. There were difficult questions to be decided. The first related to which victims should qualify. The Court was cognizant that reparations should not be limited only to the victims who were allowed to participate in the trial. There could well be many others who were not aware of their right to intervene in the trial or who were physically unable to do so. It was already some 10 years since the crimes were committed and the position of victims were likely to have changed since that time.

The judges were obliged by the provision of Article 21(3) of the Statute to implement reparations in a manner consistent with internationally recognized human rights and without any adverse distinction based on age, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

  

This decision on reparations is groundbreaking and innovative. It contains a careful and full recitation of the principles to be applied by a trial court ordering reparations. It runs to some 94 pages and it is not possible to do it justice in a commentary of this length.

The Court held that reparations were to be collective rather than individual. With regard to causation, in this case the “damage, loss and injury” which form the basis of a reparations claim must have resulted from the crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in the hostilities.

The questions relating to reparations are be worked out primarily by the TFV with input from an interdisciplinary committee of experts to be appointed by it. The experts are also to come from the Democratic Republic of the Congo. The Court, not necessarily composed of the same three judges, would remain seized of the matter.

In summary, the Court ordered a five-step implementation plan. The first is the TFV, together with the Registry and the Office of Public Counsel or Victims are required to determine which localities in the Democratic Republic of the Congo ought to be involved in the reparations process. Second, there shall be a process of consultation in those localities. Third, an assessment of harm should be carried out during the consultation phase  by the team of experts. Fourth, public debates are to be held in each locality in order to explain the reparations principles and procedures. Fifth, there is to be a collection of proposals for collective reparations that are to be developed in each locality and which will be presented to the Trial Chamber for its approval. The Court has requested Member States of the Assembly of States Parties to make additional funding available to the TFV

This approach by the Court has been widely welcomed by civil society organizations, both in Africa and internationally. It represents an important development for the ICC which now recognizes the inherent right of victims to receive reparations. It will be interesting to see in the coming months what proposals are placed by the TFV before the trial chamber.

Not infrequently war criminals have feathered their own nests and accumulated huge funds in Swiss bank accounts and elsewhere. The Lubanga decision places war criminals and would-be war criminals on notice that if convicted of war crimes their assets would be subject to attachment and use to supplement the funds of the TFV. This is a positive development in the ongoing development of international criminal justice.

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