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The great gamble for reparations
16 March 2015

This year has begun with a flurry of activity at the International Criminal Court (ICC), with concerns over victims of international crimes taking centre stage.

The case of Congolese warlord Thomas Lubanga Dyilo has finally gone full circle through investigations, pre-trial, trial and appellate phases, and orders for reparations.

Similarly, the cases against Germain Katanga and Mathieu Ngudjolo Chui, also related to the situation in the Democratic Republic of Congo (DRC), were concluded to the extent of establishing the guilt or innocence of the accused. The Appeals Chamber has delivered a number of judgments that clearly indicate what victims in the DRC cases can and should expect of the ICC beyond the rhetoric and unrealistic promises.

Under the ICC system, victims who participate in a case only receive reparations if the court finds the accused person guilty. Victims do not, therefore, benefit when there is an acquittal. This was the outcome in the case against Mathieu Ngudjolo Chui, who was accused of attacking Bogoro, a village in the eastern DRC.

On 27 February 2015, 12 years after the Bogoro massacre, the Appeals Chamber upheld Ngudjolo’s acquittal on three charges of crimes against humanity (murder, rape and sexual slavery) and seven counts of war crimes (using children under the age of 15 to take active part in the hostilities; directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities; wilful killing; destruction of property; pillaging; sexual slavery and rape).

This adds to the narrative of the slow-grinding wheels of the international criminal justice system

With Ngudjolo’s acquittal confirmed, the quest for reparative justice for some of the victims has effectively been quashed. As the ICC Prosecutor noted in her press statement after the confirmation, ‘[T]he decision does not negate the fact that crimes were committed in Bogoro or the suffering of the victims.’ The Bogoro massacre was also the subject of another inquiry by the ICC in the case against Germain ‘Simba’ Katanga. Katanga and Ngudjolo were co-accused until the judges severed the case for what may be seen as ease in administrative function. This did not, however, change the categories of victims (child soldiers, and victims of sexual and gender-based crimes) or the nature of their victimhood.

Among the Hema-speaking residents of Bogoro, Katanga and Ngudjolo went by the alias ‘Simba na Chui’ (lion and leopard), speaking to their roles as alleged former leaders of the Front des nationalistes et intégrationnistes and the Force de résistance patriotique en Ituri, respectively. Katanga was eventually found guilty of one count of murder as a crime against humanity and four counts of war crimes namely: murder; attacking a civilian population; destruction of property; and pillaging. He was, however, acquitted of rape and sexual slavery as a crime against humanity and the war crimes of using children under the age of 15 years to participate actively in hostilities, sexual slavery and rape.

Victims who participated in Ngudjolo’s case will not benefit from an order for reparations

As was expected, the Prosecutor entered a notice of appeal against Katanga’s acquittal. However, following a series of events – including an apology to victims issued by Katanga himself – the Prosecutor withdrew her notice of appeal. This ultimately removed the possibility of court-ordered reparations for the victims of sexual and gender-based crimes in Bogoro.

The crimes in the cases against both Katanga and Ngudjolo relate to the same fateful events in Bogoro village on 24 February 2003. Yet the victims who participated in Ngudjolo’s case will not benefit from an order for reparations, as a result of the acquittal.

A selected few of those who participated in the Katanga case are, however, likely to benefit from a much-awaited order for reparations from the Trial Chamber as they relate to the charges that Katanga was convicted of.

In another case from the DRC – that of Thomas Lubanga Dyilo – the ICC Appeals Chamber delivered its judgment on orders for reparations for the victims on 3 March 2015. It took approximately two years and seven months for this judgment to be issued – a delay that contributes to the narrative of the slow-grinding wheels of the international criminal justice system.

The delay has certainly caused a measure of concern to many, at the very least to former child soldiers who participated in the trial and appeal stages of the case. Lubanga was found guilty by the Trial Chamber on 14 March 2012 of the war crimes of enlisting and conscripting children under the age of 15 years and using them to actively participate in hostilities. He was subsequently sentenced to a total of 14 years’ imprisonment. The Appeals Chamber confirmed his conviction and sentence on 1 December 2014.

It remains to be seen how the reparations orders will be implemented

With Lubanga’s guilt fully established, the Trial Chamber made its decision establishing the principles and procedures to be applied to reparations. This decision offers a precedent on the principles of reparation that can be applied, adapted and expanded upon by future Trial Chambers.

The judgment spells out the court-ordered reparations regime of the ICC. For the court to make an order on reparations, certain minimum requirements must exist. While a convicted person is indigent (as is the case with Lubanga, Katanga and many accused persons currently before the court), an order for reparations must be made against the convicted person and not the Trust Fund for Victims (TFV). Although Katanga was declared indigent at the beginning of his trial, the Appeals Chamber’s ruling that the order for reparations be made against him was a correction of the Trial Chamber order, which placed the burden of redress on the TFV without recognition of Katanga’s responsibility in this regard.

Second, where the TFV uses its resources to intervene, the convicted person must reimburse the TFV. Third, the order must establish and inform the convicted person of liability, and provide reasons for the type of reparations – collective, individual or both. Fourth, the court must identify the harm caused to victims and the modalities of reparations. Finally, the order must identify the victims eligible to benefit from the awards, or set out criteria for eligibility.

The judgment also outlines the role of the Assembly of States Parties (ASP) to the ICC Statute in implementing reparations awards. Since the ASP adopts resolutions at its annual meetings – which affect administration, finances and other key matters of the TFV – these resolutions guide the interpretation of the Regulations of the TFV, and should therefore be used as an authoritative source by a Trial Chamber making orders on reparations, which relates to the management of TFV funds.

The TFV has a mandate to assist victims where the ICC has exercised jurisdiction, but it has limited resources, which it employs for general assistance and at the sole discretion of its board. TFV resources can complement an award for reparations issued by the court. If such an award does not exist, there are naturally limitations on what victims can expect from the TFV.

It remains to be seen how the reparations orders will be implemented and whether there will be effective consultations with the victims in the process. What is clear, however, is that the outcome of proceedings influences whether or not victims receive reparations. The ICC cases relating to the DRC therefore illustrate what victims can expect from the system of international criminal justice.

Allan Ngari, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

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