On 18 July 2019, the International Criminal Court (ICC) Appeals Chamber issued a landmark judgment upholding a USD 10,000,000 collective reparations award for victims in the case against Thomas Lubanga Dyilo. In this second—and hopefully final—Appeals judgment on reparations in the Lubanga case, the Appeals Chamber largely confirmed the methodology that Trial Chamber II employed in its 15 December 2017 decision setting the amount of Lubanga’s liability for reparations (“Lubanga Reparations Award”). At the same time, the Appeals Chamber reversed Trial Chamber II’s rejection of 48 victim applicants for reparations, who will now be entitled to re-apply for collective reparations benefits before the Trust Fund for Victims (TFV).
Overall, we suggest that the 18 July 2019 Lubanga judgment confirms the large discretion that Trial Chambers retain in choosing a procedure and methodology to calculate reparations awards and determine a convicted person’s liability for reparations. At the same time, it makes clear that such discretion is not unfettered. To this end, the judgment presents several “ground rules” that Trial Chambers must follow, moving forward.
This piece outlines five procedure-related takeaways that arise from the Appeals Chamber’s 18 July 2019 Lubanga judgment, which will impact the structure and function of the ICC’s evolving reparations regime. By situating the Lubanga judgment alongside judgments recently issued in the Al Mahdi and Katanga cases, we aim to highlight points of convergence and divergence in the case law. Because we do not survey all questions asked and answered in the 18 July 2019 Lubanga judgment, we hope that this piece will complement syntheses of the judgment that other commentators have produced in recent weeks (for instance, see Wairagala Wakabi’s post here; see also Luke Moffett’s and Janet Anderson’s recent commentaries here).
Thomas Lubanga Dyilo, former President and Commander-in-Chief of the UPC/FPLC in the Democratic Republic of Congo (DRC), was convicted in 2012 for the crime of enlisting and conscripting children under the age of 15 and using them to actively participate in hostilities. The Appeals Chamber issued its first judgment on reparations in the Lubanga case on 3 March 2015, in which it partially amended the original reparations order issued on 7 August 2012. The Appeals Chamber instructed Trial Chamber II to determine the amount of reparations for which Lubanga could be held responsible, and to monitor the implementation of the order. Subsequently, a protracted debate ensued over the procedures necessary to determine a convicted person’s liability for reparations. The protracted nature of this debate meant that the Katanga and Al Mahdi Trial Chambers issued reparations awards before the Lubanga award was finalized—and meant that each Chamber adopted a distinctive methodology in establishing liability and determining the reparations award.
As we explained in an EJIL: Talk piece last year, the Katanga, Al Mahdi, and Lubanga Trial Chambers approached issues related to liability calculation differently. We termed these approaches “formal,” “functional,” and “intermediate” approaches. In the Lubanga case, as described in further detail here, Trial Chamber II individually reviewed 473 identified victims’ eligibility to access collective reparations. Rather than limit its assessment to these identified individuals, Trial Chamber II determined that the identified victims comprised only a sample of a larger pool of people who could be entitled to reparations. In addition, relying on submissions of the victims and other sources identified in the decision (including Congolese decisions, the Katanga Trial Chamber’s findings, and its own appraisal of identified victims), Trial Chamber II estimated the average value of harm suffered by each victim at USD 8,000 (Lubanga Reparations Award ¶¶247, 259). It concluded that 48 identified victims were ineligible for reparations, and delegated screening of yet-to-be-identified victims to the TFV. Trial Chamber II multiplied USD 8,000 by each identified beneficiary (that is 425) and an estimated (but still unknown) number of prospective beneficiaries, to arrive at an overall monetary liability of USD 10,000,000 (¶¶279-281).
In contrast, in the Katanga case, Trial Chamber II (same composition as the Lubanga Trial Chamber) calculated reparations liability through what we termed a “formal” approach, akin to some civil claims proceedings. The Katanga Trial Chamber limited its analysis to a bounded set of already identified victim applicants for reparations. The Trial Chamber attributed a monetary value to the harm suffered by each person, on an individualized basis. The Trial Chamber then added those values together, and reduced the overall total to arrive at an amount for which the Trial Chamber deemed Katanga proportionately responsible (e.g., USD 1,000,000 out of the total USD 3,752,620 harm) (¶¶239, 264). This differed from the Al Mahdi approach, in which Trial Chamber VIII (composed of Judges Pangalangan, Kesia-Mbe Mindua, and Schmitt) declined to limit itself to working with the group of victims already known to the Trial Chamber. Instead, in what we termed a “functional” approach, the Al Mahdi Trial Chamber relied on expert reports to “reasonably approximate” costs of repairing harm “suffered by or within the community of Timbuktu” (¶¶56, 109-34). The Al Mahdi Trial Chamber did not individually assess the value of harm suffered by each prospective reparations beneficiary, as Trial Chamber II did in Katanga. Also unlike Katanga, Trial Chamber VIII only determined Al Mahdi’s liability (that was EUR 2,700,000) and declined to clarify whether Al Mahdi was held responsible for the totality of the harm (¶¶ 111, 134). In both Katanga and Al Mahdi, the Chambers awarded collective and individual reparations; in Lubanga, the Chamber awarded only collective reparations. As the Lubanga Trial Chamber II would later do in its 15 December 2017 decision, the Al Mahdi Trial Chamber delegated to the TFV the task of screening yet-unidentified reparations beneficiaries (¶144).
On 8 March 2018, the ICC Appeals Chamber (with a different composition) issued judgments largely confirming the Al Mahdi and Katanga reparations orders, while inserting some significant procedural modifications and pointed commentary. In its Al Mahdi judgment, the Appeals Chamber: 1) gave applicants for individual reparations an ability to contest TFV screening decisions before the Trial Chamber and empowered the Trial Chamber to review TFV assessments proprio motu (¶72); and 2) permitted individuals seeking individual reparation to forego disclosing their identities to Al Mahdi, as long as they disclosed their identities to the TFV (¶¶95-96). In its Katanga judgment, the Appeals Chamber expressed concerns about the Katanga Trial Chamber’s approach and noted its inefficiency, while nonetheless upholding its approach as executed in the Katanga case (¶1). In addition to reviewing other issues, the Appeals Chamber highlighted that reparations should focus on the cost to repair, rather than reflect a valuation of harm itself, in light of reparations’ overall reparative purpose (¶2).
Five takeaways from the 18 July 2019 Lubanga Second Appeals judgment
The 18 July 2019 ICC Appeals Chamber judgment addressed appeals both from Lubanga and from victims. Each party raised issues against the backdrop of the Appeals Chamber’s recent Katanga and Al Mahdi judgments. In responding to these appeals, the Appeals Chamber sought to reconcile the Lubanga Reparations Award with those appeal judgments. The Appeals Chamber’s judgment underscored the discretion that Trial Chambers retain in conducting reparations proceedings, and in calculating liability—reflecting the responsibility for reparations of the convicted person. The Appeals Chamber addressed five key concepts relevant to this case and future cases reaching the reparations stage, among other issues: 1) the relevance of individual victim applications filed before the Trial Chamber; 2) the Trial Chamber’s power to approve and identify victim beneficiaries; 3) the calculation of the reparations award; 4) the apportionment of liability; and 5) the sui generis nature of reparation proceedings.
1) A Trial Chamber has discretion to rely on individual applications for reparations, depending on the circumstances of the case.
The Appeals Chamber concluded that, in determining Lubanga’s liability, Trial Chamber II did not err in considering victims who did not submit applications for reparations before the Chamber, or in relying on material beyond that submitted by the victims, as Lubanga had argued (¶¶63, 92). In so concluding, the Appeals Chamber underscored that the ICC’s reparations regime is not necessarily dependent upon adjudicating claims from prospective reparations beneficiaries (¶¶87-89; see also Katanga reparations Appeals judgment ¶147). This means that the identities and total number of victim beneficiaries need not be identified prior to finalising a reparations award. Regardless of whether the Trial Chamber accounts for unknown beneficiaries, the award is not necessarily limited to the amount and nature of reparations requested by the victims (¶330).
In addition, the Appeals Chamber concluded that Trial Chambers are not obliged to justify their decisions to examine harm befalling yet-unidentified victims on the basis of “exceptional circumstances” (¶76). This underscores that there is no baseline preference for application-based approaches in the ICC reparations regime; Trial Chambers retain discretion in deciding how to approach beneficiary identification and harm assessment.
The Appeals Chamber emphasised that the reasonableness of a Trial Chamber’s chosen approach will depend on the characteristics of each case (¶¶86-87, 142). While the Appeals Chamber explained that an application-based approach may lend itself to certain scenarios, and could be appropriate—for instance, if there are only a small number of victims and it is clear that nearly all have filed requests for reparations—there are other scenarios where this approach would be less ideal (¶86). In this case, due to uncertainties over the number of victims, the limited number of applications received, and the Trial Chamber’s effort to ensure that all interested victims receive reparations (¶92), Trial Chamber II was not obliged to limit its assessment of harm to what was documented in individual victims’ applications for reparations (¶¶77-85), contrary to Lubanga’s submissions (¶63).
If Trial Chamber II were limited to assessing harm suffered only by victims who submitted requests for reparation, then a) the Trial Chamber would in effect be precluded from considering the totality of the harm caused by the convicted person (¶79), and b) inefficiencies would result, as the Trial Chamber would be forced to wait until all victims came forward to apply for reparations before finalising the reparations award (¶81).
The Appeals Chamber explained generally that in assessing harm caused by the convicted person, a Trial Chamber should consider “the scope of damage as it is in the current reality, based on the crimes for which the convicted person was found culpable” (¶¶2, 89). To make that determination, the number of victims at the time of the crimes may be only one of several criteria (¶89). Other appropriate criteria include (i) the reparation measures being envisioned, and (ii) how many victims are likely to benefit from reparations (¶89). These determinations may be informed by party submissions and expert reports (¶89), and can include estimates. In addition, as discussed in greater detail below, the Appeals Chamber stressed that when setting the amount of a reparations award, a Trial Chamber should strive to incorporate a focus on the cost of repairing harm caused by the convicted person (¶107).
At the same time that the Appeals Chamber allowed for flexibility, it also framed certain ground rules that all Trial Chambers must follow in reparations proceedings to protect parties’ rights. These include:
a) A Trial Chamber must provide parties with notice of the manner in which it intends to conduct reparations proceedings and assess information (“g. does it intend to assess each request individually?”), and notice as to the standard of proof that the Trial Chamber intends to apply (¶90); b) victims participating at trial must be timely notified that they will be screened anew for reparations eligibility (¶156); c) a convicted person must be permitted to provide submissions on the scope and type of reparations, harm to be repaired, and the information on which a Trial Chamber would rely in making its order (¶90); d) estimates with respect to victims likely to come forward must be “as concrete as possible” and must be grounded in “a sufficiently strong evidential basis” (¶90); and e) any “uncertainties [with respect to estimates] must be resolved in favour of the convicted person (for instance, by assuming a lower number of victims or by discounting the amount of liability)” (¶90). Overall, the Appeals Chamber considered these ground rules met in the Lubanga case.
2) A Trial Chamber has discretion to screen reparations beneficiaries itself or delegate that task, as long as victims are not comparatively disadvantaged.
The Appeals Chamber found that while a Trial Chamber is not obliged to verify each victim’s eligibility for reparations, it is not prohibited from doing so (¶138). This, again, falls within the Trial Chamber’s discretion (¶142; compare Al Mahdi reparations Appeals judgment ¶72, upholding delegation of screening processes). As a result, the Appeals Chamber dismissed the victims’ argument that Trial Chamber II erred by seeking to verify the eligibility of each identified victim who had applied for reparations.
At the same time, however, the Appeals Chamber agreed with the victims that Trial Chamber II’s various rulings leading up to the impugned decision created ambiguity and uncertainty as to what was required of victims who had submitted requests for reparations, and of entities interviewing those victims in this process (¶¶167-68). As a result, victims to come forward during TFV-led eligibility screening could have a comparative advantage, because they might better understand the relevant criteria they would need to demonstrate/fulfil in order to establish their eligibility for reparations (¶168). In sum, Trial Chamber II failed to ensure equal conditions for all prospective reparations beneficiaries (¶169; compare Al Mahdi reparations Appeals judgment ¶56, finding that all applications should be screened by the TFV so screening is done “in a consistent and equal manner”).
Accordingly, the Appeals Chamber amended the Lubanga Reparations Award with respect to the 48 victims found ineligible (¶170). These victims will be given a new opportunity to substantiate their claims, and will be able to ask the TFV to assess their eligibility along with other yet-to-be identified victims (¶170). All TFV recommendations on eligibility will be subject to Trial Chamber II’s approval (¶170)—like in the Al Mahdi case.
In addition, because Trial Chamber II’s approach to determining Lubanga’s liability fixed the overall amount irrespective of the precise number of beneficiaries, the TFV’s later screening of victims will not impact the size of the overall reparations award (¶171).
3) A Trial Chamber has limited discretion in calculating the amount of the reparations award. The ‘cost to repair’ approach is favoured.
The Appeals Chamber dismissed Lubanga’s argument that Trial Chamber II erred in determining his monetary liability for reparations without assessing the actual cost of reparations programs (¶¶104, 122). In so doing, the Appeals Chamber sought to reconcile the Trial Chamber’s focus on valuing harm in its calculation of the reparations award with the Katanga reparations Appeals judgment. In Kantanga, the Appeals Chamber stated that Trial Chambers seeking to determine liability in a reparations award should aim to assess the costs of remedying harm, and thus should focus on the “cost to repair” (Katanga reparations Appeals judgment ¶¶2, 72).
Here—although it reiterated that the purpose of reparations is to repair harm caused by the convicted person (¶107)—the Appeals Chamber somewhat undercut its prior finding in Katanga, by stating that a Trial Chamber’s failure to focus on cost to repair is not necessarily error (¶107). Instead, the Appeals Chamber explained: “[h]ow much the trial chamber is able to focus on the cost of repair will depend on the circumstances of a given case” (¶107). Somewhat opaquely, the Appeals Chamber held that: “[T]he amount of the convicted person’s liability should be fixed taking into account the cost of reparations considered to be appropriate and that are intended to be put in place (which can include reparations programmes) and the different harms suffered by the different victims, both individual victims (direct and indirect) in addition to, in particular circumstances, the collective of victims” (¶108) (emphasis added). The Appeals Chamber further stated that a Trial Chamber may rely on accurate estimates if it is unable to ascertain specific information about the cost of intended reparations programs (¶108). Pragmatically, the Appeals Chamber acknowledged that a Trial Chamber may “need to weigh the need for accuracy of estimates against the goal of awarding reparations without delay” (¶108).
The Appeals Chamber noted that in this case, Trial Chamber II was not especially clear in explaining the factors it considered in arriving at USD 8,000 per person (¶¶110, 118). Nevertheless, it found no error because a) the Trial Chamber appeared to account for relevant considerations (such as the submissions of the parties, its previous findings in Katanga, and decisions of the Congolese military tribunals), and b) the Trial Chamber relied on an estimated number of prospective beneficiaries that was much more conservative than its overall calculation of a range of 2,3451 to 5,938 direct victims—thus bearing in mind Lubanga’s rights (¶¶110,113-21). In addition, the Appeals Chamber noted that in this case, the TFV had been unable to provide the Trial Chamber with specific cost estimates when asked (¶111).
4) A Trial Chamber has discretion to apportion liability, depending on the circumstances of the case.
Lubanga argued that the Trial Chamber erred by holding him accountable for the totality of harm caused to victims, in light of the existence of other, identified, co-perpetrators (¶¶288, 301, 308). Although the Appeals Chamber acknowledged that Bosco Ntaganda was recently convicted of crimes for which Lubanga was also convicted (enlistment, recruitment and use of children under 15 year-old to actively participate in hostilities), it dismissed Lubanga’s argument on this point (¶¶308-09).
In the Katanga case, the Trial Chamber suggested that it was not holding Katanga liable for the totality of harm caused to victims as a result of the crimes of conviction (Katanga reparations order ¶264). In the Al Mahdi case, the Trial Chamber avoided making such an express pronouncement (Al Mahdi reparations order ¶¶110-11). The Lubanga Trial Chamber, like the Al Mahdi Trial Chamber, had not made an express pronouncement on this point; it held generally that its decision was “confined to determining Mr Lubanga’s individual liability for reparations” (¶277), yet appeared to hold Lubanga responsible for remedying the totality of harm resulting from the crimes for which Lubanga was convicted.
The Appeals Chamber did not clarify either whether Lubanga was being held responsible for a portion or all of the harm resulting from crimes for which he was convicted. On one hand, the Appeals Chamber noted that the Trial Chamber had considered the specific facts of the case, including Lubanga’s essential contribution to the common plan, Lubanga’s military position, and the nature of the crimes (¶309). On the other hand, the Appeals Chamber buttressed its discussion with a reference to the Katanga reparations Appeals judgment (¶¶304, 308) which stood for the proposition that a convicted person can be held responsible for the totality of the harm—even if there are other perpetrators.
In Katanga, the Appeals Chamber held that:
“[…]in principle, the question of whether other individuals may also have contributed to the harm resulting from the crimes for which the person has been convicted is irrelevant to the convicted person’s liability to repair that harm. While a reparations order must not exceed the overall cost to repair the harm caused, it is not, per se, inappropriate to hold the person liable for the full amount necessary to repair the harm (¶178) […] the focus in all cases should be the extent of the harm and cost to repair such harm, rather than the role of the convicted person” (¶180).
Overall, the Appeals Chamber concluded that that the Lubanga Trial Chamber’s approach was consistent with the Appeals Chamber’s reasoning in Katanga (¶308). It remains to be seen, however, if—or how—the Ntaganda Trial Chamber will account for the Lubanga reparations award in the Ntaganda reparations proceedings.
5) The sui generis nature of reparation proceedings implicates criminal law principles.
Although it found that criminal law principles apply to “reparations proceedings [only] where appropriate and in accordance with how [the reparations proceedings] are being conducted in each case” (¶248), the Appeals Chamber drew from general principles applicable to criminal proceedings. For instance, it referred to the principle of equality of arms in adversarial proceedings and analogised a convicted person’s right to a “fair and impartial trial” with a “right to fair and impartial reparations proceedings” (¶248). Further, the Appeals Chamber considered case law on redactions applied during criminal proceedings to be “helpful” (¶¶253-54). Like in criminal proceedings, the Appeals Chamber stated that victims’ credibility is not “inevitably affected” by certain internal discrepancies (¶210) and emphasised that Trial Chambers must holistically evaluate the material (¶¶202-03). Notably, and consistently with the approach in the Ntaganda (see, e.g., fns. 1282, 1751) and Gbagbo & Blé Goudé cases (see, e.g., Reasons of Judge Geoffrey Henderson ¶¶285, 1321), the Appeals Chamber did not ‘discount’ Lubanga’s concerns about the reliability of reports from non-governmental organisations and international organisations, which the Chamber took into account (albeit marginally) (¶228). As in criminal proceedings, the Appeals Chamber referred to the standard of appellate review for legal, factual and procedural errors and for discretionary decisions (¶¶27-33). Finally, it dismissed several arguments because the appellant did not substantiate an argument, or failed to show the impact of an alleged error (¶¶160, 215, 277, 309, 312).
Addressing the issue of redactions in particular, the Appeals Chamber formulated a “guiding principle” for Trial Chambers to follow: Trial Chambers, the Appeals Chamber explained, must aim “to ensure that the convicted person, as a party to the litigation, has a meaningful opportunity to challenge the information on the basis of which a chamber will make an award against him or her” (¶256). Here, the Appeals Chamber dismissed Lubanga’s argument that the Trial Chamber’s allowance of extensive redactions to victim dossiers in the context of this case deprived Lubanga of his right to a fair trial (¶¶237, 279). In so concluding, the Appeals Chamber reasoned that the Trial Chamber adequately considered objective security concerns; it also noted the limited relevance of some of the redacted information, given Trial Chamber II’s methodology and approach to conducting reparations proceedings, where it did not rely only on the victims’ applications (¶¶252, 257, 272, 273, 275).
Judge Ibáñez and Judge Eboe-Osuji appended separate opinions. While Judge Ibáñez’s opinion is not yet available, Judge Eboe-Osuji identified some issues that ‘stir concern’.
In his separate opinion, Judge Eboe-Osuji disagreed with the Appeals Chamber’s decision “to make reparation awards against convicted persons for the benefit of unidentified persons who have not yet requested, or who may never request, reparation” (¶9). Judge Eboe-Osuji noted that “[f]lexibility has certainly been overarching in this case” (¶5) and that the judgment “gives an ostensibly ‘victim-friendly’ reading to the Court’s statutory framework” (¶9). Judge Eboe-Osuji expressed concern that the Appeals Chamber judgment may encourage Trial Chambers to authorise collective reparations as a means “to avoid the usual procedures for proof of individual claims” (¶11). Instead, Judge Eboe-Osuji argued that Trial Chambers should be required to identify all victim beneficiaries and calculate an award based on identified victims’ applications (¶¶9, 12)—following an approach similar to that employed by the Katanga Trial Chamber—with the exception being cases where harm was suffered collectively, such as where a cultural monument was destroyed (¶6).
Judge Eboe-Osuji contended that authorising reparations for to-be-identified victims distorts the “idea of the burden of proof” (¶12). He argued that victims who do not apply for reparations, but who are identified later, should benefit instead from the Trust Fund’s discretionary assistance mandate (¶14). Overall, Judge Eboe-Osuji sees “the assistance mandate as the more serviceable option under the Rome Statute to address victims’ suffering” (¶16). In addition, Judge Eboe-Osuji reiterated his view that “reparation under the Statute need not depend entirely on conviction” (¶15), citing to a prior expression of that idea in ¶¶12-13 of his ‘Dissenting Opinion to Decision on the Requests regarding Reparations’ in the Ruto and Sang case.
In conclusion, the Second Lubanga Appeals judgment appears to bring to an end to appellate review of the Lubanga reparations order originally issued on 7 August 2012. This is, however, not the end of the ICC judicial intervention in the Lubanga reparations proceedings, since Trial Chamber II will monitor and review the TFV’s decisions with respect to eligible beneficiaries. It remains to be seen how this judicial monitoring will unfold, and what may be the consequences of any potential disagreement between the Trial Chamber and the TFV.
Moving forward, the Appeals Chamber has underscored that Trial Chambers retain discretion in devising reparations proceedings, and in selecting a method for calculating a reparations award. However, it has also identified clear limitations: clarity above all, a need to ensure all parties have prompt notice of the rules of the game, equality of arms among parties, and respect for the rights of the convicted person.
We will soon learn whether Trial Chamber VI will adapt to the Ntaganda case some of the methodologies and procedures modelled by the Katanga, Al Mahdi, and Lubanga Trial Chambers—or whether it will innovate to further develop practices and procedures for the evolving ICC reparations proceedings. Very recently, the Victims Participation and Reparations Section (VPRS) of the Registry submitted preliminary observations in Ntaganda reparations proceedings. In these observations, VPRS appears to advocate for yet a new approach to reparations beneficiary identification. Noting the principles outlined above—and accounting for the circumstances of the Ntaganda case—VPRS suggests that the Trial Chamber issue a decision before issuance of the Ntaganda reparations order, which would clarify at the outset key requirements, such as criteria for victim eligibility and the standard of proof (¶11). VPRS proposes a model of identification of beneficiaries (which “in essence mirrors the system adopted for [victim] participation at trial”) in which all eligible victims would be largely identified prior to the Chamber’s issuance of the reparations order (¶¶10-11, 18-20, but see fn. 19). VPRS has already taken steps to help estimate the number of potential, yet-unidentified beneficiaries in the Ntaganda case, beyond the 2,132 victims authorised to participate at trial—who would need to be screened for reparations eligibility (¶¶5, 6, 8). VPRS’s proposal will surely spark new questions and debates, as Trial Chamber VI charts a new path forward.