Reparative Justice after the Lubanga Appeals Judgment on Principles and Procedures of Reparation

On 3 March 2015, the Appeals Chamber (AC) of the International Criminal Court (ICC) rendered its judgment on the principles and procedures of reparation. The decision is of systemic significance for international criminal justice, since it establishes a liability regime for reparations that is grounded in the principle of accountability of the convicted person towards victims. This new “principle of liability to remedy harm’ complements the punitive dimensions of ICC justice (e.g. conviction, sentence). It differs from purely civil forms of liability due to its connection to criminal proceedings which requires reconciliation of both, the rights of victims and the rights of the convicted person. This contribution analyzes the merits and risks of the judgment It argues that the decision marks significant progress over the initial Trial Chamber decision (TC), since it increases the expressivist dimensions of reparation proceedings and the prospects of participatory justice. But it also highlights existing tensions in the decision, such as its limited attention to societal frictions created through reparations, and its minimalist approach to non-accountability related objectives of reparation.

Context

Article 75 of the ICC Statute sets out that the “Court” shall “establish principles relating to reparations to, or in respect of victims’. ICC Judges failed to reach agreement to set these principles out through collective judicial action and left their specification to case-law. The Lubanga case marked the first opportunity to clarify principles and procedures of reparation.

The initial Trial Chamber decision (TC) outsourced the reparation regime largely to the Trust Fund for Victims. It paid lip service to two goals of reparation, namely to oblige perpetrators to “repair the harm” caused, and “to ensure that offenders account for their acts (TC, para. 179). But it considered it unnecessary for judges to “remain seized throughout the reparations proceedings” (TC, para. 261). The Chamber refrained from issuing a reparation order against Lubanga in light of his indigence. It found that reparations should, in the particular case, be awarded “through” the Trust Fund and charged the Fund with the dual mandate to “determine the appropriate forms of reparations and to implement them” (TC, para. 266) This approach was visibly geared at facilitating swift collective reparation.. But it caused disappointment among victims and triggered separate appeals by legal representatives of Victims V01 and Victims V02 who sought express judicial recognition of accountability and harm.

Approach of the Appeals Chamber

The Appeals Chamber reversed the Trial Chamber decision and issued an “amended” Order for Reparations. The Chamber’s most important conceptual clarification is its principled commitment to the principle of accountability of the offender towards victims (AC, para. 69). The Chamber recognized a “principle of liability to remedy harm” (AC, para. 101), which flows “from the individual criminal responsibility” of the perpetrator (AC, para. 99). It specified that the accountability of the offender must be “expressed” through an order “against’ the convicted person, “even if reparations are ordered ‘through’ the Trust Fund in accordance with the second sentence of article 75 (2)” (AC, para. 70). The Chamber held expressly that the indigence of the convicted person is not an obstacle to the “imposition of liability for reparations” (AC, para. 104). This reading of Article 75 is a clear victory for victims who sought express judicial acknowledgment of accountability, independently of the perpetrator’s indigence. It strengthens the expressivist dimensions of ICC reparations which are of key importance, in light of the limited resources of the Trust Fund.

A second major contribution of the judgment is its articulation of the link between criminal conviction and reparation under Article 75. The ICC reparations regime differs from civil claim models due to its nexus to the criminal case, and specifically the focus on conviction. The judgment clarifies that “reparation orders are intrinsically linked to the individual whose criminal responsibility is established in a conviction and whose culpability for these criminal acts is determined in a sentence” (AC, para. 65).

This approach was not uncontested. At previous stages of proceedings, several actors (e.g., Trust Fund) had claimed that reparations should not necessarily be limited by the charges, since reparations pursue different objectives than the trial, namely to provide meaningful reparation to victims. Reference was made to the wording of Article 75 (2) (“in respect of victims”) in order to justify reparations to a broader group of victims. The Appeals Chamber rejected such an autonomous reading of the reparations regime. It tied the scope of reparations under Article 75 essentially to basis for conviction. The Chamber justified this understanding by two main considerations: (i) its reliance on offender accountability as “main” purpose of reparations (Order for Reparations, para. 2) and (ii) the application of standards of fairness towards the convicted person.

Following its criminal law-oriented logic, the Appeals Chamber stressed the need for legal certainty It held that a judicial reparation order must contain at least five “essential elements”:

1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both, pursuant to rules 97 (1) and 98 of the Rules of Procedure and Evidence; 4) it must 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 modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and 5) it must identify the victims 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. (AC, para. 1).

This approach reconciles the idea of accountability towards victims with need for specificity and protection of “the rights of the convicted persons” (AC, para. 184). It also seeks to distinguish the different roles of the Trust Fund, namely the Fund’s “assistance mandate” which is not linked to conviction, and its role in implementing Court orders for reparations (AC, para. 182). The Appeals Chamber specifically reversed the generic use of the concept of “community” reparations by the Trial Chamber. It clarified that collective reparations to a community require the establishment of a sufficient link between the harm suffered by community members and the crimes of the convicted person (AC, para. 212).

Mindful of the controversies over the nature of reparations, the judgment carefully avoids a specific legal characterization of the ICC reparation system (e.g. as a civil liability regime). But the main principles guiding the new “liability to remedy harm” indicate that responsibility for reparations is markedly different from the determination of individual criminal responsibility. The Order for Reparation (para. 59) specifies that the causal link between crimes and harm can be based on “but/for’ causation and “proximate cause” which leaves considerable flexibility. Similarly, standards of proofs are more relaxed than at trial, due to the “fundamentally different nature of reparation proceedings’ and the potential “difficulty victims may face in obtaining evidence” (Order for Reparation, para. 22). Causality does not have to be established “beyond reasonable doubt”. It requires merely “sufficient proof of the causal link” between the crime and harm suffered, which needs to be assessed in light of the specific circumstances of the case” (Order for Reparation, para. 22). This regime is more flexible than the criminal trial, but more rigorous than certain collective civil claim mechanisms.

Implications

The Appeals Chamber decision has far-reaching consequences for the adjudication of reparations at the ICC. The application of the five “essential’ requirements cannot be delegated to non-judicial organs, such as the Trust Fund or the Registrar. Reparations will thus require intensive Trial Chamber scrutiny, both during trial proceedings and after the judgment on conviction.

The judgment itself provides some illustrations how the adjudication of the liability for reparations may differ from individual criminal responsibility. The Appeals Chamber established a new principle of proportionality in relation to liability for reparations (AC, para. 118). This proportionality test might re-open debates on aspects of individual criminal responsibility in reparation proceedings. For instance, modes of liability that were not shown beyond reasonable doubt at trial, but satisfy the “balance of probability’ test applicable in reparations, might be brought back to the table.

Secondly, the judgment requires the Trial Chamber to enter into separate evidentiary analysis before making an Order for Reparations (para. 185). This may entail reparations hearings to assess harm specifically for purposes of reparation (Rule 97). The Appeals Chamber left the possibility open for a “future Trial Chamber” to address harm not mentioned in the Sentencing Decision (AC, para. 187). The approach of the Appeals Chamber might ultimately point towards the need for a specialized ‘Reparations Chamber’ at the Court.

The judgment provides a strong incentive for victims to request the right to lead evidence at trial regarding the underlying crimes and localities, in order to broaden the potential basis for reparations. It might also require clearer differentiation at trial between evidence related to conviction and sentencing, and evidence for the purpose of reparations (Regulation 56).

Merits and risks

The Appeals Chamber decision makes it clear that the establishment of accountability towards victims through reparation proceedings may be an asset per se. It sends a clear message that the Court should not rush over reparation decisions, but listen to victims and pay greater attention to their harm. It also increases the modalities of participatory justice, and options of consultation of victims.

But the decision has also risks and downsides. There are capacity questions. It is uncertain whether and how the ICC would able to handle this new type of litigation. Reparation proceedings may require expertise and skills that differ partly from criminal adjudication. The question whether more, and possibly longer judicial proceedings on reparations will actually benefit victims merits critical inquiry. Extended reparation proceedings may have unintended negative side effects. ICC action may increase victim fatigue. In the worst case, continued judicialization of harm and ongoing struggles over modalities of reparation might cause new grievances or forestall a sense of closure with the past.

Moreover, there is a more fundamental question whether and how the perpetrator-centred reparation regime at the ICC can redress harm in situation countries, without creating further harm and societal division. As rightly pointed out in scholarship, ICC proceedings may create new dividing lines or hierarchies among victims, through their selectivity, abstraction and processes of inclusion and exclusion. These tensions are even more apparent in the context of reparations. The focus on patterns of victimization reflected in crimes and charges may privilege harm of one group and sideline victimization of others. The Lubanga case posed particular problems since it involved predominantly perpetration and victimization within one group, i.e. the Hema population. The Reparation Order hints at this tension in footnote 44, where it acknowledges that selectivity “could give rise to a risk of resentment on the part of other victims and re-stigmatization of former child soldiers within their communities”. It is doubtful whether the underlying conflict can always be prevented or balanced out through victimization-related charging and selection policy of the Prosecutor.

This dilemma is connected to a deeper criticism in relation to the Chamber’s treatment of the objectives of reparation. The Order for Reparation prioritizes accountability over other societal concerns, such as well-being, security or peace. Rationales, such as relief of suffering, deterrence of future violations, societal reintegration or reconciliation, are treated as secondary objectives that should be pursued “to the extent possible” (Order for Reparation, para. 71). Critics are thus likely to remain skeptical as to whether this new liability regime will make an actual difference to the lives of victims. But the door is open for further creativity. This is the legacy of the decision – and an important turning point for future practice.