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Home Posts tagged "victims"

Five Procedural Takeaways from the ICC’s 18 July 2019 Lubanga Second Reparations Judgment

Published on September 13, 2019        Author:  and

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).

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The Emerging Reparations Case-Law of the ICC Appeals Chamber in Comparative Perspective

Published on June 12, 2015        Author: 

Reparations for victims of international crimes or serious human rights violations have received increasing attention from international courts. The most recent example is the Judgment on the Appeals against the “Decision establishing the principles and procedures to be applied to reparations” rendered by the Appeals Chamber (AC) of the International Criminal Court (ICC) in Lubanga on 3 March 2015. (See this previous post.) The present contribution compares how three key reparations issues are addressed by the ICC Appeals Chamber and by two other courts: the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Inter-American Court of Human Rights (IACtHR). Besides the ICC, the ECCC is the only international or hybrid criminal court where victims can claim reparations. The IACtHR’s reparations case-law has been seminal for decades, and references to its case-law by the ICC and ECCC reflect an ongoing dialogue. The three issues on which the courts are compared are: who can claim reparations, who is obliged to pay reparations, and what reparations can victims obtain

Who can claim and benefit from reparations?

Under rule 85(a) of the ICC Rules of Procedure and Evidence (RPE), victims are “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. Only victims who suffered harm as a result of the crimes for which the accused was convicted are eligible to claim reparations against him/her (AC Judgment, para. 8). At the ECCC, rule 23bis(1) is the equivalent rule 85(a) defining victims. However, unlike the ICC, the ECCC rules and case-law require a direct causal link between the victim’s harm and the crimes for which the accused was convicted (rule 23bis(1); Case 002/01, Trial Chamber Judgment, para. 1114).

Given the absence of a direct causal link requirement before the ICC, the AC should have considered sexual and gender-based violence as harm resulting from the crimes for which Lubanga was convicted (AC Judgment, paras. 196-198). During his trial, there was robust evidence of sexual exploitation of minors by armed forces or groups. The UN Special Representative for Children and Armed Conflict considered such sexual exploitation as providing essential support to the armed groups and, thus, as active participation in hostilities (Lubanga, Trial Judgment, para. 630). Accordingly, this sexual exploitation was arguably linked to the child soldiers-related crimes for which Lubanga was convicted. The AC should therefore have upheld the Trial Chamber’s finding of reparable harm from sexual and gender violence (paras. 207-209). Read the rest of this entry…