Wednesday, March 04, 2015

Yesterday's complete policy on reparations gives important guidance to future Trial Chambers

Yesterday, 3 March 2015, the Appeals Chamber pronounced its judgment in the case of Thomas Lubanga Dyilo (DRC) regarding reparations to victims. Mr. Lubanga’s case was groundbreaking as the Court’s first. Mr. Lubanga was found guilty on 14 March 2012, which generated the need to deal for the first time with questions about reparations. The Trial Chamber concluded that it should make its decision a complete policy on reparations, which the Trial Chambers and Trust Fund for Victims could apply when making judgments about handling reparations in the future.

The policy was appealed by both sides. The Appeals Chamber modified and amended the "decision establishing the principles and procedures to be applied to reparations" and thus established the final principles for reparation. Since it is the Appeals Chamber’s first judgment elaborating on who where and why to award reparations, the judgment is epoch-making for the ICC. It is a most important step because the Statute calls for a reparation scheme, but does not lay out its details. The provision of reparations in the Statute is a unique feature that recognizes the need to provide effective remedies for victims in court proceedings, which has not been recognized before. 

The Appeals Chamber confirmed in its policy that the judgment may provide both individual and collective reparations, but that reparations in the case of Mr. Lubanga will be awarded only collectively. Thus, the Appeals Chamber instructed the TFV to compose a plan of how to implement collective reparations, which would describe how to implement the principles the Appeals Chamber established. The principles are general concepts, which the Trial Chamber can apply to a future case in light of its specific circumstances. For example, according to the principles not only persons, families and groups of people but also legal entities will be entitled to reparations. 

One of the Appeal Chamber’s key amendments of the principles links the responsibility of reparations intrinsically with the convicted. Therefore, Mr. Lubanga has, contrary to the Trial Chamber’s judgment, now become liable for the reparation to the victims. This makes a difference for later cases both emotionally for the victims and instrumentally regarding who pays what. If the TFV for instance advances its resources in order to enable the implementation of the order, it will be able to claim reimbursement of there from Mr. Lubanga at a later date.

This reparations policy, refined by the Appeals Chamber, is likely to be controversial but it does provide the TFV with much needed guidance in the proceedings with reparations. The Appeals Chamber instructed the implementation to be finished in six months in which all victims are to be treated fairly and equally, regardless of whether they participated in the trial proceedings.

Written by Kathrine G. Lodberg

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