The Court’s judges have in the past few weeks asked the prosecution, defence, ICC Trust Fund for Victims and NGOs to submit their opinions on criteria for allocation of reparations and procedures to be followed. The judges are expected to deliver their decision in the coming weeks, laying down who should pay, who should benefit and what will be the nature of reparations.
The ICC Trust Fund for Victims, which is funded and managed separately from the Court, invites the judges to determine reparations in line with a goal of reconciliation. “The prevention of crimes will not only require punishing the perpetrator,” says Trust Fund director Pieter de Baan. “It will require sustainable peace based on the healing of victims and reconciliation of society.”
Who is a victim?
In a written document, the Prosecutor proposes that “all victims of the attacks perpetrated by the UPC [Union des Patriotes Congolais, of which Lubanga was head], in particular the targeted members of the Lendu communities, could apply as victims”.
But for Lubanga’s lawyer Catherine Mabille, her client’s conviction “is not enough to justify laying all the blame for Ituri’s suffering on his head”. She considers that only victims of crimes attributed to him from 2002 to August 2003 are entitled to reparations.
Lawyers Luc Walleyn and Franck Mulenda, representing child soldiers, warn the judges against attributing reparations only to the Hema, the ethnic group to which Lubanga and their clients belong. They say the child soldiers represented in the Lubanga case “are often in conflict with their own community”, and that “while it is a fact that this community has suffered through its youth being recruited into militia and its children used in war, it also largely accepted these things and supported the leaders that brought them about”. They conclude that “reparations that benefit only the Hema community would have no sense and could be perceived as unjust by other communities”.
Who should pay?
The Prosecutor contends that “The Court can order Mr. Lubanga to pay a symbolic nominal sum to each identified victim”. He says the rest of the reparations should be paid by the Trust Fund for Victims.
But Walleyn and Mulenda say even if the ICC Registry has pronounced Lubanga indigent, “the obligation to provide reparations for crimes committed falls first and foremost on the person convicted as guilty”. They say that following this principle “can have psychological impact and constitutes in itself recognition of the harms caused”. They contend that Lubanga will have the possibility to earn some money in prison, that a proportion of this should go to reparations, and that once he has served his sentence he should be made to contribute part of his income. The two lawyers propose that the Trust Fund advance the sum required from Lubanga, and that he subsequently reimburse it.
However, defence lawyer Mabille warns that “ordering the payment of exorbitant sums with no relation to the proven harms would not be compatible with the declared aims of reparation”.
What kind of reparations?
Child soldiers’ lawyers Walleyn et Mulenda say their clients want measures that will allow them to find work, such as micro-credit, access to education and training, or recruitment into companies. The two lawyers say, amongst other things, that “the building of a memorial commemorating the children who died in the war and denouncing the use of child soldiers would be welcomed by the victims”.
Lawyers Carine Bapita and Paul Kabongo Tshibangu, representing other victims, say that in the case of girls who were conscripted and raped, what is needed is “to follow the local customs by giving the families what is required in dowry, that is, 7 goats and 3 cows, which could provide compensation in livestock to the family of the girl who was raped”. The two Congolese lawyers say that “respecting this custom could help wash away the harm suffered by the girl and her family”.