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Reparative Justice after the
Lubanga Appeal Judgment
New Prospects for Expressivism and
Participatory Justice or 'Juridified Victimhood'
by Other Means?
Carsten Stahn*
Abstract
On 3 March 2015, the Appeals Chamberof the InternationalCriminalCourt (ICC)
rendered its judgment on the principles andprocedures of reparation.The judgment
is of systemic significancefor internationalcriminaljustice, since it establishes aliability
regime for reparationsthat is groundedin the principle of accountabilityof
the convictedperson towards victims and the nexus between individualcriminalresponsibility
and the obligation to repairharm. This new 'principleof liability to
remedy harm'complements the punitive dimensions of ICCjustice (e.g. conviction,
sentence). It differsfrom purely civilforms of liabilitydue to its connection to criminal
proceedings which requires reconciliation of different interests, namely 'the
rights of victims and the convicted person' This contribution analyses the merits
and risks of the approachtaken by the ICC Appeals Chamber.It argues thatthe judgment
marks significantprogress over the Trial Chamberdecisions,since it increases
the expressivist potentialof reparationsand the prospects of participatoryjustice.
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-relatedobjectives of reparation.
1. Introduction
Over the past decade, opinion has remained highly divided as to what extent
the International Criminal Court (ICC) can serve as a forum for restorative
Professor of International Criminal Law and Global Justice, Leiden University, The Netherlands.
This research is part of a project on 'Post-Conflict Justice and Local Ownership', funded by the
Netherlands Organization for Scientific Research. Special thanks are owed to Gilbert Bitti and
Alejandro Kiss whose insights and ideas have significantly contributed to this comment.
[c.stahn@ cdh.leidenuniv nil
Journalof InternationalCriminalJustice13 (2015), 801 813 doi:10.1093/jicj/mqvO38
© The Author (2015). Published by Oxford University Press. All rights reserved. Advance Access publication 28August 2015
For Permissions, please email: journals.permissions@oup.com
802 JICJ13 (2015), 801 813
justice, and how it can provide better justice for victims.1
Supporters of the
Court have struggled since Rome to articulate a coherent vision and framework
of justice for victims in the ICC system. Camps have become entrenched
in discourse. The ICC principles on reparation suggest that the 'success of the
Court, is to some extent, linked to the success of its system of reparations' 2
But scepticism has been expressed as to what extent victim participation has
merits in criminal proceedings, and whether the ICC can in fact improve the
conditions of victims through adjudication.3
The debate is rooted in tensions
inherent in the Statute, namely: (i) different conceptions of the role and identity
of the Court as a criminal court, human rights entity or security actor;4
(ii) disputes over the feasibility and prioritization of goals, such retributive
versus restorative justice;s
(iii) controversies over the conceptualization of the
role of victims in ICC proceedings; and (iv) more fundamental divides over the
ability of the law to mitigate harm and suffering through legal processes and
1 See generally J-0. Wemmers, 'Where Do They Belong? Giving Victims a Place in the Criminal
Justice Process', 20 CriminalLaw Forum (2009) 395; L. Zegveld, 'Victims' Reparations Claims
and International Criminal Courts: Incompatible Values?' 8 Journalof International Criminal
Justice (JICJ) (2010) 79; M. Pena and G. Carayon, 'Is the ICC Making the Most of Victim
Participation?' 7 InternationalJournal of TransitionalJustice (IJTJ) (2013) 518; C. McCarthy
ReparationsandVictim Support in the InternationalCriminalCourt (Cambridge University Press,
2014); C. McCarthy 'The Rome Statute's Regime of Victim Redress: Challenges and Prospects',
in C. Stahn (ed.), The Law and Practiceof the InternationalCriminal Court (Oxford University
Press, 2015); L. Moffett, Justicefor Victims before the InternationalCriminal Court (Routledge,
2014); L. Moffett, 'Elaborating Justice for Victims at the International Criminal Court', 13 JICJ
(2015) 281; J.B. McGonigle Leyh, Procedural Justice. Victim Participation in International
Criminal Proceedings (Intersentia, 2011); C. Ferstman et al. (eds), Reparationsfor Victims of
Genocide,War Crimes and Crimes Against Humanity: Systems in Placeand Systems in the Making
(Martinus Nijhoff Publishers, 2010); E. Dwertmann, The ReparationSystem of the International
Criminal Court: Its Implementation, Possibilities and Limitations (Martinus Nijhoff, 2008); M.
Funk,Victims' Rights and Advocacy at the InternationalCriminal Court (Oxford University Press,
2010); S. Vasiliev, Article 68 (3) and Personal Interests of Victims in the Emerging Practice of
the ICC', in C. Stahn and G. Sluiter (eds), The Emerging Practice of the InternationalCriminal
Court (Martinus Nijhoff, 2009) 635; G. Bitti and G. Gonzalez Rivas, 'The Reparations Provisions
for Victims Under the Rome Statute of the International Criminal Court, in International
Bureau of the Permanent Court of Arbitration (ed.), Redressing Injustices Through Mass Claims
Processes(Oxford University Press, 2006), 299.
2 See Order for Reparations, Lubanga (ICC-01/04-01/06-3129-AnxA), Appeals Chamber, 3 March
2015, § 2.
3 See C. Van den Wyngaert, 'Victims before International Criminal Courts: Some Views and
Concerns of an ICC Trial Judge', 44 Case Western Reserve Journalof InternationalLaw (2012)
475; C. Chung, 'Victims' Participation at the International Criminal Court: Are Concessions of
the Court Clouding the Promise?' 6 NorthwesternJournalof InternationalHuman Rights (2008)
459; O.C. Okafor and U. Ngwaba, 'The International Criminal Court as a "Transitional Justice"
Mechanism in Africa: Some Critical Reflections', 9 IJTJ (2015) 90.
4 E Jessberger and J. Geneuss, 'The Many Faces of the International Criminal Court', 10 JICJ (2012)
1081; G.P Fletcher and J.D. Ohlin, 'The ICC Two Courts in One?' 4 JICJ (2006) 428.
5 On reconciliation, see C. Stahn 'International Criminal Justice and Reconciliation: Beyond the
Retributive v. Restorative Divide', 36 FICHL Policy Brief Series (2015), available online at http://
www.fichl.org/fileadmin/fichl/documents/FICHLPolicy-Brief.Series/150521-PBS-No.-36-2015Stahn_.pdf
(last visited 7 July 2015).
ReparativeJustice after Lubanga 803
potential unintended side-effects of ICC action, such as the creation of new
categories of victimhood 6
or risks of re-stigmatization.
Existing discourse is marked by a paradox. Whenever capacity limits or adjudicative
failures of the ICC become apparent, victims are used as argument to
defend the legitimacy of the Court. When trial expediency or budget is discussed,
victims are presented as an obstacle to the Court's performance or success.
It is unlikely that this contradiction will ever be fully solved. It might to
some extent even be a productive tension in the Court's design.
ICC practice has received a new spin with the Appeals Chamber decision on
reparations 7
rendered on 3 March 2015 in the Lubanga case. The decision established
a new regime of individual responsibility for reparations that combines
perpetrator-centred considerations with victim-oriented rationales.,s It
reflects a fresh approach towards reparative justice that seeks to reconcile the
value of reparation processes and acknowledgement of harm with the essentially
'criminal' nature of the Court, and its inherent limitations.
2. Context
Article 75 of the ICC Statute sets out that the Court shall 'establish principles
relating to reparations to, or in respect of victims"9
The judges failed to reach
the agreement required to articulate these principles through collective judicial
action, for example, by including them in the Rules of Procedure and
Evidence, and thus left their specification to case law. The Lubanga case
marked the first opportunity to clarify principles and procedures of reparation.
At trial, the issue of reparations remained largely in the shadow of debates on
the judgment under Article 7410 and sentencing." The Appeals Chamber
6 See S. Kendall and S. Nouwen, 'Representational Practices at the International Criminal Court:
The Gap Between Juridified and Abstract Victimhood', 76 Law and Contemporary Problems
(2014) 235.
7 Judgment on the Appeals Against the 'Decision Establishing the Principles and Procedures to
Be Applied to Reparations' of 7 August 2012, Lubanga (ICC-01/04-01/06 A A 2 A 3), Appeals
Chamber, 3 March 2015 (hereafter AC Reparations Judgment').
8 For reactions, see L. Moffett, 'Justice for Victims in Lubanga Case?' Justice Hub, 4 March 2015,
available online at https://justicehub.org/article/justice-victims-lubanga-case; B. McGonigle
Leyh, 'Fine-tuning the ICC's Reparations Regime', PILPG, 17 March 2015, available online at
http://publicinternationallawandpolicygroup. org/pilpg-public-internationallaw-in-action/;
Redress, At Long Last, Reparations for Victims Can Now Proceed in the ICC's First Case', 3
March 2015, available online at http://www.redress.org/news/press-release-appeals-chamberdecision-on-reparations-in-lubanga-case;
J. Pablo Perez-Leon, 'The Emerging Case-Law of the
ICC Appeals Chamber in Comparative Perspective', EJILTalk!, 12 June 2015, available online at
http://www.ejiltalk.org/the-emerging-reparations-case-law-of-the-icc-appeals-chamber-incomparative-perspective/
(all websites last visited 23 July 2015).
9 Art. 75 ICCSt.
10 Judgment pursuant to Article 74 of the Statute, Lubanga(ICC-01/04-01/06), Trial Chamber I, 14
March 2012.
11 Decision on Sentence pursuant to Article 76 of the Statute, Lubanga (ICC-01/04-01/06), Trial
Chamber I, 10 July 2012.
804 JICJ13 (2015), 801 813
judgment made it clear that the adjudication of reparation claims is not only an
annex to criminal proceedings, but also a core part of ICC proceedings that requires
careful judicial scrutiny.
The Trial Chamber decision on principles and procedures on reparations of 7
August 201212 outsourced the reparation regime largely to the Trust Fund for
Victims (the'Trust Fund'). It paid lip service to the 'integral part' of reparations
in the overall trial process" 3
and two goals of reparation, namely to oblige perpetrators
to 'repair the harm' caused and 'to ensure that offenders account for
their acts"14
But it considered it unnecessary for judges to 'remain seized
throughout the reparations proceedings"S and further refrained from issuing
a reparation order against Lubanga in light of his indigence. It argued that an
order against the convicted person would be pointless since 'symbolic reparations',
such as possible public or private apology would require his agree-
ment.16
It found that reparations should, in the particular case, be awarded
'through' the Trust Fund17
and charged the Trust Fund with the dual mandate
to 'determine the appropriate forms of reparations and to implement them'.,s It
endorsed a 'community-based approach' to reparations,19
without deciding on
individual applications. This approach was visibly geared towards facilitating
swift collective reparation through the Trust Fund. But it caused disappointment
among victims and triggered separate appeals under Article 82(4) of the
Statute by legal representatives of Victims V0120
and Victims V0221 who
sought express judicial recognition of accountability and harm through the
reparation process.
3. Approach of the Appeals Chamber
The Appeals Chamber reversed the approach taken by the Trial Chamber. It is
curious that it has taken the Appeals Chamber in total more than two and a
half years to decide on the appeals. But the change of direction is fundamental.
12 Decision Establishing the Principles and Procedures to be Applied to Reparations, Lubanga
(ICC-01/04-01/06), Trial Chamber 1, 7 August 2012 (hereafter 'TC Reparations Decision').
13 Ibid., § 260.
14 Ibid., § 179.
15 Ibid., §261.
16 Ibid., §269.
17 Ibid., §270.
18 Ibid., §266.
19 Ibid., §274.
20 Appeal against Trial Chamber I's Decision Establishing the Principles and Procedures to Be
Applied to Reparation of 7 August 2012, Lubanga(ICC-01/04-01/06),VOl team of legal representatives,
3 September 2012.
21 Appeal against Trial Chamber I's Decision Establishing the Principles and Procedures to be
Applied to Reparations of 7 August 2012, Lubanga (ICC-01/04-01/06), Office of Public Counsel
for Victims/V02 team of legal representatives, 24 August 2012.
ReparativeJustice after Lubanga 805
A. The Principleof Accountability towardsVictims
The Appeals Chamber amended the decision by the Trial Chamber 22
and
issued an amended Order for Reparations. 23
In its approach, the Chamber
took into account that the ICC reparation regime requires reconciliation of different
interests, namely 'the rights of victims and the convicted person'. 24
The
Chamber's most important conceptual clarification is its commitment to the
principle of accountability of the offender towards victims, 25
and its formal expression
in the reparation order. The power of a court to issue binding orders
against individuals for purposes of reparation, as reflected in Article 75(2), is
still exceptional on the international level.26
Previously, the Trial Chamber
had briefly acknowledged the principle of accountability in its decision on the
Defence request for leave to appeals. The Appeals Chamber reinforced this
finding. It recognized a 'principle of liability to remedy harm,2
s which flows
'from the individual criminal responsibility' of the perpetrator for the crimes.29
The Chamber noted that an order against the convicted person is 'indicative
of that person's individual liability for the reparations awarded'. 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)' 3 1
It
argued that this principle of accountability applies in all cases, that is, individual
and collective awards. This interpretation is supported by the framing of
the right to appeal under Article 82(4) which is awarded to the convicted
32
person without condition, and Rule 98 of the Rules which requires an
award 'against a convicted person' in case of both individual and collective rep-
aration.33
The Chamber held expressly that the indigence of the convicted
person is not an obstacle to the 'imposition of liability for reparations'.34
It
22 See Art. 83 (2) ICCSt.
23 See Order for Reparations, supra note 2.
24 Rule 97(3) ICC RPE.
25 AC Reparations Judgment, supra note 7, § 69.
26 See C. Tomuschat, Human Rights: Between Idealism and Realism (Oxford University Press, 2008),
321 322, 355, 365 et seq. Rule 23quinquies (3) of the Internal Rules of the Extraordinary
Chambers in the Courts of Cambodia establishes a civil claim system related to conviction. It
can be implemented through an order that the costs of the award shall be borne by the convicted
person against the convicted person' or through 'a specific project' that 'appropriately
gives effect to the award'.
27 See Decision on the defence request for leave to appeal the Decision establishing the principles
and procedures to be applied to reparations, Lubanga (ICC-01/04-01/06), Trial Chamber I, 29
August 2012, § 23 ('[Reparations] will be an expression of the Court's disapproval and condemnation
of the wrongdoing of the convicted person').
28 AC Reparations Judgment, supra note 7, § 101.
29 Ibid., § 99.
30 Ibid., § 99.
31 Ibid., § 70.
32 Ibid., § 68.
33 Ibid., § 72.
34 Ibid., § 104.
806 JICJ13 (2015), 801 813
derived this conclusion from the powers of the Trial Chamber to seek state assistance
to freeze property and assets for purposes of reparation under Article
75(4), and the duty of the Presidency under Regulation 117 of the Regulations
of the Court to monitor 'the financial situation of the sentenced person on an
ongoing basis', even after completion of the sentence.35
This reading of Article 75 is a clear victory for victims who sought express
judicial acknowledgement of accountability towards victims and liability for
reparations through the Trial Chamber decision on reparations, independently
of the perpetrator's indigence. It strengthens the expressivist dimensions of
ICC reparations36
which are of key importance, in light of the limited resources
of the Trust Funds.
B. The Link Between CriminalConviction and Reparation
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 classical civil claim models due to its nexus to the
criminal case and specifically the focus on conviction.3
S The judgment makes
this nexus apparent. It 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'.
39
This approach was not uncontested. At previous stages of the proceedings,
other actors, such as the Trust Fund, had claimed that the scope of reparations
should not necessarily be limited by the charges, since reparations pursue different
objectives than the trial, namely to provide meaningful reparation to victims.4
0
Reference was made to the wording of Article 75 ('in respect of
victims') to encompass a broader group of victims in reparations.
4 1
35 Ibid., §§ 103 104.
36 On expressivism and its limits, see M. deGuzman, 'Choosing to Prosecute: Expressive Selection
at the International Criminal Court', 33 MichiganJournal of InternationalLaw (2012) 265; M.
Elander, 'The Victim's Address: Expressivism and the Victim at the Extraordinary Chambers in
the Courts of Cambodia, 7 IJTJ (2013) 95.
37 The emerging ICC system differs partly from the ECCC system. In both cases, an order for reparation
must be directed against the convicted person. But in Case 002/1, the Trial Chamber of
the ECCC qualified reimbursement of costs by the convicted persons, and use of alternative
sources as 'distinct' and 'mutually exclusive'. judgement, Case 002/1, Trial Chamber, 7 August
2014, § 1118.
38 In some domestic systems (e.g. France), reparation may be awarded even in case of acquittal.
39 AC Reparations Judgment, supra note 7, § 65.
40 See e.g. Public Redacted Version of ICC-01/04-01/06-2803-Conf-Exp Trust Fund for Victims'
First Report on Reparations, Lubanga (ICC-01/04-01/06), Trial Chamber I, 1 September 2011, §
30 ('Trust Fund First Report'). See also Submission on reparations issues, Lubanga (ICC-01/
04-01/06), Trial Chamber I, 10 May 2012, § 58. For a discussion, see A. Wiersing, 'Lubanga and
its Implications for Victims Seeking Reparations at the International Criminal Court', 4
Amsterdam Law Forum (2012) 21, at 31.
41 See Trust Fund First Report, supra note 40, § 44.
ReparativeJustice after Lubanga 807
The Appeals Chamber rejected such an autonomous reading of the reparations
regime envisaged under Article 75. It adopted a more perpetratorcentred
model. It tied the scope of reparations under Article 75 essentially to
the content of the criminal trial. The Chamber justified this understanding by
two main considerations: (i) its reliance on offender accountability as the
'main' purpose of reparations; 42
and (ii) the application of standards of fairness.
It held that the convicted person must have 'received sufficient information
about the localities of the crimes' which form the basis of reparations and
that liability for reparations should 'not exceed the scope of the crimes' which
marked the basis of conviction.4 3
It did not require full symmetry between the
trial judgment and reparations, but left some flexibility to rely on 'localities'
referred in witness testimony presented at trial 4
C. Legal Certainty
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.
4 5
This approach is unique to the ICC. It reconciles the idea of accountability
towards victims with need for specificity and protection of 'the rights of the
convicted persons'4 6
It also distinguishes 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.
4 7
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
4s
person.
42 Order for Reparations, supra note 2, § 2.
43 AC Reparations Judgment, supra note 7, § 227.
44 Ibid., § 228.
45 Ibid., § 1.
46 Ibid., § 184.
47 Ibid., § 183.
48 Ibid., § 211 ('where an award for reparations is made to the benefit of a community, only members
of the community meeting the relevant criteria are eligible'), § 212.
808 JICJ13 (2015), 801 813
This jurisprudence is of cardinal importance for the conception of reparations
at the ICC and to the Court's identity It makes it clear that reparation
orders are subject to requirements of fairness and specificity, and geared at
providing justice to victims of crimes that formed part of the conviction.
49
D. The sui generis Nature of Reparation Liability
The judgment carefully avoided a specific legal characterization of the ICC reparation
system, for example, as a civil or administrative liability regime. The 'liability
to remedy harm' is neither a pure replication of criminal responsibility
nor a classical form of human rights accountability
The Appeals Chamber clarified that responsibility for reparations is different
from the determination of individual criminal responsibility The Order for
Reparation specifies that the causal link between crimes and harm can be
based on criteria of 'but/for' causation and 'proximate cause s
o This approach
leaves considerable flexibility It is more demanding than a 'presumption of collective
injury' in cases of massive human rights violations, but less stringent
than the 'direct and immediate link' test, advocated by the Defence.
s
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. S2
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' S3
The emerging system differs at the same time partly from the determination of
state violations in human rights adjudication. It takes into account that defendants
do not necessarily have the means to investigate evidence of violations and
might face difficulty in examining and providing evidence 'against hundreds or
thousands of victims'S4
The Trial Chamber argued that a 'wholly flexible approach'
should be applied in cases where reparations are made 'through the
Trust Fund'.ss
The Appeals rejected this approach and upheld a more demanding
'balance of probabilities' standard.S6
This regime is more flexible than the criminal
trial, but more rigorous than certain collective claim mechanisms against states.S7
49 See Queen's University Belfast's Human Rights Centre (HRC) and University of Ulster's
Transitional Justice Institute (TJJ) Submission on Reparations Issues pursuant to Article 75 of
the Statute (KatangaHRC and TJI Submissions), Katanga (ICC-01/04-01/07), Trial Chamber II,
14 May 2015, § 6.
50 Order for Reparations, supra note 2, § 59.
51 AC Reparations Judgment, supra note 7, § 126.
52 Order for Reparations, supra note 2, § 22.
53 Ibid.
54 KatangaHRC and TJI Submissions, supranote 49, § 49 (supporting a 'balance of probabilities').
55 TC Reparations Decision, supra note 12, §§253 254.
56 AC Reparations Judgment, supra note 7, § 83.
57 On the UN Compensation Commission, see R. Singh, 'Raising the Stakes: Evidentiary Issues in
Individual Claims Before the United Nations Compensation Commission', in Permanent Court
of Arbitration (ed.), supra note 1, 62 93.
ReparativeJustice after Lubanga 809
4. Implications
The Appeals Chamber judgment has far-reaching consequences for the adjudication
of reparations at the ICC. According to the decision, liability for reparations
needs to be established separately in each case, in addition to
conviction. This interpretation provides a partly autonomous basis for the 'imposition
of liability for reparations',s based on Article 75 and human rights instruments,
such as the United Nations Basic Principles on Reparation for
Victims.
5 9
The ICC approach places significantly more emphasis on detailed legal analysis
and judicialization of reparations than more victim-oriented mass claim
proceedings. The judgment implies that the determination 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 will make it necessary to provide greater weight to reparation
proceedings in ICC practice. The Appeals Chamber noted that the Trial
Chamber is 'not required to rule on the merits of individual requests for reparation'
when awarding 'collective reparations,'60
It formally rejected the existence
of an 'internationally recognized human right to consideration of
individual applications for reparations' in cases where a 'collective award is
made'6
' But in all cases, that is, individual and collective reparation, the Trial
Chamber must clearly define the harm caused, establish causality, identify the
modalities of reparations and specify the victims eligible. This involves significant
legal analysis.
The adjudication on liability for reparations may differ from individual criminal
responsibility. In its decision, the Appeals Chamber established a new principle
of proportionality in relation to liability for reparations. It held: A
convicted person's liability for reparations must be proportionate to the harm
caused, and inter alia, his or her participation in the commission of crimes for
which he or she was found guilty, in the specific circumstances of the case 62
The application of 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
might satisfy the 'balance of probabilities' test applicable in reparations, might
be brought back to the table.
58 AC Reparations Judgment, supra note 7, § 100.
59 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law, adopted and proclaimed by General Assembly resolution 60/147 of 16
December 2005, § 15 ('where a person, a legal person, or other entity is found liable for reparation
to a victim, such party should provide reparation to the victim').
60 AC Reparations Judgment, supra note 7, § 152.
61 Ibid., § 155.
62 Ibid., § 118. On proportionality, see also UN Basic Principles, supra note 59, § 15 ('Reparation
should be proportional to the gravity of the violations and the harm suffered').
810 JICJ13 (2015), 801 813
The judgment increases the need to hear victims in the determination of
reparations, 63
or in the implementation phase.64
According to the Appeals
Chamber's approach towards community-based reparations, even collective
reparations require an application or registration process by victims. The reparation
practice in the Katangacase shows that this has repercussions for the organization
of victim participation after conviction. It may make it necessary
to allow certain additional victim applications for participation in reparation
proceedings.
65
The express duty of the Trial Chamber to identify harm to victims for purposes
of reparation, and to assess the extent of that harm, might require the
Trial Chamber to enter into new evidentiary analysis before making an Order
for Reparations.6 6
Requests of victims for reparation under Rule 94 may identify
harm that is not mentioned in the Trial or Sentencing Judgment. This
might require the Trial Chamber to convene hearings to assess harm specifically
for purposes of reparation, based on submissions of victims, their legal
representatives or experts (Rule 97). In its decision, the Appeals Chamber specifically
left the possibility open for a 'future Trial Chamber' to address harm
not mentioned in the Sentencing Decision.67
Following practice in the
Extraordinary Chambers in the Courts of Cambodia, the ICC might allow victims
to make broader statements of suffering in reparation hearings.
6
s
The Appeals Chamber jurisprudence also has significant ramifications for
the running of trials. Regulation 56 foresees the possibility of victims to present
evidence for purposes of reparations at trial.69
The new liability regime
provides a strong incentive for victims to lead evidence at trial 70
regarding
the underlying crimes and localities to broaden the potential basis for reparations.
It mandates clearer differentiation at trial between evidence related to
conviction and sentencing, and evidence for the purpose of reparations.
Finally, the judicialization of reparation orders has certain institutional implications.
It requires expertise and skills that differ in some ways from criminal
adjudication. Ultimately, the approach of the Appeals Chamber might
63 Jurisprudence has made it clear victims are 'parties' in reparation proceedings, rather than
mere participants. See TC Reparations Decision, supra note 12, § 267.
64 See Reparation Order, supranote 2, § 76 ('The [newly] composed Trial Chamber may be seized of
any contested issues arising out of the work and the decisions of the Trust Fund').
65 See Registry's Observations pursuant to Order ICC-01/04-01/07-3532, Katanga (ICC-01/04-01/
07), Trial Chamber II, 15 May 2015 (hereafter 'Katanga Registry's Observations'), § 2, Katanga
HRC and TJI Submissions, supranote 49, § 15.
66 AC Reparations Judgment, supra note 7, § 185.
67 Ibid., § 187.
68 KatangaHRC and TJI Submissions, supranote 49, § 20.
69 It states: 'The Trial Chamber may hear the witnesses and examine the evidence for the purposes
of a decision on reparations in accordance with article 75, paragraph 2, at the same
time as for the purposes of trial.'
70 See Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I's
Decision on Victims' Participation of 18 January 2008, Lubanga (ICC-01/04-01/06 OA 9 OA 10),
Appeals Chamber, 11 July 2008, which confirmed that 'participating victims may possibly lead
evidence pertaining to the guilt or innocence of the accused'.
ReparativeJustice after Lubanga 811
point towards the need for targeted expertise in this field at the Court, or even
the establishment of a specialized 'Reparations Chamber'.
5. Evaluating Merits and Risks
The judgment marks in many ways a step forward. In most cases, options of individual
reparation, including compensation, will remain remote and unsatisfactory.
This is a reality. The Appeals Chamber decision does not try to mask
this. It rather seeks new ways to recognize victimhood and alleviate suffering
and harm. It makes it clear that establishment of accountability towards victims
through reparation proceedings may be an asset per se that can provide
a greater sense of justice to victims. 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 increases the modalities of participatory justice and
options for consultation of victims at the reparation stage in line with the
aims of the Principles on Reparation.71
It provides greater weight to expressivist
features, such as the direct recognition of harm in the Reparation Order 72
and the judicial acknowledgement of the link between the convicted person
and victims.
But the decision also has certain risks and downsides. There are capacity
questions. It is still uncertain whether and how the ICC would be able to
handle this new type of litigation in cases where victim numbers are significantly
higher than in Lubanga or Katanga.
73
Participation in reparation proceedings is a challenge. In many cases, the
original victim statement is given years before the reparation proceedings.
Seeking additional views of victims on the required elements of the
Reparation Order, or extending the scope of applications in the reparation
phase, may delay the reparation process, or exceed the Court's capacity.
Further, an overly ambitious approach towards the specification of harm
poses problems. In the Reparation Order, the Appeals Chamber directed the
Trust Fund to 'provide, in the draft implementation plan, the anticipated monetary
amount that it considers necessary to remedy the harms caused by the
crimes for which Mr Lubanga was convicted' 74
Submissions in the Katanga
case indicate that an individualized quantification might not be feasible in all
circumstances.75
Individualization of harm may raise unreasonable expectations.
How will the ICC deal with this in cases where there is a broader
crime base affecting thousands of victims? If it is clear at the outset that only
collective reparation can be awarded, or that only a specific amount of
71 Order for Reparations, supra note 2, § 1.
72 Katanga HRC and TJI Submissions, supra note 49, § 21 (quoting from or citing their submissions
to the Court within the reparation order would benefit this process').
73 In Katanga, 365 victims have been recognized by the ICC.
74 Order for Reparations, supra note 2, § 78.
75 See Katanga Registry's Observations, supra note 65, § 11, defending 'the possibility of standardized
awards for particular types of harm as opposed to individually assessed awards'.
812 JICJ13 (2015), 801 813
resources is available for individual reparation, it might not make sense to
quantify the harm of each victim. The prospects of large-scale asset recovery
from indigent defendants during or after completion of the sentence remain
often remote. The discrepancy between what is abstractly due and what can
be effectively remedied may cause grievances and dilemmas of prioritization.
There might be a need for a certain standardization of harm assessment in
future cases.
Extended reparation proceedings may have unintended negative side effects.
ICC action may increase victim fatigue with the Court, through duplication of
procedures and overload of information. There is a risk that economic considerations
may dominate reparation. In the worst case, judicialization of harm
and ongoing struggles over modalities of reparation can forestall a sense of
closure with the past. These factors should be taken into account by the
Court when it determines the scope and timing of reparation proceedings.
Criminal proceedings tend to narrow the focus of responsibility to individuals.
This focus does not necessarily coincide with societal perceptions.
Through their selectivity and abstraction, ICC proceedings may create fictive
conceptions of victimhood or hierarchies among victims.76
These tensions are
even more apparent in the context of reparations. The focus on victimization
reflected in crimes and charges may privilege the harm of one group and sideline
victimization of others. The Lubanga case posed particular problems since
it predominantly involved perpetration and victimization within one group,
that is, 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-stigmatisation of former child
soldiers within their communities' 77
It is doubtful whether this underlying
tension can always be prevented or balanced out even through a victim-centric
exercise of the Prosecutor's charging discretion. 78
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 broader concerns, such as well-being, security or peace.79
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'sO Critics are thus likely to remain sceptical
as to whether this new regime of liability for reparations will make an actual
difference to the lives of victims.
76 See Kendall and Nouwen, supranote 6; K.M. Clarke, FictionsofJustice:The InternationalCriminal
Courtand Challengeof Legal Pluralismin Sub-SaharanAfrica (Cambridge University Press, 2009).
77 Order for Reparations, supra note 2, note 42.
78 The OTP Strategic Plan 2012 15 remains vague on this point. It postulates a'victim-centred approach
in all aspects of the work of the OTP'. See OTP, Strategic Plan 2012 2015, 11 October
2013, § 21. It promises to replace the notion of 'focused investigations' by the 'principle of
in-depth, open-ended investigations' (§ 23). But it stresses the need to maintain focus to avoid
over-expanding the investigations at the expense of efficiency' (Ibid.).
79 Order for Reparations, supra note 2, § 2.
80 Ibid., § 71.
ReparativeJustice after Lubanga 813
The Appeals Chamber has formulated its principles with respect to 'the circumstances
of the specific case',sl But these principles are likely to extend
beyond the Lubanga case or even the ICC. The judgment opens the door for further
creativity. This is its legacy and an important turning point for further
practice.
81 AC Reparations Judgment, supra note 7, § 55.