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Guest post by Diana Contreras-Garduno: “Passing the buck: the ICC Trial Chamber’s approach in Lubanga Reparations decision”

August 15, 2012

I am very pleased to introduce Diana Contreras-Garduño from Utrecht University’s Netherlands Institute of Human Rights as the first ‘guest blogger’ on the Armed Groups and International Law blog.  

Diana is a colleague of mine at Utrecht University’s Netherlands Institute of Human Rights and is conducting PhD research on the victims’ right to benefit from remedies and reparations in international criminal proceedings. Diana holds a Masters degree in International Law of Human Rights and Criminal Justice from Utrecht University and has a law degree from the University of the State of Mexico.

Prior to coming to The Netherlands, Diana worked for several years as an Electoral Legal Advisor for a political party in Mexico. Alongside her PhD research, she works as a supervisor in the Utrecht Law School Clinic on Conflict, Human Rights and International Justice.

Diana’s guest post casts a critical eye over the ICC’s Decision Establishing the Principles and Procedures to be applied in the Lubanga case which came out last week. Here is Diana’s post!

Passing the buck: ICC Trial Chamber’s approach in Lubanga Reparations decision

Introduction

On 7 August 2012, the Trial Chamber I of the International Criminal Court  delivered a landmark decision on reparations. It ruled that the child soldiers that were enlisted and conscripted by the convicted Lubanga Dyilo would receive reparations from the Trust Fund for Victims (TFV) and not directly from their victimizer.

This decision has been globally welcomed during the past few days. In the words of Elisabeth Rehn, Chair of the Board of the TFV, it presents “a historic milestone for victims of international crimes”.

While this decision is a watershed in the recognition of the right of reparations in the field of international criminal law, I am not optimistic about whether the Court has provided the Trust Fund with enough guidelines to ensure effective implementation.

In this contribution to the Armed Groups and International Law blog, I share some thoughts on the ICC’s first decision on reparations:

Reparations principles are specific to the Lubanga case

The lack of a uniform set of principles underlining the ICC reparations system has generally caused great concern as it could lead to uncertainty and inconsistency. Unfortunately, after last week’s decision, this concern will remain as the Lubanga Trial Chamber has decided to establish principles and procedure to be applied only in the Lubanga case.

The Court seems to identify only one principle that is meant to apply beyond the Lubanga case, stating that: ‘a public or private apology to the victims […]will not form part of any Court order’ (para 269 of the Decision). Other principles are identified by the Court including gender parity, non-discrimination, and a needs-based approach to all victims, especially vulnerable victims such as children and victims of sexual crimes. Yet, according to the Court, these principles can be changed with respect to later cases and the issue of reparations in particular.

ICC-observers and experts have witnessed how different ICC Chambers’ approaches regarding the participatory rights of the victims, have ended up in a non - jurisprudence constante. Hence, one can well wonder whether the lack of a uniform set of principles on reparations will also result in a similar non-coherent approach between trial chambers and cases.

The Court’s reasoning implies that future Chambers would have to spend time in defining a new set of principles again and again. Moreover, it immediately raises the question of how to meet the budget needed to implement reparations. Or, put the other way around, how is the lack of budget going to affect later decisions? 

The Trust Fund is given almost sole discretion in implementing the reparations

Now let us turn to the substantive point of the decision. The core of the issue is that since Lubanga was found to be indigent and no assets or property have been identified that can be used for the purposes of reparations, the Chamber ruled that reparations are to be made by means of the Trust Fund and are, therefore, financed by donors (para 269 of the Decision). The main topic of debate here is – for this reason – the Trust Fund.

The Chamber seems unwilling to get involved in guiding the Trust Fund and preferred to give it ample discretion in the implementation of reparations. A newly constituted Chamber would only monitor and oversee the implementation of a 5-step plan for reparations. The Trial Chamber sets out this 5-step plan as follows (para 286 of the Decision):

i) The TFV, the Registry, the OPCV, and the experts, should establish which localities ought to be involved in the reparations process (especially where the crimes were committed);

ii) There should be a process of consultation in the localities that are identified;

iii) An assessment of harm should be carried out during this consultation phase by the team of experts;

iv) Public debates should be held in each locality in order to explain the reparations principles and procedures, and to address the victims’ expectations;

v) The collection of proposals for collective reparations that are to be developed in each locality, which are then to be presented to the Chamber for its approval.

Collective reparations seems to be the right form of reparations when a tribunal deals with violations suffered by specific groups whose members are difficult to identify due to the complexities of the case and context. This is supported by the reparations recommended by several Truth Commissions, such as the Truth and Reconciliation Commission in Peru and the reparations ordered by the Inter-American Court of Human Rights (IACtHR) when dealing with massacres and indigenous people’s violations. From these earlier examples we have also learnt that clear guidelines are desirable. Yet, a clear vision and an eye for essential details is what the ICC Trial Chamber’s 5-step plan is lacking.

Lack of deadlines for the implementation of reparations

The Trial Chamber’s 5-step plan fails to indicate any deadlines for the implementation of reparations. It indicates that it is for the Trust Fund to define a fixed period of time for the process of consultation, public debate, and the collection of proposals for collective reparations. The ICC could have indicated a fixed time period or at least a flexible time period for conducting these three phases of the plan. This would have helped the Trust Fund in its implementation of the plan and given greater scope for the court to monitor the Trust Fund’s progress.

Lack of time period for identification of beneficiaries of the reparations 

Regarding the beneficiaries of the reparations, the Chamber adopted a broad approach and noted that reparations should not be limited to the relatively small group participating in the proceedings (para 187 of the Decision). This reminds me of the approach taken by the Inter-American Court of Human Rights when dealing with multiple victims.

The IACtHR Court has also granted collective reparations to persons who could not be identified in the proceeding but were identifiable (See: Case of the Mapiripán Massacre v. Colombia and Case of the Ituango Massacres v. Colombia)

However, in comparison to the ICC, the IACtHR usually indicates a fixed period of time in which victims must be identified after the delivery of the reparations judgment. This is of great importance because:

i)        If all beneficiaries of reparations are to be consulted in defining the projects constituting the collective reparations, implementing the decision may take even longer than the trial.

ii)       There is a growing need to define the beneficiaries in order to secure enough budget to conduct the reparations

Lack of criteria for decisions on collective reparations

Additionally, the ICC decision falls short in explaining the criteria that could lead to the approval of the proposals for collective reparations. One can expect that the Trust Fund will face a difficult process of consultation and consecutively community agreement on collective reparations that will have to be repeated until one proposal finally makes it to approval. The Trial Chamber’s lack of guidance in this regard will make the Trust Fund’s job in this regard more difficult.  Nor did the ICC Trial Chamber provide guidance on the way the subsequent Chamber would oversee the reparations. Its lack of guidance would impact directly the effectiveness of the implementation of reparations.

It is important to note that the collective reparations recommended by the Peruvian Truth and Reconciliation Commission (TRC) were published in August 2003 and it was not until 2008 that the first projects for collective reparations took place. It took five years already when dealing with a more or less homogenous society and having the help of institutions which were established in that country to reach agreement with respect to the projects. Hence, one might assume that the process of deciding the Lubanga reparations will take even longer. Clear guidance would have been the most logical way to shorten this process and reduce criticism and costs.

No guidance for the TFV on how to process individual applications

A final interesting point of this decision is that the Trial Chamber decided to transmit to the TFV all individual applications forms received by the Registry. No further guidance was given to the TFV on to how to deal with those applications. Will those applications be given priority in deciding the proposal for reparations?

It seems that many concerns will have to be answered by the Trust Fund. While in its decision the Trial Chamber emphasizes that the success of the Court is linked to the success of the reparation system, we now have to conclude that the success of the Court depends on the success of the Trust Fund ability to implement the reparations without guidance. The Court is basically passing the buck.

It is my hope that the TFV will resort on the experiences of different TRC’s and the IACtHR in order to make the reparations as meaningful as possible but whether this will happen, is yet to be seen.


Thanks Diana!

 
 
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