The Africa Union's resolution to collectively support a strategy to withdraw from the ICC looks...
A Congolese man sits in a social center on May 29, 2012 at the Mugunga III internally displaced people camp near the city of Goma in the Democratic Republic of the Congo. PHIL MOORE/AFP/GettyImages
The decision on reparations by the International Criminal Court (ICC) in the case of Congolese warlord Thomas Lubanga sets a historic precedent, but it should not be celebrated until victims in the Democratic Republic of the Congo (DRC) are fully compensated through an inclusive and participatory process.
The Lubanga decision stated that reparations “go beyond the notion of punitive justice, towards a solution which is more inclusive, encourages participation and recognizes the need to provide effective remedies for victims.”
Yet Ruben Carranza, director of ICTJ’s Reparative Justice program, is cautious about celebrating before the process is complete. In ICTJ’s latest podcast, Carranza warns that the impact of the decision will only be proven through delivering its promise of compensation. “It will be important for those supporting the ICC, and those who are interested in international justice, to ensure that it goes beyond celebrating this milestone,” said Carranza. “We should go beyond recognizing a step as being historically significant, because it may not yet be significant for those who actually should receive reparations.”
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The decision issued on August 7, 2012 did not order material or symbolic reparations, but it affirmed that victims of war crimes, crimes against humanity, and genocide have a fundamental right to receive reparations, and it outlined principles to guide the process of issuing reparations to victims in the DRC.
Decades of armed conflict in the DRC have left victims without acknowledgement of their suffering and without the means to deal with the consequences. The challenge to implement court-ordered reparations is a familiar one to those living in the DRC, where victims are still waiting for compensation awarded to them by DRC’s military courts and tribunals. The ongoing challenge to deliver court-ordered reparations is addressed in the ICTJ briefing paper, "Judgment Denied."
On March 14, 2012, the ICC found Lubanga guilty of conscripting, enlisting and using children under the age of 15 in hostilities in the eastern Ituri region of the DRC.
The ICC found Lubanga to be without personal assets that could be awarded to victims, and so the reparations process is to be handled largely through the Trust Fund for Victims. The Trust Fund for Victims, established by the ICC’s Assembly of States Parties and funded largely by contributions from ICC member states, has a mandate to implement court-ordered reparations.
|Special guidance was given towards compensating victims of sexual violence, even though Lubanga was not charged with crimes of gender-based violence. “By dealing with sexual violence and gender considerations, the court is effectively saying that the right to reparations covers a broader range of issues, and it deals with harm to victims that shouldn’t be subjected to the narrow considerations of the prosecutors’ strategy,” said Carranza.|
Reparations for victims are considered a cornerstone of transitional justice, and constitute a fundamental right of all victims of human rights violations, war crimes and crimes against humanity under UN General Assembly Resolution 10/147.
However, Carranza notes that even with this recognition from the international community, few countries have actually seen the implementation of reparation decisions. “The recognition of the right to reparations is one thing,” said Carranza. “How that is fulfilled, is another.”
Since 2006, Congolese military courts and tribunals have awarded damages to victims of war crimes and crimes against humanity committed by soldiers of the Armed Forces of the DRC. However, victims in these cases have yet to receive compensation.
Hurdles for meaningful redress in the DRC are many, including inadequate legal frameworks and procedural barriers, procedural complexity of enforcing judicial orders, imprecision and inconsistency in calculating damages, pervasive inaction and lack of political will.
ICTJ has closely monitored the ongoing struggle to provide redress for victims. The briefing paper "Judgment Denied" examines the challenge of providing redress to victims in the DRC through court-ordered reparations. The briefing summarizes the findings of “Judicial Reparations for the Victims of Gross Violations in the Democratic Republic of the Congo,” a report in French on the challenges of enforcing court-ordered reparations.
In “Judgment Denied,” ICTJ recommends that the government should establish a public fund for victims based primarily on state contributions, build the capacity of the civilian and military justice systems, provide victims’ rights groups with advocacy and legal support, and conduct a study on collective and symbolic reparations.
To enable enforcement of court-ordered reparations, the Congolese government should consider policy reforms, in addition to creating an independent mechanism to oversee payments of court-ordered reparations, enabling courts to assess and enforce damages, ensuring that national and provincial governments respect outstanding payment obligations, and improving prison security and the protection of judicial personnel.
By taking such steps, the Congolese government would demonstrate the intention to assist victims who have waited too long to receive court-ordered reparations.