Dear Readers,The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. This Special Issue is the fourth in a series of four Special Issues reporting on the first trial Judgement handed down by Trial Chamber I in the case against Thomas Lubanga Dyilo on March 14, 2012. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the fourth Special Issue Legal Eye eLetter, click here. To read the previous Special Issues, click here.  

On March 14, 2012, Trial Chamber I[i] issued a judgement in the ICC’s first case, The Prosecutor v. Thomas Lubanga Dyilo, convicting Thomas Lubanga Dyilo (Lubanga) of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003 (Judgement).^[ii] Lubanga is the former President of the Union des patriotes congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC).

In a scheduling order[iii] issued the same day as the Judgement, the Trial Chamber invited submissions from parties and participants, as well as the Registry, the Trust Fund for Victims and other interested parties, on the principles to be applied and procedures to be followed by the Chamber with regard to reparations. Specifically, the Chamber invited observations on the following five issues: (a) whether the Chamber should order individual or collective reparations; (b) to whom the reparations should be directed, how the harm is to be assessed, and which criteria to apply; (c) whether it is possible or appropriate to make a reparations order against the convicted person; (d) whether the Chamber should order reparations to be issued through the Trust Fund for Victims; and (e) whether the parties or participants seek to call expert evidence.[iv]

On March 28, 2012, the Women’s Initiatives for Gender Justice filed its request for leave to participate in the reparations proceedings, indicating that the filing would provide observations on, inter alia: ensuring a gender perspective in the elaboration of reparations principles, the recognition of harm caused by sexual violence, ensuring a gender perspective in the design of the reparations order, the importance of effective consultations with victims and the transformative role of reparations for advancing gender equality.[v] On April 20, 2012, the Trial Chamber issued its decision, granting the Women’s Initiatives’ request, along with four additional requests from national and international NGOs and inter-governmental organisations.[vi] On May 10, 2012, the Women’s Initiatives filed its observations.[vii] The Women’s Initiatives for Gender Justice has submitted legal filings to the ICC on six occasions, and has been recognised as amicus curiae in the Lubanga case[viii] and in the case against Jean-Pierre Bemba Gombo (Bemba).[ix] The Women’s Initiatives was the only international women’s human rights organisation to submit observations as part of these reparations proceedings, and is to date the only international women’s human rights organisation to be admitted as amicus curiae before the ICC.

As described in the first Special Issue in this series, discussing the Chamber’s findings on sexual violence, Lubanga was tried for and convicted on limited charges and was not charged with gender-based crimes, with important potential implications for the scope of reparations. During the trial, however, Prosecution witnesses gave extensive evidence and testimony concerning sexual violence committed against child soldiers by the UPC. In the trial Judgement, the majority of the Trial Chamber found that it was precluded from considering evidence concerning sexual violence, pursuant to Article 74(2),^[x] because such factual allegations had not been included in the Pre-Trial Chamber’s confirmation of charges decision.^[xi] In its 10 July 2012 decision on sentencing,[xii] a majority of Trial Chamber I[xiii] did not explicitly consider sexual violence in its assessment of the gravity of the crimes, nor did the Chamber find that the sexual violence committed against recruits constituted an aggravating circumstance. The Chamber indicated in both the Judgement and in the sentencing decision it would determine in due course whether sexual violence would be considered for the purposes of reparations.[xiv]

On August 7, 2012, Trial Chamber I issued its decision on reparations, setting out a series of principles relating to reparations and the approach that ought to be taken with respect to their implementation.[xv] This is the first reparations decision issued by the ICC.

In a statement issued on August 10, 2012, the Women’s Initiatives for Gender Justice welcomed the decision:

This decision recognises that reparations is a key feature of the Rome Statute and therefore of the mandate of the ICC. Reparations is possibly the most tangible representation of the justice process for victims, especially for those who have had little access to or information about the formal legal proceedings. […]  The Trial Chamber has recognised this significance by approving the widest possible reparative remedies with an emphasis on the principles of gender-inclusiveness, flexibility, responsiveness to the diverse needs of the victims and the recognition of victim/survivor agency in the identification and design of reparations programmes. This is very encouraging.[xvi]

The reparations decision as well as the filings submitted by the parties, participants and amici curiae in relation to reparations are discussed in more detail in the Gender Report Card 2012.

The Women’s Initiatives’ observations on ensuring a gender perspective in reparations

At the outset of the observations on reparations submitted to the Trial Chamber on May 10, 2012, the Women’s Initiatives for Gender Justice underscored that the Rome Statute contains ‘unique provisions among international courts and tribunals, requiring [the ICC] to provide gender-inclusive justice’ as well as ‘specific provisions requiring the Court to apply and interpret law consistent with internationally recognised human rights and without any adverse distinction founded on grounds such as gender’.[xvii]  Noting that ‘gender discrimination is deeply rooted in most social and cultural contexts’, including within the DRC, and that ‘women and girls experience conflict differently from men and boys, and often bear a disproportionate burden in situations of armed conflict’,[xviii] the filing proposed that the principles adopted by the Chamber should include specific gender-responsive methodologies and refrain from prejudicing the rights of victims, including victims of sexual violence, under national and international law.

Throughout the filing, the Women’s Initiatives reiterated several key reparations principles for ensuring gender justice, including: a gender-inclusive approach; non-discrimination; the importance of effective consultations with women, girls and victims/survivors; a broad concept of harm; and the transformative function of reparations. Specifically, the filing underscored that reparation strategies and initiatives must effectively recognise and integrate gender issues in order for the particular needs of girls and women to be addressed and satisfied.[xix] Women and girls must be integrated into the consultation process, and have agency and voice in that process.[xx] The Women’s Initiatives suggested that consultations should be conducted by a person or body with expertise on reparations for gender-based crimes, expertise and experience in gender analysis and in the area of sexual and gender-based violence.[xxi] The filing encouraged particular attention to the modalities of the consultation process, as well as to the substantive input provided on the form of reparations most needed by women and girls. It suggested that effective consultation was critical for obviating any unintended discriminatory impact.[xxii] The filing further emphasised the ‘importance of an approach to reparations which fundamentally seeks to transform communal and gender relations through the development and implementation of programmes designed to achieve this goal’.[xxiii] Reparations should particularly seek to be transformative in addressing sexual violence and the conditions that existed prior to the conflict and that may have contributed to the crimes.[xxiv]

Collective vs. individual reparations awards

The Women’s Initiatives’ observations noted that no single legal definitions of the terms ‘collective’ and ‘individual’ reparations exist, and the terms were used to refer to an array of concepts by the parties and participants. As the Registry noted, ‘in practice such concepts are neither entirely distinct nor mutually exclusive’;[xxv] in its filing, UNICEF suggested that they should be ‘mutually reinforcing’.[xxvi] In general concurrence with all participants, the Women’s Initiatives submitted that the Chamber ‘should order both collective and individual reparations, with an emphasis on collective reparations’.[xxvii] The filing suggested that some forms of collective reparations may include individualised components and in this way acknowledge the individual and differentiated experiences of victims/survivors, which is key for restoring rights that were violated or eroded in the conflict, and to support the individual’s personal healing and well-being.

Building on the Trust Fund for Victims’ distinction between ‘collective reparations that are “inherently collective and exclusive” (such as specialised health services for a targeted group of victims), and collective reparations that are “community-oriented and not exclusive” (such as schools that benefit the entire community)’,[xxviii] the Women’s Initiatives argued that both would be appropriate in this case. The observations suggested that the former could address ‘the needs of individual victims/survivors within a collective context’, such as for victims of sexual violence, and emphasised that the latter were necessary for effectuating reparations’ transformative possibilities, particularly in ‘addressing ingrained gender discrimination within a community or society’.[xxix]

The Women’s Initiatives supported the use of collective reparations given that the harm affected not only individuals, but also had an impact ‘at the level of family, village, community, society and ethnic group’.[xxx] Noting the limited number of victim participants (at the time of the trial judgement 129, 34 of whom were female) and reparations applicants (85), the submission also argued that collective reparations would ‘allow the Court to reach unidentified victims, including women and girls’, and that, conversely, providing reparations only to individuals who applied would have an ‘unintended exclusionary effect on women and girls who may be reluctant to come forward due to fears of stigmatisation and other obstacles preventing their access to services and justice generally’.[xxxi] The observations underscored that failing ‘to incorporate a gender perspective in devising the reparations strategy’ and to ensure women’s and girls’ inclusion in the process would have a discriminatory impact on women and girl victims.[xxxii]

According to the Women’s Initiatives, the provision of collective reparations would be necessary ‘to address the harms caused by sexual violence, which is a defining characteristic of the conflict in Eastern Democratic Republic of Congo (DRC), and an integral component of each of the crimes for which Mr Lubanga was convicted’.[xxxiii] In this regard, the observations underscored the transformative potential of collective reparations to address the underlying gender inequalities that contributed to the sexual violence through the provision of programmes that prevent violence against women and children, address the shame and stigmatisation experienced by victims of gender-based crimes, and advance gender equality.[xxxiv]

In the filing, the Women’s Initiatives identified the following forms of collective reparations measures, many of which were also supported by other participants:[xxxv]

rehabilitation programmes providing medical and psychosocial support to victims/survivors, specifically victims/survivors of gender-based crimes; support for rape crisis and health centres providing medical and psychosocial support for women to assist in their recovery from sexual violence, including sexual and reproductive health services and treatment of STDs and HIV/AIDS infections; social rehabilitation and demobilisation programmes for former child soldiers; the establishment of medical and psychosocial services and medical centres with specific expertise in addressing childhood trauma and working with child soldiers; community-wide anti-violence programmes; human rights and legal education programmes informing women of their rights to live free from violence; and community education programmes that are also directed towards men and encourage and embrace male community leaders in supporting these initiatives.[xxxvi]

While prioritizing collective reparations, the Women’s Initiatives also recognized the importance of individual reparations. Individual reparations can acknowledge the individuals who participated in the justice process, assuming a risk to themselves and their families, and who have functioned in the judicial process as representatives for larger communities of victims/survivors.^[xxxvii] The filing further noted that the needs of vulnerable people and victims/survivors may not be met through collective reparations strategies.^[xxxviii] However, the filing also underscored several significant disadvantages to individualized reparations, including: the disproportionate costs of verifying victims, reducing the impact of the award; the potential for stigmatization of individuals identified as receiving benefits; the potential to undermine community cohesion; and the fact that they may be viewed as a ‘reward’ to former child soldiers, thus encouraging future enlistment.[xxxix]

The Women’s Initiatives emphasised the need for consultation with victims/survivors, in particular women and girls, ‘to ensure that women and girls are effectively included in the process of designing and identifying appropriate reparations’,[xl] as they could have different views on the types of reparations and modalities that would be meaningful to them, as well as to prevent the reparations order from replicating ongoing gender discrimination. The submission also underscored that consultations should assess:

whether women have decision-making power in their families and communities, whether women are legally permitted or culturally able to keep and/or own any material form of reparations which may be provided, and will have full access to other forms of reparations, including to the full array of possible programmes, projects and services that may be offered.[xli]

Assessing the harm

Noting that the statutory framework does not define ‘harm’, nor the causal relationship required between the harm suffered and the crime committed, the Women’s Initiatives urged the Chamber to take a ‘purposive’ approach and to interpret ‘harm’ in a way that would not restrict the category of victims who could receive reparations.[xlii] Accordingly, the Women’s Initiatives asserted that all types of harm suffered by victims/survivors as a result of the crimes for which Lubanga was convicted should be addressed, including, but not limited to: ‘physical and psychosocial harm arising from abduction/forced conscription and being forced to fight; rape and other forms of sexual violence; sexual slavery; ostracisation from families and within communities; loss of family life, childhood, education, and other opportunities; and unwanted pregnancies, STDs, and PTSD, as well as other health and reproductive health complications’.[xliii]

As noted above, the Prosecution decision not to bring charges for sexual violence in this case could limit the provision of reparations for related harm, suffered primarily by former girl child soldiers. In the filing, the Women’s Initiatives underscored that ‘rape was an integral component of the conscription process for girl soldiers and sexual violence constituted an integral component to the crimes for which Mr Lubanga has been convicted’.[xliv] Asserting that ‘reparations should not be limited to a narrow assessment of the harms attached to the charges, but should be inclusive of the breadth of harm suffered as a result of these crimes’, the Women’s Initiatives argued that harm resulting from rape and sexual violence should be addressed by a reparations order.[xlv] As the submission pointed out, failure to do so would have a clearly discriminatory impact based on gender.[xlvi]

As indicated in the first Special Issue in this series, while Lubanga was not charged with rape or other forms of sexual violence, evidence of such crimes featured extensively throughout the trial proceedings, including in Prosecution opening and closing statements, and witness testimony.[xlvii] In the filing, the Women’s Initiatives recalled that the Chamber heard directly from witnesses regarding the multiple tasks performed by girl soldiers, which included being forced to fight, working as bodyguards, preparing food, providing sexual services, and serving as ‘wives’ to the commanders, and about the physical and psychological harm.[xlviii] The Women’s Initiatives noted that witnesses: described being whipped or beaten with sticks; spoke about harm as a result of having been raped, including stigmatisation and having contracted STDs; mentioned that girls were thrown out of the armed group when they became pregnant; testified about difficulties reintegrating in society; spoke about harm resulting from  forced abortions, sometimes leading to death; described injuries suffered from being forced to fight in battles; spoke about loss of education; and described continuing psychological harm. The Women’s Initiatives underscored that ‘these harms are also documented in reports on child soldiers in DRC’.[xlix]

The possibility of a reparations order against Lubanga

The Registry has indicated that Lubanga has a ‘total lack of identified resources at this stage’, and that his only participation in a reparation order would necessarily be non-monetary.[l] The Women’s Initiatives supported the concept of symbolic reparations, noting that such an order ‘would provide a powerful public recognition of wrong doing’.[li] In addition to the conviction, which can be considered a form of symbolic reparations, the filing suggested that this could take the form of ‘a public acknowledgement of responsibility during a public ceremony broadcasted by local and national radio and television involving the victims/survivors, or a public apology’.[lii] The observations suggested other forms of symbolic measures, such as ‘an acknowledgement that harm was done, an act of atonement or reconciliation measures involving Mr Lubanga or his representatives’. Furthermore, the Women’s Initiatives suggested that ‘while Mr Lubanga has been assessed as indigent for the purposes of legal aid, should he possess assets in the form of cattle, livestock or other material products, these should be considered by the Court in determining his personal contribution to reparations’.[liii]

The role of the Trust Fund for Victims

Pursuant to Rule 98(5) of the Rules of Procedure and Evidence, the Trust Fund’s ‘other resources’ may be used for the benefit of victims at the discretion of its Board of Directors.[liv] The Trust Fund indicated that the Board of Directors recently increased the amount reserved to complement reparations awards in all cases before the Court to 1.2 million Euros.[lv]  In light of Lubanga’s indigence and the Trust Fund’s expertise in implementing its general assistance mandate, the Women’s Initiatives asserted that the Trust Fund would be an appropriate body to implement the reparations award, a role explicitly envisioned by the statutory framework.[lvi]

The Trust Fund provided extensive observations on its potential role in carrying out the necessary assessments prior to, and in implementing, the reparations award. Specifically, it suggested carrying out assessments to identify localities, consult with victims and communities, assess the harm, solicit victim and community expectations, and collect requests and proposals for reparations.[lvii] These assessments would inform a draft implementation plan, prepared by the Trust Fund, to be approved by the Chamber after a suggested hearing of interested parties.[lviii] The Trust Fund proposed that it would then implement the reparations order pursuant to the approved plan, monitor progress and provide periodic reports and a final report to the Chamber.[lix] The Women’s Initiatives underscored that the consultation process and implementation plan should consider the following specific issues:

How will women participate/how are women participating? If country-based intermediaries are used to implement collective reparations: what requirements should be established to ensure the intermediary operates in ways fully inclusive of women, and includes where appropriate local women’s organisations and actors? What are the modalities for project delivery and how inclusive are these mechanisms of gender issues? What is the involvement of women in the decision-making processes within the set-up of a specific reparations programme?[lx]

Calling experts

In the filing, the Women’s Initiatives noted that the Rome Statute and regulations ‘provide for the appointment of experts at two distinct but complementary levels, one being the appointment of experts by the Chamber to assist them in respect of reparations proceedings, and two, the appointment of an expert panel to assist the Trust Fund with consultations with victims/survivors, assessment of harm and causation, design of the awards, and implementation of reparations orders in this case’.[lxi] The Women’s Initiatives underscored the importance of ensuring that appointed experts have the necessary expertise in gender issues.

Specifically, the observations submitted that all teams of experts should include members with ‘specific expertise in gender-based violence and working with victims/survivors, children, and other vulnerable groups, as well as specific expertise on reparations for victims/survivors of gender-based crimes and girl soldiers, in addition to expertise on the impact of sexual violence on boy soldiers (for instance, those forced to rape as part of enlistment/conscription or forced to find girls for commanders)’.[lxii]

Read the observations of the Women’s Initiatives for Gender Justice on reparations

Read the Women’s Initiatives for Gender Justice request for leave to participate in reparations proceedings

Read the decision granting leave to the Women’s Initiatives for Gender Justice to participate in reparations proceedings

Read the reparations decision issued by Trial Chamber I on 7 August 2012

Read the statement by the Women’s Initiatives for Gender Justice on the reparations decision

Read a more detailed analysis of the reparations decision, and the filings of the participants in the Gender Report Card 2012