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2017 | INTERNATIONAL CRIMINAL COURT | Corrected version of the “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’, Case no. ICC-01/04-01/06, 21 December 2017

On 17 December 2017, Trial Chamber II (hereinafter the court) of the International Criminal Court unanimously decided that the reparation award for which Mr Lubanga is liable is USD 10,000,000. USD 3,400,000 of this amount is allocated to 425 of his direct and indirect victims in the form of collective reparations. Lubanga’s liability in respect of any other victims who may be identified, is set at USD 6,600,000. Since Lubanga is found indigent for the purposes of reparations at the time of this decision, the Trust Fund for Victims (TFV) is asked to see if it can provide additional funds for the implementation of the reparations. 

In 2012, Thomas Lubanga Dyilo was found guilty of the crimes of a) conscripting and enlisting “child soldiers” into the Union of Congolese Patriots (UPC) and the Patriotic Forces for the Liberation of Congo (FPLC) and b) using them to participate actively in hostilities, within the meaning of articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute, between 1 September 2002 and 13 August 2003. (link invoegen naar judgment). He was sentenced to 14 years imprisonment and reparations were ordered.[1] In appeal, the Appeals Chamber in part, affirmed and amended the reparation decision[2] and tasked the court to set the size of the reparations award for which Lubanga is liable, which it did in this decision

Estimating the number of victims

Upon request to locate and identify potentially eligible victims, the court received 473 dossiers of potential direct and indirect child-soldier victims. In its ruling, the court states that although these 473 are sufficiently representative of all of the victims who suffered harm as a consequence of the crimes of which Lubanga was convicted, these are only a sample of all of the potentially eligible victims; some potentially eligible victims were hesitant or were refusing to disclose their identity because of the influence Lubanga continues to wield over their communities (para. 47). Repeatedly the court underscores that the total number of victims affected by the crimes of which Lubanga was convicted is far greater than 473 and calculates the total number of victims between 2,451 and 5,938 (paras. 199, 212, 229, 231, 244). 

Transgenerational harm

The harm suffered may be material, physical or psychological and need not be direct but must have been personally suffered. The Office of Public Counsel for Victims (“OPCV”) submitted that children of former child-soldiers suffer transgenerational harm caused by the repercussions from the ordeals endured by their parents in connection with the crimes of which Lubanga was convicted (para. 172). The court however, finds itself constrained by the parameters set by the Appeals Chamber, which do not include transgenerational harm (para. 176). 

Eligibility

Potentially eligible direct victims must have child-soldier status, which means that the victim was under the age of 15 years when (a) enlisted or conscripted into the armed wing of the UPC/FPLC or (b) used by Lubanga to participate actively in hostilities in the armed conflict between 1 September 2002 and 13 August 2003. The court uses a balance of probabilities as the standard of proof in assessing this status (paras. 78, 90). Indirect victims must prove, on a balance of probabilities, (a) that the direct victim was a child soldier and (b) his/her close personal relationship with the direct victim, as for instance is the case between a child soldier and his or her parents (paras. 41, 156).

To assess victim status, the court looked for corroborating evidence that would specifically establish child-soldier status, mainly looked at the consistency of the statements made by a potentially eligible victim in the 473 dossiers (para. 63). Particular attention is given to the level of detail of the facts described, including the circumstances of enlistment, the positions held and duties performed in the UPC/FPLC, the living conditions in the militia (para. 64). 

Reparation award

Instead of assessing the specific individual psychological, physical and/or material harm, the court decides to apply a presumption of average harm to each direct and indirect victim (para. 247). Practically this entails that the court does not distinguish between types of harm nor between direct and indirect victims (paras. 249-250).  Assessing the average harm, the court calculates ex æquo et bono (“according to what is just and fair”) the harm suffered by each (in)direct victim, at USD 8,000 (para. 259). Having found that 425 victims qualify for reparations the Chamber sets Lubanga’s liability at USD 3,400,000 (425 x USD 8,000) (para. 279). 

In respect of the other hundreds or thousands victims affected by the crimes of which Lubanga was convicted, and who may be identified during the implementation of reparations, Lubanga is held liable for USD 6,600,00 (para. 280) which sets the total reparations award for which Lubanga is liable at USD 10,000,000. 

In accordance with article 82(4) of the Rome Statute and rule 150(1) of the Rules of Procedure and Evidence, both Lubanga and the legal representatives of a group of victims have appealed the court’s decision. To hear their submissions, a hearing before the Appeals Chamber is scheduled for 7 and 8 February, 2019.


[1] Trial Chamber I, “Decision establishing the principles and procedures to be applied to reparations”, dated 7 August 2012, [French] translation registered on 19 February 2013, ICC-01/04-01/06-2904

[2] 3 March 2015