17 12 12 Lubanga Judgment – The Women’s Initiatives Submits Observations in Reparations Proceedings in the Lubanga Case
. This Special
Issue is the fourth in a series of four Special Issues reporting on the first
trial Judgment handed down by Trial Chamber I in the case against Thomas Lubanga
Dyilo on March14, 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 Judgment 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 August 13, 2003
(Judgment ).[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 Judgment , 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 recognized 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 organization
to submit observations as part of these reparations proceedings, and is to date
the only international women’s human rights organization 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 Judgment, 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 July 10, 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 Judgment 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 recognize 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 emphasized 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
individualized 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 specialized 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 emphasized 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 Judgment
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 programs 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]
[R]ehabilitation
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 stigmatisation 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:
[W]hether
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
stigmatization 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]