Redefining Complementarity with the International Criminal Court
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In the first case before the ICC – the Lubanga case - , the ICC Appeals Chamber however sets out five core elements to be contained in an order for reparations under Article 75: 1) The order for reparations has to be issued in all circumstances against the convicted person, whether he/she is indigent or not.72 Reparations are to be awarded based on the harm suffered as a result of the commission of the crime for which the person was convicted. Consequences: •
Where the convicted person is acquitted on some charges, he/she cannot be held liable for redressing the harms resulting from these charges (the causal link between the crime and the harm is to be proven)
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Standard and burden of proof: The applicant shall provide sufficient proof of the causal link between the crime and harm suffered based on the specific circumstances of the case –
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Standard of causation: “but/for” relationship (but for the crimes committed, would the harm has occurred”
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The crimes must be the “proximate cause” of the harm for which reparation is sought
2) The order for reparations must establish and inform the convicted person of his/her liability with respect to the reparations awarded in the order; A convicted person’s liability for reparations must be proportionate to the harm caused and, inter alia, his/her participation in the commission of the crimes for which he/she was found guilty, in the specific circumstances of the case. 3) The order for reparations must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both. The question arises as whether the Chamber shall examine individually each and every application and enter findings about the individual harm of each victim. The Appeals Chamber ruled that where only collective reparations are awarded the Trial Chamber is not required to rule on the merits of the individual requests for reparations. 4) The order for reparations must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriated based on the circumstances of the specific case before it; According the Appeals Chamber’s ruling, the Trial Chamber must at least identify the harms caused to the victims by the crimes for which the person was convicted. This might include the types of harms suffered (material, psychological, physical prejudice) and the forms (such as loss of family members; loss of property, loss of chance (schooling), separation from family, and material loss due to the loss of family member’s contribution). Then, the extent of the harm is to be assessed either by the Trial Chamber itself or by the Trust Fund upon clear directions and criteria given by the Trial Chamber. This is to be done with a view to determine the appropriate size and nature of the reparation awards. In that respect, question arise (and are yet to be solved by that ICC) as to how to prove the harm and how to assess it (use of experts, use of documents and which ones). 5) The order for reparations must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted. Thus according to the Appeals Chamber, a “community” may be considered for reparation only if it is proven that it is a group of victims. The Appeals Chamber further specified that these principles are to be applied, adapted, expanded upon or added to by future Trial Chambers.73
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ICC, Appeals Chamber, The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with Amended order for reparations (Annex A) and public annexes 1 and 2, 3 March 2015, ICC-01.04/01/06-3129 (“Appeals Chamber Lubanga Judgment”), para. 64-76. §55 AC Lubanga.
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