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RESUMEN
En este artículo, realizaremos un análisis
comparativo entre las sentencias sobre
los recursos de apelación contra ordenes
de reparación en tres casos de la Corte
Penal Internacional (Thomas Lubanga
Dyilo, Ahmad Al Faqi Al Mahdi y German
Katanga). Nos enfocaremos en aspectos
sustanciales de las decisiones como son el
abordaje para entender los casos de daño
psicológico, presunción, causalidad o causa
próxima, responsabilidad y modalidades
de reparación. Se analizan los aspectos
procesales como requisitos generales,
procedimientos para la adjudicación de
reparaciones, los estándares de prueba y
cargas de la prueba, los procedimientos de
reparación; como se da un juicio justo y los
derechos de las víctimas, de la defensa y el
proceso durante la etapa de implementación.
Las similitudes y diferencias de los tres
casos en estudio permiten concluir que
el proceso de reparaciones en casos ante
la Corte Penal Internacional implica la
aplicación de estándares de prueba menos
rigurosos en comparación con la fase de
juicio, reconociendo la responsabilidad
penal ya establecida. Se destaca la
importancia de equilibrar los derechos del
condenado con los derechos de las víctimas
durante el proceso de reparaciones.
Además, se subraya el papel crucial del
Fondo Fiduciario para las Víctimas (TFV)
en la implementación de las órdenes
de reparación.
REPARATIONS: A COMPARATIVE ANALYSIS BETWEEN
JUDGMENTS ON THE APPEALS AGAINST ORDERS FOR
REPARATIONS IN LUBANGA, AL MADHI AND KATANGA
Cristina Ponce
Investigadora Independiente
Marcos Zilli
Investigador Independiente
ABSTRACT
In this article, we will conduct a comparative
analysis of judgments on appeals against
reparation orders in three cases from the
International Criminal Court (Thomas
Lubanga Dyilo, Ahmad Al Faqi Al Mahdi,
and German Katanga). We will focus on
substantive aspects of the decisions, such
as the approach to understanding cases
of psychological harm, presumption,
causality or proximate cause, responsibility,
and modalities of reparation. Procedural
aspects will also be examined, including
general requirements, procedures for the
adjudication of reparations, standards of
proof and burdens of proof, reparation
procedures, the conduct of a fair trial, and
the rights of victims, the defence, and the
process during the implementation stage.
The similarities and diferences in the three
cases under study lead to the conclusion
that the reparations process in cases
before the International Criminal Court
involves the application of less rigorous
standards of proof compared to the trial
phase, recognizing the already established
criminal responsibility. The importance
of balancing the rights of the convicted
with the rights of the victims during
the reparations process is emphasized.
Additionally, the crucial role of the Trust
Fund for Victims (TFV) in implementing
reparation orders is underscored.
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PALABRAS CLAVE:
reparaciones, responsabilidad, víctimas, causalidad, Fondo
Fiduciario.
KEY WORDS:
nature rights, amicus curiae, social movements, democratic
deliberation, judicial decisions.
JEL CODE:
K33, K38
RECIBIDO:
03/05/2023
ACEPTADO:
26/12/2023
DOI:
10.26807/rfj.vi14.469
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Revista Facultad de Jurisprudencia No.14
INTRODUCTION
La The International Criminal Court (‘ICC’) has ruled on reparations
in three diferent cases:
The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor
v. Ahmad Al Faqi Al Mahdi
and
The Prosecutor v. Germain Katanga.
On 7 August 2012, Trial Chamber I issued the Decision Establishing
the Principles and Procedures to be Applied to Reparations and an Order
for Reparations in the Case of
The Prosecutor v. Thomas Lubanga Dyilo,
both
decision and the order for reparations were challenged by Mr. Lubanga, the
Legal Representatives of Victims (“LRV”), and the Ofce of Public Counsel
for Victims (“OPCV”). On 3 March 2015, the Appeal Chambers (AC) issued
its decision on the appeals (‘Lubanga AC Judgment’).
Similarly, on 17 August 2017, TC VIII issued the reparations order in
the case of
The Prosecutor v. Ahmad Al Faqi Al Mahdi
. The LRV fled an appeal
against said order. On 8 March 2018, the AC issued its Judgment on the
appeal against the “Reparations Order” (‘Al Mahdi AC Judgment’).
On 24 March 2017, Trial Chamber II issued the “Order for Reparations
pursuant to Article 75 of the Statute “in the Case of
The Prosecutor v. German
Katanga
, a legal representative of victims, OPCV for victims, and Mr.
Katanga, impugned such decision. On 8 March 2018 the AC issued its
judgment on the appeals (‘Katanga AC Judgment’).
The
Lubanga AC Judgment
established a comprehensive set of procedural
and substantive principles concerning reparations. The
Katanga
and
Al Mahdi
AC Judgments
expanded and explained
Lubanga,
and adopted new fndings
touching on the rights of the convicted persons, the victims and the role of
the Trust Fund for Victims (“TFV”).
KEY FINDINGS
1
1.
An order for reparations must contain, at a minimum, fve essential
elements: 1) it must be directed against the convicted person; 2) it must
establish and inform the convicted person of his or her liability with
1
The conclusions presented here represent a general framework on issues relating to reparation
proceedings that were decided by the AC in the
Lubanga
,
Katanga
and
Al Madhi
Cases. The links to the
cases can be found in references and the annexes of this report.
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Reparations
respect to the reparations awarded in the order; 3) it must specify, and
provide reasons for, the type of reparations ordered, either collective,
individual or both, pursuant to rules 97 (1) and 98 of the Rules of
Procedure and Evidence (“Rules”); 4) it must defne 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 appropriate based on the circumstances of the
specifc case before it; 5) it must identify the victims eligible to beneft
from the awards for reparations, or set out the criteria of eligibility based
on the link between the harm sufered by the victims and the crimes for
which the person was convicted.
2.
A proximate “cause/but/for” approach to causation applies to individual
and collective awards of reparations. Therefore, direct and indirect
victims may be awarded reparations. However, judges must carefully
establish the link between the crime for which the defendant was
convicted, and the material or psychological harm caused to the victims.
3.
Victims may be awarded either individual or collective reparations due
to psychological harm.
4.
Victims have the right to proportional, adequate, and prompt
reparations.
5.
A trial chamber is not required, in all circumstances, to decide upon the
scope and extent of any damage, loss, or injury in relation to individual
requests. When there are more than a very small number of victims, it
is neither necessary, nor desirable, to award individual and personalized
reparations.
6.
While there is a general trend to presume psychological harm by the
victim’s family members, this presumption is discretionary. Nonetheless,
the causal link between the crimes and the harm (e.g., transgenerational
psychological harm) must be established. The defnition of family is
case-specifc, but sufcient evidence of cultural aspects of the defnition
is recommended.
7.
It is not unreasonable to admit that psychological harm was experienced
by those who had lost their family members, whether they were near
or distant.
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8.
The obligation to repair is linked to the harm. The convicted is liable for
the full amount of reparations, even though he or she may have shared
criminal responsibility with other perpetrators. The fact that other
perpetrators shared responsibility may only be relevant if they were also
judged and convicted by the Court.
9.
Indigence is not an obstacle to the imposition of liability, nor confers the
beneft of reduced liability.
10.
The Trust Fund may use its other resources to make the reparation
order efective. This initiative does not exonerate the convicted from
liability. In these circumstances, he or she must reimburse the Trust
Fund.
11.
The fnancial situations of the convicted should be monitored and
the Court should use the cooperation with the State Parties to make
reparations efective.
12.
There are two distinct procedures for awards for reparations. The
frst, related to “individual reparation award is primarily application
(‘request’) based and is mainly regulated by rules 94 and 95 of the Rules.
The second relates to collective reparation awards and is regulated in
relevant part by rules 97(1) and 98(3) of the Rules.
13.
Expert’s assistance is possible: 1) before an order for reparations is
issued, as regulated by rule 97(2) of the Rules and, 2) after the order for
reparations has been issued which is regulated by the Regulations of the
TFV.
14.
In reparations proceedings a “lower standard of proof” applies which
does not exclude the applicant’s burden of proof. However, what is
sufcient for the purposes of an applicant meeting the burden of proof
will depend upon the circumstances of the specifc case.
15.
A trial chamber has discretion in assessing the evidence and in indicating
the content of the burden of proof. As a general approach, the discretion
will be linked to the specifc circumstances of each case. Circumstances
of the case can be, for example, the difculties applicants may face in
supporting their applications, caused, among others the destruction, or
even the unavailability of evidence.
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16.
“Presumption of facts” is possible. Moreover, this standard has been
applied, albeit under diferent denominations, to decisions handed down
by international courts, involving massive human rights violations.
17.
The reference to the presumption results from the difculty that the
victims may face in obtaining evidence to support their claims which
means to “presume a given fact to be established to the requisite standard
of proof in the absence of direct evidence”.
18.
The adoption of the presumption of facts is not unlimited. Reasonableness
is an important criterion to limit the use of that presumption and will
depend upon the circumstances of the case.
19.
Trial Chambers can apply the principle of equity, ex aequo et bono to
assess the value of harms sufered by victims.
20.
A strict applicability of the ultra petita principle to reparations
proceedings is precluded. A trial chamber is permitted to issue a decision
on reparations without being seized by any party and this, by defnition,
entails making an award to victims which has not been sought.
21.
Respect for the right to appeal prevents the AC from determining the
scope of liability for reparations when a trial chamber did not decide.
22.
The confict between the right of the convicted person to identify the
potential victims of reparations and their right to be protected should
be resolved in the light of the principle of proportionality, in the sense of
balancing the rights and interests of the parties. A trial Chamber should
make its determination on a case-by-case basis, taking into account the
various interests involved.
23.
The TFV is directed to prepare the draft implementation plan, providing
in the anticipated monetary amount that it considers necessary to remedy
the harms caused by the crime for which a person was convicted, based
on information gathered during the consultation period leading up to
the submission of the draft implementation plan.
24.
The TFV should also include the monetary amount, if its Board of
Directors so decides, that will complement as an advance in order that
the awards can be implemented.
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25.
When deciding on the nature of the awards for reparations, the TFV
is instructed to take into account the views and proposals of victims
regarding the appropriate modalities of reparations and programmes
that in the view of the TFV should be part of any reparations awarded
on a collective basis.
26.
Although the TFV plays an important role in the implementation stage,
its functions are limited by the reparations order itself.
27.
The role of the TFV should not be understood in any way to suggest that
the responsibility of the convicted for the person awards for reparations
can go beyond the harms resulting from the crimes for which [he/she]
was convicted.
28.
A trial chamber shall monitor and oversee the implementation stage,
including having the authority to approve de draft implementation
plan, and may be seized of any contested issues arising out of the work
and the decisions of the TFV.
29.
Prior to approving the plan, the parties shall have the opportunity to
submit observations to the Chamber. Other interested parties may
request leave of the Chamber to submit observations.
30.
The Trial Chamber’s determination of the amount of a convicted
person’s liability for the awards for reparations is part of the order and
is therefore appealable.
1. Substantial Aspects
1.1. Victims
a. Defnition of Victim
In the AC view, in the reparations stage, the defnition of victim is
closely linked to harm, and such harm must have been the consequence of
the commission of crimes by the accused (ICC; 2015, par. 197) (ICC; 2018
B, par. 115). Thus, in the
Lubanga
trial, the AC refused to award reparations
to victims of sexual violence since Mr. Lubanga was not convicted of sexual
crimes. (ICC; 2015, par. 197).
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b. Indirect Victims
The
Lubanga AC Judgment
established: (a) that indirect victims are
entitled to reparations as a result of the crimes for which the defendant
was convicted, (b) that indirect victims include, among others, the family
members of the direct victims and, other persons who sufered personal harm
as a result of the ofenses, and (c) that family members of death victims may
be compensated for psychological harm.
(The Prosecutor v. Thomas Lubanga
Dylo),
Amended Order of Reparations, Annex 1 to the 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”. (ICC; 2015, pars. 6, 58,
128, 191).
The principles set in the
Lubanga AC Judgment
were echoed in the
Katanga
AC Judgment,
where the AC further elaborated on the defnition of family
as indirect victims, but specifed the fexible nature of the presumption of
emotional harm. In the
Katanga
case, the AC rejected a limited interpretation
of the term ‘indirect victim’, and emphasized that, as per articles 75 of the
Statute and 85(a) of the Rules, the defnition of victim is linked to the existence
of harm, rather than whether the indirect victim was a close or distant family
member of the direct victim. (ICC; 2018 B, par. 115). The AC in
Katanga
confrmed the Trial Chamber’s decision to award reparations where, the
death of a direct victim, and the family relationship
between the direct victim
and the applicant were established. (ICC; 2018 B, par. 98). Furthermore, the
AC pointed out that the term indirect victim is not strictly defned to include
or exclude particular categories of family members. (ICC; 2018 B, par. 118).
But the AC also pointed out that, although there is a general trend in the
jurisprudence that a person is presumed to sufer psychological harm after
the loss of an immediate family member, this presumption is discretionary
(ICC; 2018 B, par. 118).
c. Eligibility
In
Lubanga
, the AC interpreted Rule 85(a) of the Rules and Regulation
46 of the Regulations of the Trust Fund (“Regulations of the TFV”), and
established that only victims who sufered harm as a result of the crimes
for which the accused was found guilty were eligible to claim reparations
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and, that when compensation is awarded to a community, only community
members who have the relevant criteria are eligible. (ICC; 2015, par. 8).
In
Katanga
, the AC confrmed and expanded by stating that eligibility must
be based upon the demonstration of harm rather than the demonstration
that the indirect victim falls within a specifed class of persons (ICC; 2018
B, par. 119).
1.2. Harm: Psychological: Presumption
When defning harm, the AC in
Lubanga
considered, among other,
psychological injuries, trauma, and sufering. (ICC; 2015, par. 191; AnxA par.
58). The
Katanga AC Judgment
applied such fndings but further elaborated
on the issue of
presumption
of psychological harm.
In
Katanga,
the AC found that it was not unreasonable to presume a
psychological harm resulting from the loss of both distant and close family
members. (ICC; 2018 B, par. 126). But conversely, while it confrmed the
Trial Chamber’s decision to award reparations for psychological harm to all
applicants who proved material harm but did not personally experience the
attack, it recommended that if in the future trial chambers, were to presume
psychological harm, they should carefully approach the issue and provide
clear reasons as to the basis on which such a presumption is made. (ICC;
2018 B, par. 149).
The AC also recognized the possibility of transgenerational
psychological harm but pointed out the need to assess individual applications
(bearing in mind that the number of applications alleging transgenerational
harm was low to establish whether a causal nexus existed. (ICC; 2018 B,
pars. 239, 255, 260).
1.3. Causation / Proximate Cause
In
Lubanga
, the AC established, that the standard of causation is a “but/
for” relationship between the crime, the harm and the crimes for which
the accused was convicted, were the proximate cause of the harm (ICC;
2015, AnxA par. 59). Thus, the court dismissed the defence arguments that
there is an international trend adopting a restrictive approach with regard
to causation, and endorsed the possibility of indirect victims being awarded
with reparations (ICC; 2015, par. 129).
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Reparations
The
Katanga AC Judgment
confrmed such criterion and the Trial
Chamber’s decision to grant reparation awards to indirect victims but
stressed the need for the judge to carefully explain causality with respect
to indirect victims, noticing that further analysis was needed with regard to
the notion of family in the concerned community. (ICC; 2018 B, par. 122).
1.4. Liability
a. Indigence
The
Lubanga Judgment
established that indigence is not an obstacle to
the imposition of liability (ICC; 2015, par. 103). The
Al Mahdi
and
Katanga
AC Judgments
confrmed such principle (ICC; 2018 A, par. 62) (ICC; 2018 B,
par.189). The
Katanga AC Judgment e
stablished that the convicted person did
not hold any concrete right to have the beneft of reduced liability on account
of his present indigence (ICC; 2018 B, par. 190).
b. Joint Liability is Applicable in the Reparations Stage
The
Lubanga AC Judgment
established the general principle that
reparation orders are intrinsically linked to the individual, whose criminal
liability is established in a conviction and whose culpability for those criminal
acts is determined in a sentence (ICC; 2015, par. 151). While the
Lubanga
AC Judgment
stated that it he convicted person must remedy the harm caused
by the crimes for which he or she was convicted, it established that: a) the
scope of a convicted person’s liability for reparations may difer depending
on the mode of individual criminal responsibility established with respect
to that person; b) the convicted person’s liability for reparations must be
proportionate to the harm and
his participation in the commission of
the crimes
(ICC; 2015, par.118; AnxA par. 45). The
Katanga
decision
modifes such criteria.
The
Katanga AC Judgment
, instead, focused on the
integral reparation
of the
harm sufered by the victims. (ICC; 2018 B, par. 182). The CA established
that the convicted person is responsible for the total amount of the damage,
although other criminals may have shared responsibility, and highlights that
the amount of reparations for which a convicted person is held liable will
not refect his or her relative responsibility for the harm (ICC; 2018 B, par.
75). According to the
Katanga AC Judgment,
the responsibility to repair harm
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under article 75 of the Statutes arises from a criminal conviction, and the
modes of individual criminal responsibility that underpin such a conviction
are relevant for capturing criminal responsibility, but at the reparation stage,
the focus is on repairing the harm. (ICC; 2018 B, par. 179). Moreover, the
AC established that criteria such as the gravity of the crimes or mitigating
factors (such as characteristics personal to the convicted person) are not
relevant, like the goal is not to punish the person, but to repair the harm
caused to others. (ICC; 2018 B, par. 184)
1.5. Modalities of reparations
a. Modalities of reparations
The
Lubanga AC Judgment
set the principle that the trial chamber must
identify the most appropriate modalities or reparations based on the specifc
circumstances of the case (ICC; 2015, par. 200). He delved into the modalities
of reparations, including but not limited to restitution, compensation, and
rehabilitation (ICC; 2015, AnxA par. 32 and 67). Besides stressing the
relevance of restitution (ICC; 2015, AnxA par. 35 and 36) and rehabilitation
(ICC; 2015, AnxA pars. 41-42). The
Lubanga
decision also described the
contexts and situations in which compensation should be considered (ICC;
2015, AnxA par. 37 and 40).
The
Al Mahdi
and
Katanga
decisions reiterated that reparations
proceedings are governed by article 75 of the Statute which vests the trial
chamber with the power to specify appropriate reparations, including
restitution, compensation, and rehabilitation (ICC; 2018 A, par. 34), stated
that trial chambers should seek to determine the appropriate modalities for
repairing the harm (ICC; 2018 A, pars. 64, 72) (ICC; 2018 B, par. 72), and
stressed that the objective of reparations proceeding is remedial and not
punitive (ICC; 2018 B, par. 185),
which correspond to the general principle
of public international law that reparations should, where possible, attempt
to restore the
status quo ante
(ICC; 2018 B, par. 178).
b. Scope or Reparations
The
Lubanga AC Judgment
established that individual and collective
reparations are not mutually exclusive, (ICC; 2015, AnxA par. 33), that there
is no internationally recognized human right to consideration of individual
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Reparations
applications for reparations (ICC; 2015, par. 155), that individual reparations
should be awarded in a way that avoids tensions and divisions within the
communities, and when collective reparations are awarded, these should
address the harm sufered by the victims on an individual and collective basis
(ICC; 2015, AnxA par. 33).
The
Katanga
decision reiterated that the Court may award reparations
on and individualized or collective basis, or both (ICC; 2018 B, par. 146).
The
Al Mahdi
decision also applied
Lubanga,
and, thus, confrmed the Trial
Chamber’s decision is not to grant individual reparations but to extended to
family members of direct victims and other members of the community that
may have sufered material harm as a result of the commission of the crimes
(ICC; 2018 A, pars. 35, 66, 70). The
Al Mahdi AC Judgment
observed that a
report in the feld of cultural rights refected the voices of those who saw it
was problematic that fnancial compensation be made a central component
of reparations in the particular political and economic context of Mali, ICC;
2018 A, par. 36), thus applying the principle set in
Lubanga
that reparations
should avoid creating tensions and divisions within the relevant communities
(ICC; 2015, AnxA par. 33).
Al Mahdi
also applied the principles set up by
Lubanga,
regarding collective reparations when addressing the kind of
collective reparations that the Timbuktu community may be benefted from
(ICC; 2018 A, par. 39).
Meanwhile, although
Al Mahdi AC Judgment
did not modify the defnition
of victim as interpreted in
Lubanga,
it endorsed the Trial Chamber’s decision
not to order
individual
reparations but for extended to family members of the
direct victims, or other persons who had sustained indirect harm (ICC; 2018
A, par. 39) In
Al Mahdi,
the AC did not address the question of causation,
even though it confrmed that the Trial Chamber’s decision
not
to grant
individual reparations to
indirect
victims of the attacks. Nevertheless, the AC
did mention the possibility for that group of people to receive a collective
reparation (ICC; 2018 A, pars. 33, 34, 39, 55). The Court considered that
indirect victims may be awarded with collective reparations and that it was
within the Trial Chamber’s discretionary prerogatives to order individual
reparations only to “those whose livelihoods depended exclusively on the
protected buildings” and “those whose ancestors’ burial sites were damaged
in the attack.
”
(ICC; 2018 A, pars. 33, 37, 39, 42,43, 55).
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1.6. Harm Must Be Defned and Assessed. Views of
Victims and Experts.
The
Lubanga
AC Judgment established that the Trial Chamber must
clearly defne the harms that result from the crimes, the extension of which
may, then be assessed by the Trust Fund, for purposes of determining the size
and nature of reparation awards (ICC; 2015, par. 184). The
Lubanga
decision
also instructed that the Trust Fund, in designing the awards for reparations,
should be informed by the views received in the consultation stage (ICC;
2015, par. 201).
Similarly,
Al Mahdi
and
Katanga
stated that trial chambers should seek
to defne to determine the appropriate modalities for repairing the harm and
remember that the trial chambers have the power to determine the scope
and extent of any damage, and that before issuing an order for reparation
they may invite and take into account representations from or on behalf of
the convicted person, the victims and other interested persons (ICC; 2018 A,
pars. 64, 72) (ICC; 2018 B, pars. 72,143).
The
Al Mahdi
and
Katanga
decisions reiterated the principle, set up in
Lubanga,
that the Trial Chamber must defne and assess the harm (the latter
with the assistance of the Trust Fund) (ICC; 2015, par. 184) (ICC; 2018 B,
par. 172) (ICC; 2018 A, pars. 64, 72). But additionally, the
Katanga
decision
pointed out that rather than attempting to determine the total sum of the
monetary value of the harm caused, trial chambers should seek to defne
the harm and determine the appropriate modalities for repairing the harm
(ICC; 2018 B, par. 72).
The
Katanga
decision also stressed that the objective of the reparation
proceedings is remedial, which is inherent in the modalities of reparations
available to victims. (ICC; 2018 B, par. 185). Such decision also explained
that article 75(1) of the Statute also grants the possibility, albeit in exceptional
circumstances, to determine the scope and extent of any damage for the
purposes of reparations
proprio motu
(ICC; 2018 B, par. 146).
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Reparations
1.7. Right to proportional, adequate and prompt repa
-
rations v. individual assessment
The
Lubanga
AC Judgment established that victims should receive
appropriate, adequate, and prompt reparations (ICC; 2015, AnxA par. 44
and 48).
The
Katanga
Trial Chamber went through individual applications of
victims for reparations but the monetary value of the harm assessed was not
used as a basis for determining what each one of the victims should receive
(ICC; 2018 B, par. 68). The AC considered this approach inadequate and
advised trial chambers to use a diferent method, (even though it confrmed
the decision).
1.8. Discretion
According to the
Katanga
and
Al Mahdi
AC Judgments, a trial chamber,
in making an award for reparations has discretion, circumscribed only by the
scope and extent of any damage, loss and injury (ICC; 2018 A, par. 34 and
60). In fact, according to
Katanga,
a trial chamber even has the discretion
to depart from an applicant’s claim for reparations, if it considered it to be
appropriate. (ICC; 2018 B, par. 147).
2. PROCEDURAL ASPECTS
2.1. General requirements. Due process
The
Lubanga AC Judgment
established the principles and procedures to
be applied to reparations. These paradigms were not altered in the
Al Madhi
and
Katanga
cases and this remain applicable. At this point, the setting of
minimum requirements that every order must contain, in an interpretation
of art. 75 of the Statute. (“1. An order for reparations under article 75 of
the Statute must contain, at a minimum, fve essential elements: 1) it must
be directed against the convicted person; 2) it must establish and inform
the convicted person of his or her liability with respect to the reparations
awarded in order; 3) it must specify, and provide reasons for, the type of
reparations ordered, either collective, individual or both, pursuant to rules
97 (1) and 98 of the Rules of Procedure and Evidence; 4) it must defne the
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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 appropriate based on the circumstances
of the specifc case before it; 5) it must identify the victims eligible to beneft
from the awards for reparations, or set out the criteria of eligibility based on
the link between the harm sufered by the victims and the crimes for which
the person was convicted”, (ICC; 2015, par. 1).
Ensures respect for due process and indicates the path taken by a trial
chamber to develop its reasoning and decision. Lastly, an essential element
for the parties is to be able to exercise efectively the right to appeal. (“The AC
considers that the inclusion of these fve elements in an order for reparations
is vital to its proper implementation. It also ensures that the critical elements
of the order are subject to judicial control, consistent with rule 97 (3) of the
Rules of Procedure and Evidence” (ICC; 2015, par. 34).
2.2. Procedures for awards for reparations
a. Procedures in general
The analysis of the three judgments given by the AC indicates that
some important questions about the procedures are faced, and should be
followed during the reparations stage. Among these issues, the one related
to the functions and attributions of the TFV deserved a separate item in this
report given the numerous new aspects that were raised. This section will
examine the general guidelines given in
Lubanga
and the specifc questions
of the experts.
Regarding general guidelines, the AC, in
Lubanga
, emphasized the
existence of two distinct procedures for awards for reparations. The frst,
related to “individual reparation award is primarily application (‘request’)
based and is mainly regulated by rules 94 and 95 of the Rules. The second
relates to collective reparation awards and is regulated by rules 97(1) and
98(3) of the Rules” (ICC; 2015, par. 149).
B. Experts
Regarding the experts, the issue was dealt both with in
Lubanga
and
Katanga
. In the frst, the issue was considered in more general terms. The
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AC indicated the stages of the procedure in which expert assistance would
be possible, that is to say: 1) before a repair order is issued as regulated by
rule 97(2) of the Rules, and 2) after the order for reparations has been issued,
which is regulated by the Regulations of (ICC; 2015, par. 178). In
Katanga
, the
analysis was more specifc, thus complementing the standards established in
Lubanga
. In fact, in
Katanga
was explained that, when determining the costs
of repairs, the Trial Chamber can rely not only on experts but also on the
assistance of other entities such as the Trust Fund. (ICC; 2018 B, par. 172).
2.3. Standard of proof and burden of proof
One of the most contentious points about the procedures on reparations,
which was referred to in the diferent judgments, although from diferent
perspectives, is the standard of proof. What should be the standard to be
adopted by a trial chamber regarding the defnition of the harm caused, its
extension, and the convicted person’s liability?
a. “Less exacting standard” vs. “beyond reasonable doubt”
The consensus in all three judgments is that, at the reparations stage of
the process, the standard proof that dictates the trial process does not apply,
because criminal liability has already been established by the conviction
and it cannot be further discussed for obvious reasons. This is why the
reference to the so-called “less exacting standard” was made in AC
Lubanga
Judgement.
“81. With respect to the standard and burden of proof, the AC
considers that the Trial Chamber correctly articulated the principle that
reparation proceedings are fundamentally diferent from proceedings at trial
and therefore “a less exacting standard should apply (ICC; 2015, par. 81).
This standard should be interpreted as a degree of judicial conviction not
comparable to certainty “beyond reasonable doubt”.
b. “Balance of probabilities”/ “Preponderance of proof”/
“balance of possibility”
In an attempt to defne better what standards would be applicable at
this stage, the AC in
Lubanga,
referred to the “balance of probabilities”, an
expression that would have as synonyms of the “preponderance of proof” and
the “balance of possibility (ICC; 2015, AnxA par. 65). Although the decision
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itself does not contain a defnition or clarifcation of what that expression
means, footnote 37 of the Order of Reparations contains important references
for a better understanding of that meaning.
2
The same footnote also refers
to the debate that was raised during the Preparatory Commission when
some delegations suggested that evidence should be based on “balance of
probabilities” as opposed to the “beyond reasonable doubt”.
3
The “balance of probabilities” is also referred to in the
Katanga AC
Judgment,
but not in
Al Madhi AC Judgment.
It is important to note a small,
but very important, diference that relates to the application of that standard.
Indeed, while in the frst case the use of that standard appears to be mandatory
(“shall”), in the other the requirement seems to have been relativized (“is
generally”).
c. Presumption. Presumption of facts
The reference to “presumption”, as a standard of proof, clearly appears
in
Katanga.
It is not referred to by other judgments, nor it is possible to say
that the AC considers the expression as synonymous of the “balance of
probabilities”. Nevertheless, it uses the expression “presumption of facts”,
which, according to the AC, could be compared to other expressions found
in judgments given by other International Courts, such as: “discretionary
presumption”, “judicial presumption” or simply “presumption”.
How did the AC conclude that the “presumption of facts” would be
possible in the reparation phase? And second, what can we understand by
this presumption and what would be its scope?
To reach this conclusion, the AC in
Katanga
referred to diferent
decisions handed down by International Courts, especially the Regional
2
The reference was based on the defnition given by Black’s Law Dictionary, that is to say: “the greater
the weight of the evidence that has the most convincing force; superior evidentiary weight that, though
not sufcient to free the mind wholly from all reasonable doubt, is still sufcient to incline a fair and
impartial mind to one side of the issue rather than the other”. (Black’s Law Dictionary, Eight Edition,
Gamer (ed.), 2004, page 1220).
3
“It is important to note that during the Preparatory Commission some delegations suggested that
the evidence standard should be based on a ‘balance of probabilities’ as opposed to the beyond
reasonable doubt’ standard applied in criminal proceedings. Many reparations programmes dealing
with mass claims have also adopted fexible evidential standards based on a ‘plausibility test’ in order to
accommodate the situation of the victims, who usually have difculties in providing the documentation
that is required”.
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Courts of Human Rights (Inter-American and European (ICC; 2018 B, par.
75). There was no precise indication, but it would be possible to deduce that
statutory support for this reasoning was given by Article 21.3 of the Statute.
The reference to the presumption results from the difculty that victims
may face in obtaining evidence to support their claims, which means to
“presume a given fact to be established to the requisite standard of proof
in the absence of direct evidence” There is no exact criterion, and it is up
to the trial chamber’s discretion to defne what would be sufcient to meet
the burden of proof (ICC; 2018 B, par. 75). Still in
Katanga AC Judgment
the presumption was even used to acknowledge the psychological damage
sustained by all the relatives of a victim who was killed during the attack on
Bogoro. (ICC; 2018 B, par. 121).
It is important to note that the adoption of the “presumption of facts” is
not unlimited. In
Katanga AC Judgement,
reference was made to reasonableness
as an important criterion to limit the use of that presumption. However,
here was no indication of the parameters that could guide a trial chamber
in the reasonableness test. The question was left to the discretion of the trial
chamber and the specifc circumstances of each case. (
Katanga Reparations
Appeal Judgment
, ICC-01/04-01/07-3778-Conf, par. 76). Following those
premises, the AC did not consider it unreasonable to admit that psychological
harm was experienced by those who had lost their family members, whether
they were near or distant. (ICC; 2018 B, par. 126).
d. Applicant’s burden of proof. Circumstances of the case
In any case, although the standard of proof in reparations is “lower”
when it is compared to what guides the trial phase, the “relativization” does
not exclude applicants’ burden of proof. This means that “the applicant shall
provide sufcient proof of the causal link between the crime and the harm
sufered...”. (ICC; 2015, par. 81). It is important to note that in
Lubanga
,
the AC expressly stated that what “is sufcient for purposes of an applicant
meeting the burden of proof will depend upon the circumstances of the
specifc case” (
Lubanga Reparations Appeal Judgment,
ICC-01/04-01/06-3129,
par. 81).
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e. Applicant’s burden of proof. Trial Chamber’s discretion
in indicating its content
The discretion is another important point addressed by the AC.
As a matter of fact, in
Katanga,
the AC expressly acknowledged the Trial
Chamber’s discretion evaluating the evidence and indicating the content of
the burden of proof. Although there is no express reference to discretion in
Lubanga AC Judgment,
it can surely be deduced from the reading of such a
decision. Reference is also made to the matter of discretion in the
Al Mahdi
AC Judgment.
f. Discretion and specifc circumstances of the case
As a general approach, the discretion seems to be linked to the specifc
circumstances of each case. In
Lubanga AC Judgment
it was decided that “the
casual link between the crime and the harm for the purposes of reparations
is to be determined in light of the specifcities of a case (ICC; 2015, par.
81). In
Katanga
, the AC considered appropriate the standard used by the
Trial Chamber regarding the “features of the case (ICC; 2018 B, par. 89).
In
Al Madhi
, the AC went even further by stating that it would be expected
that the Trust Fund of Victims also is “aware of the standard applied by the
Trial Chamber result from its assessment of the various factors specifc to the
case”, and for it to be aware, in particular of the difculties applicants, may
face in supporting their applications” (ICC; 2018 A, par. 42).
At least, from the reading of the written decision presented in
Lubanga
AC Judgment
, there is no express reference to examples of possible difculties.
However, in the Order for Reparations, there is a clear mention of the
destruction or unavailability of evidence (ICC; 2015, par. 22). The same
reference was made in the
Al Madhi AC Judgment
(ICC; 2018 A, par. 42).
Obviously, the references are merely examples and do not exclude the
possibility that in the future the Court will face other difculties according to
the circumstances of the case.
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Reparations
2.4. Reparations proceedings. Fair trial/Rights of vic
-
tims/Rights of the defense
Although the presumption of innocence does not apply during the
reparation stage, there are other important rights and guarantees of the
convicted, related to the due legal process that must be observed. (n
Lubanga
,
for example, the AC, expressly stated that the principles guiding reparations
do not afect the right to a fair trial. (ICC; 2015, AnxA par. 49). In any case,
in addition to those rights, the interests of victims should be observed,
which relate not only to an adequate and just reparation but also to an
expeditious process in which the right to their security is safeguarded. The
need to strike a balance between those conficting interests was subjected
to scrutiny by the AC.
a. Decision in relation to individual requests
In
Lubanga
, the AC decided that a Trial Chamber is not required, in all
circumstances, to decide upon the scope and extent of any damage, loss, or
injury in relation to individual requests. That is, the existence of individual
applications does not establish the duty that all requests should be considered
and decided individually. The reasoning behind such a decision was, when
only collective reparations are awarded, “a trial chamber is not required to
rule on the merits of the individual requests. Rather the determination that
is more appropriate to award collective reparations operates as a decision
denying (...) individual reparation awards” (ICC; 2015, par. 152).
b. Ultra petita principle
Ultra petita
principle was another critical issue to decide. In
Katanga
, the
AC ruled that strict applicability of that principle to reparations proceedings
is precluded. In the understanding of the AC, a trial chamber has the
discretion, under article 75 of the Statute, “to depart from an applicant’s
claim for reparations” and is permitted to issue a decision on reparations
without being seized by any party” (ICC; 2018 B, par. 147). Besides that,
a trial chamber may even “invite and shall take account of representations
from, or on behalf of the convicted person, victim, other interested persons
or interested States” to fulfll its power to determine the scope and extent of
any damage. All this indicates that a trial chamber is not limited by the terms
of the claims.
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c. Issues not decided by a Trial Chamber and the right to appeal
Another relevant issue, addressed by the AC involves the obligation of the
trial chamber to include fundamental matters in order for reparations. In
Lubanga,
the AC highlighted the lack of indication of the scope of reparations.
4
According to
the AC, such omission, not only violated the basic rights of the convicted person,
especially the right to be informed of the terms and the extent of his responsibility
resulting from the ofense, but entailed another important procedural problem,
namely, the violation of the right to appeal. As explained by the Court, such
omission would prevent the AC from ruling on that point. Actually, a decision on
the level of appeals which faces a point not examined before would clearly afect
a fair trial since that question could not be appealed. Thus, in
Lubanga
, the AC
noted:
The AC also notes that if it were to specify the scope of Mr Lubanga’s liability in
the amended reparation order […] such a stipulation would be made for the frst
time […]. Accordingly, that stipulation would at the same time be fnal and, thus,
nor subject to appeal. The AC therefore considers that, in the circumstances of the
present case, it is not appropriate for it to determine the scope of [the convicted]
liability for reparation. (ICC; 2015, par. 239)
The above quotation highlights an important procedural rule to be observed
in future decisions on reparations: respect for the right to appeal prevents the AC
from determining the scope of liability for reparations when a trial chamber has
not decided upon such point.
d. Fairness and expeditiousness of proceedings
Regarding the fair and expeditious trial, in Lubanga, the AC established that
where there are more than a few victims, the Trial Chamber will not attempt to
take evidence from or enter orders identifying separate victims or concerning their
individual claims for reparation (ICC; 2018 B, par. 150).
The same approach was taken in
Katanga
. Indeed, the AC considered that
“when there are more than a very small number of victims, it is neither necessary
nor desirable, to award individual and personalized reparations” (ICC; 2018 B,
par. 3). However, there was no objective reference to the number of victims that
could match the criterion “more than a very small number”.
4
One of the fve requirements that any reparations order must contain. See para. 24 above.
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Reparations
e. Confdentiality and fair trial
A very important issue addressed by the AC decisions involves the
confdentiality of victims, identities during reparations proceedings and during
the implementation stage. This issue was faced by in
Al Madhi AC Judgment.
The
question was raised by the defence because that maintaining confdentiality would
be prejudicial to a fair trial, since the convicted person would not be able to
challenge any requests made by unidentifed victims.
In addressing the issue, the AC made explicit reference to the principle
of proportionality “in the sense of balancing” the rights and interests of the
parties. Considering such premises, the AC reversed the decision of the Trial
Chamber that had determined the removal of confdentiality of the victims. They
considered that, for the decision to be generic and without any basis in new facts
or circumstances that could justify a change in the situation. In addition, the AC
held that the interests of the convicted person would be limited at this stage of
the proceedings, which would qualify the decision as disproportionate in view of
the interests it would seek to protect. “A wholesale ruling, granting access to all
victims’ identifying information, at a stage of the proceedings where the interest of
the defense is limited in this way is disproportionate” (ICC; 2018 A, pars. 90, 92)
2.5. Proceedings during the implementation stage
a. Trial Chamber and Trust Fund of Victims
The powers and functions of both, the Trial Chamber and the Trust Fund of
Victims, were the subject of important considerations in
Lubanga
and in
Al Madhi.
At this point, the two judgments complement each other, thus providing a better
picture of the procedure to be observed at the implementation stage.
b. Trust Fund’s role
The Trust Fund plays an important role regarding the order of reparations.
In
Lubanga
, the AC highlighted the two functions to be carried out by the Trust
Fund, namely: (1) implementing the orders given by the trial chamber, and (2)
assisting the victims.
Although important, these functions are limited. The limits are given by the
order itself. As highlighted by the AC, “the role of the Trust Fund should not be
understood in any way to suggest that [a convicted person’s] liability for awards for
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reparations can go beyond the harms resulting from the crimes for which [he/she]
was convicted” (ICC; 2015, par. 237).
These limitations stem from the very administrative and non-judicial function
that the Trust Fund exercises. Regarding individual applications for reparations,
the Trust Fund is responsible for examining the eligibility of possible victims,
according to the criteria set by the chamber, and for the preparation of a draft
implementation plan, which will then be presented to the trial chamber, which
does not need to be the same chamber in its original composition (ICC; 2015, par.
239). Also, “the Trust Fund is directed to provide, in the draft implementation plan,
the anticipated monetary amount that it considers necessary to remedy the harms
caused by the crime for which [a person was convicted], based on information,
gathered during the consultation period leading up, to the submission of the draft
implementation plan” (ICC; 2015, AnxA par. 78).
In the case of collective reparations, as decided in
Lubanga,
the Trust Fund shall
“take into account the views and proposals of victims regarding the appropriate
modalities of reparations and programmes that, in the view of the Trust Fund,
should be part of any reparations awarded on a collective basis”. It should also
take into account the views and proposals already submitted in the course of the
reparation proceedings”. (ICC; 2015, AnxA par. 79).
c. Trust Fund and judicial control
The Trust Fund’s decisions are not immune to judicial control which will be
done by a trial chamber. In the end, a trial chamber will have the fnal decision on
the eligibility of the victims and the implementation plan.
d. Trust Fund, judicial control and rights of the parties
Prior to a trial chamber setting the amount, “the parties shall have the
opportunity to appear before or will make submissions in writing on the scope of
the [convicted] liability, in light of the information provided by the Trust Fund in
its draft implementation plan, within a time limit to be set by [a] Trial Chamber”
(ICC; 2015, AnxA par. 80).
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e. Trial Chamber’s control of “other resources” of the
Trust Fund
Not only does the Trust Fund have to obey the limits of its attributions.
There are also limits to be observed by a trial chamber. In fact, the trial
chamber must refrain from issuing orders that advance over the discretion of the
Trust Fund’s Board of Directors.
This issue was very controversial in
Lubanga AC
Judgment.
In that case, as a way of enforcing the execution of its order, the Trial
Chamber determined that the Trust Fund would make available the amounts
allocated from other sources. In addressing this issue, the AC was categorical in
stating that:
Article 79(2) of the Statute provides that ‘[the Court may order money and other
property collected through fnes or forfeiture to be transferred, by order of the
Court, to the Trust Fund’. Notably, this provision does not contain any corre
-
sponding power to order the Trust Fund to make its other resources available to
the Court. (ICC; 2015, par. 112)
Thus, the decision of whether to allocate other resources is a discretionary
decision of the Trust Fund’s Board of Directors, a conclusion that is even
supported by regulation 56 of the Regulations of the TFV, “The AC considers
that the word ‘may’ in rule 98(5) of the Rules of Procedure and evidence means
that a decision to use ‘other resources’ is a discretionary decision and not
mandatory. Regarding who is to make the decision to use these ‘other resources’,
the AC considers that the wording of regulations 50 and 56 of the Regulations
of the Trust Fund makes it clear that this decision is to be made by the Board of
Directors, not by the Court.” (ICC; 2015, par. 108).
f. Indigence. Giving efect to the order
Moreover, as decided in the
Lubanga AC Judgment,
the indigence of the
convicted does not remove his responsibility for redressing the damages caused
to the victims as a result of the ofenses for which he was convicted. Liability
is - and always will be – individual (ICC; 2015, par. 103). Thus, indigence does
not transfer the obligation to repair the harm caused to other entities, such as
the Trust Fund. This one only complies with the orders for reparations imposed
on the convicted person. How to proceed in such situations?
Some indications of how to proceed were given in
Lubanga AC Judgment.
The fnancial situations of the convicted should be monitored, a measure that
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should be taken by the Presidency, with the assistance of the Registrar. (Regulation
117 of the Regulations of the Court). Besides that, the Court may make use of
the cooperative mechanisms, such as the identifcation and freezing of property,
with States Parties pursuant article 75(1) of the Statute. “The AC considers that
the specifc reference in article 75(4) of the Statute to the possibility of seeking
assistance of States Parties in, inter alia, the identifcation and freezing of property
and assets indicate that indigence is not an obstacle to the imposition of liability for
reparations on the convicted person. In this sense, the AC notes that the provision
provides that the Trial Chamber may seek assistance from States Parties ‘in order
to give efect to the reparation order” (ICC; 2015, par. 103).
In any case, even though the Trust Fund may use its other resources to make
the reparation order efective, this initiative does not exonerate the convicted from
liability. In these circumstances, he or she remains liable and must reimburse the
Trust Fund (ICC; 2015, par. 116).
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REFERENCES
The Prosecutor v. Ahmad Al Faqi Al Mahdi. (2018). Public redacted Judgment on the
appeal of the victims against the “Reparations Order” (ICC-01/12-01/15-259-
Red2), International Criminal Court, [08 March 2018]. URL:
https://www.
icc-cpi.int/court-record/icc-01/12-01/15-259-red2
The Prosecutor v. Germain Katanga. (2018). Public redacted Judgment on the ap
-
peals against the order of Trial Chamber II of 24 March 2017 entitled “Order
for Reparations pursuant to Article 75 of the Statute” (ICC-01/04-01/07-3778-
Red), [09 March 2018]. URL:
https://www.icc-cpi.int/court-record/icc-01/04-
01/07-3778-red
The Prosecutor v. Thomas Lubanga Dyilo. (2015). Judgment on the appeals against
the “Decision establishing the principles and procedures to be applied to rep
-
arations” of 7 August 2012 with AMENDED order for reparations (Annex
A) and public annexes 1 and 2 (ICC-01/04-01/06-3129), International Crim
-
inal Court, [03 March 2015]. URL:
https://www.icc-cpi.int/court-record/icc-
01/04-01/06-3129