Implementing International Criminal Court-Ordered Collective Reparations: Unpacking Present Debates

A debate at the International Criminal Court (ICC) between the Trial Chamber and Trust Fund for Victims (Trust Fund) regarding reparations in the case against Thomas Lubanga Dyilo has stalled aspects of the reparations process and threatens to prevent some prospective beneficiaries from receiving reparations at all. Recently, the Trial Chamber ordered the Trust Fund to determine eligibility of individual beneficiaries as a prerequisite to determining Lubanga’s monetary liability for collective reparation awards. It also ordered the Trust Fund to secure consent of victims to disclose their identities to Lubanga as a precondition to obtaining reparations. The Trust Fund has refused to comply with both orders, citing concern for victim safety among other reasons. In October 2016, the Trial Chamber approved a plan submitted by the Trust Fund on symbolic collective reparations, moving elements of the reparations process forward. However, key issues central to implementing service-based collective reparation awards remain unaddressed, and victims continue to wait for reparations they have been led to expect. This article focuses on disputes about two specific procedural matters that have arisen in the current stage of reparations proceedings: a) whether it is necessary for the Trial Chamber to determine the eligibility of individual beneficiaries of collective reparation awards as a prerequisite to determining a convicted person’s monetary liability for collective reparations that move beyond symbolic reparation initiatives, and b) relatedly, whether the convicted person should have the opportunity to review prospective reparation beneficiaries as part of this process — requiring disclosure of victim identities to both the Trial Chamber and the convicted person. The article suggests that the Trial Chamber’s interpretation of the recent Appeals Chamber judgment clarifying principles governing reparations processes at the ICC, and the Trust Fund’s reaction to Trial Chamber orders, reflect fundamental tensions within the very notion that criminal court- ordered reparations might provide reparative justice for victims of humanity’s gravest crimes. It argues that the Trial Chamber could comply with principles outlined by the Appeals Chamber in a way that would be more appropriately responsive to victim rights and concerns, and that the Trial Chamber should reconsider its approach. Specifically, this article suggests that the Trial Chamber should grant the Trust Fund’s request to reconsider the Trial Chamber-mandated individual victim eligibility and harm assessment process, set out in the Trial Chamber’s order of 9 February 2016. Reviewing prospective beneficiaries should not be viewed as a necessary pre-requisite to determining the monetary liability of the convicted person for collective reparations, nor is Trial Chamber review of prospective beneficiaries a preferable — even if permissible — division of labor between the Trial Chamber and Trust Fund. Additionally, this article argues that the Appeals Chamber judgment should not be read as requiring disclosure of victim identities to the Trial Chamber and convicted person at the reparations implementation stage. The article begins by introducing conceptual and socio-legal tensions inherent to integrating reparations as a transitional justice measure within a legal regime bound to protect both the rights and scope of liability of the convicted person. It then presents an overview of recent court decisions and filings regarding reparations in the Lubanga case. It outlines how these tensions filter into the Court’s legal framework governing reparations; analyzes two legal questions emerging in the context of the present debate between the Trial Chamber and Trust Fund; and situates these legal debates in a broader, socio-legal frame