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AGATA FOKSA
CYIL 4 ȍ2013Ȏ
The case against Thomas Lubanga is important for many reasons: Firstly,
because it is the very first judgment issued by the International Criminal Court,
which, at the same time, proves that this body has real powers and the ability to
prosecute international crimes. Secondly, it is one of the very few cases to prosecute
the enlistment and conscription of children at the international level, raising global
awareness of this particular war crime. Thirdly, due to the precedent in setting out
the rules relating to the issue of reparations which are to be implemented by the Trust
Fund for Victims at a later stage.
Owing to the lack of a careful and thorough examination of the decision
establishing the principles to be applied to reparations, the aim of the following
paper is to analyse the case accordingly in the light of potential threats and challenges
related to this issue. Moreover, it will focus on the recommendations and suggestions
addressed to the Trust Fund for Victims which can potentially be of help in the
implementation of the Court’s decision and conducting the reparation process.
Leaving aside the critiques or the commendations of the Lubanga judgment and
the substantial issues related to international criminal law, which have already been
given a lot of attention from the international community, as well as the overall
excitement related to being the very first decision issued by the ICC, now is the time
to ask the question of what can really be done to conduct the reparation process in
the most effective and coherent way. I hope that the following paper will contribute
to finding out the answer to this question.
PART I
Reparations
General concept
The notion of ‘reparation’ has its origins in the Versailles Treaty, which endedWorld
War I and imposed obligations on the Germans to compensate the Allies for their
wartime losses.
1
At that time, however, the term was synonymous with ‘indemnities’
and was treated as an exaction imposed on the defeated parties, who were said to have
been responsible for the damages resulting from the conflict. Nowadays, the term is
related to a combination of various responses to atrocities and wrongdoing, including
“restitution, compensation, rehabilitation, satisfaction [‘measures to acknowledge
the violations’] and guarantees of non-repetition”.
2
Restitution has as its object the
reestablishment the victim’s
status quo ante
, to the extent possible, by means which
seek to restore their rights. Compensation, as the preferred component especially
1
K. De Feyter, S. Parmentier,
Out of the Ashes
.
Reparation for Victims of Gross and Systematic Human
Rights Violations
, Intersentia, Antwerpen- Oxford, 2005, p. 38.
2
P. B. Hayner,
Unspeakable Truths. Confronting State Terror and Atrocities
, Routledge, New York, 2000,
p. 171.