Summary of Lessons Learned from the Lubanga Trial: What it Means for Victims & the Development of the ICC Legal Aid System

By Jill Clayton, Esq., Law & Policy Intern

The International Criminal Court (“ICC”) issued its first-ever verdict on March 14, 2012, in the case of The Prosecutor v. Thomas Lubanga. The conviction comes six years after the initial warrant of arrest was issued. As the leader of the Force patriotique pour la libération du Congo (“FPLC”), Lubanga was convicted of recruiting children under the age of 15 and using them as child soldiers throughout the conflict in the Democratic Republic of the Congo (“DRC”) between September 2002 and August 2003.

The Lubanga trial has set several noteworthy precedents for the rights of victims in international criminal proceedings. Although provisions for victims were incorporated into the Rome Statute, the trial was the first test of formal victim participation in an international criminal setting. A total of 129 victims participated in the trial through their legal representatives. “Victims” in this case were defined as “children who were recruited and/or actively used as child soldiers” as well as “the children’s parents or next of kin who are able to demonstrate harm suffered on account of the recruitment of their children” and “individuals who may have suffered as a result of intervening to prevent the commission of the crimes” (other individuals pillaged, killed, or raped by FPLC rebel forces were not granted victim status). The judgment constitutes a relief for these victims, their families, and their communities and provides lessons for the future of victim participation and the ICC legal aid system.

Summary of Lessons Learned

• “Meeting” or “Managing” Expectations: Although the details of the ICC’s victim participation system were anything but concrete before, and even during, the trial, the potential to engage the Court directly, to receive reparations, and to be granted protective measures has offered psychological comfort and reassurance to victims. However, there are concerns about the nature and impact of the ICC’s engagement, as well as its ability to “meet” or at least “manage” victims’ expectations as it begins navigating the reparations process with limited resources and no road map. Looking to the future, the ICC must work to clarify expectations. There should be an attempt to gain a more clear understanding of the victims and their personal expectations, while striving to give more effective information and outreach with respect to victims’ rights to participate in proceedings in the future. This will also work to place at bay concerns that the ICC is a distant court that lacks an understanding of victims’ needs and the context of their lives in a conflict-ridden region.

• Procedure: While appreciative that mechanisms for victims’ participation and reparations exist within the Rome Statute, victims and activists have concerns about their effectiveness in practice. One challenge is the length of proceedings—which were halted by the Trial Chamber in this case on two separate occasions for issues related to the prosecution’s disclosure of evidence. Some complain that too many victims are dying without ever seeing justice, while others criticize the Court for providing woefully inadequate assistance to those who wait for the outcome. Problems which lead to delays and potential collapses in future trials should be addressed so that victims may see the perpetrators brought to justice in a more timely fashion.

• Charging Considerations: The judges found that girls recruited into rebel forces were subjected to rape and sexual violence.  However, these were not part of the prosecutor’s charges so the Court did not make any finding of culpability for these violent acts. The overly narrow charging policy of the prosecution should be reviewed to understand the rationale behind the charges and to better provide all-encompassing protection and justice for victims in the future.

• Intermediaries: The prosecution’s use of intermediaries to undertake certain investigative responsibilities was considered “negligent” by the Court, and some of the evidence produced was ultimately disqualified. The Court concluded that intermediaries potentially “persuaded, encouraged, or assisted witnesses to give false evidence” and that “the responsibility to initiate and conduct investigations in these circumstances lies with the prosecution.” Careful review of the situation and discussion about how the ICC can better work with intermediaries is necessary. Intermediaries are an integral part of the process—a process that should be clearer and more transparent. In addition, training sessions, particularly on reparations, would benefit the intermediaries and enable victims, who rely on intermediaries for information, to make more informed choices. The process may also benefit from locating and supporting local lawyers to work alongside intermediaries in advising victims in the early stages.

• Victim Participation, by Law: The inclusion of provisions for victim participation in the Rome Statute is a major advancement in the development of international criminal justice. Moving forward, however, it is necessary to expand the framework of victim participation before the ICC. For example, for a handful of “dual status” victims and witnesses, their status to participate in the trial proceedings was withdrawn by the Court due to contradictions and weaknesses in their testimonies. An explanation is needed as to why individuals with dual status are subject to a higher evidentiary threshold than all other victims participating in the proceedings. There must also be a clarification as to why the legal framework does not provide these individuals with any possibility to challenge the Chamber’s decision with regard to their withdrawal of status as a participating victim.

• Victim Participation, in Practice: Despite many controversies surrounding the Lubanga case, the ICC’s first trial represents a welcome step forward with regard to victims’ participation in international criminal proceedings. Victims were allowed to testify in person before the Court, to present evidence in the trial, and to participate independently of the Prosecutor. While the lasting effect of victims’ participation remains to be seen, the present impact for victims is allowing their voices to be heard in court proceedings against the accused.

• Budget: A crucial challenge to the legal aid system is ensuring there are enough resources to allow for meaningful participation of victims in proceedings, effective legal representation to victims, and efficient communications between victims and their legal representatives.

• Outreach and Communication: Outreach by the ICC to the victims and ongoing communication between victims and their representatives is essential for victims to be able to participate in a meaningful way before the Court. Outreach is fundamental in ensuring victims have access to information about participating in the proceedings and how to go about requesting reparations. There is a need for targeted outreach strategies to address victims’ specific rights, to clarify expectations, and to reach rural communities and the most vulnerable victims.  Effective communication between victims and their representatives depends on providing victims’ representatives with adequate legal aid, so that, for example, they are able to keep the client informed of developments in the proceedings and to obtain the client’s decision as to what position they wish to take as a result of those developments. Common challenges to outreach include: Lack of reliable transport, poor communication infrastructure resulting in difficulty reaching the victims, security, and insufficient administrative resources.

• Protection: On 18 January 2008, Trial Chamber I issued a landmark decision on victim participation, noting the importance of providing protection for victims, many of whom live in areas of ongoing conflict. Challenges to protection were specifically noted in the Lubanga case, where undertaking missions to the Ituri region posed significant security risks, and the number of missions authorized was insufficient to maintain regular contact with the victims. In addition, despite protective measures implemented by the Court, several victims who appeared as witnesses later suffered threats of violence in retaliation for their testimonies.  Protection measures must remain in place to protect those who came forward against reprisal attacks from Lubanga’s supporters who still hold influence in the region.

• Flexibility: Another key challenge that victims’ representatives face is responding to time-sensitive initiatives with regard to their victim-clients. Representatives must seek approval and funding for these initiatives, a process that can be time-consuming. Thus, some degree of flexibility and availability of resources will allow for quicker and more effective communication.

These lessons learned by onlookers of the Lubanga trial offer insight into the framework of victim participation and shine light on the areas in need of improvement. Focusing our attention on these areas will allow us to enhance the productivity and meaningful impact of the ICC and to better ensure the protection of and justice for victims everywhere.

Looking Forward: Reparations

Reparations are a form of restorative justice which can include monetary compensation, return of stolen items, guarantees of “never again,” among other things. Thus far, more than 20 people have applied for some kind of compensation or restitution in the Lubanaga case. It remains unseen as to how the ICC will proceed with the reparation phase. One important aspect for the Court to address is outreach—conducting outreach to inform other eligible victims about the reparations process, the eligibility requirements, and how to apply will be essential to managing expectations and enabling the most participation in the process. Substantial effort will be needed in this area to reach out to victims, particularly those living in more remote locations.

Trial Chamber I invited the Parties and Participants, as well as the Registry and Trust Fund for Victims to file submissions on the procedures and principles to be applied for sentencing and in awarding reparations by 18 April 2012. The “First Report of Requests to Participate” submission, filed by the Registry on 28 March 2012, included an overview of the content of the 85 applications for reparations received so far by the Registry and its recommendations for the procedure to be followed and the principles to be applied by the Chamber in considering the appropriate reparations. In its report, the Registry also addresses the type of reparations requested by the victims including: Monetary compensation, access to medical/psychological care, restitution of property, and the construction of schools, hospitals, and vocational training centers for the community. (Id.). Of the applicants, 19 expressed the wish for individual reparations, 5 for collective reparations, and 59 for both individual and collective reparations, with 2 designating no preference. (Id.). The Registry also notes that the procedural steps should be determined based on the type of award and goes on to provide some suggestions should the Chamber decide to award reparations on an individual basis, a collective basis, or both (Id.).

On 5 April 2012, Trial Chamber I responded to the Office of Public Counsel for Victims’ (“OPCV”) request to participate in the reparations proceedings. In light of the Registry’s recommendation for the OPCV’s participation and the defense’s opposition of the OPCV’s request, the Chamber decided to allow the OPCV to act as the legal representative of unrepresented applicants for reparations and to represent those who have not yet submitted applications. The Chamber stated that “the expertise of the OPCV will be useful, particularly in order to safeguard the rights of these potential beneficiaries of an award for collective reparations.”

At the conclusion of the trial, Trial Chamber I set a timetable for addressing sentencing and reparations. Parties and Participants have until 18 April 2012 to file additional submissions on the procedures and principles to be applied in awarding reparations. These submissions should address issues such as: (i) whether reparations should be awarded on a collective or individual basis; (ii) the criteria used to determine the awards; (iii) whether a reparations order should be made against the convicted person; (iv) whether a reparations order should be made through the Trust Fund for Victims; and (v) whether experts will be called during a reparations hearing.

For more information on victim participation in the Lubanga case, click here or here.

For more information about the Lubanga trial, click here.

For the entire Lubanga judgment, click here.