Years of brutal conflict in the Democratic Republic of Congo (DRC) continue to cause massive suffering. Millions have died, epidemic proportions of women and girls have been raped, property destroyed and livelihoods shattered. Despite the country’s vast natural resources, the bulk of the population lives in extreme poverty. Almost the entire civilian population in the East has suffered some level of victimization as a result of the conflict.
Victims of crime, particularly of the kind of widespread and systematic violence experienced in Eastern DRC are entitled to see their perpetrators prosecuted and to reparations which are intended to respond to the harm caused. In the DRC, these rights are reflected in the African Charter as well as in international instruments such as the International Covenant on Civil and Political Rights and the International Criminal Court statute. Reparations are intended to provide some relief to individual victims. They are also intended to respond to widescale abuses by putting in place measures to prevent recurrence.
In practice, these rights have not been respected. The harm suffered by victims continues to be ignored and new conflicts continue to erupt, the latest sparked by the rise of the M23 rebel group causing a renewed humanitarian emergency and massive displacement. Despite calls from victims and civil society, the government has thus far failed to set up a comprehensive reparations program to tackle the various needs and rights of victims. And, in the few cases in which local courts have ordered the government to pay reparations, it has failed to do so. While there are a range of internationally-funded development programs assisting victims of conflict in the DRC in various ways, these fall short of ‘reparations’ in that they rarely include official acknowledgement of wrongdoing from the government or the perpetrators that is so vital for victims’ recovery.
The virtual absence of local avenues for justice and reparations has led many victims to place high hopes in the International Criminal Court (ICC). In 2004, the President of the DRC ‘referred’ the situation to the ICC, effectively requesting the ICC to investigate and prosecute, and where appropriate afford reparations to victims following a conviction. Reparation can be awards to individual victims, collective awards benefiting communities or specific groups, or some combination of the two.
In March 2012, the ICC delivered its first judgment, finding Thomas Lubanga Dyilo guilty of conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities in Eastern DRC. In accordance with the ICC Statute, the trial bench can then consider reparations. Two main issues arise:
- Despite allegations linking Lubanga and his rebel movement to widespread killings and rapes, these never formed part of the indictment. Later indictments in other DRC cases have a similarly narrow focus, only considering crimes in a small number of villages. A first issue is therefore, whether and to what extent the ICC judges are bound by the narrow charges (and eventual narrow convictions) when determining how best to afford reparations at the end of a case. If the ICC takes a narrow approach to reparations, only allowing victims of the precise crimes for which Lubanga was convicted to benefit, the impact of the award would be limited. But is it for the judges to fix what arguably should have been a wider indictment? Wouldn’t it be wrong for reparations awarded by a Court to go beyond the crimes for which Lubanga was convicted? Lubanga was determined to be indigent so will not be paying for reparations; should this impact on the Court’s possibilities for defining who may benefit from reparations?
- A second issue is how best to structure the award – with so many possible victims, would an approach focused on individuals be the most effective strategy? Seemingly, a collective approach would have the widest possible reach and achieve most with limited resources. Yet, child soldiers, the clear and immediate beneficiaries of the crimes for which Lubanga was convicted, do not necessarily see themselves as a collective; they are typically dispersed, not necessarily based in the communities from where they were initially conscripted or abducted. Individual measures are also better able to respond to the specific experiences of each victim. Typically, victims have requested measures such as education grants, help to access employment and other monetary means to facilitate their reintegration into society. Ill-advised reparations can have the opposite effect, increasing victims’ stigmatization and vulnerability and creating tensions within communities.
In August, the trial bench ruled on the principles it would apply to the reparations procedure in the Lubanga case. On the first issue, it held that anyone who would not have been harmed, but for the crimes committed by Lubanga, is in principle eligible for reparations. This in principle opens up the possibility of extending the eligible beneficiaries beyond the child soldiers, to those whom the child soldiers victimized; a much wider net, yet still closely connected to the crimes for which Lubanga was convicted. On the second issue, the Court transferred the entire reparations file to the ICC Trust Fund, and thereby endorsed the ethos of the Trust Fund’s approach to reparations – a collective, community-based approach. Victims’ legal representatives have appealed, as the victims they represent have also called for individual measures.
Time will tell how the Court will ultimately decide. Regardless of the approach taken, ICC reparations awards will only touch a small proportion of the victims of the conflict. Whatever the ICC does should therefore serve as a catalyst for local processes. It is vital that the DRC Government steps in and takes complementary steps at the domestic level. This is important not only for the direct victims throughout the East of the country whose harm has never been acknowledged, but for the strengthening of peace efforts and economic recovery.
Carla Ferstman is a Jennings Randolph Senior Fellow at USIP. Her work aims to secure remedies for serious human rights violations perpetrated within the context of U.N. mandated actions. The views expressed here do not necessarily reflect those of USIP, which does not advocate specific policy positions.